IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30/04/2002
CORAM
THE HONOURABLE MR. JUSTICE K.P.SIVASUBRAMANIAM
WRIT PETITION No.21278 of 2000 and WP.No.21949 of 2000
and
W.P.M.P.Nos.31861 and 31862 of 2000
Kodaikanal Motor Bus Owners'
Association, represented by
its Secretary, R.Jayamanohar Petitioner in
WP.21278/2000
Kodaikanal Motor Bus Owners'
Association, represented by
its Secretary, S.M.Chandrasekar Petitioner in
WP.21949/2000
-Vs-
1. Government of Tamil Nadu,
represented by its Secretary
to Government, Highways Department,
Chennai-9.
2. The District Collector,'
Dindigul.
3. The Commissioner,
Kodaikanal Municipality,
Kodaikanal.
4. Jayabalan Respondents in
both cases.
Petitions filed under Article 226 of the Constitution of India
praying for the issue of a writ of certiorari as stated therein.
!For petitioner in 2
W.P.No.21278 of 2000 : Mr.M.Krishnappan
For petitioner in
W.P.No.21949 of 2000 : Mr.V.Raghupathy
For respondents 1 and 2 : Mr.R.Thirugnanasambandam,
Special Government Pleader
For 3rd respondent : Mr.V.Radhakrishnan
For 4th respondent : Mr.K.R.Thiagarajan
:ORDER
In both the writ petitions, the petitioners, Kodaikanal Motor
Bus owners’ Association and Kodaikanal Lorry Owners’ Association respectively
have questioned the validity of G.O.(D) 51, Highways Department, dated
14.6.2000 in so far as it imposes the levy of toll in respect of buses and
lorries operated by the petitioners Associations. Both the petitioners are
aggrieved by the impugned order levying toll for using the Kodaikanal ghat
road.
2. For convenience it will be sufficient to refer to the
affidavit filed in respect of W.P.No.21278 of 2000 considering that identical
issues are raised in both the writ petitions.
3. The petitioner Association is a registered Association.
The rate of levy in respect of buses by virtue of the impugned order is at
Rs.75/- per bus per day. The members of the petitioner Association are plying
their vehicles through Dindigul – Kodaikanal road and therefore, they will be
subjected to levy of toll every day. It is further submitted that the toll is
provided for under the Indian Tolls Act, 1851, hereinafter called “the Act”.
The Act has been amended in its application in the State of Tamil Nadu by
substituting Section 2 of the said Act. Under Section 2 of the Act, the State
Government is authorised to levy toll in respect of any road or bridge made,
improved or repaired at their expense after 1.4.1931. The Government is
authorised to collect the toll only for the recovery of the amount expended
upon the road or bridge. Under Highways Act, 1956 also toll is leviable in
respect of road or bridge on the National Highway. The Motor Vehicles
Taxation Act, 1931, was enacted for the purpose of abolishing such levy of
tolls in the State of Tamil Nadu as existing from the commencement of the Act
and also for abolishing the levy of taxes on motor vehicles by the local
bodies. Section 10 of the Act provides for utilisation of the proceeds of the
motor vehicles tax thus collected. The Taxation Act, 1931, was repealed with
effect from 1.4.1974 under 1974 Act. Section 17 of the 1974 Act, provides for
the utilisation of the tax collected. Therefore, according to the petitioner
after the Taxation Act had been enacted, the levy of toll cannot be continued
and any toll could be only in respect of the expenditure incurred in the
construction of any permanent bridge or approach road coming within the
purview of the National Highways Act. It is further contended that levy of
toll was made earlier under G.O.Ms.No.134, Municipal Administration and Water
Supply Department dated 29.5.1992 and the said order was challenged before
this Court. In the decision reported in 1993 Writ L.R., 86, the said levy was
upheld holding that it is compensatory and that necessary guidelines were also
available. The levy of toll was for a period of one year and subsequently, it
has been continued year after year, and at present the said levy is for the
period of one year from 15.6.2000 to 14.6.2001. The fourth respondent has
been given the right to collect the toll for the period from 1.11.2000 to
14.6.2001 for a sum of Rs.32,05,000/-.
