ivil Appeal No 119 of 1953
Appeal by special leave from the order dated September 11 1950 of the Nagpur High Court in Miscellaneous Civil Case No 77 of 1946
CK Daphtary Solicitor General of India and MS K Sastri for the appellants
AV Vishwanatha Sastri G J Ghate and Naunit Lal for the respondent
December 18
The following Judgment of the Court was delivered by KAPUR J This is an appeal by Special Leave against a Judgment and order of the High Court of Judicature at Nagpur dated February 14 1950 and the question for decision turns upon the construction of section 6610 of the C P  Berar Municipalities Act Act II of 1922 which in this judgment will be termed the Act
A short recital of the facts of the case will suffice for its decision
The appellant is a company which has its spinning and weaving mills at Yeotmal
The appellant s bales of cotton are transported from Yeotmal to Nagpur by road and vehicles carrying them pass through the limits of Wardha Municipality
The goods being in transit the vehicles carrying them do no more than use the road which traverses the municipal limits of Wardha and is a PWD road
The goods are neither unloaded nor reloaded at 1104 Wardha but are merely carried across through the municipal area
The Municipal Committee purporting to act under section 6610 of the Act and r I of the rules made thereunder collected Rs 240 as terminal tax on these goods on the ground that they were ex ported by the appellant from the limits of the Municipality of Wardha
The appellant thereupon claimed a refund of this sum
On refusal by the Municipality the appellant took an appeal to the Deputy Commissioner Wardha which was sent for disposal to the Sub Divisional Officer who on March 11 1946 referred the following two questions under section 832 of the Act to the High Court for its opinion 1Whether goods passing through the limits of Wardha Municipality by road despatched from Yeotmal to their destination at Nagpur without being unloaded or reloaded at Wardha are liable for an export terminal tax  2Whether the respondent Municipal Committee is not liable to refund the export terminal tax collect ed on such goods  The reference in the first instance came up for hearing before Sheode J who referred the matter to a Division Bench and the Division Bench in turn referred it to a Full Bench
The High Court after referring to a number of decided cases was of the opinion that the tax had been validly imposed and the appellant was therefore not entitled to a refund
The powers of the Municipality to impose assess and collect taxes are set out in chapter 9 of the Act and section 661 enumerates the taxes which may be imposed
Clause d of sub section 1 deals with tolls cl
e with octroi and cl
o with terminal tax
The sub section provides  661 A committee may from time to time and subject to the provisions of this Chapter impose in the whole or in any part of the municipality any of the following taxes for the purposes of this Act namely a a tax payable by the owners of buildings or lands situate within the limits of the municipality 1105 with reference to the gross annual letting value of the buildings or lands b a tax on persons exercising any profession or art or carrying on any trade or calling within the limits of the municipality c a tax payable by the owner on all or any vehicles or animals used for riding driving draught or burden or on dogs where such vehicles animals or dogs are kept within the limits of the municipality  d a toll on vehicles and animals used as aforesaid entering the limits of the municipality and on boats moored within those limits Provided that a toll under this clause shall not be payable on any vehicle or animal on which a tax under clause c has been imposed
e an octroi on animals or goods brought within the limits of the municipality for sale consumption or use within those limits fmarket dues on persons exposing goods for sale in market or in any place belonging to or under the control of the Government or of the committee  g fees on the registration of cattle sold within the limits of the municipality h a latrine or conservancy tax payable by the occupier or owner upon private latrines privies or cesspools or upon premises or compounds cleansed by municipal agency j a tax for the construction and maintenance of public latrines k a water rate where water is supplied by the committee  l a lighting rate where the lighting of public streetsplaces and buildings is undertaken by the committee  m a drainage tax where a system of drainage has been introduced n a tax payable by the occupiers of buildings or lands within the limits of the municipality according to their circumstances and property within those imits 1106 o a terminal tax on goods or animals imported into or exported from the limits of a municipality  Provided that a terminal tax under this clause and an octroi under clause e shall not be in force in any municipality at the same time and p a tax on i persons travelling by railway to or from a municipality to which pilgrims resort or ii pilgrims visiting a shrine within the limits of a municipality Rule I of the Terminal Tax Rules made under the Act relates to exports and r 2 to imports
They provide 1 On the following goods exported by rail or road a terminal tax shall be levied at the rate noted against each  at 2 as
per maund of 40 seers Cotton   2 On the following goods imported by rail or road a terminal tax shall be levied at the rate noted against each
Then follows the schedule
The High Court was of the opinion that The words  export  and I import  have no special meaning
They bear the ordinary dictionary meaning which has been the foundation for the decisions to which I have referred in the opening portion of my opinion
These words mean only taking out of and bringing into 
 The appellant s contention is that the words imported into or exported from  do not merely mean to bring into  or to carry out of or away from but also have reference to and imply the termination or the commencement of the journey of the goods sought to be taxed and therefore goods in transit which are transported across the limits of a Municipal Committee are neither imported into the municipal limits nor exported therefrom
