O.H. Mootham, C.J.
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 under Section 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 -
.. ... .. .. .. .. .. ... ..
(iv) a tax on vehicles and other conveyances plying for hire or kept within the municipality or on boats moored therein;
.. ... .. .. .. .. .. ... ..
(vii) a toll on vehicles and other conveyances, animals, and laden coolies entering the municipality;
.. ... .. .. .. .. .. ... ..
(xiv) any other tax which the State Legislature has power to impose in the State under the Constitution.
.. ... .. .. .. .. .. ... ..
(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 the Constitution. It is assumed for the Purposes of this appeal that the railway wagons are brought within municipal limits by the appellant. The argument is that some consideration moving to the public is essential to the validity of a toll and that such consideration is wholly wanting in the present case. For the Board it is contended that the existence of such consideration is not necessary.
5. Now Clause (vii) of Section 128 (1) empowers a municipal board to impose a toll on vehicles entering the municipality, and it is common ground that the only other tax which the Municipal Board could impose under Clause (xiv) of Section 128 (1) is that tax for which provision is made in Item No. 59 of List II of the Seventh Schedule to the Constitution, namely 'tolls'. The question which therefore arises for determination in this appeal is whether the tax sought to be imposed by the Board is a toll within the meaning either of Clause (vii) of Section 128(1) or of Item No. 59 of List II. It is. I think, proper to consider the second and more general question first.
6. Now Item No. 59 in the present List II corresponds to Item No. 53 of List II of the Seventh Schedule of the Government of India Act, 1935, and it is not in dispute that the word toll' in the Constitution has the same meaning as it has in the Government of India Act and that to ascertain that meaning reference must be made to the law of England. As this Court said in Suryapal Singh v. Government of U.P. : AIR1951All674 .
'If the Legislature uses a term which has a well settled meaning that meaning must, in the absence of any indication to the contrary, be given to it. The relevant provisions of Article 31(2) of the Constitution so closely follow those of Section 299 of the Government of India Act, 1935, the words being almost identical, that it is impossible to escape the conclusion that the word 'compensation' was intended to have the same meaning in the Article as in the section.'
7. The common law recognises two kinds of toll--toll traverse and toll thorough. Shortly stated the former is a toll granted to a la downer in consideration of his permission to the public to pass over his land; the latter is a toll grafted to a person who was not the owner of the soil over which the road passed. In either case some consideration moving to the public is necessary. In the case of the toll traverse it is the dedication of the road to the public and in the case of a toll thorough the obligation to perform some service, such as maintaining the road in repair.
In Lord Pelham v. Pickersgill, 1787 1 TR 660 Ashhurst, J., said -
'It is properly admitted that toll-thorough cannot be supported without showing a consideration; but toll-traverse may; and the reason is, that the very circumstance of passing over the soil of a private person where the public had no right before to pass, imports a consideration.'
8. In Brett v. Beales, 1829-1 Mood and M. 416 the plaintiff was a lessee of tolls under the Corporation of Cambridge and he brought an action to recover the amount of tolls claimed to be due to that body. Lord Tenterden, C.J., in summing up to the jury said:
'There are two sorts of toll recognised by the law, toll traverse, and toll thorough; and the plaintiff will be entitled to a verdict on the pleadings in this case, if he establishes his title to either. Where a party has the burden of repairing public highways, he may, though those were public ways at the time that the liability to repair commenced, be entitled to take toll in consideration of those repairs; and that is toll thorough. The public however having an antecedent right to the use of the ways, he can only be so entitled by virtue of such consideration....
They may however be entitled to toll traverse. That arises, when the owner of the soil dedicates it to the use of the Public; but, at the time of the dedication, reserves to himself toll from those who pass over it.'
The Brecon Markets Company v. Neath and Brecon Rly., Co., 1872 7 CP 555 is a case which is in some respects similar to that now before us. The right to collect tolls which had been immemorially received by the corporation of Brecon for cattle, goods, and carriages passing to, through, or from the borough was vested by an Act of Parliament in the plaintiff company. The defendant railway company acquired land (not being a highway) within the borough of Brecon, and on this land it constructed a railway and a station. Goods were carried by the company upon its railway or to its railway station entirely upon the land belonging to it and it was held that such goods could not be the subject of a claim to either a toll thorough or toll traverse. In delivering the judgment on the Court Willes, J., said, at page 566.
'Accordingly, it was not argued that the claim in question could be maintained as a toll thorough, because nothing is done by the corporation or by the plaintiffs towards the repair of the railway, or otherwise to aid or assist the traffic of the railway company. It was, however, insisted that the claim might be maintained as for a toll traverse which consists of a toll granted and claimed for going over the land of the grantee. A toll traverse is said to differ from a toll through in this that no consideration for it need be averred. This does not, however, mean that there need be no consideration for it; it merely expresses that, as there can be no toll traverse except in respect of going over the land of the grattee, the consideration of using the land is implied from the character of the toll, and need not be further averred than by stating that it is a toll traverse.'
The nature of a toll was again considered by the House of Lords in Hammerton v. Earl of Dysart, 1916 1 AC 57. In this case Lord Parker of Wad. dington said at page 78.
'Tolls are generally classified as tolls-traverse and tolls-thorough. If, apart from the franshise, no one would have had a right to do that for which the toll is charged, the toll is a toll-trayerse. It, apart from the franchise, any one would have had the right to do that for which the toll is charged, the toll is a toll-thorough. In the former case the consideration moving to the public, may be found in the right conferred on the public by the franchise. For example, if before the creation of the franchise the road for the use of which toll is charged was a private road, the consideration may be the dedication of the road to the public. In the latter case the consideration moving to the public cannot be the dedication of the road, for the road was ex hypothesi at the time of the creation of the franchise already a Public road. It must be found elsewhere, for example, in an obligation to keep the road in repair. There is some doubt whether a ferry toll ought to be classified as toll-traverse or toll-thorough.'
The toll the subject of consideration in this case was in relation to a ferry, and Lord Parker prefixed the observations which I have just quoted with the statement that
'A ferry is therefore not only a franchise but primarily a toll franchise. As in the case of all tolls some consideration moving to the public is. essential to its validity.'
Now in the present case the railway wagons upon which the toll is sought to be charged enter within the limits of the municipal board, but it is common ground that the branch railway line which they traverse and which connects the appellant company's factory with the main line passes over land which belongs exclusively to the Railway administration, and that not only the construct on but the maintenance and operation of the siding and all works connected therewith were, and are, carried out by that administration. The tax which the Board seeks to impose is not therefore in my opinion supported by any consideration, and I am accordingly of the view that the tax is not a toll.
9. I now revert to the first question, namely the meaning of the word 'toll' in Clause (vii). The U. P. Municipalities Act, 1916, replaced the U. P. Municipalities Act of 1900 (Act I of 1900). Section 59 of the earlier Act death with the subject of taxation and it provided that subject to the conditions therein staled a municipal board could impose any of the following taxes, namely
'I.--With the previous sanction of the Local Government-
(a) a tax on houses, buildings, and lands situate within the municipality, not exceeding, in any municipality situated in a hilly tract, 10 per cent., and elsewhere 7 1/2 per cent., on the annual value of the houses, buildings and lands;
(b) a tax on persons exercising any profession Or carrying on any trade or dealing in the municipality;
(c) a tax on all or any vehicles or on all or any animals used for riding, driving, draught or burden, or on dogs, when such vehicles, animals or dogs are kept within the municipality;
(d) a tax on vehicles and on animals as aforesaid entering the municipality, and on boats moored therein;
(e) an octroi on goods or anima's brought within the municipality for consumption or use therein; and
II.--With the previous sanction of the Local Government and of the Governor-General in Council, any other tax.'
Clause (d) of this section it will be observed, provided for the imposition of a tax not only on vehicles and animals entering the municipality but also on boats moored therein. Section 59 of the earlier Act has been replaced by Section 128(1) of the present Act; and two changes have been made which are, I think, significant. In the first place, the tax on vehicles and animals entering the municipality has been replaced by a toll, and secondly the tax On boats moored within municipal limits has been retained as a 'tax' and now forms part of Clause (v).
The substitution of the word 'toll' for 'tax' was presumably deliberate and implies in my opinion that the levy which the municipal board can now impose is that class of tax known as a toll. A tax on boats moored within municipal limits would prima facie not be a toll as ordinarily understood unless the moorings were provided or maintained by the Board, and it is presumably because it was the intention of the Board to tax all boats moored within municipal limits that the levy has been described as a tax and removed from the clause empowering a board to levy tolls. In these circumstances the inference is, in my opinion, that the tax which a municipal board can impose under Clause (vii) is that class of tax which can Properly be described as a toll in the accepted meaning of that term.
