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Judgment
R. Banumathi, J.—Writ Appeal is preferred against the dismissal order of learned single Judge in W.P. No. 21278/2000 dated 30.04.2002.
Challenging various Government Orders levying toll in respect of Kodaikanal Ghat road as ultra vires the provisions of Indian Tolls Act, Writ
Petitioner Association filed these Writ Petitions.
Since, the issue involved in the Writ Appeal and the Writ Petitions are one and the same and parties are one and the same, Writ Appeal and
Writ Petitions were taken up together and disposed of by this Common Judgment.
Brief facts are as follows: Writ Petitions were filed seeking to quash the proceedings of the 1st Respondent/Government of Tamil Nadu in G.O.
(D) No. 79, Highways (HSI) dated 15.6.2002; G.O.(D) No. 150, Highways (HSI) dated 18.8.2005; G.O.(D) No. 35, Highways (HSI) dated
25.7.2006; G.O.(D) No. 261, Highways (HSI) dated 29.10.2007; G.O.(D) No. 197, Highways (HSI) dated 01.8.2008; and G.O.(D) No. 122,
Highways (HS1) Department dated 17.07.2009 in so far as as levy of tolls in respect of buses owned by members of Appellant/Writ Petitioners''
Association. Appellant/Writ Petitioners are plying their vehicles through Dindigul-Kodaikanal road and therefore, they are subjected to levy of toll
every day - Rs. 75/- per day.
Case of Appellants/Writ Petitioners is that under the provisions of Tolls Act or under National Highways Act, 1st Respondent is entitled to
collect the amount for the services rendered till the period it realises the full amount. According to Appellant Association for the year 1992
onwards Government has not constructed any new road or approach road or any permanent bridge on Dindigul-Kodaikanal road till date and
therefore, 1st Respondent has not incurred any expenditure in this regard. According to Writ Petitioners, 1st Respondent has been making minor
repairs here and there on the existing road and for maintaining the existing road, the necessary motor vehicle tax is being collected and that would
be more than sufficient to meet the expenses incurred thereon. Petitioners seek Writ of Certiorari to quash various Government Orders issued in so
far as levy of toll in respect of buses operated by members of Petitioners'' Association.
In respect of similar notification issued for the year 2001-2002, the very same Petitioner Association filed W.P. Nos. 21278/2000 and
21949/2000 respectively. By common Judgment dated 30.04.2002, learned single Judge upheld the levy and dismissed the Writ Petitions which
has been reported in Kodaikanal Motor Bus Owners'' Association Vs. Government of Tamil Nadu, . Similarly, for the year 2001-2002, Petitioner
filed W.P. No. 13367/2001 and the same was dismissed by the learned single Judge on 15.09.2003. As against the order of learned single Judge
dated 15.09.2003 in W.P. No. 13367/2001, Appellant Association preferred Writ Appeal in W.A. No. 1776/2002. For the year 2002-2003,
Petitioner filed W.P. No. 31458/2002 and for the year 2003-2004, Petitioner filed W.P. No. 29054/2003. Similarly, for the year 2005-2006,
Petitioner Association filed W.P. No. 31711/2005 and for the year 2006-2007, Petitioner filed W.P. No. 25811/2006 and for the year 2007-
2008, Petitioner filed W.P. Nos. 36059/2007 and 20870/2008. Petitioner Association also filed W.P. No. 17082/2009 for the year 2009-2010.
In the counter affidavit filed by the Government [Respondents 1 and 2], it is contended that 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. It is further
averred that the climatic conditions and the ravages of the natural calamities of rain landslide etc., caused frequent damages to the roads every
year. According to Respondents 1 and 2, taking into account, the increased rate of tourists every year, special attention is being given to the ghat
roads.
Reiterating the contentions of Respondents 1 and 2, 3rd Respondent-Kodaikanal Municipality filed counter stating that keeping in mind the
population of the Municipality and also income of the Kodaikanal Municipality being very limited and are grossly insufficient to meet the huge
expenditure and investment required to maintain the roads. Case of 3rd Respondent is that huge expenses are involved as a result of frequent rains
and landslides, and roads are damaged frequently than in the plains. It is averred that the expenditure for repair is almost double when compared to
the expenditure involved in repairing the roads in the plains.
