2014 PLP 648 (CLD)

ATIR MAHMOOD, J.

This appeal under section 33 of the Punjab Consumers Protection Act, 2005 is directed against order dated 18-3-2010 and decree dated 5-4-2010 passed by learned District Consumer Court, Dera Ghazi Khan whereby complaint filed by respondent No.1 was partly accepted.

2. Brief facts of the case are that respondent No.1 Muhammad Aqeel filed a complaint before the Consumer Court on 7-12-2009 praying that Sakhi Sarwar Toll Plaza Dera Ghazi Khan be shifted to Sakhi Sarwar which, according to the complainant, is its original place. After hearing the parties, learned consumer court proceeded to partly accept the complaint vide order dated 18-3-2010 and decree dated 5-4-2010 to the extent that the appellants will not collect toll tax at the said toll plaza from the contractor till providing him such facility at a newly designated place. Hence this appeal.

3. Learned counsel for the appellant has mainly contended that the consumer court has no jurisdiction to pass the impugned order as it is the prerogative of the National Highways Authority to establish toll plaza for collection of toll tax on the national highways at the place where the authority deems fit. He has also submitted that the consumer court has no powers to issue writ of mandamus as has been done in this case.

4. Respondent No.1 has already been proceeded against ex parte vide order dated 1-11-2013.

5. Arguments heard. Record perused.

6. Clause (vii) of subsection (2) of section 10 of the National Highways Authority Act, 1991 is relevant which is reproduced as under:-- "

10. The Powers of the Authority.-(1) The Authority may take such measures and exercise such powers as it considers necessary or expedient for carrying out the purposes of this Act. (2) Without prejudice to the generality of the powers conferred by subsection (1), the Authority may for the purpose of carrying out the purposes of this Act- (vii) Levy, collect or cause to be collected tolls on National Highways, strategic roads and such other roads as may be entrusted to it and bridges thereon." Bare perusal of above makes it clear that the NHA may levy, collect or cause to be collected toll tax on national highways etc. which is done by establishing toll plaza on the highways. Under the NHA Act, 1991 and National Highways and Strategic Roads (Control) Rules, 1998, there is no embargo on the National Highways Authority on construction/ installation of toll plaza on national highways at a place where the authority deems suitable. This is the prerogative and function of the NHA wherein the court should not interfere in the ordinary circumstances. Furthermore, the consumer court has been established for protection of the consumers of products and services. It has no jurisdiction to pass orders for shifting of toll plazas established in accordance with law or stopping the NHA from collection of toll tax on toll plazas constructed on the highways. In the circumstances, the consumer court has travelled beyond its jurisdiction while passing the impugned order, therefore, the order impugned cannot sustain in the eye of law. Another aspect of the matter is that respondent No.1 does not fall within the ambit of 'consumer' as the establishment of a toll plaza was only for the purpose of collecting toll tax and no service of any kind was being provided to respondent No.1 by establishing the said toll plaza. Further, the toll plaza which is subject matter of this case has already been shifted by the NHA vide order dated 12-11-2013 from the place objected by respondent No.1.

7. For the aforementioned reasons, this appeal is allowed, the impugned order is set aside and the complaint filed by respondent No.1 is dismissed. KMZ/G-47/L Appeal allowed.