Shanti Swarup v. State of Uttar Pradesh — 1982 DIGILAW 569 (ALL)

JUDGMENT K. N. Seth, J. - The petitioners who ply their stage carriage on the Nagina-Barhapur route have prayed for quashing the notification dated 2nd June 1976 issued by the Governor in exercise of powers under S. 2 of the Indian Tolls Act, 1851 read with S. 21 of the General Clauses Act (Act No. X of 1897). They have also prayed for a writ of mandamus commanding the respondents not to include the cost of construction of Bandh approach roads, miscellaneous expenses and interest on the construction of the two bridges mentioned in the writ petition. In the petition a further prayer has been made for a writ, order or direction in the nature of mandamus commanding the respondents not to realise the toll tax on the return journey if the petitioners have paid on the outward journey on either of the bridges but this prayer was not pressed at the time of hearing of the petition. 2. The stage carriages plied by the petitioners on Nagina - Barhapur route pass over two bridges, namely Uni river bridge and Khoh river bridge which fall within the district of Bijnor. Uni river bridge was opened for traffic on 25th Nov., 1975 and toll tax was levied with effect from 20th Mar., 1976. The Khoh river bridge was opened for traffic on 11-2-1975 and toll tax was realised with effect from 12-3-1975. The case set up by the petitioners was that initially toll tax was levied at the rate of Rs. 3.75 under the Notification dated 2nd Dec. 1968. The rate was raised from Rs. 3.75 to Rs. 20/- per trip under the Notification dated 3rd Dec., 1975 issued by the Governor in exercise of powers under S. 2 of the Indian Tolls Act read with S. 21 of the General Clauses Act. The notification dated 3rd Dec., 1975 has now been superseded by the impugned Notification dated 2nd June 1976 whereby the rate of toll tax has been reduced to Rs. 10/- per trip. The validity of this notification has been assailed on two grounds : (1) that interest on the amount spent on construction of the bridges could not be taken into consideration in fixing the rate of toll tax : and (2) that notification under S. 2 of the Act could be issued only once. This was done on 1st Nov., 1956 imposing toll for the first time. This was done on 1st Nov., 1956 imposing toll for the first time. The notification issued thereafter were without the authority of law. 3. It may be noted that a ground was taken in the petition that cost of construction of the Bandh. approach roads and other miscellaneous expenses also could not be taken into consideration but that stand was given up in view of an earlier decision of this Court. 4. S. 2 of the Act empowers the State Government to levy toll at such rates as it thinks fit upon any road or bridge which has been, or shall hereafter be, made or repaired at the expense of the Central or any State Government. The object of the provision appears to arm the Government with the power to realise the amount spent on the construction or repair of the road or bridge. The language of S. 2 indicates that there has to be a reasonable nexus between the levy and the amount spent by the Government in the construction or the repair of the road or bridge. 5. There is no dispute in the present case that the cost of constructing the bridge and its approach road were made by the State from its general revenues. No amount was borrowed by the State Government from any financial agency for this purpose. The State Government has not paid any interest on the sum expended in the execution of the project. Whether interest on the amount spent on the construction and repairs of the bridge built with public revenue could be taken into consideration in the levy of toll came up for consideration before a Bench of this Court in Jiya Lal v. State of U. P., ( AIR 1981 All 72 ). This Court ruled that if a road or bridge is constructed by the State from its general revenues, it is not called upon to pay interest to any body. It cannot be included in the cost of the construction of the bridge or the road. Where, however, the State Government borrows money from a financial institution and agrees to pay interest thereon the amount of interest can be included in the cost of the construction. It cannot be included in the cost of the construction of the bridge or the road. Where, however, the State Government borrows money from a financial institution and agrees to pay interest thereon the amount of interest can be included in the cost of the construction. Since in the construction of the bridges in question no loan was taken from any financial institution and no interest was paid by the State Government the stand taken by the respondents that interest on the amount spent on the construction of the bridges should also be taken into consideration does not appear to be justified. 