{"id":124282,"date":"2009-05-27T00:00:00","date_gmt":"2009-05-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/col-t-prasad-s-s-panday-vs-union-of-india-others-on-27-may-2009"},"modified":"2017-05-08T08:55:57","modified_gmt":"2017-05-08T03:25:57","slug":"col-t-prasad-s-s-panday-vs-union-of-india-others-on-27-may-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/col-t-prasad-s-s-panday-vs-union-of-india-others-on-27-may-2009","title":{"rendered":"Col. T. Prasad & S.S. Panday vs Union Of India & Others on 27 May, 2009"},"content":{"rendered":"
Delhi High Court<\/div>\n
Col. T. Prasad & S.S. Panday vs Union Of India & Others on 27 May, 2009<\/div>\n
Author: Sanjiv Khanna<\/div>\n
LPA Nos. 255\/2007 & 357\/2007           1\n\n\n *           IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n\n\n+ LETTERS PATENT APPEAL NOS. 255 OF 2007 & 357\/2007\n\n\n%                              Date of Decision : May 27th , 2009.\n\n       COL. T. PRASAD              ....Appellant in LPA No. 255\/2007.\n                               Through Mr. Sanjiv Sharma, Advocate.\n\n       S.S. PANDAY                 ....Appellant in LPA No. 357\/2007.\n                               Through Ms. Rekha Palli, Advocate.\n\n                               VERSUS\n\n       UNION OF INDIA & ORS.                   .... Respondents.\n                          Through Mr. Neeraj Kishan Kaul, Sr.\n                          Advocate with Mr. Sudhir Sharma, Mr.\n                          Ajit Warrier and Mr. Ritesh Kumar,\n                          Advocates for respondent No. 4.\n\n\n       CORAM:\n       HON'BLE MR. JUSTICE AJIT PRAKASH SHAH, CHIEF JUSTICE\n       HON'BLE MR. JUSTICE SANJIV KHANNA\n\n       1. Whether Reporters of local papers may be\n       allowed to see the judgment?\n       2. To be referred to the Reporter or not ?\n       3. Whether the judgment should be reported\n       in the Digest ?\n\n\nSANJIV KHANNA, J:\n\n\n\n1.     The appellants, Colonel T. Prasad and Capt. S.S. Panday are\n\nserving Indian Army Officers and have by this intra Court appeal\n\nimpugned judgment dated 6th March, 2007 passed by the learned\n LPA Nos. 255\/2007 & 357\/2007              2\n\n\nsingle Judge dismissing their writ petitions. The appellants rely upon\n\nIndian Tolls (Army and Air Force) Act, 1901 (hereinafter referred to\n\nas the 1901 Act, for short) and claim exemption from payment of toll\n\ntax and claim right to         free access and utilization of Delhi-NOIDA\n\nDirect Flyway (hereinafter referred to as the DND Flyway, for short).\n\n2.     DND Flyway has been constructed by M\/s NOIDA Toll Bridge\n\nCompany Limited pursuant to a concessionaire agreement dated\n\n12th   November, 1997 between             Noida Toll   Bridge Co.    Ltd.-\n\nRespondent no. 4 and New Okhla Industrial Development Authority\n\n(NOIDA)- respondent no. 3. The question and the issue involved in\n\nthe present case relate to interpretation of both 1901 Act,\n\nConcessionaire       Agreement      and   the   New    Okhla    Industrial\n\nDevelopment Area (Levy of Infrastructure Fee) Regulations, 1998\n\nframed under Uttar Pradesh Industrial Area Development Act, 1976.\n\n3.     The relevant provisions of the 1901 Act, which require\n\ninterpretation is as under:-\n\n              \"2. Definitions:\n              (b) \"Carriage\" means a vehicle for carriage or\n              haulage other than one specially constructed\n              for use on rails;\n\n               xxxxx\n\n         (i) \"Public Authority\" means the Central\n             Government or a State Government or a local\n             authority; and, so far as regards tolls levied\n             by a railway company under section 4 of the\n             Indian Guaranteed Railways Act, 1879 or\n LPA Nos. 255\/2007 & 357\/2007            3\n\n\n              section 51 of the Indian Railways Act, 1890,\n              includes such a railway company; and\n\n         (j) \"tolls\" includes duties, dues, rates, fees and\n             charges, but does not include custom duties\n             levied under the Indian Tariff Act, 1934, octroi\n             duties or town duties on the import of goods,\n             or fares paid for the conveyance of\n             passengers on a tramway.\n\n\n\n         3. Exemptions from tolls:- The following\n            persons and property, namely:-\n         (a) all officers, soldiers and airmen of -\n            (i) the Regular forces\n            (ii) any irregular corps,\n            (b) all members of the Territorial Army or of\n            the National Cadet Corps when on duty or\n            when proceeding to or returning from duty.\n\n              (c)    all officers, soldiers and airmen of the\n              Indian Reserve Forces when proceeding from\n              their place of residence on being called out for\n              service, training or, muster or when\n              proceeding back to their place of residence\n              after such service, training or muster,\n\n              (d)    all authorized followers of -\n              (i)   the Regular Forces\n              (ii) the Territorial Army or the National\n              Cadet Corps.\n              (iii) any Irregular Corps.