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Tuesday, October 28, 2014

Some more light on the attempted illegal withdrawal of toll tax exemption from serving defence personnel

This relates to the attempt to illegally withdraw toll tax exemption to serving defence personnel recently discussed on this blog on 06 August 2014. 

A distorted version of a letter endorsed by me to the Minister of Road Transport & Highways on the said subject is doing the rounds on social media. 

For the sake of transparency, and to put the issue in the correct perspective, the complete letter is reproduced below.

Hope this clarifies all doubts on the subject.

* * *

Sh Nitin Gadkari
Minister of Road Transport & Highways
Transport Bhawan
1, Parliament Street, New Delhi- 110 001

                                                                                                            21 Oct 2014

ERRONEOUS OFFICE MEMORANDUM DATED 17 JUNE 2014 ISSUED BY THE MINISTRY OF ROAD TRANSPORT AND HIGHWAYS BASED ON FACTUALLY AND LEGALLY INCORRECT LEGAL ADVICE TENDERED BY AN ASSISTANT LEGAL ADVISER OF THE MINISTRY OF LAW AND JUSTICE RESULTING IN WITHDRAWAL OF TOLL-TAX EXEMPTION FROM SERVING DEFENCE PERSONNEL

Dear Minister,

1.           The current Government is known to be inclined towards the betterment of the armed forces and looking after their needs and requirements. It is indeed satisfying that the Prime Minister has made his sensitivity known publicly towards the issues related to the men and women in uniform.

2.           Unknown to you however, your Ministry has recently issued a letter (OM No H-24030/32/2014-(Toll) dated 17 June 2014) in the garb of a clarification under the RTI Act whereby an attempt has been made to nullify and withdraw the exemption from toll tax available to ‘on duty’ and ‘off duty’ serving personnel of the defence services under the provisions of the Indian Tolls (Army & Air Force) Act, 1901 and various notifications and letters/OM issued on the subject from time to time and also decisions of Hon’ble Constitutional Courts.

3.          What is more surprising is that the letter has been issued on the basis of an incorrect and patently wrong legal advice by a junior level staffer of the Department of Legal Affairs of the Ministry of Law & Justice (MoLJ) whereas the same aspect had been clarified and approved at Secretary level of both your Ministry as well as MoLJ in the past. It is also not understood as to how an attempt could be made to nullify an existing dispensation and that too in an ambiguous manner by way of a letter dealing with an RTI query.

4.         A detailed letter on the subject highlighting the correct legal position under law addressed by the undersigned to the Secretary of your Ministry as well as Secretary Department of Legal Affairs, MoLJ is enclosed herewith for your immediate necessary action.

5.            Needless to state, it is requested that OM dated 17 June 2014 may be immediately withdrawn since the same is not only based on incorrect legal and factual appreciation of the Indian Tolls (Army & Air) Force Act, 1901, but is also in direct contravention of the notifications, letters and clarifications issued by the MoRTH in conjunction with MoLJ and law as affirmed by the Hon’ble Supreme Court of India. Toll exemption to defence personnel is available not by way of benevolence or a welfare measure but flows from a legislative Act which in turn was incepted to cater to the frequent movement of members of the forces and their families all over the country. It is also sincerely hoped that your officers keep the Minister in loop in the future before issuing any such letter which may have the effect of negatively altering public policy or the morale of the armed forces.
                                                                                                            Thanking You
                                                                                                             Sd/-

* * *

                                                                                                           
Secretary
Ministry of Road Transport & Highways
Transport Bhawan
1, Parliament Street
New Delhi- 110 001

Secretary
Department of Legal Affairs
Ministry of Law & Justice
Shastri Bhawan
New Delhi- 110 001

                                                                                                               21 Oct 2014


* * *

1.      This has reference to OM No H-24030/32/2014-(Toll) dated 17 June 2014 issued by the Ministry of Road Transport & Highways (MoRTH) based on Legal Advice No FTS-48/JS&LA(SKM)/2014 dated 06 June 2014 tendered by an Assistant Legal Adviser of the Department of Legal Affairs (DoLA), Ministry of Law & Justice (MoLJ) vide which a clarification has been issued ostensibly in the garb of some reply to an RTI query vide which it has been stated in a roundabout manner that personnel of the defence services are not entitled to toll exemption when not ‘on duty’.

