# Company v. Thornton Urban

- **Citation:** [1967] 3 S.C.R. 243
- **Court:** Supreme Court of India
- **Decided:** 1967-03-21
- **Case number:** Civil Appeal No. 1323 of 1966
- **Bench:** M. Hidayatullah, S. M. Sikri, C. A. Vaid!Alingam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/company-v-thornton-urban-4042
- **Pages:** 13

## Headnote

Indian Tramways Act, 1886 (11 of 1886) and Indian Railways Act,
1890 (I of 1890)-N"r!'ow-gauge railway between Shchdara and Saharanpur----Originally registered as a Tramway under the 1886 Act-Railways Act made applicable to it in 1901-Company whether a 'railway'
or a 'tramway' for the purpose of exemption from terminal tax levied by
Saharanpur municipality under item 2 of Schedule B to the rules undtr
the U.P. Municipalities Act I of 1918.
The appellant company ran a narrow-gauge
railway between Shahdara and Saharanpur. As it operated partly within the Municipal area of
Saharanpur the Municipal Board of that place sought to subject railway
stores and materials brought within the munici~al area to terminal tax
as provided by the Rules framed under the Untied Provinces Municipalities Act, 1916, as amended by Act I of 1918. The exemption from
terminal tax given to railway stores and materials by item 2 to Schedule
B of the said rules was denied to the appellant company on the ground
that it was a 'tramway' and not a 'railway'. The company had been
originally registered in 1905 under the Indian Tramways Act, 1886, (Act
11 of 1886); in 1907 the whole of the Indian Railways Act, 1890, (Act
I of 1890) with the exception of s. 135 bad been extended to the company by the Governor-General-in-Council. The Company's claim that
it was a 'railway' entitled to the exemption under item 2 of Schedule B
aforesaid, was rejected by the Municipal authorities as well as in appeal,
by the Additional District Magistrate. The company therefore filed a writ
petition before the High Court which was
rejected.
By special leave
appeal was filed to this Court.
It was c~ntended on behalf of the appellant that : (i) in the absence
~f "'!Y spcc1~ definition contained in the provisions granting the exemption 1n quesllon, the expression 'railway' occurring in item 2 of Schedule
B of the ;!'erm}nal Tax Rules must bea·r the commonly understood meaning of a
c~r;1ag~ of passenger and goods, on iron rails"; (ii) by virtue
of the defiml!on m s. 311(2) of the Gcvermnent of India Act 1935
and the provts1on corresponding to
it
in the
Constitution viz Art
366(20) the ~ppellan!'.~ system though registered under
the Tra~way;
~~· wa\ a ra1lwa~, (111) the mere fact that s. 135 of the Railways Act
. not h een applied to the appellant's system was not a deci,ive factor
against t e appella;it a. assumed by the High Court.
It was not in dispute that appellants system had all the features of a railway.
.
HELJ? : Neit~~r the Municipal Act nor the Terminal Tax Rules give
i? s~ecial defimt1on of the expression 'railway' and there is nothing in
t e said Ac! or Rules to indicate that the word 'railway' in item 2 of
H
Schedule B " us~d. only to refer to a 'railway' registered under the Rail-
~a~s Ac~ or t~ hm1t the generality of the expre'lsion 'railway' in any way.
n er t osc c1rcumstances, if the appe1lant was a 'railway• in fact_
a~
comm~nly .understood-there did not appear to be any controversy on
the pomt-11 would be a railway notwithstanding the fact that it was reL5Sup. C.1./67---3
244
SUPREME COURT REPORTS
(1967] 3 S.C.R.
gistered as a 'tramway' under the Tramways Act. The legislature itself
had applied the 11rovisions of the Railway Act to the appellant, and the
appellant also satisfied the definition of a 'railway' under the Government
of India Act, 1935 and the Constitution. [254B-D]
If the appellant was a 'railway' otherwise, the mere fact that the
provisions of s. 135 of the Railways Act had not been applied to it, was
of no consequence.
[251H]
Blackpool and Fleetwood
Tramroad
Company
v. Thornton Urban
Council, L.R. [1907] 1 K.B.D. 568, Thornton Urban Council v. Blackpool
and Fleetwood Tramroad Company, L.R. [1909] AC. 264 and Tort£nham
Urban Council v. Metropolitan Electric Tramways, Ltd.,
L.R.
[1913]
A.C. 702, referred to.

