Judgment

DUA, J.: The short point requiring determination in this appeal on certificate of fitness granted by the Allahabad High Court under Art. 134 (1) (c) of the Constitution is whether toll-tax on laden motor vehicles levied under S. 128 (1) (vii) of the U. P. Municipalities Act II of 1916 (hereinafter described as the Act) on their entry within the limits of Nainital Municipality can be realised from the passengers carried by them.

2. The relevant facts which lie within a narrow compass may now be briefly stated. Brij Mohan Chandra, Vice-President of the Notified Area Committee, Bhowali, District Nainital (respondent no. 1 in this Court) travelled in U. P. Government Roadways Bus from Bhowali to Nainital on 17th, 26th and 29th May, 1967. At Kaila Khan Municipal toll barrier one and a half mile from Nainital on the Bhowali-Nainital Road, toll-tax was demanded from him but he declined to pay. The Executive Officer, Municipal Board, Nainital, thereupon filed a complaint against him under S. 190 (1) (c) of the Code of Criminal Procedure on the allegation that he had by entering the municipal limits of Nainital without paying the toll dues committed breach of R. (1) of the Rules made under S. 153 (a) of the Act for the assessment and collection of tolls within the municipality of Nainital. Brij Mohan Chandra s contention in reply was that the levy of toll-tax by the Municipal Board on passengers was ultra vires the taxing power of the Board. During the Pendency of the proceedings in the court of Sub-Divisional Magistrate, Nainital, Brij Mohan Chandra applied to the High Court of Judicature at Allahabad under S. 561A; Cr. P. C. for quashing those proceedings. The High Court (S. D. Singh J.) on April 16, 1968 quashed the proceedings by the impugned order holding that cl (vii) of S. 128 (1) of the Act did not authorise levy, of toll-tax on passengers and that the relevant notification also levied tax only on vehicles and not on passengers. The rules imposing an obligation on the passengers to pay the toll was, therefore struck down as ultra vires.

3. In this Court Shri Yogeshwar Prasad, learned counsel for the appellants (the Municipal Board, Nainital and the Executive Officer of the Board) at the outset attempted obliquely to seek support for the validity of the levy on passengers from cl. (xiv) of S. 128 (1) as pleaded in the memorandum of appeal lodged in this Court under O. 21, R. 12 of the SC Rules. But this attempt was soon abandoned and Shri Yogeshwar Prasad felt constrained to concede that in view of the clear and precise position taken on behalf of the Board in the High Court that it had never been intended to impose toll-tax on passengers, it was not open to him in this Court to rely on cl. (xiv). Shri O. P. Rana, the learned counsel for the respondent State of U. P. supporting the appeal, also did not rely on clause (xiv). We, therefore, do not propose to express any opinion on the question whether or not a toll-tax on passengers would be permissible under cl.(xiv).

4. The only point seriously pressed on behalf of the appellants as also by Shri O. P. Rana on behalf of the State of U. P. was that the toll imposed on the vehicle entering the municipality could legally be realised from the passengers carried by it because of their nexus with the entry of the vehicle. Before examining this contention we may in passing turn to cl. (vii) of S. 128 (1) of the Act which reads:

"128 (1) Subject to any general rules or special orders of the State Government in this behalf, the taxes which a board may impose in the whole or part of a municipality are -

x x x

(vii) a toll on vehicles and other conveyances, animals, and laden coolies entering the municipality;

x x x

x x x"

This clause in clear and unambiguous terms speaks of a toll on vehicles and other conveyances, animals and laden coolies entering the municipality. It does not take within its fold the passengers carried by vehicles to be taxed, with the result that imposition of tax on pa