TaxTMI 
TaxTMI 
1959 (10) TMI 43
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.... this siding. 2. The appellant company's premises at Ghaziabad are situated within the limits of the Ghaziabad Municipal Board. That Board claimed to be entitled to levy a toll under Section 128 of the U. P. Municipalities Act, 1916, on the railway wagons bringing supplies to the appellant company's factory and to collect the amount thereof from the appellant company. The latter disputed' its liability to pay, and thereafter certain criminal complaints were filed by the respondent Board against the appellant company in the Court of a Magistrate at Ghaziabad wherein it was alleged that the appellant company was guilty of contravening Rule 10 of the Rules for the assessment and collection of toll within the Municipality. 3. The appellant company then filed a Petition in this Court under Article 226 of the Constitution in which the principal reliefs sought were, first, the issue of a writ in the nature of mandamus directing the Board not to levy a toll upon the company in respect of the laden wagons entering its premises and, secondly, a writ in the nature of prohibition restraining the Board from proceeding further with the two criminal cases which had been institut....
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....s are brought within municipal limits by the appellant. The argument is that some consideration moving to the public is essential to the validity of a toll and that such consideration is wholly wanting in the present case. For the Board it is contended that the existence of such consideration is not necessary. 5. Now Clause (vii) of Section 128 (1) empowers a municipal board to impose a toll on vehicles entering the municipality, and it is common ground that the only other tax which the Municipal Board could impose under Clause (xiv) of Section 128 (1) is that tax for which provision is made in Item No. 59 of List II of the Seventh Schedule to the Constitution, namely "tolls". The question which therefore arises for determination in this appeal is whether the tax sought to be imposed by the Board is a toll within the meaning either of Clause (vii) of Section 128(1) or of Item No. 59 of List II. It is. I think, proper to consider the second and more general question first. 6. Now Item No. 59 in the present List II corresponds to Item No. 53 of List II of the Seventh Schedule of the Government of India Act, 1935, and it is not in dispute that the word toll' in the Constitut....
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....t right to the use of the ways, he can only be so entitled by virtue of such consideration.... They may however be entitled to toll traverse. That arises, when the owner of the soil dedicates it to the use of the Public; but, at the time of the dedication, reserves to himself toll from those who pass over it." The Brecon Markets Company v. Neath and Brecon Rly. Co., 1872 7 CP 555 is a case which is in some respects similar to that now before us. The right to collect tolls which had been immemorially received by the corporation of Brecon for cattle, goods, and carriages passing to, through, or from the borough was vested by an Act of Parliament in the plaintiff company. The defendant railway company acquired land (not being a highway) within the borough of Brecon, and on this land it constructed a railway and a station. Goods were carried by the company upon its railway or to its railway station entirely upon the land belonging to it and it was held that such goods could not be the subject of a claim to either a toll thorough or toll traverse. In delivering the judgment on the Court Willes, J., said, at page 566. "Accordingly, it was not argued that the claim in....
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...." Now in the present case the railway wagons upon which the toll is sought to be charged enter within the limits of the municipal board, but it is common ground that the branch railway line which they traverse and which connects the appellant company's factory with the main line passes over land which belongs exclusively to the Railway administration, and that not only the construct on but the maintenance and operation of the siding and all works connected therewith were, and are, carried out by that administration. The tax which the Board seeks to impose is not therefore in my opinion supported by any consideration, and I am accordingly of the view that the tax is not a toll. 9. I now revert to the first question, namely the meaning of the word 'toll' in Clause (vii). The U. P. Municipalities Act, 1916, replaced the U. P. Municipalities Act of 1900 (Act I of 1900). Section 59 of the earlier Act death with the subject of taxation and it provided that subject to the conditions therein staled a municipal board could impose any of the following taxes, namely "I.--With the previous sanction of the Local Government- (a) a tax on houses, building....
