# ·100 MUNJCJPAL BOARD, NAJNJTAL & ANR v. BRJJ MOHAN CHANDRA & ANR

- **Citation:** [1971] 2 S.C.R. 700
- **Court:** Supreme Court of India
- **Decided:** 1970-10-26
- **Case number:** '. Criminal Appeal No. 134 of 1968
- **Bench:** S. M. Sikri, V. Bhargava, J. D. 9yA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/100-munjcjpal-board-najnjtal-anr-v-brjj-mohan-chandra-anr-5228
- **Pages:** 6

## Headnote

B
U.P. Municipuliries Act JI of 1916, s. 128(1)-/f (IU/horise.1• <·ol/ection
of a to/l-1ax levi~d on vehicle.~ fron1 pa.~sengers travelling in ti vehicle.
While the first respondent was travelling by a U.P. GovernJ11cnt Road·
ways bus from Bhowali to N.ainital in May 1967, toll-tax was demanded C
from him at the nppcllant's municipal toll barrier but he declined to pay.
The Executive Officer, Municipal Board, Nainital,
th~reupon filed
a
complaint against him under s. 190(1) (c) Cr.P.C., for breach of rule 1
of the Rules made under s. 153(a) of the U .. P. Municipalities Act. 1916.
The first respondenfs contention was that tile levy of toll-tax by the
Municipal Board on passengers was ullra vires the taxing powet of the
Board.· During the pendency of these proceedings, on an application made
by the first respondent under s. 561A, Or.P.C., the High Court quashed D
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 aa 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 E
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 expre'5ly made payable by
the person-in-charge of such vehicles.
No liability has bc<n 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 F
principle in support of the submission that merely because the passengers
were carried by the vehicles the toll·tax imposed on the entry o'f the
vehicles into the municipal limits could be demanded from them 1704 D·G]
When the impugned levy W<l.S oHtside the Act, s. 164 of the Act could
not operate to bar the jurisdiction of the High Court to quash the proceedings relating to the levy which was ultra virus the t.1xing power of the
Board. [704 HJ
G
·CRIMINAL APPELLATE JURISDICTION'. Criminal Appeal No.
134 of 1968.
Appeal from the judgm€nt and orc,ler dated April 16, ! %8 of
;he AJ!ahabad High Court in Criminal Misc. Case No. 3403 of
1967.
H
Yogeshwar Prasad, for the appellant.
0. P. Rar:a, for respondent No. 2.
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MUNICIPAL BOARD v. BRIJ MOHAN (Dua, /.)
70 I