It is also contended that even if the words imported into or exported from  are used merely to mean to bring into or to carry out of or away from the qualifying of the tax by the adjective terminal 1107 is indicative of the terminus ad quem or terminus a quo of the journey of the goods and excludes the goods in transit
The respondent on the other hand submits that the tax is leviable merely on the entry of the goods into the municipal limits or on their exit there
from and the word terminal has reference to the termini of the jurisdictional limits of the municipality and not to the journey of the goods
The efficacy of the relative contentions of the parties therefore requires the determination of the construction to be placed on the really important words of which are terminal tax imported into or exported from and  the limits of the Municipality
In construing these words of the statute if there are two possible interpretations then effect is to be given to the one that favours the citizen and not the one that imposes a burden on him Import  is derived from the Latin word importare which means to bring in  and export  from the Latin word exportare which means to carry out but these words are not to be interpreted only according to their literal derivations
Lexico logically they do not have any reference to goods in transit a word derived from transire bearing a meaning similar to transport ie to go across
The dictionary meaning of the words import  and export  is not restricted to their derivative meaning but bear other connotations also
According to Webster s International Dictionary the word import means to bring in from a foreign or external source to introduce from without especially to bring wares or merchandise into a place or country from a foreign country in the transactions of commerce opposed to export
Similarly export according to Webster s International Dictionary means to carry away to remove to carry or send abroad especially to foreign countries as merchandise or commodities in the way of commerce the opposite of import 
The Oxford Dictionary gives a similar meaning to both these words
The word transit in the Oxford Dictionary means the action or fact of passing across or through passage 141 1108 or journey from one place or point to another the passage or carriage of persons or goods from one place to another  it also means to pass across or through something to traverse to cross
Even according to the ordinary meaning of the words which is relied upon by the respondent goods which are in transit or are being transported can hardly be called goods imported into or exported from  because they are neither being exported nor imported but are merely goods carried across a particular stretch of territory or across a particular area with the object of being transported to their ultimate destination which in the instant case was Nagpur
The respondent s counsel sought to support his argument by referring to the following cases decided by various Indian High Courts where the words import  and export  were construed as meaning bring in  or take out of or away from  and it was also held that goods in transit are also covered by the words imported into or exported from 
In Re Rahimu Bhanji 1 which was a case of a criminal prosecution for refusal to pay octroi on the ground that octroi was not due on goods in transit the court gave a literal meaning to the word import and held that as the goods had been brought within the limits of the Municipality they were liable to octroi under the Rules which provided for a refund which could be applied for
The definition of octroi seems to have been ignored in that case
In Narottamdas Harjivandas  Co vs Bulsar Town Municipality 2 the tax was imposed on goods in transit and the argument raised was that the municipality had no power to impose a terminal tax upon such goods as were not meant for consumption within the limits of the Municipality
The court held In our opinion there is no force in this contention
The Municipal Rules and Bye laws dealing with the terminal tax define it as an octroi levied on the import into the said Municipality of goods specified in the Terminal Tax Schedule such octroi not I Bom
2 ILR  103
1109 being liable to be refunded  Import  is defined in the Rules as meaning conveying goods by Railway or by Ship or otherwise into Municipal limits 
It is clear therefore that the tax is leviable on all goods entering Municipal limits whether they are intended for consumption within the city or whether they are  merely in transit through the city to some other place 
This decision rested on the definition of the words  import  and  terminal tax  without taking into consideration the meaning of octroi  which implies consumption use or sale
Besides these observations were really obiter because the court held that the goods never entered the limits of the Municipality and consequently no tax was chargeable
Dalvadi Maganlal Bhagwandas vs Ahmedabad Municipality 1 was a case in which bricks manufactured within the limits of the Ahmedabad Municipality had in order to be carried to the place of business of the manufacturer which was in another part of the town to be temporarily taken out of the limits of the Municipality and re entered at another point
The re entry was held to be  import  on the basis of the dictionary meaning of the word and because  import had no reference to and was not qualified by any consideration of the place of manufacture or place of consumption
Rajadhyaksha J said at p 137  There is no such limitation on the meaning of the word import  which must be given its ordinary meaning and at p 140 the learned Judge observed  We are of the opinion that the word  import in r 380 Ahmedabad Municipal Code must be given its ordinary meaning and that is  to bring something within the Municipal limits from a place without its boundaries  irrespective of the consideration as to whether the goods were manufactured within the Municipal limits how long they were outside those limits and for what purpose
1 ILR 1110 The two Nagpur cases relied upon were Bhagwandas Harikishandas vs Municipal Committee Yeotmal 1 and Kashiram Jhabarmal Firm vs Municipal Committee Nagpur 2