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....on the appellant is not a toll and accordingly I would allow this appeal and set aside that Part of the order of the learned Judge refusing to grant the appellant the first of the reliefs which it sought. I am of opinion that a writ in the nature of mandamus should issue commanding the respondent Board not to levy a toll upon the appellant company in respect of the entry of laden railway wagons by the Assisted Railway Siding into the appellant's premises. Raghubar Dayal, J. (7-4-1950) 11. Section 128 of the U. P. Municipalities Act, 1916 (hereinafter called the Act) mentions the taxes which a Municipal Board may impose within the municipality, and these taxes include, according to Clause (vii) of Subsection (1) of the section, a toll on vehicles and other conveyances, animals and laden coolies entering the municipality. The Municipal Board of Ghaziabad imposed such a toll and framed rules for the assessment and collection of toll. Rule 1 of such rules is : "No person shall bring within the limits of the Ghaziabad Municipality any laden vehicle or other laden conveyances or laden animal in respect of which a toll is leviable until the toil due in respect thereo....
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....d 'toll' is described in the Webster New International Dictionary as a tax or due paid for some liberty or privilege particularly for the privilege of passing over a highway, as a road or bridge, for that of keeping a booth, vending goods etc. in a fair, market or other limited space as a manor, for importing or exporting goods. It is also described to be a compensation taken for services rendered. 16. Section 80-A of the Government of India Act, 1919, laid down the powers of local legislatures. Clause (a) of Sub-section (3) of this section reads : "3. The local legislature of any Province may not, without the previous sanction of the Governor-General, make or take into consideration any law: (a) imposing or authorising the imposition of any new tax unless the tax is a tax scheduled as exempted from this provision by rules made under this Act; or" Rule 3 of the Scheduled Taxes Rules framed under Section 80-A(3)(a) of the Government of India Act reads : 3. The Legislative Council of a province may, Without the previous sanction of the Governor-General, make and take into consideration any law imposing, or authorising any local aut....
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....stion of these vehicles etc. using the roads or bridges or Culverts or any other facility provided by the Board does not arise just at the point of entry. Such conveniences would be utilised after the entry and the existence of such conveniences does not figure in the consideration for the levy of the toll at the point of entry. It is Clauses (iv), (v) and (vi) of Sub-section (1) of Section 128 of the Act which, provide taxes on vehicles or conveyances, on dogs and other animals kept within the municipality which in the nature of things must use the roads and other facilities provided by the municipality for the use of those conveyances and animals. 19. Even if some sort of benefit to be provided by the municipality is an essential condition for the levy of the toll, the benefit can be in the form of advantages which the various activities of the Board provide for the use, sale or disposal of the articles brought within the municipality on vehicles, animals and by collies. The articles are brought for the purpose of getting advantage of the good market provided by the necessities of the inhabitants of a well-organised municipality. Reference may be made in this connection to the....
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....essary that the consideration moving to the public must be directly related to what the toll is charged for. The only necessity to justify the toll even under the common law of England is that some consideration in favour of the public must exist for the grant of a right to a person or authority by the Crown to collect toll. 21. Best C.J. in Lord Falmouth v. George, (1828-5 Bing 286) said at page 292: "There is no doubt that the King may at this time establish a reasonable toll for the performance of any duty that the public convenience or safety requires should be performed. The creation of a toll is only a mode of paying for a public service." The toll which the Board is authorised to impose is for paying for the public service rendered by the municipality to its inhabitants. The amount collected as toll goes to the municipal fund. The imposition of toll is therefore for consideration. 22. In Vinkensterne v. Ebden, (1698) 1 Ld. Rayms 384 it is stated at page 386; "And Holt Chief Justice cited a case of Maiden in Essex, 3 Keb 532. The corporation there prescribed in a que estate, that they and all those, etc. time whereof, etc. have used to repair the po....
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....navigable river, yet the King may grant there the liberty of a port to B. and so the interest of property and the interest of franchise be several and divided'. And he afterwards mentions anchorage as a toll arising from the jus dominii or franchise of a port. In this case it is clear that the anchorage toll would not be payable in respect of any benefit which the anchoring vessel derived from the owner of the franchise." 24. No quid pro quo is necessary when the right to collect toll is conferred under an Act of Parliament. In Halsbury's Laws of England, Third Edition, Volume VII, paragraph 645, dealing with the right to take tolls and dues, is noted: "Where the toll is claimed in respect of a harbour or other locality which is not a port some consideration for the toll must be shown, unless it was imposed by Parliament for a toll is a mode of paying for a public service, and must be for the public advantage and reasonable in amount." It follows therefore that when toll is imposed under a statute there is no necessity for its validity to establish some consideration for its imposition. This must be, I suppose, on the presumption that the legislature has prov....
