Citation Codes

Equivalent Citations

citation codes

Case Number

Civil Misc. Writ No. 5 of 1966

Advocates

P. Naithani
Junior Standing Counsel

Judges

Satish Chandra, J.

Acts

section 2 of the Indian Tolls Act 1851 (Act No. VIII of 1851)
section 2 of the Indian Tolls Act, 1851 (Act VIII of 1851)
section 3(7) and 3(50) of the General Clauses Act
SECTION 8 GENERAL CLAUSES ACT

See more information ...

Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The petitioner, who operates a stage carriage under a temporary permit on the Muzaffarnagar–Budhana–Kandla–Issopur Teel route which crosses the Hindon River at Budhana, sought a writ of mandamus under Article 226 directing the respondents not to realise any toll tax from him or alternatively to charge toll only at Rs. 3.75 for the outward journey and not for the return journey if completed by midnight of the following day. A bridge over the Hindon River was opened for traffic on 21 September 1960 and tolls were levied from that date.

Several stage carriage operators challenged the toll levy by writ petitions. In an earlier group of writ petitions (Mohammad Ibrahim v. State of U.P., Writ Petition No. 1809 of 1961, reported AIR 1967 All 24), a learned Single Judge on 21 September 1965 rejected constitutional challenges and held — inter alia — that under the Government notification of 1 November 1956 the respondents were entitled to recover toll at Rs. 3.75 from vehicles with capacity of more than 12 passengers for the outward journey and that no toll was chargeable for the return journey if returned by midnight of the next day on production of the outward receipt; the learned Judge further held that a subsequent notification of 22 March 1963 did not alter those aspects and directed toll to be realised only at Rs. 3.75 for the outward journey.

The petitioner in the present petition alleges that despite that decision the respondents continued to levy toll at Rs. 5.62½ and refused to act on the earlier judgment, contending that its benefit was confined to parties to the earlier writs. The present petition challenges the respondents' continued levy and seeks relief based on the legal position concerning the notifications under the Indian Tolls Act, 1851.

Legal Issues Presented

Whether the notification dated 22 March 1963, which expressly purports to supersede the notification dated 1 November 1956, ousts the continued application of the earlier notification so as to render the July 19, 1960 notification (made under the 1956 notification) inapplicable to the Hindon bridge unless the bridge is specifically re-notified under the 1963 notification.
Whether section 8 of the General Clauses Act (which deals with repeal and re‑enactment of provisions of former enactments) operates to treat the reference in the July 19, 1960 notification to the 1 November 1956 notification as a reference to the 22 March 1963 notification, thereby permitting continued reliance on the earlier notification.
Whether, on the facts and legal position established, the petitioner is entitled to the relief claimed (no toll or toll at a specified reduced rate for the outward journey only).

Arguments of the Parties

Petitioner's Arguments

The respondents continue to levy toll at Rs. 5.62½ despite the earlier Single Judge's judgment directing toll to be Rs. 3.75 for outward journeys and exempting the return journey if returned by midnight and the outward receipt produced.
Section 8 of the General Clauses Act in its terms applies to Acts or Regulations; notifications are neither Central Acts nor Regulations as defined by section 3(7) and 3(50) of the General Clauses Act, so section 8 strictly does not apply to statutory notifications.
Although the general principle in section 8 is available for interpretation, the 1963 notification manifests a different intention: it purports to levy tolls only on "such permanent bridges as may hereafter be notified under paragraph 2", and paragraph 2 requires bridges to be notified from time to time. Therefore the 1963 notification requires a fresh notification for each bridge and, since no fresh notification has been issued in respect of the Hindon bridge after 22 March 1963, the respondents lack legal authority to levy toll on it.

