Madras High Court
Virudhunagar District Bus Owners ... vs The Government Of Tamil Nadu on 9 April, 2011
Author: A.Arumughaswamy
Bench: A.Arumughaswamy
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09/04/2011 CORAM THE HONOURABLE MS.JUSTICE K.SUGUNA AND THE HONOURABLE MR.JUSTICE A.ARUMUGHASWAMY W.A.(MD).No.41 of 2011 and W.A.(MD).No.42 of 2011 and M.P.Nos.1 and 1 of 2011 Virudhunagar District Bus Owners Association, Rep by its Secretary, No.1/291 Pravin Sarin Complex, Collectorate Post, Virudhunagar 626 002. ... Appellant in W.A.(MD).No.41 of 2011 Madurai District Bus Owners Association, Rep by its President, 155 North Veli Street, Madurai 1. ... Appellant in W.A.(MD).No.42 of 2011 Vs. 1.The Government of Tamil Nadu, Rep by its Secretary, Home Department, Fort.St.George, Chennai 600 009. 2.The Commissioner of Madurai Corporation, Arignar Anna Maligai, Madurai 625 002. ... Respondents in Both Writ Appeals PRAYER Writ Appeals are filed under Clause 15 of the Letters Patent against the Order dated 03.02.2010 made in W.P.(MD).Nos.3161 and 3162 of 2010 on the file of this Court. !For Appellants ... Mr.M.Palani ^For Respondent 1 ... Mr.R.Janakiramulu Special Government Pleader For Respondent 2 ... Mr.M.Ravishankar Standing Counsel :COMMON JUDGMENT
*********************** [Judgment of the Court was delivered BY A.ARUMUGHASWAMY, J] These Writ Appeals are directed against the Common Order dated 03.02.2010 made in W.P.(MD).Nos.3161 and 3162 of 2010.
2. The facts leading to the filing of the present Writ Appeals are as follows:-
(i). The members of the appellants association are stage carriage operators and they are operating small buses either within the District of Virudhunagar or on inter - District route in between Virudhunagar District and Madurai District. The Government had established a new Bus Stand at Mattuthavani, which is situated at a distance of ten Kilometers away from the Central Bus Stand. Thereafter, in order to ease the traffic congestion within the city, an inner ring road was formed on the northern side of National Highway.
(ii). In pursuance of the Government Order issued in G.O.Ms.No.149, Municipal Administration and Water Supply (Mc.II) Department, dated 23.10.2000, the ring road was opened for public and vehicular operation from 01.11.2000 and toll fee was also fixed for using the ring road. The amount incurred for laying down and built up the ring road is stated to be Rs.47.35 crores. Therefore, in terms of the Indian Tolls Act, 1851, the second respondent Corporation was permitted to collect the toll fee. The grievance of the appellants association is that no notification is issued by the first respondent authorizing the second respondent - Corporation to collect the toll fee on the expiry of five years period of notification.
(iii). Aggrieved over the same, the appellants association had filed W.P.(MD).No.3161 and 3162 of 2010 seeking for a Writ of Mandamus forbearing the second respondent Corporation from collecting or demanding the toll fee in terms of the notification, dated 23.10.2000 passed by the first respondent in G.O.Ms.No.149, Municipal Administration and Water Supply (Mc.II) Department, for the stage carriages of the members of the appellants association, who are using inner ring road in Madurai City while operating on their respective routes and further direct the second respondent Corporation to return the toll fee collected from the members of the appellants association from 01.11.2005 to till date with interest accrued thereon.
(iv). A learned Single Judge of this Court, by common order dated
03.12.2010, accepting the arguments advanced by the learned Standing Counsel appearing for the second respondent Corporation, had dismissed the said Writ Petitions on the ground of maintainability of Writ Petitions.
(v). Challenging the said Common Order dated 03.12.2010, the appellants association have come forward with the present Writ Appeals.
