IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.03.2010 CORAM: THE HON'BLE MR. JUSTICE M. JEYAPAUL W.P. Nos.29518 of 2002 and 17372 of 2009 ANF Deensha Petitioner in W.P. No.29518 of 2002 AN.F. Mohamed Iqbal Petitioner in W.P. No.17372 of 2009 vs. 1 The Secretary Highways Department Fort St. George, Chennai 600 009 2 Tamil Nadu Road Development Company Ltd. 346, Pantheon Road Pantheon Plaza, II Floor Egmore, Chennai 600 008 Respondents in both the writ petitions Prayer in W.P. No.29518 of 2002: Writ Petition filed under Article 226 of the Constitution of India seeking a writ of mandamus forbearing the respondents from collecting toll for the petitioner's vehicles which visit the petitioner's properties in Uthandi and Kanathoor and more particularly described in the schedule hereunder: Schedule 1 All that piece and parcel of agricultural land measuring 1.14 acres situated in Old No.37 and New No.35, Kanathoor Reddy Kuppam Village, comprised in Survey No.23/3B (Twenty Three by three B) in patta old No.189 and New No.104, the property situated within the territory of Tiruporur Panchayat Union, Chengalpet Taluk and District bounded on the: West by the big thope East by Madras East Coast Road South by the Punja land bearing R.S. No.22/1; and North by the punja lands of Amina Beebi Ammal and within the Sub Registration District of Chengalpattu, the property measuring in all 114 cents (One hundred and fourteen cents) present market value Rs.1,65,000/-. https://hcservices.ecourts.gov.in/hcservices/ 2. All that piece and parcel of agricultural lands measuring 15 cents (fifteen cents) on the southern side out of 75 cents in Survey No.3/2D1 (Three/Two D One) of Uthandi Village, Saidapet Taluk, Chingleput District and bounded on the: North by Cart Track East by Lands belonging to Tiruvengada Naicker and C.S. D. Gnanasundra Naicker South by Valliammal's House West by Muttukadu Road and situate within the Registration Sub District of Adyar and within the Registration District of South Madras. Prayer in W.P. No.17372 of 2009: Writ Petition filed under Article 226 of the Constitution of India seeking to call for the records on the file of the first respondent in G.O.TN.Notification in G.O.Ms.No.58, Highways (HV2), 21 March 2002/No.II(2)/HW/241 (C-1)/2002 and quash the same by issue of a writ of certiorarified mandamus and further to direct the respondent to exempt the petitioner's vehicles shown in the schedule hereunder entering into the toll road to reach the property of the petitioner from payment of toll. Schedule of vehicles Vehicle name Vehicle no. Lancer Car TN 01 T 7866 Honda City Car TN 01 T 4224 Maruthi Van TN 01 P 2263 Maruthi Dzire TN 01-AH 9203 For petitioner in Mr. ANF. Mohammed Iqbal both the WPs For R1 in Mr. D. Srinivasan both the WPs Addl. Govt. Pleader For R2 in Mr. V. Ramajagadeesan both the WPs Standing Counsel https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER The petitioner owns an immovable property in Kanathur. In the building constructed over there, there is an out-house and a servant quarters. A number of staff employed by the petitioner are working in the petitioner's immovable property. The petitioner and his family members own four vehicles. 2. The contention of the petitioner is that he is regularly visiting his property in Kanathur. Sometimes, he also stays over there. The petitioner has to travel on East Coast Road from his residence to reach his property at Kanathur. Alleging that the respondents are collecting a sum of Rs.45/- per return trip and a sum of Rs.25/- for up or down trip for using the East Coast Road without providing any facility, the petitioner prays to quash G.O. Ms.No.58, Highways (HV2) Department dated 21.03.2002. The petitioner also sought for exemption from collection of toll for his vehicles. 3. The grievance of the petitioner is that, he, who owns an immovable property about 3 kms. away from the tollgate is directed to pay toll for up and down trips. Therefore, the petitioner has come with these writ petitions with the aforesaid prayers. 4. The second respondent has filed counter affidavit stating that as per the concession agreement entered into between the Government of Tamil Nadu and the second respondent on 22.12.2000, the stretch of the East Coast Road connecting Chennai with Puducherry has been improved and is being maintained by the second respondent from 24.03.2002. The toll is levied on motor vehicles for the use of the said stretch of road at the rates notified by the Government of Tamil Nadu in G.O. Ms.No.58, Highways (HV2) Department dated 21.03.2002 initially for a period of one year. The right to collect toll has been extended from time to time by the Government of Tamil Nadu. It is further contended that the second respondent provides quality management. The stretch is well maintained and thereby, the vehicle users save time and fuel. Traffic Patrol Surveillance is also being provided. There is also ambulance service facility in case of untoward accidents. Emergency Helpline Booths also have been established with a view to benefit the road users. It is contended that exemption is granted by the Government of Tamil Nadu to the owners of the vehicles who have local residence on the approach road. Therefore, it is contended that the writ petitions are not maintainable. 5. The learned counsel for the petitioner would submit that the petitioner owns an out-house and a servant quarters where 8 employees are staying in his property in Kanathur Village. The petitioner has to ply on the road to carry on his day-to-day activities in his property in Kanathur Village. It is unjust to https://hcservices.ecourts.gov.in/hcservices/ direct the petitioner to produce ration card when he is a permanent resident of Purasawalkam. It is further submitted that the petitioner is directed to pay toll for up and down trips, despite the fact that his property at Kanathur Village is located just 3 kms. away from the tollgate. It is vehemently contended that a discrimination is practised as against the property owners who have their out-house and servant quarters on the sole ground that they are not the local residents of the village. Citing some decisions of the Supreme Court, the learned counsel appearing for the petitioner would submit that when no facility is provided by the second respondent, the second respondent is not entitled to collect toll. It is further submitted that toll for one way trip alone can be charged just for entering into the Corporation limit. 