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Shri Raghbir Singh v. The Municipal Board Of Hardwar Union, Hardwar And Another Opp. Parties.
Factual and Procedural Background
These petitions were filed by owners of motor vehicles operating on the Hardwar-Rishikesh route seeking relief under Article 226 of the Constitution. The petitioners challenged notifications issued by the Municipal Board of Hardwar Union imposing toll tax on vehicles entering the municipal limits with passengers. The tax was levied under notifications dated 29th October, 1941, and 22nd February, 1955, requiring vehicles carrying passengers into Hardwar to pay toll at a barrier. The petitioners alleged that this levy caused hardship by increasing fares and making road transport less popular compared to rail. The Municipal Board filed a counter-affidavit denying any adverse effect on the petitioners' business and contended that the toll was levied on passengers, not the vehicle owners, and was not discriminatory as rail passengers also paid pilgrim tax. The Board also raised preliminary objections regarding alternative remedies, suppression of material facts, and pendency of a suit for similar relief.
Legal Issues Presented
- Whether the Municipal Board had the authority under the U.P. Municipalities Act to levy toll tax on vehicles entering and leaving the limits of Hardwar Union Municipality.
- Whether the levy of toll tax on motor vehicles carrying passengers violated Article 14 of the Constitution by discriminating against road passengers vis-à-vis rail passengers.
- Whether the petitioners were entitled to relief under Article 226 despite the existence of alternative remedies and pending litigation.
- Whether the toll tax could be imposed on vehicles leaving the municipal limits or only on those entering.
Arguments of the Parties
Petitioners' Arguments
- The notifications levying toll tax on vehicles carrying passengers into Hardwar municipal limits were unlawful and caused hardship by increasing transport fares.
- The toll tax imposed was beyond the powers conferred by the Municipalities Act, particularly as it was levied on vehicles leaving the municipality, for which no power was granted.
- The levy violated Article 14 of the Constitution because passengers traveling by rail were not subject to a similar tax, resulting in discrimination.
- The petitioners were entitled to relief under Article 226 despite the existence of alternative remedies and pending suits.
Respondents' Arguments
- The toll tax was levied on passengers, not on the vehicle owners, and thus did not affect the petitioners' rights or business.
- Rail passengers also paid pilgrim tax, so there was no discrimination violating Article 14.
- The petitioners had an alternative, adequate, and efficacious remedy through pending suits and injunctions, hence the High Court should not exercise its writ jurisdiction.
- The petitioners suppressed material facts, including the pendency of a suit and the fact that rail passengers pay pilgrim tax.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Radha Kissen More v. E. Rajaram Rao, 1955 Cal. 241 | Existence of alternative remedy is not an absolute bar to exercise of writ jurisdiction under Article 226, especially if alternative remedy has already been availed of and its efficacy is undecided. | The Court clarified that the power under Article 226 is wide and availability of alternative remedy alone does not bar writ jurisdiction; each case must be considered on its facts. |
| Buddhu v. Municipal Board, 1952 A.L.J. 505 | Where fundamental rights are involved, courts should decide on merits under Article 226, even if alternative remedies exist, especially when public importance and urgency are involved. | The Court held that writ petitions can be entertained despite alternative remedies if the question is of public importance and delay would cause prejudice. |
| Budh Prakash Jai Prakash v. Sales Tax Officer Kanpur, 1952 A.L.J. 332 and 1954 Punjab 264 | Principle that rights must be affected to entitle relief; distinction between tax on passengers and tax on vehicle owners. | The Court found these cases distinguishable as the present petitioners were liable to pay the toll, thus their rights were affected. |
Court's Reasoning and Analysis
The Court examined the statutory powers under the U.P. Municipalities Act, 1916, regarding the imposition of toll tax. It noted that the Municipal Board had authority under Section 128(1)(vii) to impose toll on vehicles entering the municipality but not on those leaving. The Court analyzed the definitions of "toll" from authoritative legal dictionaries, concluding that toll is a charge for the temporary use of municipal roads, applicable only to vehicles entering the municipal limits.
Regarding the constitutional challenge under Article 14, the Court found no discrimination because the toll was imposed on vehicles using municipal roads, whereas rail passengers did not enter this jurisdiction and thus were not subject to the toll. The pilgrim tax on rail passengers was held to be a distinct levy and not relevant to the toll tax issue.
