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PATNA HIGH COURT
R.L.Narasimham and Anwar Ahmad JJ.
Maheshwari Singh
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 57 of 1966 ;
Decided On : MAY 05, 1966
INDIAN TOLLS ACT, 1851 - TOLLS LEVY - SECTION 2 - THE COURT HELD THAT SECTION 2 OF THE INDIAN TOLLS ACT, 1851, DOES NOT CONFER UNFETTERED AND UNGUIDED ARBITRARY POWER TO THE EXECUTIVE TO LEVY ANY AMOUNT BY WAY OF TOLL MERELY FOR THE PURPOSE OF AUGMENTING THE GENERAL REVENUES OF THE STATE. THE LEGISLATURE IN SECTION 2 OF THE ACT CLEARLY LAID DOWN FOR THE GUIDANCE OF THE GOVERNMENT THE PRINCIPLE THAT THE RATE OF LEVY SHOULD BE SUCH AS TO MEET THE COST OF REPAIR OF THE ROADS AND BRIDGES AND ALSO FOR LIQUIDATING ACTUAL EXPENSES INCURRED IN THEIR CONSTRUCTION WITHIN A REASONABLE TIME.
Fact of the Case:
THE PETITIONER CHALLENGED THE LEVY OF TOLL AT HARONAR BRIDGE ON THE BARAHIVA LAKHISORAI ROAD, MONGHYR DISTRICT AS UNCONSTITUTIONAL. THE BRIDGE WAS CONSTRUCTED IN 1962 BY THE GOVERNMENT OF BIHAR AND THROWN OPEN FOR PUBLIC USE. IN NOVEMBER 1966, AN AUCTION WAS HELD FOR THE PURPOSE OF REALISING TOLLS FROM PERSONS TRAVELLING IN VEHICLES OVER THE BRIDGE FOR A PERIOD FROM 1ST JANUARY 1966 TO 31ST MARCH 1967.
Finding of the Court:
THE COURT HELD THAT SECTION 2 OF THE INDIAN TOLLS ACT, 1851, DOES NOT CONFER UNFETTERED AND UNGUIDED ARBITRARY POWER TO THE EXECUTIVE TO LEVY ANY AMOUNT BY WAY OF TOLL MERELY FOR THE PURPOSE OF AUGMENTING THE GENERAL REVENUES OF THE STATE. THE LEGISLATURE IN SECTION 2 OF THE ACT CLEARLY LAID DOWN FOR THE GUIDANCE OF THE GOVERNMENT THE PRINCIPLE THAT THE RATE OF LEVY SHOULD BE SUCH AS TO MEET THE COST OF REPAIR OF THE ROADS AND BRIDGES AND ALSO FOR LIQUIDATING ACTUAL EXPENSES INCURRED IN THEIR CONSTRUCTION WITHIN A REASONABLE TIME. THE COURT FURTHER HELD THAT THE RATE OF LEVY OF TOLLS IN THE PRESENT CASE WAS REASONABLE AND IN THE INTEREST OF THE PUBLIC.
Issues: 1. WHETHER SECTION 2 OF THE INDIAN TOLLS ACT, 1851, CONFERS UNFETTERED AND UNGUIDED ARBITRARY POWER TO THE EXECUTIVE TO LEVY ANY AMOUNT BY WAY OF TOLL? 2. WHETHER THE RATE OF LEVY OF TOLLS IN THE PRESENT CASE WAS EXCESSIVE AND UNREASONABLE?
Ratio Decidendi: THE COURT RELIED ON THE FOLLOWING PRINCIPLES IN REACHING ITS DECISION: 1. THE WORD "TOLL" HAS A WELL-DEFINED MEANING IN PUBLIC FINANCE AND REFERS TO A LEVY FOR THE PURPOSE OF PROVIDING FUNDS FOR THE MAINTENANCE OF ROADS AND BRIDGES AND REPAYMENT OF THE LOAN (IF ANY) TAKEN FOR THEIR CONSTRUCTION. 2. THE LEGISLATURE IN SECTION 2 OF THE ACT CLEARLY LAID DOWN FOR THE GUIDANCE OF THE GOVERNMENT THE PRINCIPLE THAT THE RATE OF LEVY SHOULD BE SUCH AS TO MEET THE COST OF REPAIR OF THE ROADS AND BRIDGES AND ALSO FOR LIQUIDATING ACTUAL EXPENSES INCURRED IN THEIR CONSTRUCTION WITHIN A REASONABLE TIME. 3. THE RATE OF LEVY OF TOLLS IN THE PRESENT CASE WAS REASONABLE AND IN THE INTEREST OF THE PUBLIC.
