PANDEY J -
(1.) THIS petition under Articles 226 and 227 of the Constitution is mainly directed against the imposition of octroi tax within the limits of the Chhatarpur Municipality under the provisions of the M. P. Municipalities Act, 1961.
(2.) THE facts material for disposal of this petition may be shortly stated. Chhatarpur town, which had a Municipal Board, formed part of the Part-C State of Vindhya Pradesh before the States were reorganised and it became a part of the new State of Madhya Pradesh as from November 1, 1956. Prior to that date, the Rewa State Municipalities Act, 1946 (hereinafter called the Rewa Act) was in force in the State of Vindhya Pradesh. By the Notification No. 39 dated December 10, 1954, the Vindhya Pradesh Government had sanctioned under section 124 of the Rewa Act imposition of toll tax called Rahdari Kar leviable under section 121 (1) (e) of that Act. After the State of Vindhya Pradesh became a part of the new State of Madhya Pradesh, the M. P. Municipalities Act, 1961 (hereinafter called the Act), which repealed the corresponding regional Acts including the Rewa Act, was placed on the Statute Book. By the Notification No. 25-8478-XVIII-U-I dated January 13, 1969, the State Government sanctioned under section 129 of the Act imposition of octroi tax under the provisions of that Act within the limits of Chhatarpur Municipality. THE petitioner has challenged the two taxes on several grounds which have been traversed and controverted in the return filed by the Municipal Council, Chhatarpur (respondent No. 2). We proceed to consider immediately those grounds in the following paragraphs.
The first ground is that, in view of clause (i) of section 2 (2) of the Act, the toll tax imposed in 1954 under the Rewa Act, being inconsistent with the provisions of the Act, ceased to be in force. The further ground based upon the same reasoning is that, at any rate, the toll tax ceased to be in force insofar as it could not be levied under the provisions of the Act. The aforesaid clause (i) of section 2 (2) reads:
"(2) Notwithstanding such repeal- (i) all Municipal Committees, Municipal Councils, Municipal Boards and Notified Area Committees constituted, committees or sub-committees constituted, or appointed, limits defined, appointments, rules, orders, bye-laws made, notifications and notices issued, taxes imposed or assessed, fees fixed, contracts entered into, suits instituted and proceeding undertaken or any other things done or action taken under the said Act or any enactment thereby repealed shall, insofar as they are not inconsistent with the provisions of this Act, be deemed to have been respectively constituted, appointed, defined, made, issued, imposed or assessed, fixed, entered into, instituted, undertaken, done or taken under this Act;"
The precise contention is that the toll tax, as imposed in 1954, cannot be imposed under the provisions of section 127 (1) of the Act and is, in consequence, inconsistent with it. Therefore, it does not survive the repeal of the Rewa Act. At any rate, so it is argued, it does not survive to the extent of inconsistency. We are of the view that it is not necessary to examine to what extent the toll tax of 1954 could be imposed under the provisions of the Act because it is saved in its enterity by sub-section (4) of section 127 of the Act which enacts:
"Subject to the provisions of Article 277 of the Constitution of India, any tax which immediately before the commencement of this Act was being lawfully levied by the Municipal Committee, Municipal Council or Municipal Board, as the case may be, notwithstanding that such tax is not specified in sub-section (1), shall continue to be levied by the Council,"
Since Article 277 of the Constitution is not material for purposes of this case, it must be held that, even after repeal of the Rewa Act, the toll tax continues to be operative without its efficacy being imparred in any way by the repeal. This disposes of these two grounds.