Referring to 1993 WLR 86 [Kodaikanal Lorry Owners Association, rep. by its Secretary v. The State of Tamil Nadu, rep. by Secretary to
Government, Municipal Administration and Water Supply Department, Madras and Ors.], the learned single Judge held that the toll levied by the
Government is not only for recovering the expenses incurred by them but also for future maintenance of the repairs of the roads. Learned single
Judge further held that the Petitioners who are benefitted by using the roads cannot complain that the compensatory character of the toll is lost
because of the creation of the fund for the future maintenance and repairs of the roads.
Government Order has been periodically issued for collection of levy of toll for the vehicles entering into Kodaikanal Municipality. In G.O.(D)
No. 197 Highways (HS) Department dated 01.8.2008, toll was levied from 16.05.2008 for all the vehicles entering into Kodaikanal Municipality
and for buses, toll levied is Rs. 75/- per day.
Mr. M. Krishnappan, learned Senior Counsel for Appellant-Writ Petitioner Association inter alia raised the following contentions:
Under the provisions of the Tolls Act or under National Highways Act, 1st Respondent is entitled to collect the amount for the services rendered
till the period it realises the full amount and that from the year 1992 onwards, Government has not constructed any new road or approach road or
any permanent bridge on Dindigul-Kodaikanal road till date and has not incurred any expenditure in this regard.
When the Government constructs bridge or road from its own revenue, levy of toll tax on such bridge/road will be valid only till the expenses
incurred or fully covered and levy of toll thereafter was illegal.
Levy of toll is only for recovery of cost of construction and repairs of bridge/road built with public revenue and levy of toll cannot be a mode of
augmenting the State revenue.
Mr. V. Radhakrishnan, learned Senior Counsel for 3rd Respondent-Kodaikanal Municipality submitted that the issues raised in these Writ
Petitions and the Writ Appeal have already been raised and considered by the learned single Judge in 1993 WLR 86 [Kodaikanal Lorry Owners
Association, rep. by its Secretary v. The State of Tamil Nadu, rep. by Secretary to Government, Municipal Administration and Water Supply
Department, Madras and Ors.] and the learned single Judge has upheld the Government Order. It was further contended that it has been
repeatedly held by the Court that imposition and collection of tax was justified and it is levied for the expenses incurred in the construction or
maintenance of the roads and bridges.
The provisions of the Central Act have been considered by a Division Bench of the Patna High Court in the decision reported in Maheshwari
Singh Vs. State of Bihar and Others, . It has been held by the Bench that the expression ''Tolls'' used was intended to convey the same meaning as
was given to the expression in British viz., a levy for the purpose of providing funds for the maintenance of roads and bridges and repayment of the
loan, if any, for that construction. The preamble to the Central Act provides that the Central Act has been enacted to enable the Government to
levy tolls on roads and public bridges. The toll has been levied to create a fund for laying of public roads and construction of bridges, and for the
maintenance of roads and bridges. It is not necessary that the toll must be correlated to the actual expenses of construction or maintenance of a
particular bridge. Section 2 of the Central Act clearly lays down the guidelines for levy of toll.
Indian Tolls Act, 1851 was further amended by Tamil Nadu Act 35/2000 empowering the 1st Respondent to levy tolls in respect of Roads
and Bridges partly at the expenses of local body/bodies or solely at the expenses of local body/bodies. Contention of Respondents is that due to
heavy and frequent rains and climatic conditions, ghat roads are heavily damaged and frequently in Kodaikanal Hill area than plains. Toll is being
levied only to compensate the expenses incurred by the Respondents in repairing and maintaining roads and bridges in Kodaikanal and also future
repairs of the roads.
Holding that Section 2 of Indian Tolls Act, 1851 does not in any way restrict the discretion of the State Government, in State of U.P. and
Others Vs. Devi Dayal Singh, , in Para 24, the Supreme Court held as under:
As already noted, Section 2 of the Act does not in any way restrict the discretion of the State Government to levy toll. It only sets out the pre-
conditions when toll may be levied. Neither of the pre-conditions set the limit on the amount of toll which may be recovered. The only restriction is
latent in the word ''toll'' itself. The maintenance of the bridge in a good condition is certainly a benefit the cost of which may validly be recovered by
the levy of toll. We are also of the view that the distinction sought to be drawn between ''maintenance'' and ''repair'' in the context of construction is
virtually without any difference. For maintaining a bridge one would have to keep it in good repair and by repairing a bridge it is also maintained....
