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Himachal Pradesh High Court · body

2013 DIGILAW 419 (HP)

Mangleshwar Sharma v. State of H. P.

2013-05-13

DHARAM CHAND CHAUDHARY, SURINDER SINGH

body2013
JUDGMENT : Surinder Singh, J. The respondent-Municipal Corporation, Shimla started collecting levy fee w.e.f. 1.4.2012 from the vehicles entering Shimla town being registration numbers other than the Himachal Pradesh, as follows:- (i) Two wheelers Rs. 100/- (ii) Car and Jeep Rs. 200/- (iii) MUVs (Tata Sumo, Safari, Scorpio, Qualis, Bolero, Maxi Cab and Utility Vehicles) Rs. 300/-, and (iv) Buses, trucks and other Heavy vehicles Rs. 500/- 3. The petitioner Mangleshwar Sharma who claims to be a public spirited citizen of India laid a challenge by filing the petition under Article 226 of the Constitution of India alleging that the respondent-Corporation started collecting green tax through sixth respondent M/s V.K. Infrainvest Pvt. Ltd. from all the vehicle owners registered outside the respondent-State, hurriedly without raising any infrastructure and formal clearance of the National Highway Authorities by putting barrier in the middle of the road causing obstruction and traffic congestion to the daily commuters, thus sought direction to the respondent-Corporation to adhere to the conditions imposed in their letter dated 24.8.2012 and to provide proper facilities within the scope of the project before erecting barriers extra . and not for causing damages to the National Highway. However, also sought direction qua lodging a criminal case for the damage caused, whereas, petitioner Tarsem Bharti in CWP No. 9030 of 2012 filed on 17.10.2012 sought quashment of the amendment made in Section 85 of the Himachal Pradesh Municipal Corporation Act, 1994, being violative of Article 19 (1)(g), 301 and 304 of the Constitution of India with a further direction to remove unauthorized collection barriers. 4. As a matter of fact, Section 85 of "The Himachal Pradesh Municipal Corporation Act, 1994" was substituted by Act No. 32 of 2011 as follows:- " 4. Substitution of Section 85.- For Section 85 of the Principal Act, the following Section shall be substituted, namely:- "85. Fee and users charges.- The Corporation may levy a fee and user charges for the services provided by it at such rates and in such manner as may be determined by the Corporation from time to time." 5. The aforesaid amendment was assented to by the Governor on 29th July, 2011, which was published in Rajpatra of Himachal Pradesh. Thus, by virtue of the aforesaid amendment, the Corporation is fully empowered to levy fee and user charges for the services provided by it. The aforesaid amendment was assented to by the Governor on 29th July, 2011, which was published in Rajpatra of Himachal Pradesh. Thus, by virtue of the aforesaid amendment, the Corporation is fully empowered to levy fee and user charges for the services provided by it. The petitioners alleged that it is a "tax," the respondent-Corporation may give any nomenclature to it, but it is impermissible under the law. 6. In fact essentially, we shall have to see the object behind the amendment. Though there is no generic difference between a "tax" and a "fee"; both are compulsorily extraction of money by public authorities, but whereas a "tax" is imposed for public purposes and is not supported by any consideration of service rendered in turn, and a "fee" is levied essentially for services rendered and as such there is an element of quid pro quo between the person who pays the fee and the public authority which imposed it. Thus a fee is regarded as a sort of return or consideration for services rendered, which makes it necessary that there should be an element of quid pro quo in imposition of fee, as held by the Supreme Court in Nagar Mahapalika, Varansi v. Durga Dass Bhattacharya and Others, AIR 1968 S.C. 1119 and The Governor of Andhra Pradesh and Another v. Hindustan Machine Tools Ltd., (1975) 2 SCC 274 . In addition the Supreme Court in The State of Maharashtra and others v. The Salvation Army, Western India Territory along with connected matter, [1975 SC 846] has further held that the amount collected as fee, must be earmarked to meet the expenses of rendering these services and must not go to the general revenue of the State to be spent for general public purposes. Further the Supreme Court in State of Karnataka and Another v. M/s Hansa Corporation, [ (1980) 4 SCC 697 ] : AIR 1981 SC 463 held that if a tax is "compensatory" in character, it would be immune from the challenge under Article 301. If on the other hand the tax is not shown to be "compensatory" in character, it would be necessary for the party seeking to sustain the validity of the tax law to show that the requirements of Article 304 have been satisfied. 7. If on the other hand the tax is not shown to be "compensatory" in character, it would be necessary for the party seeking to sustain the validity of the tax law to show that the requirements of Article 304 have been satisfied. 