Law Office of :

MAJ NAVDEEP SINGH

Advocate, Punjab & Haryana High Court
Office-cum-Residence : House # 1063, Sector 2, Panchkula – 134112, Haryana
Phones : 0172-2580900, 093161-32817 Email : navdeepsingh.india @ gmail . com

Your reference :

Our reference :

Nav/Toll/Mov/2

Additional Director General of Movement

Directorate General of Operational Logistics
Integrated HQ of MoD (Army), New Delhi – 110 011

ACCURATE POSITION ON TOLL TAX EXEMPTION TO DEFENCE

PERSONNEL, THEIR PRIVATE VEHICLES AND OTHER
RELATED PROVISIONS UNDER LAW

1. Letter No 12668 / Mov C dated 15 Nov 2007 issued by your directorate and circulated
to all Commands has resulted in a little confusion on the issue and many references have
been addressed to me from military establishments all over the country. In the succeeding
paragraphs, an effort has been made to essentially clear the following doubts (with
supporting documents) that have emerged after issuance of your ibid letter :-

1. Whether toll tax exemption is available only on National Highways and not on
other roads or bridges ?

2. Whether toll tax exemption can only be claimed while being in uniform and ‘on
duty’ ?

3. Whether DND (Delhi-Noida-Delhi) flyway is supposed to grant exemption to

defence personnel and what is the present legal status ?

4. Whether ex-servicemen are entitled to toll tax exemption ?

2. The legal basis of toll exemption. The Indian Tolls (Army & Air Force) Act, 1901,
provides for toll-tax exemption to defence personnel, their private vehicles and other
defence related categories on all private and public roads and bridges in India. Section 3 of
the said Act exempts defence personnel from payment of toll-tax which may be otherwise
demandable from other individuals by virtue of any Act, Ordinance, Regulation, Order
or Direction of any Legislature or Public Authority in India. Further, the term ‘Public
Authority’ includes Central, State and Local Governments as per Section 2(i) of the Act.
The Act hence overrides all other Acts / Directions / Orders etc on the issue. The Act, as per
Section 3(a), is applicable to personnel of the Regular Forces irrespective of whether they are
on duty or not. However in case of Territorial Army (TA) and National Cadet Corps (NCC)
personnel, the exemption is available when they are ‘on duty’ as per Section 3 (b) unlike
Regular personnel to whom the Act is applicable at all times (on and off duty) under Section
3 (a). The relevant extract of the Act is enclosed as Appendix A to this letter. The Act also
makes it punishable to demand toll tax from the exempted categories. On a case taken up by
me, the position of the applicability of the Act was earlier adequately clarified by Govt of
India, Ministry of Road Transport & Highways (MoRTH) in consultation with the Ministry
of Law vide Letter No NH-12037/278/2003/PB/NH-1 dated 12 November 2003 (Appendix
B), 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 extent of applicability of toll exemption in India. As explained in the previous

paragraph, toll exemption is to be granted all over India, irrespective of the fact whether the
toll road / bridge is private or public or whether it is a National Highway or a road under the
jurisdiction of a State / UT. As far as the National Highways are concerned, on problems
being faced at hands of private toll road / bridge contractors, the Ministry of Road Transport
and Highways had issued Letter No NH-11065/12/2003-P&M dated 15 Sept 04 to National
Highways Authority of India (NHAI) (Appendix C) vide paragraph 1 of which it had 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. Recently, a case was also taken up
for mentioning defence toll exemption before all toll plazas, which was agreed upon by the
NHAI resulting in issuance of Circular No 81 dated 04 Dec 2006 (Appendix D).