In the former case the decision was again based solely on the literal dictionary meaning of the words  imported into or exported from  and a further argument relying on the existence of the word  or  between imported and exported  instead of and  as an argument against the imposition of the tax on goods in transit was also repelled
In the latter case where the goods were brought into the municipal limits for being despatched by rail the court again relied on the  plain meaning of the words imported into or exported from  and also on certain government instructions which were in favour of the imposition of tax on goods in transit
There are also some unreported judgments of the Nagpur High Court taking a different view of the words imported into or exported from and those have been referred to in the judgment of Grille C J in Kashiram s case 2 and in the referring order of Sheode J in the present case
Emperor vs Har Dutt 3 was a case of payment of toll tax in respect of a lorry brought within the limits of the Municipality through the toll barrier
The word used in Rule I in that case was  bring  and it was held that bringing has no element of pause or repose
This case is hardly relevant to the facts of the case now before us
In an earlier case Nek Mohammad vs Emperor 4 to the words  bring  and  import  an element of pause and repose was attached but this case was not approved of in Hardwarimal Harnath Das vs Municipal Board Dehradun 5 which also was a case of goods in transit
The word  import  was there given the meaning  carried into 
But the decision was based on the definitions given in the Statutory Rules to the word  import  which was  bringing into the terminal tax limits from outside those limits 
1 AIR 1945 Nag
2 ILR 1946 Nag
4 A I R 1936 All
3AIR 1936 All 743
5 I L R 1940 All
1111 In none of these cases was the argument as to the qualification stemming from the use of the words terminal tax considered nor was the signification of the word terminal  as a prefix to the word tax discussed
The respondent also relied on Muller vs Baldwin 1 where it was held that  coals exported from the Port must be taken to have been used in its ordinary meaning of  carried out of the Port  and therefore included coals taken out of the port in a steamer as  bunker coals  that is coals taken on board for the purpose of consumption on the voyage
The argument that the term  exported  must receive a qualified interpretation and that it means taken for the
purpose of trade only was rejected
Lush J said at p 461   There is nothing in the language of the Act to shew that the word exported  was used in any other than its ordinary sense  
Construing the words of the Act upon this principle we feel bound to hold that coals carried away from the port not on a temporary excursion as in a tug or pleasure boat which intends to return with more or less of the coals on board and which may be regarded as always constructively within the port but taken away for the purpose of being wholly consumed beyond the limits of the port are coals  exported  within the meaning of the Act 
Now three things clearly emerge from that Muller s case 1 that the word export  was not applied to coals in transit because the coals were taken from the port and started journey from there and would be included in the phrase taken out of the port and 2 that temporary taking out was not  export  as was held in Maganlal Bhagwandas vs Ahmedabad Municipality 2 3 that the test is the intention with which the goods were brought in or taken out
It was urged that in accordance with the current authority of the different courts of India a different interpretation should not be placed on the words of the section but this argument is of little avail in a case 1 1874 9 Q B 457
2 ILR 1112 where the decision has not been acquiesced in for long or the authorities are not absolutely unanimous
Moreover it is not a case of disturbing the course of construction which has continued unchallenged for such a length of time as to acquire the sanction of continued decisions over a very long period and there is therefore no principle which will preclude this court from correcting the error
See William Hamilton and John Hamilton vs William Baker 1
The Lancashire and Yorkshire Railway Company vs The Mayor Alderman and Burgesses of the Borough of Bury 2
Pate vs Pate 3
In another case Wilson vs Robertson 4 under the statute the duty was imposed on all goods imported into or exported from Berwick harbour which extended down the Tweed to the sea but no part of it extended above the bridge
Goods were brought up the river in a sea going vessel which having first used rings and posts put up by the Harbour Commissioners in order to moor while lowering the masts passed through Berwick Bridge and unloaded her cargo about two hundred yards above the bridge and beyond the limits of the harbour
It was held that goods were not  imported into  the harbour so as to make any dues payable in respect of them
The argument raised there was that as there was no harbour down the Tweed except Berwick and though the goods were actually unloaded above the Berwick bridge and out of the limits of the harbour it was substantially imported into the harbour
The vessel in that case was obliged to stop before passing the bridge and avail herself of the benefits of the machinery and works provided by the Commissioners and that was part of the means used towards the unloading of the vessel and it was argued that this would amount to import
Lord Cambell C J said  The argument on behalf of the plaintiff would be very pertinent if addressed to a Committee of the House of Commons in favour of making the harbour dues payable in such a case as the present
We can 1  220 222
2  420
3  1108
4 1855 24 L J Q B 185
1113 however look only to what the legislature has enacted in order to see whether this burthen is cast upon the defendants
The dues are only to be paid upon goods imported into the harbour of Berwick the limits of which are defined by the Act and which does not extend above the bridge
Now has this iron been so imported  It is admitted that if it had been carried through the bridge to a port higher up the river no dues would have been payable and the plaintiff s counsel by that admits himself out of court  