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.... It would follow that toll thorough and toll traverse are restricted to the tolls charged for passing upon land. The toll in suit which is charge for entry of laden vehicles within the municipality does not come within the description of toll traverse. I am therefore of opinion that the considerations which would validate a toll thorough or toll traverse do not apply to the toll in suit and that consequently cases dealing with the question of such tolls i.e. toll thorough and toll traverse are not helpful in considering whether the toll in suit is covered by the word 'toll'. 26. In 1916 1 AC 57 the House of Lords considered the question of toll in connection with a ferry, and Lord Parker of Waddington said at page 78 : - "Tolls are generally classified as tolls-traverse and tolls-thorough." To my mind this expression did not mean that all lands of toll can be classified either toll traverse or toll-thorough but referred really to the tolls charged with respect to the passage on laid or water. The toll in suit, that is the toll on laden vehicles when entering the municipality, is not a toll with respect to the Passage on the land or highway belonging to or ....
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....onferred on them by the municipality. 29. The boats moored within the municipality could be better grouped with the vehicles or conveyances kept within the municipality than with the vehicles or conveyances entering the municipality. Whatever is imposed on the conveyances or vehicles and other conveyances is just at the point of entrance. What is imposed on the boats moored within the municipality is not at the point of entrance but on their presence within the municipality. 30. For the reasons stated above, I am of opinion that the toll charged under Rule 1 of the Rules framed for the assessment and collection of toll comes within the description of the word 'tolls' in item No. 59, List II, Seventh Schedule, of the Constitution and therefore can be validly imposed. 31. It is further contended for the appellant that this toll, not being actually a toll, is a tax and in view of Section 135 of the Indian Railways Act the levy of taxes in respect of railway and from railway administrations in aid of the funds of local authorities is to be regulated by the rules laid down in that section. The toll is not charged from the railway administration. The toll is to be paid b....
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....ised to impose certain taxes in the whole or any part of the Municipality, subject to the general rules or special orders of the State Government in that behalf. Under Clause (vii) of Sub-section, (1) of (sic) 128 the Municipal Board could charge a toll on vehicles and other conveyances, animals and laden coolies entering the Municipality. Certain rules were framed for the assessment and collection of tolls in the Ghaziabad Municipality and Rule 1 of the Rules, as they were in force on the relevant date provided : "No person shall bring within the limits of the Ghaziabad Municipality any laden vehicle or other laden conveyances or laden animal in respect of which a toll is leviable until the toll due in respect thereof has been paid to such Person and at such barrier or at such other places as the Board may from time to lime appoint. Explanation: ''Other laden conveyances" includes laden railway wagons." 36. It was also provided in the Rules that if Rule 1 was contravened a penalty which could amount to Rs. 500/- could be imposed on the person who contravened the rule. 37. The Municipal Board claimed toll from appellant in respect of the wagons which....
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.... of the toll. It was not necessary in the opinion of the learned Judge that there should be a service rendered by the Board to every vehicle before a toll on it could he imposed. The second contention was, however, accented and it was held that the part of Rule 10 which provided for the, realization of the amount from the owners of the goods with which the vehicles were laden went beyond the provisions of Section 153 and was on that account ultra vires. On these findings the learned Judge issued a writ of mandamus restraining the Sub-Divisional Magistrate from proceeding further with the criminal cases against the appellant and also restrained the other two respondents from realizing the toll from the appellant under Rule 10 of the Rules framed. In other respects the petition was rejected. 40. The appellant then filed a Special Appeal against the decision of Mr. Justice Mehrotra which come up for consideration before the Hon'ble the Chief Justice and Mr. Justice Raghubar Dayal. It was urged in the appeal that what the respondent Board tried to levy as a toll was not really a toll which could be imposed under Clause (vii) of Subsection (1) of Section 128 of the Municipalities....