\n\n              (e)    all members of the families of officers,\n              soldiers, airmen or authorized followers of -\n              (i)   the Regular Forces, or\n              (ii)   any Irregular Corps\n                when accompanying any body of troops, or\n              any officer, soldier, airmen or authorized\n              follower thereof on duty or on the march.\n\n              (f) all prisoners under military or air force\n              escort,\n LPA Nos. 255\/2007 & 357\/2007             4\n\n\n              (g) the carriages, horses and baggage, and\n              the persons (if any) employed in driving the\n              carriages or in carrying the baggage, of any\n              persons exempted under any of the foregoing\n              clauses, when such carriages, horses,\n              baggage, or persons accompanying the\n              persons so exempted under the circumstances\n              mentioned in those clauses respectively.\n              (h)     all carriages and horses belonging to\n              government or employed in the Indian\n              military for air force service and all persons in\n              charge of or accompanying the same, when\n              conveying any such persons as hereinbefore\n              in this section mentioned or when conveying\n              baggage or stores, or when returning,\n              unladen from conveying such persons,\n              baggage or stores;\n              (i)    all carriages and horses when moving\n              under the orders of military or air-force\n              authority for the purpose of being employed\n              in the Indian military or air force service;\n              (j)     all animals accompanying any body of\n              troops which are intended to be slaughtered\n              for food or kept for any purpose connected\n              with the provisioning of such troops, and\n              (k)     all persons in charge of any carriage,\n              horse or animal exempted under any of the\n              foregoing clauses when accompanying the\n              same under the circumstances mentioned in\n              those clauses respectively.\n              Shall be exempted from payment of any tolls\n              -\n<\/pre>\n
              (i)   On embarking or disembarking, or on
\n              being shipped or landed, from or upon any
\n              landing-place, or\n<\/p>\n
              (ii) in passing along or over any turnpike or
\n              other road or bridge, or\n<\/p>\n
              (iii) On being carried by means of any ferry,<\/p>\n
              Otherwise demandable by virtue of any Act,
\n              Ordinance, Regulation, order or direction of
\n              any legislature or other public authority in
\n              India.\n<\/p>\n
 LPA Nos. 255\/2007 & 357\/2007             5<\/span><\/p>\n
              Provided that nothing in this section shall
\n              exempt any boats, barges or other vessels
\n              employed in conveying the said persons or
\n              property along any canal from payment of
\n              tolls in like manner as other boats, barges and
\n              vessels.\n<\/p>\n
              Explanation:- The persons or property
\n              exempted under clause (d), (e), (g) and (j)
\n              shall be deemed to accompany the Forces,
\n              troops, persons or property concerned, when
\n              the move of the former is the direct result of,
\n              or is connected with the move of the latter,
\n              irrespective of the interval of space and time
\n              between the two moves.<\/p>\n<\/p>\n
              6. Compensation: (1) if any owner or
\n              lessee,    or    any    company,        railway
\n              administration or local authority claims
\n              compensation for any loss alleged to have
\n              been incurred to the operation of this act, the
\n              claim shall be submitted to the Central
\n              Government.\n<\/p>\n
              (2) On receiving any such claim, the central
\n              government shall pass such order thereon as
\n              justice requires, and shall give all necessary
\n              directions for the purpose of ascertaining the
\n              facts of the case and of assessing the
\n              compensation, if any, to be paid.”\n<\/p>\n
                                     (emphasis supplied)<\/p>\n
4.     The term “public authority” has been defined to mean Central<\/p>\n
Government, State Government or Local Authority.        Section 6 of the<\/p>\n
1901 Act makes it clear that the provisions of the said Act will equally<\/p>\n
apply where a toll is imposed by a owner or lessee, any company,<\/p>\n
Railway administration or local authority, and in such circumstances,<\/p>\n
the   said    person     can   claim   compensation   from   the   Central
\n LPA Nos. 255\/2007 & 357\/2007           6<\/span><\/p>\n
Government for the loss on account of exemption provided under the<\/p>\n
1901 Act from payment of toll tax\/fee.       The word “toll” has been<\/p>\n
broadly defined to include duties, dues, rates, fees, etc. except duties<\/p>\n
under the Indian Tariff Act, 1934, octroi duties, town duties on<\/p>\n