6. The learned Standing Counsel appearing for the second respondent would submit that the Government issued Government letter giving exemption to the local residents from paying toll. They shall produce ration card to establish the local residence in order to avail exemption from paying toll. It is further submitted that the petitioner who is not in a position to produce ration card to establish his local residence is not entitled to get exemption provided by the Government of Tamil Nadu. Only after providing facilities as per the arrangement between the second respondent and the Government of Tamil Nadu, the second respondent has been given authority periodically to collect toll. It is further submitted that the petitioner has come out with these writ petitions suppressing the fact that all facilities are provided to the users of the road. His further submission is that no discrimination is practised as the exemption was granted to the local residents classifying them as a separate class. 7. It is found that the stretch of the East Coast Road connecting Chennai with Puducherry has been improved by the second respondent in the aftermath of the concession agreement entered into between the second respondent with the Government of Tamil Nadu on 22.12.2000. Toll is levied by the second respondent on the motor vehicles only as per the rates notified by the Government of Tamil Nadu in G.O. Ms. No.58, Highways (HV2) Department dated 21.03.2002. Though the second respondent was empowered to collect toll for the first initial period from 21.03.2002 to 31.03.2003, it is found that the second respondent has been empowered to collect toll by extending time limit annually. As per the last extension, the second respondent is empowered to collect toll upto 31.12.2010. 8. The Government of Tamil Nadu has exempted certain class of persons and vehicles from payment of toll under Section 4 of the Indian Tolls Act, 1851 (8 of 1951). The Government of Tamil Nadu, under G.O. Ms.No.117, Highways (HV2) Department dated 16.07.2002, exempted fish carts, auto rickshaws owned by bona fide local residents living along the East Coast Road between kilometre 22/3 and https://hcservices.ecourts.gov.in/hcservices/ kilometre 135/5 and cars owned for personal use by bona fide local residents living along the East Coast Road between kilometre 22/3 and kilometre 135/5 which is being maintained on the basis of the concession agreement entered into between the Government of Tamil Nadu and the second respondent. Based on the said Government Order, the Government issued Letter (Ms.) No.118/HV2 dated 16.07.2002, giving certain guidelines and instructions to classify the bona fide local residents. It has been insisted in the said letter that bona fide residents should substantiate through ration card and other identity card or passport with regard to their local residence. The bona fide residents travelling in some vehicles other than those exempted have also been directed to pay toll. The bona fide local resident, who wants to apply for exemption, has been mandated under the aforesaid letter issued by the Government of Tamil Nadu to enclose along with his application seeking exemption, proof of bona fide residence and vehicle ownership by enclosing photo copies of RC book and copies of ration card/passport/electoral ID card. 9. As a matter of fact, the second respondent thoroughly maintains the stretch of the East Coast Road. Highways Traffic Patrol Surveillance also has been provided. First Aid facility through ambulance service also has been made available to take care of untoward accidents. Emergency Helpline Booths also have been established by the second respondent on the above stretch. If the road is well maintained, fuel efficiency of the vehicles is increased. 10. On providing those facilities, the second respondent, having entered into concession agreement with the Government of Tamil Nadu and also on the basis of the power given to the second respondent by the Government of Tamil Nadu to collect toll, has started collecting toll on the East Coast Road stretch. 11. There is no dispute to the fact that the petitioner owns an immovable property at Kanathur Village. The petitioner may have his out-house and servant quarters in the said property. But, the fact remains that the petitioner is residing permanently at Purasawalkam within the city limit. Unless the petitioner is a bona fide local resident living along the East Coast Road, as per G.O. Ms.No.117, Highways (HV2) Department dated 16.07.2002, he cannot claim exemption. As rightly pointed out by the learned Standing counsel appearing for the second respondent, even outsiders to the city of Chennai own properties along the East Coast Road stretch. The local residents living along the East Coast Road have been classified as a separate class from that of other persons owning immovable properties on the stretch of the East Coast Road. There is no discrimination amongst bona fide local residents living along this East Coast Road. As the bona fide local residents living along the East Coast Road form a class by themselves, the question of discrimination practised against the spirit of Article 14 of the Constitution of India does not arise for consideration. https://hcservices.ecourts.gov.in/hcservices/ 12. It is contended that the petitioner owns his property along with out house and servant quarters