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....eration may be some service advantage or benefit provided by the person entitles to charge the toll; 3. (a) The toll must have a reasonable reference to the service, benefit or advantage provided, and (b) the service, benefit or advantage must be capable of being utilised by those on whom the toll is levied; 4. Unless the rate is fixed by the statute the rate at which a toll is charged must be a reasonable rate commensurate with the service, benefit or advantage provided. 47. It is emphasised that though toll is a kind of tax it is a tax having special features and cannot be put on the same footing as an ordinary tax otherwise there would be no sense in using the word "toll" and not using the word "tax". The argument is that if the word "toll" is understood in the above-mentioned sense it will become obvious that the tax which the respondents want to charge in respect of the wagons entering the appellants' factory cannot be a toll because in respect of those wagons the respondents do not provide any consideration at all. They do not offer any advantage, benefit or service which can be enjoyed or utilized by the wagons. The Municipal Board does not mainta....
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....s it can be inferred that he was accepting as correct the contention of the appellant that the benefit which, could form the consideration for a toll must have a specific reference to the object on which the toll was to be levied and that general amenities could not be considered to be adequate consideration for the imposition of tolls. He utilized in support of his opinion the fact that when Clauses (c) and (d) of Sub-section (1) of Section 59 of the Municipalities Act of 1900 had been replaced by Clauses (iv) and (vii) of Sub-section (1) of Section 128 of the Municipalities Act of 1916 the word ''toll" had been substituted for the word "tax" with reference to vehicles and animals entering the municipal limits but the word "tax" had been retained in respect of boats moored within the municipality. 50. Mr. Justice Raghubar Dayal, on the other band, was of opinion that besides 'toll traverse' and 'toll thorough' there were tolls of other kinds also; that it was not necessary that there should be any consideration before a toll could be imposed and this was particularly so if the toll was imposed under a statute; that in any case even if some consideration ....
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....oll" has been described as a tax due or paid for some liberty or privilege particularly for the privilege of passing over a highway, as a road or bridge, for that of keeping a booth, vending goods etc., in a fair market or other limited space as a manor, for importing or exporting goods, and compensation taken for services rendered. 54. If reference is made to Holdsworth's History of English Law (Volume V pages 86, 87 and 103 and Volume X pages 207, 300 and 307 to 310) it will be found that the origin of tolls goes back to the disturbed times which followed the fall of the Roman Empire. In those days periodic markets were the only seats of commerce and maintenance of peace in those markets was considered to be a duty of the Church. But the Kings and Emperors also considered themselves the protectors of the merchants. They encouraged formation of markets and especially guaranteed the preservation of peace in those markets. As they considered themselves entitled to some compensation for the guarantee which they offered they began to charge tolls in respect of the markets, which were later known as ports or burns. Later the right to take toll began to be conferred by the Kin....
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....blic (though new perhaps severed therefrom), the land having been at the date of the grant the private property of the grantee, and having been then dedicated by him to the public in consideration of the toll to be taken. A toll-thorough is independent of any ownership of the soil by the original grantee, the consideration necessary to support it being usually the liability to repair the particular highway or bridge. A toll reasonable in amount, but varying from time to time according to the value of money, is valid in law. xx xx x 126. Highway and bridge tolls may also be payable under statute. x x x x x. Statutory turnpike tolls no longer exist; but there are still tolls payable in respect of the passage of bridges under special Acts." Some of the cases relating to tolls may now be considered. The earliest case relating to a toll which has been cited at the Bar appears to be of 1698. It is the case of (1698) 91 ER 1154. The mayor and burgesses of the Town of Newcastle used from time to time to repair the port of the town and in consideration thereof they used to have a toll of five pence Per chaldron for all coals exported. The defe....
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.... of the year 1823. This too was a case of toll-traverse. The lord of the manor claimed a right to a toll upon all goods bought and delivered, or bought elsewhere and brought into and delivered, in a town within the manor. He based this right on prescription and alleged that it had been in existence since times immemorial. He also alleged the various burt hens borne by him which, according to him, were the consideration for the toll. The claim was resisted on the ground that the consideration was insufficient and the toll could not therefore be upheld. The claim was, however, accepted. It was observed that the burt hens had been mentioned collaterally and that the toll which was claimed was not being claimed as a toll thorough but as a toll-traverse. Pointing out the distinction between the two kinds of tolls Best, J., observed: "Toll thorough is in the highway, but toll traverse is for passing over another's ground. In the latter case, the use of the soil is a sufficient consideration for the toll, and it is not necessary to state any other in support of a claim to it. But in the former, it is in a highway; that is, where the proprietor had a right of passage before th....