7. The Constitution Bench of the Apex Court in Jindal Stainless Ltd (2) and Another v. State of Haryana and Others, [ (2006) 7 SCC 241 ] : AIR 2006 SC 2550 distinguished "a tax, a fee and "a compensatory tax" in following paras:- "40. Tax is levied as a part of common burden. The basis of a tax is the ability or the capacity of the taxpayer to pay. The principle behind the levy of a tax is the principle of ability or capacity. In the case of a tax, there is no identification of a specific benefit and even if such identification is there, it is not capable of direct measurement. In the case of a tax, a particular advantage, if it exists at all, is incidental to the States' action. It is assessed on certain elements of business, such as, manufacture, purchase, sale, consumption, use, capital extra. but its payment is not a condition precedent. It is not a term or condition of a licence. A fee is generally a term of a licence. A tax is a payment where the special benefit, if any, is converted into common burden. 41. On the other hand, a fee is based on the "principle of equivalence". This principle is the converse of the "principle of ability" to pay. In the case of a fee or compensatory tax, the "principle of equivalence" applies. The basis of a fee or a compensatory tax is the same. The main basis of a fee or a compensatory tax is the quantifiable and measurable benefit. In the case of a tax, even if there is any benefit, the same is incidental to the Government action and even if such benefit results from the Government action, the same is not measurable. Under the principle of equivalence, as applicable to a fee or a compensatory tax, there is an indication of a quantifiable data, namely, a benefit which is measurable. 42. A tax can be progressive. However, a fee or a compensatory tax has to be broadly proportional and not progressive. Under the principle of equivalence, as applicable to a fee or a compensatory tax, there is an indication of a quantifiable data, namely, a benefit which is measurable. 42. A tax can be progressive. However, a fee or a compensatory tax has to be broadly proportional and not progressive. In the principle of equivalence, which is the foundation of a compensatory tax as well as a fee, the value of the quantifiable benefit is represented by the costs incurred in procuring the facility/services which costs in turn become the basis of reimbursement/ recompense for the provider of the services/ facilities. Compensatory tax is based on the principle of "pay for the value". It is a subclass of "a fee". From the point of view of the Government, a compensatory tax is a charge for offering trading facilities. It adds to the value of trade and commerce which does not happen in the case of a tax as such. A tax may be progressive or proportional to income, property, expenditure or any other test of ability or capacity (principle of ability). Taxes may be progressive rather than proportional. Compensatory taxes, like fees, are always proportional to benefits. They are based on the principle of equivalence. However, a compensatory tax is levied on an individual as a member of a class, whereas a fee is levied on an individual as such. If one keeps in mind the "principle of ability" vis -a-vis the "principle of equivalence", then the difference between a tax on one hand and a fee or a compensatory tax on the other hand can be easily spelt out. Ability or capacity to pay is measurable by property or rental value. Local rates are often charged according to ability to pay. Reimbursement or recompense are the closest equivalence to the cost incurred by the provider of the services/ facilities. The theory of compensatory tax is that it rests upon the principle that if the Government by some positive action confers upon individual (s), a particular measurable advantage, it is only fair to the community at large that the beneficiary shall pay for it. The basic difference between a tax on one hand and a fee/compensatory tax on the other hand is that the former is based on the concept of burden whereas compensatory tax/fee is based on the concept of recompense/ reimbursement. The basic difference between a tax on one hand and a fee/compensatory tax on the other hand is that the former is based on the concept of burden whereas compensatory tax/fee is based on the concept of recompense/ reimbursement. For a tax to be compensatory, there must be some link between the quantum of tax and the facility/ services. Every benefit is measured in terms of cost which has to be reimbursed by compensatory tax or in the form of compensatory tax. In other words, compensatory tax is a recompense/ reimbursement." (Emphasis ours) 8. In the context of Article 301, therefore, "compensatory tax" is a compulsory contribution levied broadly in proportion to the special benefits derived to defray the costs of regulation or to meet the outlay incurred for some special advantage to trade, commerce and intercourse. It may incidentally bring it in net revenue to the Government but that circumstance is not an essential ingredient of "compensatory tax". 9. The "compensatory tax" is a judicially evolved concept. 