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Above: A toll plaza run by the National High­ways Authority of India in Karnataka/Photo: skyscrapercity.com

Lawyers’ associations in the state have filed a petition in the Karnataka High Court demanding that advocates and farmers be exempted from paying at NHAI-run toll plazas

By Stephen David in Bengaluru

Highway toll plazas in Karnataka—part of the 400 or so plazas run un­der the National High­ways Authority of India (NHAI)—may soon be forced to add two more “special” categories to their exemption list. That is, if a PIL filed by a group of lawyers in the Karnataka High Court finally has its way.

A division bench of Chief Justice Dinesh Maheshwari and Justice S Sujatha heard the PIL filed by the Karnataka State Advocates’ Association Federation and the Advocates’ Association, Bengaluru. The PIL questioned the legality of amending the National Highways (NH) Act, 1956, which allowed privatisation in the construction and maintenance of national highways and collection of user fees and wanted exemption for farmers and advocates from paying toll.

Following the submissions from the lawyers’ groups, the bench sought, on November 20, 2018, a response from NHAI. The matter will come up for hearing on December 19, 2018.

The PIL stated that Section 8A of the NH Act granted the government the power to enter into agreements with private parties for the purpose of developing and maintaining national highways.

However, it contended that this “unbridled, excessive delegation of power” without any limit on privatisation violated the mandate set out by the NH Act.

Toll fee collection—around Rs 22,800 crore last year across India’s 400-odd tolls—amounts to double taxation on motor vehicles as the centre is already collecting cess under the Central Road Fund Act, 2000, for the development of highways. Further, the right to commute from one place to another is a funda­men­tal right as held by the Supreme Court.

The petition claimed that toll fees on national highways are “exorbitant and fixed unscientifically”. Citing grounds for seeking exemption, the PIL stated that “advocates are the champions/defenders of the rule of law, and that it is aptly said that in justice delivery system, advocates and judges are the two wheels of the same chariot…the advocates render valuable social functions and duties…imposition of any restrictions including payment of the toll will come in the way of their exercise of duties as part of the judiciary and when Judges are exempted, public servants are exempted, there lies no intelligible differentia as to why Advocates has not to be exempted as they essentially form part of the system rendering the same or more services…”

The advocates said that they render valuable social functions in the process of dispensation of justice in the justice delivery system while asking to be considered as a special category on the lines of judges. The PIL prayed that Sections 8A and 8(1) of the NH Act, as well as Rules 3(4), 8(3) and 11 of the NH Fees (Determination of Rates and Collection) Rules, 2008, be declared ultra vires the Constitution.

Pressure groups had sought help from the courts earlier too. The Indian Tolls (Army & Air Force) Act, 1901, for example, exempts toll charges for all members of the armed forces. But a government road ministry circular restricted that to only those “on duty”, leading to toll operators sometimes shaming defence personnel into showing their ID cards or barking at them to pay toll.

The transport ministry cited a law ministry note referring to Section 3(b) of the Act to justify restricting exemption to only those “on duty” but it was later clarified that the condition applied to Territorial Army and National Cadet Corps (NCC) personnel.

With defence forces and the ministry mandarins gridlocked in the interpretation, the Supreme Court batted for the defence forces, praising their “extreme sacrifices” towards the nation. In case of any doubt with respect to the nature of their official duty, the benefit of doubt must appropriately be given to the armed personnel, the top court said.

Now, in a double blessing, not only can armed forces personnel go toll-free but the toll operators also have to salute and honour them.

Currently, toll exemption covers paramilitary forces, gallantry award winners and emergency vehicles like ambulances, fire tenders, funeral vans and physically challenged persons with more than 40 percent disability.

India has the second largest road network at an incredible 5.4 million km, and a tenth of that network comprises the national highways, including those under construction. National highways are the lifeline of the country and are used to ferry about 50 percent of goods across the country.

NHAI is not a profit-making central public sector undertaking. It is a non-profit, charitable trust that pays no income tax. NHAI, constituted by an act of parliament, the 1988 NHAI Act, is meant to develop, maintain and manage the national highways and other highways vested in or entrusted to it by the Government of India.

All the toll collections made by the NHAI, negative grant, premium, etc, are deposited in the Consolidated Fund of India on a daily basis. The NHAI is the executing agency of the Government of India for the development and maintenance of national highways and other activities connected therewith or incidental thereto.

A parliamentary standing committee note observed that the NHAI has no manufacturing/trading/operating expenses and it runs from funds allocated in the Union budget. Since the NHAI’s key activities are to develop, maintain and manage national highways, all its expenses over income are capitalised as per standard accounting processes.

In 2014, when the parliament’s watchdog, CoPU—Committee on Public Undertakings—asked the ministry of road transport and highways to take NHAI under its purview, it was rebuffed on the ground that NHAI is not a revenue earning public sector undertaking.

The Union Minister for Road Transport and Highways, Nitin Gadkari’s, recent statement in parliament that it will be mandatory for all new vehicles to have factory-built radio frequency fast tags is expected to ease the bottlenecks at toll plazas, which, according to a study, accounts for Rs 60,000 crore in economic losses a year.

In August 2018, Prime Minister Narendra Modi chaired a high-powered road meeting of infrastructure stakeholders, where one of the issues discussed was the need to put the brakes on toll-free passage. People have manually manipulated the exemption list burning a hole in toll collections. Now, the government’s aggressive move to push smart tag vehicles in the fast lane will bring relief to both highway operators and the NHAI. To stave off freeloaders, “zero transaction tag” will be patched on exempted vehicles. Each MP, for example, will get only two “zero transaction tags”, making it tough to hoodwink plaza gatekeepers.

Even as NHAI prepares its response to the Karnataka High Court, one is reminded of what Gadkari said in the parliament in response to an MP seeking toll-free rides for all users that money to build roads comes from toll collection. No toll, no infrastructure.

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