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2012 DIGILAW 4960 (MAD)

Association of Management of Coimbatore, Anna University Affiliated Colleges v. National Highways Authority of India rep. by its Chairman

2012-12-14

R.SUDHAKAR

body2012
ORDER 1. These writ petitions have been filed challenging the letters issued by the Concessionaire, who has declined to grant the benefit of discounted rates to the vehicles plied by the petitioners on the national highways by placing reliance on Clause 7(b)(ii) of the notification issued by the Ministry of Shipping, Road Transport and Highways in Gazette No.720, S.O.1178(E), dated 8.5.2009. 2. This Court granted interim orders in almost all these cases. The matter is now taken up for final disposal, since the issue involved falls in a narrow compass. 3. The issue involved in these writ petitions is relating to the power of the Central Government to issue notification and grant exemption in terms of Section Section 8-A of the National Highways Act, 1956 read with Rule 3 of National Highways (Collection of Fees by any person for the use of Section of National Highways/Permanent Bridge/ Temporary Bridge on National Highway) Rules, 1997. For the sake of clarity, the said provisions are extracted hereunder: "Section 8-A. Power of Central Government to enter into agreements for development and maintenance of national highways.- (1) Notwithstanding anything contained in this Act, the Central Government may enter into an agreement with any person in relation to the development, maintenance of the whole or any part of a national highway. (2) Notwithstanding anything contained in section 7, the person referred to in sub-section (1) is entitled to collect and retain fees at such rate, for services or benefits rendered by him as the Central Government may, by notification in the Official Gazette, specify having regard to the expenditure involved in building, maintenance, management and operation of the whole or part of such national highway, interest on the capital invested, reasonable return, the volume of traffic and the period of such agreement. (3) A person referred to in sub-section (1) shall have powers to regulate and control the traffic in accordance with the provisions contained in Chapter VIII of the Motor Vehicles Act, 1988 (59 of 1988) on the national highway forming subject matter of such agreement for proper management thereof." "Rule 3. (3) A person referred to in sub-section (1) shall have powers to regulate and control the traffic in accordance with the provisions contained in Chapter VIII of the Motor Vehicles Act, 1988 (59 of 1988) on the national highway forming subject matter of such agreement for proper management thereof." "Rule 3. Agreement and rate of fee.- (1) The Central Government may enter into an agreement with any person in relation to development and maintenance of the whole or any part of a national highway/permanent bridge/temporary bridge on national highway as it may decide, whereby the person may be permitted to invest his own funds for the development/maintenance of a section of national highway/permanent bridge/temporary bridge and to collect and retain the fees at agreed rates from different categories of mechanical vehicles for an agreed period for the use of the facilities thus created, subject to the terms and conditions of the agreement and these rules. (2) The rates of fees and the period of collection shall be decided and shall be specified by notification in the Official Gazette by the Central Government having regard to the expenditure involved in building, maintenance, management and operation of the whole or part of such section, interest on the capital invested, reasonable return, the volume of traffic and the period of such agreement. (3) On completion of the period of collection of fees by the person, as per the agreement, all rights pertaining to the section/permanent bridge/temporary bridge on national highway shall be deemed to have been taken over by the Central Government and that Government shall continue with the collection of fees as notified, from time to time. (4) The rates of fee, the categories of vehicles exempted from payment of fee and the name, address and telephone number of the authority to whom complaints, if any, should be addressed, shall be conspicuously and prominently displayed 500m ahead of the toll booths, 100m ahead of the tool booths and at the toll booths also, the height of the display and size of letters being such that it is easy for drivers to read the display boards." 4.1. The contention of Mr.K.Doraisami, learned Senior Counsel, Mr.R.Syed Mustafa and Mr.K.S.Karthik Raja, learned counsel for the petitioners is that the term "school buses" referred to in Clause 7(b)(ii) of the notification is a inclusive definition and it will take within its fold all educational institution buses, as defined under Section 2(11) of the Motor Vehicles Act, 1988. 4.2. They amplified the said plea by stating that educational institution buses means omnibus, which is owned by a college, school or other educational institution and used solely for the purpose of transporting students or staff of the educational institution in connection with any of its activities and, therefore, the notification should be read as applicable to all educational institutions and cannot be restricted only to school buses. It is further pleaded that the communication which is issued by the concessionaire and its interpretation of Clause 7(b)(ii) of the notification dated 8.5.2009 is erroneous for the above stated reason. 