4. According to the petitioner, in the counter filed by the
first respondent in the year 1992, which was the subject matter of the
decision in 1993 Writ L.R., 86, it was stated that a sum of Rs.103.78 lakhs
have been spent by the State Government for maintenance of road during
1989-1990 to 1991-92. The petitioner further states that according to his
information, the respondents have realised the following toll collection.
1992-93 to 1995-96 : Figures not available.
1996-97 : Rs.62 lakhs.
1997-98 : Rs.54 lakhs.
1998-99 : Rs.39 lakhs
1999-2000 : Figures not available.
Total : Rs.1,55,00,000/-
5. According to the petitioner, the first respondent was
entitled to collect the amount only for the actual services rendered till the
period the full amount is realised and on the figures stated above, the amount
claimed to have been spent by the first respondent has already been recovered
and therefore, the continued collection of toll was contrary to the provisions
of the Act. It is further stated that from the year 1992 onwards the
Government has not constructed any new road or approach road or any permanent
bridge on the DindigulKodainkanal road till date and therefore, the first
respondent not having incurred any expenditure, there was no necessity to
collect the toll. The first respondent has been making only minor repairs on
the existing roads and that the Motor Vehicles Tax which is being collected
would be more than sufficient to meet the said expenditure.
6. It is further stated that the petitioner had challenged
the earlier levy of toll for the period 1998-99 and 1999-2000 in W.P.Nos.6193
of 1999 and 13882 of 1999 before this Court. When the writ petitions came up
for orders, the said writ petitions were dismissed as infructuous.
7. In the counter filed by the Government, namely, the first
and second respondents, it is contended that the levy of toll was necessitated
due to the fact that huge amounts were required to be spent for every year for
the improvement in repairs of the road and bridges leading to Kodaikanal Town.
The climatic conditions and the ravages of the natural calamities of rain,
landslide etc., caused frequent damages to the roads every year. Taking into
account, the increased rate of tourists every year, special attention is being
given to the ghat roads and it was found not possible to meet the expenditure
from the normal revenue. This Court by order dated 14.12.1992 dismissed a
batch of writ petitions holding that the toll levied by the Government was not
only for recovering the expenses incurred by them, but also for future
maintenance and repairs of the roads.
8. The impugned G.O. was passed after considering the
proposals to enable the third respondent to levy and collect toll at the said
rates as provided in the notification. The following is the total fee
collection for the period from 1.4.1992 to 31.12.2000:-
Toll Gate Collection (Yearwise abstract)
Sl.No. Year Amount
Rs.
1. 1992-93 51,72,442
2. 1993-94 51,67,175
3. 1994-95 32,12,080
4. 1995-96 63,82,153
5. 1996-97 62,23,062
6. 1997-98 53,52,531
7. 1998-99 47,95,279
8. 1999-2000 27,42,820
9. 2000-2001 16,22,800
-------------
4,05,70,942/-
-------------
It is further stated that the said amount was given to the Highways as well as
to the Kodainkanal Municipality for the expenditure towards the repairs and
maintenance of the roads and bridges. Following is the expenditure incurred
by the Highways Department and the Kodaikanal Municipality:
EXPENDITURE
Sl.No. Year Amount
Rs.
1. 1992-93 0.65 lakhs
2. 1993-94 Nil
3. 1994-95 163.31
4. 1995-96 24.56
5. 1996-97 57.04
6. 1997-98 101.50
7. 1998-99 32.90
8. 1999-2000 29.06
9. 2000-2001 90.36
--------
462.38 lakhs
---------
9. By an amendment under Tamil Nadu Act 35 of 2000, the
Government was empowered to levy toll in respect of the roads or bridges
partly at the expenses of the local body or solely at the expenses of the
local body. The length of the roads within the Municipal limits is 12 K.M.
