Judgement

SHAH, J. : Between August 1, l953 and March 28, 1955, the appellant transported 521 truck-loads of "stone-grit" and other materials from Delhi to Murarloagar in execution of a contract to supply goods for use by the Government of India. The trucks of the appellant had to pass through the toll barrier of the Municipality of Ghaziabad, and toll at the rate of Rs. 8 per truck was collected from the appellant. The appellant obtained a certificate from the Garrison Engineer, M. E. S. Meerut, on June 10, 1955, that the goods transported by the appellant "were meant for Government work and had become the property of the Government". The appellant then applied on June 14, 1955, to the Municipality of Ghaziabad for refund of the amount of toll paid Dursuant to the exemption granted by Government Order under S. 157 (3) of the U. P. Municipalities Act, 1916, and the Municipality having declined to refund the amount, the appellant served the statutory notice and commenced an action against the Municipality in the Court of the Munsif at Ghaziabad on February 11, 1956, for a decree for Rs. 4,300. The Trial Court decreed the claim. In appeal, the IInd Civil Judge, Meerut, upheld the claim of the appellant only for the amounts paid after December 13, 1954. The High Court of Allahabad affirmed the order of the Civil Judge. The appellant has appealed to this Court.

2. The relevant provisions of the Act, the rules and the orders issued by the Government may first be noticed. Under S. 128 of the U. P. Municipalities Act 1916, the Municipal Board is, subject to any general rules or special orders of the State Government in that behalf, competent to impose in the whole or part of a municipality the taxes specified in that section and one of the taxes specified is "a toll on vehicles and other conveyances, animals, and laden coolies entering the municipality". Under S. 157 (3) of the Act the State Government may by order, exempt from the payment of a tax, or any portion of a tax imposed under the Act any person or class of persons or any property or description of property. Pursuant thereto the Government of U. P. issued an order on April 15, 1939, which, insofar as it is material, provides :

"..........the Provincial Government are * * *pleased to issue an order under Section 157 (3) of the U. P. Municipalities Act, 1916, exempting those goods which are the property of Government or which become so subsequent to their entry within a Municipality, from the payment of terminal tax or toll.

2. The procedure to be followed in giving effect to the exemption sanctioned above shall be as follows :-

When goods are imported by a private person for supply to Government in fulfilment of a contract, or otherwise intended for the we of Government a written intimation to that effect shall be given to the officer collecting terminal tax/terminal toll who would immediately forward it to the Terminal Tax Superintendent. The tax/toll on goods shall then be paid but if subsequently they actually become the property of Government, it shall be refunded on a certificate of the officer authorised to receive the goods on behalf of Government. * * "

The State Government is authorized by S. 296 to make rules consistent with the Act in respect, amongst others, of matters described in S. 157 "generally for the guidance of a board or any Govermnent officer in any matter connected with the carrying out of the provisions of this or any other enactment relating to municipalities The State Government framed rules relating to assessment and collection of toll in the Ghaziabad Municipality. Rules 1 and 5 are material :

"1. No person shall bring within the limits of the Ghaziabad Municipality any laden vehicles or other laden conveyances or laden animals in respect of which a toll is leviable until the toll due in respect thereof has been paid to such persons and at such barriers or such other places as the board may from time to time appoint.

Explanation.- * * * *

"5. When goods