about three kms. away from the tollgate. Of course, the learned Standing Counsel appearing for the second respondent, on instruction, would submit that Kanathur Village is situate not within the limit of 3 kms. but within the limit of 6 kms. At any rate, the fact remains that the petitioner is a permanent resident of Purasawalkam. It does not matter whether a person un-exempted travels one kilometre or three kilometres away from the tollgate. When a person crosses the tollgate through his vehicle, if not exempted, he is liable to pay toll. 13. It is a matter of record that the petitioner is unable to produce proof of bona fide local residence. The second respondent is not in a position to entertain the application filed by the petitioner as the petitioner was not in a position to produce the proof of bona fide residence and ration card along with his application. The second respondent has insisted upon such a proof based on the Government letter issued to the second respondent and also the Government Order issued exempting certain class of persons and vehicles from the levy of toll. Therefore, the Court cannot find fault with the rejection of the application filed defectively by the petitioner seeking exemption. 14. The learned counsel for the petitioner cited a decision in Municipal Board of Hardwar vs. Raghubir Singh, AIR 1966 SC 1502 wherein the Supreme Court, interpreting the provisions under the Uttar Pradesh Municipalities Act (2 of 1916), held that the Municipal Board has no authority to levy toll on vehicles leaving the Municipality limits. That was a case where Hardwar Municipal Board has got the authority to levy toll only on vehicles entering the Municipality and not on vehicles leaving the Municipality. Considering the fact that the Legislature, in its wisdom, had expressly limited the power of the Municipal Board, the Supreme Court held that there could be no extension of that power to cover the vehicles which go out of the Municipal limit. 15. In the instant case, the second respondent was empowered to collect toll based on the agreement it entered into with the Government of Tamil Nadu under Build, Operate and Transfer (BOT) scheme. The second respondent is obligated to maintain the road and extend facilities adumbrated above to the road users. For the facilities afforded by the second respondent who maintains the road, the second respondent was permitted to collect toll. In view of the above, the aforesaid ratio which interprets the power of the Municipal Board to levy and collect toll on vehicles entering into the Municipal limits would have no application to the facts and circumstances of this case. https://hcservices.ecourts.gov.in/hcservices/ 16. The learned counsel for the petitioner would refer to yet another decision in Kamaljeet Singh and Others vs. Municipal Board, Pilkhwa and Others, (1986) 4 SCC 174. That was a case where the Municipal authority, without providing any facility or service or benefit to the toll tax payers, started collecting toll from the vehicles and other conveyances entering into the Municipal limits. The Supreme Court has held that in the absence of any quid pro quo, levy of tax by the Municipal authority is ultra vires. In the instant case, as already pointed out by this Court, Traffic Patrol Surveillance facility has been arranged by the second respondent. The road is also being thoroughly maintained by the second respondent. First aid ambulance service is also provided round the clock by the second respondent. Emergency Helpline Booths also have been established on the stretch of the East Coast Road. Further, the second respondent has entered into an arrangement with the Government of Tamil Nadu under the Build, Operate and Transfer (BOT) scheme. Therefore, collection of toll by the second respondent under the Build, Operate and Transfer (BOT) scheme cannot be compared with collection of toll by the Municipality for the vehicles entering into its limit without providing any facility, service or benefit, whatsoever, to the toll tax payers. 17. The learned counsel for the petitioner cited a decision in State of Uttar Pradesh and Others vs. Devi Dayal Singh, (2000) 3 SCC 5. Of course, it has been observed therein by the Supreme Court that the rate of toll must bear a reasonable nexus with the benefits provided and toll cannot be for just augmenting the State's revenue. In other words, it has been held therein that for the valid imposition of toll, there must be a corresponding benefit. Here, the second respondent, under the Build, Operate and Transfer (BOT) scheme, has been authorised to collect toll by providing facilities to the road users. The Court has already detailed the facilities provided by the second respondent to the road users. The toll collected by the second respondent has nexus with the facilities provided by it. Nothing is on record to establish that the toll that is collected by the second respondent goes directly to the State exchequer. It is submitted by the learned Standing Counsel appearing for the second respondent that the toll amount generated by the second respondent by way of collection from road users is re-invested for the purpose of maintaining the road and affording other facilities. Therefore, the above decision of the Supreme Court is quite distinguishable. 18. In view of the above, I find that both the writ petitions do not have any merit. Therefore, they are liable to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ Therefore, both the writ petitions are dismissed. There is no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar cad To 1. The Secretary, Highways Department, Fort St. George, Chennai 600 009. 2. Tamil Nadu Road Development Company Ltd. 346, Pantheon Road, Pantheon Plaza, II Floor, Egmore, Chennai 600 008. 1 cc To Mr.v.Rama Jagadeesan, Advocate, SR.20369. W.P. Nos.29518 of 2002 and 17372 of 2009 GS(CO) RVL 01.04.2010 https://hcservices.ecourts.gov.in/hcservices/