Full Judgment Text
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PETITIONER:
MUNICIPAL BOARD, NAINITAL & ANR.
Vs.
RESPONDENT:
BRIJ MOHAN CHANDRA &
DATE OF JUDGMENT:
26/10/1970
BENCH:
DUA, I.D.
BENCH:
DUA, I.D.
SIKRI, S.M.
BHARGAVA, VISHISHTHA
CITATION:
1971 AIR 439 1970 SCC (2) 901
ACT:
U.P. Municipalities Act II of 1916, s. 128(1)-If authorises
collection of a toll-tax levied on vehicles from passengers
travelling in a vehicle.
HEADNOTE:
While the first respondent was travelling by a U.P.
Government Road. ways bus from Bhowali to Nainital in May
1967, toll-tax was demanded from him at the appellant’s
municipal toll barrier but he declined to pay. The
Executive Officer, Municipal Board, Nainital, thereupon
filed a complaint against him under s. 190(1) (c) la.P.C.,
for breach of rule 1 of the Rules made under s. 153(a) of
the U.P. Municipalities Act, 1916. The first respondent’s
contention was that the levy of toll-tax by the Municipal
Board on passengers was ultra viruses the taxing pow& of the
Board. During the pendency of these proceedings, on an
application made,,, by the first respondent under s. 561A,
Cr.P.C., the High Court quashed those proceedings holding
that clause (vii) of s. 128(1) of the Municipalities Act did
not authorise the levy of toll-tax on passengers and that a
connected notification also levied tax only on vehicles and
not on passengers. The Rule imposing an obligation on the
passengers to pay the toll was therefore struck down as
ultra vires.
In appeal to this Court it was contended inter alia that
toll imposed on the vehicle entering the Municipality could
legally be realised from the passengers carried by it
because of their nexus with the entry of the vehicle.
HELD:Dismissing the appeal,
The toll imposed on the laden vehicles is expressly made
payable by the person-in-charge of such vehicles. No
liability has been fixed on the passengers for payment of
the tax imposed on the vehicles carrying them and entering
the Nainital Municipality. There was no precedent or any
principle in support of the submission that merely because
the passengers were carried by the vehicles the toll-tax
imposed on the entry of the vehicles into the municipal
limits could be demanded from them [704 D-G]
When the impugned levy was outside the-Act, s. 164 of the
Act could not operate to bar the jurisdiction of the High
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Court to quash the proceedings relating to the levy which
was ultra virus the taxing power of the Board. [704 H]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 134 of
1968.
Appeal from the judgment and order dated April 16, 1968 of
the Allahabad-High Court in Criminal Misc. Case No. 3403 of
1967.
Yogeshwar Prasad, for the appellant
0. P. Rana, for respondent No. 2.
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The Judgment of the Court was delivered by
Dua, J. The short point requiring determination in this
appeal-on certificate of fitness granted by the Allahabad
High Court under Art. 134(1)(c) of the Constitution is
whether tolltax on laden motor vehicles levied under s.
128(1)(vii) of the, U.P., Municipalities Act 11 of 1916
(hereinafter described as the Act) on their entry within the
limtis of Nainital Municipality can be realised from the
passengers carried by them.
The relevant facts which lie within a narrow compass may now
be briefly stated. Brij Mohan Chandra, Vice-President of
the Notified Area Committee, Bhowali, District Nainital
(respondent no. 1 in this Court) traveled in U.P. Government
Roadways Bus from Bhowali to Nainital on 17th, 26th and 29th
May, 1967. At Kaila Khan Municipal toll barrier one and a
half mile from Nainital on the Bhowali-Nainital Road, toll-
tax was demanded from him but he declined to pay. The
Executive Officer, Municipal Boad, Nainital, thereupon filed
a complaint against him under s. 190(1)(c) of the Code of
Criminal Procedure on the allegation that he had by entering
the municipal limits of Nainital without paying the toll
dues committed breach or r. (1) of the Rules made under s.