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....ership of the soil, The claim was negatived and the ground of dismissal in the words of the Lord Chancellor (Lord Westbury) was:-- ''The bed of all navigable rivers where the tide flows and reflows, and of all estuaries or arms of the sea, is by law vested in the Crown. But this ownership of the Crown is for the benefit of the subject, and cannot be used in any manner so as to derogate from or interfere with the right of navigation, which belongs by law to the subject of the realm. The right to anchor is a necessary part of the right of navigation, because it is essential for the full enjoyment of that right. If the Crown therefore grafts part of the bed or soil of an estuary or navigable river, the grantee takes subject to the public right, and he cannot in respect of his ownership of the soil make any claim or demand, even if it be expressly granted to him, which in any way, interferes with the enjoyment of the public right." The argument that the anchorage could be claimed on the ground of consideration was repelled by saying:-- "and that there is no fact or circumstance to warrant the presumption that any corresponding benefit was given to the Publi....
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....ghway, and is granted to some one who undertakes some Public work for the benefit of those who use the highway, x x x. x x x x x. A toll traverse is said to differ from a toll thorough in this, that no consideration for it need he averred, This does not, however, mean that there need be no consideration for it; it merely expresses that, as there can be no toll traverse except of going over the land, of the grantee, the consideration of using the land is implied from the character of the toll, and need act be further averred than by stating that it is A toll traverse. The consideration is the giving up the land of the grantee." In 1869 arose the case of (1869) 4 HLC 206 the plaintiffs claimed anchorage toll in respect of the defendant's vessels casting anchor at a Port of theirs on three occasions. The defence was that the port where anchor had been cast was a natural port and had not been artificially provided by the plaintiffs and no toll could be claimed on that account. The claim of the plaintiffs was, however, upheld on the ground that the right to take toll for anchorage had existed for a very long time and could therefore be presumed to have had a legal ori....
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....nd an appeal against the decision was filed in the House of Lords. The judgment of the Court of Appeal was set aside. It was held that the defendant was not bound to maintain or repair or allow the public to pass through the locks and that the locks had never been dedicated to the Public as a highway. 64. The case of 1916 AC 57 related to a ferry. The plaintiff claimed a declaration that he was entitled to an ancient ferry and also claimed an injunction restraining the defendants from interfering him in the enjoyment thereof. The nature of a ferry was considered in that case and in that connection Lord Parker of Waddington observed : "A ferry is therefore not only a franchise, but primarily a toll franchise, as in the case of all tolls some consideration moving to the public is essential to its validity. Tolls are generally classified as tolls-traverse and toll-thorough. If, apart from the franchise, no one would have had a right to do that for which the toll is charged, the toll is a toll-traverse. If, apart from the franchise, any one would have had the right to do that for which the toll it charged, the toll is a toll-thorough. In the former case the c....
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....r Clause (d) it could levy "a tax on vehicles and on animals as aforesaid entering the municipality, and on boats moored therein". The section was replaced by Section 128 of the Municipalities Act of 1916. Clauses (iv), (v), (vi) and (vii) of Sub-section (1) of the new section covered the field which had originally been covered by Clauses (c) and (d) of the old Sub-section (1) of Section 59, Clause (iv) permitted a tax on vehicles and other conveyances plying for hire or kept within the municipality or on boats moored therein. Clause (v) permitted a tax on dogs kept within the municipality. Clause (vi) allowed the Municipality to tax animals used for riding, driving, draught or burden, when kept within the municipality, Clause (vii) permitted a toll on vehicles and other conveyances, animals, and laden coolies entering the municipality. Thus boats moored within the municipality were bracketed with vehicles and conveyances hired and kept within the municipality and a tax levied in respect of them continued to be called a tax. Some of the other taxes which were permitted were mentioned in Clauses (x) and (xi) of Sub-section (1) of Section 128. Some of these taxes were taxes for....