import of goods or fares paid for the conveyance of passengers on a<\/p>\n
tramway.\n<\/p>\n
5.     Section 3 of 1901 Act consists of two parts. The first part deals<\/p>\n
with the persons, who are exempted in clauses (a) to (f) or entitled<\/p>\n
to benefit under the Act. The second part in sub-clauses (g) to (K)<\/p>\n
deals with carriages, animals, horses etc and stipulates when they<\/p>\n
are exempt from payment of toll tax. In the present case, we are<\/p>\n
more concerned with the interpretation of the substantive portion of<\/p>\n
Section 3 which exempts payment of tolls on persons mentioned in<\/p>\n
clauses (a) to (f) read with carriage, animals etc. mentioned in<\/p>\n
clauses (g) to (k). To be precise, we are concerned with the words<\/p>\n
“shall be exempted from payment of any tolls otherwise demandable<\/p>\n
by virtue of any Act, Ordinance, Regulation, order or direction of any<\/p>\n
legislature or any other public authority in India”. The words “by<\/p>\n
virtue of”, mean by force of or authority of or because of. Thus the<\/p>\n
toll or fee demandable for the purpose of 1901 Act must be because<\/p>\n
of, by force or by authority of Act, ordinance, regulation, order or<\/p>\n
direction of any legislation or other public authority. Only tolls
\n LPA Nos. 255\/2007 & 357\/2007           7<\/span><\/p>\n
demandable by virtue of any Act, Ordinance etc. as per the said<\/p>\n
exemption clause cannot be levied on persons mentioned in clauses<\/p>\n
(a) to (f) read with carriages, animals etc. mentioned in clauses (g)<\/p>\n
to (k) of Section 3. Tolls not demandable by virtue of any Act,<\/p>\n
ordinance, regulation, order or direction of any legislature or public<\/p>\n
authority in India are payable by persons mentioned in clauses (a) to<\/p>\n
(f) read with Carriages etc mentioned in Clauses (g) to (k). Tolls or<\/p>\n
fee charged by a private person from third party who travels through<\/p>\n
his land or land over which he has rights are not exempt and can be<\/p>\n
charged if the same is not demandable by virtue of any Act,<\/p>\n
Ordinance, etc. The legislature in Section 3 has used the words<\/p>\n
“otherwise      demandable”    with   reference   to   Act,   Ordinance,<\/p>\n
Regulation, order or direction of any legislature or public authority in<\/p>\n
India.\n<\/p>\n
6.       As per the counsel for the appellants, the word “demandable”<\/p>\n
refers only to imposition or levy or charge of fee under any Act,<\/p>\n
ordinance, regulation, order or direction.        It does not refer to<\/p>\n
quantification or computation of fee. The respondent-NOIDA as well<\/p>\n
as the respondent no.4 Company had argued to the contrary.<\/p>\n
7.       We have considered the arguments raised by both sides and<\/p>\n
feel that the word “demandable” used in Section 3 of the 1901 Act<\/p>\n
refers to both \u201eright to charge a fee or toll\u201f as well as quantification
\n LPA Nos. 255\/2007 & 357\/2007           8<\/span><\/p>\n
and computation of the fee or toll.        A fee cannot be demanded<\/p>\n
without it being computed and calculated.          An amount can be<\/p>\n
demanded after assessment and not before. Demand can only be<\/p>\n
made once a figure has been quantified. An enactment, rule, etc.<\/p>\n
may provide for \u201eright to charge a toll\u201f as well as how the toll is to be<\/p>\n
computed, calculated and then demanded from the person using the<\/p>\n
road or the bridge or the conveyance or may only authorise<\/p>\n
imposition or a charge but leave the question of quantum and<\/p>\n
computation to a contractual agreement. The word “demandable” as<\/p>\n
used in Section 3 is applicable when an enactment provides for \u201eright<\/p>\n
to charge a fee or toll\u201f and provides for computation and calculation<\/p>\n
of the toll. It is only when an Act, ordinance, regulation, order or<\/p>\n
direction, etc provides for both aspects, that the toll becomes<\/p>\n
demandable by virtue of an Act, Ordinance, regulations etc. When<\/p>\n
an enactment merely permits imposition of toll but does not deal<\/p>\n
with or provide for computation, calculation or quantum of toll and<\/p>\n
leaves these questions open to be determined by a contract or any<\/p>\n
other manner, it is not an amount “demandable” under Section 3. To<\/p>\n
demand an amount, the amount should be quantified and for<\/p>\n
purpose of Section 3 of 1901, the amount demanded should be by<\/p>\n
virtue of an Act, Ordinance, Regulation, Order or direction.
\n LPA Nos. 255\/2007 & 357\/2007           9<\/span><\/p>\n
8.      In A.N. Lakshmana Shenoy Vs. The Income Tax officer,<\/p>\n
1958 (34) ITR 275 SC, the Supreme Court was concerned with the<\/p>\n
definition of the word “assessment” and it was observed that the said<\/p>\n
term is comprehensive enough to include the charging section and<\/p>\n
the whole procedure for imposing the tax liability on the tax payer,<\/p>\n
which implies two further steps, i.e., determination of taxable income<\/p>\n
and then the sum payable by assessee as tax on the computation<\/p>\n
made. In National Mineral Development Corporation Limited<\/p>\n
versus State of M.P.and Another,              (2004) 6 SCC 281, the<\/p>\n
Supreme Court was concerned with the question of levy of royalty<\/p>\n