2.       Before touching upon the merits of the legal advice by the Assistant Legal Adviser of the DoLA/MoLJ, it would be worthwhile to mention here that the ibid matter based on the provisions of the Indian Tolls (Army & Air Force) Act, 1901, has been fully deliberated upon earlier by the MoRTH at the highest level in conjunction with the MoLJ and has also been a matter of litigation which went till the Hon’ble Supreme Court. However, the entire earlier correct legislative, legal and judicial position has been attempted to be negated by the issuance of the ibid OM dated 17 June 2014. Before proceeding further, the provisions of MoRTH Letter No NH-12037/278/2003/PB/NH-1 dated 12 November 2003 (See Appendix A) are brought to your notice, the relevant extract of which is quoted below:-

“Ministry of Law and Justice have indicated that Indian Tolls (Army and Air Force) Act 1901 is a special Act which over-rides general acts such as National Highways Act, 1956 and private vehicles of the officers, soldiers and airmen of regular forces are exempted from paying toll irrespective of whether they are on duty or not.”

3.      The above correct legal position was also amplified vide MoRTH Letter No NH-11065/12/2003-P&M dated 15 Sept 04 to National Highways Authority of India (NHAI) vide paragraph 1 of which it was clearly stated that private vehicles of defence personnel shall be exempted. The subject line of the letter also shows that all categories of exemption under Section 3 of the Indian Tolls (Army & Air Force) Act, 1901, would fall under the definition of ‘defence vehicles’ which is an exemption term usually used on National Highways.

4.        However, the latest MoRTH OM dated 17 June 2014 (See Appendix B) has been issued on the basis of advice tendered by a Assistant Legal Adviser of DoLA/MoLJ (See Appendix C). In Para (c) of the legal advice rendered by the Assistant Legal Adviser in which Sections 3(b) and 3(c) of the Act are taken note of, it is stated by him that “the main focus in Sections 3(b) and (c) is on the word ‘Duty’ ”.  Moreover, in Para (b) of the said legal advice, it is stated that Sections 3(g) and 3(h) of the Act indicate the usage of private vehicles for official purposes or duty only. Unfortunately, the appreciation of the Assistant Legal Adviser is not only legally, but also factually wrong and falls foul of even a literal interpretation of the Act and its provisions, and also of earlier clarifications issued by the Ministry of Law & Justice and the MoRTH which have been affirmed even by the Highest Court of the land.

5.          A bare perusal of Section 3 of the Act (See Appendix D) would show that the ‘On Duty’ proviso is only applicable to personnel of the Territorial Army (TA) and the National Cadet Corps (NCC) and those of the Indian Reserve Forces under Sections 3 (b) and 3 (c) and not to personnel of the Regular Army under Section 3(a). In this context, your attention is invited to Section 3(a) of the Act which provides toll exemption to all officers, soldiers and airmen of the Regular Forces (without the requirement of being ‘On Duty’) whereas Sections 3 (b) and 3 (c) provide toll exemption to TA and NCC personnel and those of the Indian Reserve Forces when on duty or proceeding to or returning from duty/service/training etc. It is bewildering to observe that the Assistant Legal Adviser has taken note of Sections 3(b) and 3(c) in his advice but has omitted to make any reference at all to Section 3(a) which is the actual provision dealing with the Regular Forces. The Assistant Legal Adviser has also commented upon Sections 3(g) and 3(h) but has conveniently overlooked the fact that Sections 3(g), 3(h) and 3(i) operate in different fields. While Section 3(g) exempts all carriages accompanying exempted personnel without there being any requirement of belonging to the Government, Section 3(h) deals with carriages belonging to the Government while 3(i) deals with carriages employed in the service of the Government. The Assistant Legal Adviser has mixed up and confused the provisions of all the three different and separate sections. The provisions of Section 3 are tabulated below for an easier understanding:


Section of the Indian Tolls (Army & Air Force) Act, 1901
Categories to which applicable
Section 3 (a) (i)
Applicable to Regular Forces (without the requirement of being “on duty”)
Section 3 (b)
Applicable to Territorial Army and NCC personnel but only when on duty
Section 3 (c)
Applicable to personnel of the Indian Reserve Forces but only when called out for training/service etc
Section 3 (g)
Applicable to Carriages accompanying exempted personnel (without the requirement of belonging to the Govt or being employed in military service)
Section 3 (h)
Applicable to Carriages belonging to the Govt etc
Section 3 (i)
Applicable to carriages moving under military orders or employed in military service