On the question of alternative remedies, the Court reaffirmed the wide discretionary power under Article 226 and held that the existence of an alternative remedy, including pending suits, did not bar writ relief. The Court emphasized that this discretion must be exercised considering the adequacy, speed, and public importance of the issues involved. It rejected the objections regarding suppression of material facts, holding that the omitted facts were not material to the relief claimed.
Finally, the Court accepted that the petitioners' rights were affected as the tax liability was on the vehicle owners, not merely on passengers, and thus the petitioners were entitled to challenge the notifications.
Holding and Implications
The Court partly allowed the petition and issued a direction to the respondent not to levy toll tax on the petitioners' vehicles when leaving the limits of the Hardwar Union Municipality. The stay order previously granted was discharged. Each party was directed to bear its own costs.
The decision directly affects the parties by limiting the Municipal Board's power to levy toll tax only on vehicles entering the municipality, not on those leaving. No broader precedent was established beyond the facts of this case concerning the exercise of writ jurisdiction under Article 226 or the interpretation of the Municipalities Act.
Mehrotra, J.:— These petitions have been filed on behalf of the owners of motor vehicles plying their vehicles on Hardwar Rishikesh route for following reliefs under Art. 226 of the Constitution.
(1) A writ in the nature of Mandamus directing the respondents to withdraw the orders contained in Notification No. 830.XXIII-16(C)-53-54 dated February 22, 1955 and to suspend the operation of the order contained in notification No. 4188.XI-416-41 and No. 4188(7)/XI-416-41 dated 29th October, 1941 to the extent that they purport to levy toll tax on vehicles entering the limits of the Hardwar Union Municipality with passengers.
(2) A writ in the nature of Mandamus directing the respondent No. 1 not to levy toll tax on the petitioners in respect of the motor vehicles on their entering or leaving the limits of Hardwar Union Municipality with passengers.
2. In the affidavit filed in support of the petition it is alleged that from 24th March, 1955 when ever the applicants' vehicles carrying passengers goes from Rishikesh to Hardwar they are stopped at the Toll Barrier at Kharkhari a place within the limits of Hardwar and are required to pay toll tax on the motor vehicle to the toll clerk of the Municipal Board Hardwar Union at the rate of -/4/- per passenger. They have also got to pay a similar toll when they are carrying passengers from Hardwar to Rishikesh at the Toll Barrier. The toll is realised from the applicants under the provisions of the notification dated 29th October, 1941 as amended by a subsequent notification of 22nd February, 1955. The said notifications effect the right of the petitioners to carry on business. It works great hardship on the applicants inasmuch as, as a result of this levy the applicants have to increase the fare between Hardwar and Rishikesh and the road transport service has become more or less unpopular as compared to railway service and the passengers in general prefer now to go by the train rather than by the road transport service. A counter-affidavit has been filed in the case on behalf of the Municipal Board in which it is alleged that the toll is levied against the passengers and that the business of the applicants has not at all been affected by the levy of the toll tax. It is also alleged in the counter-affidavit that the passengers travelling through rail have also got to pay tax in the shape of pilgrim tax and consequently it cannot be said that the imposition of the toll tax has led to any discrimination. The notification is not hit by Art. 14 of the Constitution. It is also alleged in the counter-affidavit that a representative suit was filed by five motor owners under order 1, Rule 8 in the court of Munsif Hawaii, district Saharanpur for a permanent injunction restraining the defendants from giving effect to the notification and realising the toll tax. An interim injunction was prayed for and an ex-parte injunction was granted at the first instance. Subsequently upon the objections of the answering respondents the ex-parte injunction was discharged. A number of preliminary objections have been raised by the counsel appearing for the opposite parties. Firstly it is urged by him that the petitioners have an alternative remedy available to them and in the present case they have not only an adequate and equally efficacious remedy available to them but they have availed of such remedy and consequently this Court should not exercise its powers under Art. 226 of the Constitution in favour of the petitioners. Secondly, it is contended that the petitioners have suppressed the fact in their petitions that the passengers travelling through rail have to pay the pilgrim tax. This is a suppression of material fact and disentitle the petitioners to any relief. In the writ petitions Nos. 326 and 327 it is further contended that the petitioners are not entitled to any relief as they have suppressed the fact that a suit for the same relief was already pending at the time when the petition was filed and that the interim injunction granted by the Munsif at the first instance had been vacated Reliance has been placed by the counsel for the opposite-party on the case of Radha Kissen More v. E. Rajaram Rao 1955 Cal. 241. and particular reference was made to the following observations at p. 244 of the report.
