D. Vidya Sagar vs Union Of India And 4 Other
2022 Latest Caselaw 757 Tel

 THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
                          AND
         THE HON'BLE SRI JUSTICE N. TUKARAMJI

                  WRIT PETITION (PIL) No.89 OF 2019

ORDER:   (Per the Hon'ble the Chief Justice Satish Chandra Sharma)


     The petitioners before this Court, who are advocates,

have filed the present writ petition by way of Public Interest

Litigation stating that they are owners of motor vehicles,

they have paid road tax at the time of purchase of the

vehicles and the respondents are compelling them to pay toll

tax, which is in addition to the lifetime tax paid by the

petitioners. The petitioners' contention is that the collection

of toll tax at National Highway Toll Booths is a mafia type

operation controlled by top rank politicians belonging to the

Government in power and therefore, payment of toll tax be

declared as illegal and unjust.

2. The petitioners have also raised a grievance in respect

of non-payment of toll tax by certain dignitaries and the

contention of the petitioners is that the exemption from

payment of toll tax by certain dignitaries is in violation of

Article 14 of the Constitution of India. The petitioners have

given certain examples of collection of toll tax at GMR -

Vijayawada Expressway. It has been further stated that in

and around Hyderabad also, toll tax is being collected and

the action of the respondents in collecting toll tax even after

seventy two years of Independence in a democratic country

deserves to be quashed. The petitioners have prayed for the

following relief:-

"It is therefore prayed that this Hon'ble Court may be pleased to issue an appropriate Writ, Order or Direction, more particularly one in the nature of Writ of Mandamus, declaring the action of the respondents herein in notifying majority of the roads connecting various places in the country as National/State Highways and thereby compelling the petitioners several other crores of common people like such to use only highways by paying huge amounts towards toll taxes in addition to the life tax (road tax) paid during the purchase of mechanical vehicle under the guise of facilitating the raising of additional sources for development of Highways without providing an alternative way/road as being illegal and arbitrary and consequently to struck down the collection of toll system or collection of life tax from the citizens of this country in the interest of justice and to pass such other order or orders as are deemed fit and property in the circumstances of the case."

3. The petitioners have subsequently filed Additional

Affidavit furnishing a list of officials/dignitaries who are

exempted from paying toll tax and the contention of the

petitioners is that keeping in view the Report of the

Committee of Secretaries on Review of Toll Policy for National

Highways submitted to the Government of India in May,

2009, alternative road (toll free road) should be made

available to a common man. In the Additional Affidavit, again

a prayer has been made for quashment of the system of

collecting toll fee on State and National Highways.

4. A detailed and exhaustive counter affidavit has been

filed by the National Highways Authority of India (NHAI). It

has been stated that keeping in view the financial crunch,

which was coming in the way of development of

Highways/Highway Projects by NHAI, the Central

Government took a policy decision in order to ensure that

funds are made available and created National Level

Infrastructure of Roads and accordingly the National

Highways Act, 1956 was amended and Section 8A was

incorporated vide Act No.26 of 1995 with effect from

16.06.1995. The amendment empowered the NHAI to enter

into an agreement with any person in relation to the

development and maintenance of the whole or any part of a

National Highway. Section 8A further provided that any

person with whom an agreement has been entered into can

collect and retain fees for services or benefits rendered by

him as the Central Government may provide by Notification,

having regard to the expenditure involved in building,

maintenance, management and operation of National

Highways, interest on the capital invested, reasonable

return, the volume of traffic and the period of such

agreement.

5. It has been further stated that the Government of India

has launched a National Highways Development Project

(NHDP) which is the largest development project undertaken

by a single Authority in the world i.e., NHAI with an aim and

object of widening, upgradation, strengthening and

rehabilitation of about 55,000 kilometres of roads and most

of the projects are on the basis of Public Private Partnership

(PPP). The respondents have further stated that the levy of

fees is governed by the National Highways Fee

(Determination of Rates and Collection) Rules, 2008, the

National Highways (Collection of fees by any person for the

use of section of National Highways/Permanent

Bridge/Temporary Bridge on National Highways) Rules,

1997 and the National Highways (Fees for the use of

National Highways section and permanent bridge - Public

Funded Project) Rules, 1997.

