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TMI Blog1968 (9) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... he National Highways Act, 1956 (Act XLVIH of 1956). The State further realises ₹ 1/- per maund on all goods imported in the State by road. The Central Act does not authorise imposition of any levy as Road Toll on any National Highway except in terms of Section 7 of the Act. The levies above referred to are not covered by that Section. The levy of Tolls Act has been repealed by the National Highways Act because the National Highway vests in the Central Government. The Central Act could not levy any such toll. These two levies are illegal. The Central Government had been moved in this behalf. It had called the comments of the State Government as far back as 1963 but the toll is being still levied. The imposition of this toll may be declared illegal. 3. This writ petition has been contested by the State. The State contends that the impost is valid and does not militate against any provision of the Constitution. The impugned Act falls within the residuary legislative field of the State and the State was competent to levy this tax as would appear from List II of the VIIth Schedule of the Constitution of India (Entry 59) as applied to the State. The petition is misconceived. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e law made by the Parliament whether passed before or after the law made by the Legislature of the State shall prevail and the law made by the Legislature of the State shall to the extent of the repugnancy, but so long only as the law made by Parliament continues to have effect, be inoperative. Similarly under Article 254 of the Constitution of India 'if any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of any existing law with respect to one of the matters enumerated ...... the law made by Parliament, whether passed before or after the law made by the Legislature of such State or as the case may be, the existing law shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy be void. Under Section 7 of the National Highways Act the Central Government has the power to levy fees at such rates as may be laid down by rules made in this behalf for services or benefits rendered in relation to the use of ferries, temporary bridges and tunnels on national highways. The Central Government has not levied any fees under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad. There was a clear difference between fee and tax. This toll was a tax and was not covered by the term fee used la Section 7 of the National Highways Act. 8. We shall now examine the arguments in detail and refer to the law discussed and otherwise relevant to the subject. 9. The first argument of Mr. Grover that Entry 23 of the Union List in the Seventh Schedule, made the levy of this toll a Union subject is not correct. When we read the two lists, the Union list and the State list, Entry 23 of the Union list is 'Highways declared by or trader law made by Parliament to be national highways, which only means that any laws that may be passed with respect to highways can be by Parliament. There could be no quarrel with such a power. If the Union Legislature passes any law with respect to national highways, as it has done by the passing of The National Highways Act No. XLVIII of 956, that law will be the relevant and enforceable law on the subject. But so far as levy of toll is concerned that is not a Central subject but is exclusively contained in the state list at Item No. 59. Levying of any tolls is exclusively within the jurisdiction of the State Legislature. Therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1962 All 25, Hindustan Vanaspati Manufacturing Co. Ltd. v. Municipal Board, Ghaziabad. There was a difference of opinion between the two learned Judges Mootham, C.J. and Dayal, J. The matter was referred to the third learned Judge A.P. Srivastava, J. Mootham, C.J., on page 28 of the judgment said: ...In the case of the toll traverse it is the dedication of the road to the public and in the case of a toll thorough the obligation to perform some service such as maintaining the road in repair. Then his Lordship quotes a number of English authorities drawing out a distinction between toll traverse and toll thorough. 11. Dayal, J., in para 14 of the judgment held that the word: toll is not of any recent use. There have been many a kind of toll charged in England. Different names have been given to them. The 2 tolls recognized under the common law with respect to the passage on the highways have been given the names of toll-traverse and toll-thorough. Then the learned Judge mentioned other tolls such as fair toll, stallage toll, canal toll, ferry toll, market toll. At page 39 of the judgment Srivastava, J., says: A toll thorough has no connection with the ownersh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the factory passed along the railway siding in order to reach the factory premises and in that way entered the limits of the Municipal Board. The Municipal Board claimed to levy a toll under Section 128 of the U.P. Municipal Act on the railway wagons bringing supplies to the Appellant company. The company disputed its liability to pay the tax. The High Court held that it was not necessary that the benefit provided must be capable of being enjoyed by the vehicle or person sought to be made liable for the toll although the company had connected its premises with the main line by its own side line. It was held that enjoyment of amenities provided by the Municipal Board was sufficient and imposition of toll on wagons was held valid. There are numerous English cases on the subject. Mr. Justice Willes in Brecon Markets Co. v. Neath and Brecon Rail. Co. (1872) 7 CP 555 remarked at page 566: Accordingly it was argued that the claim in question could be maintained as a toll thorough because nothing is done by the corporation or by the Plaintiffs towards the repair of the railway or otherwise to aid or assist the traffic or the railway company. It was, however, insisted that the claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permissible being derogatory to freedom of