Kodaikanal being a prime tourist spot and being hilly area, there is heavy rush of tourists throughout the year. Due to climatic conditions,
Respondents are incurring expenditure continuously for improving and maintaining ghat road and bridges which has necessitated the Respondents
to levy tolls continuously since the entire toll amount collected every year is spent for repairs and maintenance of the roads in Kodaikanal and the
public are the ultimate beneficiaries. According to the Respondents, apart from improving the existing surface of the roads, it is also necessary to
strengthen the parapet walls and widening of existing roads and to meet continuous expenditure 1st Respondent is levying tolls.
Main contention of Petitioner Association is that Respondents have not made any new ghat road and constructed any new bridge from 1992
except widening of ghat road for a distance of 12 K.M. from Kodaikanal town to Perumalmalai during 1997-1998. Learned Senior Counsel for
Petitioner Association has submitted that Respondents have not constructed any new road or permanent bridge. It was further submitted that
periodical maintenance could be met from the amount realised by way of taxation under Motor Vehicles Taxation Act. It was further contended
that purpose of enacting Motor Vehicles Taxation Act is to dispense with levy of toll and collection of tax by the local bodies and therefore, once
again Respondents are under the guise of toll cannot be permitted to collect additional tax in respect of the buses using the road for which
necessary tax was already paid and therefore, levy of toll is contrary to the provisions of Motor Vehicles Taxation Act.
Learned Senior Counsel for the Writ Petitioner further contended that buses of the Writ Petitioner Association are using the road only for
specified times in respect of specified trips as per the permit conditions whereas Omni buses and tourist taxies and lorries are being operated
number of times irrespective of any time limit or number of trips and therefore, the wear and tear of the roads would be more on account of the
other vehicles and not from the use of the buses and therefore, if at all toll can be collected, the Respondents could well recover the same from the
other type of vehicles and grant necessary exemption in respect of buses of Petitioner Association.
In order to mobilise additional resources, toll in respect of vehicles entering Kodaikanal Muncipality was levied. Users and owners of vehicles
and public motor vehicles have direct relations to the roads and they derive a special and direct benefit from them. It is not unreasonable that the
bus operators should make a special contribution to the construction and maintenance for the roads and bridges over and above the annual rate of
tax for plying the buses. For stage carriage buses Rs. 75/- per day was levied and others different rates were levied. We do not find any
unreasonableness in the levy.
Contention of the Petitioner Association is that Respondents have incurred Rs. 20 lakhs. From the averments in the counter-affidavit and the
statistics furnished by the Respondents, it is seen that out of the funds allocated by the 1st Respondent from the toll collected, Respondents have
undertaken several works in Kodaikanal town. 3rd Respondent is maintaining road extending about 71 K.M. which is under the maintenance of
3rd Respondent. Highways Department is maintaining ghat roads to the distance of 53 K.M. The following details given in the counter would bring
home the nature of work undertaken by the Highways as well as Kodaikanal Municipality.
Work undertaken by Highways Department
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Sl. Year Nature of Work Estimate
No. (in Lakhs)
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1 2001-2002 Improvement to Lake Round to 1.80 Km. 16.95
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2 2002-2003 Improvement to foot path in Lake Round 24.00
Road to 1.530 Km.
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3 2003-2004 Construction of Toll Plaza at Kodai Ghat 3.00
Road, near Silver Cascade.
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4 2004-2005 Repairs to Platform and replacing the damaged 10.00
tiles in flooring of lake Round Road
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5 2005-2006 1. Providing Foot Path in Km 1/10, 2/4.
Providing Foot Path in Km 2/4,
2/8, 2/10, 3/2 in Lake Round.
Improvement to Lake Bridge, Observatory
Road at Km 0/2.
Improvement to Kodai Chochin Road
at Km 0/6.
Improvement to Lake Bridge Road at Km 0/4.
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6 2006-2007 1. Improvement Kodai Cochin Road @ 1/10 Km
Improvement Kodai Cochin Road @ 2/4 Km.
Improvement Kodai Cochin Road @ 3/10 Km
Restruction to Foot path at Km 0.02,
4.0 lake round Road.
Productive Wass @ Kodaighat Road 5-1/2 Km.