10. Thus, the basis of every levy is the controlling factor. In the case of "a tax", the levy is a part of common burden based on the principle of ability or capacity to pay. In the case of "a fee", the basis is the special benefit to the payer (individual as such) based on the principle of equivalence. When the tax is imposed as a part of regulation or as a part of regulatory measure, its basis shifts from the concept of "burden" to the concept of measurable/quantifiable benefit and then it becomes a "compensatory tax" and its payment is then not for revenue but as reimbursement/ recompense to the service/facility provider. It is then a tax on recompense. "Compensatory tax" is by nature hybrid but it is more closer to "fee" than to "tax" as both fees and compensatory taxes are based on the principle of equivalence and on the basis of reimbursement/recompense. If the impugned law chooses an activity like trade and commerce as the criterion of its operation and if the effect of the operation of the enactment is to impede trade and commerce then Article 301 is violated. 11. Further a "fee" is generally defined to be a charge for a special service rendered to individuals by some Governmental agency. If the impugned law chooses an activity like trade and commerce as the criterion of its operation and if the effect of the operation of the enactment is to impede trade and commerce then Article 301 is violated. 11. Further a "fee" is generally defined to be a charge for a special service rendered to individuals by some Governmental agency. But the traditional view that there must be actual quid pro quo has undergone a sea change with the passage of time. Co-relationship between the levy and the services rendered/expected is one of general character and not of mathematical exactitude. All that necessary is that there should be a "reasonable relationship" between the levy of the fee and the services rendered. It is increasingly realised that the element of quid pro quo in the strict sense is not a sine qua non for a fee as held by the Supreme Court in State of Gujarat and Ors. v. Akhil Gujarat Pravasi V.S. Mahamandal and Ors., [ (2004) 5 SCC 155 : AIR 2004 SC 3894 ]. 12. In the case in hand, the aforesaid amendment empowers the respondent-Corporation to charge fee for the services rendered and to be rendered in future as per its scheme. 13. The State Government by substituting the aforesaid Section intends to achieve the noble objective of ensuring that Shimla and its surrounding areas having important tourist spots, are to be regulated in such a manner as not only to have the free flow of traffic, but also to provide a pollution-free environment at all important areas of the town and all other activities associated with the tourism and urban development to generate the much needed financial resources which would be spent on the development work relating to tourism and urban development in and around Shimla town. The emphasis of the Municipal Corporation is also to provide parking places and keep Shimla town pollution free and facilities to the tourists by ensuring and creation of development of infrastructural facilities and to ensure that all possible hindrances are removed. 14. The emphasis of the Municipal Corporation is also to provide parking places and keep Shimla town pollution free and facilities to the tourists by ensuring and creation of development of infrastructural facilities and to ensure that all possible hindrances are removed. 14. The scheme prepared by the Municipal Corporation placed on record under Section 85 of the Act aforesaid, inter alia provides for environmental Cess, so far as the vehicles bearing registration numbers of the State of Himachal Pradesh are concerned, definitely these are required to be exempted from levy of such fee as those vehicles normally are not plied for tourism activities but for activities other than tourism, such as commercial, business or even private affairs being a part of the State. 15. The real intention behind the substitution of Section 85 of the Act aforesaid is to collect the amount from the vehicles so that this could be used and expended for development of tourism and tourism facilities, therefore, such an amendment cannot be said to be unconstitutional as ventilated. It is a fee, which is recorded as a sort of tax return, though it is necessary that the levy of fee should be co-related to the expenses incurred by the agencies in running these services as far as it is provides in present as well as better services in future. 