and whether it includes merely charge or also the computation<\/p>\n
thereof and it was observed as under:-\n<\/p>\n
              “23. Section 9 is not the beginning and end of
\n              the levy of royalty. The royalty has to be
\n              quantified for purpose of levy and that cannot
\n              be done unless the provisions of the Second
\n              Schedule are taken into consideration. For the
\n              purpose of levying any charge, not only has
\n              the charge to be authorised by law, it has also
\n              to be computed. The charging provision and
\n              the computation provision may be found at
\n              one place or at two different places depending
\n              on the draftsman\u201fs art of drafting and
\n              methodology employed. In the latter case, the
\n              charging provision and the computation
\n              provision, though placed in two parts of the
\n              enactment, shall have to be read together as
\n              constituting one integrated provision. The
\n              charging provision and the computation
\n              provision do differ qualitatively. In case of
\n              conflict, the computation provision shall give
\n              way to the charging provision. In case of
\n              doubt or ambiguity the computing provision
\n              shall be so interpreted as to act in aid of
\n              charging provision. If the two can be read
\n              together homogeneously then both shall be
\n              given effect to, more so, when it is clear from
\n LPA Nos. 255\/2007 & 357\/2007            10<\/span><\/p>\n
              the computation provision that it is meant to
\n              supplement the charging provision and is, on
\n              its own, a substantive provision in the sense
\n              that but for the computation provision the
\n              charging provision alone would not work. The
\n              computing provision cannot be treated as
\n              mere surplusage or of no significance; what
\n              necessarily flows therefrom shall also have to
\n              be given effect to.\n<\/p><\/blockquote>\n
              24. Applying the abovestated principle, it is
\n              clear that Section 9 neither prescribes the rate
\n              of royalty nor does it lay down how the
\n              royalty shall be computed. The rate of royalty
\n              and its computation methodology are to be
\n              found in the Second Schedule and therefore
\n              the reading of Section 9 which authorises
\n              charging of royalty cannot be complete unless
\n              what is specified in the Second Schedule is
\n              also read as part and parcel of Section 9.”\n<\/p><\/blockquote>\n
9. Thus, it is clear that charging Section\/provisions may be different<\/p>\n
from computation or provisions relating to rate of tax and these can<\/p>\n
be part of a single enactment or parts of two separate enactments.<\/p>\n
An enactment may only provide a charging section and leave the<\/p>\n
computation or calculation portion outside the enactment. Taxing<\/p>\n
statutes have a charging section, provisions relating to rate of tax,<\/p>\n
provisions for calculation of the amount payable including assessment<\/p>\n
and procedure for collection of the amount payable. These provisions<\/p>\n
may not necessarily be part of one statute. Levy of tax includes both<\/p>\n
the charging section as well as computation and assessment.<\/p>\n
10.    In Assistant Collector Central Excise, Calcutta versus<\/p>\n
National Tabacco Company of India Limited, AIR 1972 SC<\/p>\n
2563, the Supreme Court held that the word “levy” is of wide import<\/p>\n
and includes imposition of tax as well as assessment.            The term
\n LPA Nos. 255\/2007 & 357\/2007            11<\/span><\/p>\n
“imposition” is generally used for the levy of a tax or duty by<\/p>\n
legislative provisions indicating subject matter of the tax and the<\/p>\n
rates at which taxes are charged.            The term “assessment” is<\/p>\n
generally used for actual procedure adopted in fixing the liability to<\/p>\n
pay tax and determining its amount. The collection of tax is at the<\/p>\n
third stage. The term levy it was stated includes both imposition as<\/p>\n
well as assessment but does not include collection. Reference was<\/p>\n
made to N. B. Sanjana v. Elphinstone Spg. & Wvg. Mills Co.<\/p>\n
Ltd. , AIR 1971 SC 2039, wherein it was observed as under:-<\/p>\n
              “14. We are not inclined to accept the
\n              contention of Dr Syed Mohammad that the
\n              expression “levy” in Rule 10 means actual
\n              collection of some amount. The charging
\n              provisions Section 3(i) specifically says “There
\n              shall be levied and collected in such a manner
\n              as may be prescribed the duty of excise….” It
\n              is to be noted that sub-section (i) used both
\n              the expressions “levied and collected” and
\n              that clearly shows that the expression \u201elevy\u201f
\n              has not been used in the Act or the Rules as
\n              meaning actual collection.”\n<\/p><\/blockquote>\n