10. For the reasons which I have already stated I am of opinion that the tax which the municipal board is seeking to impose on the appellant is not a toll and accordingly I would allow this appeal and set aside that Part of the order of the learned Judge refusing to grant the appellant the first of the reliefs which it sought. I am of opinion that a writ in the nature of mandamus should issue commanding the respondent Board not to levy a toll upon the appellant company in respect of the entry of laden railway wagons by the Assisted Railway Siding into the appellant's premises.
11. Section 128 of the U. P. Municipalities Act, 1916 (hereinafter called the Act) mentions the taxes which a Municipal Board may impose within the municipality, and these taxes include, according to Clause (vii) of Subsection (1) of the section, a toll on vehicles and other conveyances, animals and laden coolies entering the municipality. The Municipal Board of Ghaziabad imposed such a toll and framed rules for the assessment and collection of toll. Rule 1 of such rules is :
'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 toil 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.'
12. The appellant company gets raw material for the manufacture of Banaspati through the railway. The supplies are delivered to it on its premises, the railway having connected the Premises with the main railway line by a branch line known as Assisted Railway Siding. The Municipal Board claimed toll on such raw material. The appellant company disputes its liability to pay the toll. The contention on its behalf is that the tax imposed by the Board on the laden railway wagons under Clause (vii) of Sub-section (1) of Section 128 of the Act is not a toll as the Board renders no benefit in connection with the transport of raw material by the railway, the railway or the appellant company bearing all the expenses of the Assisted Raj way Siding and incidental constructions and as the entire Assisted Railway Siding is on the land belonging to the appellant company or the railway. It is contended that there should be some quid pro quo to justify the right to demand toll. In support of this contention it is argued that the word 'tolls' in item No. 59, List II, Seventh Schedule, of the Constitution must be interpreted in accordance with the interpretation of this expression under the common law in England.
13. It is then argued that the common law of England recognises only two kinds of toll--toll-traverse and toll-thorough--and that both these kinds of toll are recognised only when some consideration moves to the public. It is centended that the Board does not provide anything in connection with the Assisted Railway Siding and that therefore the toll on the laden railway wagons is not really a toll. I do not agree with this contention.
14. The word 'toll' is not of any recent use. There have been many a kind of toll charged in England. Different names have been given to them. The two tolls recognised under the common law with respect to the passage on the highways have been given the names of toll-traverse and toll-thorough. They however do not exhaust all the kinds of toll. There are, besides others, fair toll, stallage toll, canal toll, ferry toll, market toll. In India too tolls of different kinds have been charged for a long time.
15. The word 'toll' is described in the Webster New International Dictionary as a tax or due paid for some liberty or privilege particularly for the privilege of passing over a highway, as a road or bridge, for that of keeping a booth, vending goods etc. in a fair, market or other limited space as a manor, for importing or exporting goods. It is also described to be a compensation taken for services rendered.
16. Section 80-A of the Government of India Act, 1919, laid down the powers of local legislatures. Clause (a) of Sub-section (3) of this section reads :
'3. The local legislature of any Province may not, without the previous sanction of the Governor-General, make or take into consideration any law:
(a) imposing or authorising the imposition of any new tax unless the tax is a tax scheduled as exempted from this provision by rules made under this Act; or'
Rule 3 of the Scheduled Taxes Rules framed under Section 80-A(3)(a) of the Government of India Act reads :
3. The Legislative Council of a province may, Without the previous sanction of the Governor-General, make and take into consideration any law imposing, or authorising any local authority to impose, for the purposes of such local authority, any tax included in Schedule II to these rules.'
Schedule II mentions at item No. 1 'a toll' and at item No. 11 'a tax imposed in return for services rendered, such as--(a) a water rate, (b) a lighting rate, (c) scavenging, sanitary or sewage rate, (d) a drainage tax, (e) fees for the use of markets and other public conveniences'. It is clear therefore that this Act did not consider a toll to be a tax in return for services rendered. The Legislative Council of a province could therefore make provision for the imposing of this tax without providing that it be imposed in return for services rendered. Thus in this context it would be too much to say that a toll on laden vehicles cannot be charged unless some corresponding benefit is conferred in connection with the charge. The expression 'toll' in Clause (vii) of Sub-section (1) of Section 128 of the Act need not therefore be considered to be a charge in return for services rendered.
17. Reference may be made to Sections 129 and 130 of the Act which prescribe restrictions on the imposition of taxes under Clauses (x), (xi) and (xii) of Sub-section (1) of Section 128, that is on the imposition of a water tax on the annual value of buildings or lands or of both, of a scavenging tax and of a tax for the cleansing of latrines and privies. The restriction in brief is that these taxes were to be imposed solely with the object of defraying the expenses connected with the objects of the taxes and that all moneys derived from those taxes were to be spent solely on those objects. If the Legislature had intended that the imposition of a toll should be in consideration of some benefit to be provided by the Board in connection with the parsons or animals or conveyances entering the municipality, it could have easily said so.
18. It is to be noticed that the toll under Clause (vii) of Sub-section (1) of Section 128 of the Act is to be imposed on vehicles etc. entering the municipality. The toll is payable just at the entry of these vehicles, animals and coolies. I fail to imagine what benefit could the municipality render to such vehicles, animals and coolies just at the point of entry unless the benefit contemplated by the Legislature be the benefit of allowing them the privilege of entering the limits of the municipality.
The question of these vehicles etc. using the roads or bridges or Culverts or any other facility provided by the Board does not arise just at the point of entry. Such conveniences would be utilised after the entry and the existence of such conveniences does not figure in the consideration for the levy of the toll at the point of entry. It is Clauses (iv), (v) and (vi) of Sub-section (1) of Section 128 of the Act which, provide taxes on vehicles pr conveyances, on dogs and other animals kept within the municipality which in the nature of things must use the roads and other facilities provided by the municipality for the use of those conveyances and animals.
19. Even if some sort of benefit to be provided by the municipality is an essential condition for the levy of the toll, the benefit can be in the form of advantages which the various activities of the Board provide for the use, sale or disposal of the articles brought within the municipality on vehicles, animals and by collies. The articles are brought for the purpose of getting advantage of the good market provided by the necessities of the inhabitants of a well-organised municipality. Reference may be made in this connection to the general principles suggested by the Government which are to be found in Ch. III, Part II of the Municipal Manual, Volume I, printed in 1952. Paragraph 3 of resolution No. 3463/XI-271E dated the 19th September 1916 issued by the State Government with reference to the principles which should govern the imposition of taxes says:
'3. Following the actual course of evolution in this State the systems of indirect taxation may first be briefly considered. The most important are octroi, terminal taxation and tolls. All these have their historical basis in the 'benefit of the market' in which the producer, trader and purchaser carried on their operations in safety and under due regulation. This was in unsettled times a legitimate basis for heavy taxation and though the payment may now be disproportionately high, the 'benefit of the market' cannot be altogether set aside in the framing of municipal schemes. The taxation on this account must, however, be made to take a form more adapted to modem conditions of trade and intercourse.'
Paragraph 6 of this Resolution says :
'6. The only other important form of indirect taxation is that of a general toll on laden vehicles and animals entering municipal limits usually supplemented by a tax on hand-loads. This form of taxation is a necessary complement of terminal taxation, but may exist apart from it. More directly than octroi or terminal taxes it is a relic of the old traditional impost for the use of the market and of the approaches to it. It dates from unsettled times, before the railway system had revolutionized the conditions of transport and of trade, and is open to many objections under modern conditions. Its disadvantages are, however, not so great as to render its prohibition necessary, and a toll of this type will occasionally be recognized as a fair tax ; provided that:
(a) it is low and as nearly uniform as possible;
(b) it does not bear unfairly on through trade; and
(c) the cost of collection is not excessive as compared with the total receipts from the tax.'
These statements bear out that the toll is charged for the use of the market and of the approaches to it and that the producer, trader and purchaser get the benefit of the market in the form of facility to carry on their operations in safety and under due regulation.
20. It is not necessary that the consideration moving to the public must be directly related to what the toll is charged for. The only necessity to justify the toll even under the common law of England is that some consideration in favour of the public must exist for the grant of a right to a person or authority by the Crown to collect toll.
21. Best C.J. in Lord Falmouth v. George, (1828-5 Bing 286) said at page 292:
'There is no doubt that the King may at this time establish a reasonable toll for the performance of any duty that the public convenience or safety requires should be performed. The creation of a toll is only a mode of paying for a public service.'
The toll which the Board is authorised to impose is for paying for the public service rendered by the municipality to its inhabitants. The amount collected as toll goes to the municipal fund. The imposition of toll is therefore for consideration.
22. In Vinkensterne v. Ebden, (1698) 1 Ld. Rayms 384 it is stated at page 386;
'And Holt Chief Justice cited a case of Maiden in Essex, 3 Keb 532. The corporation there prescribed in a que estate, that they and all those, etc. time whereof, etc. have used to repair the port, in consideration whereof they have used time whereof etc. to receive for all lands sold within the precinct of the borough, a certain rate of 10 d. In the pound out of the purchase money; and it was adjudged a good custom; and this is what they call landcheap; for the landholder reaps a benefit by the trade coming to the town by reason of the port.'
