M.M.KUMAR, J. - (1.) THIS petition filed under Article 226 of the Constitution prays for issuance of a writ in the nature of Mandamus directing the respondents not to operate notification Annexure P-1 dated May 4, 1982 issued by the Local Government Department of the Haryana State after declaring the same to be illegal. The notification has inter alia, imposed toll tax on the entry of loaded trucks in the municipal limits of Sohana.
(2.) THE facts in brief are that the petitioners have been bringing truck loaded with stone for the purposes of crushing and for its use in building and other construction. They pay octroi duty at the time of their entry in the municipal limits of Municipal Committee, Sohna, Tehsil and District Gurgaon. It is further asserted that after the crushing operation, substantial quantity of stone is sent back to the place from where it has been received. Under Clause (vi) of Sub-section (1) of Section 70 of the Haryana Municipal Act, 1973 (for brevity 'the Act') an express prohibition has been engrafted by the legislature from imposing a toll on vehicles other than motor vehicles and other conveyances entering the municipality. However, respondents 1 and 2 have justified imposition of toll tax on the entry of loaded trucks in the municipal area by relying on clause (xv) of sub-section (1) of Section 70 read with sub-section (8) of Section 74 of the Act. However, it has been challenged on the ground that once legislature in its wisdom has excluded the loaded vehicles from the imposition of toll tax, the same cannot be reintroduced by taking shelter of Clause (xv) of sub-section (1) of Section 70 read with sub- section (8) of Section 74 of the Act. In the written statement filed by respondent No. 1, the stand taken is that on April 4, 1986, clause (vi) of sub-section (1) of Section 70 of the Act has been amended and now stands substituted by a newly inserted clause and the prohibition imposed on imposition of toll tax on the entry of vehicle in the municipal area has been deleted and the tax has been permitted to be imposed. Besides the substitution of clause (vi) of sub-section (1) of Section 70, validation clause has also been enacted validating the toll tax imposed and collected under clause (vi) of sub-section (1) of Section 70 of the principal Act since July 2, 1973. In other words, if despite the judgment and decree, or the order of any Court, the toll tax imposed and collected on the entry of the vehicle under clause (vi) of sub-section (1) of Section 70 of the principal Act, would be deemed to be collected under the substituted clause. Similar stand has been taken by respondent No. 2 in its written statement and it is sought to justify the imposition of tax by the impugned notification dated May 4, 1982 (Annexure P-1) on the basis that such a course is available to the State Government and tax could have been imposed despite the express prohibition contained in clause (vi) of sub-section (1) of Section 70 of the Act.
(3.) I have heard Mr. U.D. Gaur, learned counsel for the petitioner, who has submitted that once the legislation has expressly prohibited by clause (vi) of sub-section (1) of the Section 70 imposition of a toll tax on any vehicle other than the motor vehicles entering the municipal area then under clause (xv) the State Government would not be entitled to grant sanction for imposition of that tax because expression 'any other tax, toll or fee, used by clause (xv) of sub-section (1) of Section 70 of the Act would necessarily mean the tax, which is not mentioned in the preceding clause. The learned counsel has further submitted that such a course would not be open to the execution authorities because it would nullify the legislative dictates. In support of his submission, the learned counsel has placed reliance on a Constitution Bench judgment of the Supreme Court in the case of Municipal Board of Hardwar v. Raghbir Singh etc., AIR 1966 S.C. 1502. Regarding the Amending Act passed by the Haryana Legislature on April 4, 1986, the learned counsel has submitted that the validation clause would apply only to cases where the tax was imposed and collected. According to the learned counsel in the present case, the tax was not collected because there is an interim order passed by a Division Bench of this Court on July 20, 1982. Therefore, the validation clause would not apply in a case where the tax has not been collected. He has further submitted that even after the amendment and validation, a new resolution by the Municipal Committee-respondent No. 2 is required to be passed because the provision of Section 70 is an enabling provision and would not operate automatically resulting in imposition of toll tax.;