Judgment Case ID: 2890

Judgment:
minal Appeal No. 134 of 1968. Appeal from the judgment and order dated April 16	 1968 of the Allahabad High Court in Criminal Misc. Case No. 3403 of 1967. Yogeshwar Prasad	 for the appellant 0. P. Rana	 for respondent No. 2. 701 The Judgment of the Court was delivered by Dua	 J. The short point requiring determination in this appeal on certificate of fitness granted by the Allahabad High Court under article 134(1)(c) of the Constitution is whether tolltax on laden motor vehicles levied under section 128(1)(vii) of the	 U.P.	 Municipalities Act 11 of 1916 (hereinafter described as the Act) on their entry within the limtis of Nainital Municipality can be realised from the passengers carried by them. The relevant facts which lie within a narrow compass may now be briefly stated. Brij Mohan Chandra	 Vice President of the Notified Area Committee	 Bhowali	 District Nainital (respondent No. 1 in this Court) traveled in U.P. Government Roadways Bus from Bhowali to Nainital on 17th	 26th and 29th May	 1967. At Kaila Khan Municipal toll barrier one and a half mile from Nainital on the Bhowali Nainital Road	 toll tax was demanded from him but he declined to pay. The Executive Officer	 Municipal Boad	 Nainital	 thereupon filed a complaint against him under section 190(1)(c) of the Code of Criminal Procedure on the allegation that he had by entering the municipal limits of Nainital without paying the toll dues committed breach or r. (1) of the Rules made under section 153(a) of the Act for the 'assessment and collection of tolls within the municipality of Nainital. Brij Mohan Chandra 's contention in reply was that the levy of toll tax by the Municipal Board on passengers was ultra vires the taxing power of the Board. During the pendency of the proceedings in the court of Sub Divisional Magistrate	 Nainital	 Brij Mohan Chandra applied to the High Court of Judicature at Allahabad under section 561A	 Cr. P.C. for quashing those proceedings. The High Court (section D. Singh J) on April 16	 1968 quashed the proceedings by the impugned order holding that cl	 (vii) of section 128(1) of the Act did not authorise levy of toll tax on passengers and that the relevant notification also levied tax only on vehicles and not on passengers. The rule imposing an obligation on the passengers to pay the toll was	 therefore	 struck down as ultra vires. In this Court Shri Yogeshwar Prasad	 learned counsel for the appellants (the Municipal Board	 Nainital and the Executive Officer of the Board) at the outset attempted obliquely to seek support for the validity of the levy on passengers from cl. (xiv) of section 128(1) as pleaded in the memorandum of appeal lodged in this Court under O.21	 r. 12 of the Supreme Court Rules. But this attempt was soon abandoned and Shri Yogeshwar Prasad felt constrained to concede that in view of the clear and precise position taken on behalf of the Board in the High Court that it had never been intended to impose toll tax on passengers	 it was not 702 open to him in this Court to rely on cl. (xiv). Shri O. P. Rana	 the learned counsel for the respondent State of U.P. supporting the appeal	 also did not rely on cl. (xiv). We	 therefore	 do not purpose to express any opinion on the question whether or not a toll tax on passengers would be permissible under cl. (xiv). The only point seriously pressed on behalf of the appellants as also by Shri O. P. Rana on behalf of the State of U.P. was that the toll imposed on the vehicle entering the municipality could legally be realised from the passengers carried by it because of their nexus with the entry of the vehicle. Before examining this contention we may in passing turn to cl. (vii) of section 128 ( 1 of the Act which reads: "128(1) Subject to any general rules or special orders of the State Government	 in this behalf	 the taxes which a board may impose in the whole or part of a municipality are (vii) a toll on vehicles and other conveyances	 animals	 and laden coolies entering the municipality; This clause in clear and unambiguous terms speaks of a toll on vehicles and other conveyances	 animals and laden coolies 	entering the municipality. It does not take within its Cold the	 passengers carried by vehicles to be taxed	 with the result that imposition of tax on passengers by the Municipal Board would be incompetent under this clause. And this in fact was not 	disputed at the Bar. The argument of nexus was also raised in the High Court: but it was repelled by that Court which observed as follows "It was urged that when a tax on conveyance is levied	 some provision has to be made for the assessment and collection of that tax and some provision made about the persons from whom that tax may be recovered and that if there is any reasonable or rational nexus between the levy of the tax and the persons from whom that tax may be recovered	 the Municipal Board would be within its rights to realise the tax from the persons so named. It is difficult	 however	 to apply the nexus theory in a manner so as to enable the Municipal Board to recover the toll tax from the passengers travelling in a bus otherwise there will be no distinction left between a vehicles tax and a passenger tax. When a toll tax is 703 levied on a vehicle	 it is levied at the point of its entry within the municipal limits. It is obviously	 therefore	 the person	 who is in charge of the vehicle or who makes an attempt to take the vehicle inside the municipal limits	 who takes upon himself the responsibility for the payment of the toll tax. There is no question of there being any nexus between the levy of the tax on the vehicle and the persons sitting inside the same. In the case of 	vehicles plying on hire the driver or conductor of the vehicle can	 of course	 charge the amount of tax which has to be paid	 from the passengers in addition to the fare which is normally charged from them. " The same argument was repeated before us. The submisssion seems to be based largely on the policy of the law to ensure the collection of taxes by preventing fraudulent evasion. in order to	 appreciate its cogency we may appropriately advert 'to the Rules made by the State Government	 in 1922 under section 296 read with section 153(a) of the Act	 with respect to the assessment and collection of tolls in the Nainital Municipality. So far as relevant for the purposes of this appeal	 according to r. (1)	 no person can bring within the limits of the Nainital Municipality any vehicle in respect of which the toll tax imposed under section 128 ( 1 ) (vii) of the Act is leviable until the toll due in respect thereof has been paid to such muharrir and at such barrier as the Board may