In this case the toll was charged on the sale of goods to meet the expenses of repairing the port.
23. In William Gann v. Free Fishers of Whitstable, 1865 11 HLC 192 the Lord Chancellor (Lord Westbury) said at page 209 :
'....... and that there is no fact or circumstance to warrant a presumption that any correspondent benefit was given to the public in return for the imposition of this anchorage due.'
It is implied that the imposition of the anchorage due could be justified if there was some benefit to the public which in the circumstances need not have been the same thing as the benefit conferred on the ship anchored.
Lord Wensleydale said at page 213 :
'But the Principal difficulty I feel is, that the right to the soil of the fundus maris within three miles below low-water mark, and to the fishery in it though granted before Magna Charta, is undoubtedly subject to the rights of all subjects to pass in their vessels in the ordinary and usual course of navigation, and to take the ground there, or to anchor there at their pleasure, free from toll, unless the toll is imposed in respect of some other advantage conferred upon them, or at least on the public.'
Lord Chelmsford said at page 222 ;
'It is difficult to understand how a benefit wholly unconnected with navigation, and not extending to the public generally, can be made the legal foundation for a local payment from vessels anchoring within a particular district.'
This may necessitate some connection between the benefit conferred and what the toll is charged for; but in Foreman v. Free Fishers and Dredgers of Whitstable. 1869 4 HLC 266, Lord Chelmsford said at page 285 :
'I find nothing in the authorities to warrant the argument of the learned counsel that the benefit conferred by the owner of the Port must be precisely that in respect of which the toll is demanded. On the contrary, it appears from Lord Hale, De Portibus Maris, Chap. 6 that 'though A may have the property of a creek, or harbour, or navigable river, yet the King may grant there the liberty of a port to B. and so the interest of property and the interest of franchise be several and divided'. And he afterwards mentions anchorage as a toll arising from the jus dominii or franchise of a port. In this case it is clear that the anchorage toll would not be payable in respect of any benefit which the anchoring vessel derived from the owner of the franchise.'
24. No quid pro quo is necessary when the right to collect toll is conferred under an Act of Parliament. In Halsbury's Laws of England, Third Edition, Volume VII, paragraph 645, dealing with the right to take tolls and dues, is noted:
'Where the toll is claimed in respect of a harbour or other locality which is not a port some consideration for the toll must be shown, unless it was imposed by Parliament for a toll is a mode of paying for a public service, and must be for the public advantage and reasonable in amount.'
It follows therefore that when toll is imposed under a statute there is no necessity for its validity to establish some consideration for its imposition. This must be, I suppose, on the presumption that the legislature has provided for the imposition of the toll for valid consideration and that therefore it is not necessary to allege and establish to justify the collection of that toll that it is charged in lieu of some consideration. The Act, as already mentioned, provides for the imposition of a toll on vehicles etc. entering the municipality. It is charged at the point of entry where no question of immediate return in the form of some benefit is possible.
25. In 1872-7 CP 555 the question was whether the carriage of goods by a railway company upon their railway, or to their railway station, entirely upon land belonging to them, and not upon any highway or in the enjoyment of any easement or other right reserved by the former owners Of the land or those under whom they claim, can be subject of a claim to a toll thorough or toll traverse arising either by prescription or grant, and the answer was in the negative. It was mentioned at page 565:
'..... the tolls claimed are admitted to be of that description, and are not toils created by the statute under which the company was incorporated, and by which it appears they are invested with the rights previously existing in the corporation of Brecon, for the purposes mentioned in the Act.'
It is clear therefore that if the right to toil had been created by the statute, no question of justifying the toll which was in the nature of either toll thorough or toll traverse by prescription or grant would have been necessary and in which case it was necessary to prove the passing of some consideration. It was observed at page 566 :
'Tolls for passing upon land are granted by the Crown in respect of a consideration to be enjoyed by the persons who are to pay them; and they cannot be effectually granted without such a consideration, or so as to extend or be taken beyond the place in which such consideration arises. They consist of two sorts, toll thorough, and toll traverse. Toll thorough may be taken upon land not belonging to the grantee, and consequently no consideration can he implied for such grant. It is ordinarily taken upon a highway, and is granted to some one who undertakes some public work for the benefit of those who use the highway, as, for instance, in making the road or keeping it in order and repair for the use of the passers by; and it can only be taken in the way or ways to which such obligation applies.'
It would follow that toll thorough and toll traverse are restricted to the tolls charged for passing upon land. The toll in suit which is charge for entry of laden vehicles within the municipality does not come within the description of toll traverse. I am therefore of opinion that the considerations which would validate a toll thorough or toll traverse do not apply to the toll in suit and that consequently cases dealing with the question of such tolls i.e. toll thorough and toll traverse are not helpful in considering whether the toll in suit is covered by the word 'toll'.
26. In 1916 1 AC 57 the House of Lords considered the question of toll in connection with a ferry, and Lord Parker of Waddington said at page 78 : -
'Tolls are generally classified as tolls-traverse and tolls-thorough.'
To my mind this expression did not mean that all lands of toll can be classified either toll traverse or toll-thorough but referred really to the tolls charged with respect to the passage on laid or water. The toll in suit, that is the toll on laden vehicles when entering the municipality, is not a toll with respect to the Passage on the land or highway belonging to or maintained by the municipality.
27. Even if all tolls are to be convered either by the expression 'toll-thorough' or 'toll-traverse' and therefore some consideration to the public must exist to justify the collection of toll, I have endeavoured to show above that the Board has been given the right to collect the toll in suit in view of the benefit it confers on the inhabitants of the municipality and the business community.
28. A comparison of the provisions with respect to taxation in Section 59 of the North-Western Provinces and Oudh Municipalities Act, 1900, with those of Section 128 in the Act is not helpful for interpreting the word 'toll'. Section 59 of the former Act empowered a Municipal Board by Sub-clauses, (c) and (d) of Clause (1) to levy two types of taxes. Clause (c) related to a tax on all or any vehicles or on all or any animals used for riding, driving, draught or burden, or on dogs when such vehicles, animals or dogs are kept within the municipality.
Clause (d) related to a tax on vehicles and on animals as aforesaid entering the municipality, and on boats moored therein. It is to be noted that Clause (a) was a tax on vehicles and animals kept within the municipality and Clause (d) allowed tax On them on their entering the municipality. Clause (d) also allowed a tax on boats moored within the municipality. Section 128 of the Act empowers the Municipal Board to impose various taxes. Clause (iv) of Sub-section (1) relates to a tax on vehicles and other conveyances plying for hire and kept within the municipality or on boats moored therein.
Clause (v) relates to a tax on dogs kept within the municipality. Clause (vi) relates to a tax on animals used for riding, driving, draught or burden, when kept within the municipality. Thus Clauses (iv), (v) and (vi) of the Act practically covered what Clause (c) of the earlier Municipalities Act covered and imposed a tax on something being kept within the municipality. Clause (vii) relates to a toll on vehicles and other conveyances, animals and laden coolies entering the municipality. This corresponds to Clause (d) of the earlier Act except for the omission of the boats moored within the municipality. This omission does not lead to the conclusion that it was due to the fact that no toll could be charged from the 'boats moored within the municipality' as no benefit was conferred on them by the municipality.
29. The boats moored within the municipality could be better grouped with the vehicles or conveyances kept within the municipality than with the vehicles or conveyances entering the municipality. Whatever is imposed on the conveyances or vehicles and other conveyances is just at the point of entrance. What is imposed on the boats moored within the municipality is not at the point of entrance but on their presence within the municipality.
30. For the reasons stated above, I am of opinion that the toll charged under Rule 1 of the Rules framed for the assessment and collection of toll comes within the description of the word 'tolls' in item No. 59, List II, Seventh Schedule, of the Constitution and therefore can be validly imposed.
31. It is further contended for the appellant that this toll, not being actually a toll, is a tax and in view of Section 135 of the Indian Railways Act the levy of taxes in respect of railway and from railway administrations in aid of the funds of local authorities is to be regulated by the rules laid down in that section. The toll is not charged from the railway administration. The toll is to be paid by the person who brings within the limits of the Ghaziabad municipality any laden vehicles or other laden conveyances and is sought to be collected from the appellant who is responsible for getting the laden railway wagons within the municipality.
The toll is levied on the railway wagon which is not included in the definition of 'railway'. 'Railway' is defined in Clause (4) of Section 3 of the Indian Railways Act to mean a railway, or any portion of a railway for the public, carnage of passengers, animals or goods and includes what are mentioned in its Sub-clauses (a) to (d). The Assisted Railway Siding is 'for the use of: the Finn' and 'for the purpose of carrying on the Firm's business' and is not for the public carriage of passengers, animals or goods and therefore is not covered by the word 'railway'. I am therefore of opinion that the provisions of Section 135 of the Indian Railways Act are no bar to the imposition of this toll on the laden railway wagons which enter the municipality through the Assisted Railway Siding.