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7 2007-2008 The work is to be taken under toll improvement 16.00
of lake road
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8 2008-2009 Improvement of highway 20.00
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9 2009-2010 Improvement of lake plot form 16.00
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Total 105.95
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Work undertaken by Kodaikanal Municipality
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Sl. No. Year Nature of Work Estimate
(in Lakhs)
--------------------------------------------------------------------------
1 2001-2002 NIL --
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2 2002-2003 Providing B.T. surface to 16 Nos. 35.00
of Muncipal Road
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3 2003-2004 Widening and renewal at B.T. Surface to 56.00
8 Nos. of Muncipal Roads
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4 2004-2005 Improvement of Road Works to 7 Nos. 71.67
of Municipal Roads
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5 2005-2006 Providing B.T. Surface and renewal 60.44
to 3 Nos. of Roads and improvement
works to Tourist Spots in Kodaikanal Town
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6 2006-2007 Repairs and Maintenance of roads and 55.00
widening of 10 Nos. works. The toll
funding works are to taken under toll
scheme
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7 2007-2008 Widening of Roads and providing drainage 70.00
to 15 Nos. of works
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8 2008-2009 Improvement of B.T. Roads 80.00
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9 2009-2010 Improvement of Roads 80.00
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Total 507.78
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The above details would clearly show that Respondents are making every endeavour in maintaining the roads from out of the toll collected by
the Respondents. There is no force in the contention that for the purpose of maintaining of interior roads in Kodaikanal and other tourist spot and
levy of toll in respect of Petitioners'' buses using ghat roads alone is arbitrary and without authority.
Taking us through the statistics, learned Senior Counsel for Petitioner Association contended that huge amount has been collected as toll and
after the expenses, there is huge surplus and Respondents cannot collect toll just only to augment the income of Government and the Municipality.
Learned Senior Counsel has drawn our attention to 3rd Respondent''s toll collection statement and expenditure up to 31.01.2006. From the
statement, it is seen that from 31.01.2006 to October 2007, toll has been collected at Rs. 1,89,58,755/-. Deducting the expenditure shown in the
said statement including salary, surplus shown as Rs. 1,12,99,441/-. Statement filed by Petitioner Association is only indicates piecemeal of work
undertaken by 3rd Respondent-Municipality. It is seen from the works undertaken by the 3rd Respondent extracted supra in Paragraph 19, the
contention of Petitioner is untenable and without substance. Petitioner cannot contend that they are using ghat roads and therefore for maintenance,
toll cannot be levied on the buses of members of Petitioner Association.
Next contention of Petitioner is that vehicles using Kodaikanal road are being discriminated in the matter of levying and collection of toll as
against the similar vehicles using National Highways in the Plains and are not mulcted with such levy. According to Petitioner Association, the bus
using Vatlagundu to Kodaikanal is directed to pay Rs. 75/- per day whereas the bus using Vatlagundu to Madurai which is one of the National
Highways is not required to pay any toll which is discriminatory. Main contention of Petitioner is that buses being operated on the National
Highways, toll is not leviable and therefore there cannot be any reason to collect toll for vehicles using Kodaikanal road and not other National
Highways. It cannot be gainsaid that the climate conditions and the ravages of natural calamity like rain, landslides etc. Cause great damage to the
roads in the hill areas and the cost of maintenance is much more than expended in the plains.
As rightly submitted by the learned Special Government Pleader and learned Counsel for 3rd Respondent-Kodaikanal Municipality that
National Highways is maintained by Central Government but the roads leading to Kodaikanal town are being maintained by State Highways
Department and Kodaikanal Municipality. Since Kodaikanal is a prime tourist spot, there is heavy rush of tourist all over the year and therefore,
huge amount are required for improvement and maintenance of the roads and also huge amount is required for making improvements and repairs of
roads and bridges in addition to the roads and culverts. Toll is well understood to be a charge or a payment for the use of roads, bridges, market
place and the like. To compensate huge expenditure, 1st Respondent is justified in levying toll on the vehicles entering Kodaikanal Municipality.
The impugned periodical Government Order are said to have been passed after considering the proposals to enable the 2nd Respondent to levy
and collect toll at the said rates as provided in the notification.