“It is quite true that when there is an alternative remedy the mere existence of such a remedy is not an absolute bar to the entertainment of an application under Art. 226, but far different is the case when the party moving the court under Art. 226 has already availed himself of the alternative remedy and whether or not he is entitled to any relief in that chain has not yet been decided.”
3. In my opinion this case goes no further than laying down that in the case where an equally efficacious, speedy and adequate remedy is available, the power under Art. 226 of the Constitution should not be exercised. The case where the alternative remedy has already been availed of will only lead to an inference that an alternative remedy is equally adequate. But it does not lay down that in all cases where an alternative remedy is available this court will not exercise its power under Art. 226 of the Constitution. The powers under Art. 226 of the Constitution are very wide. In cases where taxing statute is challenged, this court will not refuse relief to the petitioner on the mere ground that an alternative remedy is available to him. In the case of Buddhu v. Municipal Board 1952 A.L.J 505. it was held by this Court that “in every case in which a fundamental right is involved a decision should be given by the Court on merits of an application under Art. 226. There may be cases in which the existence of an alternative remedy may be a ground for the rejection of the application. The circumstances of each case should be considered and then a decision should be taken whether or not the discretion should be exercised. Where a general question of some public importance has been raised and it is desirable that it should be speedily decided and the parties should not remain under suspense for a long time and on the determination of the question the decision of the petitioner and others of his class whether to continue in the present avocation or to take to some other will depend, the High Court can entertain the petition under Art. 226, even though an alternative remedy by way of a suit for injunction is available to the petitioner.”
4. In this case a certain bye-law framed by the Municipal Board was challenged. As the interests of a large number of people were affected by the bye-law, it was held by this Court that even though an alternative remedy existed, a relief could be granted to the petitioner under Art. 226 of the Constitution. The powers under Art. 226 of the Constitution are no doubt discretionary and it has been held by almost all the High Courts that such a discretion should ordinarily be not exercised in cases where an equally efficacious and adequate remedy is available to the petitioner. But it cannot be held that the existence of an alternative remedy by itself is a bar to the exercise of the discretion under Art. 226 of the Constitution. There may be cases where an alternative remedy may not be considered equally expedient and adequate. In these cases this Court will always exercise its power under Art. 226. There may be cases where a person's fundamental right is affected and an alternative remedy even if available to him may not be equally adequate. Under those circumstances this Court should not refuse to exercise its discretion under Art. 226 of the Constitution. There may be cases in which the alternative remedy may be regarded as equally efficacious and speedy, but there may be other circumstances such as the importance of the question involved and the fact that the decision of the question will affect the rights of a large number of persons and that a taxing statute has been impugned which may be relevant for the exercise of the power under Art. 226 of the Constitution. The present case to my mind is a case in which it cannot be said that the alternative remedy available to the applicant is equally adequate and efficacious and that this Court should not exercise its jurisdiction under Art. 226 of the Constitution. There is therefore no force in this preliminary objection.
5. The second objection taken to the maintainability of the present petition by the opposite party is that there has been suppression of material facts in the two petitions 326 of the 1955 and 327 of 1955. It is stated that the fact that a suit on behalf of a large number of owners was pending was not mentioned in the petition. The omission to mention a particular fact does not necessarily disentitle the petitioner to get a relief unless the fact which has been omitted to be mentioned is material to the relief claimed by the applicant. The case of the petitioners is that they are entitled to a relief under Art. 226 inspire of the existence of an alternative remedy and inspite of the fact that the alternative remedy has been availed of in this case. As the existence of an alternative remedy in the present case is no bar to the relief being granted to the petitioner the omission to mention the fact that a suit is pending is no omission of a material fact and the writ cannot be rejected on that ground.
6. The next contention that there has been suppression of material fact in all the applications inasmuch as it has not been mentioned that the passengers who travel on railways have to pay pilgrim tax also, cannot be accepted. It is not suppression of any material fact and a writ cannot be refused on this ground. There is therefore no force in any of the preliminary objections.
7. It is also contended by the counsel for the opposite party that the applicants are not entitled to any relief as their rights have not been effected by the notification. The toll is charged from the passengers and the right of the bus-owners has not been affected by the said notification. Reliance has been placed on the Full Bench decision of this Court reported in Budh Prakash Jai Prakash v. Sales Tax Officer Kanpur 1952 A.L.J 332. and 1954 Punjab 264. These cases are distinguishable from the facts of the present case. The applicant's contention is that the buses belonging to the petitioners were stopped at the toll barrier, and the owners were compelled to pay the tax. The amount of tax payable by them was no doubt at the rate of -/4/- per passenger but the liability to pay the tax was on the applicants. On the perusal of notification dated 29th October, 1941 which is enclosure E to the petition it appears that no person could bring within or carry outside the limits of the municipality any motor vehicle or tonga laden with passengers unless he has paid the tax in respect of the passengers. The liability to pay the tax was on the person who carried persons to or outside the limits of the Municipality by any vehicle. The applicants therefore had a right to challenge the notifications referred to above.