from time to time appoint. Under r. 2(a)	 in the case of laden motor vehicles the load recorded in the chalan or invoice accompanying the vehicle has to be accepted by the muharrir for purposes of assessing the toll. If no chalan or invoice accompanies the vehicle the load is to be assumed for the purposes of assessment to exceed three mounds unless it is ascertained to be less by weighment undertaken 'at the request of the person in charge of the vehicle. The toll on a laden motor vehicle has to be paid by the person in charge of the vehicle and toll on a passenger is to be paid by the passenger. Rule 2 (b) provides that when any person in charge of a laden vehicle enters the municipal limits such person shall pay the toll to the muharrir at the barrier add the muharrir shall tender a face value ticket with coupon attached for the amount to the person paying the toll. This face value ticket can be examined by the official appointed for the purpose and the person bringing the vehicle with the municipal limits is bound under r. 3 to permit such examination. Under r. 2(c)	 every driver of a motor lorry or other vehicle plying for 	hire and every driver of a private motor can or vehicle carrying passengers or goods has to so his lorry or vehicle at the toll barrier for a reasonable time to enable the	 toll staff to recover prover tolltax from passengers and on the goods loaded therein. The pro 704 vision contained in r. 2(a) that the toll on a passenger shall be paid by the passenger on which reliance has principally been placed	 is of no assistance to the appellants beacuse it postulates imposition of toll on_ passengers and	 therefore	 unless a ton has been imposed on passengers none can be demanded from them under this clause. Similarly the notification (No. 1450/XI 476 E) dated 19th August	 1921	 according to which toll tax under section 128 (1) (vii) of the Act sanctioned by the U.P. State Government under section 135(2) of the Act is levied on motor vehicles other than cars at the rate of Re. 1/ per passenger carried by them and at the rate of Rs. 2/ per vehicle is unhelpful to the appellants. As already observed by us	 no toll tax has been imposed on passengers and indeed it was conceded on behalf of the appellants	 both here and in the High Court	 that the Board had never intended to impose a tax on passengers. It is also noteworthy that the toll imposed on the laden vehicles is expressly made payable by the person incharge of such vehicles and according to the scheme of the rules which provide the procedure for collecting such tolls	 the person bringing the vehicle within the municipal limits (who is supposed to be the person in charge) is enjoined to permit examination of the face value ticket when demanded after the vehicle 's enquiry into	 those limits. No liability has been fixed on the passengers for payment of the tax imposed on the vehicles carrying them 'and entering the Nainital Municipality. The liability for the payment of such tax having been fixed only on the person in charge of the vehicle and not on the passengers it is difficult to appreciate how the authorities entrusted with the duty of realising the same can demand it from the passengers. Our attention was not invited to any provision of law under which the passengers can be held liable to pay the toll tax imposed on the vehicles. Neither any precedent nor any principle was cited at the Bar in support of the submission that merely because the passengers were carried by the vehicles the toll tax imposed on the entry of the vehicles into the municipal limits could be demanded from them. On the facts and circumstances of this case and on the arguments addressed we are	 therefore	 unable to hold that the passengers carried by the vehicles entering the municipality of Nainital can be legally called upon to pay the tax imposed on the vehicles. As a last resort a faint attempt was made by the appellants ' counsel to rely on section 164 of the Act in bar of the jurisdiction of the High Court in entertaining the petition under section 561A	 Cr. P.C. and in holding the impugned assessment and liability of the passengers to be unauthorised and illegal. This argument ignores the vital point that if the impugned levy is outside the Act then this section cannot operate and the jurisdiction of the High Court 705 to quash the proceedings relating to the levy which is ultra vires the taxing power of the Board under the Act cannot be taken away to the prejudice of the aggrieved	 citizen. This submission is accordingly repelled. In the final result this appeal fails and is dismissed. R.K.P.S. Appeal dismissed.

Summary:
While the first respondent was travelling by a U.P. Government Road. ways bus from Bhowali to Nainital in May 1967	 toll tax was demanded from him at the appellant 's municipal toll barrier but he declined to pay. The Executive Officer	 Municipal Board	 Nainital	 thereupon filed a complaint against him under section 190(1) (c) la. P.C.	 for breach of rule 1 of the Rules made under section 153(a) of the U.P. Municipalities Act	 1916. The first respondent 's contention was that the levy of toll tax by the Municipal Board on passengers was ultra viruses the taxing pow& of the Board. During the pendency of these proceedings	 on an application made			 by the first respondent under section 561A	 Cr. P.C.	 the High Court quashed those proceedings holding that clause (vii) of section 128(1) of the Municipalities Act did not authorise the levy of toll tax on passengers and that a connected notification also levied tax only on vehicles and not on passengers. The Rule imposing an obligation on the passengers to pay the toll was therefore struck down as ultra vires. In appeal to this Court it was contended inter alia that toll imposed on the vehicle entering the Municipality could legally be realised from the passengers carried by it because of their nexus with the entry of the vehicle. HELD:Dismissing the appeal	 The toll imposed on the laden vehicles is expressly made payable by the person in charge of such vehicles. No liability has been fixed on the passengers for payment of the tax imposed on the vehicles carrying them and entering the Nainital Municipality. There was no precedent or any principle in support of the submission that merely because the passengers were carried by the vehicles the toll tax imposed on the entry of the vehicles into the municipal limits could be demanded from them [704 D G] When the impugned levy was outside the Act	 section 164 of the Act could not operate to bar the jurisdiction of the High Court to quash the proceedings relating to the levy which was ultra virus the taxing power of the Board. [704 H]