PRAFULLA C.PANT, J. - (1.) BY means of this writ petition, moved under Article 226 read with Article 227 or the Constitution of India, the petitioner has sought writ in the nature of certiorah calling for the records and quashing of the impugned order dated 21.3.2005 (copy Annexure-4 to the writ petition) passed by the Special Judicial Magistrate, Dehradun, in criminal complaint case No. 1242 of 2004, Cantonment Board v. Kunj Bihari.
(2.) BRIEF facts of the case as narrated in the writ petition are that the petitioner is owner of bus No. UP-07/8703, having stage carriage permit to ply the vehicle between Dehradun and Dakpathar. The road between Dehradun and Dakpathar is part of National Highway No. 72. This National Highway No. 72 (for brevity hereinafter NH-72) starts from Rishikesh with terminal point at Ambala. The said Highway pass through Dehradun, Ponta Sahib and Nahan. NH-72 was notified as National Highway vide Notification dated 6.1.1999 and before that it was a State Highway. On 21.12.2004, the Executive Officer, Cantonment Board, Dehradun exercising its powers conferred under Section 82 of the Cantonment Act, 1924 (Act No. 2 of 1924) submitted a complaint against the petitioner before the Court of Special Judicial Magistrate, Dehradun by issuing challan No. 13 for non­payment of toll tax at Premnagar barrier on 26.7.2004. The Special Judicial Magistrate (respondent No. 1) registered the complaint case No. 1242 of 2004 on the basis of the challani report, against the petitioner. The petitioner appeared before the Magistrate and filed his objections against the complaint, on 21.1.2005, challenging the power of Cantonment Board (respondent No. 2) realizing any kind of toll or tax on a National Highway. According to the petitioner, the entire control over the National Highway vests with the Central Government under National Highways Act, 1956 (Act No. 48 of 1956) and the control of National Highways (Land and Traffic) Act, 2002 (Act No. 13 of 2003). In this connection, the petitioner has referred Section 4 and Section 7 of the Act. No. 48 of 1956. Petitioner has also raised the plea that under Section 15 of Act No. 13 of 2003, the jurisdiction of all the Courts except Supreme Court and High Court is barred in respect of any dispute regarding which the power has been given by the Central Government to Highway Administration/Highway Tribunals. It is further pleaded by the petitioner that Municipal Board or Cantonment Board has no power to collect any kind of toll or fee without approval of the Central Government. In this connection, the petitioner has referred the letters dated 9.2.2004 (copy Annexure-6 to the writ petition) and 30.7.2004 (copy Annexure-7 to the writ petition) issued by the Engineers of the National Highways. Public Works Department, Dehradun, wherein objection has been raised relating to realization of the toll by the Cantonment Board by putting a barrier over the National Highway. The Special Judicial Magistrate (respondent No. 1) before whom the complaint case is pending, after hearing the parties, rejected the objections of the petitioner vide its order dated 21.3.2005 (copy Annexure-4 to the writ petition) holding that it has the jurisdiction to proceed with the case in the matter. Aggrieved by the same, the present writ petition has been filed. The Cantonment Board (respondent No. 2) has filed its counter-affidavit to the writ petition in which it has challenged the maintainability of the writ petition on the ground that the remedy to file a revision against the impugned order was available to the petitioner under Section 397 of the Code of Criminal Procedure, 1973. There is yet another preliminary objection raised in the counter-affidavit that under Section 84 of the Cantonments Act, 1924 (Act No. 2 of 1924), the remedy of appeal was available to the petitioner against the levy of tax by the Board, as such, the present petition is not maintainable. Under the Act No. 2 of 1924 there is no exception tor National Highways and as such the power under Section 82 read with Section 259 of said Act can be exercised over such Highways if they fall within the limits of the Cantonment Board. The Cantonment Board, in its exercise of powers under said Sections, is supported by the approval of the Central Government vide SRO No. 369, dated 1.1.1956 published in the Gazette No. 45, Part II, dated 17.11.1956 of the Government of India, and SRO No. IX/60/ Toll tax, dated 22.1.2001 published in Gazette dated 3.3.2001 of the Government of India (copy Annexure-1 to the writ petition). According to the respondent No. 2, none of the aforesaid provisions contained in the Cantonment Act, 1924 or the SROs has been declared ultra vires by any of the authorities. It is further stated in the counter-affidavit that under Sections 116 and 117 of the aforesaid Act of 1924, the Cantonment Board has to provide wholesome drinking water supply, sanitation, health services, public urinals, plantation, street lights etc. within the notified area of the Cantonment Board. And the same is also being provided to those using part of NH-72 which passes through the area of the Cantonment Board. It is also clarified in the counter-affidavit that the National Highway passes through the Cantonment area from boundary pillar Nos. 1-C to 1-D in Premnagar to boundary pillar Nos. 1 to boundary pillar No. 72 in Rangharwala. Defending the impugned order passed by the Special Judicial Magistrate, it has been stated in the counter-affidavit that the said authority is empowered to proceed with the complaint case against the petitioner. Stating that toll tax is being realized for last 40 years it is pleaded by the respondent No. 2 in its counter-affidavit that the power of the Cantonment Board is not affected only for the reason that the Highway is a National Highway.
(3.) I heard learned Counsel for the parties at length and perused the affidavits and counter-affidavit filed by the parties alongwith the annexures annexed thereto.;