11.    The said judgment was followed by the Gauhati High Court in<\/p>\n
Bishnauth Tea Co. Vs. Supdt Customs & Central Excise 1976<\/p>\n
Tax L.R. 1605 and it was observed that terms \u201elevy\u201f and \u201eassessment\u201f<\/p>\n
do not extend to collection.       Similar view has    been taken by a<\/p>\n
Division Bench of Madhya Pradesh High Court in Hind Syntex Ltd.<\/p>\n
Vs. Union of India & others, 1985 (19) E.L.T. 35 (M.P.), holding<\/p>\n
that the term \u201elevy\u201f includes both imposition of tax indicating the
\n LPA Nos. 255\/2007 & 357\/2007            12<\/span><\/p>\n
subject matters of the tax and the rates at which the tax is to be<\/p>\n
charged. The term “assessment” on the other hand is part of levy<\/p>\n
and is generally used for actual procedure adopted for fixing liability<\/p>\n
to pay tax or on account of particular good or property. Process of<\/p>\n
assessment, determines whether the levy is short or complete.<\/p>\n
However, as observed above by the Supreme Court, the levy itself<\/p>\n
not only means imposition of tax but also provisions relating to<\/p>\n
quantification thereof.        Thus the term “demandable” means both<\/p>\n
\u201eright to impose\u201f or \u201echarge\u201f and the rate including the assessment of<\/p>\n
the quantum of fee or toll i.e. the quantified amount which is to be<\/p>\n
recovered.\n<\/p>\n
12.    The second question is whether the toll or fee for using the<\/p>\n
DND flyway is demandable by virtue of any Act, Ordinance,<\/p>\n
regulation, and\/or direction of any legislature or other public<\/p>\n
authority.\n<\/p>\n
13.    The NOIDA authority has been created under Uttar Pradesh<\/p>\n
Industrial Area Development Act, 1976 and is a local authority as<\/p>\n
defined in Section 3(31) of the General Clauses Act, 1897 and is<\/p>\n
therefore a public authority. Section 11 of the Uttar Pradesh<\/p>\n
Industrial Area Development Act, 1976 authorises imposition of<\/p>\n
taxes. The said section reads :-\n<\/p>\n
                    “Section 11 (1) For the purposes of
\n              providing, maintaining or continuing any
\n LPA Nos. 255\/2007 & 357\/2007            13<\/span><\/p>\n
              amenities in the industrial development area,
\n              the Authority may with the previous approval
\n              of the State Government, levy such taxes as it
\n              may consider necessary in respect of any site
\n              or building on the transferee or occupier
\n              thereof, provided that the total incidence of
\n              such tax shall not exceed twenty five percent
\n              of the annual value of such site or building.\n<\/p><\/blockquote>\n
              Explanation: In this sub-section, the
\n              expression “annual value” shall have the same
\n              meaning as in Section 174 of the U.P. Nagar
\n              Mahapalika Adhiniyam, 1959.\n<\/p><\/blockquote>\n
              (2) if the state Government considers it
\n              necessary or expedient in the public interest it
\n              may, by a general or special order, exempt
\n              wholly or partly – any such transferee or
\n              occupier or any such class thereof from the
\n              taxes levied under sub section (1).”\n<\/p><\/blockquote>\n
14.     Under Section 11 of the said Act, previous approval of the<\/p>\n
State Government is required for levy of tax. The aforesaid Section<\/p>\n
provides for charging of tax in respect of annual value of a site or<\/p>\n
building. The said provision is not applicable. The said Act does not<\/p>\n
provide for imposition of any toll tax by an authority under the Act. It<\/p>\n
cannot be said that toll tax is collected or is chargeable or levied<\/p>\n
under Section 11 of the said Act.\n<\/p>\n
15.     Under Section 6 of the Uttar Pradesh Industrial Area<\/p>\n
Development Act, 1976, NOIDA Authority is to provide infrastructure<\/p>\n
for residential and commercial purposes. NOIDA Authority has<\/p>\n
framed the New Okhla Industrial Development Area (Levy of
\n LPA Nos. 255\/2007 & 357\/2007            14<\/span><\/p>\n
Infrastructure Fee) Regulations. The regulations provide and permit<\/p>\n
NOIDA Authority to enter into an agreement with third parties for<\/p>\n
collection of fee or even develop, construct, maintain and provide<\/p>\n
infrastructure and collect fee. Thus, the NOIDA Authority is entitled<\/p>\n
to enter into an agreement to collect levy of fees. It can also enter<\/p>\n
into agreement with a third party to develop, construct and maintain<\/p>\n
infrastructure, which are commonly called built, operate and transfer<\/p>\n
projects (BOT projects). In such cases, of the public private<\/p>\n
partnership, the developer does retains buildings, infrastructure and<\/p>\n
operates to recoup the expenses incurred and earn profit and<\/p>\n
thereafter transfers the infrastructure\/project after a period to the<\/p>\n
Government. The relevant provisions of the said Regulations read as<\/p>\n
under:-\n<\/p>\n
              “2. Definitions<\/p>\n<\/blockquote>\n
              (e) \u201eDeveloper\u201f means a person who
\n              constructs, develops, maintains or provides an
\n              infrastructure or collects fee therefore in the