6. The contention of the respondents is that the

Government of India in exercise of powers conferred under

Section 9 of the National Highways Act, 1956 has issued

G.S.R.950 (E), dated 03.12.2010, whereby to amend the

National Highway Fee (Determination of Rates and

Collection) Rules, 2008 and exemption is available only for

NHAI or any other Government Organisation using such

vehicles for inspection, survey, construction of National

Highways and maintenance thereof. Rule 11 of the aforesaid

Rules exempts certain class of persons from payment of fees

and the issue in the matter of grant of exemption has

already been adjudicated by Karnataka High Court in the

case of Narasimha Vasudeva Mahale v. Executive Engineer,

National Highway Division1. Reliance has also been placed

upon the Judgment delivered by the Madras High Court in

the case of State Lorry Owners' Federation, Tamilnadu v. the

Superintending Engineer2, wherein it has been held that "the

collection of tax under the Motor Vehicles Taxation Act and

levy of fees under the National Highway Rules do not amount

to double taxation". The respondents in the counter affidavit

explained the formula for calculating the toll tax. The

respondents have prayed for dismissal of the writ petition.

7. Heard the learned counsel for the parties and perused

the record. The matter is being disposed of at motion hearing

stage itself with the consent of the parties.

8. The petitioners before this Court, who are advocates

and owners of Hyundai Creta and Hyundai I-20 and they

have stated that while purchasing the cars, they have paid

taxes as required under the Motor Vehicles Act and they

cannot be forced to pay toll tax, which amounts to double

taxation. The petitioners have also raised a serious objection

in respect of exemption granted to certain class of persons

from paying the toll tax. The undisputed facts reveal that the

Government of India took a policy decision in order to

provide road infrastructure throughout the country through

AIR 2001 KARNATAKA 95

AIR 1999 Mad 181

the mechanism of Public Private Partnership (PPP) in the

matter of construction, widening, upgradation and

strengthening of roads and based upon the policy decision of

the Government of India, amendment was carried under the

National Highways Act, 1956. Section 8A of the aforesaid Act

is reproduced as under:-

"8A. Power of Central Government to enter into agreements for development and maintenance of National Highways:- (1) Notwithstanding anything contained in this Act, the Central Government may enter into an agreement with any person in relation to the development and maintenance of the whole or any part of a national highway.

(2) Notwithstanding anything contained in section 7, the person referred to in sub-section (1) is entitled to collect and retain fees at such rate, for services or benefits rendered by him as the Central Government may, by notification in the Official Gazette, specify having regard to the expenditure involved in building, maintenance, interest on the capital invested, reasonable return, the volume of traffic and the period of such agreement.

(3) A person referred to in sub-section (1) shall have powers to regulate and control the traffic in accordance with the provisions contained in Chapter VIII of the Motor Vehicles Act, 1988 (59 of 1988) on the national highway forming subject matter of such agreement, for proper management thereof."

9. The aforesaid statutory provision of law empowers the

NHAI to enter into an agreement with any person in relation

to the development and maintenance of the whole or part of

a National Highway. It also empowers any person, with

whom such agreement has been entered into, to collect and

retain fees for services or benefits rendered by him as the

Central Government may provide by Notification having

regard to the expenditure involved in building, maintenance,

management and operation of the whole or part of such

National Highway, interest on the capital invested,

reasonable return, the volume of traffic and the period of

such agreement. The facts also make it very clear that NHAI

has developed various sections of the National Highways by

private financing under Public Private Partnership (PPP)

broadly under the following framework:-

"(i) Build, Operate and Transfer (BOT)/Design, Build, Finance, Operate and Transfer (DBFOT) - Investment by private firm and return through levy and retention of use fee, i.e., toll revenues;

(ii) Build, Operate and Transfer (Annuity) - BOT (Annuity) - Investment by private firm and return through semi-annual payments from NHAI as per bid."

10. The Rules framed under the National Highways Act

provides for collection of toll tax. The following Rules have

been framed from time to time:-

"(i) The National Highways (Collection of fees by any person for the use of section of National Highways/Permanent Bridge/Temporary Bridge on National Highways) Rules, 1997;

(ii) The National Highways (Fees for the use of National Highways section and permanent bridge - Public funded Project) Rules, 1997; and

(iii) The National Highways Fees (Determination of Rates and Collections) Rules, 2008."

11. The petitioners have not challenged the constitutional

validity of Section 8A of the National Highways Act, 1956 or

the constitutional validity of the Rules framed thereunder

and therefore, this Court, once the constitutional validity of

the Rules have not been challenged, is of the opinion that

the action of the NHAI, which is in consonance with the Act

and the Rules framed thereunder, cannot be interfered with.

