Municipal Board of Hardwar Vs.
Raghubir Singh [1965] INSC 278 (6 December 1965)
06/12/1965 HIDAYATULLAH, M.
HIDAYATULLAH, M.
GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
RAMASWAMI, V.
SATYANARAYANARAJU, P.
CITATION: 1966 AIR 1502 1966 SCR (2) 891
ACT:
U.P. Municipalities Act (2 of 1916), s.
128(1)(vii) and (xiv)Scope of.
HEADNOTE:
In 1941 the appellant-Municipal Board issued
a notification under s. 128 (1) (xiv) of the U.P. Municipalities Act,, 1916, by
which it imposed a toll on motor vehicles and tongas entering or leaving the
municipal limits with passengers, at the rate of 2 as per passenger. In 1955, a
second notification was issued under s. 128(1)(vii) by which the toll was
increased from 2 as. to 4 as. The respondents, who were owners of motor vehicles,
filed petitions under ArT 226 challenging the toll. Thereafter, a third
notification was issued under s. 128(1)(xiv) by which the description of the
toll was amended. A single judge of the High Court held that the toll could not
be levied on vehicles leaving the municipal limits and issued a writ
prohibiting the collecting of toll on such Vehicles. On appeal, a Divisional
Bench of the High Court held that toll could also be levied on vehicles leaving
the municipality, but it could not be levied on the same vehicle if the toll
had been levied on its entry into the municipality.
In this Court, it was contended by the
appellant that, cl. (xiv) being residuary and enabling, brought the full
amplitude of the power of the State Legislature or levy toll to the aid of el.
(vii), and therefore, according to the concept of a toll it could be levied on
vehicles both on entering into and departing from the municipality.
HELD: Section 128(1) (vii) which enabled the
levy of toll on a vehicle entering the municipality, exhausted all the power
delegated by the Legislature to the appellant and that power could not be
extended either by the considerations derived from the nature of tolls or from
the residuary el. (xiv).
Therefore, the toll could be collected only
from vehicles entering the municipality. The distinction made by the Divisional
Bench between vehicles which pay toll on entering and which do not pay any toll
till leaving was irrelevant, because the question of vehicles leaving the
municipality could not enter the discussion. [897 B-F] Since the tolls were
first imposed in 1941, el. (xiv) must be viewed in the light of the
Constitution Act of 1935. The scheme of s. 128 of the U.P. Act is that it
enumerates certain taxes and confers powers on municipalities to levy them and
then it enacts el. (xiv) which is intended to cover the taxes not enumerated
which the Provincial Legislature had authority to impose. The relevant powers
of the provincial Legislature were found in Entries 52 and 53 of the Provincial
Legislative List of the Constitution Act of 1935. Entry 52 could not be relied
did not enable the Provincial Legislature to impose taxes carried over inland
routes. The power which flowed from made over to the appellant to be exercised
in the particular in el. (vii), that is, on vehicles entering the municipality,
the tolls to be levied on vehicles leaving the municipality el. (vii)
ineffective. [895 A-C, E-G, H] on because it on passengers Entry 53 was manner
stated and to permit would render 892 The power of the State Legislature
derivable from Entries 56 and 59 of the State List of the Constitution was not
available for the second notification because, while Entry 56 permitted tax on
passengers, the toll was not a tax on passengers but on vehicles; and the power
to levy tons under Entry 59 continued to be restricted to vehicles entering the
municipality. Besides, cl. (vii) under which it was issued limited the power to
vehicles entering the municipality.
The third notification was irrelevant, as was
issued after the petitions were filed. [896 A-C]
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 311 to 366 of 1964.
Appeals from the judgment and decrees dated
December 6, 1957, December 16, 1958, January 29, 1959 of the Allahabad High
Court in Special Appeals Nos. 343 and 381-416 of 1955, 548 of 1958 49-55 and
57-67 of 1959 respectively.