These observations support the submissions against the meaning of  export  or  import  being merely taking out of or bringing into
Mersey Docks and Harbour Board vs Twigge 1 was a case of goods shipped from a foreign port under a through bill of lading to Liverpool landed in London and sent from there to Liverpool in another ship and it was held that such goods were imported into Liverpool ports beyond the seas and not from London
The transit began at Singapore and ended at Liverpool and was not broken by the transhipment in London
By giving to the words  imported into or exported from  their derivative meaning without any reference to the ordinary connotation of these words as used in the commercial sense the decided cases in India have ascribed too general a meaning to these words which it appears from the setting context and history of the clause was not intended
The effect of the construction of  import  or  export  in the manner insisted upon by the respondent would make railborne goods passing through a railway station within the limits of a Municipality liable to the imposition of the tax on their arrival at the railway station or departure therefrom or both which would not only lead to inconvenience but confusion and would also result in inordinate delays and unbearable burden on trade both inter State and intra State
It is hardly likely that that was the intention of the legislature
Such an interpretation would lead to absurdity which has according to the rules of interpretation to be avoided
1 1114 Chief Justice Marshall dealing with the word  im portation  said in Brown vs State of Maryland 1 The practice of most commercial nations conforms to this idea
Duties according to that practice are charged on those articles only which are intended for sale or consumption in the country
Thus seastores goods imported and re exported in the same vessel goods landed and carried over land for the purpose of being re exported from some other port goods forced in by stress of weather and landed but not for sale are exempted from the payment of duties
The whole course of legislation on the subject shows that in the opinion of the legislature the right to sell is connected with the payment of the duties 
Continuing the learned Chief Justice at p 447 observed Sale is the object of importation and is an essential ingredient of that intercourse of which importation constitutes a part
It is as essential an ingredient as indispensable to the existence of the entire thing then as importation itself    This supports the contention raised that  import  is not merely the bringing into but comprises something more ie  incorporating and mixing up of the goods imported with the mass of the property  in the local area
The concept of  import  as implying some
thing brought for the purpose of sale or being kept is supported by the observations of Kelly C B in Harvey vs The Mayor and Corporation of Lyme Regis 2
There the claim for a toll was made under the Harbour Act and the words for construction were  goods landed or shipped within the same cobb or harbour Construing these words Kelly C B said  The ordinary meaning and purport of the words is perfectly clear namely that tolls are to be paid on goods substantially imported that is in fact carried into the port for the purpose of the town and neigh bourhood Similarly the word  export  has reference to taking out of goods which had become part and parcel of the mass of the property of the local area and will not 1   442   686
2   262
1115 apply to goods in transit ie brought into the area for the purpose of being transported out of it
If the intention was to tax such goods then the word used should have been  re exported  which means to export imported goods again Re exportation means the exportation of imported goods
Even assuming that the words imported into or  exported from  could be restricted only to their derivative meaning and thus construed to mean only brought into or taken out or away from this general meaning it was submitted by the appellant is qualified by the use of the prefix terminal used adjectively with the word  tax which makes it necessary to determine the meaning of the term terminal tax 
And the question then arises does it have reference to the jurisdictional limits of the Municipality or to the ultimate termination or the commencement of the journey of the goods as the case may be
In dealing with this the High Court said  It remains to consider what is signified by the word  terminal 
It is obvious that it could refer either to the termini of the goods or the termini of the Municipality
It is clear to me that the word  terminal  refers not to the destination or origin of the goods but to the termini of the Municipal limits
Digby J pointed out that it refers to the traffic rather than the origin of the goods 
According to the Oxford Dictionary  terminal means end boundary  situated at or forming the end or extremity of something situated at the end of a line of railway forming or belonging to a railway terminus
 Terminus  means the point to which motion or action tends goal end finishing point sometimes that from which it starts starting point
An end extremity the point at which something comes to an end
In Corpus Juris Vol
62 it is stated at p 729 that terminal  in connection with transportation means inter alia  the fixed beginning or ending point of a given run 142 1116 if  terminal  besides the above meaning has an additional meaning also and that meaning signifies the termini or the jurisdictional limits of the municipal area even then the construction to be placed on the term should be the one that favours the tax payer in accordance with the principle of construction of taxing statutes which must be strictly construed and in case of doubt must be construed against the taxing authorities and doubt resolved in favour of the taxpayer
In Crawford on Statutory Constructions in para
257 at p 504 the following passage pertaining to construction of taxing statutes taken from Bedford vs Johnson 1 is quoted  Statutes levying taxes or duties upon citizens will not be extended by implication beyond the clear import of the language used nor will their operation be enlarged so as to embrace matters not specifically pointed out although standing upon a close analogy and all questions of doubt will be resolved against the government and in favour of the citizen and because burdens are not to be imposed beyond what the statute expressly imparts
