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2001 DIGILAW 746 (ALL)

MADHUSUDAN MATANHELIA v. STATE OF UTTAR PRADESH

2001-07-26

ASHISH N.TRIVEDI, S.K.SEN

body2001
S. K. SEN, C. J, ASHISH N. TRIVEDI, J. ( 1 ) HEARD learned counsel for petitioner Sri P. K. Sinha and Sri Rajiv Sharma, learned standing counsel for State respondents. ( 2 ) IT is the contention of the writ petitioner that actual expenses for construction of the bridge has already been realtzed. It has also been alleged that the amount of interest and maintenance expenses have also been realized but the respondent authorities are charging tax on the said bridges in an arbitrary manner. ( 3 ) IT is also the contention that the State Government is not entitled to charge stationery charges. In support of his contention, learned counsel for petitioner has relied upon the decision of supreme Court in the case of State of U. P. and Ors. v. Devi Dayal Singh, 2000 (2) AWC 1288 (SC) : 2000 (3) SCC 5 . The aforesaid decision relates to Galghat toll tax in respect of the Gat ghat Bridge which was constructed by the Government of U. P. on river Sarju in the year 1968 at a cost of Rs. 39,97,000. 00. In 1970 it was opened to the public. On 7. 2. 1985 the State government leased out the right to collect toll tax in respect of that bridge to an Individual. On 21. 2. 1990 in a writ petition filed by a truck owner, the Allahabad High Court held that the bridge having been constructed by the State out of its own funds and not out of any borrowings, neither the interest on the expenditure nor the maintenance charges could be realised under Section 2 of the Act. The High Court found that the State Government had already recovered the original cost of construction and accordingly directed the State not to realize any further toll tax in respect of the Gal Ghat Bridge. A review petition filed by the lessee of the right to collect the toll tax was dismissed by the High Court. The State and the lessee filed separate appeals to the Supreme court. The Supreme Court granted interim stay of the impugned order of the High Court as by that time the State Government had already recovered by way of toll more than four times of the amount of its initial input. The State and the lessee filed separate appeals to the Supreme court. The Supreme Court granted interim stay of the impugned order of the High Court as by that time the State Government had already recovered by way of toll more than four times of the amount of its initial input. By the time the case came up for hearing, the State Government had discontinued the collection of tolls in respect of the bridge in question. ( 4 ) THE relevant portion of the aforesaid judgment of Supreme Court in State of U. P. and Ors. v. Devi Dayal Singh (supra) is set out herein below : "10. The State of Uttar Pradesh issued Notification No. 2174/ XXIII-SN-II-62/1976, dated 2. 6. 1976 in exercise of the powers conferred under Section 2 read with Section 21 of the General clauses Act, 1897. By the notification, it was ordered that with effect from the date of the publication of the notification in the Gazette, toll shall be levied and be chargeable from all persons in charge of vehicles, using all such permanent bridges notified in that behalf under the control and management of the State Public Works Department subject to certain exceptions. We are not called upon to consider the exceptions in this case. 11. We are, for the purpose of these appeals, concerned with paras III (a) and (b) of the notification which reads : iii (a) The toll on any particular bridge shall be levied only for so long as the total cost of Its construction, including interest on the total expenditure on the bridge, expenditure in realization of toll and on maintenance, has not been realized in full or for a period of 50 years from the date of first levy of toll on the bridge, whichever is earlier. Explanation.--An amount equal to 0. 5 per cent per annum shall be added to the cost of the bridge on account of expenditure on maintenance. (b) The rate of interest shall be 10% per annum on the amount invested or to be invested in future by the Government for construction of a bridge and the amount of interest shall be calculated on the balance after repayment of the instalment of the loan, if any, taken for the construction of the bridge. " 12. In the writ application filed by Devi Dayal Singh. the notification-dated 2. 6. " 12. In the writ application filed by Devi Dayal Singh. the notification-dated 2. 6. 1976 has not been challenged. An interpretation of the relevant paragraph of the notification makes it clear that the Intention to levy the toll is to financially self-liquidate the construction and upkeep of bridges and roads. The notification thus allows toll to be collected only for a specified period, viz. , 50 years from the date of the first levy or until the total cost of Its construction is realized, whichever Is earlier. The total cost of construction has been defined in para (III) (a) of the notification as Including (i) Interest on the total expenditure on the bridge, (ii) expenditure in realization of toll, and (iii) maintenance. No interest is recoverable on (ii) or (iii ). In terms of the notification, it is also not permissible to recover any amount of Interest on the interest chargeable on (i ). 13. However, the State Government has under cover of the notification, levied toll to recover not only (a) the actual cost of construction, but also (b) the expenditure on account of stationery, (c)maintenance, (d) interest on the cost of construction, stationery expenditure and maintenance, as well as (e) interest on the balance remaining after recovery of toll tax in any particular year. In calculating the balance, the State Government has included the stationery expenditure, maintenance and the Interest charged on all the items. In other words, the State Government has charged interest on interest. " ( 5 ) IT appears, therefore, that the State Government under the aforesaid notification Is not entitled to levy toll and reimburse Itself on account of stationery, nor could it charge interest on, maintenance and stationery costs. While there Is also no provision in the notification for charging interest on interest, the State Government could in terms of the notification, certainly recover by way of toll from the public, the actual expense of construction, interest on such actual expenditure and the cost of maintenance. ( 6 ) HOWEVER, in order to clarify the law, setting aside the Impugned decision, the Supreme Court held : "while there is also no provision in the notification for charging Interest on interest, the State government could in terms of the notification, certainly recover by way of toll from the public, the actual expense and the cost of maintenance. ( 6 ) HOWEVER, in order to clarify the law, setting aside the Impugned decision, the Supreme Court held : "while there is also no provision in the notification for charging Interest on interest, the State government could in terms of the notification, certainly recover by way of toll from the public, the actual expense and the cost of maintenance. " the order passed by this Court whereby the State Government got the right to recover interest on actual construction cost of maintenance was set aside. ( 7 ) WE, therefore, direct that the representation should be considered and appropriate decision should be taken by the State Government in the light of the aforesaid decision of the Supreme court within one month from the date of receipt of certified copy of this order after hearing the writ petitioner. ( 8 ) THE writ petition stands disposed of by this order. .