JUDGMENT

O.H. Mootham, C.J.

(7-4-1950)

1. This is an appeal from an order of Mr. Justice Mehrotra. The appellant is a limited company incorporated under the Indian Companies Act. It has factories at various places in India, including one at Ghaziabad in this State. In this factory the appellant company manufactures banaspati, and for that purpose it requires supplies of raw materials which are brought into the factory premises in railway wagons. The factory premises are connected with the main railway line by a branch line known as an "Assisted Railway Siding" which terminates within the factory premises; and all wagons bringing supplies to the factory make use of this siding.

2. The appellant company's premises at Ghaziabad are situated within the limits of the Ghaziabad Municipal Board. That Board claimed to be entitled to levy a toll u/s 128 of the U. P. Municipalities Act, 1916, on the railway wagons bringing supplies to the appellant company's factory and to collect the amount thereof from the appellant company. The latter disputed' its liability to pay, and thereafter certain criminal complaints were filed by the respondent Board against the appellant company in the Court of a Magistrate at Ghaziabad wherein it was alleged that the appellant company was guilty of contravening Rule 10 of the Rules for the assessment and collection of toll within the Municipality.

3. The appellant company then filed a Petition in this Court under Article 226 of the Constitution in which the principal reliefs sought were, first, the issue of a writ in the nature of mandamus directing the Board not to levy a toll upon the company in respect of the laden wagons entering its premises and, secondly, a writ in the nature of prohibition restraining the Board from proceeding further with the two criminal cases which had been instituted by it against the company. The learned Judge by an order dated the 12th November 1956, declined to grant the writ of mandamus but directed the issue of a writ in the nature of prohibition restraining the Board from proceeding further with the criminal cases. It is from that order refusing the writ of mandamus that the company now appeals.

4. The relevant provision of the U. P. Municipalities Act, 1916, is Section 128, which, so far as it is material, provides that

"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 any part of a municipality are -

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(iv) a tax on vehicles and other conveyances plying for hire or kept within the municipality or on boats moored therein;

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

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(xiv) any other tax which the State Legislature has power to impose in the State under the Constitution.

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(3) Nothing in this section shall authorise the imposition of any tax which the State Legislature has no power to impose in the State under the Constitution."

Rule 1 of the Rules for the assessment and collection of tolls in Ghaziabad Municipality, as in force at the material time provided that:

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

Explanation: "other laden conveyances" includes laden railway wagons."

Provision is also made in these rules for the imposition of a penalty which may amount to Rs. 500/- for the contravention of, inter alia, Rule 1. The appellant company's contention is that the tax imposed by the Board is not a 'toll' within the meaning either of Clause (vii) of Section 128 of the Act nor a tax which the State Legislature had power to impose in the State under th