153(a) of the Act for the ’assessment and collection of
tolls within the municipality of Nainital. Brij Mohan
Chandra’s contention in reply was that the levy of toll-tax
by the Municipal Board on passengers was ultra vires the
taxing power of the Board. During the pendency of the
proceedings in the court of Sub-Divisional Magistrate,
Nainital, Brij Mohan Chandra applied to the High Court of
Judicature at Allahabad under s. 561A, Cr. P.C. for
quashing those proceedings. The High Court (S. D. Singh J)
on April 16, 1968 quashed the proceedings by the impugned
order holding that cl, (vii) of s. 128(1) of the Act did not
authorise levy of toll-tax on passengers and that the
relevant notification also levied tax only on vehicles and
not on passengers. The rule imposing an obligation on the
passengers to pay the toll was, therefore, struck down as
ultra vires.
In this Court Shri Yogeshwar Prasad, learned counsel for the
appellants (the Municipal Board, Nainital and the Executive
Officer of the Board) at the outset attempted obliquely to
seek support for the validity of the levy on passengers from
cl. (xiv) of s. 128(1) as pleaded in the memorandum of
appeal lodged in this Court under O.21, r. 12 of the Supreme
Court Rules. But this attempt was soon abandoned and Shri
Yogeshwar Prasad felt constrained to concede that in view of
the clear and precise position taken on behalf of the Board
in the High Court that it had never been intended to impose
toll-tax on passengers, it was not
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open to him in this Court to rely on cl. (xiv). Shri O. P.
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Rana, the learned counsel for the respondent State of U.P.
supporting the appeal, also did not rely on cl. (xiv). We,
therefore, do not purpose to express any opinion on the
question whether or not a toll-tax on passengers would be
permissible under cl. (xiv).
The only point seriously pressed on behalf of the appellants
as also by Shri O. P. Rana on behalf of the State of U.P.
was that the toll imposed on the vehicle entering the
municipality could legally be realised from the passengers
carried by it because of their nexus with the entry of the
vehicle. Before examining this contention we may in passing
turn to cl. (vii) of s. 128 ( 1 of the Act which reads:
"128(1) Subject to any general rules or
special orders of the State Government, in
this behalf, the taxes which a board may
impose in the whole or part of a municipality
are-
(vii) a toll on vehicles and other
conveyances, animals, and laden coolies
entering the municipality;
This clause in clear and unambiguous terms speaks of a toll
on vehicles and other conveyances, animals and laden coolies
,entering the municipality. It does not take within its
Cold the, passengers carried by vehicles to be taxed, with
the result that imposition of tax on passengers by the
Municipal Board would be incompetent under this clause. And
this in fact was not ,disputed at the Bar.
The argument of nexus was also raised in the High Court: but
it was repelled by that Court which observed as follows
"It was urged that when a tax on conveyance is
levied, some provision has to be made for the
assessment and collection of that tax and some
provision made about the persons from whom
that tax may be recovered and that if there
is any reasonable or rational nexus between
the levy of the tax and the persons from whom
that tax may be recovered, the Municipal Board
would be within its rights to realise the tax
from the persons so named. It is difficult,
however, to apply the nexus theory in a manner
so as to enable the Municipal Board to recover
the toll-tax from the passengers travelling in
a bus otherwise there will be no distinction
left between a vehicles-tax and a passenger
tax. When a toll-tax is
703
levied on a vehicle, it is levied at the point
of its entry within the municipal limits. It
is obviously, therefore, the person, who is in
charge of the vehicle or who makes an attempt
to take the vehicle inside the municipal
limits, who takes upon himself the
responsibility for the payment of the toll-
tax. There is no question of there being any
nexus between the levy of the tax on the
vehicle and the persons sitting inside the
same. In the case of ,vehicles plying on hire
the driver or conductor of the vehicle can, of
course, charge the amount of tax which has to
be paid, from the passengers in addition to
the fare which is normally charged from them."
The same argument was repeated before us. The submisssion
seems to be based largely on the policy of the law to ensure
the collection of taxes by preventing fraudulent evasion. in
order to, appreciate its cogency we may appropriately advert
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’to the Rules made by the State Government, in 1922 under s.