In that case the court refused to regard automobile parking lots as falling within the scope of a statute which imposed a tax on general warehouse storage establishments
On this principle the word  terminal  must in the context be construed as having reference to terminus and has to be read to connote the idea of the end of something connected with motion and not that of an intermediate stage of a journey
It would be quite legitimate to examine the legislative history of these  terminal taxes  which would be a useful aid to construction of clause o of section 661
In the last century a tax known as Octroi payable on the entry of goods in a local area for consumption use or sale therein was introduced
In 1920 an optional substitute called terminal tax  came into existence by virtue of item 8 of Schedule 11 of the Scheduled Tax Rules framed under section 80 A 3a of the Government 1 I02 COIO 203 78 Pac 2 373
1117 of India Act 1915 as amended in 1919Item 8 was as follows Item 8 A terminal tax on goods imported into or exported from a local area save where such tax is first imposed in a local area in which a octroi was not levied on or before the 6th July 1917
 In the Government of India Act 1935 this item was replaced by two items one dealing with  terminal tax  and the other with the right of a local area to impose tax on entry of goods into a local area
The former was put in the Central List List 1 and the latter in the Provincial List List II
1 Item No 58 in List I of Schedule 7 of the Constitution Act was  Terminal taxes on goods or passengers carried by railway or air  taxes on railway fares and freights and 2 in the Provincial List another item was introduced item No 49 which was as follows  Cesses on the entry of goods into a local area for consumption use or sale therein
 The Constitution of India maintains this distinction in the Seventh Schedule and item No 89 in List I corresponding to the above mentioned item No 58 is terminal taxes on goods or passengers carried by railway sea or air taxes on railway fares and freights
 In the State List the item No 52 which is as follows  Taxes on the entry of goods into a local area for consumption use or sale therein and Item No 56 is  Taxes on goods and passengers carried by road or on inland waterways 
The legislative history of this tax thus shows that octroi was leviable on the entry of goods in a local area when the goods were for consumption use or sale therein
The substituted tax was terminal tax on goods imported into or exported from a local area and by rules this tax in the case of Wardha Municipal Committee was imposed on certain class of goods imported and on others exported by railway or road
In 1935 the terminal tax was made leviable on goods 1118 carried by railway or air but the tax on entry of goods was imposable on goods for consumption use or sale in a local area
Both these taxes have been continued by the Constitution
If the pre 1920 octroi and the post 1935 cess or tax on entry of goods is payable on goods for consumption use or sale can it be said that the Constitution Act of 1915 as amended in 1919 or the Rules made thereunder intended to vary the nature of the tax by the introduction of item 8 in Sch
II under the Scheduled Tax Rules ie the tax became leviable on entry of goods or on their being taken out without their acquiring the qualification of incorporation with the mass of property of the local area
The presumption is against the imposition of new burdens
In the absence of clear intention to the contrary the incidence of the tax leviable under item 8 of Sch
II of the Schedule Tax Rules is incapable of having a different complexion from that which it had before 1920 or that which was clearly given after 1935
It was said in U section vs Fisher 1 that it is in the last degree improbable that the legislature would overthrow fundamental principles infringe rights or depart from the general system of law without expressing its intention with irrestible clearness   
It is also a recognised principle of construction that general words and phrases however wide and comprehensive they may be in their literal sense must usually be construed as being limited to the actual objects of the Act
There is no evidence that the actual object of the Act in the present case was to extend the powers of the Municipalities to imposing the tax on articles which were in the course of transit
That by the substitution of terminal tax on goods imported into a local area the nature of the tax had not been altered from what it was when octroi was in force or when instead of  terminal tax  octroi without refund was substituted is clear from the decision of the Federal Court in Punjab Flour and General Mills  case 2 which is discussed in a later part of 1   390  2 1119 this judgment
Therefore terminal tax on goods imported or exported is similar in its incidence and is payable on goods on their journey ending within the municipal limits or commencing therefrom and not where the goods were merely in transit through the municipal limits and had their terminus elswhere
The vires of the tax has not been assailed but the difference in the language of the two items in List I and II has been pressed before us for the purpose of showing that the word  terminal  implies the terminus of a journey and not the end of the jurisdictional limits of a Municipality
Terminal in item No 58 of List I of the 1935 Constitution Act has reference to the terminus of carriage of goods
There is no reason to give to this word a different meaning in item No 8 of Scheduled Tax Rules under the Government of India Act of 1915 or in clause o of section 661 of the Act
The two sets of taxes in Lists I and 11 have different qualities
The terminal tax under item No 58 of List I arises at the end of journey by railway wherever the end may be in relation to particular goods  and under item No 49 of List 11 the tax or cess on entry of goods whatever the nomenclature is imposable when the goods enter a local area for consumption use or sale therein