trade under Article 301, Constitution of India. In an authority reported as AIR 1964 Punj 506 it was held that a toll imposed by Municipal authority on vehicles entering into the Municipal limits was covered by the term 'toll' - standing tax already being charged for parking vehicles at stand. It was held that this former tax was not a case of double taxation as a tax on vehicles. In this case, argued Mr. Dapthary, the ownership in the road was and continues to be that of the State of Jammu and Kashmir. That is not denied in the pleadings of the Petitioner. All that the Petitioner states is that after the passing of the National Highways Act recovery of this toll becomes illegal. Mr. Dapthary argued that there is no deed of transfer, or conveyance of this road by the State Government in favour of the Central Government. Therefore the ownership in this road remains where it was namely with the State of Jammu and Kashmir and the State could levy this tax merely because it allowed its property namely the road to be used by the vehicles which were charged this tax. No further consideration in the shape of benefits or service was nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed the word 'vest'. The meaning I should like to put upon it is that the street vests in the local board qua street; not that any soil or any right to the soil or surface vests, but that it vests qua street....The meaning I put upon the word 'vest' is, the space and the street itself, so far as it is ordinarily used in the way that streets are used shall vest in the local board....That would show that 'street' comprehends what we may call the surface, that is to say, not a surface bit of no reasonable thickness, but a surface of such a thickness as the local board may require for the purposes of doing to the street that which is necessary to it as a street and also of doing those things which commonly are done, in or under the streets; and to mat extent they had a property in it. There are a long series of authorities holding the same view. For instance Rolls v. Vestry of St. George (1880) 14 Ch D 785 (796), Mayor of Tunbridge. Wells v. Baird (1896) AC 434. All these cases have been discussed at length in (1902) ILR 25 Mad 635 and the learned Judges held after considering all these authorities that: When a street is vested in a Municipal Council, such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he can maintain an action for trespass against any member of the public who acts in excess of his rights. 13. The Madras authority and some other authorities have been referred to in this case. Therefore, the argument of Mr. Grover that this national highway has vested in the Union of India does not mean that the ownership of the road has been transferred from the State of Jammu and Kashmir to that of Union of India. The Union of India has control over this highway so far as its maintenance and proper up-keep demands. 14. The next argument of Mr. Grover that under Section 7 of the National Highways Act Central Government can levy fees for services or benefits rendered in relation to the use of ferries, temporary bridges and tunnels on national highways. The State does nothing in the shape of benefits or services to the Petitioner or the public it cannot recover fees in the shape of tolls under the Levy of Tolls Act. This section empowers the Central Government to levy a fee for the use of ferries, temporary bridges, and tunnels and not the road as such. All that it means is that in addition to any other tax a special fee may be levied for the use of these three categories ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fees are uniform and no account is taken of the varying abilities of different recipients to pay. These are undoubtedly some of the general characteristics, but as there may be various kinds of fees, it is not possible to formulate a definition that would be applicable to all cases. A careful examination reveals that the element of compulsion or coerciveness is present in all kinds of imposition, though in different degrees and it is not totally absent in fees. This, therefore, cannot be made the sole or even a material criterion for distinguishing a tax from fees. The distinction between a tax and a fee lies primarily in the fact that a tax is levied as a part of a common burden while a fee is a payment for a special benefit or privilege. Fees confer a capacity, although the special advantage, as for example in the case of registration fee for documents or marriage licences, is secondary to the primary motive of regulation in the public interest. Public interest seems to be at the basis of all impositions, but in a fee it is some special benefit which the individual receives. It is the special benefit accruing to the individual which is the reason for payment in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne instance which is contemplated by the proviso to Sub-section (3) of Section 3. The levy of tax cannot be said to offend Articles 301 and 304 of the Constitution. 17. The observations of their Lordships of the Supreme Court quoted above would clearly cover the facts of this case. The State Government is the owner of the road called the National Highway. As such for the mere luxury of travelling on this road, the State Government is empowered to levy any tax. The tax levied will go to the coffers of the State and may be utilized for any purpose for which the revenues of the State can be utilized. The vehicles using this road of the State, are charged the toll and as already indicated legitimately so. The other argument that it is a restriction on inter-State trade and commerce also has no force in view of the observation of their Lordships in the Supreme Court authority just cited namely AIR 1961 SC 1480. The toll is charged for use of the road in the State and this Tolls Act has no extra territorial application. Now the same reasoning disposes of the other argument of the learned Counsel for the Petitioner pertaining to the charging of Re. 1/- for every maund of load carried b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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