## Text

·100
MUNJCJPAL BOARD, NAJNJTAL & ANR.
A
v.
BRJJ MOHAN CHANDRA & ANR.
October 26, 1970
[S. M. SIKRI, V. BHARGAVA AND J. D. 9yA, JJ.]
B
U.P. Municipuliries Act JI of 1916, s. 128(1)-/f (IU/horise.1• <·ol/ection
of a to/l-1ax levi~d on vehicle.~ fron1 pa.~sengers travelling in ti vehicle.
While the first respondent was travelling by a U.P. GovernJ11cnt Road·
ways bus from Bhowali to N.ainital in May 1967, toll-tax was demanded C
from him at the nppcllant's municipal toll barrier but he declined to pay.
The Executive Officer, Municipal Board, Nainital,
th~reupon filed
a
complaint against him under s. 190(1) (c) Cr.P.C., for breach of rule 1
of the Rules made under s. 153(a) of the U .. P. Municipalities Act. 1916.
The first respondenfs contention was that tile levy of toll-tax by the
Municipal Board on passengers was ullra vires the taxing powet of the
Board.· During the pendency of these proceedings, on an application made
by the first respondent under s. 561A, Or.P.C., the High Court quashed D
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 aa 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 E
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 expre'5ly made payable by
the person-in-charge of such vehicles.
No liability has bc<n 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 F
principle in support of the submission that merely because the passengers
were carried by the vehicles the toll·tax imposed on the entry o'f the
vehicles into the municipal limits could be demanded from them 1704 D·G]
When the impugned levy W<l.S oHtside the Act, s. 164 of the Act could
not operate to bar the jurisdiction of the High Court to quash the proceedings relating to the levy which was ultra virus the t.1xing power of the
Board. [704 HJ
G
·CRIMINAL APPELLATE JURISDICTION'. Criminal Appeal No.
134 of 1968.
Appeal from the judgm€nt and orc,ler dated April 16, ! %8 of
;he AJ!ahabad High Court in Criminal Misc. Case No. 3403 of
1967.
H
Yogeshwar Prasad, for the appellant.
0. P. Rar:a, for respondent No. 2.
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MUNICIPAL BOARD v. BRIJ MOHAN (Dua, /.)
70 I
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 II 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 rekvant 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. I in this Court) travelled 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.
(I ) of the Rules made under s. ! 53(a) of the Act for the assessment and collection 'of tolls within the municipality of Nainital.
Brii 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 a~
Allahqbad under s. 561A, Cr. P.C. for quashing those proceedings. The High Court (S. D. Singh J) on April 16, 1968 quashed the.::iroceedings 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 dcwn 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 j of
s. 128(1) as pleaded in the memorandum of appeal lodged in
this Court under 0.21, r. 12 of the Supreme Court Rules.
But
this attempt was soon abandoned and Shri Yogeshwar Prasad felt
c.onstrained to concede that in view of the clear and precise posittan 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
'702
SUPREME COURT REPORTS
[1971] 2 S.C.R.
-Open to him in this Court to rely on cl. (xiv). Shri 0. P. Rana,
•the learned counsel for the respondent State of U.P. supporting
<the appeal, also did not r~Iy on cl. (xiv). We, therefore, do not
porpose 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 0. P. Rana on behalf of the State of U.P. was
that the toll impc>sed 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
whic..li. 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 una111biguous terms speaks
of a
toll on· vehicles and other conveyances, animals and laden coolies
entering the municipality.
It does not take within its fold 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 -.vas 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 m.ide
about the persons .from whom that tax may be recovered ;μid that if there is any reasonable or ratio::al 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 Bo.ird
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
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MUNICIPAL BOARD v. BRIJ MOHAN (Dua, J.)
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 responsibilty for the payment of the toli..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 sub~is
sion seems to be based largely on the policy of the law to ensure
the col!ection of taxes by preventing. fraudulent evasion. In 01ver
to appreciate its cogency we may appropriately advert to the
Rules made by the State Government in 1922 under s. 296 read
with s. 153(a) of the Act, wJth respect to the assessment :rnd
collection of tolls in the Nainital Municipality.
So far as xe;
levant for the purposes of this appeal, according to r. (1), no
person can bring within the limits of the Nainital Municipalicy
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 maunds unless it is
ascertained to be less by weighmea:it undertaken at the request of
the person-in-charge of the vehicle.
The toll on a laden motQr
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 aind the muharrir shall tender a face-value-ticket with
coupon attached for the amount to the oerson paying the toll. This
face value ticket can be examined by the official appointed for the
purpose and the person brilllging the vehicle with the municipal
limits is bound under r. 3 to permit such examination.
Under
r. 2( c), every driver ol1 a motor lorry or other vehicle plying for
hire and every driver of a private motor cain or vehicle carrying
passengers or goods has to ston his lorry or vehicle at the toll barrier
for a reasonable tinie to enable the toll staff to recover proper tolltax from passengers and on the goods loaded therein. The pro-
704
SUPREME COURT REPORTS
[1971] 2 S.C.R.
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 110 assistance t0 the apgellants beacuse it postulates
imposition of toll on passengers and, therefore, unless a toll has
'been imposed on passengers none <:an be demanded from them
under this clause. Similarly the notification (No. 1450/XI-476 E)
dated 19th August, 1921, according to whid1 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 1han
cars at the rate of Re. I/- per passenger carried by them and at
the rate of Rs. 2/- per vehicle is unhelpful to the appellants. As
already observed by us, 1!10 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 inte.nded to impose
a tax on passengers. Tt 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 b~ the person-in-charge) is enjoined to permit examination of
the face-value-ticket when demanded after the vehicle's entry ·into those limits. No liability has been fired on the passengers for
payment of the_ tax imposed on the vehicles carrying them
and
·entering the Nainital Municipality. The liability for the payment
ot such tax having been fixed only on the pr.non-in-charge of the
vehicle and not on the passengers it is difficult to appreciate how
the authorities entrusted with the duty of realising the same cnn
demand it from the passengers.
Our attention was not invited to
any provision of Jaw 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 entrv 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 tile 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. 561 A. Cr.
P.C. and in holding the impugned assessment and liability of the
passengers to be una11thorised and illegal. This argument ignores
the vital point that if the impugned levv is outside the Act •hen
this section cannot operate and the jurisdiction of the High Court
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MUNICil'AL BOARD V. BRIJ MOHAN tD11a, /,)
705
to quash the proceedings relating to the levy which is ultra vir~s
the taxing power of the Board UI1der the Act cannot be taken
away to the prejudice of the aggrieved citizen. This submi;sion
is accordingly repelled.
In the final result this appeal fails and is dismissed.
R.K.J:'.S.
Appeal dismissed.