M. C. Setalvad, B. P. Jha and J. P. Goyal,
for the appellant.
G. S. Pathak, B. Dutta and Naunit Lal, for
the respondents (in C.A.s Nos. 311-366/64).
The Judgment of the Court was delivered by
Hidayatullah, J. These appeals involve a short common point of law and to
appreciate it the narration of a few simple facts will be sufficient.
On October 29, 1941, the Hardwar Union
Municipal Board (for brevity called the Board in this Judgment) issued a
notification (No. 4188/XI-416-41) by which it imposed a toll on motor vehicles
and tongas entering or leaving the municipal limits with passengers, at the
rate of 2 annas per passenger. There were nine classes of persons who were
exempted and one such class was persons travelling in motor vehicles and tongas
from Rishikesh. Exemption certificates valid to the end of the calendar year
were available in respect of some of the other classes. The notification
purported to be issued in exercise of powers conferred by S. 128(1)(xiv) of the
U.P. Municipalities Act 1916 (U.P. Act 2 of 1916). Accompanying the
notification were rules for the levy ,and collection of the toll. On February
22, 1955, a second notification was issued (No. 830/XXIII-16(C)-53-54), this
time in exercise of the powers conferred by S. 128(1)(vii) of the Act, and it
increased the toll from 2 annas to 4 annas per passenger and added rickshaws to
the vehicles. This notification also removed the exemption in favour of persons
travelling from Rishikesh. The Board established a toll-barrier on the
Rishikesh/ Hardwar road at a place called Kharkhari within the limits of
Hardwar Municipality. Toll was collected at that barrier from 893 vehicles
entering the municipal area or departing from it, at the rate of 4 annas per
passenger travelling by motor car, tonga or rickshaw. On September 18, 1957, a
third notification (No. 2706B-(a)XI-C-57) was issued, once again in exercise of
powers conferred by s. 128(1)(xiv) and the Board amended the description of the
toll in the notification of 1941 and deleted the exemption which had been
granted to persons travelling between Rishikesh and Hardwar. The final
description of the tax reads "In the Description of the tax (i) . . . . .
.
"A toll tax on motor vehicles, rickshaws
and tongas entering or leaving the limits of the Hardwar Union Municipality
with passengers to be levied at the rate of annas 4 per passenger".
(ii)Delete the clause (c) "All persons
travelling in motor vehicles and tongas from and to Rishikesh' given under the
proviso 2 to paragraph 1." The last notification was issued after the
respondents who are owners of motor vehicles plying between Rishikesh and
Hardwar had filed their petitions under Art. 226 of the Constitution challenging
the toll.
The judgment, which is impugned here by the
Board as appellant, is by a Divisional Bench consisting of Mootham C.J. and
Shrivastava J. in a special appeal decided on December 6, 1957. The special
appeal was filed against a judgment of Mehrotra J. dated September 26, 1955.
Mr.
Justice Mehrotra had held that toll could not
be levied at all on vehicles going outside the Municipal limits and he issued a
writ ordering the Board to desist from collecting toll on vehicles leaving
Hardwar Union Municipality. He upheld the levy of toll on vehicles entering the
municipal limits. Other contentions against, the notifications which sought to
have the levy of toll in any shape or form declared illegal were rejected. The
Divisional Bench maintained the order but held that although toll could be
levied on vehicles leaving the municipal area, it could not be levied on the
same vehicle if it had been once levied on its entry into the municipal area.
The Divisional Bench modified the order by adding a direction that the
appellant Board should not levy toll on vehicles leaving the municipal limits,
which had paid toll on entry into these limits. The Bench observed further-"We
think, therefore, with respect, that the learned Judge went too far when he
said that a toll cannot be 894 levied on a vehicle going out of the limits of
the Municipal Board. . . . . . . . ." Following its own decision the
Divisional Bench dismissed the other special appeals but certified all cases as
fit for appeal to this Court and that is how these fifty-six appeals are before
us.