6.          It is also a matter of deep concern that the issue had earlier been examined by the Ministry of Law & Justice with file notings that were approved by the Secretary of the Department but still the Assistant Legal Adviser has opted to render a diametrically opposite opinion and that too after surprisingly endorsing in Para (a) of his advice that the earlier opinion was correct. It is a cause of greater concern that the file while moving upwards has not been apparently examined in light of the substantive law, that is, the Act itself and it has not even been appreciated by any senior authority in the Law Ministry or the MoRTH that the entire legal advice does not even refer to Section 3(a) of the Act which forms the bedrock of exemption to serving personnel of the regular forces.

7.       It is also brought to your knowledge that provisions of Toll exemption and exemption to ‘off duty’ and ‘on duty’ defence personnel were challenged before the Hon’ble Punjab & Haryana High Court in Civil Writ Petition No 8508 of 2006. The Petition was however dismissed by a Division Bench of the Hon’ble High Court which held that the Act itself provided for concessions to defence personnel. The order of the Hon’ble High Court in the Hon’ble Supreme Court by way of Special Leave Petition 15419 of 2006 however the order of the Hon’ble High Court and toll exemption to “on duty” and “off duty” personnel of regular forces was affirmed by the Hon’ble Supreme Court.

8.            It must also be placed on record that such issues which affect the morale of the rank and file of the Armed Forces should not be dealt with in a cavalier manner and neither should Govt policy be allowed to be so fickle so as to change with the personal opinions of officers that too by overriding earlier letters, opinions, notifications, judgements of Constitutional Courts and even substantive  legislative provisions. In fact it surpasses logic as to how could OM dated 17 June 2014 be issued ostensibly in the garb of a clarification under the RTI Act which has had the effect of overriding the earlier legal position solidified by letters and notifications which still have the authority of law and which derive their force from a substantive provision of law which has not been amended?

9.        In view of the above, you are requested to kindly withdraw the legal advice rendered by the concerned Assistant Legal Adviser and also the OM dated 17 June 2014 immediately since the same is not only based on incorrect legal and factual appreciation of the Indian Tolls (Army & Air) Force Act, 1901, but is also in direct contravention of the notifications, letters and clarifications issued by the MoRTH in conjunction with MoLJ and law as affirmed by the Hon’ble Supreme Court of India. It is also requested that meticulous perusal may be initiated in a democratic manner at the highest level before issuing such letters which may result in altering existing Government policy and may have a large impact on the rights, benefits and privileges of a particular section of the society.


Enclosures:
Appendices A to D


31 comments:

Anonymous said...

If such is the case, then how DND flyover is taking toll from defence personnel.

S Chander said...

Dear Maj Navdeep,

Inspite of your best effeorts, it is sad to inform that on the Panipat-Rohtak high way the SADBHAV Engineers Pvt Ltd has strarted charging Toll to Defence Personal showing copy of the Jun 2014 letter of NHAI.

Best efforts were made to convince the management of SADBHAV Engrs by self Col Satish Chander and another Col Amit Bhardhwaj on 06 Nov 2014 but without success.

Request advice suitable action if any.

Anonymous said...

Sir.. would you please clarify the present posn on the subject ie till the time a letter overriding the OM dt 14 jun is it in order that toll operators can demand toll. Also is it in order that a letter can override a act?

Hemant Pawar said...

thnks sir for doing so nice job,still how many days we have to wait for reply of Gadkari Sahab.

Pritika Gulati said...

Dear Navdeep,
There are many toll tax companies that refuse to allow an army personnel to pass without paying the toll and some even behave in a smug manner. This is very belittling....our armed forces personnel are not asking for any favours, it is a right being given to them. But if it comes with a sense of demeaning oneself, it is not wanted. Should one stand up to one's right or not....what is the current legal stand on this issue. If one has to pay then so be it, at least we will not flash our ID card and belittle it by having the other person not respecting it. Pls do clarify. Regards, Pritika

Anonymous said...

