Bapna, J.—This is a petition under Art. 226 of the Constitution of India.

2. The petitioner, Mrs. K. K. Wadhwani, holds a permit for a stage carriage operating on the Jaipur—Tonk route commencing from 5th September, 1955 to 4th September, 1958. On this route there is a bridge about 5 miles from Tonk City on the river Banas, which is known as Frazer Bridge. This was constructed in 1937 in the erstwhile State of Tonk. The State of Rajasthan, into which the former Tonk State has integrated, demands annas -/12/- for the passing or repassing of any public vehicle on that bridge. She had to pay Rs. 24/- for passing and repassing the said bridge between the period of 28th September. 1 55, when she put her Bus No. RJL—3705 on the road, and 15th December, 1955, at the rate of 12 annas for each passing or repassing the bridge, according to the statement furnished by her. It is contended on her behalf that the said imposition of annas 12 is by way of tax, and is not authorised by law, and the State of Rajasthan be prohibited from collecting the said tax when her stage carriage passes or repasses the Frazer Bridge on the Jaipur—Tonk route.

3. The reply on behalf of the State is that prior to the construction of the Frazer Bridge, the Municipal Board of Tonk used to construct a fair-weather road over the bed of the river Banas to facilitate, the crossing of the river by the public, and a toll was charged according to a certain schedule of rates in respect of all sorts of vehicles and animals passing over that fair-weather road, and on the construction of the bridge this toll was ordered to be realised by the Public Works Department of the State by the Government of Tonk State, It was alleged that the levy of 12 annas from every public vehicle which parses over the bridge is a fee to meet the cost of construction of the bridge, and its maintenance, and was formerly realised under orders of His Highness the Nawab of Tonk, who was the sovereign authority in the State, and the same right to levy has been acquired by the State on account of the merger of that State into the greater State of Rajasthan. It was contended that toll was not a tax. It was used to be realised under the authority of law in the former Tonk State, and its realisation now is not invalid.

4. Art. 265 of the Constitution lays down that no tax shall be levied or collected except by authority of law. Art. 366, Item 28, defines taxation as including "the imposition of any tax or impost, whether general or local or special and tax to be construed accordingly.

5 The Frazer Bridge has been constructed over the Banas as part of the road from Jaipur to Tonk and beyond. It is part of the highway the common definition whereof is that it is a way leading from one marked town or inhabited place to another inhabited place, and which is common to all the subjects of the sovereign. Public bridges are highways so far as the right of passage is concerned (Halsburys Laws of England, Volume 16, paragraph 1). This bridge is not the private property of an individual, but is the property of the State, and is a public bridge. There may be some distinction between a toll and a tax, when the former is being realised by a private individual ; but whatever be the name, the demand of annas 12 for each passing and repassing over the Frazer Bridge of a motor vehicle by the Government is nevertheless an imposition, and is a tax within the wide definition of Art. 366 of the Constitution. A large number of case? have been cited in which a distinction has been made between a tax and a fee, but in all those cases the fee is for rendering a particular service, and the funds realised arc not to be used towards the general revenues of the State. No account has been produced by the State to show how much collections were made each year, and what amount was spent on repairs of the bridge. We arc, therefore, of opinion that Art. 265 is applicable.

6. Learned counsel for the State relied on sec. 20 of the Rajasthan Moto

Click Here to Read the rest of this document