The two sets of taxes are so distinct that they may be imposed simultaneously one when they reach their destination at the end of a railway journey and the other when they enter the limits of a local area for the object above mentioned
But in both cases the activity in regard to the motion of the goods ends in the one case as the goods are carried no further by railway and in the other as their entry is for consumption use or sale
Keeping in view the terms and language and the legislative history of the section 661 we are unable to enlarge the terms of the section by mere construction so as to include within its operation goods which are in transit and are being transported across the jurisdictional limits of the Municipality
The Federal Court in Punjab Flour and General Mills Co Ltd vs Chief Officer Corporation of City of Lahore 1 considered the meaning of the word 1 1120  terminal in a case which was brought from Lahore
There the Municipality of Lahore imposed a terminal tax in 1926 calculated on the gross weight Of Consignments or per tail as the case might be at the rates and on the articles specified in the schedule imported into the Municipality by rail or by road
By a notification of 1938 the Municipality in supersession of that tax imposed a new tax called Octroi without refund which was to be similarly calculated on the gross weightage of the consignments imported into the limits of the Municipality
This in turn was replaced by the imposition of a new tax also called Octroi without refund on consignments imported into the limits of the Municipality
The appellant s contention in that case was that the tax imposed was a  terminal tax  on goods carried by railway and as such not imposable
The Municipality argued on the other hand that it was a tax within the provisions of Entry No 49 of List 11 and as such could be imposed with the previous sanction of the Provincial Government under section 612 of the Punjab Municipalities Act
The following passage from the judgment of Spens C J shows the meaning to be attached to the word  terminal   There appears to us a definite distinction between the type of taxes referred to as terminal taxes in Entry No 58 of List I of Sch 7 and the type of taxes referred to as cesses on the entry of goods into a local area in Entry No 49 of List II
The former taxes must be a terminal b confined to goods and passengers carried by railway or air
They must be chargeable at a rail or air terminus and be referrable to services whether of carriage or otherwise rendered or to be rendered by some rail or air transport Organisation
The essential features of the cesses referred to in Entry No 49 of List II are on the other hand simply a the entry of goods into a definite local area and b the requirement that the goods should enter for the purpose of consumption use or sale therein         
In our judgment there is no limitation to be implied in Entry No 49 List II in regard to the manner in which goods may be transported into a local area
It follows 1121 that so far as rail borne goods are concerned the same goods may well be subjected to taxation under Entry No 58 of List I as well to local taxation under Entry No 49 of List II
The grounds of taxation under the two entries are as indicated above radically different and there is no case for suggesting that taxation under the one entry limits or interferes in any way with taxation under the other Therefore according to the Federal Court  terminal has reference to the terminus of the railway or air ie the end of journey
The tax imposed in that case was held not to be a terminal tax but merely a cess on entry of goods into the local area within Entry No 49 of List II even though it was imposed on railborne goods entering the municipal area
It is a noticeable feature of section 661 that apart from the terminal tax there are 14 other heads of taxation imposable by the Municipality and in the case of each one of these 14 heads the tax is on some activity which takes place within the jurisdictional limits of the Municipality
This supports the contention of the appellant that the terminal tax leviable under cl
o properly construed must have reference to some activity within the municipal area ie the entry for the purpose of remaining within that area or commencement of journey from that area
We are therefore of the opinion that the terminal tax under section 661o is not leviable on goods which are in transit and are only carried across the limits of the Municipality and would therefore allow this appeal reverse the decision of the Nagpur High Court
The appellant will have its costs in this court and in the High Court
Appeal allowed


Summary:
 The defendant respondent No 1 Ram Prakash as Karta of a Joint Hindu Family executed an agreement to sell the suit property and received a sum of Rs5000 as earnest money
He however refused to execute the sale deed
The defendant No 2 Jai Bhagwan instituted a suit in the Court of the Sub Judge for specific performance of the agreement and in the alternative for a decree for recovery of Rs10000
In the said suit the appellants Nos
I and 2 and the respondent No 11 the sons of defendant respondent No 1 made an application for being impleaded
The application was dismissed
Thereupon the three sons of defendant No 1 instituted a civil suit in the Court of the Sub Judge for permanent injunction restraining the defendant No1 from selling or alienating the property above said to the defendant No2 or any other person and restraining the defendant No2 from proceeding with the suit for specific performance aforementioned as the property in question was a Joint Hindu Family Coparcenary property of the plaintiff and the defendant No t and there was no legal necessity for sale of the property nor was it an act of good management to sell the same to the defendant No2 without the consent of the plaintiffs
The trial Court held that the house property in question was the ancestral property of the Joint Hindu Mitakshara Family and the defendant No 1 the father of the plaintiffs was not competent to sell the same except for a legal necessity or the benefit of the estate and that since the plaintiffs  application for impleading them in the suit for specific performance of the contract of sale had been dismissed and the plaintiffs were coparceners having interest in the property the present suit was the only remedy available to them and was maintainable in the present form