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....es, duties and fees. 71. In the Seventh Schedule of the Constitution also there are three Lists. Item No. 59 of List II which is the State List is tolls and corresponds to Item No. 53 of List II of the Seventh Schedule of the Government of India Act of 1935. A reference to the other items of List II of the Second Schedule will show that provision is made in them for taxes, duties and fees of various kinds. For instance, Article 46 provides for taxes of agricultural income. Article 47 Provides for duties in respect of succession to agricultural land and Article 67 provides, for fees in respect of any of the matters in List II. On account of these three different words being used in the different items of the List it is urged that the Constitution makers could not have Used these three terms as synonymous and must have had in their mind the distinction between their meanings. Tolls cannot, it is urged, therefore be put on the same level as taxes. It is Pointed out that the distinction between a tax and a fee has been brought out very clearly by the Supreme Court in Commr. Hindu Religious Endowments, Madras v. Lakshmindra Thirtha Swamiar, [1954]1SCR1005 and the argument is that ....
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....e owner. If the benefit or advantage which is the consideration is made available it is not necessary for incurring the liability to pay the toll that the benefit or advantage should actually be utilized. 75. It is also correct that the rate of toll unless it is fixed by statute must be reasonable but it is not necessary that it should be charged from every one at a uniform rate. 76. So far as the 1st, 2nd and 4th essential features of a tax which make it a toll are concerned therefore the appellant's contention appears to be justified. 77. There is serious dispute, however, about the third feature. 78. The contention on behalf of the appellant is that it is not enough that there should be some consideration for the toll. It is not open to the respondents to justify the toll levied by them on the ground that the respondent no. 1 provides general amenities which it is open to the appellant to enjoy. The toll can be justified only if some special benefit capable of bring utilized by the conveyance or animal on which the toll is imposed is provided by the Board and as this has not been established in the present case what has been levied by the respondents may be a gen....
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....ist by implication simply because of the use of the word "toll". In the absence of any restrictions, therefore, it appears to have been open to the respondents to levy tolls under Section 128 even in consideration of the general amenities provided in the city. 80. I find nothing in the three cases relied upon by the learned counsel for the appellant to support the contention that the second feature mentioned by him is such an essential feature of a toll that a tax cannot be called a tell unless it has that feature. The passage in the judgment of the case of 1902-2 Ch 145 (supra) on which reliance has been placed in this connection is to be found at page 160 where it was said: "Stall age is paid in respect of some user of the soil, and can be exacted only by the owner of the soil. It is sufficient to refer to the case of Northampton Corporation v. Ward, (1745) 2 Stra 1288 and the Duke of Bedford v. St. Paul Covent Garden, Overseers, (1881) 51 LJ MC 41. The land on which the stalls stand belongs to the defendants, and they make a charge for the exclusive occupation of the land, and the convenience of stalls thereon." The learned Judge was dealing in this passage with a....
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....eing charged for the specific service provided by the defendant, viz. keeping the locks in proper repairs and to facilitate the navigation of vessels. As the business had become unprofitable, the defendant had stopped charging the tolls and had also stopped keeping the locks in order. It was held that he could not be forced to keep the locks in order. Neither of the two propositions on which reliance is placed therefore supports the contention that a toll can be levied only in respect of a specific service and that no toll can be levied in respect of general amenities provided. 83. There appears to be no justification for the argument that a toll can be imposed on a vehicle or animal only if some service, advantage or benefit capable of being utilized or enjoyed by that vehicle or animal is provided. This interpretation of the word "toll" is too narrow. As is well established tolls can be levied, for general us welt as specific purposes. For toils of the latter kind, e.g. tolls for building or maintaining a particular road or bridge, it may be said that they can be charged only from persons using the road or bridge but so far as tolls of the former kind are concerned it has alre....
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....lar individual or not; The rule applicable in such cases has no application to the case of toll for passing upon land." As has already been remarked, the case with which the learned Judge (Willies, J.) was dealing was that of a highway tall claimed on the basis of prescription or grant. The defendant in that case had not used the highway of tb.fi plaintiff in any manner and had also not utilized the land of the plaintiff in any way. The plaintiff, however, urged that the defendant could not escape liability for the tell on the ground that he had not used the highway. If the use of the highway was open to him and he had not used it he was still liable to pay the toll. It was in that connection that reference was made to certain cases in which a person had been held liable to pay toll for the amenities provided even though he had not utilized the same. These cases were distinguished and it was observed that the principle of those cases did not apply to highways. 86. It was therefore not laid down in that case that the benefit provided must necessarily be capable of being enjoyed by the vehicle or person sought to be made liable for the toll. 87. The toll in the present case ....