MANDSAUR TRANSPORT ASSOCIATION Vs. STATE

JUDGEMENT

(1.) Mandsaur Transport Association, a Non-Trading Corporation, registered under the M.P. Non-Trading Corporation Act, 1962, has filed this petition under Article 226 of the Constitution of India against the State of Madhya Pradesh and their officers who are respondents 2, 3 and 4 and against respondent No. 5 who is contractor and who collects toll tax on Shivna Bridge, Mandsaur. According to the petitioner they own buses, trucks and other motor vehicles which have to pass through various roads and bridges during the course of business of transport and the public at large travels in the buses. Therefore, they have filed this petition in the interest of the general public, travelling in their vehicles through the Shivna Bridge at Mandsaur including those who are members of the petitioner-association. In the Mandsaur town, the Government of Madhya Pradesh has built a bridge on the river Shivna. The cost of the construction of the bridge was Rs. 26,58,955.00. Since the date of the opening of the bridge for traffic, the State Government started realizing toll tax from the vehicles passing over the bridge. It has been further stated that since 1973, the State Government has been auctioning the right to recover the toll tax on Shivna bridge. The cost of bridge has been recovered long back and in the year 1985 itself the bid of the auction was Rs. 29,98,930/-. As such, the auction money for one year itself is more than the cost of the bridge. According to the petitioner, the State Government does not have the arbitrary and unfettered powers to levy any amount of toll merely for augmenting the general revenues of the State. The right of levy should be such as to meet the cost of repairs of roads and bridges and also for liquidating the actual expenses incurred in their construction within a reasonable time. As the toll tax recovered by the State is different than the other taxes, therefore, the quid pro quo element which distinguishes fees from taxes is also implied in the expression 'tolls' and though it may not be a fee it will clearly come within the scope of compensatory tax. The expression 'tolls' in the Tolls Act means a levy for providing funds for the maintenance of roads and bridges and repayment of loan, if any takes for their construction. Now since the State Government has already recovered at least ten times more than the cost of construction the State Government has no authority in law to continue to recover any toll tax on the Shivna bridge in Mandsaur.

(2.) The second ground challenging the toll tax particularly on Shivna bridge is that Shivna bridge falls within the limits of the Mandsaur Municipality and the State Government vide notification No. F-31-19-84-G-XIX-1030 dated 1-8-1985 has already exempted the bridges falling within the municipal limits. Therefore, also the Government could not charge any toll tax from the vehicles passing over the Shivna bridge. A prayer has, therefore, been made that an appropriate writ or direction or order be issued against the respondents restraining them from recovering the toll tax on Shivna bridge in Mandsaur and to refund the amount of toll tax recovered after deducting the cost of construction of the bridge to those who produce receipts of having paid toll tax after the recovery of the cost of the bridge.

(3.) The respondents have resisted the claim of the petitioner on the ground that the present petition has not been filed in the interest of the general public and, therefore, the petitioner has no locus standi to present this petition because the averments that the petitioner represents the interest of general public is vague, laconic in material particulars, inasmuch as the details of the vehicles owned by the members of the Association are not given. According to the respondents, the State is empowered to levy toll tax upon any bridge or road which has been made or constructed or repaired or to be made or constructed or repaired at the expenses of the Central or the State Governments. According to the respondents, the toll tax under the provisions of the Indian Tolls Act, 1851 shall be deemed to be public revenue as is provided in Section 8 of the Act. The toll collected under the Tolls Act is as such a public revenue and the State is empowered to utilise this public revenue in the construction, repairs, maintenance or widening of the roads and bridges anywhere in the State. The petitioners are trying to narrow down the scope of Section 2 of the Tolls Act, 1851. The toll tax can be levied on the roads and bridges which have already been made or constructed and is also leviable for the roads and bridges to be made and constructed in future. Toll is a tax and not a fee. Therefore, it cannot be treated a compensatory tax. It has, however, not been denied that the cost of bridge has already been recovered. Resisting the contention of the petitioner, challenging the levy of toll tax on the ground that the bridge is within the Municipal limits, it has been submitted by the respondents that the entire Shivna bridge does not fall within the limits of the Municipality. Only a small portion of the bridge falls within the municipal limits of Mandsaur. Therefore, the whole bridge cannot be treated within the municipal limits of Mandsaur Municipality and as such it cannot be exempted from the levy of toll tax.