Against this judgment and decree the defendants the legal rep 624 resentatives of defendant No 2 since deceased preferred an appeal
The Appellate Courts held that a coparcener had no right to maintain a suit for permanent injunction restraining the manager or Karta from alienating the coparcenary property and the coparcener had the right only to challenge the alienation of coparcenary property to recover the property after the alienation had come into being
The judgment and decree of the trial court were set aside
The appellants ie the sons of the defendant respondent No 1 appealed to this Court for relief by special leave against the decision of the High Court
In this appeal the Court was called upon to decide the only question whether the suit for permanent injunction restraining the Karta of the joint Hindu family from alienating house property belonging to the joint Hindu family in pursuance of the agreement to sell executed in favour of the predecessor of the appellants Jai Bhagwan since deceased was maintainable
It is well settled that in a Joint Hindu Mitakshara family a son acquires by birth an interest equal to that of the father in the ancestral property
The father by reason of his paternal relation and his position as the head of the family is its manager and he is entitled to alienate the joint family property so as to bind the interests of both the adult and minor coparceners in the property provided that the alienation is made for legal necessity or for the benefit of the estate or for meeting an E antecedent debt
The power of the Manager of a joint Hindu family property is analogous to that of a Manager for an infant heir as observed by the Judicial Committee in Hunoomanpersaud Pandey vs Mussumat Bobooee Munraj Koonweree Moore s on Indian Appeal  1856 Vol
Vl 393
631C E In a suit for permanent injunction under section 38 of the Specific Relief Act by a coparcener against the father or Manager of the joint Hindu family property an in junction cannot be granted as the coparcener has got equally efficacious remedy to get the sale set aside and recover possession of the property
Sub section h of section 38 of the Specific Relief Act bars the grant of such an injunction
Secondly the plaintiff respondents brought the suit for permanent injunction restraining their father the defendant No t from selling or alienating the property to defendant No 2 or any other person etc
Thus the relief sought for was to restrain by permanent injunction the Karta of the Joint Hindu Mitakshra family from selling or alienating the property
The delendant No 1 as Karta of the joint Hindu family had undoubtedly the power to alienate the joint family property for legal necessity or for 625 the benefit of the estate as well as for meeting antecedent debts
632 B E A The grant of such a relief will have the effect of preventing the father permanently from selling or transferring the property belonging to the joint Hindu family even if there is a genuine legal necessity
If such a suit for injunction is held maintainable the effect will be that whenever the father as Karta of the joint Hindu coparcenary property will propose to sell such property owing to a bona fide legal necessity any coparcener may come up with such a suit for permanent injunction and the father will not be able to sell the property for legal necessity till that suit is decided
In case of waste or ouster an injunction may be granted against the manager of the joint Hindu family at the instance of the coparcener but a blanket injunction restraining the manager permanently from alienating the property of a joint Hindu family even in the case of legal necessity cannot be granted
632G H 633A D It appeared that the defendent No t entered into the agreement of sale stating that he was the owner of the suit property
The plaintiffs appellants claimed the suit property was the joint family property and they as coparceners of the joint Hindu Mitakshra family had equal shares with their father in the suit property
The question whether the suit property was the self acquired property of the father or was the ancestral property had to be decided before granting any relief
The suit being for permanent injunction this question could not be gone into and decided
633D E The appeal was dismissed and the judgment and decree of the High Court were affirmed
633F Per K Jagannatha Shetty J concurring The question raised in the appeal was whether interference of the Court could be sought by a coparcener to interdict the Karta of a Hindu undivided family from alienating coparcenary property
The question was of considerable importance and there seemed to be but little authority in the decided cases
The facts of the case lay in a narrow compass
Ram Prakash entered into an agreement for sale of certain house property in favour of Jai Bhagwan which was described as a self acquired property of Ram Prakash
Jai Bhagwan paid Rs5000 as earnest money on the date of the agreement and promised to pay the balance on the date of execution of the sale deed
Ram Prakash however did not execute the sale 626 deed
Jai Bhagwan instituted a suit for specific performance of the agreement
In that suit the sons of Ram Prakash wanted to be impleaded as parties to resist the suit for specific performance but the court did not permit them
Thereupon they instituted a suit for permanent injunction against their father restraining him from alienating the property to Jai Bhagwan or any body else on the ground that the said house was their coparcenary property and the proposed sale was neither for legal necessity nor for the benefit of the joint family estate
The suit for injunction was practically tried as a suit for declaration
The trial court decreed the suit with the following findings The suit property was coparcenary property of the joint family of Ram Prakash and his sons
Jai Bhagwan had failed to prove that the proposed sale was for the legal necessity of the joint family or for the benefit of the estate
Ram Prakash being the manager of the family could not alienate the coparcenary property in the absence of these two requirements
