Mehrotra, J. - (1.) These petitions Have been filed on behalf of the owners of motor vehicles plying their vehicles on Hardwar Rishikesh route for following reliefs under Article 226 of the Constitution : 1. A writ in the nature of Mandamus directing the respondents to withdraw the orders contained in Notification No. 830/XXIJI-16(C)-53-54 dated 22-2-1955 and to suspend the operation of the order container in Notification No. 4188/XI-416-41 and No. 4188(7)/XI-416-41 dated 29-10-1941 to the extent that they purport to levy toll taxi on vehicles entering the limits of the Hardwar Union Municipality with passengers.
(2.) A writ in the nature of Mandamus directing the respondent 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 24-3-1955 whenever 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 29-10-1941 as amended by a subsequent notification of 22-2-1955. The said notifications affect 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 land 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.
(3.) 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 Article 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 a remedy and consequently this Court should not exercise its powers under Article 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 disentitles 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 surprised 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 v. E. Rajaram Rao', AIR 1955 Cal 241 (A), 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 Article 226, but far different is the case when the party moving the court under Article 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." 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 Article 226 of the Constitution should not be exercised. The case where the alternative remedy has already been available it 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 Article 226 of the Constitution. The powers under Article 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 Allahabad', AIR 1952 All 753 (FB) (B), 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 Article 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 Article 226, even though an alternative remedy by way of a suit for injunction is available to the petitioner.";