[Per: Hon’ble Tarun Agarwala, J.]

1. This case has come up before us upon a reference made by a Division Bench, which felt that the decision of another Division Bench on the point in question requires reconsideration and accordingly framed a question for its decision, namely,

“whether after the power to levy toll on motor vehicles by the Municipalities was expressly withdrawn, on the strength of Notification issued by the Cantonment Board prior to withdrawal of such power, the Cantonment Board can continue to collect toll on motor vehicles.”

2. The brief facts is, that the Municipalities were imposing tax on entry of vehicles under Section 128 of the U.P. Municipalities Act, 1916. With effect from 01st August, 1991, the levy of toll tax on entry of vehicles in the municipal area was abolished and, since then, no tax on entry of vehicles is being levied in a municipal area.

3. However, the Cantonment Board, Dehradun continued to levy tax on entry of vehicles in its cantonment area. The collection of such tax was challenged in Arun Kumar Jaiswal Vs. Cantonment Board, Dehradun & another 2004 (2) U.D. 401, which was dismissed by a judgment dated 01.09.2004 passed by a Division Bench of this Court, holding that the Cantonment Board had the jurisdiction and power to levy tax on entry of vehicles. The Division Bench held as under :-

“10. In view of sub-section (vii) and (viii) of Section 128 of the United Provinces Municipalities Act, 1916, since the toll and octroi could be imposed by the Municipalities of the State of U.P., the Cantonment Board situated with those Municipalities were also competent to impose and collect the octroi/toll. The clause “for the time being in force” used by the Legislature under u/s 60 of the Cantonment Act, 1924 clearly spells out the intention of the Legislatures that when the Cantonment Board decides to impose a tax, it can impose only those tax, which could be imposed by the Municipal Board in the State under any enactment for the time being in force’, wherein such cantonment is situated. Thus, at the time of imposition of tax under section 60 of the Cantonment Act, the power of Municipal Board to impose a tax under any enactment is to be seen. The taxes, which are to be imposed under section 60, by the Cantonment Board, have been adopted from the law, ‘for the time being in force’, empowering the Municipality, wherein such Cantonment is located. ‘For the time being in force’ means ‘at the time of imposition of tax’. Therefore, it is an adoption of taxes. Once tax is imposed at any point of time, when that may be imposed by the Municipality in the State by Notification in accordance with the provisions of section 61, 62 and 63 of the Cantonment Act, the taxes so imposed, stands adopted. Subsequent amendment in the Local Act will not nullify the prior imposition of tax as ‘at that point of time’ the provisions existed empowering the municipality to impose such tax.”

4. The Division Bench held the Cantonment Board had the power to levy a tax under Section 60 of the Cantonments Act, since the Municipality had the power to levy a tax on entry of vehicles. The Division Bench held that even though the power to levy a tax on entry of vehicles was abolished in the Municipalities Act, nonetheless, the Cantonment Board could continue to levy tax on entry of vehicles, since the power to levy tax by a Cantonment Board was to be seen at the time of the imposition of the tax. The Division Bench, explained that the words “for the time being in force” used in Section 60 of the Cantonments Act meant “at the time of imposition of tax”.

5. Subsequently, in a P.I.L., another Division Bench while hearing a matter with regard to the levy of the tax on entry of vehicles, had an occasion to consider the judgment in Arun Kumar Jaiswal’s case (supra) passed by the Division Bench (supra) and disagreed with the reasoning adopted therein. The Division Bench in Writ Petition PIL No. 1018 of 2008 held :

“Section 60 of th