16. With the above object in mind, the respondent- Corporation decided to contracting out the process of Green fee collection barriers to achieve its objective as per the scheme, its Operation and Maintenance as well at above entry points to the town. 17. Therefore, the collection extra. was to be awarded to an eligible private sector firm by the respondent-Corporation to be engaged through an open, competitive and transparent process i.e., by issuing notice inviting a Request for Proposal (REP) which involved single stage bidding, whereby the bidder submit technical and financial bids. The respondent- Corporation also proposed that the bidder quoting the highest bid (H1) would be selected for concession period of one year. The selected bidder would undertake at its own costs "green fee" collection and development of green-fee plazas on behalf of the respondent- Corporation as per National Highway Authority of India standards, operation and maintenance for a period of two years. The selected bidder would undertake at its own costs "green fee" collection and development of green-fee plazas on behalf of the respondent- Corporation as per National Highway Authority of India standards, operation and maintenance for a period of two years. It also provided that the aforesaid barriers would be computerized and with proper signages, lighting, including traffic light system and road markings, whereas, the respondent-Corporation will act as a facilitator in providing land and NOCs from Government Departments like NHAI, HPSEB, HPPWD and IPH Department. 18. The sixth respondent M/s. V.K. Infrainvest Private Ltd. was a successful bidder, to whom the tender for collection of green fee was awarded by the respondent- Corporation. 19. Vide letter No. MCS/Comm/12-11-16 dated 28.4.2012, notice of award (Annexure R6/D= Annexure D) was given to the 6th respondent informing to execute the concession agreement, in pursuance of the RFP document and notice of award on the terms and conditions mentioned therein. 20. Accordingly award was accepted and a concession agreement was entered into between the respondent-Corporation and the 6th respondent. The 6th respondent being the concessionaire was required to have following minimum provisions on the check-post: (i) Off-street drivers through toll plaza for incoming and outgoing traffic with main entry and exist, approach road, minimum number of lanes as specified in the agreement and operator booths. The vehicle into or out of check-post, shall be guided on to a lane with adequate signage system, (ii) Lighting including high mast lighting, (iii) CCTV Camera for surveillance, (iv) Traffic light system, (v) Road markings and information signage, and (vi) Each lane should have following minimum provision: Display system for display of information/ instruction for the vehicle operator; and Lane operator control booth with system components like terminal, printer, UPS document scanner, bar code reader etc. for data and transaction processing. (vii) The other essential project facilities identified for check-posts shall be provided based on the size of check-post, which includes detention area, administrative office, public conveniences, security booth and police outpost, public address system and utilities like power supply with standby power, sewerage system, drainage system, water supply system. 21. Further two separate transaction-windows were to be provided for E and T and other user Department and also it was to provide the width of the lane for various types of vehicles which include multi-axle and oversized/ passenger vehicles. 22. 21. Further two separate transaction-windows were to be provided for E and T and other user Department and also it was to provide the width of the lane for various types of vehicles which include multi-axle and oversized/ passenger vehicles. 22. The respondent-Corporation is stated to have taken up the matter with the National Highway Authorities. Vide letter dated 24.8.2012 in CWP No.9030 of 2012, Government of India, Ministry of Road Transport and Highways informed their Regional Office, Chandigarh in reference of the proposal of respondent- Corporation forwarded to them. The said Ministry agreed in principle for providing separate parking lay-byes to be constructed outside the National Highway ROW. The land required, if any, for construction of lay-byes beyond ROW was to be acquired by the respondent- Corporation and cost of construction would also be borne by them for the said purpose, but however the work was required to be done by the State PWD as deposit work at the cost of the Corporation. Thus, the respondent-Corporation was to prepare relevant details/drawings for the construction of lay-byes as per Ministrys standard ROW, the approval whereof and further needful was also to be done by the Regional Office, Ministry of Road and Transport Highways, Chandigarh. Reference to this letter, the Commissioner of the respondent-Corporation made a communication Annexure R6/E to the 6th respondent, i.e. M/s. V.K. Group of Companies requesting them to attend their office and sign the concession agreement mutually on manual basis till the time it is computerized. It was thereafter that the agreement was executed and the said Company/ bidder concessionaire started collecting the fee with effect from 15.9.2012. 23. During the pendency of the writ petitions a meeting was held on 16.11.2012 under the Chairmanship of the Assistant Commissioner, Municipal Corporation, Shimla to review the progress to develop all the four green collection barriers around, which was participated by following Officers: (1) Er. Sanjay Gupta, Executive Engineer (Rand-B), MC, Shimla. (2) Er. L.R. Bhardwaj, SE Consultant, MC Shimla. (3) Er. Mahesh Singhal, Executive Engineer, (NH), HPPWD, Solan. (4) Er. Vijay Chauhan, A.E. (NH), HPPWD, Dhalli Shimla-12. (5) Shri Ranjan Gupta, V.K. Infrainvest Pvt. Ltd., Patiala. 