\n              area on the basis of an agreement made
\n              before or after the commencement of these
\n              regulations, providing or maintaining or
\n              continuing to provide or maintain any
\n              infrastructure in the New Okhla Industrial
\n              Development Area,<\/p>\n<\/blockquote>\n
              (f) \u201eFee\u201f in relation to an infrastructure means
\n              an amount levied upon or payable by a
\n              person under these regulations for the use of
\n              an infrastructure in the Area,
\n LPA Nos. 255\/2007 & 357\/2007            15<\/span><\/p>\n<\/blockquote>\n
              3. (a) The authority may either itself or
\n              through a Developer on the basis of an
\n              agreement, develop, construct, provide or
\n              maintain or continue to provide or maintain
\n              an infrastructure in the Area,<\/p>\n<\/blockquote>\n
              (b) In particular, and without prejudice to the
\n              generality of the powers of the Authority in
\n              this behalf the agreement may provide for any
\n              or all of the following matters: –\n<\/p><\/blockquote>\n
              (i) xxx\n<\/p><\/blockquote>\n
              (ii) Right and obligations of the parties to the
\n              agreement;\n<\/p><\/blockquote>\n
              (iii) standards and specifications for the
\n              design, construction and maintenance of an
\n              infrastructure;\n<\/p><\/blockquote>\n
              (iv) fee to be levied and collected for an
\n              infrastructure in the area;\n<\/p><\/blockquote>\n
              (v) Process of computing the reasonable
\n              return for the Developer;\n<\/p><\/blockquote>\n
              (vi) Procedure for surrender, release or
\n              extinguishing of the rights of the Developer or
\n              otherwise the transfer of an infrastructure;\n<\/p><\/blockquote>\n
              (vii) rights of the lenders of the Developer in
\n              relation to an infrastructure;\n<\/p><\/blockquote>\n
              (viii) termination of the agreement;\n<\/p><\/blockquote>\n
              (ix) mechanism for settlement of disputes;
\n              and\n<\/p><\/blockquote>\n
              (x) any other terms and conditions as may be
\n              agreed upon by the Authority, Developer or
\n              lender of the Developer.\n<\/p><\/blockquote>\n
              4. (i) Every agreement by and on behalf of
\n              the Authority shall be made and executed by
\n              such officer of the Authority as may be
\n              authorised by the Authority in this regard.\n<\/p><\/blockquote>\n
              (ii) No agreement made by and on behalf of
\n              the Authority in contravention of the
\n              provisions of sub-regulation (i) shall be
\n              binding on it.\n<\/p><\/blockquote>\n
 LPA Nos. 255\/2007 & 357\/2007            16<\/span><\/p>\n
              5(1)       For the purpose of providing or\n              maintaining or       continuing to provide or\n<\/pre>\n
              maintain an infrastructure in the Area either
\n              by itself or through a Developer the Authority
\n              may levy and collect at the rate determined
\n              on the basis of a formula prescribed and
\n              notified by the authority. In case an
\n              infrastructure is developed, constructed or
\n              maintained or provided under an agreement
\n              such formula shall be such as may be
\n              determined and agreed to between the
\n              Authority and the Developer. The formula
\n              prescribed may provide for different rates for
\n              different classes of infrastructure.\n<\/p><\/blockquote>\n
              (2) The authority shall have the powers to
\n              authorise the developer to collect and
\n              appropriate the fee levied under sub-clause
\n              (1) in accordance with the Agreement.
\n              Developer\u201fs rights to collect or appropriate the
\n              fee may be assignable to the lenders of the
\n              Developer.\n<\/p><\/blockquote>\n
              (3) Where the authority authorizes the
\n              Developer to collect and appropriate the Fee
\n              in accordance with sub-regulation (2), the
\n              agreement shall provide for a mechanism for
\n              determination, revision, and publication of the
\n              rate of fee.\n<\/p><\/blockquote>\n
              (4) xxx<\/p>\n
              (5) A developer shall maintain and keep such
\n              registers and other records as may be
\n              directed by the Authority.”\n<\/p><\/blockquote>\n
                                     (emphasis supplied)<\/p>\n<\/blockquote>\n
16.    The term “developer” includes a person, who constructs,<\/p>\n
develops and maintains and provides infrastructure and collect fee on<\/p>\n
the basis of agreement before or after commencement of the
\n LPA Nos. 255\/2007 & 357\/2007         17<\/span><\/p>\n
regulations. The definition of the term “fee” means amount levied or<\/p>\n
payable by a person under the regulations. Further regulation 3 (b)<\/p>\n<\/blockquote>\n
