COL T PRASAD Vs. S S PANDAY

JUDGEMENT

(1.) THE appellants, Colonel T. Prasad and Capt. S.S. Panday are serving Indian Army Officers and have by this intra Court appeal impugned judgment dated 6th March, 2007 passed by the learned single Judge dismissing their writ petitions. The appellants rely upon Indian Tolls (Army and Air Force) Act, 1901 (hereinafter referred to as the 1901 Act, for short) and claim exemption from payment of toll tax and claim right to free access and utilization of Delhi -NOIDA Direct Flyway (hereinafter referred to as the DND Flyway, for short).

(2.) THE relevant provisions of the 1901 Act, which require interpretation is as under: -

(3.) SECTION 3 of 1901 Act consists of two parts. The first part deals with the persons, who are exempted in clauses (a) to (f) or entitled to benefit under the Act. The second part in sub -clauses (g) to (K) deals with carriages, animals, horses etc and stipulates when they are exempt from payment of toll tax. In the present case, we are more concerned with the interpretation of the substantive portion of Section 3 which exempts payment of tolls on persons mentioned in clauses (a) to (f) read with carriage, animals etc. mentioned in clauses (g) to (k). To be precise, we are concerned with the words "shall be exempted from payment of any tolls otherwise demandable by virtue of any Act, Ordinance, Regulation, order or direction of any legislature or any other public authority in India". The words "by virtue of", mean by force of or authority of or because of. Thus the toll or fee demandable for the purpose of 1901 Act must be because of, by force or by authority of Act, ordinance, regulation, order or direction of any legislation or other public authority. Only tolls demandable by virtue of any Act, Ordinance etc. as per the said exemption clause cannot be levied on persons mentioned in clauses (a) to (f) read with carriages, animals etc. mentioned in clauses (g) to (k) of Section 3. Tolls not demandable by virtue of any Act, ordinance, regulation, order or direction of any legislature or public authority in India are payable by persons mentioned in clauses (a) to (f) read with Carriages etc mentioned in Clauses (g) to (k). Tolls or fee charged by a private person from third party who travels through his land or land over which he has rights are not exempt and can be charged if the same is not demandable by virtue of any Act, Ordinance, etc. The legislature in Section 3 has used the words "otherwise demandable" with reference to Act, Ordinance, Regulation, order or direction of any legislature or public authority in India.