Case: Shahdara (Delhi) Saharanpur Light Railwayco. Ltd Vs. The Municipal Board, Saharanpur

Public Health Act, Lord Macnaghten observed, at p. 267:"Now it cannot be denied that the rails on which the tramcars run, with the embankment or foundation on which they rest, and everything that supports them, do form a road or way was constructed under parliamentary powers for public conveyance. Is it a railway? There is nothing in the Public Health Act, 1875, or in the earlier Acts, in which the same provision is found, to confine the word railway as used in those Acts to a particular kind of railway, or to limit the generality of the expression in any way."21. His Lordship, Further observed at p. 268:"It seems to me that if it is a railway in fact, not differing from other railways in any material particular, it is nonetheless a railway because the promoters in their special Act chose to call it a tramroad- a very convenient term to use for the title of their Act and the name under which they sought incorporation. Nor is it the less a railway because some only of the sections of the Railways Clauses Consolidation Act are incorporated in the special Act, or because, if one did not know what the thing really was, the language used for the purpose of applying the sections which are incorporated might seem to import that it was not, properly speaking, a railway at all. You must look at the special Act to see that it confers the appropriate powers of construction. Everything else in the Act is, I think, beside the question which this House has now to determine.22. In our opinion, the observations of the House of Lords, extracted above, are apposite, to the case on hand. We have already pointed out that neither the Municipal Act, nor the Terminal Tax Rules give any special definition of the expression railway; and, so far as we could see, there is nothing in the said Act or the Rules to indicate that the word railway, in Item of Sch. B, is used only to refer to A railway registered under the Railways Act or to limit the generality of the expression railway in any way. Under those circumstances, if the appellant is a railway in fact, as commonly understood there does not appear to be any serious controversy on that point-it will be a railway, notwithstanding the fact that it is registered as a tramway, under the Tramways Act. The legislature itself has applied the various provisions of the Railways Act to the appellant; and the appellant also satisfies the definition of a railway under the Government of India Act, 1935 and the Constitution. The provisions of the Indian Railway Companies Act, 1895, have also been applied to the tramways constructed, under the Tramways Act by the Indian Tramways Act of 1902. The second preamble to the last mentioned Act, clearly shows that the tramways to which the Indian Railway Companies Act was made applicable, do not differ in structure and working from railways.23. The object underlying the exemption under Item 2 of Sch. B to the Terminal Tax Rules. is also not far to seek. The railways pass through areas where it is not deriving the full benefit of all the amenities provided by the Municipal Boards. Therefore, in our opinion, the appellant satisfies the definition of a railway, so as to be entitled to the exemption provided under Item 2 of Sch. B.24. Before we close the discussion, we will also refer to the decision of the House of Lords in Tottenham Urban Council v. Metropolitan Electric Tramways, Ltd., 1913 AC 702. The same question, regarding the eligibility of a tramway for exemption, under S. 211 (1) (b) of the Public Health Act, 1875, came up for consideration in that case. From the judgment, it will be seen that the company were working, as, a connected system, a tramway and a light railway, which were constructed in and along certain public streets and roads, in the district of the Urban Council. The tramway, was constructed under the Tramway Acts and Orders and the railway, under the Light Railways Act, 1896. Both were identical as to the mode of construction and materials used. The claim of the company in respect of the railway, as such, for assessment at a lower rate, was accepted; but, so far as the tramway was concerned, the House of Lords held that it is not a railway, within the meaning of S. 211(1)(b) of the Public Health Act, 1875. The research given by the House of Lords, for not accepting the claim of the tramway, was that in the great bulk of public legislation, relating to railways, the legislation has universally been understood and interpreted by Courts as applying only to that which is popularly known as a railway, and not to that which is popularly known as a tramway. And special emphasis is laid by the House of Lords that the legislature has used the word railways and not railways and tramways, in S. 211 of the Public Health Act, 1875.25. We are only adverting to this decision to show that on the basis of an interpretation placed by the Courts, the House of Lords held that the word railways, in the Public Health Act, 1875, will not take in tramways. But, no such circumstances, as pointed out by the House of Lords, in the said decision, exist in the present case before us. On the other hand, the position is exactly the opposite, as will be seen from the Government of India Act, 1935, and the Constitution. Even applying the popular test, adopted by the House of Lords, in this case, the appellant is undoubtedly a railway.26. In our opinion, the principles laid down by the House of Lords in 1909 AC 264, apply to the particular matter on hand and, we hold that the appellant, being a railway, is entitled to the exemption under Item 2 of Sch. B to the Terminal Tax Rules, in question.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]17. We are not impressed with the approach made by the learned Judges of the High Court, for Negativing the claim for exemption, made by the appellant. It must be borne in mind that the expression railway has not been defined either in the concerned Municipalities Act, or the Rules, if such is the case, the definition must hold the field. Going by the definition of the expression railway, contained in S. 311 (2) ofthe Government of India Act, 1935, and the corresponding provision in Art. 366 (20) of the Constitution, the appellants system is a railway. All the provisions of the Railways Act have been extended to the appellant, excepting S. 135. In our opinion, if the appellant is a railway, otherwise, the mere fact that the provisions of S. 135 of the Railways Act, have not been applied, is of no consequence. We have already referred to the fact, which is not in dispute, that the appellants railway passes through four districts in U. P. and Delhi, and that it has got all the features of a railway, as ordinarily understood.In our opinion, the observations of the House of Lords, extracted above, are apposite, to the case on hand. We have already pointed out that neither the Municipal Act, nor the Terminal Tax Rules give any special definition of the expression railway; and, so far as we could see, there is nothing in the said Act or the Rules to indicate that the word railway, in Item of Sch. B, is used only to refer to A railway registered under the Railways Act or to limit the generality of the expression railway in any way. Under those circumstances, if the appellant is a railway in fact, as commonly understood there does not appear to be any serious controversy on that point-it will be a railway, notwithstanding the fact that it is registered as a tramway, under the Tramways Act. The legislature itself has applied the various provisions of the Railways Act to the appellant; and the appellant also satisfies the definition of a railway underthe Government of India Act, 1935 and the Constitution. The provisions ofthe Indian Railway Companies Act, 1895, have also been applied to the tramways constructed, under the Tramways Act by the Indian Tramways Act of 1902. The second preamble to the last mentioned Act, clearly shows that the tramways to which the Indian Railway Companies Act was made applicable, do not differ in structure and working from railways.23. The object underlying the exemption under Item 2 of Sch. B to the Terminal Tax Rules. is also not far to seek. The railways pass through areas where it is not deriving the full benefit of all the amenities provided by the Municipal Boards. Therefore, in our opinion, the appellant satisfies the definition of a railway, so as to be entitled to the exemption provided under Item 2 of Sch. B.We are only adverting to this decision to show that on the basis of an interpretation placed by the Courts, the House of Lords held that the word railways, in the Public Health Act, 1875, will not take in tramways. But, no such circumstances, as pointed out by the House of Lords, in the said decision, exist in the present case before us. On the other hand, the position is exactly the opposite, as will be seen fromthe Government of India Act, 1935, and the Constitution. Even applying the popular test, adopted by the House of Lords, in this case, the appellant is undoubtedly a railway.26. In our opinion, the principles laid down by the House of Lords in 1909 AC 264, apply to the particular matter on hand and, we hold that the appellant, being a railway, is entitled to the exemption under Item 2 of Sch. B to the Terminal Tax Rules, in question.