Now it has been ruled on many an occasion in
this Court that local authorities like the Board do not act as legislatures
when they impose a tax but as the agent of the State Legislatures. Their powers
and the extent of these powers must be found in the statute which erects them
and endows them with such powers. This proposition is so indisputable that Mr.
Setalvad for the Board did not seek to contradict it in any way. We must,
therefore, look at the U.P.
Municipalities Act first. Section 128(1) of
the Act read in 1941 as follows :"128. Taxes which may be imposed :
(1)Subject to any general rules or special
orders of the Provincial Government in this behalf, the taxes which a board may
impose in the whole or any part of a municipality are. . . . . . .
. . . . . . .
(vii)a toll on vehicles and other
conveyances, animals and laden coolies entering the municipality;
. . . . . . . .
. . . . . . . .
(xiv)any other tax which the Provincial
Legislature has power to impose in the Province under the Government of India
Act, 1935.
(The words "Provincial
Legislature", "Province" and "the Government of India Act
1935" have now been replaced by the words "State Legislature",
"State" and "the Constitution" respectively.) Mr. Setalvad
has relied upon both the clauses of S. 128(1) quoted above. He has further
relied upon the concept of tolls which according to him envisages collection
both on entry and departure. He has drawn particular attention to the first and
the third notifications in which cl. (xiv) is mentioned as the source of power
and has contended that the clause being residuary and enabling can bring the
full amplitude of the power of the legislature to levy tolls to the aid of cl.
(vii) which is restricted in its operation.
We shall now consider these arguments.
895 The scheme of S. 128 is that it
enumerates by name certain taxes, and confers power on the Boards to levy them
and then it enacts cl. (xiv) which is intended to cover other taxes which the
Provincial (now the State) Legislature has authority to impose but which are
not in the enumeration.
In this way the delegated powers of the
Boards are equated to the legislative powers of the Legislature of the Province
(now the State). Since tolls were first imposed in Hardwar in 1941, we must
view cl. (Xiv) in the light of the Government of India Act 1935. The powers of
the Provincial Legislature in this context could flow from entries 52 and 53
only of the Provincial Legislative List in the Seventh Schedule of the
Constitution Act of 1935. These entries read 52--"Dues on passengers and
goods carried on inland waterways;" 53-"Tolls".
The corresponding provisions under the
Constitution are to be found in entries 56 and 59 of the State List. They read
:
56--"Taxes on goods and passengers
carried by road or on inland waterways;" 59--"Tolls".
It will thus be seen that in 1941 the
Provincial Legislature had no power to impose a tax on passengers carried over
inland roads and whether or not the levy we are considering could be regarded
at all as a tax on passengers, it could not be so regarded in 1941. It could be
justified as a toll only under entry No. 53. The difficulty in accepting the
first notification in respect of toll on vehicles leaving the municipality which
is sought to be supported under cl.
(xiv)is this : the Provincial Legislature
expressly gave a limited power to levy toll on vehicles entering the
municipality.Power which flowed from entry 53, whatever it might have been, was
made over to the municipal Board to be exercised in a particular manner and
that manner was stated in cl. (vii). If the matter is confirmed to cl. (vii) it
is clear that the Board could levy toll only on vehicles entering the
municipality and not on vehicles leaving the municipality. The Legislature
having expressly so limited the power of the Board, we think that no extension
of that power could be contemplated under cl. (xiv) even if it may be right to
say that tolls as such can be levied on vehicles leaving the municipality as
well as on vehicles entering the municipality--a point which we do not decide.
The larger power, if any, must be held to be cut down by necessary implication.
To permit tolls to be levied on vehicles leaving the municipality would render
ineffective that part of cl. (vii) which lays emphasis on vehicles entering the
municipality. Such an extension of power through cl. (xiv) cannot be supported.