Respondents' Arguments

The State contended that the July 19, 1960 notification (published in the U.P. Gazette and made under the 1956 notification) continues to operate and entitles them to levy tolls on the Hindon bridge.
They invoked section 8 of the General Clauses Act to argue that a reference in the July 19, 1960 notification to the 1956 notification should be read as a reference to the re‑enacting notification of 22 March 1963, i.e., the repeal and re‑enactment operates to preserve the earlier reference.
Learned Junior Standing Counsel argued that the word "hereafter" in the 1963 notification should be read as referring to paragraph 2 (i.e., cross‑reference to that paragraph) and not as a reference to future time; this interpretation would, in their submission, avoid the need for fresh notification for previously notified bridges.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mohammad Ibrahim v. State of U.P., Writ Petition No. 1809 of 1961 (reported AIR 1967 All 24)	The earlier Single Judge judgment repelled constitutional challenges to the toll levy and held that under the notification dated 1-11-1956 toll at Rs. 3.75 was chargeable for outward journeys for certain stage carriages and that no toll was chargeable for the return journey if completed by midnight of the following day and the outward receipt produced; it also held that the 22-3-1963 notification did not alter those aspects and directed toll at Rs. 3.75.	The Court noted this earlier decision and the petitioner's grievance that respondents were not following it; however, the present Court declined to rest the decision solely on that earlier judgment because the effect of the 1963 notification on the Hindon bridge had not been raised before the Single Judge.
National Sewing Thread Co. Ltd. v. James Chadwicks Brothers Ltd., AIR 1953 SC 357	Cited as authority for the general principle of interpretation embodied in section 8 of the General Clauses Act — that repeal and re‑enactment should not normally upset the scheme of other enactments referring to the repealed provision.	The Court accepted that section 8 enunciates a general interpretive principle which may be applied by analogy to statutory notifications, while noting that section 8 in terms applies to Acts and Regulations.
Union of India v. Mohd. Usman, AIR 1965 All 269	Also cited alongside National Sewing Thread as an example supporting the interpretive principle underlying section 8.	Used to reinforce the proposition that the general rule of construction embodied in section 8 is well established and may guide interpretation of statutory notifications.
Charanjit Lal v. Union of India, AIR 1951 SC 41	Authority for the proposition that courts have discretion to mould relief and grant appropriate relief consistent with facts and legal position even if the precise relief claimed was differently framed.	The Court invoked this principle in determining that appropriate relief — not necessarily identical to the relief expressly claimed — should be granted where the facts and legal position dictate.

Court's Reasoning and Analysis

The Court conducted a textual and purposive analysis of the relevant notifications and the operation of the Indian Tolls Act regime as follows:

The notification dated 22 March 1963 explicitly states that it is issued in supersession of the notification dated 1 November 1956 "as amended from time to time." Consequently, the 1956 notification and its amendments were repealed from the date the 1963 notification came into effect.
Under the terms of the 1963 notification, tolls at the specified rates are "levied and chargeable from all such persons, vehicles and beast of burden using all such permanent bridges ... as may hereafter be notified under paragraph 2 of this notification." Paragraph 2 requires that the bridges in respect of which toll shall be levied "shall be notified from time to time."
The respondents conceded that no fresh notification has been issued under the 1963 notification (or thereafter) notifying the Hindon bridge as being subject to toll under the 1963 scheme.
The respondents relied on section 8 of the General Clauses Act to argue that references to the 1956 notification in the July 19, 1960 notification should be construed as references to the re‑enacting 1963 notification. The Court observed that section 8 in its terms applies to Acts or Regulations; notifications are not Central Acts or Regulations as defined in the General Clauses Act. However, the Court accepted that the general interpretive principle embodied in section 8 is of general application and may guide construction of statutory notifications by analogy.
Despite the availability of that general principle, the Court found that the 1963 notification itself manifested a "different intention" that precluded the application of the normal rule of construction. The language of the 1963 notification — specifically the combination of the reference to paragraph 2 and the use of the word "hereafter" — indicated an intention that the 1963 scheme would apply only to bridges notified under paragraph 2 on or after 22 March 1963. Therefore the 1963 notification required fresh notifications for bridges to be subject to toll under that notification.
The Court rejected the respondents' alternative interpretation (advanced by learned Junior Standing Counsel) that the word "hereafter" merely referred back to paragraph 2 rather than signifying future time; the Court found such a reading to render "hereafter" superfluous and inconsistent with the clear language of the notification.
As a result of these textual conclusions, the July 19, 1960 notification (which was made under the 1956 notification) ceased to have effect once the 1956 notification was superseded by the 1963 notification, and there was nothing in the 1963 notification to keep the earlier notification alive. Therefore, absent a fresh notification under the 1963 scheme, no toll could lawfully be levied on the Hindon bridge.
Because the petitioner succeeded on this primary ground (lack of power to levy toll under the 1963 notification in absence of fresh notification), the Court found it unnecessary to decide the other grounds raised in the petition or to revisit the correctness of the earlier Single Judge's conclusion regarding the appropriate toll rates.
The Court also affirmed the principle that the relief granted should be appropriate to the facts and legal position determined (citing Charanjit Lal), and accordingly framed relief consistent with its legal finding.