Filed an RTI with MoRTH on 10 Oct and appeal on 13 Nov. Still no reply.
I did not have the background for the MoRTH letter, so asked the following:

1. With reference to the term ‘on duty’ used in the OM, please provide a copy of the document that was used to define the term ‘on duty’

2. If the term ‘on duty’ used in the sentence “…available only to persons who are ‘on duty’ and is not available to retired personnel..” refers to duty as serving personnel, please provide a copy of the document that was used to clarify to all authorities the OM is addressed to; that the
meaning of ‘on duty’ is the same as being in service of the military, as opposed to retired.

3. The Indian Tolls Act 3 (a) (i) specifies that “All officers, soldiers and airmen of the Regular Forces” are exempt (Enclosure 2). Please provide a copy of the document that was used to over‐ rule this provision in your OM’s para 2.

4. Para 3(g) of Indian Tolls Act specifically exempts the carriages and drivers of any persons exempt from toll. In conjunction with my point 3 above this means that the personal vehicle(s) of armed forces personnel and their drivers are exempt. Please do not confuse with carriages (vehicles) that belong to the government which have been specifically and separately exempted under para 3(h) of Indian Tolls Act. Hence please provide a copy of the document which was used to over‐rule the act and specify in para 2 of your OM that personal vehicles of armed forces persons are not exempt.

5. All members of the families of officers, soldiers and airmen of the regular forces are exempt vide para 3(e) and 3 (e) (i) of the Indian Tolls Act. In case this is not so, please provide a copy of any OM / letter / ruling issued by your ministry and currently valid which either (a) does not exempt families or (b) insists that family be accompanied by the serving person or (c) provides the ministry with any ground to over‐rule the act.

6. With reference decision to allow exemption from toll to serving personnel whether in uniform or not, whether in personal vehicle or not and irrespective of the reason for travel (since the definition of duty is not being questioned and serving=on duty) vide CWP 8508/2006 of Punjab and Haryana High Court later upheld by Supreme court vide 15419/2006; Please provide a copy of the document used as authority to over‐rule this order and charge toll from a serving officer travelling in personal vehicle.

7. With reference to para 1 (a) of your OM, please provide a copy of the relevant page of Indian Tolls Act 1901 which specifies the ‘and’ in “exemption is only available to serving personnel and only on use of govt vehicle”

8. Rule 1580 (Enclosure 3) under the rules made by the Govt of India under the Indian Tolls Act states under article 2 that a pass shall be required to claim exemption from payment of toll. It further amplifies under 3(1) (a)(1) that no passes shall be required in case of officers soldiers and airmen of the Regular forces. Please provide a copy of the document/noting used to specify the type of pass the last line of your OM is referring to. If the pass refers to identity card, please specify the same.

9. The same Rule 1580 (Enclosure 3) also exempts members of families of officers, soldiers and airmen from carrying any specific pass to claim exemption. Again, as in the point above please provide the relevant document. In case the pass refers to identity card, please specify the same.

10. In case the OM under reference is/has been cancelled or amended or amplified, please provide a copy of the new document too.

birdie said...

Dear Maj Navdeep
Please let me know whether filing a RTI in this matter will be of some help in which we can question the legality of OM issued.
Regards

Maj Sarbjeet Singh said...

Dear Maj,

While travelling from Ambala to Delhi on 27 Nov, while on lve, I was charged toll while I was shown the Memorandum dt Jun 2014. I feel the staff is firstly uneducated to deal on the subject and secondly they have been briefed and misguided by the vendor. We need to rake up the issue at apt level so as to settle the issue at the earliest, without any ambiguities.

Regards
Maj Sarbjeet Singh

Anonymous said...