8. In the year 1941 a notification was issued by the State Government in the following words:
“It is hereby notified under sub-sec. (2) of Sec. 135 read with Sec. 136 of the United Provinces Municipalities Act, 1916 (II of 1916) that the Municipal Board of Hardwar Union, in exercise of the powers conferred by Sec. 128(1)(xiv) of the said Act has imposed the following tax in the Hardwar Union Municipality with effect from 1st November, 1941.”
9. On the 22nd February, 1955 another notification was issued by the State Government by which it was notified under Sec. 135(2) that in exercise of the powers conferred by Sec. 128(1)(vii) of the aforesaid Act the Municipal Board Hardwar, district Saharanpur had made certain amendments in the toll schedule. The amendments had been sanctioned by the Commissioner under Sec. 133(1) of the said Act. By the amendment the rate of tax was increased from -/2/- to -/4/- and clause (c) of the original notification was deleted. The first notification was issued in exercise of the powers conferred by Sec. 128, sub-sec. (1)(xiv) which provides that the Municipal Board can impose any other tax which the provincial legislature has power to impose in the province under the Government of India Act, 1935. The present amendment has been made in the exercise of the powers under clause (1), sub-sec. (vii) of Sec. 128 of the Municipalities Act which provides that a Municipal Board can impose toll on vehicles and other conveyances, animals, and laden coolies entering the Municipality. The words “entering the Municipality” indicate that the toll is charged on vehicles for the use of the roads within the Municipal area. No provision is made in the Act for imposing a toll tax on vehicles going out of the limits of the Municipality. The word “toll” has not been defined in the Act. In the Strouds Judicial Dictionary, III Edition, “toll” has been defined as a sum of money which is taken in respect of some benefit, the benefit being the temporary use of land. Whartons law Lexicon defines “toll” as a tribute or custom paid for passage. It is, therefore, clear from the two definitions that the “toll” is a tax levied for the use of the public roads and it cannot, as indicated by Sec. 128(1)(vii), be imposed on the vehicles going out of the limits of the Municipal Board. It was further contended by the petitioner that under Sec. 128(1)(xiv) of the U.P Municipalities Act, the Municipal Board had power in 1941 to impose any other tax which the Provincial Legislature had power to impose in the province under the Government of India Act, 1935. Seventh Schedule, List II, Item No. 52 of the Government of India Act provided that a Provincial Legislature could legislate on dues on passengers and goods carried on inland waterways. Item No. 53 of the same List provides for “tolls”. The Municipal Board, therefore, under clause (xiv) of Sec. 128 of the U.P Municipalities Act, could impose a toll tax and the question which arises for consideration is whether the tax, which had been imposed by the Municipal Board by the notification of 1941, could be regarded as a toll tax. The main argument, as already pointed out, by the applicants' counsel is that the toll tax could be imposed on the vehicles entering the limits of the Municipal Board. A toll tax does not mean a tax payable by the vehicles going out of the limits of the Municipal Board and as such the notification of 1941 went beyond the powers of the Municipal Board.
10. It was next contended by the applicants that the impugned notification is hit by Article 14 of the Constitution inasmuch as the passengers going to Hardwar by rail do not pay any tax, whereas the passengers going to Hardwar by means of motor vehicles have to pay toll tax. The toll tax, as I have already pointed out, is imposed on vehicles coming within the municipal limits as the Municipal roads are used by such vehicles. It is not a tax on passengers. The measure of the tax is no doubt the number of passengers carried by the vehicles but the tax has to be paid by the owners of the vehicles. The train does not enter the Municipal limits and does not use the Municipal roads and as such no tax can be imposed on the passengers travelling by train, and the impugned notification is not hit by the provisions of Art. 14 of the Constitution.
11. I, therefore, allow this petition in part and issue direction to the respondent No. 1 not to levy toll tax on the vehicles of the applicants on their leaving the limits of the Hardwar Union Municipality. The stay order is discharged. In the circumstances of the case, the parties will bear their own costs.
12. Petition partly allowed.
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