Appeals Nos 311 to 366 of 1964
Appeals from the judgment and decrees dated December 6 1957 December 16 1958 January 29 1959 of the Allahabad High Court in Special Appeals Nos 343 and 381 416 of 1955 548 of 1958 49 55 and 57 67 of 1959 respectively
M C Setalvad B P Jha and J P Goyal for the appel lant
G section Pathak B Dutta and Naunit Lal for the respondents in CAs Nos 311 36664
The Judgment of the Court was delivered by Hidayatullah J
These appeals involve a short common point of law and to appreciate it the narration of a few simple facts will be sufficient
On October 29 1941 the Hardwar Union Municipal Board for brevity called the Board in this Judgment issued a notification No 4188XI 416 41 by which it imposed a toll on motor vehicles and tongas entering or leaving the 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
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 section 1281xiv of the UP Municipalities Act 1916 UP Act 2 of 1916
Accompanying the notification were rules for the levy and collection of the toll
On February 22 1955 a second notification was issued No 830XXIII 16C 53 54 this time in exercise of the powers conferred by section 1281vii 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 Hardwar road at a place called Kharkhari within the limits of Hardwar Municipality
Toll was collected at that barrier from 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 aXI C 57 was issued once again in exercise of powers conferred by section 1281xiv and the Board amended the description of the toll in the notification of 1941 and deleted the exemption which had been granted to persons travelling between Rishikesh and Hardwar
The final description of the tax reads 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
iiDelete the clause c All persons travelling in motor vehicles and tongas from and to Rishikesh  given under the proviso 2 to paragraph 1
 The last notification was issued after the respondents who are owners of motor vehicles plying between Rishikesh and Hardwar had filed their petitions under article 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 CJ 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 Municipal 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 rejected
The 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 further We think therefore with respect that the learned Judge went too far when he said that a toll cannot be 894 levied on a vehicle going out of the limits of the Municipal 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 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 proposition is so indisputable that Mr Setalvad for the Board did not seek to contradict it in any way
We must therefore look at the UP Municipalities Act first
Section 1281 of the Act read in 1941 as follows  128
Taxes which may be imposed  1Subject to any general rules or special orders of the Provincial Government in this behalf the taxes which a board may impose in the whole or any part of a municipality are   
viia toll on vehicles and other conveyances animals and laden coolies entering the municipality   
xivany 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 Mr Setalvad has relied upon both the clauses of section 1281 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
895 The scheme of section 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 the Boards are equated to the legislative powers of the Legislature of the Province now the State
Since tolls were first imposed in Hardwar in 1941 we must 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 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 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 59 Tolls
It will thus be seen that in 1941 the Provincial Legislature had 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
xivis 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 confirmed to cl
vii it is clear that the Board could levy toll only 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 municipality 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 down by necessary implication
To permit tolls to be levied on vehicles leaving the municipality would render ineffec 896 tive that part of cl
vii which lays emphasis on vehicles entering 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 Constitution was not available because the tax was not a tax on passengers but on vehicles and the power to levy tolls continued to be res 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 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 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 toll traverse 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
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 that the person charged enjoyed a privilege and the amount went towards the 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 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 in gate tolls being collected at the gates of a town or toll barriers
Even octrois have disappeared in Europe and England but they have continued to persist in India
Whether such tolls were collected only on entry or only on departure or both on entry and departure it is not easy to say
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 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 section 128 1  and that power continues to be so limited
In this view of the matter the distinction made by the Divi 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 Board shall bear the cases of this appeal
One hearing fee
Appeals dismissed


Summary:
In 1941 the appellant Municipal Board issued a notification under section 128 1 xiv of the UP 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 section 1281vii 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 section 1281xiv 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 el
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
HELDSection 1281 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 el
xiv
Therefore the toll could be collected only from vehicles entering the municipality
The distinction made by the Divisional 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 municipality could not enter the discussion
897 B F Since the tolls were first imposed in 1941 el
xiv must be viewed in the light of the Constitution Act of 1935
The scheme of section 128 of the UP Act is that it enumerates certain taxes and confers powers on municipalities to levy them and then it enacts el
xiv which is intended to cover the taxes not enumerated which the Provincial Legislature had authority to impose
The relevant powers of theprovincial 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 did not enable the Provincial Legislature to impose taxes carried over inland routes
The power which flowed from made over to the appellant to be exercised in the particular in el
vii that is on vehicles entering the municipality the tolls to be levied on vehicles leaving the municipality el
vii ineffective
895 A C E G H on because it on passengers Entry 53 was manner stated and to permit would render 892 The power of the State Legislature derivable from Entries 56 and 59 of the State List of the Constitution 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 tons under Entry 59 continued to be restricted to vehicles entering the municipality
Besides cl
vii under which it was issued limited the power to vehicles entering the municipality
The third notification was irrelevant as was issued after the petitions were filed
896 A C