Holding and Implications

Holding: The petition is allowed. The Court directed that the respondents are not to levy or charge toll in respect of the stage carriage plied by the petitioner on the bridge over the Hindon River.

Implications:

The direct effect of the decision is that the respondents have no legal authority, under the 1963 notification, to levy toll on the Hindon bridge until and unless the bridge is specifically notified under paragraph 2 of the 22 March 1963 notification; accordingly the petitioner is entitled to costs.
The Court declined to make any determination or observation about hypothetical future conduct by the respondents (for example, if they were to notify the bridge afresh under the 1963 notification and thereafter charge toll), noting that the present judgment rests on the legal position as it obtains now and that future changes in legal position would change the parties' rights accordingly.
The opinion states that because the petitioner succeeded on the ground relating to the absence of a fresh notification under the 1963 instrument, the Court did not decide or set any new authoritative conclusion on the earlier question resolved by the Single Judge (i.e., whether toll should be Rs. 3.75 and not Rs. 5.62½) — thus the decision does not purport to overrule or affirm that part of the earlier judgment on the rates, but confines itself to the jurisdictional issue created by the 1963 notification's terms.

Outcome summary: Petition allowed; respondents prohibited from levying toll on the petitioner's stage carriage on the Hindon bridge; petitioner awarded costs.

AKJ/D.V.C

Show full summary ...

Mistra Nand Kaushik v. State Of Uttar Pradesh And Another

1. This is a petition under Article 226 of the Constitution for a writ in the nature of mandamus directing the respondents not to realise any toll tax from the petitioner, or in the alternative, to charge only at the rate of Rs. 3.75 for the outward journey alone and not for the return journey if it is completed by the midnight of the following day. The petitioner plies a stage carriage under a temporary stage carriage permit on Muzaffarnagar-Budhana-Kandla-Issopur Teel route. This route crosses river Hindon at Budhana. The State Government has constructed a bridge over river Hindon. This bridge was opened for traffic from 21st September, 1960 Persons using this bridge were subjected to the levy of toll tax from that date Several stage carriage operators of this route challenged the levy of the toll tax by writ petitions filed in this Court. Mohammad Ibrahim v. State of U.P Writ Petition No. 1809 of 1961 - (AIR 1967 All 24) writ petitions were heard and decided by a learned Single Judge of this Court on 21-9-1965. By his judgment the learned Single Judge repelled the various constitutional grounds urged to challenge the levy and held that under the notification dated 1-11-1956 the respondents were entitled to recover toll at the rate of Rs. 3.75 from the petitioners in respect of their stage carriage having a carrying capacity of more than 12 passengers, for using the Hindon bridge and that no toll was chargeable in respect of the return journey, if the return journey was completed by the midnight of the following day and the toll receipt for the outward journey was produced. The learned Judge also held that the notification dated 22-3-1963 on which reliance was placed on behalf of the respondents, did not alter the situation either with respect to the rates of toll or with respect to exemption from payment of toll on the return journey, if completed by the midnight of the following day, and if the original ticket was produced. He held that the action of the State Government in levy-tog toll at the rate of Rs. 5.62P per vehicle was not justified. He directed the State Government to realise toll only at the rate of Rs. 3.75 P. per vehicle for the outward journey.

2. The petitioner states that in spite of the said decision of this court, the respondents are continuing to levy toll at the rate of Rs. 5.62 P. Though the copy of the judgment of this Court was placed before the respondent, they demur from acting in accordance therewith on the plea that the benefit of the said judgment will be given only to the operators who were parties in the writ petitions which were disposed of by the said judgment. On that account the petitioner has come to this court at this stage.

