Judgement

HIDAYATULLAH, J. : There appeals involve a short common point of law and to appreciate it the narration of a few simple facts will be sufficient.

2. On October 29, 1941 the Hardwar Union Municipal Board (for brevity called the Board in this judgment) issued a notification (No. 4188/XI-416-41) by which it imposed a toll on motor vehicles and tongas entering or leaving the municipal limits with passengers at the rate of 2 annas per passenger. There were nine classes of persons who were exempted and one such class was persons travelling in motor vehicles and tongas from Rishikesh. Exemption certificates valid to the end of the calendar year were available in respect of some of the other classes. The notification purported to be issued in exercise of powers conferred by S. 128(1)(xiv) of the U. P. Municipalities Act. 1916 (U. P. Act 2 of 1916). Accompanying the notification were rules for the levy and collection of the toll. On February 22, 1955 a second notification was issued (No. 830/XXIII -16(C) -53-54), this time in exercise of the powers conferred by S. 128 (1)(vii) of the Act, and it increased the toll from 2 annas to 4 annas per passenger and added rickshaws to the vehicles. This notification also removed the exemption in favour of persons travelling from Rishikesh. The Board established a toll-barrier on the Rishikesh/Hardwar road at a place called Kharkhari within the limits of Hardwar Municipality. Toll was collected at that barrier from vehicles entering the municipal area or departing from it, at the rate of 4 annas per passenger travelling by motor car, tonga or rickshaw. On September 18, 1957 a third notification (No. 2706-B(a) XI-C-57) was issued, once again in exercise of powers conferred by S. 128(1)(xiv) and the Board amended of 1941 and deleted the exemption which had been granted to persons travelling between Rishikesh and Hardwar. The final description of the tax reads:

"In the Description of the tax-

(i) * * * *

"A toll on motor vehicles, rickshaws and togas entering or leaving the limits of the Hardwar Union Municipality with passengers to be levied at the rate of annas 4 per passenger"

(ii) Delete the Cl. (c) "All persons travelling in motor vehicles and tongas from and to Rishikesh" given under the proviso 2 to Para 1."

The last notification was issued after the respondents who are owners of motor vehicles plying between Rishikesh and Hardwar had filed their petitions under Art. 226 of the Constitution challenging the toll.

3. The judgment, which is impugned here by the Board as appellant, is by a Divisional Bench consisting of Mootham, C. J. and Shrivastava. J. in a special appeal decided on December 6, 1957. The special was filed against a judgment of Mehrotra, J. dated September 26, 1955. Mr. Justice Mehrotra had held that toll could not be levied at all on vehicles going outside the Municipal limits and he issued a writ ordering the Board to desist from collecting toll on vehicles leaving Hardwar Union Muinicipality. He upheld the levy of toll on vehicles entering the municipal limits. Other contentions against the notifications which sought to have the levy of toll in any shape or form declared illegal were rejected. The Divisional Bench maintained the order but held that although toll could be levied on vehicles leaving the municipal area, it could not be levied on the same vehicle if it had been once levied on its entry into the municipal area. The Divisional Bench modified the order by adding a direction that the appellant Board should not levy toll on vehicles leavying the municipal limits, which had paid toll on entry into these limits. The Bench observed further-

"We think, therefore, with respect, that the learned Judge went too far when he said that a toll cannot be levied on a vehicle going out of the limits of the Municipal Board........"

Following its own decision the Divisional Bench dismissed the other special appeals but certified all cases as fit for appeal so this Court and that is