## Text

A
SHAHDARA (DELHI) SAHARANPUR LIGHT RAILWAY
CO. LTD.
B
c
D
E
F
G
v.
THE MUNICIPAL BOARD, SAHARANPUR
March 21, 1967
[M. HIDAYATULLAH, S. M. SIKRI AND C. A. VAID!ALINGAM, JJ.]
Indian Tramways Act, 1886 (11 of 1886) and Indian Railways Act,
1890 (I of 1890)-N"r!'ow-gauge railway between Shchdara and Saharanpur----Originally registered as a Tramway under the 1886 Act-Railways Act made applicable to it in 1901-Company whether a 'railway'
or a 'tramway' for the purpose of exemption from terminal tax levied by
Saharanpur municipality under item 2 of Schedule B to the rules undtr
the U.P. Municipalities Act I of 1918.
The appellant company ran a narrow-gauge
railway between Shahdara and Saharanpur. As it operated partly within the Municipal area of
Saharanpur the Municipal Board of that place sought to subject railway
stores and materials brought within the munici~al area to terminal tax
as provided by the Rules framed under the Untied Provinces Municipalities Act, 1916, as amended by Act I of 1918. The exemption from
terminal tax given to railway stores and materials by item 2 to Schedule
B of the said rules was denied to the appellant company on the ground
that it was a 'tramway' and not a 'railway'. The company had been
originally registered in 1905 under the Indian Tramways Act, 1886, (Act
11 of 1886); in 1907 the whole of the Indian Railways Act, 1890, (Act
I of 1890) with the exception of s. 135 bad been extended to the company by the Governor-General-in-Council. The Company's claim that
it was a 'railway' entitled to the exemption under item 2 of Schedule B
aforesaid, was rejected by the Municipal authorities as well as in appeal,
by the Additional District Magistrate. The company therefore filed a writ
petition before the High Court which was
rejected.
By special leave
appeal was filed to this Court.
It was c~ntended on behalf of the appellant that : (i) in the absence
~f "'!Y spcc1~ definition contained in the provisions granting the exemption 1n quesllon, the expression 'railway' occurring in item 2 of Schedule
B of the ;!'erm}nal Tax Rules must bea·r the commonly understood meaning of a
c~r;1ag~ of passenger and goods, on iron rails"; (ii) by virtue
of the defiml!on m s. 311(2) of the Gcvermnent of India Act 1935
and the provts1on corresponding to
it
in the
Constitution viz Art
366(20) the ~ppellan!'.~ system though registered under
the Tra~way;
~~· wa\ a ra1lwa~, (111) the mere fact that s. 135 of the Railways Act
. not h een applied to the appellant's system was not a deci,ive factor
against t e appella;it a. assumed by the High Court.
It was not in dispute that appellants system had all the features of a railway.
.
HELJ? : Neit~~r the Municipal Act nor the Terminal Tax Rules give
i? s~ecial defimt1on of the expression 'railway' and there is nothing in
t e said Ac! or Rules to indicate that the word 'railway' in item 2 of
H
Schedule B " us~d. only to refer to a 'railway' registered under the Rail-
~a~s Ac~ or t~ hm1t the generality of the expre'lsion 'railway' in any way.
n er t osc c1rcumstances, if the appe1lant was a 'railway• in fact_
a~
comm~nly .understood-there did not appear to be any controversy on
the pomt-11 would be a railway notwithstanding the fact that it was reL5Sup. C.1./67---3
244
SUPREME COURT REPORTS
(1967] 3 S.C.R.
gistered as a 'tramway' under the Tramways Act. The legislature itself
had applied the 11rovisions of the Railway Act to the appellant, and the
appellant also satisfied the definition of a 'railway' under the Government
of India Act, 1935 and the Constitution. [254B-D]
If the appellant was a 'railway' otherwise, the mere fact that the
provisions of s. 135 of the Railways Act had not been applied to it, was
of no consequence.
[251H]
Blackpool and Fleetwood
Tramroad
Company
v. Thornton Urban
Council, L.R. [1907] 1 K.B.D. 568, Thornton Urban Council v. Blackpool
and Fleetwood Tramroad Company, L.R. [1909] AC. 264 and Tort£nham
Urban Council v. Metropolitan Electric Tramways, Ltd.,
L.R.
[1913]
A.C. 702, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1323 of
1966.