The total population is about 30,000/- whereas floating population during the
season is nearly 1 lakh. The infrastructure such as roads, bridges, etc., are
used by the tourist vehicles. Therefore, keeping in mind, the population of
the municipality, the income of the Municipality, it was found to be very
limited and grossly insufficient to meet the huge expenditure. It is further
stated that the stretch of Perumal Malai to Kodaikanal (12 K.M. Ghat road)
was widened in the year 1997-98 and a stretch of 3 K.Ms. from Silver Cascade
to Shenbaganur was widened in the year 1997-98 out of the toll funds with an
expenditure of Rs.20,00,000/-. Many roads within the Municipal limits leading
to the various Tourist spots are being widened. Existing surface of many
earthern roads had been improved with block type roads and pavements. The
renewal of the damaged black-top road is a major work. In fact during the
current year,28 road works were taken up at a cost of Rs.51.66 lakhs by the
Municipality and the works relating to nine roads to the tune of Rs.47.50
lakhs had been taken by the Highways Department. The said expenditure was met
out of the toll fees. It is further stated that in respect of the expenditure
incurred for the years from 1996 to 2000, a total amount of Rs.103.36 lakhs
was spent. Therefore, a total sum of Rs.285.56 lakhs had been incurred during
the past 12 years.
10. It is further stated that the process of maintenance of
roads is a continuous one which has to be taken up every year and the
department’s funds are not sufficient to take up such works. But as on date,
works numbering about 37 works to the tune of Rs.99.16 lakhs are under
progress. More proposals sent by the Municipality or Highways Department are
pending for want of sufficient allocation. It is true that the Motor Vehicles
taxes collected by the Government are also used by the local bodies for the
maintenance of the road. However, same was not sufficient to meet the huge
requirements. The petitioner was making a comparison of ghat road leading to
Kodaikanal and National Highways Road. As far as the National Highway roads
are concerned, the Central Government was maintaining the same. Kodaikanal is
a tourist spot and being a hilly area, there is a heavy rush during summer
holidays. Also due to rainy season and climatic conditions, roads and bridges
are heavily damaged. Apart from improving the existing surface of the roads,
it is also necessary to strengthen the walls, parapet walls, widening the
existing roads, are also required to be complied with.
11. In the counter affidavit filed by the third respondent,
the Commissioner of Kodaikanal Municipality also the very same contentions
raised in the counter of the second respondent are reiterated. It is stated
that keeping in mind the population of the Municipality, and the income of the
Kodaikanal Municipality being very limited are grossly insufficient to meet
the huge expenditure and investment required to maintain the roads. Huge
expenses are involved as a result of frequent rains and landslides, and roads
are damaged frequently than in the plains. The expenditure for the repair is
almost double when compared to the expenditure involved in repairing the roads
in the plains. Therefore, the contention of the petitioner that the amount
necessary for services rendered till the period mentioned in the affidavit has
already been recovered, is not correct and misleading. The need to maintain
the roads and bridges is a continuous process. It is further stated that
Perumalmalai – Kodaikanal stretch (62 K.Ms.)of ghat road was widened in the
year 1997-98. Many other roads leading to Tourist spots were also renewed
with pavements.
12. It is further stated that the basic objects of the Act
are clearly satisfied. All the roads leading to the Kodaikanal are
extensively used by the vehicles belonging to the Association of the
petitioner. Keeping in mind occupancy in the bus, the amount of toll, which
is levied, the levy is negligible.
13. A separate counter has been filed by the fourth
respondent who has taken the contract for the collection of toll. The stand
already taken by the Government and the local authority is reiterated in the
said counter. It is stated that the Government is not only entitled to
collect the toll for recovery of the amounts, but they are also entitled to
collect toll for keeping up to maintain the roads and bridges in good
condition.