296 read with s. 153(a) of the Act, with respect to the
assessment and collection of tolls in the Nainital
Municipality. So far as relevant for the purposes of this
appeal, according to r. (1), no person can bring within the
limits of the Nainital Municipality any vehicle in respect
of which the toll-tax imposed under s. 128 ( 1 ) (vii) of
the Act is leviable until the toll due in respect thereof
has been paid to such muharrir and at such barrier as the
Board may from time to time appoint. Under r. 2(a), in the
case of laden motor vehicles the load recorded in the chalan
or invoice accompanying the vehicle has to be accepted by
the muharrir for purposes of assessing the toll. If no
chalan or invoice accompanies the vehicle the load is to be
assumed for the purposes of assessment to exceed three
mounds unless it is ascertained to be less by weighment
undertaken ’at the request of the person-in-charge of the
vehicle. The toll on a laden motor vehicle has to be paid
by the person-in-charge of the vehicle and toll on a
passenger is to be paid by the passenger. Rule 2 (b)
provides that when any person-in-charge of a laden vehicle
enters the municipal limits such person shall pay the toll
to the muharrir at the barrier add the muharrir shall tender
a face-value-ticket with coupon attached for the amount to
the person paying the toll. This face value ticket can be
examined by the official appointed for the purpose and the
person bringing the vehicle with the municipal limits is
bound under r. 3 to permit such examination. Under r. 2(c),
every driver of a motor lorry or other vehicle plying for
,hire and every driver of a private motor can or vehicle
carrying passengers or goods has to so his lorry or vehicle
at the toll barrier for a reasonable time to enable the,
toll staff to recover prover tolltax from passengers and on
the goods loaded therein. The pro-
704
vision contained in r. 2(a) that the toll on a passenger
shall be paid by the passenger on which reliance has
principally been placed, is of no assistance to the
appellants beacuse it postulates imposition of toll on_
passengers and, therefore, unless a ton has been imposed on
passengers none can be demanded from them under this clause.
Similarly the notification (No. 1450/XI-476 E) dated 19th
August, 1921, according to which toll-tax under s. 128 (1)
(vii) of the Act sanctioned by the U.P. State Government
under S. 135(2) of the Act is levied on motor vehicles other
than cars at the rate of Re. 1/- per passenger carried by
them and at the rate of Rs. 2/- per vehicle is unhelpful to
the appellants. As already observed by us, no toll-tax has
been imposed on passengers and indeed it was conceded on
behalf of the appellants, both here and in the High Court,
that the Board had never intended to impose a tax on
passengers. It is also noteworthy that the toll imposed on
the laden vehicles is expressly made payable by the person-
incharge of such vehicles and according to the scheme of the
rules which provide the procedure for collecting such tolls,
the person bringing the vehicle within the municipal limits
(who is supposed to be the person-in-charge) is enjoined to
permit examination of the face-value-ticket when demanded
after the vehicle’s enquiry into, those limits. No
liability has been fixed on the passengers for payment of
the tax imposed on the vehicles carrying them ’and entering
the Nainital Municipality. The liability for the payment of
such tax having been fixed only on the person-in-charge of
the vehicle and not on the passengers it is difficult to
appreciate how the authorities entrusted with the duty of
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realising the same can demand it from the passengers. Our
attention was not invited to any provision of law under
which the passengers can be held liable to pay the toll-tax
imposed on the vehicles. Neither any precedent nor any
principle was cited at the Bar in support of the submission
that merely because the passengers were carried by the
vehicles the toll-tax imposed on the entry of the vehicles
into the municipal limits could be demanded from them. On
the facts and circumstances of this case and on the
arguments addressed we are, therefore, unable to hold that
the passengers carried by the vehicles entering the
municipality of Nainital can be legally called upon to pay
the tax imposed on the vehicles.
As a last resort a faint attempt was made by the appellants’
counsel to rely on s. 164 of the Act in bar of the
jurisdiction of the High Court in entertaining the petition
under s. 561A, Cr. P.C. and in holding the impugned
assessment and liability of the passengers to be
unauthorised and illegal. This argument ignores the vital
point that if the impugned levy is outside the Act then this
section cannot operate and the jurisdiction of the High
Court
705
to quash the proceedings relating to the levy which is ultra
vires the taxing power of the Board under the Act cannot be
taken away to the prejudice of the aggrieved, citizen. This
submission is accordingly repelled.
In the final result this appeal fails and is dismissed.
R.K.P.S. Appeal dismissed.
1694Sup.Cl/71
706