Appeal by special leave from the judgment and order dated
September 10, 1965 of the Allahabad High Court in Civil Miscellaneous Writ No. 3567 of 1965.
A
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Niren De, Addi. Solicitor-General and N. H. Hingoranl, for
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the appellant.
R. K. Garg, D. K. Agarwala and M. V. Goswami, for respondent No. 1.
The Judgment of the Court was delivered by
Vaidialingam, 1. In this appeal, by special leave, the short
question, that arises for consideration, is as to whether the appellant railway is entitled to claim exemption from payment of terminal tax, under item 2, of Schedule B, of the rules framed by the
Municipal Board cif Saharanpur. The appellant will be so entitled,
if it is held to be 'a railway', as contended, on behalf of the appellant.
The High Court of Allahabad, in its order and judgment, under
appeal, has held that the appellant is not a railway, but only a
tramway and, as such, not eligible for exemption, from the tax,
in question. The short facts, leading to this appeal, may now be
briefly set out. The appellant is a limited liability company; and
it runs a railway, between Shahdara, in Delhi, and Saharanpur, in
the State of Uttar Pradesh-a distance of about 95 miles or
148.865 kilo meters. The appellant company also operates within
the municipal area of Saharanpur. The company was, originally,
registered as a tramway, under the Indian Tramways Act, 1886
(Act XI of 1886) (hereinafter called the Tramways Act), on
November 20, 1905.
By Notification, No. 5752, dated July 5,
1-907, the Governor General in Council extended to the appellant
company, the whole of the Indian Railways Act, 1890 (Act I of
I.
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SHAHDARA RLY, co. v. MUNICIPAL BOARD (Vaidialingam, 1.) 24 5
1890) (hereinafter called the Railways Act), excepting the provisions of Section 135.
The Municipal Board of Saharanpur, th.e.first respondent~
in, imposes a terminal tax, under the provmons of s. 128(1)(x111)
of the United Provinces Municipalities Act, 1916, as amended by
Act I of 1918. Under the said Act, the first respondent has prohibited the importation of goods, within the local limits of the
Saharanpur Municipality, by rail, until the tax leviable thereon,
or in respect thereof, has been paid, in accordance with the provisions of the Act and the Rules. The Board has also framed rules
for the assessment and collection of Terminal Tax, as authorized
by the Government Notification No. 856/XI-D.T. 3, dated May l,
1919. The rules have been amended, as per another notification,
No. 5965/XI-D.T. 3, dated September 21, 1939.
Item 2, of Schedule B, of. these rules, provides for a list of
articles being exempted from payment of Terminal Tax. The said
item is as follows :
"Railway stores and materials, which are required for
use on Railways, whether in construction, maintaining or
working the same and which are not removed outside the
Railway land boundaries but r.ot stores imported into
Municipal limits for purchase and consumption by Railway employees nor stores with which Railway Cooperative Stores are stocked for sale to Member."
It is the claim of the appellant that, till 1961, the first respondent has
•ever imposed any terminal tax, on 'railway stores and materials'
required for use on the railway of the appellant company, for the
purposes mentioned in item 2 of Schedule B. But, for the first time,
in January 1962, according to the appellant, the first respondent
i!llposcd tax on such stores and attempted to make the appellant
liable.
The a_Ppell~nt com~any protested against this levy, on the
grou~d t~at, 1t bemg ~ r~ilway, was entitled to the exemption
provided m respect of ra!lway stores and materials which are
required for use on railway'.
But, the first respondent, by its order,
d~ted October 11, 1962, over-ruled the appellant's objections in
this !:gard. .~ appeal~ taken by the appellant company, to the
Add1,tt?n~ .District Magistrate, Saharanpur, under s. 160 of the
Muruc1paht1es Act, read with the relevant Rules did not meet with
success, as the said Magistrate rejected the appeal by his order
dated May 25, 1965.
'
The appellant ~pany filed Civil Miscellaneous Writ No. 3567
H
of 1 ?65, m the High Court of Allahabad, challenging the levy of
termmal tax an~ claimed exemption, under item 2, of Schedule B,
referred to earlier.
The learned Judges of the Allahabad High
Court, by their judgment, dated September 10, 1965, dismissed
246
SUPREME COURT REPORTS
[1967p S.C.R.
the writ petition.
They were of the view that the appellant company was not 'a railway', but 'a tramway' constructed under the
Tramways Act.