(iv) states that the fee is to be levied and collected for the<\/p>\n
infrastructure in the area. The computation provisions are provided<\/p>\n
and regulated by regulation 5.      They are the most crucial and<\/p>\n
relevant for adjudication of the present dispute. As per Regulation 5,<\/p>\n
NOIDA can enter into an agreement to provide or maintain<\/p>\n
infrastructure either itself or through a developer and the authority<\/p>\n
may levy and collect at the rate determined on the basis of formula<\/p>\n
prescribed and notified by the authority. At the same time, it also<\/p>\n
permits the authority to develop infrastructure, construct, maintain or<\/p>\n
provide infrastructure by entering into an agreement with the<\/p>\n
developer and tax can be levied and collected on the basis of formula<\/p>\n
as may be determined and agreed between the NOIDA and the<\/p>\n
developer.      Thus the formula for computation of fee\/tax can be<\/p>\n
matter of a contract or an agreement between the developer and<\/p>\n
NOIDA. The Regulations give sufficient powers and freedom to<\/p>\n
NOIDA to enter into agreements with a developer for determining<\/p>\n
and agreeing upon the fee\/tax to be charged. In such cases, the<\/p>\n
quantum of tax\/fee which is charged is as per the agreement and not<\/p>\n
under the regulation. The agreement between the NOIDA and the<\/p>\n
developer determines and mentions the formula and determines the
\n LPA Nos. 255\/2007 & 357\/2007            18<\/span><\/p>\n
rate of fee.     Sub Clauses (2) and (3) permit the developer to collect<\/p>\n
and appropriate the fee, are different and relate to collection. They<\/p>\n
are not relevant for the purpose of deciding the present controversy<\/p>\n
and interpretation of the word “demandable” used in Section 3 of the<\/p>\n
1901 Act.\n<\/p><\/blockquote>\n
17.    There is a long line of decisions by the Supreme Court which<\/p>\n
differentiate between statutory contracts and other contracts.       In<\/p>\n
India Thermal Power Ltd. vs. State of M.P. (2000) 3 SCC 379<\/p>\n
the Supreme Court has observed:\n<\/p>\n
               “11. ……………If entering into a contract
\n               containing the prescribed terms and
\n               conditions is a must under the statute then
\n               that contract becomes a statutory contract. If
\n               a contract incorporates certain terms and
\n               conditions in it which are statutory then the
\n               said contract to that extent is statutory. A
\n               contract may contain certain other terms and
\n               conditions which may not be of a statutory
\n               character and which have been incorporated
\n               therein as a result of mutual agreement
\n               between the parties. Therefore, the PPAs can
\n               be regarded as statutory only to the extent
\n               that they contain provisions regarding
\n               determination of tariff and other statutory
\n               requirements of Section 43-A(2). Opening and
\n               maintaining of an escrow account or an
\n               escrow agreement are not the statutory
\n               requirements and, therefore, merely because
\n               PPAs     contemplate       maintaining  escrow
\n               accounts that obligation cannot be regarded
\n               as statutory.”\n<\/p><\/blockquote>\n
18.    The mutual agreement between NOIDA and the respondent No.
\n4 Company fixing a formula for computing quantum of tax\/fee is not
\na statutory contract or a statutory term in a contract. The
\nRegulations quoted above do not fix or quantify the rate of tax or
\n LPA Nos. 255\/2007 & 357\/2007               19<\/span><\/p>\n
toll. The formula or rate can be subject matter of a mutual
\nagreement. The formula mentioned in an agreement is therefore not
\na statutory term.\n<\/p>\n
19.    It is not the case of either party that NOIDA Authority under<\/p>\n
the Regulations has framed any formula for charging of fee or toll.<\/p>\n
On the other hand, the quantum of fee demandable and chargeable<\/p>\n
is mentioned in the concessionaire agreement dated 12th November,<\/p>\n
1997. The relevant clauses of the agreement are as under:-<\/p>\n
              “Section 1.1 Definitions<\/p>\n
              “Fee” means the amount of money
\n              demanded, charged, collected, retained and
\n              appropriated by the Concessionaire for and on
\n              behalf of NOIDA from the users of the Noida
\n              Bridge as fee for the provision of the Noida
\n              Bridge, in accordance accordance with the
\n              rules prepared by NOIDA under Section 19 of
\n              the Act and the provisions of Article 13 herein.<\/p><\/blockquote>\n
\n\n\n\n              Section 2.1 Grant of Concession\n              (a)        Xxxxxx\n\n              (b)    NOIDA          further  grants    to   the\n              Concessionaire        the exclusive right and\n              authority during      the Concession Period to in\n              accordance with       terms and conditions of this\n              Agreement:\n\n              (i)              Xxxxx\n\n              (ii)             Xxxxxx\n\n              (iii)            Xxxxxx\n LPA Nos. 255\/2007 & 357\/2007           20<\/span>\n\n\n<\/pre>\n
              (iv) determine, demand, collect retain and
\n              appropriate a Fee from the users of the
\n              NOIDA Bridge and apply the same in order to
\n              recover the Total Cost of the Project and the
\n              returns thereon;\n<\/p><\/blockquote>\n
              Section 3.1 Conditions Precedent\n<\/p><\/blockquote>\n
              (a) obligations     of   the    concessionaire
\n              hereunder are subject to the satisfaction in
\n              full of the following conditions precedent
\n              unless any such conditions had been waived
\n              by the concessionaire as hereinafter provided:\n<\/p><\/blockquote>\n
              (i)   xxxx\n<\/p><\/blockquote>\n
              (ii) xxxxx\n<\/p><\/blockquote>\n
              (iii) xxxxxx\n<\/p><\/blockquote>\n
              (iv) NOIDA shall have duly formulated
\n              regulations under Section 19 of the Act
\n              enabling the levy of Fee and NOIDA shall
\n              have,      thereunder,     authorized     the
\n              Concessionaire to collect and appropriate the
\n              fee.\n<\/p><\/blockquote>\n
              Section 13.1 Collection of Fee<\/p>\n<\/blockquote>\n
       (a)    The Fee shall be determined by the Fee
\n              Review Committee in accordance with
\n              provisions of this Article 13 except for the
\n              Base Fee Rates which have already been
\n              determined and approved by the Steering
\n              Committee and has been specified in Section
\n              13.2 hereinbelow.\n<\/p><\/blockquote>\n
       (b)       The Fee shall be, collected, retained and
\n              appropriated from the Users of Noida Bridge
\n              by the Concessionaire, commencing on the
\n              Project Commissioning Date.\n<\/p><\/blockquote>\n
