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PETITIONER: MUNICIPAL BOARD OF HARDWAR

       Vs.

RESPONDENT: RAGHUBIR SINGH ETC.

DATE OF JUDGMENT: 06/12/1965

BENCH: HIDAYATULLAH, M. BENCH: 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

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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 theprovincial 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]

JUDGMENT: 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  appel- lant. 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

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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

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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

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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 ineffec- 896 tive 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  res- tricted   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

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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 Divi- sional  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. 898