32. For the reasons stated above I would dismiss this appeal.
BY THE COURT
As we differ in opinion we refer the following question to a third Judge:
'Whether the tax which the respondent Board is seeking to impose on the appellant is a toll?
A difference of opinion, having arisen between the Hon'ble the Chief Justice ami Hon'ble Raghubar Dayal, J. the following question has been referred to me for opinion:
'Whether the tax which the respondent Board is seeking to impose on the appellant is a toll?'
35. The circumstances in which the questionhas arisen are not much in dispute. The appellantis a limited company which manufactures vanaspati in a factory situated at Ghaziabad in the district of Meerut. The factory premises in Ghaziabad are situated within the limits of the MunicipalBoard of that place. These premises are connected with the main railway line by a branch lineknown as the 'Assisted Railway Siding'. Wagonsbringing supplies to the factory pass along thisrailway siding in order to reach the factory Premises and in that way enter the limits of the Municipal Board of Ghaziabad.
Under Sub-section (1) of Section 128 of the U.P. Municipalities Act of 1916 the Municipal Board is authorised to impose certain taxes in the whole or any part of the Municipality, subject to the general rules or special orders of the State Government in that behalf. Under Clause (vii) of Sub-section, (1) of (sic) 128 the Municipal Board could charge a toll on vehicles and other conveyances, animals and laden coolies entering the Municipality. Certain rules were framed for the assessment and collection of tolls in the Ghaziabad Municipality and Rule 1 of the Rules, as they were in force on the relevant date provided :
'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 lime appoint.
Explanation: ''Other laden conveyances' includes laden railway wagons.'
36. It was also provided in the Rules that if Rule 1 was contravened a penalty which could amount to Rs. 500/- could be imposed on the person who contravened the rule.
37. The Municipal Board claimed toll from appellant in respect of the wagons which passed along the Assisted Railway Siding and entered the municipal limits as they entered the appellant's factory promises. The appellant repudiated the liability for the payment of the toll on the ground that the imposition, was ultra vires. At the instance of the Municipal Board two cases were therefore started for the prosecution of the appellant for the breach of Rule 1 already quoted.
The appellant thereupon filed a petition under Article 226 of the Constitution praying for a writ of mandamus directing the respondents Nos. 1 and 2, viz. the Municipal Board of Ghaziabad and its Executive Officer, not to levy toil upon or to realize it from the appellant in respect of the entry of laden railway wagons through the Assisted Railway Siding into the premises of the appellant's factory. A writ of prohibition was also prayed for restraining the respondent No. 3, viz. the Sub-Divisional Magistrate of Ghaziabad, from proceeding further with the criminal cases instituted by the respondents Nos. 1 and 2 against the appellant and pending before him. A writ of certiorari was also claimed for quashing the proceedings already taken in the criminal cases.
38. The writ petition was heard by Mr. Justice Mohrotra. Two contentious were pressed before him on behalf, of the appellant. It was urged in the first place that the word 'toll' necessarily implied an idea of quid pro quo and a toll couldtherefore be imposed only for certain benefits provided by the Municipal Board for all vehicles inrespect of which the toll was levied. As the Municipal Board did not provide any benefits for thewagons coming to the appellant's factory no tollcould be lawfully levied in respect of those wagons.Secondly, it was urged that under Clause (vii) of Sub-section (1) of Section 128 of the Municipalities Acttolls could be levied on vehicles, conveyances, animals and laden, coolies only. The toll could notbe charged from the appellant in respect of thegoods brought in the wagons. What the Municipal.Board tried to levy as a toll was really a tax ongoods and in levying such a tax the Board wascontravening the provisions of Section 153 of theMunicipalities Act.
39. The learned Judge rejected the first contention and held that as the Municipal Board was maintaining the. roads and bridges within its limits that constituted sufficient consideration, for the imposition of the toll. It was not necessary in the opinion of the learned Judge that there should be a service rendered by the Board to every vehicle before a toll on it could he imposed. The second contention was, however, accented and it was held that the part of Rule 10 which provided for the, realization of the amount from the owners of the goods with which the vehicles were laden went beyond the provisions of Section 153 and was on that account ultra vires. On these findings the learned Judge issued a writ of mandamus restraining the Sub-Divisional Magistrate from proceeding further with the criminal cases against the appellant and also restrained the other two respondents from realizing the toll from the appellant under Rule 10 of the Rules framed. In other respects the petition was rejected.
40. The appellant then filed a Special Appeal against the decision of Mr. Justice Mehrotra which come up for consideration before the Hon'ble the Chief Justice and Mr. Justice Eaghubar Dayal. It was urged in the appeal that what the respondent Board tried to levy as a toll was not really a toll which could be imposed under Clause (vii) of Subsection (1) of Section 128 of the Municipalities Act. Mr. Justice Mehrotra was therefore not justified in refusing to the appellant the writ of mandamus claimed by it directing the Municipal Board and its executive officer not to levy the toll upon the laden railway wagons entering the appellant's premises.
41. The Hon'ble the Chief Justice came to be conclusion 'that the tax which the municipal board is seeking to impose on the appellant is not a toll'. He was therefore for allowing the appeal and granting to the appellant the writ of mandamus which it had prayed for.
42. Raghubar Dayal, J. was of a different opinion. He thought that the toll charged under Rule 1 of the Rules framed for assessment and collection of tolls fell within the description of the word 'toll' in Clause (vii) of Section 128 (1) of the Municipalities Act as well as Item No. 59, List II of Schedule VII of the Constitution and could therefore be validly imposed. He was therefore for dismissing the appeal.
43. A difference of opinion having thus arisen between the two learned Judges they framed the question already referred to and referred it to me for opinion.
44. The respondents had apparently submitted to the decision of Mr. Justice Mehrotra that file levy even if it was intra vires was not chargeable from the appellant as that would amount to a contravention of Section 153 of the Municipalities Act That point therefore did not arise in the appeal before the Division Bench.
45. As I have Only to answer the question referred to me I must confine my considerations to that question alone.
46. It was, pointed out on behalf of the appellant that the right to impose a toll had been conferred on the Municipal Board by the State Government and the latter itself got the authority from the Government of India Act of 1919 which was later replaced first by the Act of 1935 and then by the Constitution. The word 'toll' constituted item No. 1 of the 2nd Schedule of the Scheduled Tax Rules referred to in the Government of India Act of 1919. It was Item No. 53 of List II of Schedule VII of the Government of India Act, 1935. The corresponding item in List II of Schedule VII of the Constitution is 59. It is wged that the word 'toll' had acquired a definite meaning under the common law. According to that sense the essential features of a toll are:
1. It must be supported by some consideration;
2. The consideration may be some service advantage or benefit provided by the person entitles to charge the toll;
3. (a) The toll must have a reasonable reference to the service, benefit or advantage provided, and (b) the service, benefit or advantage must be capable of being utilised by those on whom the toll is levied;
4. Unless the rate is fixed by the statute the rate at which a toll is charged must be a reasonable rate commensurate with the service, benefit or advantage provided.
47. It is emphasised that though toll is a kind of tax it is a tax having special features and cannot be put on the same footing as an ordinary tax otherwise there would be no sense in using the word 'toll' and not using the word 'tax'. The argument is that if the word 'toll' is understood in the above-mentioned sense it will become obvious that the tax which the respondents want to charge in respect of the wagons entering the appellants' factory cannot be a toll because in respect of those wagons the respondents do not provide any consideration at all.
They do not offer any advantage, benefit or service which can be enjoyed or utilized by the wagons. The Municipal Board does not maintain or repair the Assisted Railway Siding which the wagons use. The siding has not been constructed on land belonging to the Municipal Board. The roads, bridges and other amenities which the Municipal Board provides in the City are not utilized in any manner by the wagons in question. What is charged in respect of the wagons cannot therefore be a toll and must be a tax of some other kind.
48. In reply the learned counsel for the respondents urged that the word 'toll' as used in the Constitution Acts or in Section 128 of the Municipalities Act must not be interpreted narrowly but must be given a wide and liberal interpretation. He urged that even if it was conceded that under common law a toll could be supported only when there was some consideration for it, there was no justification for the contention that the consideration should be a service, benefit or advantage which could be utilized by those who were liable to pay the toll.
The toll in the present case had been authorised by the State Government. It could, according to the learned counsel be charged in respect of general benefits and amenities Provided (sic) Board. It was pointed out that the Board (sic) all sorts of amenities and advantages which (sic) appellant enjoyed on account of its factory being situated within the municipal limits. That provided sufficient consideration for the levy of the toll. It was not necessary that something should be done by the Municipal Board which could be utilized by the railway wagons also. The. tax levied could not therefore fall outside the scope of a toll simply because the Municipal Board did not maintain or repair the railway siding over which the wagons passed before entering the municipal limits.