3. At the outset, the learned Standing Counsel appearing for the second respondent Corporation has raised a preliminary objection regarding locus standi of the appellants association to file Writ Petitions and it is for the individual operators to challenge the notification, if so advised. In support of his contention, the learned Standing Counsel has relied on the Judgments of the Hon'ble Supreme Court and a Division Bench of this Court in Mahinder Kumar Gupta and others vs. Union of India reported in 1995 (1) SCC 85.
4. The second contention of the learned Standing Counsel is that as per clause 10(a) of the Government Order dated 23.10.2000, the second respondent Corporation is entitled to collect toll fee and the collection of toll fee would be in force for 15 years with an annual rate of 8% for the first five years. Based on the above submissions, the learned Standing Counsel for the second respondent Corporation has prayed for dismissal of the Writ Appeals.
5. The vehement contention of the learned counsel appearing for the appellants association is that the second respondent Madurai Corporation is not entitled to collect toll fee charges, after the expiry of the period of notification, under which, it was conferred with the second respondent Madurai Corporation to collect toll fee. The second respondent Madurai Corporation has exceeded his jurisdiction in demanding and collecting toll fee without any authority of law.
6. The learned counsel for the appellants association has further submitted that unless there is a specific Government Order, the second respondent - Corporation is not competent to collect toll fee charges. In support of his contention regarding maintainability of the Writ Petitions, the learned counsel for the appellants association has relied on a Judgment of the Hon'ble Supreme Court in Confederation of Ex-servicemen Associations and others vs. Union of India and others reported in 2006 (8) SCC 399.
7. We have considered the above rival submissions and perused the records carefully.
8. Since the learned Standing Counsel for the second respondent Corporation has raised a preliminary objection regarding the very maintainability of the Writ Petitions, let us take the same first.
9. Relying on the Judgment, referred to above, the contention of the learned Standing Counsel for the second respondent Madurai Corporation is that the Writ Petitions are not maintainable and it is for the individual operators to challenge the notification and not by the association.
10. The said contention of the learned Standing Counsel cannot be countenanced, since the Hon'ble Supreme Court in the case of Confederation of Ex-servicemen Associations and others vs. Union of India and others reported in 2006 (8) SCC 399, in Paragraph Nos.22 and 23, after having a glance through the Judgment of the Hon'ble Supreme Court in D.S. Nakara v. Union of India reported in 1983 (1) SCC 305, has held as follows:-
"22. We have given anxious and thoughtful consideration to the rival contentions raised by the parties. So far as the preliminary objection regarding maintainability of the petition is concerned, it may be stated that the petitioner has asserted in the petition that it is a confederation of five ex- servicemen associations formed in furtherance of a common cause. The aims and objects of the Confederation have also been annexed as set out in the MoU (Annexure P-1). In the affidavit-in-reply filed by the Under-Secretary working with the Ministry of Defence, it was stated that he is "not aware" of the existence of the petitioner organisation. He, however, stated that the organisation "does not seem" to be a registered body to represent the cause of ex-servicemen. The rejoinder-affidavit unequivocally states that the objection raised by the Union of India is incorrect. The Confederation was registered under the Societies Registration Act, 1860. Likewise, all associations which constitute the Confederation are similarly registered individually. It is further stated that the Air Force Association and the Indian Ex-Services League are even recognised by the Ministry of Defence, Union of India. It, therefore, cannot be said that the petitioner Confederation is not registered and the petition filed is not maintainable. In view of the fact that some of the associations have been recognised even by the Ministry of Defence, the deponent ought not to have raised the objection regarding maintainability of the petition without ascertaining full facts and particulars. We leave the matter there holding the petition maintainable.
23. We are also satisfied that the contention of the respondent is even otherwise not tenable at law. A similar point came up before a Constitution Bench of this Court in the well-known decision in D.S. Nakara v. Union of India. There also, one of the petitioners was a society registered under the Societies Registration Act, 1860. It approached this Court for ventilating the grievances of a large number of old and infirm retirees who were individually unable to approach a court of law for redressal of their grievances. This Court held locus standi of the society "unquestionable". In the present case, apart from the fact that a larger public issue and cause is involved, even individually, all associations are registered associations of ex-servicemen. The petitioner Confederation representing those associations which is also registered, can certainly approach this Court by invoking the provisions of Part III of the Constitution. We, therefore, reject the preliminary objection raised by the respondents and hold that the petitioner Confederation has locus standi to file the petition."
