Srivastava, J. - (1.) This is a petitioner's appeal against an order of Mr. Justice Mehrotra dismissing a petition filed under Art. 226 of the Constitution. The petitioner is a limited company carrying on business in sugar & cloth. It manufactures cloth in its textile mills situated outside the municipal limits of Saharanpur. The cloth is then exported out of Saharanpur by rail to other places. After being packed in bales the cloth is put on motor lorries which have to pass through the Saharanpur Municipal area in order to reach the railway station for being booked by rail. The Municipal Board of Saharanpur levies a terminal toll on all laden vehicles entering its toil limits. In respect of vehicles carrying goods which are declared to be for immediate export, however, on payment of a small fee, a transit pass is issued to the vehicles which entitled them to pass through the export barrier within a fixed time without any sorting or change of bulk in the goods. Contending that the motor lorries which carried the bales of cloth manufactured by the appellant from its mills to the railway station for being blocked for export were also entitled to the benefit of transit passes, the appellant moved the Municipal authorities for that relief. The request was, however, rejected. The appellant then filed the writ petition out of which this appeal has arisen and prayed that the Hon'ble Court may be pleased to issue. (a) a writ in the nature of mandamus directing the respondent Municipal Board not to charge any tax from the petitioner on the goods entering the municipal area which are declared by the petitioner to be meant or immediate export from the municipal area by means of rail booking: (b) a writ of mandamus directing the Municipal Board to issue transit passes in respect of motor lorries carrying the petitioner's goods which are declared to be meant for immediate export by rail booking; and (c) a writ, direction or order to the respondent Municipal Board for refunding the entire tax paid by the petitioner under protest in respect of goods which entered the municipal area but were declared to be meant for immediate export by rail booking. The petition was contested on behalf of the Municipal Board mainly on the ground that the rule relating to transit passes was not applicable to the motor lorries carrying the goods of the appellant because those lorries did not take the goods outside the municipal limits, the railway station where the goods were unloaded being within those limits.
(2.) The petition was dismissed by the learned Judge who heard it as he took the view that the appellant was not entitled to the benefit of the rule relating to transit passes. Hence this appeal. The contentions urged before us by the learned counsel for the appellant in support of the appeal were these: - - (1) That on a proper interpretation of the relevant rules the appellant was entitled to get transit passes in respect of the goods it wanted to export. (2) That the rules relating to terminal toll are invalid as (a) What is charged under them in the name of toll on vehicles is really a tax on goods and under the provisions of S. 128 of the Municipalities Act it is not open to the Board to levy a tax on goods unless they an meant for consumption within the municipal limits, and (b) that R. 8 of the Rules as interpreted by the Municipal Board makes an unjustifiable discrimination between goods that are being exported by rail and that are being exported by motor lorries. (3) That R. 8 of the Rules is not severable from the rest. If it is invalid the entire Rules must be struck down and no terminal toll can be charged by the Municipal Board at all.
(3.) It is worth noting at this stage that on the 8th September, 1955 when the petition was filed the rules relating to terminal toll which were in force in Saharanpur were those mentioned in Annexure 'B' of the affidavit filed in support of the petition. A day earlier on the 9th Sep. 1955, however, a new set of rules relating to transit of goods on vehicles through all municipalities including that of Saharanpur were notified which were to come into force from the 15th Oct., 1955. They are to be found in Annexure 'I' to the affidavit of Sri Madho Prasad filed on behalf of the respondent. As these latter rules were not in force on the date on which the petition was filed we are not concerned in the present appeal with those rules. We must confine our attention in this appeal to the rules to be found in Annexure 'B'.;