In this connection, the learned Judges adverted
to the Railways Act, which defines both the terms 'tramway' and
'railway'. It is their view that when a tramway and a railway, are
both separately defined· in an Act, a tramway cannot also be a
railway.
The learned Judges, of the High Court, then referred to the
fact that so far as the appellant company was concerned, the Central Government had not applied s. 135 of the Railways Act,
though all the other provisions of that Act had been applied.
They further held that a mere application of the Railways Act,
in whole or in part, to a tramway, will not convert the tramway
into a railway and that, in order to be a railway, it has to be
opened, in accordance with the provisions contained in Chapter
IV, of the Railways Act. So, they concluded that, inasmuch as
the appellant railway was not opened, in accordance with the provisions of the Railways Act, it had been, from its inception, and
it continued to be, not a railway, but only a tramway. On this
line of reasoning, the High Court further held that in the rules
framed by the Municipal Board, the expression 'railway' must be
intended to refer only to 'railways' coming under the Railways
Act, and could not include a 'tramway', like the appellant, opened
under the Tramways Act. In consequence, the claim of the appellant, for exemption, was, according to the High Court, rightly
rejected by the authorities.
The result was the dismissal of. the
appellant's writ petition, by the High Court.
We shall now refer to the main features of the appellant ·company. The appellant railway is worked by steam, or other mechanical power, and is not wholly within a Municipal area. The railway line comprises narrow gauge track of 2' 6" gauge, and consists of main line, transportation sidings and commercial sidings.
The line passes through four districts viz. Saharanpur, Muzaffarnagar, Meerut and Delhi, within the provinces of Uttar Pradesh
and Delhi. The system has about 155 level crossings, comprising
of Special Class, A-class, B-class and C-class. Some of the level
crossings are provided with signalling and interlocking arrangements and the system takes in 406 bridges, and 26 railway stations,
in all.
The bridges and culverts are maintained, in accordance
with the instructions contained in 'Way and Works Manual' of the
Indian Railways, and the railway stations are fitted with Morse
speakers and instruments, for working trains, as per general rules
applicable to all railways. There is annual inspection of the railway line, by the Additional Commissioner of Railways Safety, appointed by the Government, to inspect Indian Railways. There are
arrangements for through booking of goods and passengers. From
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SHAHDARA RLY. co. v. MUNICIPAL BOARD (Vazdialingam, J.) 247
what is stated above, it will be seen that the appellant company
is a 'railway', as commonly understood, and described in ordinary
parlance.
·
The Tramways Act was an Act passed to facilitate the con,
struction and to regulate the working of Tramways. Section 3(5}
defines 'tramway' as follows :-
" 'tramway' means a tramway having one, two or
more rails, and includes-
(a) any part of a tramway, or any siding, turnout,
connection, line or track belonging to a tramway;
(b) any electrical equipment of a tramway; and
(c) any electric supply-line transmitting power from
a generating station or sub-station to a tramway or from a
generating station to a sub-station from which power is
transmitted to a tramway."
The expression 'order', under s. 3(6), means an order authorizing
the construction of a tramway under the Act, and includes a further order substituted for, or amending, extending or varying, that
order. There are various other provisions in this Act relating to
the construction and maintenance of tramways, orders authorizing
the construction of tramways, and other incidental matters.
The Railways Act was an Act to consolidate, amend and add
.to the law relating to Railways in India. Section 3 ( 1) defines
'tramway' as meaning a tramway constructed under the Tramways
Act, or any special Act relating to tramways.
Section 3(4) defines 'railways' and is as follows :
" 'railway' means a railway, or any portion of a railway, for the public carriage of passengers, animals or
goods, and includes-
(a) all land within the fences or other bountlarymar~s indicating the limits of the land appurtenant to
a railway;
·
(b) all lines of rails, sidings or branches worked over
for the purposes of, or in connection with, a railway;
(c) all stations, offices, warehouses wharves workshops, manufactorics, fixed plant and' machinery and
othe~ wor~s constructed for the purposes of, or in connection with, a railway; and
~ d) all ferries, ships, boats and rafts which are used
on mland waters for the purposes of the traffic of a rail-
~ay and. ~Ion~ to or are hired or worked by the authority adm1mstermg the railway."
I
248
SUPREME COURT REPORTS
[1967] 3 S.C.R.
This Act also contains various provisions relating to the opening
of railways, inspection of railways, construction and maintenance
of works, working of railways and i;everal other incidental matters.