4. Supreme Court Orders upholding toll tax exemption to defence personnel. Toll
exemption orders obtained by me and exemption to ‘off duty’ and ‘on duty’ defence
personnel on all Central, State, private and public roads and bridges and also the provisions
of the Indian Tolls (Army & Air Force) Act, 1901, were challenged before the Hon’ble
Punjab & Haryana High Court by one Mr Sanjeev Kumar through 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 provided for concessions to defence personnel and that there
 was no reason to interfere. The Petitioner had then challenged the order of the Hon’ble
High Court in the Hon’ble Supreme Court by way of a Special Leave Petition (SLP 15419
of 2006). It was again submitted by the Petitioner before the Hon’ble Supreme Court that
the Act which provided for toll tax exemption to even ‘off-duty’ defence personnel and
their private vehicles on all Public and Private roads and bridges in India and which had
an overriding effect on all Acts, directions, ordinances, orders etc of the Central and the
State Governments, was against the spirit of Article 14 of the Constitution of India and had
outlived its utility. A division bench of the Hon’ble Supreme Court has however upheld the
orders of the Hon’ble High Court and dismissed the Special Leave Petition. The order of the
Hon’ble Supreme Court dismissing the Special Leave Petition is enclosed as Appendix E.
The said Order of the Hon’ble Supreme Court was widely covered by the media too and one
of such news-reports is enclosed as Appendix F.

5. Problems faced in certain States and their subsequent redressal. When the
entitlement of defence personnel as per the Act was adequately agitated, most of the States
acted quite favourably and there was not much of a problem in getting the Act implemented
in letter and spirit. However, there were problems reported from certain states which were
symptomatically addressed, some examples are :-

(a) Punjab. Directions issued by the Hon’ble Human Rights Commission in ‘Capt
Navdeep Singh Vs State of Punjab’ case in which the State govt was directed not to
harass defence personnel at toll plazas (Orders at Appendix G)

2. Himachal Pradesh. A cabinet decision followed when the issue was strongly
taken up by HQ Western Command on receipt of reports of infringement of the Act
from the State (News-report at Appendix H)

(c) Kerala. Strict implementation of the Act confirmed by the State Govt vide
Annexure I.

(d) Uttrakhand. Instructions issued to all toll operators and exemption to private
vehicles confirmed vide Appendix J.

(e) Gujarat. Compliance report for private vehicles and ‘off duty’ regular
personnel provided vide Appendix K.

6. Tamil Nadu. Exemption under the Act confirmed vide Appendix L.

5. Exemption on Delhi-Noida-Delhi (DND) Flyway. Although the Act is very much

applicable to the DND Flyway, the management of the said flyway was acting contrary to
law. The issue was taken up with the management of the flyway on directions of the COAS
Secretariat but in the meantime, a Writ Petition was filed by an Army Officer in his personal
capacity before the Hon’ble Delhi High Court wherein apparently no reference / reliance was
placed on the orders of the Hon’ble Supreme Court. The said Writ Petition was subsequently
dismissed and the High Court had in effect held that the users’ fee being charged by DND
was not exactly ‘toll tax’ under the meaning of the Act. An Appeal (LPA No 255 of 2007)
 has however already been filed against the decision of the single bench of the Hon’ble Delhi
Court which is pending and in which notices have been issued to the DND management, the
UP Govt and NOIDA authorities. The DND Flyway issue is hence not yet closed but sub
judice.

5. Exemption to Ex-Servicemen. There is no exemption available to ex-servicemen

since the Indian Tolls (Army & Air Force) Act, 1901, does not cover ex-servicemen and
rightly so since the aim of such an exemption through the Act is to cater for the very frequent
on / off duty movement of serving personnel. Claiming exemption for ex-servicemen
would be an exercise in futility in that sense. The MoRTH however, as a goodwill gesture,
has exempted all ex-servicemen who are gallantry award winners from payment of toll
tax restricted to National Highways. The notification for such exemption is enclosed as
Appendix M.

