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2014 Supreme(Mad) 4562
IN THE HIGH COURT OF MADRAS (MADURAI BENCH)
R. Mahadevan, J.
Virudhunagar District Bus Owners Association - Appellant
Vs.
The Government of Tamil Nadu and Ors. - Respondents
W.P. (MD) Nos. 6216 and 6217 of 2011 and M.P. (MD) No. 2 of 2011
Decided On : 31-10-2014
Advocate Appeared:
For the Appellant : M. Palani
For the Respondents: T.S. Mohammed Mohideen
Headnote:
Constitution of India, 1950 – Article 30 – Indian Tolls Act, 1851 – Section 2 – Writ of Certiorarified Mandamus – Writ petitions have been filed seeking a Writ of Certiorarified Mandamus to call for the records of the first respondent made under G.O.Ms. No. 29, Municipal Administration and Water Supply (MC II) Department, dated 31.01.2011, and quash the same and direct the second respondent to refund the amount collected from the members of the petitioner Association from 01.12.2005 till date and further forbear the second respondent from collecting any toll fee for using the mechanically propelled vehicle for using inner ring road in Madurai city by the members of the petitioner Association. – Since the issue involved in these writ petitions is similar, both the writ petitions are taken up together for hearing and disposed of, by this common order. – Held, Court certainly has powers to order refund of the amount collected without authority, however, considering the facts of the present case, this Court is not inclined to do so as the respondents are entitled to collect toll charges for 15 years from 1.11.2000 or until closure of the debts incurred for construction. – Hence, the plea of refund is rejected. – It is also pertinent to mention here that even in G.O.Ms. 15 dated 29.01.2014, where the same rate of increase has been decided to be extended till 31.10.2014, there is a non-application of mind as well as purpose of levy has not been adhered to. Ratification of an illegal act performed in violation of procedures prescribed under law is a serious threat to Rule of Law. – It would lead to lawlessness permitting violation of law at many levels and would also pave way for corruptions. – In the result, both the writ petitions are partly allowed and the impugned notification in G.O.Ms. No. 29, Municipal Administration and Water Supply (MC II) Department, dated 31.01.2011, stands quashed. – Further, the 2nd respondent is directed to furnish the necessary particulars to the first respondent regarding the loan availed from TNUDF, private parties, the date of closure of the loan with TNUDF, interest paid to TNUDF and private parties, period during which double interest was paid and the amount of excess interest paid, average collection between 2000 to 2005, 2005 to 2011 and from 2011 onwards, within a period of two weeks from the date of receipt of a copy of this order and the 1st respondent shall evaluate the same and fix the rate, keeping in mind the fact that the intention can only be to clear the debts and not to use it as a tool for generating revenue to the 2nd respondent, within a period of four weeks thereafter, taking note of the fact that this order only effectually extends the time for publication of the notification for the period between 1.11.2014 to 31.10.2015 in the peculiar circumstances. – If factually, the loan had been cleared long back, the 1st respondent shall publish a notification to that effect. – If the loan has not been discharged, the 1st respondent shall continue to collect at the existing rate until the fresh notification is published within six weeks. – If no notification is published within six weeks, the 2nd respondent shall not be entitled to collect the toll fee. – Writ Petitions Partly Allowed
R. Mahadevan, J.
1. These writ petitions have been filed seeking a Writ of Certiorarified Mandamus to call for the records of the first respondent made under G.O.Ms. No. 29, Municipal Administration and Water Supply (MC II) Department, dated 31.01.2011, and quash the same and direct the second respondent to refund the amount collected from the members of the petitioner Association from 01.12.2005 till date and further forbear the second respondent from collecting any toll fee for using the mechanically propelled vehicle for using inner ring road in Madurai city by the members of the petitioner Association. Since the issue involved in these writ petitions is similar, both the writ petitions are taken up together for hearing and disposed of, by this common order.
2. Brief facts necessary for the disposal of these writ petitions, are as follows:
2.1. The members of the petitioner Associations are the stage carriage operators operating either within Virudhunagar District or on inter-district route between Madurai District and Virudhunagar District. The Government had established an Integrated Bus Stand at Mattuthavani, Madurai, and an inner ring road had been formed on the northern side of Madurai, to case the traffic congestion and it was opened for public and vehicular operation from 01.11.2000, by virtue of G.O.Ms. No. 149, Municipal Administration and Water Supply (MC. II) Department, dated 23.10.2000 and toll fee was fixed for using the said road. According to the petitioners, no notification was issued by the first respondent authorizing the second respondent Corporation to collect the toll fee on the expiry of five years period of notification. Challenging the same, the petitioners filed W.P.(MD) Nos. 3161 and 3162 of 2010 seeking a writ of Mandamus to forbear the second respondent Corporation from collecting or demanding the toll fee in terms of the notification, dated 23.10.2000. This Court, by common order dated 03.12.2010, dismissed the said writ petitions. Aggrieved over the same, the petitioners filed W.A.(MD) Nos. 41 and 42 of 2011 before this Court. Pending the said writ appeals, the first respondent had ratified the collection of toll for the period from 01.12.2005 to 31.10.2010, by G.O.Ms. No. 29, Municipal Administration and Water Supply (MC II) Department, dated 31.01.2011. However, this Court allowed the writ appeals, by setting aside the common order passed by the learned Judge of this Court. The present writ petitions have been filed challenging the ratification made by the first respondent.
2.2. In the counter affidavit filed by the second respondent, it is contended that as per the clause 10(a) of the Government Order dated 23.10.2000, the second respondent Corporation is entitled to collect toll fee and that the collection of toll fee would be in force for 15 years with an annual rate of 8% for the first five years. There is no statutory prohibition for giving retrospective approval by the Government towards the collection of toll fee by the second respondent Corporation and further, the Government had passed G.O.Ms. No. 15, Municipal Administration and Water Supply (MC II) Department, dated 19.01.2014, granting permission for collection of toll fee upto 31.10.2014 with increase of 8% and therefore, the second respondent prayed for the dismissal of the writ petition.
3. Mr. M. Palani, learned Counsel for the petitioners submitted that the ratification given by virtue of the impugned Government Order in G.O.Ms. No. 29, Municipal Administration and Water Supply (MC II) Department, dated 31.01.2011, is not tenable in the eye of law and that the same could not be given retrospective effect and having failed to obtain prior approval of the Government, the second respondent Corporation had erred in collecting the toll fee without any authority of law and therefore, the impugned order passed by the Government warrants interference at the hands of this Court.
4. He further contended that though the Hon'ble Divisi