Similar issues were raised in 1993 WLR 86 [Kodaikanal Lorry Owners Association, rep. by its Secretary v. The State of Tamil Nadu, rep. by
Secretary to Government, Municipal Administration and Water Supply Department, Madras and Ors.]. Considering various contentious issues
raised, learned single Judge held as under:
...There is no dispute that the benefit is provided to the members of the public by repair and maintenance of roads in the three Hill areas in
question. It is a benefit provided for the public in general and to the road users like the Petitioners in particular. There is also no dispute that the
roads are being maintained by the State authorities. Therefore, the learned Counsel for the Petitioner cannot derive any assistance from the
aforesaid decision of the Supreme Court.
...The nature of the toll is only compensatory and the details of the expenditure incurred as disclosed in the counter affidavit show that the toll is
not either disproportionate or unreasonable or arbitrary.
We fully agree with the views of the learned single Judge upholding the levy of toll in Hill areas like Nilgris, Kodaikanal and Yercaud.
Learned Senior Counsel for Petitioner has further contended that in the notification dated 15.6.1998 issued by 1st Respondent, it seeks
exemption from payment of toll in respect of vehicles owned by the 3rd Respondent-Kodaikanal Municipality as well as Government vehicles,
Government undertaking vehicles and University vehicles within Kodaikanal Municipality and giving such exemption is beyond the scope and
object of the Act and therefore, it would amount to hostile discrimination, violating Article 14 of Constitution of India. According to Petitioner
Association, vehicles owned by Petitioner Association is being singled out as against the vehicles of Petitioner Association which has no rationale
or nexus in the matter of classification in so far as use of the road is one and the same for every one. We do not find any substance in the above
contention. Residents and other Government vehicles, Government undertaking vehicles and Universities vehicles might use the road occasionally
whereas stage carriage buses operated by Petitioner Association perform regular trips. Keeping in view the extent of usage of roads, it is well
within the powers of Government to grant exemption. Levy of toll on buses operated by Petitioner Association and granting exemption to certain
class of vehicles is only a reasonable classification and there is no violation of Article 14 of Constitution of India.
Learned Senior Counsel for Petitioner nextly contended that power of Government is not traceable to any particular statute to levy toll. It was
contended that Government leving toll only by exercise of power under the Act and impugned G.O.(D) No. 122 Highways (HS1) dated
17.07.2009 did not trace power to any statute and by an executive order, Government cannot levy toll. By various Government Orders, levy of
toll for the vehicles entering Kodaikanal Municipality was extended periodically for the respective years. When the impugned Government Orders
are only an extension of levy of toll, the impugned Government Orders cannot be assailed on the ground that Government Orders do not refer to
any statute. We do not find any substance in any of the contentions raised by the Appellant/Writ Petitioner and Writ Appeal and Writ Petitions are
liable to be dismissed.
It cannot be said that power to levy toll is unfettered and unguided and therefore arbitrary. There are enough guidance in the Act itself. It is also
significant to note that none of the Petitioner Association has challenged the validity of charging section. What is challenged in these batch of Writ
Petitions and Writ Appeal is only the Government Orders issued by the Government in exercise of the powers conferred under the Act. The need
of the State Government for compensating itself for the expenses incurred in the construction or maintenance of the roads and bridges is sufficient
guidance to fix rates of tolls.
Members of Petitioner Association are operating 12 buses every day. In all the Writ Petitions, Petitioner Association obtained interim order
and members of Petitioner Association are said to be benefitted to the tune of Rs. 900/- per day in not paying the toll and caused loss of Rs.
3,28,500/-. Learned Counsel for 3rd Respondent submitted that members of Petitioner Association are in arrears of total toll of Rs. 16,42,500/-
[Rs.3,28,500 x 5]. Members of Petitioner Association who operated buses in the roads are benefitted by well maintenance of roads and are
estopped from contending that they are not liable to pay toll. Petitioner Association are to be directed to pay arrears of toll of Rs. 16,42,500/-.
We are not in a position to accept the contention of learned Senior Counsel for Petitioner that payment of arrears of toll is to be left to the
authorities to be worked out.
In the result, the Writ Appeal and the Writ Petitions are dismissed. No costs. Connected M.Ps. are closed.
Members of Petitioner Association are directed to pay toll arrears of Rs. 16,42,500/- within a period of three months from the date of this order.
In default of payment of arrears within the stipulated period, it is open to the authorities to take appropriate steps to recover the same. After
payment of arrears of toll, it is open to the Petitioner Association to give particulars of days on which they have not operated the buses and claim
refund of the toll paid by them and the authorities shall verify and pass appropriate orders.