Final Decision: THE PETITION WAS DISMISSED WITH COSTS.
Narasimham, J.
1. In this application under Article 226 of the Constitution the levy of toll at Haronar Bridge on the Barahiva Lakhisorai Road, Monghyr District has been challenged as unconstitutional The said bridge was constructed in 1962 by the Government of Bihar and thrown open for public use. But in November, 1966, an auction was held for the purpose of realising tolls from persons travelling in vehicles over the bridge for a period from 1st January, 1966, to 31st March, 1967, and the right to levy toll was settled with opposite parties 3 and 4. Mr. Ghosh for the petitioner urged that the levy of tolls in purported exercise of the power conferred by the Indian Tolls Act, 1851 (hereinafter referred to as "the Act") was wholly unconstitutional. He relied on Article 19 and Article 14 and also on Articles 301 and 303 of the Constitution.
2. The Indian Tolls Act, 1851 , has been existing on the statute book for more than a century The preamble of the Act makes it clear that it is an Act for enabling Government to levy tolls on public roads and bridges. Sec.2 is the most important section, and as its constitutional validity has been challenged I may quote it in full:
"2. Power to cause levy of tolls on roads and bridges within certain rates, and to appoint collectors. Collectors responsiblities.
The State Government may cause such rates of toll, as it thinks fit, to be levied upon any road or bridge which has been, or shall hereafter be, made or repaired at the expense of the Central or any State Government; and may place the collection of such tolls under the management of such persons as may appear to it proper: and all persons employed in the management and collection of such tolls shall be liable to the same responsibilities as would belong to them if employed in the collection of the land revenue."
Sections 3, 4, 5, 6 and 7 are consequential and ancillary provisions Section 8 stated that the tolls levied under the Act shall be deemed public revenue The Bihar Legislature made an amendment to the Act by Bihar Act XIX of 1965 Section 4, which exempted police officers on duty alone from payment of tolls, was amended, and other Government servants and members of the Legislature and members of Parliament were exempted from payment of tolls This amendment saved the old Sec. 4 from challenge on the ground of discrimination under Article 14 Apart from the said amendment to Section4, a new section (Section 9) was inserted in the Act, by which the State Government was conferred power to make rules for the purpose of providing for the method of collection of tolls, determination of the rate of levy of tolls, method for settlement of collection of tolls and generally for the purpose of carrying into effect the purposes of the Act These rules, when made, shall be laid before the Legislature. It is, however, conceded that rules have not yet been made under Section 9, so that for all practical purposes Section 9 has remained ineffective and a dead letter.
3. Mr. Ghoshs contentions are two-fold:
(1) Sec.2 now stands alone inasmuch as rules have not yet been made under Section 9. Sec.2 confers unfettered arbitrary power on the State Government to levy tolls at anv rate which they may think fit It would therefore according to Mr. Ghosh, offend Article 14 and Article 19 (1) (d) of the Constitution and is not saved by Clause (5) of Article 19.
(2) Even if Sec.2 of the Act be held to be constitutional, the Government have exceeded the power conferred by that section in the notification dated the 2nd September, 1955, fixing the various amounts payable as toll by various classes of vehicles and animals using the bridge. Hence the notification must be struck down as unconstitutional.
4. Mr. Ghosh has also urged that the levy of toll would offend Arts 301 and 303 of the Constitution and that it would not be saved by Clause (b) of Article 304 inasmuch as, according to Mr Ghosh the restrictions were not reasonable or in public interest. The
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