The sons could restrain their father from alienating the coparcenary property since the proposed sale was without justification
The wife and children of Jai Bhagwan who had died during the pendency of the suit challenged the decree of the trial court in appeal before the Additional District Judge
The District Judge reversed the decree of the trial court and dismissed the suit
The plaintiffs preferred second appeal which was dismissed by the High Court
The plaintiff appealed to this Court by special leave
As a preliminary to the consideration of the question involved it would be necessary to examine the structure of the joint Hindu family its incidents and the power of its Karta or manager
635D Joint Hindu Family joint Hindu family consists of male members descended lineally from a common male ancestor together with their mothers wives or widows and unmarried daughters
They are bound together by the fundamental principle of sapindaship or family relationship which is the essential feature of the institution
The cord that knits the members of the family is not property but the relationship of one another
635F The coparcenary consists of only those persons who have taken by birth an interest in the property of the holder and who can enforce a partition whenever they like
It is a narrower body than a joint family
It commences with a common ancestor and includes a holder of joint property 627 and only those males in his male live who are not removed from him by more than three degrees
Only males can be coparceners
635G H 636A Managing Member and his powers In a Hindu family the Karta or manager occupies a unique position
He has greater rights and duties
He must look after the family interests
He is entitled to possession of the entire joint estate
He is also entitled to manage the family properties
In other words the actual possession and management of the joint family property must vest in him
637Bl The managing member or Karta has not only the power to manage but also the power to alienate joint family property
The alienation may be either for family necessity or for the benefit of the estate
Such alienation would bind the interests of all the undivided members of the family adults or minors
637E Remedies against alienations Although the power of disposition of joint family property has been conceded to the manager of joint Hindu family the law raises no presumptions as to the validity of his transactions
His acts could be questioned in the court of law
The other members of the family have a right to have the transaction declared void if not justified
When an alienation is challenged as unjustified or illegal it would be for the alienee to prove that there was legal necessity in fact or that he made proper and bona fide enquiry as to the existence of such necessity and satisfied himself as to the existence of such necessity
If the alienation is found to be unjustified it would be declared void
Such alienations would be void except to the extent of the manager s share in Madras Bombay and Central provinces
The purchaser could get only the manager s share
In other provinces the purchaser would not get even that much
The entire alienation would be void
637H 638A C In the light of these principles his Lordship did not think that the submissions of Mr HN Salve were sound
It is true that a coparcener takes by birth an interest in the ancestral property but he is not entitled to separate possession of the coparcenary estate
His rights are not independent of the control of the Karta
It would be for the Karta to consider the actual pressure on the joint family estate and to examine as to how best the joint family estate could be beneficially put into use to subserve the interests of the family
A coparcener cannot interfere in 628 these acts of management
A father Karta in addition to the aforesaid powers of alienation has also the special power to sell or mortgage ancestral property to discharge his antecedent debt not tainted with immorality
If there is no such need or benefit the purchaser takes risk and the right and interest of the coparcener will ramming unimpaired in the alienated property
No doubt the law confers a right on the coparcener to challenge the alienation made by Karta but that right is not inclusive of the right to obstruct aliention
Nor could the right to obstruct alienation be considered incidental to the right to challenge the alienation
The coparcener cannot claim the right to interfere with the act of management of the joint family affairs he is not entitled for it
Therefore he cannot move the Court to grant relief by injunction restraining the Karta from alienating the coparcenary property
638D E G H 639A B There was one difficulty for the sustainability of the suit for injunction
Temporary injunction can be granted under sub section I of section 37 of the 
A decree for perpetual injunction is made under sub section 2 of section 37
Such an injunction can be granted upon the merits of the suit
The injunction would be to restrain the defendant perpetually from commission of an act contrary to the rights of the plaintiff
Section 38 of the governs the grant of perpetual injunction
The provisions of section 38 have to be read alongwith section 41 the clause h whereof provides that an injunction cannot be granted when a party could obtain an efficacious relief by any other usual mode of proceeding except in the case of a breach of trust
The coparcener has adequate remedy to impeach the alienation made by the Karta
He cannot therefore move the court for an injunction restraining the Karta from alienating the coparcenary property
The decision of the Punjab  Haryana High Court in Jujhar Singh vs Giani Talok Singh  348 has correctly laid down the law
639C D H 640A B From the above discussions of the principles of Hindu Law and in the light of the provisions of the  his Lordship dismissed the appeal
640G  Shiv Kumar vs Mool Chand CLJ 1971 page 1027 Jujhar Singh vs Giani Talok Singh  348 Hunooman Persaud Pandey vs Mussumat Babooee Munraj Koonweree Moore s on Indian Appeal 1856 Vol
VI 393 Shiv Kumar Mool Chand Arora vs Mool Chand Jaswant Singh AIR 1972 Punjab  Haryana 147 Sudarshan Maistri vs Narasimhulu Maistri and Anr ILR 25 Mad 149 and Bhagwan Dayal vs Mst
Reoti Devi  477