Karnataka High Court
Narasimha Vasudeva Mahale And Ors. vs Executive Engineer, National Highway ... on 13 September, 2000
Equivalent citations: AIR2001KANT95, ILR2000KAR4084, AIR 2001 KARNATAKA 95, 2000 AIR - KANT. H. C. R. 1 (2000) ILR (KANT) 4084, (2000) ILR (KANT) 4084
Author: Ashok Bhan
Bench: Ashok Bhan, R. Gururajan
JUDGMENT
Ashok Bhan, Ag. C.J.
1. Aggrieved by the order of the Single Judge dismissing the writ petitions thereby upholding the notification imposing toll tax on the' vehicles crossing Sharavati Bridge issued by the respondent dated 6-8-1997, the appellants have filed the present appeal.
2. Appellants are the residents of Honnavar and other nearby villages and are carrying on respective business in agriculture as mentioned in the cause title. Appellants own vehicles and are required to cross Sharavathi Bridge constructed on National Highway No. 17 across river Sharavathi at 197 K.M. The Bridge in question had been constructed by Government of India through its agency Central PWD on National Highway No. 17 at 197 K.M. The two banks of Sharavathi river at Honnavar are, on one side it is Honnavar and on the other side it is Kasargod and other villages. The bridge is the longest bridge in the State and has been a major link on National Highway No. 17. National Highway No. 17 runs through the coast of river Sharavathi which flows from Western Ghats and joins sea at Honnavar. The construction of the bridge was commenced way back in 1959 at a considerable cost and was completed in the year 1971. The bridge was constructed and completed at the cost of Rs. 85.00 lakhs. Prior to the construction of the bridge at Honnavar on river Sharavathi, commuters and people desirous of crossing Sharavathi river to reach the other side had to make use of the barge provided in Sharavathi river or boats.
3. Respondents issued a notification annexure-A stating that vehicular traffic on Sharavathi bridge with effect from 6-8-1997 would be allowed in terms of the notification annexure-A which has imposed toll on all vehicles passing through the bridge at the rates specified in the Notification. Notification annexure-A has been issued on the basis of Government of India notification dated 19-2-1992 and 27-4-1995 which notification/circulars are issued under the provisions of Section 9 of the National Highways Act 1956, (hereinafter referred to as 'the Act).
4. According to the appellants notification Annexure-A imposing toll fee has been issued by the respondent on the assumption that the bridge constructed across Sharavathi river is a permanent bridge. Appellants question the notification issued by the State Government on the ground that since the Sharavathi Bridge was constructed earlier to 1971, and the cost of construction was less than 100 lakhs, they are not exigible to pay the toll fee as notified in the notification dated 6-8-1997. In support of their stand, they entirely depend on the definition of expression 'permanent bridge' occurring in the National Highways (fees for use of permanent bridges) Rules, 1992.
5. The appellants filed the writ petition for a declaration that the owners of the vehicles crossing Sharavathi Bridge on National Highway No. 17 across river Sharavathi at 197 k.m. cannot be asked to pay the toll fee as notified in the notification dated 6-8-1997.
6. Learned Single Judge dismissed the writ petition without taking the statement of objections on record by the respondents. As the petition was disposed of without taking the statement of objections by respondent on record, we permitted the respondents to file their affidavits in support of their stand.
7. Under the National Highways Act, 1956, all national highways shall vest in the Union and for the purposes of the Act 'Highways' include all lands appurtenant thereto whether demarcated thereto or not, all bridges, culverts, tunnels, causeways, carriage ways and other structures constructed on or across such highways. Section 7 provides that the State may by notification in the Official Gazette levy fees at such rates as may be laid down by rules made in this behalf for services or benefits rendered in relation to the use of ferries, temporary bridges and tunnels on national highways.
8. The only question which requires to be determined is whether Sharavathi Bridge is a permanent bridge as defined under the Act and the Rules?