Section 135, occurring in Chapter X, containing supplemental provisions, relates to taxation of railways by local authorities. That
section reads :
.
"135. Notwithstanding anything to the contrary in
any enactment, or in any agreement or award based on
any enactment, the following rules shall regulate the levy
of taxes in respect of railways and from railway administrations in aid of the funds of local authorities, namely :-
(1) A railway administration shall not be liable to
pay any tax in aid of the funds of any local authority
unless the Central Government has, by notification in the
Official Gazette, declared the railway administration to
be liable to pay the tax.
r.
(2), While a notification of the Central Governinent
under clause (1) of this section is in force, the railway
administration shall be liable to pay to the local authority either the tax mentioned in the notification or, in lieu
thereof, such sum, .if any, as an officer appointed in this
behalf by the Central Government may, having regard
to all the circumstances of the case, from time to time
determine to be fair and reasonable.
(3) The Central Government may at any time revoke or vary a notification under clause (1) of this section.
(4) Nothing in this section is to be construed as debarring any railway administration from entering into
a contract with any local authority for the supply of water
or light, or for the scavenging of railway premises, or
for any other service which the local authority may be
rendering or be prepared to render within any part of
the local area under its control.
(5) 'Local authority' in this section means a local
authority as defined in the General Clauses Act, 1887,
and includes any authority legally entitled to or entrusted
with the control or management of any fund fot the
maintenance of watchmen or for the conservancy of a
river."
·
•
The point to be noted, in this provision, is that unless a notification has been issued by the Central Government, under sub-s. (1)
of s. 135, declaring a railway administration to be liable to pay a
tax, a railway administration shall not be liable to pay any tax in
,
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SHAHDARA RLY, co. v. MUNICIPAL BOARD (Vaidialingam, J.) 249
aid of the funds of any local authority. Section 146, giving power
to the Government to extend the Railways Act to certain tramways, is as follows :
"146. (1) This Act or any portion thereof may be
extended by notification in the Official Gaz.ette :-
(a) to any tramway which is wholly within a municipal area or which is declared not to be a railway
under clause (20) of article 366 of the Constitution, by the State Government; and
(b) to any other tramway, by the Central Government.
(2) This section does not apply to any tramway not
worked by steam or other mechanical power."
We have already pointed out that all the provisions of the Railways Act, except s. 135, have been extended to the appellant
company.
The next enactment to be referred to is the Indian Railway
Companies Act, 1895 (Act X of 1895), which provided for the
payment, by railway companies, registered under the Indian Companies Act, 1882, of interest out of capital during construction.
Section 2(1) defines 'railway' as meaning a railway as defined in
s. 3, cl. ( 4) of the Railways Act. Section 3 provided for a railway company paying interest on its paid-up share capital, out of
capital, for the period, and subject to the conditions and restrictions contained in that section.
There are other consequential
provisions, in this Act.
The Indian Tramways Act, 1902 (Act IV of 1902) was one
to apply the provisions of the Indian Railway Companies Act,
1895, to certain tramway companies. The preamble to this Act
IV of 1902, stated that it was expedient to apply the provisions of
the Indian Railway Companies Act, 1895, to companies formed
for the construction of tramways 'not differing in structure and
working from light railways'.
This preamble will clearly show
that,
even as early as 1902, the Legislature considered that
though certain systems were called 'tramways', substantially they
did not differ, in structure and working, from light railways.
The expression 'railway' is defined, in s. 311 (2) of the Government of India Act, 1935, as follows :-
" 'railway' includes a tramway not wholly within a
municipal area."
It is to be noted that if a system, though a tramway, is wholly not
within a municipal area, that system will be a 'railway'. Entry
SUPREME COURT REPORTS
(1967] 3 S.C.R,
58, of List I (Federal List) of the Seventh Schedule to the 1935
Act, was:
·
. ·~Terminal taxes on goods or passengers carried by
railway or air; taxes on railway fares and freights."
. It is, again, .to be noted, that under this Entry, in respect of a
tr~way, which is not wholly within a municipal area and which
will, therefore, be a 'railway', under s. 311 (2), ·the levy of terminal
tax on goods or passengers carried by such a system, will be within
the competence of the Federal Legislature.
Under Art. 366(20) of the Constitution, the expression 'rail·
way' is dealt with, as follows :
" 'railway' does not include-
(a) a tramway wholly within a municipal area, or
(b) any other line of communication wholly situate in
one State and declared by Parliament by law
not to be a railway."