14. A reply affidavit has been filed by the petitioner in
W.P.No.21 278 of 2000. As regards the figures shown by the respondents in the
counter that the respondents have stated that they have realised a sum of
Rs.4,05,70,942/- towards toll collection for the period from 1.4.1992 to
31.12.2000, the petitioner had disputed the same. But at the same time, they
have also mentioned that a sum of Rs.462.36 lakhs was incurred as expenditure
from 1992 to 2000-2001. No proper details have been stated as to whether the
entire expenditure has been spent only for improving, maintaining or
constructing the ghat roads alone or whether it included the expenditure
incurred for maintenance, repair of other Municipal roads within that Town.
It is further stated that in the recent past, there was no landslide. There
was also no improvement of the ghat road and therefore, the toll collected
from the petitioner cannot be diverted for maintaining other roads by the
Municipality. As far as the road from Dindigul to Kodaikanal, was concerned,
there was absolutely no necessity to collect toll since no expenditure was
involved in maintaining the roads. It is further stated that under the
provisions of the Motor Vehicles Taxation Act, 10 per cent of the tax is
reserved for establishing Rural Road Development Fund. Further, the local
authority also receives a share in the Motor Vehicles Taxation under Section
17 of the Act. It is further stated that the toll thus collected cannot be
used for augmenting the general State revenue and the same should be utilised
only for the purpose for which it was levied. In the said background, the
statement relating to the amounts collected and the expenditure incurred would
be abnormal. No substantial expenditure had been incurred for maintaining
ghat roads alone. It is further stated that the toll of Rs.75/- per bus per
day would amount to a collection of Rs.3,00,000/- per year. The operators
would be paying only four quarterly tax; but the petitioners are compelled to
pay five quarterly tax in effect. The amount of Rs.3 lakhs would be
insignificant considering the other collections by way of toll. No prejudice
which would be caused to the Government financially by exempting the 11 buses
which are represented by the petitioner Association in W.P.No.21278 of 2000.
15. On behalf of the petitioner in W.P.No.21278 of 2000 Mr.
Krishnappan appears and for the petitioners in W.P.21949 of 2000 Mr.V.
Raghupathy Advocate appears and contended that the impugned levy or toll was
not only illegal, but was also not a bona fide exercise of the power. The
following points are raised by Mr.Krishnappan.
(i) After the Motor Vehicles Taxation Act, 1974, the levy of toll
cannot be continued and the toll can be collected only in respect of the
actual expenditure involved in constructing any permanent bridge or approach
road coming with the purview of the National Highways Act. The provisions of
the Toll Act cannot be invoked for the maintenance of the already existing
roads and bridges.
(ii) The levy was only compensatory in nature and hence cannot be
attributed to any other factor or diverted for any other purpose. The
respondents can collect the Toll only to the extent of the actual amounts
spent for the purposes specified under the Toll Act. On the other hand,
statistics would reveal that excessive amounts have been collected far more
than the amount actually spent for the maintenance of the roads.
(iii) The non-levy of tax in respect of the private vehicles within
the Municipal areas was glaringly discriminatory and inconsistent with the
stand taken by the respondents themselves namely, that the amounts were
collected only for the maintenance of the road. If so, there was no proper
reason for treating the private vehicles as different from the other vehicles.
(iv) As provided under the Motor Vehicles Taxation Act, 10 per cent of
the said tax was reserved for establishing Rural Road Development Fund.
Therefore, there was no necessity for the State to collect toll in addition to
the tax collected under the Motor Vehicles Taxation Act.
16. Reliance was placed on the following judgments in support
of the contention that toll can be collected only towards the actual expenses
involved in the maintenance of the road and that the tax was only compensatory
in nature.
(i) KODAIKANAL LORRY OWNERS ASSOCIATION v. STATE OF TAMIL NADU &
OTHERS (1993 Writ L.R., 86).
