Through Mr. Sarfaraz Khan, Advocate for R.1 CORAM :-
HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW A.K. SIKRI, ACTING CHIEF JUSTICE
1. In the instant petition filed under Article 226 of the Constitution of India, the validity of surcharge of Re. 1/- collected by the Delhi Transport Corporation (Respondent No.1) from NCR commuters commuting in DTC Buses is challenged. As per the averments made in the petition, the DTC is levying surcharge of Re.1/- in addition to the normal fare and collecting the same from the passengers who travel in its buses and routes of the Delhi-Faridabad, Faridabad-Delhi, Faridabad-AIIMS, AIIMS- Faridabad. The buses which are running on the routes of Dhaula Kuan- Gurgaon and Gurgaon-Dhaula Kuan, the DTC is charging Rs.2/- extra W.P.(C). No3904/2011 Page 1 of 5 alongwith actual fare from the passengers.
2. In order to find the basis of such charge, the petitioner had made an application under the Right to Information Act to the office of the Lt. Governor, Delhi raising following questions:-
"1. Whether hike in DTC fares has got the approval, present or earlier from LG office.
2. Whether DTC has got the approval from LG office to charge extra charges as surcharge from NCRs‟ Commuters.
3. Details of amount approved by the government to be charged extra as surcharge from NCRs‟ commuters.
4. From which date DTC is charging extra as surcharge from NCRs‟ commuters.
5. Total amount charged by DTC as surcharge from the NCRs‟ commuters till date."
3. The said application was forwarded to the Transport Department, Delhi which gave reply dated 6.1.2010 to the petitioner. According to the petitioner, a partial and evasive reply was given. Against question No.1, the reply was in the affirmative i.e. "Yes" but in question no.3, the reply given was that "Government had not issued any such instructions". Qua question no.2, 4 and 5, it was mentioned that appropriate reply was to be given by the DTC.
4. The PIO of DTC sent reply dated 8.1.2010 stating that the queries did not relate to them and in any case the DTC was not collecting any W.P.(C). No3904/2011 Page 2 of 5 money in the form of any surcharge. However, it was charging Re.1 in the form of „Toll Tax‟. The DTC accepted that it was collecting Re. 1 from each of these passengers. However, the justification given was that when the busses pass through the Toll Bridge, Toll Tax is to be paid and the said collection is on that account.
5. The submission of the petitioner is that reply received from the Government shows that the Government has not authorised collection of any such surcharge and in the absence of any rule or any such authorization, no surcharge can be levied or collected from the commuters by the DTC. Prayer is thus made that this practice is to be stopped immediately and the amount collected so far which is more than Rs. 10 crores on this account be deposited in the Prime Minister Fund and/or National Fund and/or Defence Fund.
6. In the Counter Affidavit filed by the DTC, it is stated that the amount of Re.1/- from each passenger is collected against MCD Toll Tax and surcharge of Rs. 2/- for using the services passing through DND Flyover and other Toll Bridges/roads. It is explained that on account of crossing the borders and using Toll roads by DTC buses, which are operating on Inter State/NCR Routes, the respondent (DTC) is paying MCD Toll Tax/Toll Road Tax to the concerned Authorities as per the rates fixed by the said Authorities from time to time. It is therefore, denied that the W.P.(C). No3904/2011 Page 3 of 5 Respondent (DTC) is misusing the collection which is being levied on passengers as surcharges since the same is being paid to be concerned authorities. It is also submitted that this amount is being collected on the approval of the DTC Board Resolution No. 12/05 dated 25.02.2005. This decision was also conveyed to the Government vide letter dated 5.3.2005. It is also stated in the Counter Affidavit that though amount of Rs. 10.87 crores was collected over this period, the actual amount paid to the MCD and other Toll Road Maintaining Authorities, by the DTC during the same period was Rs.15.88 crores. Thus, the amount paid is much more than the collection and balance amount is paid by the DTC from its own coffers. On that basis, it is submitted that DTC is not gaining any revenue and on the contrary losing the money for providing transport facilities to the NCR passengers.
7. After going through the aforesaid pleadings, it becomes clear that the amount is not calculated as levy or tax. All the vehicles including buses, whether of DTC or others, when pass through MCD Toll or DND flyover/Toll Bridges and roads, are required to pay Toll Tax/Toll Charges. The DTC can collect this amount from the passengers individually every time it crosses Toll Bridge. Though the amount to be paid per DTC Trip is fixed, if the burden thereof is to be shared by the passengers, in every trip, the amount to be calculated from the passengers may vary depending upon the number of passengers travelling in a particular trip. Therefore, in order W.P.(C). No3904/2011 Page 4 of 5 to obviate such onerous task, if the DTC decided to charge fixed amount of Re. 1 or Rs. 2, as the case may be, which otherwise is much less than the actual amount paid by the DTC, we do not see any illegality in collecting the aforesaid amount from the passengers. It is not in the form of any tax charged by the DTC. On the contrary it is the part of Toll Tax charges which are to be paid to the concerned authorities.
8. Learned counsel for the petitioner had referred to a judgment of a Division Bench of this Court in Atma Prakash Goel Vs. State Transport Authority & Ors. 101 (2002) DLT 14. In that case, the Division Bench has held that in view of the provisions of Section 61 (1) (i) of the Motor Vehicles Act read with Rule 58 of the Delhi Motor Vehicles Act of the Delhi,1993 the DTC had no authority to determine the fare for the buses in violation of statutory rules. However, that judgment has no application to the facts of this case inasmuch as what is collected is not part of fare.
9. We thus do not find any merit in this petition which is accordingly dismissed.
10. No order as to costs.
ACTING CHIEF JUSTICE (RAJIV SAHAI ENDLAW) JUDGE JUNE 1, 2012/skb W.P.(C). No3904/2011 Page 5 of 5