It may be noted here that the appellant's system does not come
within the exclusions mentioned in els. (a) or (b) of this definition.
Entry 89 of List I (Union List), of the Seventh Schedule to the
Constitution, is as follows :
"Terminal taxes on goods or passengers, carried by
railway, sea or air; taxes on railway fares and freights."
It may be noted that the competent legislative body to levy terminal
taxes on goods or passengers, carried by the appellant's system,
which will be a 'railway', under Art. 366(20), is the Parliament.
The only other Act to be referred to is the Railways (Local
Authorities' Taxation) Act, 1941(ActXXVof1941), which was
an Act to regulate the extent to which railway -property shall be
liable to taxation imposed by an authority.
Section 3(1) of that
Act provided that a railway administration shall be liable to pay
any tax in aid of the funds of any local authority, if the Central
Government, by notification in the Official Gazette, declared it to
be so liable. Section 4 provided for the Central Government, by
notification in the Official Gazette, revoking or varying any notification issued under s. 135(1) of the Railways Act.
The learned Additional Solicitor-General, appearing for the appellant, pointed out that the expression 'railway' had not been
defined in the United Provinces Municipalities Act, or in the Terminal Tax .Rules. In the absence of any special definition contained in the provisions, granting the exemption, in question, the
expression 'railway', occurring in item 2, of Schedule B, of the
Terminal Tax Rules, must bear the commonly understood meaning of 'a carriage of passenger and goods, on iron rails'. By virtue
of the definition, ins. 311(2) of the 1935 Act, and the provision,
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SHAHDARA RLY, co. v. MUNICIPAL BOARD (Vaidialingam, !.) 251
corresponding to it, in the Constitution, viz., Art. 366(20), the
appellant's system, though registered under the Tramways Act,
was a railway. The mere fact that s. 135, of the Railways Act,
had not been applied to the appellant's system, is not a decisive
factor against the appellant, as had been assumed by the High
Court. In view of the various features of the appellant's system,
and pointed out by us earlier, it is argued that the appellant's system is a 'railway', both in law and in fact. It satisfies all the ingredients of a railway and, if that is so, the appellants are entitled
to the exemption provided for, under item 2 of Schedule B, of the
Terminal Tax Rules.
On the other hand, Mr. Garg, learned counsel appearing for
the respondent Board, pressed before us for acceptance the various
reasons, given by the High Court, for holding that the appellant is
not entitled to claim the exemption. In particular, counsel pointed
out that there were two different enactments, one dealing with
'tramways' and the other with 'railways', being the Tramways Act
and the Railways Act, respectively. Therefore, there were two different systems, under two different names, namely 'tramways' a11d
'railways', which was clearly known to the authorities concerned
at the time when the Terminal Tax Rules were framed, and so
when the expression 'railway' was used in the exemption clause,
it must have been the intention of the framers of the Rules to
bring, within its ambit, only the 'railways' constructed under the
Railways Act. The appellant's system, though called a 'railway'
and though it might have all the features of a railway, it is pointed
out, nevertheless, that inasmuch as it has been constructed under
a different enactment, viz., the Tramways Act, it cannot be treated
as a 'railway' for the purposes of the exemption. Counsel also
stressed that s. 135 of the Railways Act had not been applied te>
the appellant.
. We are not impressed with the approach made by the learned
Judges of the High Court, for negativing the claim for exemption, made by the appellant. It must be borne in mind that the
expression 'railway' has not been defined either in the concerned
Municipalities Act, or the Rules; if such is the case, the definition
must hold the field.
Going by the definition of the expression
'railway', co111ained in s. 311 (2)
of the Government of India
Act, 1935, and the corresponding provision in Art. 366(20) of
the Constitution, the appellant's system is a 'railway'.
All the
provisions of the Railways Act have been extended to the appellant, excepting s. 135. In our opinion, if the appellant is a 'ra!lway', otherwise, the mere fact that the provisions of s. 135, of the
Railways Act, have not been applied, is of no consequence. We
have already referred to the fact, which is not in dispute, that the
appellant's railway passes through four districts in U.P.
and
252
SUPREME COURT llEPOllTS
[1967] 3 S.C.R.
Delhi,. and that it has got all the features of a.railway, as ordinarily
understood.