49. My Lord the Chief Justice agreed that the word 'toll' should be given the meaning that it had under English common law. He was of opinion that the common law recognized only two kinds of tolls -- 'toll traverse' and 'toll thorough' -- and that both these kinds of tolls needed some sort of consideration moving to the Public. He was of the view that as the Municipal Board in the present case had not constructed and was not concerned with the maintenance and operation of the siding over which the wagons going to the appellant's factory passed, it was not providing any consideration for which it could levy a toll on the wagons.
From this it can be inferred that he was accepting as correct the contention of the appellant that the benefit which, could form the consideration for a toll must have a specific reference to the object on which the toll was to be levied and that general amenities could not be considered to be adequate consideration for the imposition of tolls. He utilized in support of his opinion the fact that when Clauses (c) and (d) of Sub-section (1) of Section 59 of the Municipalities Act of 1900 had been replaced by Clauses (iv) and (vii) of Sub-section (1) of Section 128 of the Municipalities Act of 1916 the word ''toll' had been substituted for the word 'tax' with reference to vehicles and animals entering the municipal limits but the word 'tax' had been retained in respect of boats moored within the municipality.
50. Mr. Justice Raghubar Dayal, on the other band, was of opinion that besides 'toll traverse' and 'toll thorough' there were tolls of other kinds also; that it was not necessary that there should be any consideration before a toll could be imposed and this was particularly so if the toll was imposed under a statute; that in any case even if some consideration was necessary the general amenities provided by the Municipal Board could be considered to be sufficient consideration and it was not required that the Municipal Board should provide some particular service or benefit utilisable by the wagons in order to be entitled to impose a toll on railway wagons.
He thought that under the Municipalities Act of 1916 the word 'tax' had been retailed for boats moored within the municipality and had been replaced by the word 'toll' with reference to the vehicles entering the municipality not because it was intended that any service was to be provided for the vehicles and not for the boats but because the change affected an improvement in the drafting of the two clauses.
51. When one has to ascertain the meaning (sic) word in a statute one naturally refers first to (sic) dictionary. When, however, the word is one used in the Constitution, besides its dictionary meaning it is legitimate to take into account the evolution of the law on the point, the known, legal sense in which the word had previously been used, the several concepts involved in it and also the Legislative practice which had preceded the use of the word in the Constitution: vide Sales Tax Officer, Pilibhit v. Budh Prakasfi Jai Prakash : 1SCR243 and State of Madras v. Cannon Dunkerley and Co 'Massers Ltd. : 1SCR379 .
52. Turning to the dictionary we find that the meaning attributed to the word 'toll' in the Shorter Oxford English Dictionary is this:--
'1. Orig., A general term for (a) a definite payment exacted by a king, ruler, or lord, or by the state or the local authority, by virtue of sovereignty or Lordship, or in return for protection (Obs. exc. Hist.); more especially, (b) for permission to pass somewhere, do some act, or perform some function; or (c) as a share of the money passing, or profit accruing, in a transaction; a tax, tribute, impost, custom, duty. A charge for the privilege of bringing goods for sale to a market or fair, or of setting up a stall. A charge for the right of passage along a road (at a turnpike or toll-gate; now abolished in Great Britain), along a river or channel, over a bridge or ferry. A charge for the right of landing or shipping goods at a port; formerly also, a customs duty. A charge made for transport of goods, esp. by railway or canal.'
53. In Webster New International Dictionary ''toll' has been described as a tax due or paid for some liberty or privilege particularly for the privilege of passing over a highway, as a road or bridge, for that of keeping a booth, vending goods etc., in a fair market or other limited space as a manor, for importing or exporting goods, and compensation taken for services rendered.
54. If reference is made to Holdsworth's History of English Law (Volume V pages 86, 87 and 103 and Volume X pages 207, 300 and 307 to 310) it will be found that the origin of tolls goes back to the disturbed times which followed the fall of the Roman Empire. In those days periodio markets were the only seats of commerce and maintenance of peace in those markets was considered to be a duty of the Church. But the Kings and Emperors also considered themselves the protectors of the merchants.
They encouraged formation of markets and especially guaranteed the preservation of peace in those markets. As they considered themselves entitled to some compensation for the guarantee which they offered they began to charge tolls in respect of the markets, which were later known as ports or burns. Later the right to take toll began to be conferred by the Kings on others by way of franchise. Some of the bodies to which the franchises were granted included ad hoc bodies like turnpike trusts or municipal corporations.
As the right to take tolls was really a right to take money from the subject a right which could be misused care was taken to see that the right should be granted by the Kings without the special assent of the House of Commons only for a matter which was for the common Profit of the people e.g., the construction or repair of a bridge or the walls of a town. Later such franchises for the realization of tolls began to be granted by Acts of Parliament also. Being capable of being granted the right could also be prescribed for.
55. In Halsbury's Laws of England, Third Edition. Volume 7, at page 322, paragraph 685 it is laid down:
'The Crown cannot by grant impose new taxes or enlarge old ones. In certain cases, however, where the grant is for the public utility and there is a quid pro quo to the public, a grant of the right to take a toll is valid. Thus, grants of pontage and murage are valid; markets, fairs, ferries, and harbours may be granted with, the right to take tolls or dues; and tolls on the highway may be claimed by grant or prescription, though they may not, it is said, be granted at the present day.
All such tolls and dues must, in general, have a reasonable commencement, and be fair and moderate in their amount; otherwise the franchise will be void.'
Earlier in the same volume in paragraph 645 it is stated:-
'Where the toll is claimed in respect of a harbour or other locality which is not a port, some consideration for the toll must be shown, unless it was imposed by Parliament for a toll is a mode of paying for a public service and must be for the public advantage and reasonable in amount.'
56. Dealing with the subject 'Toll bridges and toll roads' it is stated in Volume 19 of the same book at page 82;-
'125. It is doubtful whether a landowner can, apart from royal grant or statute, dedicate a highway subject to a right to take tolls.
The common law recognises two classes of tolls payable under a grant or presumed grant from the Crown in respect of the passage of a highway or bridge, namely tolls-traverse and tolls-thorough.
A toll traverse is a toll taken in respect of the original ownership of the land crossed by the public (though new perhaps severed therefrom), the land having been at the date of the grant the private property of the grantee, and having been then dedicated by him to the public in consideration of the toll to be taken.
A toll-thorough is independent of any ownership of the soil by the original grantee, the consideration necessary to support it being usually the liability to repair the particular highway or bridge.
A toll reasonable in amount, but varying from time to time according to the value of money, is valid in law.
xx xx x 126. Highway and bridge tolls may also be payable under statute. x x x x x.
Statutory turnpike tolls no longer exist; but there are still tolls payable in respect of the passage of bridges under special Acts.'
Some of the cases relating to tolls may now be considered. The earliest case relating to a toll which has been cited at the Bar appears to be of 1698. It is the case of (1698) 91 ER 1154. The mayor and burgesses of the Town of Newcastle used from time to time to repair the port of the town and in consideration thereof they used to have a toll of five pence Per chaldron for all coals exported. The defendant in that case refused to pay the toll in respect of some coal he was exporting and took the plea that because it had not been averred that the port had actually been repaired the corporation was not entitled to demand toll from him. Holt Chief Justice, however, held:
'By him, there is not any necessity to aver here, that the port was in repair; for the consideration is, that they have used time whereof, etc., to repair, etc., so that the consideration is that they have been time whereof, etc., obliged to repair, and not the actual repairing of it.'
He referred to an earlier case of 3 Keb 532, in which the corporation had been held entitled to get 10d. in the pound out of the purchase money in respect of all land sold in the borough in consideration of the fact it used to repair the port situated there. The toll taken was described in that case as 'land-cheap'.
57. In (1787) ITR 660 a bridge was situated within the manor of the plaintiff. He said that from very ancient times he had been charging toll from every person or laden wagon passing over the bridge for and in consideration of the liberty of passage. The defendant denied the right and pleaded that the toll claimed being a toll thorough could not be upheld because it was without consideration. It was, however, held that the toll claimed was really a toll-traverse and that consideration in that case could be presumed from the length of usage. Ashhurst, J., observed:--
'It is properly admitted that toll-thorough cannot be supported without shewing a consideration; but toll-traverse may; and the reason is, that the very circumstance of passing over the soil of a private person, where the public had no right before to pass imports a consideration. At the same time if this were a new case, we should inquire into the reason of this distinction; because in every case which requires a consideration, it ought, from length of usage, to be Presumed. For the rule with regard to prescriptions is, that every prescription is good, if by any possibility it can be supposed to have had a legal commencement. That is the general rule; and I cannot see why a good consideration for toll-thorough cannot be presumed as well as for toll-traverse; because the giving of the soil to the public is in itself a good consideration.'