3. It appears that in exercise of the powers conferred by section 2 of the Indian Tolls Act, 1851 (Act VIII of 1851) the State Government issued a notification dated November 1, 1956 specifying the terms and conditions for the levy and charge of the toll, from persons using bridge which may be notified. The schedule of this notification provided the rates of the levy.

4. The U.P Gazette dated 30th July, 1960 published a notification No. 2284-CW-XXIII-P.W.A-58-C(W)-60 dated July 19, 1960. This notification stated that in exercise of the powers conferred by section 2 of the Indian Tolls Act, 1851 (Act VIII of 1851) and in pursuance of the provision of paragraph 2 of the Government notification of No. 5495(3) C/XXVIII-PWA-217-C-58, dated November 1, 1956, the Government of Utter Pradesh is pleased to notify the bridge over the Hindon River at Budhana on Muzaffar-naear-Budhana Road in Muzaffarnagai district as a bridge which shall be subject to the levy of tolls from the date it opens to traffic on the terms and condition laid down in the aforesaid notification as amended from time to time. By virtue of this notification the bridge at river Hindon became subject to the notification dated 1st November 1956, and tolls were levied on that bridge from the date it opened to traffic. The notification dated November 1, 1956 was amended from time to time Ultimately the State Government issued a notification No. 2662C/XXIII-PWA-133C/1960, dated March 22, 1963. The opening part of this notification stated:—

“In exercise of powers conferred under section 2 of the Indian Tolls Act 1851 (Act No. VIII of 1851) and in supersession of notification No. 5495(3) C/XXIII-PWA217-C. 1953, dated November 1, 1956, as amended from time to time, the Governor of U.P is pleased to order that tolls, at the rates specified in Schedule I annexed hereto, shall, subject to the conditions given below, be levied and chargeable from all such persons, vehicles and beast of burden using all such permanent bridges, lving on roads under the control and management of the State Public Works Department, as may hereafter be notified under paragraph 2 of this notification.”

5. The notification then goes on to specify the various conditions. Paragraph 2 of this notification reads as follows:

“2. The bridges in respect of which toll shall be levied shall be notified from time to time.”

6. This notification of 1963 specifically supersedes the notification dated November 1, 1956 as amended from time to time. The 1956 notification as also the amendments made to it from time to time consequently stand repealed from the date the 1963 notification came into effect. Thereafter no toll could be levied under or in pursuance of the 1956 notification. The toll could be levied in pursuance of the 1963 notification in respect of such permanent bridges as may be notified under paragraph 2 thereof. It has been conceded by the respondent that no notification has been issued under the 1963 notification, or after the coming into force of the 1963 notification, notifying that the bridge on river Hindon shall be subject to the levy and charge of the tolls.

7. For the respondents it is urged that the notification dated July 19, 1960 continues to operate and entities the respondents to levy and charge tolls in respect of the bridge over the Hindon river. For this section 8 of the General Clauses Act is pressed in service. section 8 of the General Clauses Act reads as follows:

“Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.”

8. It is urged that reference in the notification dated 19th July, 1960 to the notification dated November 1, 1956 should be read as a reference to the repealing and re-enacting notification dated March 22, 1963 and hence the 1963 notification will govern the bridge over river Hindon.

9. For the petitioner it is urged that section 8 applies to an Act or Regulation. The notifications are neither a Central Act or Regulations as defined by section 3(7) and 3(50) of the General Clauses Act and as such section 8 is inapplicable. Section 8 may not in its terms apply to a statutory notification, but it is settled law that section 8 of the General Clauses Act enunciates a general and well-established Disciple of interpretation and is of general application where statutes have to be construed. It lays down the general principle that the repeal and re-enactment should not normally upset the scheme and provision of other enactments which relate or refer to the repealed enactment. See National Sewine Thread Co. Ltd. v. James Chadwicks Brothers Ltd., AIR 1953 SC 357 and Union of India v. Mohd. Usman, AIR 1965 All 269.