11. In the said Judgment, the Hon'ble Supreme Court has held that the petitioner confederation representing associations, which are registered, can certainly maintain the Writ Petitions invoking the provisions of Part III of the Constitution of India. Therefore, the Judgment, Mahinder Kumar Gupta's case, relied on by the learned Standing Counsel for the second respondent Corporation has no application to the facts of the present case, since in the said Judgment, the Hon'ble Supreme Court had dismissed the Writ Petitions on the sole ground that the association cannot file a Writ Petition, as it has no fundamental right under Article 32 of the Constitution of India. In the case on hand, the appellants association have not approached this Court under Article 226 of the Constitution of India alleging that their fundamental rights are affected, because of the collection of toll fee by the second respondent. But, their grievance is that though the period of notification has expired, the second respondent Corporation has been collecting the toll fee without any authority of law or prior approval from the first respondent.
12. In view of the above categorical pronouncement of the Hon'ble Supreme Court, the preliminary objection raised by the learned Standing Counsel for the second respondent Corporation that the Writ Petitions are not maintainable is unsustainable and the Writ Petitions, in our considered view, are maintainable in law.
13. Now, coming to the facts of the case, it is not in dispute that due to congestion in traffic, a new integrated Bus Stand was established at Mattuthavani, Madurai District, Madurai, which is situated at a distance of 10 Kilometers away from the Central Bus Stand and the inner ring road was also formed on the northern side of Madurai for easing the congestion in traffic. In pursuance of the Government Order issued in G.O.Ms.No.149, dated 23.10.2000, the ring road was opened for the use of the vehicles with effect from 01.11.2000. As per the said Government Order, the second respondent Corporation is entitled to collect toll fee charges from 01.11.2000 to 31.10.2005. The said Government Order dated 23.10.2000 authorizes levy of tolls on motor vehicles for the use of newly built inner ring road by the Madurai City Municipal Corporation. For better appreciation, the relevant portion of the said Government is extracted here-under:-
"10. Based on the details mentioned in paragraph 9 above and as per Section 2 of the Indian Tolls Act 1851 (Central Act VIII of 1851), as amended by Tamil Nadu Ordinance 8 of 2000, the Government, after careful consideration of the proposal, received from the Commissioner of Madurai Corporation in this regard, hereby pass the following orders:-
(a). To collect the Toll Rates as fixed under Weighted Average Method an as revised and accepted by the Council of Madurai Corporation in its resolution No.225, dated 09.06.2000 and as mentioned in the Schedules of Appendix to this order for the different stretches of motor vehicles passing through the newly built inner Ring Road connecting Melur-Sivaganga-Ramanathapuram-Nedungulam-
Aruppukkottai-Kanyakumari roads. The collection of tolls shall be in force for 15 years with an annual increase @ 8% for the first five years. A decision will be taken later whether the annual increase be continued at the same rate of 8% even after five years.
(j). As the newly built Inner Ring Road and the Bridges are owned by the Corporation, the responsibility for taking necessary action to collect the Tolls is vested with Corporation alone so as to enable it to repay its loan within the stipulated period.
(k). Tolls to be collected from the 6th year for the remaining period of 10 years shall be notified based on the decision on 10(g) above."
14. A reading of the above portion of the said Government Order would make it manifestly clear that in the year 2000, the Government had issued the said order authorizing Madurai Corporation to collect toll fee from 01.11.2000 to 31.10.2005 for the use of newly built 27.20 Kilometers inner ring road and the second respondent Corporation was permitted to collect toll fee for 15 years with an annual increase at the rate of 8% for the first five years and after five years, depending upon the potentially of the traffic and annual income, 8% increase can be made and such a decision will be taken by the Government after five years. However, after the expiry of the period of the said notification, the second respondent - Corporation has been collecting the enhanced toll fee, which is against the provisions of law. No person is entitled to collect any amount from the public without any proper authority of law.