In this connection, we may refer to certain English decisions,
where the claim, made on behalf of a system, for being taxed at a
concessional rate, had come up for consideration.
In Blackpool and Fleetwood Tramroad Company v. Thornton Urban Council('), the Court of Appeal had to consider as
to how far the Blackpool & Fleetwood Tramroad Company, the
appellant before them, was entitled to the assessment, at a lower
rate under s. 2ll(l)(b), of the Public Health Act, 1875 (38 &
39 Viet. c. 55). The material portion of that section was :
"the occupier of any land . . . used only as a
canal . . . or as a railway, constructed under the
powers of any Act of Parliament, for public conveyance,
shall be assessed in respect of the same in the proportion of one-fourth. part only of the net annual value
thereof."
The question was as to whether the appellant, in that case, was
a 'railway', to whom the said provision would apply.
The appellant company had constructed and maintained a tramroad
connecting two systems of tramways, under the local Acts of 1896
and 1898. Various provisions of the Railways Clauses Consolidation Act, 1845, had been applied to the tramroad.
The tramroad, in that case, was on r11ils laid on sleepers, fenced off from
adjoining land, excepting at the level crossings of roads.
The
Divisional Court had rejected the claim of the appellant; but the
Court of Appeal held that the tramroad was land 'used only as a
railway constructed under the power of an Act of Parliament for
public conveyance', ·within the meaning of s. 211(1)(b) of the
Public Health Act, 1875, and that the company was, consequent·
ly, entitled to be assessed, in respect of the said 'railway', at onefourth of its net annual value. The appellants contended that the
tramroad was and could only be worked as a railway and was, in
fact and in law, used· as a railway, and, in consequence, they
urged that the tramroad, maintained by them, is 'land' used only
as a ·railway. The Court of Appeal noted that the rails were raised ai;:td laid on sleepers, just as a railway is laid, and that was the
main distinction between the appellant's system, and a tramway,
which ran along public streets and in grooved rails.
No doubt,
it was pointed out for the Urban Council, that the appellant company had been incorporated under the Tramways Act and the very
fact that certain provisioru of the bilway Clauses Consolidation
Act were applied to the appellant's system showed that the appellant was not a railway.
The Court of Appeal held that it
was impossible to distinguish the piece of tramroad, owned by the
(I) L. R. (1907] I K.B.ri. S68.
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SHAHDARA llLY. co. v. MUNICIPAL BOARD (Vazdialingam, /.) 253
appellants, from a railway and that the exemption provided for in
the Public Health Act applied to the trarnroad of the appellants
as it would, to any ordinary railroad passing through parts where
it was not deriving the full benefit from the district rates in those
parts. The Court of Appeal also rejected the contention of the
Urban Council that the tramroad, owned by the appellants could
be treated as a 'railway' only for particular purposes, and not for
the purpose of claiming the exemption under the Public Health
Act; because, according to the Court of Appe~. a reading of
s. 211 ( 1) (b) of the Public Health Act, showed that it applied to
land used as a railway, i.e., constructed as a railway in fact.
This decision was taken up in further appeal, before the
House of Lords, whose decision is reported as Thornton Urban
Council v. Blackpool and Fleetwood Tramroad Compan,y('), and
the decision of the Court of Appeal was confirmed. In the course
of the judgment, after referring to s. 211 of the Public Health Act,
Lord Macnaghten observed, at p. 267 :
"Now it cannot be denied that the rails on which the
tramcars run, with the embankment or foundation on
which they rest, and everything that supports them, do
form a road or way, and that that road or way was constructed under parliamentary powers for public conveyance. Is it 'a railway' ? There is nothing in the Public
Health Act, 1875, or in the earlier Acts, in which the
same provision is found, to confine the word 'railway'
as used in those Acts to a particular kind of railway, or
to limit the generality of the expression in any way."
His Lordship, further observed at p. 268 :
"It seems to me that if it is a railway in fact, not
differing from other railways in any material particular, it is nonetheless a railways because the promoters in
their special Act chose to call it a 'tramroad' -a very
convenient term to use for the title of their Act and the
name under which they sought incorporation. Nor is it
the less a railway because some only of the sections of the
Railways Clauses Consolidation Act are incorporated in
the special Act, or because, if one did not know what the
thing really was, the language used for the purpose of
applying the sections which are incorporated might seem
to import that it was not, properly speaking, a railway
at all. You must look at the special Act to see that it
confers the appropriate powers of construction. Everything else in the Act is, I think, beside the question which
this House has now to determine."