10. Even though section 8 in its term may not apply to a statutory notification, but since it enacts the general principle of interpretation, the principle would be equally available to the interpretation of statutory notifications. Hence, reference in any statutory notification to a repealed statutory notification shall, unless a different intention appears will be construed as reference to the provisions re-enacted in the repealing notification. This is the normal rule of construction, but it is subject to a different intention appearing. The different intention has to be express or necessarily implied in the repealing notification. The repealing notification may lead to the inevitable conclusion that no reference shall be made to the repealed notification.

11. A reading of the notification dated March 22, 1963 clearly reveals such a different intention. The opening paragraph of this notification expressly says that tolls shall be levied and chargeable for the using of such permanent bridges as may thereafter be notified under paragraph 2 of this notification. This coupled with paragraph 2 which says that the bridges in respect of which toll shall be levied shall be notified from time to time, leaves no doubt that this notification was intended to supply to such bridges as may from time to time be notified hereafter, that is to say, after 22-3-1963. This being the clear intendment of this notification, the applicability of the notification dated July, 19, 1960 which was made under the 1956 notification is ruled out the notification dated July 19, 1960, consequently became a dead letter after the supersession of the notification dated November 1, 1956, there being nothing in the notification dated March, 22, 1963 to keep it alive till a fresh notification is made under it. The supersession or repeal of the 1956 notification is absolutely immediate. A contrary intention having been expressed, the normal rule of interpretation will not be applicable.

12. The learned Junior Standing Counsel submitted that the word ‘hereafter’ refer to paragraph 2 of the notification and ??? not refer to the future in point of time. I am unable to accept this interpretation. This will render the use of the word ‘hereafter’ completely superfluous. If this was the intention, the notification could have said “as may be notified under paragraph 2 of this notification’. That would have clearly referred to paragraph 2. But the language, as it is, expressed both the concepts. The notification refers to paragraph 2 and in addition says ‘hereafter’. The use of this word ‘hereafter’ in the context of this notification, expresses an intention that the bridges to which the terms and rates of this notification will apply will be those alone which are notified from time to time on or after March 22, 1963.

13. The bridge at river Hindon having not been so notified as yet, the respondents have no legal authority to levy or charge tolls from persons or vehicles using it.

14. As the petitioner is entitled to succeed on this ground, it is not necessary to decide the various other grounds mentioned in the petition. It is equally unnecessary to deal with the submission raised on behalf of the respondents that the learned single Judge who decided the earlier group of the writ petitions was not right in holding that toll could be levied only at the rate of Rs. 3.75 and not at the rate of 5.62 The learned single Judge did not deal with the aspect mentioned above. The question whether the notification of 1963 at all applies to Hindon bridge was not raised before his Lordship or decided by him.

15. In some of the connected petitions, the relief claimed is that the respondents be directed to realise toll from the petitioner at the rate of Rs. 3.75 P. only for the outward journey. It is settled that the relief which is appropriate to the facts found and the legal position determined should be awarded. The court is not tied down to the actual relief claimed. The framing of the relief is in the discretion of the Court. Appropriate relief which can be granted, should be granted. See Charanjit Lal v. Union of India, AIR 1951 SC 41.

16. In the result the petition succeeds and is allowed. The respondents are directed not to levy or charge toll in respect of the stage carriage plied by the petitioner on the bridge over the river Hindon. The petitioner will be entitled to his costs. At the time of the delivery of the judgment learned counsel for the respondent urged that it may be clarified in the ultimate order that if the respondents notified the bridge in question afresh under the notification dated 22-3-1963 and charge toll, they will not be held guilty of committing contempt by contravening the directions made in the present petition. The apprehension expressed by learned counsel is misconceived. The present judgment is based on the legal position as obtaining at present. If the legal position changes for any reason the rights of the parties will change accordingly. At this stage it cannot be predicated what the respondents' action may in future be. It is therefore, not appropriate to make any observation in that regard.

AKJ/D.V.C

17. Petition allowed.

Mistra Nand Kaushik v. State Of Uttar Pradesh And Another

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Mistra Nand Kaushik v. State Of Uttar Pradesh And Another

Comments