6. In the supplementary counter affidavit filed on behalf of the respondents it has been stated that the total cost of the bridge Khoh was Rs. 31,33,000/- and that of Uni Bridge was Rs. 10,42,400/-. These amounts are without taking into account the interest on the amount spent on the construction. The State Government is entitled to recover this amount by levying toll. As ruled by this Court in Jiya Lai's case (supra) the expenses into account in working out the actual amount realised by the Government towards the cost of construction. From the charge annexed to the supplementary counter-affidavit it is apparent that in case of Khoh bridge a sum of Rs. 1,36,400/- had been spent on the collection staff till the year 1979-80. A sum of Rs. 1,92,681.73 has been collected as toll. Similarly, in the case of Uni bridge over and above the amount of Rs. 10,42,400/- which is the cost of construction, the expenditure on the collection staff upto the year 1979-80 has amounted to Rs. 1,07,800/-. Out of these sums only a sum of Rs. 1,06,198/- has been collected as toll. It is thus obvious that practically the entire amount spent on the construction of the bridges remains outstanding. 7. In the notification dated 3rd Dec., 1976 the rate of toll prescribed was Rs. 20/- per trip. By the impugned notification the rate has been reduced to Rs. 10/- per trip. On the materials available on record it cannot be legitimately asserted that the rate of toll is unreasonable, arbitrary or excessive and deserves to be revised. 8. 7. In the notification dated 3rd Dec., 1976 the rate of toll prescribed was Rs. 20/- per trip. By the impugned notification the rate has been reduced to Rs. 10/- per trip. On the materials available on record it cannot be legitimately asserted that the rate of toll is unreasonable, arbitrary or excessive and deserves to be revised. 8. The contention that the power under S. 2 of the Act could be exercised only once and that after the notification dated 1-11-1956 no further notifications could be issued in exercise of powers under S. 2 of the Act is wholly untenable. The language of S. 2 of the Act does not give any such indication. It in fact indicates otherwise. The State Government is empowered to levy such rate of toll as it thinks fit upon any road or bridge which has been, or shall hereafter be, made or repaired. The object of levying toll being to recover the cost of construction the rate of levy has to be varied when the cost of construction goes up. The rate of levy of toll to recover cost of construction made in the year 1960 would be wholly insufficient to recover the cost of constructions made in the year 1980 when the expenditure incurred would be manifold higher than the cost incurred on the constructions made in 1960. The expenditure in the collection of the toll in the subsequent period would also be much higher. Judicial notice can be taken of the fact that the costs of raw materials, labour etc., have gone up considerably in recent times. The object behind S. 2 of the Act will be frustrated if it is interpreted to mean that the rate of toll can be fixed only once and cannot be revised from time to time. 9. In support of his contention the learned counsel relied on the decision of the Supreme Court in Lachmi Narain v. Union of India, ( AIR 1976 SC 714 ) and Nasiruddin v. State Transport Appellate Tribunal ( AIR 1976 SC 331 ). The principles laid down in these cases are of no assistance to the petitioner. 9. In support of his contention the learned counsel relied on the decision of the Supreme Court in Lachmi Narain v. Union of India, ( AIR 1976 SC 714 ) and Nasiruddin v. State Transport Appellate Tribunal ( AIR 1976 SC 331 ). The principles laid down in these cases are of no assistance to the petitioner. In the case of Lachmi Narain (supra) the question was with regard to the power of the Central Government under S. 2 of the Union Territories (Laws) Act, 1950 to bring into operation and effect in a Union Territory an enactment already in force in a State. In the case of Nasiruddin the Supreme Court had occasion to consider certain provisions of the United Provinces High Courts (Amalgamation) Order, 1948. The decisions of the Supreme Court in the aforesaid two cases are of no assistance in the interpretation of S. 2 of the Indian Tolls Act. The language of S. 2 and the object behind the provision is entirely different from the provisions which came up for consideration by the Supreme Court in the aforesaid cases. As noted earlier the language clearly indicates that the power under S. 2 can be exercised from time to time on the exigencies of the situation and that it does not exhaust itself once a notification is issued under it. 10. As pointed out earlier the initial cost incurred on the construction of the bridges still remains outstanding and has to be recouped by levying toll. The rate of toll prescribed in the impugned notification appears to be quite reasonable. In that view of the matter the petitioners are not entitled to any relief. The petition is accordingly dismissed. Parties shall bear their own costs.