When the Board amended the notification in 1955 the position regarding tolls
remained unaltered. The power of the Legislature derivable from entry 59 of the
Constitution was not available because the tax was not a tax on passengers but
on vehicles and the power to levy tolls continued to be restricted to vehicles
entering the municipality. That restriction made it impossible to extend the
power regarding tolls in respect of vehicles leaving the municipality. The
second notification also drew power from cl. (vii) only and that was patently
wrong because that clause limited the power to levy tolls on vehicles entering
the municipality.
The third notification was irrelevant as it
came after the petitions were filed in the High Court and it was also subject
to the same restriction.
We were referred to dictionaries and to
rulings of the English Courts in an attempt to widen the meaning of the word
"toll". There were many kinds of tolls and all, of course, must be
taken to be comprehended by the entry relating to tolls in the Government of
India Act, 1935 or the Constitution. There were for example toll-thorough and
toll-traverse which were the two main subdivisions and there was toll-stallage.
The first was a levy prescribed by towns for animals or men that went through
highways of a town or over ferries, bridges etc. belonging to it. Toll-traverse
was charged for passing over a private person's ground.
Toll-stallage was a charge for occupation of
land by pitching stalls in fairs and markets. A toll was thus a tribute or
custom paid for a privilege, generally for passage over or for using a bridge,
road, ferry, railway and sometimes for occupation of market, port, anchorage
etc. .
The justification for tolls was that the
person charged enjoyed a privilege and the amount went towards the
construction, improvement or upkeep of these things. Tolls were a common feature
of mediaeval Europe and England and toll roads and turnpike roads were so
common that it was impossible to go any distance without having to pay some
charge. Tolls went out of fashion and were abandoned because they were very
unpopular and the charges for maintenance of roads, bridges, ferries etc. were
directly levied as taxes. They lingered for sometime as octrois which were
picturesquely described as "in gate" tolls being collected at the
gates of a town or toll-barriers. Even octrois have disappeared in Europe and
England but they have continued to persist in India.
Whether such tolls were collected only on
entry or only on departure or both on entry and departure it is not easy to
say.
897 Mr. Setalvad could give no instance of
any practice in which they were levied both on entry and exit on the same
vehicle.
The better view appears to be that they can
be collected only once and at the point of entry only though for convenience,
they may be collected at any one end as for example toll for crossing a bridge
which allows either entry to the bridge or takes the toll after the bridge is
traversed. It is taken from those about to enter and from those about to leave
but not twice.
We need not concern ourselves with this
problem which was placed before us by Mr. Setalvad because toll as such can
only be collected under the Municipalities Act from vehicles entering the
municipal limits. This, in our opinion, exhausts all the power delegated by the
Legislature to the municipal Boards and that power cannot be extended either by
considerations derived from the nature of tolls or from the residuary cl.
(xiv). It is, therefore, sufficient to say that in the Hardwar Municipality the
power to collect tolls was limited in 1941 by cl. (vii) of S. 128 (1 ) and that
power continues to be so limited.
In this view of the matter the distinction
made by the Divisional Bench between vehicles which need not pay toll on
leaving the municipal limits because they have paid toll on entry and vehicles
which have not paid any toll till leaving, may not be quite correct. Mr.
Setalvad contended that this distinction must not continue because the amount
of toll is dependent on the number of passengers in the vehicle and the vehicle
may enter with few passengers and leave with many more. That in our opinion is
an irrelevant consideration because the right to levy toll is confined to
vehicles entering the municipality and no question of vehicles leaving the
municipality can enter the discussion.
The Divisional Bench was in error in introducing
this consideration and the decision of Mehrotra J. was right in all the
circumstances of the case. As, however, the owners of vehicles have not
appealed or objected, we will only dismiss the appeals and order no
modification in the order of the Divisional Bench. The appellant Board shall
bear the cases of this appeal. One hearing fee.
Appeals dismissed.
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