24. All the members were apprised of the pendency of writ petition as they had already conducted a joint inspection of all four green barriers on 5.11.2012. They had circulated the report amongst themselves on 9.11.2012. Er. Mahesh Singhal and Er. (4) Er. Vijay Chauhan, A.E. (NH), HPPWD, Dhalli Shimla-12. (5) Shri Ranjan Gupta, V.K. Infrainvest Pvt. Ltd., Patiala. 24. All the members were apprised of the pendency of writ petition as they had already conducted a joint inspection of all four green barriers on 5.11.2012. They had circulated the report amongst themselves on 9.11.2012. Er. Mahesh Singhal and Er. Vijay Chauhan, both were the representatives of National Highway and held discussions as under: (A) Short Term Arrangements: The above Committee agreed to shift the green fee barrier at Tara Devi on NH-22 from the present location at RD 140/800 to the proposed location at RD 140/500, but prior to the shifting, the respondent- Corporation was required to improve the curves including development of the Valley side near culvert at RD 140/500 of the proposed site for construction of lay-byes. For this, the respondent-Corporation had already prepared two estimates amounting to Rs. 2.77 lacs for "Strengthening of road crust of new proposed lay-bye" and amounting to Rs. 4.38 lacs for "improvement of curve by providing wire crate retaining-wall". For the other three barrier locations, all the members were of the view that the functioning of the existing barriers was normal and satisfactory in the present conditions. (B) Long Term Arrangements: Representatives from the National Highway Authorities informed that the MC Shimla in coordination/ consultation with NH Wing of HP PWD will prepare drawings/ plans for construction of lay-byes of all the four sites, which will be submitted to the National Highway Division, HPPWD, Solan for approval from the competent authority. After obtaining the approval the work of the development of sites will be executed by the NH Wing of HPPWD as a deposit work of MC. Shimla. 25. On 17.10.2012, the principal Bench of this Court took up CWP No. 7976 of 2012 titled Mangleshwar Sharma v. State and passed the following order: "17.10.2012. : Present: Mr. Narender Sharma, Advocate, for the petitioner. Mr. R.K. Bawa, Advocate General with Mr. Ankush Dass Sood, Additional Advocate General, for respondents No. 1 and 5. Mr. Shrawan Dogra, Advocate, for respondent No.2. Mr. Sandeep Sharma, ASGI, for respondent No.3. Ms.Anu Azta, Advocate, for respondent No.6. Learned counsel for the 2nd and 6th respondents submit that they have been prevented by respondents No. 4 and 5 from making collection of green fee. Ankush Dass Sood, Additional Advocate General, for respondents No. 1 and 5. Mr. Shrawan Dogra, Advocate, for respondent No.2. Mr. Sandeep Sharma, ASGI, for respondent No.3. Ms.Anu Azta, Advocate, for respondent No.6. Learned counsel for the 2nd and 6th respondents submit that they have been prevented by respondents No. 4 and 5 from making collection of green fee. Learned Assistant Solicitor General of India submits that the respondents No.2 and 6 have not complied with the condition for providing the required arrangements for the collection in terms of the communication dated 24th August, 2012. In larger public interest, we are of the view that there must be a solution on short term and long terms basis. There will be a direction to respondents No. 2,5 and 6 to sit together immediately and work out the modalities for short term and long terms basis. The respondents No. 2 and 6 shall report before the 5th respondent on 19.10.2012 at 11.00 a.m. and the stake holders shall sit together and work out the modalities immediately thereafter. In the meanwhile, the 6th respondent shall be permitted to continue to collect the green tax. However, respondents No. 2 and 6 shall not cause any damage to the National Highway or obstruction to the flow of traffic. Post on 22nd November, 2012. Authenticated copy. (K.J.), C.J. 17th October, 2012. (D.C.C.), J." 26. CWP No.9030 of 2012 filed by Shri Tarsem Bharti was also taken up by the principal Bench of this Court on 19.10.2012 wherein notices were issued to the respondents therein, but in the meantime as already stated above, a joint inspection report Annexure R6/G prepared earlier in the petition filed by Mangleshwar Sharma; by the above Joint Committee of Officers/ Engineers of (NH) PWD, Road/ Buildings. They had already sorted out the short-term and long-term arrangements as aforesaid, which were reiterated by them in the subsequent report Annexure R-6/I dated 19.11.2012. 27. Later, both the matters were listed before the Court on 15.3.2013. They had already sorted out the short-term and long-term arrangements as aforesaid, which were reiterated by them in the subsequent report Annexure R-6/I dated 19.11.2012. 