The case of Rickards v. Bennett, (1823) 107 ER 83 is of the year 1823. This too was a case of toll-traverse. The lord of the manor claimed a right to a toll upon all goods bought and delivered, or bought elsewhere and brought into and delivered, in a town within the manor. He based this right on prescription and alleged that it had been in existence since times immemorial. He also alleged the various burthens borne by him which, according to him, were the consideration for the toll. The claim was resisted on the ground that the consideration was insufficient and the toll could not therefore be upheld. The claim was, however, accepted. It was observed that the burthens had been mentioned collaterally and that the toll which was claimed was not being claimed as a toll thorough but as a toll-traverse. Pointing out the distinction between the two kinds of tolls Best, J., observed:
'Toll thorough is in the highway, but toll traverse is for passing over another's ground. In the latter case, the use of the soil is a sufficient consideration for the toll, and it is not necessary to state any other in support of a claim to it. But in the former, it is in a highway; that is, where the proprietor had a right of passage before the grant of toll; and, therefore, the claimant must shew that something is done by him beneficial to the person against whom he makes the claim.'
58. In (1829) 1 Mood and M. 416 the plaintiff was a lessee of tolls under the Corporation of Cambridge and brought an action to recover the amount of toll claimed to be due to the Corporation. The right to realize the tolls had been granted by a Charter of King John. The right was sought to be supported on the ground that the Corporation repaired all the roads and streets in Cambridge, and could therefore claim the toll as a toll-thorough. The plaintiff, however, succeeded only in proving that the Corporation repaired only one single road in Cambridge.
The consideration thus being insufficient the claim as a claim for toll-thorough was rejected but it was allowed as a claim for toll-traverse. Lord Tenterden, C.J., in summing up to the jury observed that there were two sorts of tolls recognised by law--toll traverse and toll thorough--and that if there was a burden of repairing public highways toll could be taken in consideration of those repairs. That, he said, would be toll-thorough, Toll-traverse arose, according to the learned Judge when the owner of the soil dedicated it to the use of the public but at the time of the dedication reserved to himself toll from those who passed over it.
59. In Hungerford Market Co. v. City Steamboat Co. (1860) 122 ER 736 the plaintiff company had been empowered by statute to take toll as a consideration for establishing a market and providing certain amenities. The question that arose in that case was whether the company was bound to charge toll at a uniform rate from every person liable to pay the toll. The question was answered in the negative. In that connection, it was observed by Cockburn, C. J.:-
'The power to take the tolls is conferred on the Company in consideration, of service to be rendered, and accommodation to be afforded, to the public. If the service be rendered and the accommodation afforded, the obligation of the Company is fulfilled. If it omits to exact the toll which is the consideration for the service, the share-holders would seem to be the only persons who can have a right to complain.'
60. In the case of (1865) 11 ER 1305 a grantee of an oystcrbed in an arm of the sea below low-water mark claimed an anchorage toll on the basis of his ownership of the soil, The claim was negatived and the ground of dismissal in the words of the Lord Chancellor (Lord Westbury) was:--
''The bed of all navigable rivers where the tide flows and reflows, and of all estuaries or arms of the sea, is by law vested in the Crown. But this ownership of the Crown is for the benefit of the subject, and cannot be used in any manner so as to derogate from or interfere with the right of navigation, which belongs by law to the subject of the realm. The right to anchor is a necessary part of the right of navigation, because it is essential for the full enjoyment of that right. If the Crown therefore grafts part of the bed or soil of an estuary or navigable river, the grantee takes subject to the public right, and he cannot in respect of his ownership of the soil make any claim or demand, even if it be expressly granted to him, which in any way, interferes with the enjoyment of the public right.'
The argument that the anchorage could be claimed on the ground of consideration was repelled by saying:--
'and that there is no fact or circumstance to warrant the presumption that any corresponding benefit was given to the Public in return for the imposition of the anchorage tax.'
Lord Wensleydale also observed that in the usual course of navigation all vessels could pass and anchor
'at their pleasure free from toll unless the tell is imposed in respect of some other advantage conferred upon them or at least on the public'.
61. The case of (1872) 7 CP 555 was one in which the plaintiff company had by statute been granted a right to take toll for cattle, goods and carriages passing to, through or from the borough of Brecon. The defendant was a Railway company which had acquired some land (not a highway) on which it had constructed a railway and station within the borough of Brecon whence passengers, goods and cattle were conveyed by other lines of railway to other places beyond the limits of the borough. The plaintiff company therefore claimed toll in respect of the cattle and goods. The claim was rejected. Witles, J., who delivered the judgment of the Court, observed:-
'This case raises a question which chiefly upon the ground of its general importance, we took time to consider, viz., whether the carriage of goods by a railway company upon, their railway, or to their railway station, entirely upon land helcoging to the railway company, and not upon any highway, or in the enjoyment of any easement or other right reserved by the former owners of the land or those under whom they claim, can be subject to a toll thorough or toll traverse arising by prescription or grant; for, the tolls claimed arc admitted to be of that description, and are not tolls created by the statute under which the company was incorporated, and by which it appears they are invested with the rights previously existing in the corporation of Brecon for the purposes mentioned in the Act.
We are of opinion that no such toll can be imposed. x x x x x x.
Tolls for passing upon land are granted by the Crown in respect of a consideration to be on joyed by the persons who are to pay them, and they cannot be effectually granted without such a consideration, or so as to extend or be taken beyond the place in which such consideration arises. They consist of two sorts, toll thorough, and toll traverse, Toll thorough may be taken upon land not belonging to the grantee, and consequently no consideration can be implied for such grant. It is ordinarily taken upon a highway, and is granted to some one who undertakes some Public work for the benefit of those who use the highway, x x x.
x x x x x. A toll traverse is said to differ from a toll thorough in this, that no consideration for it need he averred, This does not, however, mean that there need be no consideration for it; it merely expresses that, as there can be no toll traverse except of going over the land, of the grantee, the consideration of using the land is implied from the character of the toll, and need act be further averred than by stating that it is A toll traverse. The consideration is the giving up the land of the grantee.'
In 1869 arose the case of (1869) 4 HLC 206 the plaintiffs claimed anchorage toll in respect of the defendant's vessels casting anchor at a Port of theirs on three occasions. The defence was that the port where anchor had been cast was a natural port and had not been artificially provided by the plaintiffs and no toll could be claimed on that account. The claim of the plaintiffs was, however, upheld on the ground that the right to take toll for anchorage had existed for a very long time and could therefore be presumed to have had a legal origin.
The consideration of the toll was the protection granted for the ships casting anchor. Whether the port had been naturally or artificially formed was immaterial. The earlier case of (1865) 11 HLC 192 (supra) was distinguished. It was observed that the right of anchorage was usually, if not universally, incident to the proprietorship of a port and if the port was in existence anchorage toll could be held legal if it was established that it had been paid from time immemorial, The very fact that a port was provided whether it was natural or artificial could be a consideration for the toll.
62. The cage of Duke of Newcastle v. Workshop Urban District Council, (19021 2 Ch. 145 related to a fair or market. The plaintiff had in that case been granted by Charter a right to charge toll in respect of a market which he was entitled to hold along with two annual fairs. The rights in respect of the market had, however, been leased out to the defendants and the question that was raised was whether the defendants were liable to account for the tolls realized in respect of the market days which coincided with the fair days for which no lease had been grafted.
The plaintiff contended that the tolls taken on fair days were fair tolls and not market tolls and therefore he was entitled to get the same from the defendants. The plaintiff's contention was held to be untenable. A distinction was made between a fair toll and a stallage toll and it was observed that the former had nothing to do with the townershin of the soil though the latter could be exacted only by such an owner. The observations in the case of (1860) 122 RR 736 (supra) that toll could be imposed only for services rendered and accommodation afforded were quoted with approval.
63. In Simpon v. Attorney-General, 1904 AC 476 the defendant had by Letters patent been authorised to have locks On a section of a navigable river on his own land and to charge tolls from the vessels passing through the locks. The tolls had been collected for 200 years. The defendant had, however, allowed the locks to get out of repairs as the income from toll had dwindled and was not sufficient for meeting the expenses of keeping the locks in order.
Action was brought by the Attorney-General and the County Council for compelling the defendant to keep the locks in order. The claim was allowed by the Court of Appeal and an appeal against the decision was filed in the House of Lords. The judgment of the Court of Appeal was set aside. It was held that the defendant was not bound to maintain or repair or allow the public to pass through the locks and that the locks had never been dedicated to the Public as a highway.
64. The case of 1916 AC 57 related to a ferry. The plaintiff claimed a declaration that he was entitled to an ancient ferry and also claimed an injunction restraining the defendants from interfering him in the enjoyment thereof. The nature of a ferry was considered in that case and in that connection Lord Parker of Waddington observed :
'A ferry is therefore not only a franchise, but primarily a toll franchise, as in the case of all tolls some consideration moving to the public is essential to its validity.