(ii) STATE LORRY OWNERS’ FEDERATION, TAMIL NADU v. SUPERINTENDING
ENGINEER (NH) (1998 Writ L.R.,789).
17. In support of their contention that while imposing the
toll, amounts actually spent towards the maintenance of the road alone could
be collected and not for any other expenditure of the State or local body,
reliance is placed on the judgment of the Supreme Court in STATE OF U.P. v.
DEVI DAYAL SINGH (A.I.R.2000 S.C., 961).
18. Mr.Krishnappan further contended that the details given
in the counter affidavit regarding the expenses were not correct. The amounts
shown as expenditure for maintaining the roads were actually spent for the
roads inside Kodai Town and not for the ghat roads, as claimed by the
respondents. The toll can be used only for the maintenance of the ghat roads
alone. Merely repeating the contentions that the maintenance of ghat roads
were expensive and that there were frequent landslides etc. are not at all
correct. In the recent past, there was no landslide at all in Kodaikanal
area. Learned counsel also took me through the statistics furnished on behalf
of respondents and contended that the alleged expenditure and total toll
amount collected did not tally with each other. According to him, no
materials have been placed to show that the expenditure justified the
collection of the toll. Mr.Krishnappan further contended that with the
introduction of Motor Vehicles Taxation Act, sufficient provision was made for
the maintenance of the roads and 10 per cent of the tax thus collected was
earmarked for the Rural Road Development Fund. Hence, the collection of toll
in addition to the Motor Vehicles Tax, was totally unjustified. The attempt
was only to augment revenue for all and general purposes and not for the
specific purpose of maintenance of the roads as claimed by the respondents.
19. Learned Additional Government Pleader appearing for the
State and Mr.V.Radhakrishnan appearing for the Municipality contended that the
issues raised in these writ petitions had already been raised and considered
by this Court on earlier occasions and have been held against the petitioners.
It has been repeatedly held by this Court that the imposition and the
collection of the tax was justified and had the required statutory backing.
In the said context, reference was made to the very same judgments relied on
by the petitioners themselves namely, 1993 Writ L.R., 86. and 1998 Writ L.R.,
789, supra.
20. Reference was also made to the judgment of the Supreme
Court in AVINDER SINGH v. STAE OF PUBJAB (1979 (I) S.C.C., 137) dealing with
the Legislative competence of the levy of tax.
21. In the context of the exemption granted to the private
vehicles plying within the Municipal area, reliance was placed on the judgment
of the Supreme Court in SRI KRISHNADAS v. TOWN AREA COMMITTEE (1990 (3)
S.C.C., 645). In that case, a contention was raised that the levy was
discriminatory in view of the exemption granted to some of the products and to
those products which were transported by Rail or motor transport, the Supreme
Court held that it was for the Legislature or for the Taxing Authority to
determine the question of need, the policy to collect the fees or for the
purpose of taxation and that the Courts cannot review such decision.
22. I have considered the submissions of both sides. The
issue which has been raised in these writ petitions relating to the collection
of toll for the year 2000-2001 had been considered by this Court in the
context of the previous years at least in two judgments of this Court. In the
case reported i 1993 Writ L.R., 86, supra, AR. Lakshmanan,J., as he then was,
after analysing the provisions of the Indian Tolls Act, 1851, held that the
levy of toll on vehicles entering Kodaikanal Township, was in the nature of a
compensatory tax. Recovery of expenses already incurred and also for future
maintenance and repairs of the roads did not amount to a restriction on the
freedom of Trade and Commerce and was not violative of Article 301 and 304(b)
of the Constitution of India. The learned Judge also held that the levy was
neither disproportionate nor arbitrary. In that case also, the Government
Order expressing their desire to levy toll in respect of the roads in
Kodaikanal Town was questioned as being ultra vires of the provisions of the
Indian Tolls Act. One of the contentions which was raised was that the toll
being levied at an exorbitant rate without actually ascertaining the quantum
of expenditure either to carry out or to be utilised for repairs, maintenance
etc. and that the State Government had no power to levy toll for augmenting
the general revenue of the State. The learned Judge held that benefits were
provided to the members of the public by repairing and maintaining the roads
in the hill area in question. It was for the benefit of the public in general
and the road users. There was also no dispute that the roads are being
maintained by the State authorities. Toll was levied by the Government only
for recovering the expenses incurred by it and was also
intended for future maintenance of the repairs of the road. The petitioners
who had benefited by using the roads cannot complain that the compensatory
character of the toll was lost because of the creation of the fund for the
future maintenance and repairs of the roads.