27. Later, both the matters were listed before the Court on 15.3.2013. In interim, this Court prima-facie found that the barriers for collecting such levy as indicated in the order dated 17.10.2012 was without the permission of the National Highway Authorities and in absence of quid pro quo respondent-Corporation was not permitted at that stage to collect the same, therefore, till the permission was obtained from the National Highway Authorities and parking facilities are made available, no obstruction of any kind to collect the green tax or levy was allowed. The order was made on the serious objection of the learned Counsel appearing for the National Highway who submitted before us that no NOC was granted by the National Highway Authorities to raise the barrier and hinder the traffic on the National Highway. 28. In its short reply-affidavit, respondent No. 3- National Highway Authority in CWP No. 9030 of 2012, filed by Engineer B.S. Bhardwaj, submitted that no application is pending with the National Highway Authorities seeking permission for the purpose as being projected by the respondent-Corporation, which was also clarified by them vide communication dated 21.3.2013 Annexure R- 5. Though they had agreed in principle, but agreeing in principal is just accepting the idea or plan for which further exercise was required to be done for giving final approval/permission, but no such permission was ever asked for, nor given by the said authorities for barricading the National Highway and this fact was also apprised to the Court while issuing the interim order on 15.3.2013. 29. Whereas the Municipal Corporation in their reply also submitted that the Government of India had agreed in principle to allow the installation of green fee barriers. Short-term and long-term arrangements were also proposed. Further that the drawings are complete, which would be submitted to the National Highway Wing of HPPWD to seek approval of MORT and H. They denied any sort of hindrance being caused in smooth running of traffic. It is also submitted that the respondent- Corporation had already awarded the contract for Rs. .3,79,568/- to Government Contractor vide letter dated 24.1.2013 for cutting, excavation, wire crates and. It is also submitted that the respondent- Corporation had already awarded the contract for Rs. .3,79,568/- to Government Contractor vide letter dated 24.1.2013 for cutting, excavation, wire crates and. pursuant to the report of the Committee, which according to the learned Advocate General stands executed and is complete at the site of barrier at Tara Devi and further a contract of Rs. .2,42,897/- was also awarded to the said Government Contractor for preparing the surfaces by brushing with wire brushes etc. for lay-byes at the proposed green-tax barrier. 30. By virtue of interim orders dated 15.3.2013 passed in CWP No.9030 of 2012, the collection of the green fee by the Municipal Corporation stands stayed. However, an application (CMP No.3609 of 2013 in CWP No.7996 of 2012) has also been filed by the respondent-Corporation to review/ modify the said order. 31. Learned Counsel for the petitioners vehemently argued that it is obligatory function of the Corporation under Section 43 of the Municipal Corporation Act to maintain, clean the drain and to provide public latrines and similar conveniences and further the State Government has also to perform certain functions under Section 42 for providing the performance of functions and implementation of schemes including the town planning and public conveniences and also the developments of parks, gardens, play grounds, therefore, the Corporation cannot collect the levy/tax for its maintenance as they are otherwise legally bound to do. But as already held above, it is not a tax. It is a fee for the development of tourism and maintenance of tourist places which otherwise does not fall within the statutory duties of the Municipal Corporation and they are legally empowered to levy fee for the services rendered and/or to be rendered in future as per scheme. 32. From the reading of the contents of the writ petitions as also the replies, we find that the petitioners in these cases have approached under a misplaced notion that it was a collection of tax and not fee, hence it led to a confusion in their mind that the alleged tax cannot be collected, but in fact it being a fee and not a tax for which there is a proper provision in place by substituting Section 85 as reproduced above, which does not violate Articles 301, 304 and 19 (1)(g) of the Constitution of India as propounded by petitioner Tarsem Bharti. 33. 33. The above tax barriers are raised on the National Highway at the place which are entry points within Shimla town from where the jurisdiction of the Municipal Corporation area starts. To augment its finances, the Municipal Corporation has imposed levy for development of the tourism and providing facilities to the tourists visiting Shimla town on short and long term. It is also not necessary that the facilities which are proposed to be provided should be immediate, but if these are supposed to be provided by a well defined and designed scheme over a period of time, based on principle of equivalence, its difference can be easily spelt out. 34. It is also informed by Shri Sharwan Dogra, learned Advocate General that the details/ drawings for the construction of lay-byes as per Ministrys standard drawings outside the National Highway ROW stands finalized, which shall be shortly sent to the National Highway at the regional office at Chandigarh and application would be sent in time bound manner seeking permission by the Municipal Corporation to the National Highway Authorities and it is also submitted that the Municipal Corporation has spent about Rs. 5 lacs at Tara Devi barrier for raising the walls which work stands completed. 