Tolls are generally classified as tolls-traverse and toll-thorough. If, apart from the franchise, no one would have had a right to do that for which the toll is charged, the toll is a toll-traverse. If, apart from the franchise, any one would have had the right to do that for which the toll it charged, the toll is a toll-thorough. In the former case the consideration moving to the public may be found in the right conferred on the public by the franchise. For example if before the creation of the franchise the road for the use of which toll is charged was a private road, the consideration may be the dedication of the road to the public. In the latter case the consideration moving to the public cannot be the dedication of the road, for the road was ex hypothesi at the time of the creation of the franchise already a public road. It must be found elsewhere, for example, in the obligation to keep the road in repair, x x x x x x x x x A ferry may thus be regarded as ft link between two highways on either side of the water, or as part of a continuous highway crossing the water.'
Indian cases dealing with tolls appear to be very few.
65. In Mt Bayabi v. District Council, Nagpur, AIR 1936 Nag 258, the plaintiff fried to levy a toll in respect of cattle standing in her market. It was urged that under the Central Provinces Local Self-Government Act of 1920 only the District Council could levy that toll. This contention was accepted. The meaning which was assigned to the word 'toll' in that case was taken from Stroud's Judicial Dictionary and was 'a sum of money which is taken in respect of some benefit, the benefit being the temporary use of land'. This view was approved by a Division Bench of the same Court in Sitaram Maharaj v. Jannpada Sabha, Amraoti, AIR 1952 Nag 401 where the contention that the term toll could be applied only to particular fees leveled in respect of markets was not accepted and it was held that the term could properly be applied to any sum of money which was taken in respect of some benefit, being the temporary use at the land.
66. In the case of Municipal Board of Hardwar Union v. Raghubir Singh, : AIR1958All430 ) it was practically conceded that 'toll' was a payment which was taken in respect of some benefit common examples being a toll for a market or to cross a bridge.
67. Coming to legislative practice, it appears that by Section 59 of the Municipalities Act of 1900 the municipalities were authorised to levy under Clause (c) of Sub-section (1) of the section 'a tax on all or any vehicles or on all or any animals used for riding, driving, draught or burden, or on dogs, when such vehicles, animals or dogs are kept within the municipality. Under Clause (d) it could levy 'a tax on vehicles and on animals as aforesaid entering the municipality, and on boats moored therein'. The section was replaced by Section 128 of the Municipalities Act of 1916.
Clauses (iv), (v), (vi) and (vii) of Sub-section (1) of the new section covered the field which had originally been covered by Clauses (c) and (d) of the old Sub-section (1) of Section 59, Clause (iv) permitted a tax on vehicles and other conveyances plying for hire or kept within the municipality or on boats moored therein. Clause (v) permitted a tax on dogs kept within the municipality. Clause (vi) allowed the Municipality to tax animals used for riding, driving, draught or burden, when kept within the municipality, Clause (vii) permitted a toll on vehicles and other conveyances, animals, and laden coolies entering the municipality.
Thus boats moored within the municipality were bracketed with vehicles and conveyances hired and kept within the municipality and a tax levied in respect of them continued to be called a tax. Some of the other taxes which were permitted were mentioned in Clauses (x) and (xi) of Sub-section (1) of Section 128. Some of these taxes were taxes for services rendered, e.g. for cleansing of urinals, of latrines and Privies or for the supply of water. The restrictions subject to which these taxes were to be imposed were mentioned in Sections 129 and 130. These sections provided that the taxes imposed for those services could be imposed only with, the object of defraying the expenses connected with those services.
68. Three things are noticeable in this connection. They are;
1. Special provision was made for levying of taxes in respect of services rendered, but it was not provided that it would be necessary to render any specific service or provide any particular benefit in respect of the vehicles or laden animals on which toll was to be levied.
2. A distinction was made between the taxwhich was to be charged in respect of vehiclesand animals used and kept within the municipallimits and between such vehicles and animalswhich entered the municipal limits. Boats mooredwithin the municipal limits really belonged to theformer class and were therefore included in thatclass. This improved the drafting and made itmore logical.
3. The nomenclature of the tax which was to be imposed on vehicles and laden animals entering the municipality was changed into toll but the reason for the change was not indicated.
69. Under the Government of India Act of 1919 local legislatures could not without the previous sanction of the Governor-General make any law imposing a tax unless it, was a tax exempted by rules. In Schedule II of the 'Schedule Tax Rules' framed under Section 80 of the Act were mentioned the taxes which could be imposed by the Legislative Council of a province without the previous sanction of the Governor-General. Item No. 1 of Schedule II was a 'toll' while Item No. 11 was a tax imposed in return for services rendered, such as
(a) a water rate,
(b) lighting rate,
(c) scavenging rate,
(d) drainage rate, and
(e) fees for markets and other public conveniences. Under this Schedule therefore the rendering of specific services was not considered necessary for the imposition of a toll.
70. Under the Government of India Act of 1935 three Lists were mentioned in the Seventh, Schedule. Item No. 59 of the List II contained the word 'toll'. The other items provided for the imposition of other taxes, duties and fees.
71. In the Seventh Schedule of the Constitution also there are three Lists. Item No. 59 of List II which is the State List is tolls and corresponds to Item No. 53 of List II of the Seventh Schedule of the Government of India Act of 1935. A reference to the other items of List II of the Second Schedule will show that provision is made in them for taxes, duties and fees of various kinds. For instance, Article 46 provides for taxes of agricultural income. Article 47 Provides for duties in respect of succession to agricultural land and Article 67 provides, for fees in respect of any of the matters in List II.
On account of these three different words being used in the different items of the List it is urged that the Constitution makers could not have Used these three terms as synonymous and must have had in their mind the distinction between their meanings. Tolls cannot, it is urged, therefore be put on the same level as taxes. It is Pointed out that the distinction between a tax and a fee has been brought out very clearly by the Supreme Court in Commr. Hindu Religious Endowments, Madras v. Lakshmindra Thirtha Swamiar, : 1SCR1005 and the argument is that the distinction between a toll and a tax is of a similar kind.
72. A careful consideration of what has preceded shows that it is not strictly accurate to say that tolls can only be of two kinds--toll thorough and toll traverse. Tolls are of many kinds and can be levied for various purposes. Besides tolls relating to passage over land or water some of the other recognised tolls are market toll, fair toll, stallage toll, canal toll, anchorage, piccage, pontage, land-cheap etc. It is tolls relating to passage which are usually classified in two kinds: toll thorough and toll traverse.
A toll thorough has no connection with the ownership of the land and is usually granted to someone who undertakes to do something for the benefit of the person who uses the passage, e.g. makes the road or a bridge or keeps it in repairs, arranges for a ferry or provides some other facility. A toll traverse is on the other hand connected with the ownership of the soil and is allowed to be charged for the use of the land by the person liable for the toll. This classification is not applicable to tolls of other kinds which have no connection with passage;
73. The contention that some sort of consideration is necessary to support the levy of tolls is correct. Judicial authority on this point is no overwhelming that it is not possible to dispute this proposition. The right to levy a toll is based either on a grant or has been acquired by prescription. Ordinarily in order to justify a toll it is necessary to aver and prove the existence of some consideration. If, however, the right had been exercised from time immemorial its legal origin as well as consideration may be presumed. Similarly if the right has been granted by statute the consideration may be mentioned in the statute itself and can even he presumed even if it is not so mentioned because the Legislature would not have granted the right unless there was same consideration to justify the grant.
74. Usually the consideration is some amenity, service, benefit or advantage which the person entitled to the toll undertakes to provide for the public in general or the persons liable to pay the toll. Sometimes the consideration may be traced to ownership or jus dominii. Permission by the owner of the land for the use of his land for any purpose may therefore be sufficient consideration if the personal charging the toll is the owner. If the benefit or advantage which is the consideration is made available it is not necessary for incurring the liability to pay the toll that the benefit or advantage should actually be utilized.
75. It is also correct that the rate of toll unless it is fixed by statute must be reasonable but it is not necessary that it should be charged from every one at a uniform rate.
76. So far as the 1st, 2nd and 4th essential features of a tax which make it a toll are concerned therefore the appellant's contention appears to be justified.
77. There is serious dispute, however, about the third feature.
78. The contention on behalf of the appellant is that it is not enough that there should be some consideration for the toll. It is not open to the respondents to justify the toll levied by them on the ground that the respondent no. 1 provides general amenities which it is open to the appellant to enjoy. The toll can be justified only if some special benefit capable of bring utilized by the conveyance or animal on which the toll is imposed is provided by the Board and as this has not been established in the present case what has been levied by the respondents may be a general tax but cannot be a toll. In support of this contention reliance is placed on the Case of 1992-2 Ch 145; (1872) 7 CP 555 and 1904 AC 476 (supra).
79. In respect of a toll of a particular kind, certainly, it can be said that it can be imposed only if the particular benefit or service for which it was authorised was provided. Thus in respect of a market toll it can be said it can be payable only if the facilities of a market are provided. In respect of a stallage toll it can be urged that it is payable only by the person who sets up a stall.