23. P.Sathasivam,J. also had occasion to deal with the same
issue in the case reported in 1998 Writ L.R., 789, supra. The learned Judge
referred to the judgement in 1993 Writ L.R., 86 and while agreeing with the
views expressed in the said judgement also held that the collection of tax
under the Motor Vehicles Taxation Act cannot be equated with the fees levied
under the National Highways Rules. The learned Judge held that though the
Motor Vehicles Taxation Act, 1974 was an Act to consolidate and amend the law
relating to levy of tax on Motor Vehicles, the collection of fees under the
National Highways Rules, 1992, framed by the Central Government was collected
only for the services and benefits rendered by the Government in relation to
the use of permanent bridges on National Highways.
24. Therefore, the basic issue raised by the petitioners
namely, the right of the Government as well as the local authority to collect
the toll for the proper maintenance of the road is no more res integra and had
been found against the petitioners in the above mentioned two judgments. All
the issues raised before me had been dealt with in the said judgments. I do
not find any reason to differ from the views expressed by both the learned
Judges in the above mentioned judgments.
25. The further contention of learned counsel for the
petitioners that the amounts collected by the respondents by way of toll was
far in excess of the actual expenditure involved in the maintenance of the
road cannot also be sustained. In fact, as held in the judgment reported in
1993 Writ L.R., 86, it was impossible to judge the compensatory nature of the
tax by a meticulous test of the figures. Before this Court sufficient
materials such as statement showing Toll Fund Amount received by the Collector
during the year from 1997-98 to 2000-2001 and details of expenditure incurred
by Municipality have been placed by the respondents showing that repairs and
maintenance work have been carried on periodically and that the said figures
of expenditure do justify the imposition of collection of the toll under the
impugned Government Orders. No contrary material has been placed by the
petitioners to disprove the figures.
26. The only other ground which remains to be considered is
the alleged discrimination shown in favour of the private vehicles plying
within the Municipal area of Kodaikanal Township. I am inclined to hold that
the differentiation is based on rational criteria. There can be no comparison
with the private users of the road and the vehicles which are plying on a
commercial basis. It is also needless to emphasise that the lorries and buses
which carry heavy weight compared to private transport vehicles do result in
causing greater damage to the roads. Further the commercial exploitation
involved in the transport vehicles and lorries and the profits earned by them
are also reasonable grounds for treating them differently. The exemption
granted in favour of the private vehicles whose user of the roads are lesser
and damage caused by them would also be lesser, and not being commercial
cannot be characterised as discrimination as would violate Article 14 of the
Constitution of India. Therefore, I am unable to sustain any of the grounds
raised by the petitioners.
27. In the result, both the Writ Petitions are dismissed. No
costs. Connected miscellaneous petitions are also dismissed as unnecessary.
Index: Yes. 30.04.2002 Internet/Yes. sai/- To 1. The Secretary to Government, Highways Department, Government of Tamil Nadu, Chennai-9. 2. The District Collector,' Dindigul. 3. The Commissioner, Kodaikanal Municipality, Kodaikanal. K.P.SIVASUBRAMANIAM,J. Order in W.P.Nos.21278 and 21949 of 2000 and W.P.M.P.Nos.31861 and 31862 of 2000