35. It appears that the barriers for the collection of the fee were hurriedly put by raising temporary structure causing hindrance and free flow of the traffic of the National Highway which caused traffic jams on both the sides of the road, which was a matter of concern to daily commuters. 36. Though, we have held that the respondent- Corporation is competent and within its power to collect the fee aforesaid, but for that they cannot add miseries to the general public by traffic jams and waiting for clearance of their vehicles creating ugly scene even to the tourist vehicles entering the State. We also feel and hold that the respondent-Corporation shall have to seek the final permission of the National Highway Authorities and make the entry point barriers hassle free as per their standard specifications. Their agreeing in principle does not mean that the respondent-Corporation is allowed to do whatever they intend to do and can go ahead without providing the requisite space and protection as desired by the National Highway Authorities, who are the owners of National Highways. 37. In view of the above discussions, we direct:- A (1). Their agreeing in principle does not mean that the respondent-Corporation is allowed to do whatever they intend to do and can go ahead without providing the requisite space and protection as desired by the National Highway Authorities, who are the owners of National Highways. 37. In view of the above discussions, we direct:- A (1). The Municipal Commissioner shall visit Tara Devi barrier alongwith Municipal Engineer and inspect the work done at site and confirm the execution of such work awarded to the Contractor and file status report thereof by his affidavit. (2). The Municipal Commissioner shall also inform the Court by filing his affidavit:- (a) how much amount has so far been collected from the entry free; (b) where it has been deposited; and (c) the details of its expenditure if any. B (1) The respondent-Corporation shall submit an application alongwith the plan for seeking permission to the National Highway Authorities within a week to its Regional Office at Chandigarh who shall revert back within ten days from the receipt thereof either sanctioning the plan or return the same with their suggestions and in case the plan is approved, the Corporation shall make the land available, if any required and deposit the amount so required for the construction of lay-byes through State PWD in a time bound manner. (2) However, in the meantime, the respondent-Corporation shall continue to realise the fee through 6th respondent- M/s. V.K. Infrainvest Pvt. Limited in case, the development at site i.e. at Tara Devi has been made as per the specification of the joint Committee of the Engineers mentioned in para-23 ante after their satisfaction by visiting the site within a week from today, as a short-term arrangement, as mutually agreed, further at the same time the 6th respondent is at liberty to lay-out temporary barriers providing separate lanes, as per the spirit of this judgement/ order and after the satisfaction of the Committee aforesaid shall ensure that there is no congestion or traffic jams creating ugly situation at the collection barriers when it starts collecting fee at all the four places and they shall provide a free lane/ passage to the vehicles who are not liable to pay fee or are exempted. (3) The Government/Army vehicles and VIPs entering in the State shall be exempted of such fee. (4) The signage shall be displayed at the appropriate distance and places. (3) The Government/Army vehicles and VIPs entering in the State shall be exempted of such fee. (4) The signage shall be displayed at the appropriate distance and places. (5) Initially the collection barriers shall affix at least one CCTV camera on both lay-byes with traffic light and communication system. C As long terms arrangements, we direct: (a) There shall be CCTV cameras with traffic lighting and communication system with proper marking and communication/ signages displayed. (b) There shall also be Display system on each lane and all other systems as are required under the scope of the project in a time bound manner. 38. Further, the parties are free to make their suggestions by filing supplementary affidavit(s) to improve the scheme for which the levy is being collected. The compliance affidavits be filed by the respondent-Corporation and respondent No. 1-National Highway Authorities and also the Municipal Commissioner, within three weeks and List the matter on 11th June, 2013. However, the interim orders referred above in both the petitions stand modified accordingly. 39. Authenticated copies of this judgement be supplied to the learned Advocate General, learned Central Government Counsel and learned counsel for respondent No.6 by the Court Master of this Court.