S.D. Singh, J. - (1.) THIS is an application Under Section 561 -A of the Code of Criminal Procedure for quashing certain proceedings against the Applicant pending in the court of I he Sub -Divisional Magistrate, Nainital.
(2.) THE facts briefly stated are that the Applicant was travelling in a roadways bus from Bhowali to Nainital. At Kaila Khan Municipal toll barrier an attempt was made to realise from him toll -tax, but he refused to pay. The Executive Officer, Municipal Board, Nainital thereupon filed a complaint against him Under Section 190(1)(e) of the Code of Criminal Procedure stating that the Applicant had committed breach of Rule 1 of the Rules for the assessment and collection of tolls within the municipality of Nainital. The Applicant's contention is that the levy of toll -tax by the Municipal Board on passengers is ultra vires the taxing power of the Municipal Board. Under Notification No. 1450/XI -476 E dated 19th August, 1921 published in part III of the UP Gazette dated 20th August, 1921 levy of toll tax under certain heads Under Section 128(1)(vii) of the UP Municipalities Act, 1916 was sanctioned by the Government Under Section 135(2) of the same. This Notification has continued to be in force during the last 48 years with minor changes here and there. According to the latest rules, as they stand, toll tax may be charged under the following heads: 2. Motor Vehicles either than car, per passenger carried....Re. 1/ - 2(a) Motor Vehicles other than cars carrying passengers only, or carrying partly passengers and partly goods in addition to toll on passengers and the toll on goods, as may be payable under item No. 2 above and No. 3 below -respectively per vehicle....Rs. 2/ - Note : Children over three and up to 12 years of age will be charged at half the rate prescribed in items 1 and 2 above. There are other items in the Schedule relating to levy of toll -tax on different types of motor vehicles but it is not necessary to mention them as we are not concerned with the same.
(3.) THE main contention of the Applicant is that a Municipal Board is authorised to levy toll -tax only on vehicles and other conveyances, animals and laden coolies entering the Municipality and not on passengers and that when the Applicant who was travelling in a roadways bus was required to pay toll -tax, it amounted either to a demand which was not permissible under the law as it stands, or to a levy of toll -tax on a passenger which was not permissible under the law and consequently ultra vires the taxing power of the Municipal Board, Nainital.;