# MUNICIPAL BOARD OF HARDWAR v. RAGHUBIR SINGH ETC

- **Citation:** [1966] 2 S.C.R. 891
- **Court:** Supreme Court of India
- **Decided:** 1965-12-06
- **Case number:** Civil Appeals Nos. 311 to 366 of 1964
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/municipal-board-of-hardwar-v-raghubir-singh-etc-3763
- **Pages:** 7

## Headnote

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MUNICIPAL BOARD OF HARDWAR
v.
RAGHUBIR SINGH ETC.
December 6, 1965
[P .. B.
GAJENDRAGADKAR,
C.J., K. N.
WANCHOO,
M. HIDAYATULLAH, V. RAMASWAMI AND
P.
SATYANARAYANA
RAJU, JJ.J
U.P. Municipalities Act
(2 of 1916), s. 128(1) (vii)
and (xiv)-
Scope of.
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(l)(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 cl. (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 cl.
(xiv). Therefore, the toll could be collected only from
vehicles .entering the municipality.
The distinction made by the Di vi~
sional 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 munic;pality could not enter the discussion. [897
B-FJ
Since the tolls were first imposed in 1941, cl. (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 confets powers
on
municipalities to levy them and then it enacts cl. (xiv) which is intended
to cover the taxes not enumerated v.lhich 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 on because it
did not enable the Provincial Legislature to impose taxes on passengers
carried over inland routes. The power which flowed from Entry 53 was
made over to the appellant to be exercised in the particular manner stated
in cl. (vii), that is, on vehicles entering the municipality, and to permit
the tolls to be levied on v·ehicles leaving the municipality would render
cl. (vii) ineffective. [895 A-C, E-G, HJ
892
SUPREME COURT REPORTS
[1966] 2 S.C.R.
The power of the State Lei:IBlature derivable from Entries 56 and 59
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of the State List of the Constllution 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 tolls
under Entry 59 continued to be restricted to vehicles entering the municipality.
Besides, cl. (vii) under which it was issued limited the l'ower
to vehicles entering the municipality. The third notification was irrelevant, as was issued after the petitions were filed. [896 A-CJ

## Text

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MUNICIPAL BOARD OF HARDWAR
v.
RAGHUBIR SINGH ETC.
December 6, 1965
[P .. B.
GAJENDRAGADKAR,
C.J., K. N.
WANCHOO,
M. HIDAYATULLAH, V. RAMASWAMI AND
P.
SATYANARAYANA
RAJU, JJ.J
U.P. Municipalities Act
(2 of 1916), s. 128(1) (vii)
and (xiv)-
Scope of.
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(l)(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 cl. (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 cl.
(xiv). Therefore, the toll could be collected only from
vehicles .entering the municipality.
The distinction made by the Di vi~
sional 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 munic;pality could not enter the discussion. [897
B-FJ
Since the tolls were first imposed in 1941, cl. (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 confets powers
on
municipalities to levy them and then it enacts cl. (xiv) which is intended
to cover the taxes not enumerated v.lhich 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 on because it
did not enable the Provincial Legislature to impose taxes on passengers
carried over inland routes. The power which flowed from Entry 53 was
made over to the appellant to be exercised in the particular manner stated
in cl. (vii), that is, on vehicles entering the municipality, and to permit
the tolls to be levied on v·ehicles leaving the municipality would render
cl. (vii) ineffective. [895 A-C, E-G, HJ
892
SUPREME COURT REPORTS
[1966] 2 S.C.R.
The power of the State Lei:IBlature derivable from Entries 56 and 59
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of the State List of the Constllution 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 tolls
under Entry 59 continued to be restricted to vehicles entering the municipality.
Besides, cl. (vii) under which it was issued limited the l'ower
to vehicles entering the municipality. The third notification was irrelevant, as was issued after the petitions were filed. [896 A-CJ
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 311 to
366 of 1964.
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Appeals from the judgment and decrees dated December 6,
...11.,.'.-
1957, December 16, 1958, January 29, 1959 of the Allahabad
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High Court in Special Appeals Nos. 343 and 381-416 of 1955,
548 of 1958 49-55 and 57-67 of 1959 respectively.
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M. C. Setalvad, B. P. !ha 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
-0f law and to appreciate it the narration of a few simple facts
will be sufficient.
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On October 29, 1941, the Hardwar Union Municipal Board
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(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 ~he 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.
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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
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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/
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Hardwar road at a place called Kharkhari within the limits of
Hardwar Municipality.
Toll was collected at that barrier from
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MUNIC. BOARD v. R. SINGH (Hldayatul/ah, J.)
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(l)(xiv) and the Board amended the description
of the toll in the notification of 1941 and deleted the exemption
B which had been granted to persons travelling between Rishikesh
and Hardwar. The final description of the tax reads :
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"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".
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(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."
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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 MuniF cipal 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
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rejected.
Th~ 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
H further-
"We think, therefore, with respect, that the learned
Judge went too far when he said that a toll cannot be
894
SUPREME
COURT
REPORTS
[1966] 2 S.C.R.
levied on a vehicle going out of the limits of the MumA
cipal 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 B
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 pro-
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position is so indisputable that Mr. Setalvad for the Board did
not seek to contradict it in any way.
We must, therefore, look
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at the U.P. Municipalities Act first.
Section.128(1) of the Act
read in 1941 as follows :-
" 128. Taxes which may be imposed :
(I) Subject to any general rules or special orders
of the Provincial Government in this behalf, the taxes
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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.)
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Mr. Setalvad has relied upon both the clauses of s. 128(1)
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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.
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MUNIC. BOARD v. R. SINGH (Hi'dayatullah, !.)
895
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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 tl1e Boards are equated to the legislative powers of the
B Legislature of the Province (now the State).
Since tolls were
first imposed in Hardwar in 1941, we mnst 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
c 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
D 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;"
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59-"Tolls".
It will thus be seen that in 1941 the Provincial Legislatnre had
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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.
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(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
confined to cl. (vii) it is clear that the Board could levy toll only
G 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 muniH cipality 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 do':n by necessary implication. To permit tolls to be
levied on vehicles leaving the municipality would render ineffec-
896
SUPREME
COURT
REPORTS
[1966] 2 S.C.R.
tive that part of cl. (vii) which lays emphasis on vehicles entering
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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 Constitu·
tion was not available because the tax was not a tax on passengers
but on vehicles and the power to levy tolls continued to be resB
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
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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
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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 to!Hraverse 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.
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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
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that the person charged enjoyed a privilege and the amount went
towards tl!e 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
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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 "ingate"
tolls being collected at the gates of a town or toll-barriers. Even
octrois have disappeared in Europe and England but they have
{;ontinued to persist in India.
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Whether such tolls were collected only on entry or only on
departure or both on entry and departure it is not easy to say.
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MUNIC. BOARD v. R. SINGH (Hldayatul/ah, !.)
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
c 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
D power continues to be so limited .
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In this view of the matter the distinction made by the Divi-
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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
G Board shall bear the cases of this appeal. One hearing fee.
Appeals dismissed.