The third ground is that the socalled toll tax here is really a terminal tax. We are of the view that even this contention does not bear examination. Among the taxes that a Municipal Council may impose under the provisions of section 127 (1) of the Act, those relevant for the purposes of this case are mentioned in the following clauses:
"(ii) a tax on all or any vehicles, boats or animals used for riding, driving, draught or burden and used within the limits of the Municipality whether they are actually kept within or outside the said limits; (iii) a tax on vehicles, boats and animals used as aforesaid entering the limits of the Municipality but not liable to taxation under clause (ii); (v) an octroi on animals or goods brought within the limits of the Municipality for sale, consumption or use within such limits; (xvi) a terminal tax on goods or animals imported into or exported from the limits of the Municipality;"
The provisions of the Rewa Act under which the toll tax was imposed read as follows:
"121. (1) Subject to any general rules or special orders of the Government in this behalf, the taxes, which a Board may impose in the whole or any part of a Municipality, are - (e) A toll on vehicles and other conveyances, animals and laden coolies entering the Municipality. It will be readily seen that this corresponds to clause (iii) of section 127 (1) and is a kind of tax which is different from terminal tax as provided in clause (xvi) of that section. The word "toll" means a sum of money which is taken in respect of some benefit, the benefit being the temporary use of land: Mst. Bavabi v. District Council, Nagpur (AIR 1936 Nag 7258=ILR 1937 Nag. 246) and Sitaram v. Janapada Sabha, Amraoti (1952 NLJ 174=AIR 1952 Nag. 401). It can also be taken for use of roads. So, in Municipal Board v. Raghubir Singh (AIR 1958 All. 430), their Lordships observed:
"Now in the case before us it is not in dispute that the consideration for the payment of the toll levied by the appellant-Board is the right to use the roads within the municipal limits and such amenities as may be connected therewith. The toll is payable by certain classes of vehicles, including motor vehicles, when carrying passengers, and in our opinion, it is immaterial whether the toll be collected when the vehicle enters the municipal limits or when it leaves them. But when once the toll has been paid it cannot again be levied on the same vehicle in respect of the same user of the appellant-Board's roads and amenities. We are of opinion, therefore, that the respondents are right in their contention that if they have paid the toll on their vehicles when entering Hardwar municipal limits, they cannot be compelled to pay that toll again when the same vehicles leave the municipal limits on their return journey."
(Page 432 ) That case was taken to the Supreme Court. In dismissing the appeal, the Supreme Court observed:
"We were referred to dictionaries and to rulings of the British Courts in an attempt to widen the meaning of the '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 sub-divisions and there were toll-stallage. The first was a levy prescribed by towns for animals or men that went over 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 jurisdiction 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 'ingate' 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."
[Municipal Board, Hardwar v. Raghubir Singh (Civil Appeals Nos. 311 to 366 of 1964 decided on the 6th December, 1965)].
(3.) IN considering the distinction between octroi tax and terminal tax, the Supreme Court observed in Burmah- Shell Co. v. Belgaum Municipality (AIR 1963 SC 906) as follows:
"Octroi and terminal taxes were different taxes though they resembled in one respect, namely, that they were leviable in respect of goods brought into a local area. While terminal taxes were leviable on goods 'imported or exported' from the municipal limits denoting thereby that they were connected with the traffic of goods, octrois according to the legislative practice then obtaining were leviable in respect of goods brought into a municipal area for consumption or use or sale."
"The history of these two taxes clearly shows that while terminal taxes were a kind of octroi which were concerned only with the entry of goods in a local area irrespective of whether they would be used or not, octrois were taxes on goods brought into the area for consumption, use or sale."
Having regard to the true character of toll tax and terminal tax, it would appear that they are imposts dis-similar in scope, incidence and effect. While toll tax is a levy for temporary use of land, terminal tax is leviable on goods imported into, or exported from, a local area. Vehicles and conveyances entering a municipal area without goods may be made liable to pay toll tax for use of municipal roads. If they carry goods, terminal tax in respect of such goods may be charged in addition. On the other hand, if goods be brought within a municipal area without the use of vehicles or conveyances in respect of which a toll tax is recoverable, only terminal tax could be levied. The two imposts, based on different grounds, are incident on very different objects. While one aims at taxing the goods entering the municipal area, the other is directed at the carriers of such goods entering municipal area and using municipal roads, whether they carry goods or not.;