9. 'Permanent bridge' has been defined in Rule 2 (j) which reads as under :
" 'Permanent bridge' means a bridge with permanent structure the cost of which includes the cost of bridge proper, approach roads, guide bunds and protective works, excluding the cost of toll booths which is more than rupees 25 lakhs and upto rupees 100 lakhs for each, completed and opened to traffic on or after first day of April, 1976 but before the first day of May, 1992 and thereafter all the bridges costing more than Rs. 100 lakhs on National Highway, which shall be notified separately for levy of fee collection."
10. It would be seen from the definition of permanent bridge that it means a bridge with permanent structure the cost of which is more than Rs. 25.00 lakhs and upto to Rs. 100.00 lakhs completed and opened to traffic on or after first day of April, 1976 but before the first day of May 1992 and thereafter all the bridges costing more than Rs. 100 lakhs and opened to traffic after first day of April, 1976. The case of the appellants is that since the cost of construction of bridge is Rs. 85.00 lakhs only and it became operational in the year 1971, it is not a permanent bridge as defined in the Rules and therefore the respondent authority could not have issued the notification directing the owners of the vehicles who cross the Sharavathi Bridge to collect toll tax.
11. In the affidavit filed by the respondent before us, it is admitted that Sharavathi Bridge was constructed and completed during 1971. It was thrown open for vehicles in the year 1971. The total cost of construction was Rs. 85.00 lakhs at that time. The bridge consists of 34 span of about 30 intrs each and two rider span of 4.93 mtrs, at the end. The length of the entire bridge is about 1048 mtrs. The Super structure of the bridge consists of 5 numbers pre-cast pre-stresscd girder 25 mtrs in each span. It is submitted that consequent on the collapse of Mandovi Bridge in Goa during July, 1986, the Ministry of Surface Transport, Government of' lndia desired that all the bridges constructed at the coastal area using the technology like the one which the Sharavathi Bridge was built, are to be examined and a detailed inspection of all the bridges and its components has to be carried. Accordingly the inspection of Sharavathi Bridge was also conducted and investigation of the superstructure was made during June, 1987 by a technical Institute i.e., Central Electro Chemical Research Institute, Karaikudi. After conducting the inspection, the Central Electro Chemical Research Institute submitted its report during May 1989. Report revealed that two girders in span 1 were cracked. One pre-stressed girder was exposed severely in rusted condition. The bridge was inspected by Superior officers of Ministry of Surface Transport during August 1990. Taking into consideration overall situation of the bridge, it was suggested to impose speed and load restriction as the bridge was unsafe for carrying heavy loads. Later during 1991 realising the condition of the bridge, as intimated by the Chief Engineer, National Highways, heavy vehicular traffic was ordered to be prohibited on this bridge from July, 1991 onwards. Thereafter a detailed enquiry with regard to the strengthening/rehabilitation of the bridge in question was made and it was decided to engage the services of consultants having foreign tie up for in- depth investigation and to suggest alternative methods for rehabilitation of the existing bridge. Accordirigiy M/s. STUP Consultants, Bombay along with M/s. ACER FREEMAN FOX (U.K.) was selected. An agreement was finalised during December, 1991 to go ahead with investigation of consultancy work. The consultants after conducting a detailed invest igation and after conducting laboratory tesis both in India and abroad, submitted their reports during August, 1992 with alternative suggestions for the rehabilitation of the bridge.
The ministry of Surface Transport after examining the proposals of the consultants, gave concurrence to the consultants to go ahead with the detailed design, preparation of the cost, estimates, tender document, prequalification documents etc., for the purpose of rehabilitation of the bridge. Initially in the year 1993 estimate of rehabilitation of the bridge was fixed at Rs. 436.45 lakhs. The cost of construction was amended to 675 lakhs in the year 1995. Ultimately the same was revised to a sum of Rs. 1053.86 lakhs. Construction work was taken and the bridge was completed at a total cost of Rs. 1053.86 lakhs. After rehabilitation/ strengthening of the work was concluded the full pledged traffic was allowed to ply from August 1997. According to the respondents after taking into consideration the cost of rehabilitatibn of the bridge, the authorities decided to levy Bridge toll in exercise of their powers under the provisions of National Highway (Fees for Use of Permanent Bridges) Rules, 1992 as superseded by National Highway (Highway Section and Permanent Bridge and Public Funded Projects) Rules, 1997. According to them taking into consideration the cost and the fact that the bridge was reopened in the year 1997 after its rehabilitation, the bridge in question is a permanent bridge. It falls within the definition of the permanent bridge as defined in Rule 2 (j) of the Act.