15. Admittedly, after filing of the said Writ Petitions, the Government had issued another ratification Order in G.O.Ms.No.29, Municipal Administration and Water Supply (MN-2), Department, dated 31.01.2011, thereby authorizing the second respondent Corporation ratifying the collection of toll fee from 01.11.2005 to 31.10.2010 with additional rate of 8% charges. From the said Government Order dated 31.01.2011, it is crystal clear that it covers the period from 01.11.2005 to till 31.10.2010 and the second respondent Corporation has not applied for extension of the period of notification dated 23.10.2000 for collection of toll fee. However, by issuing the said Government Order, the first respondent has ratified the action of the second respondent Corporation thereby ratifying the collection of toll fee with increase of 8%.
16. As we have already discussed and as per the extracted portion of the Government Order, the collection of toll fee shall be in force only for a period of 15 years with an annual increase at the rate of 8% for the first five years and a decision will be taken as to whether the annual increase could be continued at the same rate of 8% even after five years. Admittedly, the second respondent Corporation has not applied for extension of the period of notification and the Government has not authorised to collect toll free at the new rate. However, from the arguments advanced, we are able to see that after ratification, i.e., from 01.11.2010, a new tariff has been fixed by the Corporation. However, for fixing the new tariff, the second respondent Corporation has not obtained any permission from the Government. Therefore, in our considered opinion, the earlier toll fee already fixed with increase in one stage of 8% levied and collected by the second respondent Corporation cannot be said to be illegal, in view of the ratification given by the Government in G.O.Ms.No.29, Municipal Administration and Water Supply (MN-2), Department, dated 31.01.2011. However, the second respondent Corporation is entitled to collect toll fee, which was regularized by the Government in G.O.Ms.No.29, Municipal Administration and Water Supply (MN-2), Department, dated 31.01.2011 from 01.11.2010, till it is enhanced by the Government. It is made clear that Madurai Corporation is entitled to collect toll fee as on 31.10.2005 with 8% increase.
17. From the perusal of the records, it is also seen that even though period of notification has been expired in the year 2005 itself, the second respondent Corporation has not taken any steps to obtain approval from the Government as required under law. However, the first respondent has ratified the action of the second respondent - Corporation in collecting enhanced toll fee for a further period of five years i.e., from 01.11.2005 to 31.10.2010 by issuing separate G.O.Ms.No.29, Municipal Administration and Water Supply Department, dated 31.01.2011. In our considered opinion, such action of the second respondent Corporation in collecting toll fee without prior approval from the first respondent is a depreciable one. Anyhow, now the same method has been adopted by the second respondent Corporation for ratification as well as permission. It is expected that at least in future, the second respondent Corporation will get prior permission from the first respondent well in time to enhance the collection of toll fee or approval of the same.
18. The purpose of construction of over bridges is to avoid the congestion in the city. In the case on hand, for laying of the ring road, the expenditure was stated to be Rs.47.35 crores. Therefore, in our considered opinion, the collection of toll fee from the public, who use such over bridge, cannot be held to be against the provisions of law. But, before enhancing the toll fee, prior approval from the Government has to be obtained. Now the Municipal Corporation has already applied to the Government for ratification and for extension of the period from 01.11.2010. Until it is approved, it is made clear that the second respondent is permitted to collect the toll fee as on 31.10.2005 with 8% increase until further orders from the Government, with immediate effect.
19. For the foregoing reasons and discussion, we are of the considered view that the order of the learned Single Judge cannot be sustained. Therefore, the order dated 03.02.2010 made in W.P.(MD).No.3161 and 3162 of 2010 is set aside and the Writ Appeals are allowed to the extent indicated above. No costs. Consequently, connected Miscellaneous Petitions are closed.
NB To
1.The Secretary, The Government of Tamil Nadu, Home Department, Fort.St.George, Chennai 600 009.
2.The Commissioner of Madurai Corporation, Arignar Anna Maligai, Madurai 625 002.