JUDGMENT

C. S. P. Singh, J. - The petitioners who are four in number, own a number of public service transport vehicles registered with the State Transport Authority at Allahabad. They challenge a set of three Transit Fee Rules framed in 1971. These rules have been framed by the State Government under the purported exercise of powers under Sec. 540 of the U. P. Nagar Mahapalika Adhiniyam, 1959, Sec. 296 of the U. P. Municipalities Act, and Sec. 39 of the U. P. Town Areas Act respectively. The occasion for challenging these rules by the petitioners arose thus. The petitioners transport goods within the State as also outside the State. When the vehicles owned by them pass through local areas falling within a Nagar Mahapalika, Municipality or a Town Area, they are required to pay an amount of Rs. 2.50 per vehicle irrespective of the fact as to whether or not til goods are unloaded in the local limits of the local bodies. It is averred by the petitioners that where goods are carried over long distances, the petitioners have to pay transit fee to 20 to 30 local bodies, and this charge is levied as soon as the vehicles reach the check post of a local authority, and is made for merely passing through the limits of the local area. No service of any particular kind is rendered by these local authorities and the charge is only for passing through the area or areas falling within the jurisdiction of these authorities.

2. Sri B. N. Asthana, learned counsel for the petitioner has contended that the State Government does not have any power either under the Nagar Mahapalika Act or the Municipal Act or the Town Areas Act to frame the impugned rules, and as such, the levy is violative of law. It is also contended that the various Acts under which the various local authorities have been constituted, do not confer any power on the local authorities to impose the impugned tax. The last contention is that in any event the impugned tax offends Art. 301 of the Constitution of India.

3. We propose to embark firstly upon the enquiry as to whether the impugned rules could have been framed by the State Government. The impugned rules qua the Nagar Mahapalikas, the Municipalities and the Town Areas are respectively annexures A, B, and C to the petition. These rules in the said annexures are similar. The Transit Fee Rules qua the Nagar Mahapalikas have been framed by the State Government in the purported exercise of powers conferred under Sec. 227 read with Sub-sec. (1) of Sec. 540 of the U. P. Nagar Mahapalika Adhiniyam, 1959. The rules regarding the Municipalities have been framed in the purported exercise of powers conferred by Sec. 296 of the U. P. Municipalities Act, and those under the Town Areas Act under Sec. 39(2) of that Act. In order to resolve this controversy, it is necessary to extract these provisions.

4. Sec. 227 of the U. P. Nagar Mahapalika Adhiniyam runs as follows :-

"227. Power to make rules. (1) The State Government may make rules for the purpose of carrying into effect the provisions of this Chapter.

(2) Without prejudice to the generality of the foregoing power such rules may provide for -

(a) matters referred to in Sec. 219;

(b) maintenance and inspection of register regarding taxes on vehicles, oat and animal;

(c) table of rates of octroi and toll and their application, maintenance and inspection ;

(d) the examination of articles liable to octroi;

(e) advance payment of taxes ;

(f) summary disposal of objections to distress and attachment;

(g) the condition on which exemption and refunds of taxes shall be allowed.

Sec. 540(1) of the Adhiniyam is as follows ;-

"540. Making of rules by State Government. (l) In addition to the power conferred upon the State Government under the preceding Chapters of this Act to make rules the State Government may make rules to carry out the purposes of the Act and may also make model rules for the guidance of a Mahapalika in any matter connected with the carrying out of the provisions of this or any other enac