1. We are not prepared to disturb the finding that the payment of toll has been evaded by the applicant. On this finding (subject to an argument that the applicant was not liable to pay the toll at all) the decision of this application depends on whether the Bombay District Municipal Act, 1901, (Bom. Ill of 1901), empowers the Godhra Municipality to make a bye-law to the following effect :
(1) No person shall, with the intention of evading payment of the toll-tax take or attempt to take any conveyance liable to pay such tax into the limits of the Municipality, without paying the tax at the toll-naka.
(2) A breach of this bye-law shall on conviction be punishable with fine which may extend to five rupees for each offence.
2. The powers of the Municipality to make bye-laws are contained in Section 48 of the Bombay District Municipal Act. That section empowers the Municipality (with certain restrictions not now material) to make bye-laws not inconsistent with the Act regulating the matters mentioned in its numerous clauses. The only clause of Section 48 that is relied on is the last, denominated by the letter (a). Under Clause (u) every Municipality may make bye-laws 'generally for the regulation of all matters relating to municipal administration.
3. A prohibition against taking conveyance into the limits of the Municipality may be the subject of a bye-law if it can be brought within the terms of Clause (t). The bye-law in question, however, cannot be brought under the Clause (0. But it is urged that this particular prohibition falls under the Clause (w), because it regulates a matter regarding municipal administration,-in this manner : that a Rule 152-has been framed under Section 46 of the Act by which it is prescribed that the toll in question shall be levied,-a toll under Section 3(14) of the Act being included in the term 'tax' : that the prohibition in the bye-law in question subserves the rule for payment of the toll : and that the prohibition thus becomes a matter regulating municipal administration. According to this argument though a matter (like imposing a toll) may originally have to be regulated by a rule, yet after a rule has been made the enforcement of the rule may become a matter relating to municipal administration; and in that manner, the recovery of a toll may become a matter relating to municipal administration, and consequently a prohibition connected with the enforcement of the toll may be the subject of a bye-law : Section 48(u); and then the Municipality may prescribe a fine for the infringement of the bye-law containing the prohibition by which the payment of the toll is required not to be evaded. Three steps are involved in this argument : first, a rule validly made, secondly, a bye-law regulating the matter governed by the rule,-which matter has by reason of the rule become a matter relating to municipal administration; thirdly, a fine prescribed for the infringement of the bye-law (not of the rule).
4. The argument requires a consideration of the provisions of the Act empowering Municipalities to make rules and bye-laws They are contained is Sections 46-49 which constitute Chapter IV Sections 46, 46A and 47 deal with rules; Section 48 deals with bye-laws, Section 49 with which Chapter IV closes, is ancillary; copies of rules and bye-laws shall be available to the public for inspection and purchase. Under these sections rules are clearly discriminated from bye-laws. The matters to be regulated by rules are mentioned in Section 46 and those by bye-laws in Section 48. It is true that both rules and bye-laws may be made by the Municipality, and both require to be approved or sanctioned by the Governor in Council or Commissioner. But, to mention two salient matters in which they differ :-
(1) Rules have effect when they are approved, whereas bye-laws require to be previously sanctioned; when bye-laws are proposed, their drafts have to be published and objections and suggestions received and considered : bye-laws can be made only after this procedure has been followed.
(2) There is no provision in respect of rules similar to the last paragraph of Section 48, Sub-section (1), following Clause (m) which provides that 'every Municipality may, with the like sanction, prescribe a fine not exceeding five hundred rupees for the infringement of any such bye-law.
5. A toll may be levied by the Municipality only by making a rule under Section 46, Clause (i). That clause contains several restrictions with reference to making rules prescribing taxes : one main restriction is that such a rule can only be made subject to the provisions of Chapter VII. That long Chapter (Sections 59 to 81 A) contains detailed provisions relating to municipal taxation, to three of which I will refer. First, the imposition of a tax or a toll is covered by Section 59(6), Sub-clauses (2) and (m). These sub-clauses are mutually exclusive. Secondly, the elaborate preliminary procedure laid down in Section 60' is also required to be followed before a tax (or toll) can be imposed. This procedure includes the publishing of the draft rules and taking into consideration objections raised to them. Thirdly, Section 79 provides a special penalty for non-payment of any toll leviable by a Municipality.
6. This may seem sufficient indication that the Legislature did not intend that these two processes should be interchangeable in regard to levying a toll. Taxes and tolls are covered in detail by special provisions relating to the-rules by which they may be imposed and their non-payment penalized. Can the legislature have intended that they should be liable to be regulated cumulatively by the altogether different process of making bye-laws-a process governed by its own peculiar procedure and giving rise to distinct sanctions of its own? And yet this is what must happen if a matter primarily to be regulated by a rule is to be circuitously made the subject of a bye-law-if the evasion of a rule may be prohibited by a bye-law, and the infringement of the bye-law prohibiting the evasion of the rule may be made punishable by fine. The paragraph following Clause (w) empowers the Municipality to prescribe a fine for infringement of bye-laws. Obviously it is not contemplated by the paragraph that bye-laws should themselves impose fines; otherwise a bye-law may provide for a fine and then for infringement of that bye-law a fine may be prescribed. The language of the paragraph empowering fines to be prescribed by the Municipality is not the same as the language of the clauses empowering rules and bye-laws to be made,-though fines have to be prescribed 'with the like sanction'.
7. Again the Act contains several sections imposing specific penalties for failure to comply with specified directions of a Municipality. I have already referred to Section 79. Section 155 is a general section for penalties incurred by infringements of orders and notices not punishable under any other section. The terms of such sections make it increasingly difficult to hold that it could have been the intention of the; legislature to allow such a penal provision as is before us being circuitously enacted by the Municipality under the form -of a bye-law.
8. In our opinion though the bye-law relied upon purports to prohibit the taking of vehicles within certain limits it is in substance concerned with the enforcement of a toll. It consists of a prohibition against evading payment of a toll. Matters relating to payment of tolls ought to be dealt with by rules under Section 46 and not bye-laws under Section 48. That being so, assuming that the second part of the bye-law was enacted in conformity with the requirements of the paragraph permitting the prescription of fines for infringement of bye-laws and that Section 59, Clause (b), Sub-clauses (it) and (in), have not been in any way violated, the bye-law imposes a penalty for the infringement of a rule, and it is not within the powers of the Municipality to enact such a bye-law.
9. We make the rule absolute, set aside the conviction, and direct the fine to be refunded.