Toll Tax Policy on National Highways
Policy on collection of user fee is based on the provisions of National Highways Act, 1956 (48 of 1956) and National Highways Fee (Determination of Rates and Collection) Rules, 2008 as amended. Currently there are 209 fee plazas in NHs with NHAI. A Representation from AIMTC has been received. As per the present policy in case of 6 laning projects where 4 lane facilities is already available, tolling is started immediately even before completion of highways.
As per the National Highways Fee (Determination of Rates and Collection) Rules, 2008, the fee rates is to be revised every year with effect from 1st April. Policy decisions on specific toll issues are being taken from time to time depending upon requirements. Presently there is no proposal for a separate regulatory authority.
The dignitaries and vehicles exempted as per rule 11 of the National Highways Fee (Determination of Rates and Collection) Rules, 2008 as amended is enclosed as given below:-
_______________________________________________________________________________
“11. Exemption from payment of fee. - (1) No fee shall be levied and collected from a mechanical Vehicle
(a) transporting and accompanying–
(i) the President of India;
(ii) the Vice-President of India;
(iii) the Prime-Minister of India;
(iv) the Governor of a State;
(v) the Chief Justice of India;
(vi) the Speaker of the House of People;
(vii) the Cabinet Minister of the Union
(viii) the Chief Minister of a State;
(ix) the Judge of the Supreme Court;
(x) the Minister of State of the Union;
(xi) the Lieutenant Governor of a Union territory;
(xii) the Chief of Staff holding the rank of full General or equivalent rank;
(xiii) the Chairman of the Legislative Council of a State;
(xiv) the Speaker of the Legislative Assembly of a State;
(xv) the Chief Justice of a High Court;
(xvi) the Judge of a High Court;
(xvii) the Member of Parliament;
(xviii) the Army Commander or Vice-Chief of Army Staff and equivalent in
other services;
(xix) the Chief Secretary to a State Government within concerned State;
(xx) the Secretary to the Government of India;
(xxi) the Secretary, Council of States;
(xxii) the Secretary, House of People;
(xxiii) the Foreign dignitary on State visit;
(xxiv) The Member of Legislative Assembly of a State and the Member of Legislative Council of a State within their respective State, if he or she produces his or her identity card issued by the concerned Legislature of the State;
(xxv) the awardee of Param Vir Chakra, Ashok Chakra, Maha Vir Chakra, Kirti Chakra, Vir Chakra and ShauryaChakra, if such awardee produces his or her photo identity card duly authenticated by the appropriate or competent authority for such award;
(b) used for official purposes by -
(i) the Ministry of Defence including those which are eligible for exemption in accordance with the provisions of the Indian Toll (Army and Air Force) Act, 1901 and rules made thereunder, as extended to Navy also;
(ii) the Central and State armed forces in uniform including para military forces and police;
(iii) an executive Magistrate;
(iv) the fire-fighting Department or organisation;
(v) the National Highways Authority of India or any other Government organisation using such vehicle for inspection, survey, construction or operation of national highways and maintenance thereof;
(c) used as ambulance; and
(d) used as funeral van”.

This information was given by the Minister of State of Road Transport and Highways, Shri Jitin Prasada in a written reply in Lok Sabha today

Matz said...

Dear Sir, is there a signed/ scaned copy available of the above letter? Since the Toll Booth personnel are showing a signed copy of the OM dated 14 Jun, they want a similar signed copy of 21 Oct letter. In the interim, can we carry a certificate from Adjutant stating we are on official duty even while traveling on leave( which is actually true) and thus beat these people by the same paper work?

Anonymous said...

Sir like a true fauji plz tell weather to pay toll tax or not
This legal language is for advocates
Plz clear the matter to us In a GD way

Randhir said...

Dear Sir
Offlate wef Nov 2014 all toll tax booth have stared charging Serving officers travelling in their private vehicles giving reference of MoRTH letter dated 17 Jun 2014, which is clear violation of Punjab & Haryana High Court and Supreme Court on the subject . Request for clarification on the subject. Also request to forward Punjab & Haryana High court and Supreme Court order of 2006 on the subject at rsingh0893@gmail.com .

Anonymous said...

Dear Maj Navdeep,
1. You are doing an excellent Job and we all in uniform appreciate it. Request if you can tell us how we can help in any way.

2. You can reach me on 9999325622

regards

Anonymous said...

Dear Sir,

While travelling from Chandigarh to Ambala today i.e. 12 Dec 14, while on leave, I was charged toll while I was shown the Memorandum dt Jun 2014. Its apparently very clear that the staff at the toll are uneducated and ill mannered to deal on the persisting issue. The staff has been misguided by the superiors and the vendors. It has started becoming embarrassing looking at such issues on a daily basis with so many of us. Its not merely a matter of money...but the dignity, and the respect not only for our uniforms but what we do for the nation wearing these uniforms. I would request if you could throw some more light on the issue if possible. Please let us know if we do have to pay the tolls ..till the time we do not get a clarified letter or the required circular for the withdrawal of this OM dated 17 Jun 14. I believe in such a case none of us would like to demean the value of our icards by producing them to these uneducated, illiterate staff at the tolls.