       (c)     The Concessionaire may delegate its function
\n              to collect Fee to the O&M Contractor under
\n              the O&M Contract, in accordance with rules
\n              framed by NOIDA under the Act. In such
\n              event the O&M Contractor shall collect the
\n              Fee for and on behalf of the Concessionaire.\n<\/p><\/blockquote>\n
 LPA Nos. 255\/2007 & 357\/2007            21<\/span><\/p>\n
       (d)     NOIDA and the Concessionaire expressly
\n              recognizes (i) the right of Fee Review
\n              Committee to determine Fee in accordance
\n              with provisions of this Agreement, and the
\n              Rules framed by NOIDA in relation to levy of
\n              fee under the Act (ii) the right of
\n              Concessionaire to, demand, collect, retain and
\n              to appropriate Fee in accordance with the
\n              terms of this Agreement and the rules framed
\n              by NOIDA in relation to levy of Fee under the
\n              Act, (iii) to exercise all rights and remedies
\n              available under law for recovery of the Fee
\n              and (iv) the right of the O&M Contractor to
\n              demand and collect Fee on behalf of the
\n              Concessionaire.\n<\/p><\/blockquote>\n
       (e)    In the event that the Fee is not recoverable
\n              for any reason related to Change in Law or as
\n              a result of any restriction or injunction based
\n              on any process of law, the Concessionaire
\n              shall be entitled to receive compensation from
\n              NOIDA in accordance with Section 18.\n<\/p><\/blockquote>\n
              Section 13.4 Fee Review Committee<\/p>\n<\/blockquote>\n
              (a) Within 60 days prior to the scheduled
\n              Projected Commissioning Date, the NOIDA
\n              and the Concessionaire shall establish a Fee
\n              Review Committee for the purposes of
\n              determining any revision to the rate of Fee
\n              levied or revision of the formula for calculation
\n              of the Fee Rate submitted by the
\n              Concessionaire under the provisions of Section
\n              13.5. The Fee Review Committee shall
\n              comprise of three persons; NOIDA and the
\n              concessionaire shall each appoint one
\n              representative who shall be duly qualified
\n              Persons having adequate experience in the
\n              field of management, operation and
\n              maintenance of bridges and roads. The third
\n              member shall be duly qualified Person duly
\n LPA Nos. 255\/2007 & 357\/2007          22<\/span><\/p>\n
              appointed by the representatives appointed
\n              by     NOIDA     and   the    Concessionaire,
\n              respectively. In the event of representatives
\n              appointed by NOIDA and the Concessionaire
\n              are unable to agree on the third member,
\n              within a period of 7 days from their
\n              appointment, the Person recommended by
\n              the Lenders shall be appointed as a third
\n              member, provided such person is an Indian
\n              citizen.\n<\/p><\/blockquote>\n
       (b)    The third member shall be Chairman of the
\n              Fee Review Committee. The Fee Review
\n              Committee shall meet upon 7 days notice by
\n              the Chairman, at the request of the
\n              Concessionaire, or at such time intervals as
\n              required by the parties. In the event that any
\n              party is absent from any meeting of Fee
\n              Review Committee or determines not to cast a
\n              vote or in the event of a parity of votes in a
\n              meeting, the Chairman shall have the casting
\n              vote.”\n<\/p><\/blockquote>\n
20.    On harmonious reading of the aforesaid clauses of the<\/p>\n
Concessionaire Agreement, we find merit in the stand taken by the<\/p>\n
respondent-NOIDA and the respondent No. 4 company.               The<\/p>\n
Agreement provides for method of computation or the formula for<\/p>\n
charging of fee. There is a detailed procedure in the formula, how<\/p>\n
the toll fee is to be computed and then charged, but the computation<\/p>\n
and calculation is under the agreement or a non statutory term of the<\/p>\n
agreement. Under Section 13(1) of Concessionaire agreement dated<\/p>\n
12th November, 1997 the said fee or the formula for computation of<\/p>\n
the fee is prescribed and is not based upon any statutory regulation
\n LPA Nos. 255\/2007 & 357\/2007          23<\/span><\/p>\n
or enactment. The toll fee paid is not demandable by virtue of any<\/p>\n
Act, Regulation, Ordinance etc. under Section 3 of 1901 Act.<\/p>\n
21.    In the light of the aforesaid decision of the Supreme Court in
\nIndia Thermal Power Ltd. (supra), the Concessionaire Agreement
\nto the extent it relates to the formula for computation of fee is
\ncontractual and not statutory. Mere fact that the respondent no. 4
\ncompany is entitled to retain the fee and appropriate the toll fee does
\nnot make the levy a statutory levy. As held above, the word \u201elevy\u201f
\nnot only includes right to charge the toll but also the quantum or the
\nassessment.        The Act and the Regulations do not provide for
\ncomputation of toll or the assessment of toll. Computation of toll or
\nassessment of toll is as per the agreement dated 12th November,
\n1997. It is clarified that in the present case we have not examined
\nand considered the question of validity of the Concessionaire
\nAgreement or validity of the New Okhla Industrial Development Area
\n(Levy of Infrastructure Fee) Regulations, 1998 and whether quantum
\nor a formula can be validly made subject matter of a contract and
\nquestions relating to validity of delegated legislation. These questions
\nand issues have not been raised or argued.\n<\/p>\n
       The appeals are accordingly dismissed but for different reasons
\nthan those referred to by the learned single Judge. No costs.<\/p>\n
                                             (SANJIV KHANNA)
\n                                                JUDGE<\/p>\n
                                            (AJIT PRAKASH SHAH)
\n                                               CHIEF JUSTICE<\/p>\n
       MAY 27, 2009.\n<\/p>\n
       VKR\/P\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Col. T. Prasad & S.S. Panday vs Union Of India & Others on 27 May, 2009 Author: Sanjiv Khanna LPA Nos. 255\/2007 & 357\/2007 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + LETTERS PATENT APPEAL NOS. 255 OF 2007 & 357\/2007 % Date of Decision : May 27th […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-124282","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nCol. T. Prasad & S.S. Panday vs Union Of India & Others on 27 May, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/col-t-prasad-s-s-panday-vs-union-of-india-others-on-27-may-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Col. T. Prasad & S.S. 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