12. Bridge when it was opened for the public for the first time in the year 1971 had costed Rs. 85.00 lakhs. If that price is to be taken then the bridge in question would not be a permanent bridge as per the definition given in Rule 2 (j) of the Act. And in case the cost incurred in the year 1995-96 is to be added to the cost of the original bridge then the bridge in question would be a permanent bridge.
13. The question that falls for consideration is as to whether the cost of construction incurred in the year 1995-96 is to be added to the total cost of the bridge or not?
14. It would be seen from the stand taken by the respondent which has been reproduced in extenso in the earlier part of the judgment that the original bridge had become unserviceable and it was closed for the heavy traffic in the year 1991. After detailed enquiry it was decided to strengthen/rehabilitate the bridge. Services of foreign consultants were engaged and then the bridge was constructed at the overall cost of RS. 1053.86 lakhs. Keeping the fact in mind that the bridge constructed earlier had become unserviceable and closed to the heavy traffic, it would be deemed as if earlier bridge was no longer in existence. The Bridge was constructed using new technology at a huge cost of Rs. 1053.86 lakhs. For all intends and purposes it is a new bridge. After its reconstruction the bridge was opened to the traffic for the light as well as the heavy traffic. The bridge which had become unserviceable and thereafter closed for heavy traffic could not be taken to be the bridge in use. We are therefore of the opinion that the bridge which has been strengthened/rehabilitated is a new bridge for all intends and purposes. The cost of construction is much more than Rs. 100 lakhs and it was opened to the heavy traffic in the year 1997 and therefore it would fall within the definition of permanent bridge as defined in Rule 2 (j). Respondents therefore had the power and the jurisdiction to impose the toll fee under the Act and Rules.
15. Counsel for the appellant relying upon the judgments of the Privy Council in Quebec Railway v.Vandry, AIR 1920 PC 181, J. K. Cotton Spinning & Weaving Mills Co. Ltd. v. State of U.P., and Shivram v. Radhabai, , argued that where the language of the statute is clear and unambiguous then it has to be given its plain meaning and help from the external source cannot be taken for Interpreting the same. According to him the words used in the statute that the reconstructed bridge would amount to carrying out the repairs to the old bridge and therefore its year of opening and its cost have to relate back to the year 1971 only. The points raised by the counsel for the appellant does not arise as we have come to the conclusion that the bridge which has been opened to traffic after its rehabilitation amounted to the construction of a new bridge. Cost of construction as well as its opening therefore relate to the year 1995-96 onwards. The judgment cited before us would have no relevance in view of the findings recorded by us.
16. Another point raised by the counsel for the appellant is that the impugned notification is discriminatory in nature as the vehicles having symbols of V.I.P. are exempted from toll tax. Cars of President, Vice President, Central and State Ministers/ Leaders of Opposition in Lok Sabha/Rajya Sabha/State Legislatures having States or Cabinet Minister/Covernors/Lt. Governors/ Executive/Councillors/Speakers/Chairman of Central and State Legislatures/Foreign dignitaries on State Visit/Foreign diplomates stationed in India, have been exempted. According to him it amounts to discrimination. We do not agree with this view. The vehicles which have been exempted from payment of toll tax are of high dignitaries of the Government of India and the State. For more than one reasons these vehicles could have been exempted from payment of toll tax. One of them could be the security of the high dignitaries travelling in the cars. The vehicles in which the dignitaries travel which have been exempted from payment of toll tax are a class apart and therefore the classification made is reasonable and the same docs not amount to hostile discrimination as argued by the counsel for the appellant.
17. For the reasons stated above we do not find any merit in these appeals and dismiss the same with no order as to costs.