JUDGMENT R. S. GARG, J. ( 1 ) THE petitioner Truck owners Association and one Sardool Singh, a truck owner has filed this petition challenging the constitutional validity of Rule 11 of national Highways (Fee for the Use of National Highway Section and Permanent bridge Public Funded Project) Rules, 1997. ( 2 ) THE submission of learned counsel for the petitioners is that once the cost of construction and cost of maintenance are recovered by the authority which has constructed the bridge then the toll cannot be collected in perpetuity because such an action would be illegal, contrary to the provisions of law and contrary to the fair play and would also demolish the principles of a welfare State. The submission in fact is that once the State government or the Central Government constructs a bridge then it would be entitled to recover cost of the same so that the burden is distributed upon the bridge users but once the cost is recovered then the respondents or the authorities constructing the bridge would not be entitled to recovery money any further. ( 3 ) REFERRING to Notification dated 29-6-1998 (Annexure P/1), it is submitted that the state Government had clearly provided that no such bridges on which collection of toll has been authorized to the Contractors by public auction, the collection of toll shall be suspended only after expiry of the period of contract executed with the Contractors. It is submitted that the State Government's Notification dated 29-6 -. 1998 (Annexure P/1) was subjected to a challenge before the High court so also before the Supreme Court; a full Bench of the High Court overruling the earlier Division Bench judgment in the matter of Mandsaur Transport Association v. State of M. P. and another reported in 1988 mplj 773 : AIR 1988 MP 159 held that the notification would still be bad and cannot be continued if cost of the bridge has already been recovered. ( 4 ) PLACING reliance upon the judgment of the Supreme Court in the matter of Mandsaur transport Association v. State of M. P. and others (2001) 9 SCC 328 , it is submitted that there would be no justification for continuing the toll till the contract period with the Contractors is over in respect of a particular bridge. ( 4 ) PLACING reliance upon the judgment of the Supreme Court in the matter of Mandsaur transport Association v. State of M. P. and others (2001) 9 SCC 328 , it is submitted that there would be no justification for continuing the toll till the contract period with the Contractors is over in respect of a particular bridge. The observations made by the Supreme Court "there is no reason at all why collection of toll should continue henceforth where the cost of construction and even cost of maintenance have already been recovered by the State government several times over by way of toll on that bridge" are also relied upon. ( 5 ) THE submission is that in the present matter the cost of construction has already been realized and, therefore, the Notification dated 29-6-1998 (Annexure P/1) should be given full effect so that every bridge is exempted from collection of the toll where the entire cost of construction has been realized by way of toll. ( 6 ) IT is also submitted that Rule 11 of the afore-referred Rules, which refers to the tenure of fee collection when provides that the fee shall be collected in perpetuity by the executing agency would be contrary to the judgment of the Supreme Court and as such would be contrary to the provisions of the Constitution. The further submission is that the state Government cannot be allowed to earn money from all such work which under the constitution it has to carry out. ( 7 ) THE respondents in their return have submitted that the collection of toll fee at tilwaraghat Bridge is in accordance with the rules framed by the Central Government in exercise of the powers under Section 9 of the National Highways Act, 1956. ( 8 ) IT is asserted that to the facts of the case, rules of 1997 are applicable and under the said Rules, the Central Government is empowered to recover the toll fee in perpetuity, therefore, contention of the petitioner that the toll fee can be collected only to the extent of cost of the bridge being contrary to the provisions of National Highways Act is bad. ( 9 ) RULE 2 (b) of 1997 Rules provides the definition of executing agency. ( 9 ) RULE 2 (b) of 1997 Rules provides the definition of executing agency. The definition reads as under : - "2 (b) "executing agency" means - (i) In the case of those National Highways administratively placed under the charge of border Roads Organization, the Border roads Development Board (hereinafter referred to as 'brdb'); (ii) In the case of those National Highways or part thereof entrusted to National highways Authority of India (hereinafter referred to as NHAI), the National Highways authority of India; (iii) In other cases the State Government or Union Territory, the administration to which such functions are delegated under section 5 of the Act. " ( 10 ) FROM a perusal of sub-clause (iii) of clause (b) of Rule 2, it would clearly appear that the State Government would be the executing agency when functions under Section 5 of the Act (Tolls Act) are delegated to it. Rule 5 provides for procedure of collection. It says that the fees levied under these rules shall be collected by the executing agency concerned departmentally or through private Contractors on the basis of competitive bidding on behalf of the Central Government. ( 11 ) A perusal of these Rules would make it clear that the bridges which are constructed on the highways falling within the territory of the State Government would be maintained by the State Government and the State government would be the executing agency for purposes of collection of toll. ( 12 ) ONCE the judgment of the Supreme court is taken help of and it is held that recovery of toll would be bad in cases where cost of construction and cost of maintenance have already been recovered by the State government several times over by way of toll on that bridge then Rule 11 which provides that the fee shall be collected in perpetuity by the executing agency shall be patently bad. ( 13 ) FROM the matter of Mandsaur Transport Association v. State of M. P. and others (2001) 9 SCC 328 , it would clearly appear that the Division Bench judgment reported in 1988 MPLJ 773 : AIR 1988 MP 159 (Mandsaur Transport Association v. State of m. P. and another) was held to be bad law by judgment of the Full Bench of this Court in its judgment dated 5-2-1996 and the High court had held that levy of toll under the Indian Tolls Act, 1851 is in the nature of compensatory tax and, therefore, from its very nature once the amount which has been spent for construction of a road and/or a bridge is recovered, the toll cannot be continued perpetually like a general tax. While quashing part of Notification dated 29-6-1998 (Annexure P/1), the Supreme Court had gone to the extent of saying that the contract which was in force on the date of the petition or on the date of the judgment also could not be continued nor collection of toll could be continued where the cost of construction and even cost of maintenance had already been recovered by the State Government. ( 14 ) IN view of the Full Bench judgment of this Court and the judgment of Their Lordships of the Supreme Court in the matter of mandsaur Transport Association (supra), we find no difficulty in holding that Rule 11 of 1997 Rules, which provides that the fee shall be collected in perpetuity by the executing agency is bad. However, we make it clear that the agency would be entitled to recover cost of the road/bridge or for its maintenance or its upkeep provided the original cost is not recovered and the executing agency comes out with a clear case that for maintenance etc. of a road/bridge, certain tolls are required to be imposed. We hold that Rule 11 of 1997 Rules in its term cannot be held to be valid, however, we would clarify and make it clear that the Full Bench judgment of this Court has clearly observed that the toll tax may be levied for repair of the road and/or the bridge concerned or its necessary upkeep. ( 15 ) THE writ petition is allowed with the clarification aforesaid. There shall be no order as to costs. Order accordingly. .