5. Exemption on Delhi-Gurgaon Expressway. The Delhi-Gurgaon Expressway comes

under the purview of the NHAI to whom Ministry of Road Transport and Highways has
already issued directions (Appendix C) to exempt private vehicles of defence personnel
from payment of toll tax. Moreover, NHAI has floated directions to all its offices to ensure
compliance of MoRTH directions and mentioning of defence toll exemption on all tollways
(Appendix D). In case, a stipulation of ‘defence personnel in uniform’ has been imposed in
their exemption list notification for the said highway as stated in Movement Dte Letter No
12668 / Mov C dated 15 Nov 07, then it may have been a result of an erroneous oversight
which may be rectified by informing them that there is no stipulation of uniform in Section
3 of the Indian Tolls (Army & Air Force) Act, 1901, which is a legislative mandate. The
NHAI has also already intimated and promised that exemptions under the Act as circulated
by the MoRTH would be properly enforced and would be applicable in addition to various
notifications by the Ministry and that all NHAI establishments have been duly informed
about toll exemption available to defence personnel. Further, NHAI has informed that toll
exemption under the Act is being mentioned in all Concession agreements (Contracts) with
various private operators so that there is no problem later on. The above has been confirmed
by NHAI vide Appendix N. Moreover, the NHAI is bound by the directions of the Ministry
since NHAI is merely an execution agency which has to follow MoRTH directions and
above all, the law of the land. The issue would most likely be resolved after highlighting the
provisions of the Act (Appendix A), MoRTH directions (Appendix C), orders of the Hon’ble
Supreme Court (Appendix E), NHAI circular (Appendix D) and NHAI Letter (Appendix N).

5. In the past, there were instances where private toll operators took a plea that there was
no mention of toll exemption to defence personnel when they were allotted toll contracts.
Such a plea is redundant and void and against the principles of the Indian Contract Act since
any contract against the law of the land is a nullity. The provisions of the Indian Tolls (Army
& Air Force) Act cannot be overridden by any contract to the contrary. Moreover, before
starting operations, all toll operators usually undertake to follow the law of the land in their
contracts, and law includes the said Act.

5. The above Appendices and provisions bring out the following facts clearly, in brief :-
 (a) That the Indian Tolls (Army & Air Force) Act, 1901, provides for toll exemption
to personnel of regular forces and their private vehicles at all times, irrespective of
whether they are on duty or not.

(b) That there is no requirement of being ‘in uniform’ to avail toll exemption.

(c) That toll exemption is available all over the country on both private and public
roads and bridges. Central and State governments are both under the ambit of the Act.

(d) That at present, DND Flyway is not providing toll exemption but the case has not
been finally decided and is very much pending vide an Appeal. The matter is again
sub judice.

(e) That ex-servicemen are not entitled to toll exemption and various representations
on the issue would not serve any purpose being contrary to the legislative provisions
and mandate of the Act. The Ministry of Road Transport & Highways as a goodwill
gesture has already exempted ex-servicemen who are gallantry award winners from
payment of toll tax on National Highways. Roads and bridges other than NHs are not
under the purview of MoRTH.

(f) That the Hon’ble Supreme Court has dismissed a petition challenging the
exemption to private vehicles of defence personnel on all private and public roads
and bridges all over the country. The Hon’ble Supreme Court refused to strike down
Section 3 of the Act which provides for exemption.

(g) That infringement of the Act in various States has been effectively tackled
symptomatically including in Himachal Pradesh where maximum violations were
reported.

11. In view of the above, it is requested that clarifications, as deemed appropriate, may
kindly be issued to the establishments to whom letter No 12668/Mov C dated 15 Nov 2007
had been addressed so that the confusion on the issue is cleared. You are also welcome to
seek any further input / amplification on the issue from me.

(Navdeep Singh)

Advocate, High Court

Encl :-
As above (Appendices A to N)

Copy to :-
COAS Sectt For Information, record, further
reference,
and dissemination please

VCOAS Sectt ditto

AG’s Branch ditto

NHQ / Passage ditto

Air HQ / PP & R-4 ditto

Adv Air HQ (HQ ditto

WC)