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OM dated 17 June 2014 may be immediately withdrawn since the same is not only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