Regards
Lt Puneet Kumar
Indian Navy

naveen hooda said...

Even I too travelled on the same toll. Carry any proof that you are on duty. And then you have to make those goons understand. Also I travelled from srinagar to delhi via Rohtak. Please ask interventing of police and sdm for same. It will take 15 min. Explain para 2 of their letter.

Bhushan Awasare said...

Dear Navdeep,
Has some new directions been received by the Toll persons? Because i travelled from Jabalpur to Pune from 25 to 26 Dec 14 with family in own car. & no toll booth operator asked for toll when shown the i-card enroute :-)
Bhushan Awasare

Anonymous said...

Sir Have u been charged toll tax on this same route ever before?

apps347 said...

Sir,
What is the latest on toll tax

apps347 said...

Sir,
What is the latest on toll tax

Anonymous said...

I have received a reply to an RTI from MORTH. How do I upload the PDF here?

Anonymous said...

Sir, I have also raised a query but not yet recieved a reply. What does the content say. I have to cross the toll very frequently.

Sumit said...

Dear Sir, We are still being charged with the toll tax and at times it becomes embarrassing paying the toll tax after flashing of I-card. Kindly upload the latest policy letter on the same which can be showed to these people on toll plaza. I had to pay the toll tax on Oriental Nagpur Byepass for the first time ever in my service career because the deputy manager there(Mr. Atul Admane, M.No. 08390962266) was not convinced from the letter dated 21 Oct14. The latest letter on this subject available with him is the OM dated 17 Jun 14 which states 'No exemption is available on use of personal vehicle if it is not used for discharging any official purpose and duty, even if it accompanies the said vehicle'
Kindly update us with action to be taken in such cases.
Regards
Flt Lt Sumit Sourabh(M. No. 08600083613)

Sqn Ldr Sanjay said...

I hav erxd a letter from a AF friend in delhi. Letter ref SI-PO/NH-1/2014-15 dtd 17 Dec'14 issued by Mayank Kr Jain, Head - Projects of Soma Isolux NH ONe Toll Co Pvt ltd of Karnal Toll Plaza. It stats that the NHAI letter is withdrawn & No Toll will be charged to defence personnel.
I am unable to upload the letter here. I have uploaded letter on NHAI facebook page. Pl get NHAI letter so we can show it to Toll Plaza. Thanks

Anonymous said...

Dear Sanjay, The letter you are talking about does not give any reference to any NHAI letter nor does it talks about withdraw of previous letter. Moreover the addressee are also been concealed. That is basically written by a toll operating agency and may not be binding upon others.

Hemant Pawar said...

please, can anyone upload that latest exemption of toll tax letter of dec 2014.or plz mail me @ hemant3242259@rediffmail.com

Anonymous said...

Sir,
I cant get letter on NHAI facebook page.Can you please tell where the letter is?

MOHIT ANAND said...

Sir(s)

today i was travelling with my family from delhi to Agra via Yamuna Expressway.

The toll operator there added a new twist to the whole issue. I was travelling in a hired vehicle since my car had a break down and he refused to give the exemption, though he didnt quote the Jun 14 letter.

Could anyone please clarify what are the rules if a service officer is travelling in a hired vehicle.

Also would it be possible to tackle the issue in a more organised way. May be concerned directorates in all services should take up the issue and may be a cell also be created to handle such issues.

Regards
Mohit Anand
Indian Navy

Kailash Pandey said...

Dear Sir,
Can you please tell us the said benefit is only for the serving personnel's of it is extended to retired personnel's of armed forces as I could not see retired soldiers any where in the said letter. Kindly acknowledge in case possibe to me at barahi.kailash@yahoo.com
Thanks and Regards
Kailash Pandey
Ex Sergeant AF

basant said...

Sir would you please mail the latest letter regarding toll for service personnel. My email I'd is basant.upadhyay26 @gmail.com. thanks in advance

Anonymous said...

Can you please upload a scanned copy of Sh Nitin Gadkari's letter given here? Would like to keep a copy in the car since officials at some Toll Booths are still insisting paying of toll tax based on the earlier malafide letter.

Thanks

narendra kumar said...

R/sir is the Indian toll tax exemption is allowed for paramilitary forces