5.1. Heard Mr.P.Wilson, learned Senior Counsel for the second respondent and M/s.J.Kannan and Mr.P.J.Hrisikesh, learned counsel for the concessionaires, who have stated that for the use of national highways certain rates have been specified and all users of highways have to pay those rates. 5.2. It is pleaded that concession or discount in rates have been granted under various notifications and we are concerned with the notification dated 8.5.2009, wherein Clause 7(b)(ii) clearly provides for discounted rates in respect of school buses carrying school students, crossing the toll plaza may be given at the rate of rupees one thousand per month after obtaining written request of the school Principal. It is stated that the very tenor of the notification is very clear and unambiguous and it is relatable to school buses carrying school students and none other. 5.3. It is further pleaded that the notification granting exemption should be strictly interpreted and the person who claims the concession has to fully satisfy the requirement of notification to get the benefit. In support of the said plea, they relied upon the decision of the Supreme Court in Kasinka Trading v. Union of India, (1995) 1 SCC 274 . 6. It is further pleaded that the notification granting exemption should be strictly interpreted and the person who claims the concession has to fully satisfy the requirement of notification to get the benefit. In support of the said plea, they relied upon the decision of the Supreme Court in Kasinka Trading v. Union of India, (1995) 1 SCC 274 . 6. Before dealing with the merits of the contentions, it is apposite to extract the relevant portion of the Government Order, which reads as under: "Gazette No.720 Ministry of Shipping, Road Transport and Highways (Department of Road Transport and Highways) NOTIFICATION New Delhi, the 8th May, 2009 S.O.1178(E).-Whereas, the Central Government vide notifications of Government of India in the erstwhile Ministry of Road Transport and Highways number S.O.1192(E), dated 3rd December, 2001, and S.O.465(E), dated 26th April, 2002 issued under section 11 of the National Highways Authority of the India Act, 1988 (68 of 1988), hereinafter referred to as the said Act, had entrusted the stretches from Km 163.400 to Km 207.600, Km 248.165 to Km 259.230 and Km 207.600 to Km 248.165 (Bangalore Salem Madurai and Namakkal Bypass section) of national highway No.7 in the State of Tamil Nadu to the National Highways Authority of India (hereinafter referred to as the authority); AND whereas, pursuant to the powers conferred by section 14 of the said Act, the Authority has entered into an agreement with M/s. M.V.R.Infrastructure Tollways Private Limited having its registered office at Flat No.913, 9th Floor, Varuna Block, Myhome, NAVADWEEPA Hi-Tech City, Madhapur, Hyderabad 500 081 (hereinafter referred to as the Concessionaire), inter alia for the (i) improvement, if required, operation and maintenance for the stretch from Km 180.000 Km 199.200, (ii) improvement, operation and maintenance of already four lane section from Km 199.200 Km 207.050, (iii) widening of the existing two lane road to four lane divided carriageway, operation and maintenance from Km 207.050 Km 248.625 (Omallur Start of proposed flyover on Namakkal Bypass section) of the national highway Number 7 (hereinafter referred to as the said section); Now, therefore, in exercise of the powers conferred by section 8A of the National Highways Act, 1956 (48 of 1956), read with rule 3 of the National Highways (Collection of Fees by any person for the use of Section of National Highways/Permanent Bridge/Temporary Bridge on National Highway) Rules, 1997, the Central Government, having regard to the expenditure involved in building, maintenance, management and operation of the said section, interest on the capital invested, reasonable return, the volume of the traffic and the period of the agreement entered into between the Authority and the Concessionaire, hereby levies fee at the base rate specified in column (3) of the following Table, on the category of vehicles specified in column (2) thereof, for the use of the said section and authorises the Concessionaire to collect and retain the said fee on the and from the date of commercial operation or publication of this notification in the Official Gazette, whichever is later, till the termination date as specified in the agreement. 1 to 6 ******** 7. Concessionaire shall not collect fees from local traffic in the excess of the following discounted rates; (a) Car, Jeep or Van: i)Local Traffic Category I : Monthly pass of Rs.150.00 ii)Local Traffic Category II : Monthly pass of Rs.300.00 (b) Buses: i) monthly passes shall be issued on payment of thirty times of the single journey rates applicable for the said stretch, in case of State Transport buses, on the certification of the competent authority (not below the rank of General Manager, State Government Road Transport) certifying the number of buses plying in the route per day and in case of private local operators, on production of their route permit and timetable of the route operation duly certified by the District Transport Authority. ii) monthly passes for school buses carrying school students, crossing the toll plaza may be given at the rate of rupees one thousand per month after obtaining written request of the school principal along with the document showing recognition of the school and the registration of the bus." (Emphasis supplied) 7. A reading of Clause 7(b)(ii) of the notification shows that the exemption is granted only in respect of school buses carrying school students and that too after obtaining written request of the school Principal. Even as per Section 2(11) of the Motor Vehicles Act, educational institution buses includes vehicles owned by a college, school or other educational institution and thereby it is clear that each is a separate category coming under a general category of educational institutions. 