12. Rule 11 of the National Highways Fee (Determination of

Rates and Collection) Rules, 2008 provides for exemption in

respect of certain dignitaries and the same reads as under:-

"11. Exemption from payment of fee:-

No fee shall be levied and collected from a mechanical vehicle:-

(a) transporting and accompanying -

      (i)     the President of India;
      (ii)    the Vice-President of India;
      (iii)   the Prime-Minister of India;
      (iv)    the Governor of a State;
      (v)     the Chief Justice of India;
      (vi)    the Speaker of the House of People;
      (vii)   the Cabinet Minister of the Union;
      (viii) the Chief Minister of a State;
      (ix)    the Judge of the Supreme Court;
      (x)     the Minister of State or the Union;
      (xi)    the Lieutenant Governor of a Union Territory;

(xii) the Chief of Staff holding the rank of full General or equivalent rank;

(xiii) the Chairman of the Legislative Council of a State;

(xiv) the Speaker of the Legislative Assembly of a State;

(xv) the Chief Justice of a High Court;

(xvi) the Judge of a High Court;

(xvii) the Member of Parliament;

(xviii) the Army Commander or vice-Chief of Army Staff and equivalent in other services;

(xix) the Chief Secretary to a State Government within concerned State;

(xx) the Secretary to the Government of India; (xxi) the Secretary, Council of States;

(xxii) the Secretary, House of People;

(xxiii) the Foreign dignitary on State visit; (xxiv) the Member of Legislative Assembly of a State and the Member of Legislative Council of a State within their respective State, if he or she produces his or her identity card issued by the concerned Legislature of the State;

(xxv) The awardee of Param Vir Chakra, Ashok Chakra, Maha Vir Chakra, Kirti Chakra, Vir Chakra and Shaurya Chakra, if such awardee produces his or her photo identity card duly authenticated by the appropriate or competent authority for such award;

(b) used for official purpose by:-

(i) the Ministry of Defence including those which are eligible for exemption in accordance with the provisions of the Indian Toll (Army and Air Force) Act, 1901 and Rules made thereunder, as extended to Navy also;

(ii) the Central and State armed forces in uniform including para military forces and police;

(iii) an executive Magistrate;

(iv) the fire-fighting Department or organisation;

(v) the National Highways Authority of India or any other Government organisation using such vehicle for inspection, survey, construction or operation of national highways and maintenance thereof;

(c)    used as ambulance; and
(d)    used as funeral van.
(e)    Specially designed and constructed for use of a

person suffering from some physical defect or disability."

13. The Karnataka High Court in the case of Narasimha

Vasudeva Mahale (supra) has dealt with the issue involved in

respect of exemption of high dignitaries and in the

considered opinion of this Court, the exemption is granted to

high dignitaries as a policy matter keeping in view various

factors like security etc. Not only this, vehicles of even fire

fighting departments, ambulances, funeral vans have also

been exempted from payment of tax and therefore, the

ground canvassed by the learned counsel for the petitioners

regarding violation of Article 14 of the Constitution of India

does not arise.

14. The other important aspect of the case is that service

roads are available adjoining the various Highways and short

distance travellers can freely avail the facility of service

roads. The counter affidavit filed by the National Highway

Authority of India also reveals that toll fee is levied keeping

in view the distance and for short distances as well as for

daily users, reasonable fees is being charged. The counter

affidavit also reveals that fixation of fees does not depend

upon the sweet will of the contractor and it is fixed keeping

in view the statutory provisions as contained in the National

Highways Fee (Determination of Rates and Collection) Rules,

2008 and therefore, in the considered opinion of this Court,

the question of interference by this Court in the peculiar

facts and circumstances of the case does not arise. Not only

this, in the case of State Lorry Owners' Federation, Tamilnadu

(supra), the Madras High Court has upheld the collection of

fees towards cost of construction of bridges and roads and

therefore, keeping in view the totality of the circumstances of

the case, this Court does not find any reason to grant the

reliefs as prayed for by the petitioners and no case is made

out for interference in the matter.

Resultantly, the Public Interest Litigation is dismissed.

Miscellaneous petitions, if any pending, shall stand closed.

There shall be no order as to costs.

_____________________________ SATISH CHANDRA SHARMA, CJ

________________ N.TUKARAMJI, J 18.02.2022 Pln