(1) L.R. [1909] A.C. 264.
254
SUPREME COURT REPORTS
[1967] 3 S.C.R.
In our opinion, the observations of the House of Lords, extracted above,. are apposite, to the case on hand.
We have. already pointed out that neither the Municipal Act, nor the TeriJlinal Tax Rules give any special 'definition of the expression 'railway', and, so far as we could see, there is. nothing in the said Apt
or the Rules to indicate that the word 'railway', in item 2 of
Schedule B, is used only to refer to a 'railway' registered under
the Railways Act or to limit the generality of the expression 'railway' in any way,
Under those circumstances, if the appellant is
a 'railway' in fact,' as commonly understood-there does not appear
to be any serious controversy on that point-it will be a 'railway', notwithstanding the fact that it is registered as a 'tramway',
under the Tramways Act.
The legislature itself has applied the
various provisions of the Railways Act to the appellant, and the
appellant also satisfies the definition of a 'railway' under the Government of India Act, 1935, and the Constitution. The provisions
of the Indian Railway Companies Act, 1895, have also been applied to the tramways constructed, under the Tramways Act, by
the Indian Tramway Act of 1902. The second preamble to the
last mentioned Act, clearly shows that the tramways, to which the
Indian Railway Companies Act was made applicable, 'do not
differ in structure and working from· railways'.
The object underlying the exemption under item' 2, of Schedule B, to the Terminal Tax Rules, is also not far to seek. The
railways pass through areas where it is not deriving the full benefit
of all the amenities provided by the Municipal Boards. Therefore,
in our opinion, the appellant satisfies the definition of a 'railway',
so as to be entitled to the exemption provided under item 2 of
Schedule B.
Before we close the discussion, we will also refer to the decision of the House of Lords in Tottenham Urban Council v. Metropolitan Electric Tramways, Ltd. ( 1). The same question regarding
the eligibilty of a 'tramway' for exemption, under s. 21l(l)(b) of
the Public Health Act, 1875, came up for consideration in that
case. From the judgment, it will be seen that the company were
working, as a connected system, a tramway and a light railway,
which were constructed in and along certain public streets and
roads, in the district of the urban Council. The 'tramway' was
constructed under'the Tramway Acts and Orders and the 'railway,'
under the Light Railways Act, 1896. Both were iden'tical as to
the mode of construction and materials used.
The claim of the
company in respect of the 'railway', as such, for assessment at a
lower rate, was accepted; but, so far as the 'tramway' was concerned, the House of Lords held that it is not a 'railway', within
the meaning of s. 21 l(l)(b), of the Public Health Act, 1875. The
(ll L. R. [1913) A. C. 712.
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&HAHDARA RLY. co. v. MUNICIPAL BOARD (Vaidialingam, 1.) 255
reason given by the House of Lords, for not accepting the claim
of the tramway, was that in the great bulk of public legislation,
relating to railways, the legislation has universally been understood
and interpreted by Courts as applying only to that which is popularly known as a 'railway', and not to that which is popularly
known as a 'tramway'. And special emphasis is laid by the House
of Lords that the legislature has used the word 'railways' and not
'railways and tramways', in s. 211 of the Public Health Act, 1875.
We are only adverting to this decision to show that, on the
basis of an interpretation placed by the Courts, the House of Lords
held that the word 'railways', in the Public Health Act, 1875, will
not take in 'tramways'. But, no such circumstances, as pointed
out by the House of Lords, in the said decision, exist in the present case before us. On the other hand, the position is exactly tbe
opposite, as will be seen from the Government of India Act, 1935,
and the Constitution. Even applying the popular test, adopted by
the House of Lords, in this case, the appellant is undoubtedly a
'railway'.
In our opinion, the principles laid down by the House of Lords
in Thornton Urban Council v. Blackpool and Fleetwood Tramroad Company('), apply to the particular matter on hand and,
we hold that the appellant, being a 'railway', is entitled to the exemption under item 2, of Schedule B, to the Terminal Tax Rules,
in question.
We, accordingly, allow the appeal and set aside the judgment
of the High Court, and further direct that a writ will issue, as
prayed for by the appellant. The appellant will be entitled. to its
costs, from the first respondent, both in this Court and in the
High Court.
G. C.
Appeal allowed.
(I) L. R. [1909) A. C. 264.