8. The Supreme Court in Commissioner of Central Excise v. Favourite Industries, (2012) 7 SCC 153 , after referring to a catena of decisions regarding the manner in which an exemption notification is to be interpreted, has held as follows: "35. The notification requires to be interpreted in the light of the words employed by it and not on any other basis. There cannot be any addition or subtraction from the notification for the reason the exemption notification requires to be strictly construed by the courts. The wordings of the exemption notification have to be given its natural meaning, when the wordings are simple, clear and unambiguous. 37. In CCE v. Rukmani Pakkwell Traders, (2004) 11 SCC 801 , this Court has also held: 5. It is settled law that exemption notifications have to be strictly construed. The wordings of the exemption notification have to be given its natural meaning, when the wordings are simple, clear and unambiguous. 37. In CCE v. Rukmani Pakkwell Traders, (2004) 11 SCC 801 , this Court has also held: 5. It is settled law that exemption notifications have to be strictly construed. They must be interpreted on their own wording. Wordings of some other notification are of no benefit in construing a particular notification. 39. In Compack (P) Ltd. v. CCE, (2005) 8 SCC 300 , this Court has observed thus: (SCC p. 306, para 20) 20. CCE v. Bhalla Enterprises, (2005) 8 SCC 308 laid down a proposition that notification has to be construed on the basis of the language used. Rukmani Pakkwell Traders is an authority for the same proposition as also that the wordings of some other notification are of no benefit in construing a particular notification. The notification does not state that exemption cannot be granted in a case where all the inputs for manufacture of containers would be base paper or paperboard. In manufacture of the containers some other inputs are likely to be used for which MODVAT credit facility has been availed of. Such a construction, as has been suggested by the learned counsel for the respondents, would amount to addition of the words only out of or purely out of the base paper and cannot be countenanced. The notification has to be construed in terms of the language used therein. It is well settled that unless literal meaning given to a document leads to anomaly or absurdity, the golden rule of literal interpretation shall be adhered to. 40. In CCE v. Mahaan Dairies, (2004) 11 SCC 798 , this Court has held: (SCC p. 800, para 8) 8. It is settled law that in order to claim benefit of a notification, a party must strictly comply with the terms of the notification. If on wording of the notification the benefit is not available then by stretching the words of the notification or by adding words to the notification benefit cannot be conferred. The Tribunal has based its decision on a decision delivered by it in Rukmani Pakkwell Traders v. CCE, (1999) 9 ELT 204 (Tri). We have already overruled the decision in that case. In this case also we hold that the decision of the Tribunal is unsustainable. The Tribunal has based its decision on a decision delivered by it in Rukmani Pakkwell Traders v. CCE, (1999) 9 ELT 204 (Tri). We have already overruled the decision in that case. In this case also we hold that the decision of the Tribunal is unsustainable. It is accordingly set aside.'" (Emphasis supplied) 9. In the case on hand, the notification grants discounted rates only to school buses carrying school students and not to colleges and other educational institutions. Therefore, there is a specific exclusion in respect of other institutions. The notification, in the light of the law enunciated by the Supreme Court in the decision cited supra, has to be strictly interpreted and when the words in the notification are clear and unambiguous, there cannot be any other manner of interpretation of Clause 7(b)(ii) of the notification. The plea of inclusive definition does not apply in a case of exemption notification, which obviously has to be strictly interpreted as per the decision of the Supreme Court, cited supra. For the foregoing reasons, all the writ petitions fail and they are dismissed. At this juncture, a plea has been taken by Mr.R.Syed Mustafa, learned counsel for the petitioner in W.P.No.33304 of 2012 that some of the school buses carrying school students are denied the benefit of discounted rates by the respondents. On the said plea, it is clarified that it is always open to them to point out this decision to the second respondent and seek appropriate relief. No costs. Consequently, M.P.Nos.1 of 2012 (12 petitions) and M.P.Nos.2 of 2012 (11 petitions) are closed.