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Tolls on the East Coast Road: A legitimate concern.

by Veena Ramani and Aarthi Sivanand

[The authors of the following article are two Chennai advocates. Their research on the subject was as volunteers for the Consumer Action Group [CAG], Chennai. It was published in the May-Aug,2000 issue of CAG Report. The senior management of TNRDC is on the mailing list and received a copy of the publication. CAG thought it fit to commission this study as it -- even in 2000-- suspected that TNRDC -- despite all its denials and noble posturing -- was planning to levy a toll on the ECR. Thus TNRDC's stealth and deceit are time-tested traits.]

In light of the recent infrastructural developments in the city, especially with reference to the improvements being made to the roadways, a proposal that has made the rounds is that a toll a ought to be imposed on the users of the new facilities. This article examines the legality of such probable imposition and attempts to make out a case against the imposition of tolls on the East Coast Road.

In general, if a toll is being imposed, the toll should be of such a nature that it is commensurate with the service being provided. Thus, the expenses involved in carrying out the 'improvement' and 'maintenance' services should be made available to the public. Further, the tolls collected should be checked so that the toll an be stopped once the expense plus a reasonable profit has been recovered.

The question discussed here is whether the toll imposed with respect to prima facie improvement of the East Coast Road would be legal or not. The following issues arise for consideration:

The toll that is sought to be imposed could possibly be conceived as being in the nature of a 'toll traverse'. Such a toll is normally imposed by the owner of the land with respect to temporary use of the land, and for this purpose only. However, if this was the true purpose of the government in imposing the toll, then the toll ought to have been imposed in the first instance when the ECR was first made open to the public. Declaring a 'toll traverse' at this point in time exposes it as a squalid money-making exercise.

The above proposition not holding water could probably mean that the toll sought to be imposed could be in the nature of a 'toll through'. This is the right granted to a person [who may not be the owner of the land, for instance a private contractor] for the performance of some service like the improvement or the maintenance of the land. If it is the case, it must be remembered that the imposition of a toll is not the rule but rather the exception.

Thus the burden lies upon the government to prove the following:

1- That the improvement being made is so substantial that the cost of improvement will not be satisfied from the budgetary allocation made by the government.2- That the cost of maintenance is such that it cannot ordinarily be met from the budgetary allocation made by the government.

The imposition can then take on the colour of a charge imposed on rights enjoyed as a result of temporary use. tolls are supposed to be only for the temporary use of land. However, residents along the road will be hit by an unfair and possibly illegal recurring expenditure. This is because they possess a right of easement over the road which is a permanent right. As separating the residents [and others who possess a similar right of easement over the road/land upon which the road is built] from others is impracticable, the imposition of a toll on this stretch at all is impracticable.

Another facet that needs to be examined is whether the imposition of a toll along the ECR amounts to double taxation. It is well known that the ECR was improved substantially and at great cost. The money that was used came from the public exchequer to which every citizen contributed through taxes. Now, very little time after the first expense was incurred, the government is proposing a second expense in the form of a toll which is in the nature of a compensatory tax. This can be because the government did not do the first job properly, which is not something the citizen should be made to pay, as his obligation is discharged with the initial contribution and anything else would amount to double taxation.

The imposition of a toll along the ECR would amount to a violation of the fundamental rights of the citizens. The government is under an obligation to provide roads of a basic minimum quality to the citizens of the country. This was sought to be achieved by building the ECR in the first place. The imposition of a toll on such a road would amount to a message that what is being done is not the provision of a right but a rendering of a privilege that has to be paid for, which is wrong. It would amount to privatizing what the citizen is entitled by virtue of Art.19 of the Constitution of India.

Further it must be remembered that the construction of the ECR Phase-1 was itself plagued with the allegation of environmental spoilage and there were large scale efforts to stop it for this very reason. the only reason for further improvement could conceivably be only for the purpose of commercial transportation. Any increase in this form of traffic would surely be ruinous, environmentally speaking, as the ECR is on the fragile coastline of India.

The reason given for the construction of the ECR is and has always been for local development. In the context of the relatively poor citizenry who live along the region where the road is built, it is difficult to see how the imposition of a toll would inconvenience them further.

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May 29, 2002 - Intimidation of a resident along the ECR:

Yesterday May 28, Navaz Currimbhoy, a resident of Muttukkadu for 10 years was rushing to his aged father late at night. He was alone. Irritated by the contents of this site and suspecting that Currimbhoy was the author behind it, he was detained, and intimidated by the staff manning the toll plaza. He was harangued and taunted by Mr Malmurugan over the phone who asked him "If you can afford the web site you can pay the toll" and "If you have the time for putting up the site, you can afford the time you are detained here." Security was asked to lie in front of car. Instead they surrounded his car. When he tried to leave, his car was banged.

Outraged by this action of TNRDC, residents along the ECR -who consider TNRDC an upstart interloper- gathered this morning at the Uthandi Toll Plaza to lodge their protest. Their civil questions were as follows:
***Why was the staff intimidating and threatening helpless old people, women travelling alone and respectable citizens, whereas loud noisy, travellers with sticks in their hands and foul words in their mouths were allowed to go without a murmur? Was might right and must civil, polite residents to be intimidated?
***Why does TNRDC not even acknowledge the representation of ECR residents and property owners? Why does it pretend that it was helplessly waiting for the Government to make up its mind, while the Govt. at the level of the Secetary, Highways has confirmed that the TNRDC is free to levy even Rs.0 as toll? In fact TNRDC has been at will allowing people it chooses toll-free passage and closes down booths and allows exemptions like at Kovalam and Vengambakkam, clearly indicating it has the freedom to make such decisions.
***Why does TNRDC not respond to ERPOA's allegation the Indian Constitution's Article 19[1(D)] is offended by a levy on a citizen of India conducting his daily life along the ECR as he has done for decades? The Article was cited by the Supreme Court in Umaid Ram vs the State of HP in its judgment no. 847.
***If the justification for the toll was recovery of costs of capital and maintenance, why the GO was being unevenly implemented? As we have repeatedly asked, a commercial carrier running several laps a day between the two points at Uthandi and Pondicherry does not pay a penny. Nor do loud or violent people. Or people whom TNRDC defers to with servility because of their local power- real or presumed? Are helpless, voiceless residents who quietly conduct their daily lives along the ECR to be penalised and made to subsidise others?
***Like an unwelcome guest in your house who proceeds to act boorishly, why has TNRDC snatched the residents traditional - and only - means of access and proceed to vandalise it? In gross violation of a specific order [- you can read the details in the section on the Environmental Angle] TNRDC has cut tens of trees and widened the road to almost 70 metres just to insert itself with a make-believe modern facility. Is it above law?

Residents sought answers to these questions in the presence of the reporter of Adyar Times, Mr.Srivatsan. He was also witness to the extraordinary assertion of Mr.Seetharaman of TNRDC who said -while a resident was trying to take pictures of the trees savaged by TNRDC- that the whole of ECR cannot be photographed without permission and a fee of Rs.25000 to TNRDC as fees! What next, residents. A tax on smiles and civility?

Members of ERPOA present quietly dispersed after stating that in view of TNRDC's discourtesy in not even acknowledging letters, all representations in the future will be made through this website. Upon receiving solemn declarations from residents -as elsewhere described at this site- ERPOA will politely inform the toll plazas in writing, to exempt the listed numbers from their unjust levy. The ball will thereafter be in TNRDC's court.

Click to view a section of the ERPOA members lodging protest at TNRDC's Uthandi Plaza.