A fair toll can in the same manner be realized from a person who attends the fair.
But when the statute authorises a municipal corporation of levy tolls without specifying that it is to be levied in respect of a particular service rendered or benefit provided it cannot in my opinion be said that for every toll sought to be levied some specific benefit or advantage must be provided. Under the Municipalities Act the Municipal Board was enjoined to provide all sorts of advantages, conveniences and facilities. These duties have been enumerated in Section 7 of the Act. Its discretionary functions are mentioned in Section 8.
All these duties and functions could not be performed without funds. It was therefore necessary to authorise the Board to impose taxes of different kinds, including tolls. That was the purpose with which Section 128 of the Act was enacted. Some of the taxes were to be imposed for specific services rendered and in respect of such taxes restrictions on the power of imposition were provided in Sections 129 and 130. There was nothing either in the Government of India Act or in the Constitution which required the State Legislature if it was imposing a toll itself or was authorising the municipal boards to impose a toll to prescribe that the imposition could be made only for specific services rendered or advantages provided.
There appears to be nothing which could debar the Legislature from empowering the boards to levy general tolls in consideration of the advantages, services & benefits which were to be provided to every one under the provisions of the Municipalities Act. Had it been the intention that tolls could be levied only for specific services or benefits to be provided there would have been some provision to that effect in the Municipalities Act, Such a provision cannot be held to exist by implication simply because of the use of the word 'toll'. In the absence of any restrictions, therefore, it appears to have been open to the respondents to levy tolls under Section 128 even in consideration of the general amenities provided in the city.
80. I find nothing in the three eases relied upon by the learned counsel for the appellant to support the contention that the second feature mentioned by him is such an essential feature of a toll that a tax cannot be called a tell unless it has that feature. The passage in the judgment of the case of 1902-2 Ch 145 (supra) on which reliance has been placed in this connection is to be found at page 160 where it was said:
'Stallage is paid in respect of some user of the soil, and can be exacted only by the owner of the soil. It is sufficient to refer to the case of Northampton Corporation v. Ward, (1745) 2 Stra 1288 and the Duke of Bedford v. St. Paul Covent Garden, Overseers, (1881) 51 LJ MC 41. The land on which the stalls stand belongs to the defendants, and they make a charge for the exclusive occupation of the land, and the convenience of stalls thereon.'
The learned Judge was dealing in this passage with a particular kind of toll, viz. stallage, and expressed the opinion that such a toll could be realized only from the person who put no a stall. It does not follow in any way from this observation that a municipal corporation cannot be authorised by a statute to levy a toll in consideration of general amenities and conveniences provided by it.
81. In the case of (1872) 7 CP 555 (supra) the plaintiff company was claiming a toll thorough or a toll traverse on the basis of prescription or grant. It was riot claiming any toll created by statute under which it was incorporated. As the defendant company was not using any land belonging to the plaintiff there could be no question of claiming any toll traverse. There could also be no question of claiming a toll thorough because the defendant was not using any highway maintained by the plaintiff.
Whatever the defendant company was doing it was doing in its own land. It was in those circumstances held that no toll could be claimed. The considerations in that case were confined to the question whether the toll claimed could be claimed as a toll thorough or toll traverse and the learned Judge did not go into the question whether a general toll could be levied under a statute in consideration of general conveniences provided.
82. As has already been mentioned in the case of 1904 AC 476 (supra) the only question was whether the defendant could be compelled to keep the locks under repairs even though he had stopped charging toll because the income from that source had considerably fallen down and was not sufficient to enable him to keep the locks in repairs. Two of the seven conclusions at which Lord Lindcly arrived in that ease are the ones on which reliance has been placed by the learned counsel for the appellant in support of his present contention. They were:
1. That the defendant's obligation to keep the locks in repair is conditional on his ability to raise the money necessary for the purpose by the tolls he is entitled to levy and on his ceasing to avail himself of his right to collect tolls under the patent.
2. That if he is not able to collect enough to keep the locks in repair and he collects no tolls his obligations to keep the locks in repair also cease, although technically his patent might have to be cancelled to make his position legally invulnerable. The toll in that case was being charged for the specific service provided by the defendant, viz. keeping the locks in proper repairs and to facilitate the navigation of vessels. As the business had become unprofitable, the defendant bad stopped charging the tolls and had also stopped keeping the locks in order. It was held that he could not be forced to keep the locks in order. Neither of the two propositions on which reliance is placed therefore supports the contention that a toll can be levied only in respect of a specific service and that no toll can be levied in respect of general amenities provided.
83. There appears to be no justification for the argument that a toll can be imposed on a vehicle or animal only if some service, advantage or benefit capable of being utilized or enjoyed by that vehicle or animal is provided. This interpretation of the word 'toll' is too narrow. As is well established tolls can be levied, for general us welt as specific purposes. For toils of the latter kind, e.g. tolls for building or maintaining a particular road or bridge, it may be said that they can be charged only from persons using the road or bridge but so far as tolls of the former kind are concerned it has already been shown that tolls used to be charged for guaranteeing the peace in a 'port' or 'burgh' as well as for arranging for fairs and markets.
The only thing that appears to be required in connection with such tolls is that there must be some public service or public advantage (vide Halsbury's Laws of England Volume VII, para 645). It is too much to expert that for supporting a toll in respect of a port fair or market some specific service or advantage must be provided for every object, animal or person coming to the port or market. In 3 Keb. 532 referred to in (1698) 91 ER 1154 (supra) the consideration of the toll was the objective to repair the port but it was charged in respect of every piece of land sold in the borough. How could the land be expected to utilize the port? In (1829) 1 Mood and M. 416 (supra) a toll was levied in consideration of the Corporation repairing all the roads in the town.
Could any one refuse to pay the toll on the excuse that he did not intend to use any of the roads in the town? As was conceded by Lord Chelmsford in (1869) 4 HLC 266 (supra) anchorage toll can arise from jus dominii also and need not 'be payable in respect of any benefit which the anchoring vessel derived from the owner of the franchise.' It is obvious that in such eases of what may be called general tolls general benefits provided to the public on the right of dominion way be sufficient consideration for the toll. It is not necessary in such cases that there should fee any specific benefit or advantage provided or that the object with reference to which it is levied should be in a position to utilize any such benefit or advantage.
84. There is therefore no warrant for the proposition that the benefit afforded or the convenience offered should be capable of being utilized by the conveyance or person in respect of which the toll is imposed.
85. Reliance was placed in this connection on certain observations to be found at page 565 of the case of (1872) 7 C.P. 555 (supra). These observations are:
'There are cases, doubtless, in which tolls are sustained in respect of some advantage of which each member of the public may avail himself if he thinks proper, and which must be paid in respect of the opportunity and capacity of enjoyment in the individual and the general public benefit, whether there be any actual enjoyment by the particular individual or not; The rule applicable in such cases has no application to the case of toll for passing upon land.'
As has already been remarked, the case with which the learned Judge (Willies, J.) was dealing was that of a highway tall claimed on the basis of prescription or grant. The defendant in that case had not used the highway of tb.fi plaintiff in any manner and had also not utilized the land of the plaintiff in any way. The plaintiff, however, urged that the defendant could not escape liability for the tell on the ground that he had not used the highway. If the use of the highway was open to him and he had not used it he was still liable to pay the toll. It was in that connection that reference was made to certain cases in which a person had been held liable to pay toll for the amenities provided even though he had not utilized the same. These cases were distinguished and it was observed that the principle of those cases did not apply to highways.
86. It was therefore not laid down in that case that the benefit provided must necessarily be capable of being enjoyed by the vehicle or person sought to be made liable for the toll.
87. The toll in the present case has not been levied in respect of any particular road or service. It is being levied in consideration of all the conveniences, advantages and amenities which the appellant is enjoying on account of having its factory within the municipal limits. The appellant could not therefore escape liability for the toll on the ground that its wagons do not use the roads provided by the respondents and pass over a siding with whose constructions or maintenance the respondents have no concern.
88. It is not necessary to quarrel with the proposition that a toll is tax with certain special features. What has to be seen is whether the tax now in question has those features which make a tax a toll. It appears to me that it does. The toll in the present case is authorised by statute. Consideration was certainly necessary for it but that consideration is in the first place to be presumed because the Legislature would not have granted the authority to levy the toll unless there was consideration.
In any case the consideration is to be found in the general amenities and advantages which the respondent No. 1 provides for the appellant. It is not suggested that the rate is unreasonable, I am unable to accept as correct the contention that the tax is not a toll because there is no specific service or advantage provided by the respondent Board as its consideration which can be utilized by the railway wagon on which it is levied. I would therefore answer the question referred to me in the affirmative.
89. Let the case be sent back to the Division Bench with the above answer.
BY THE COURT
O.H. Mootham, C.J. and Raighubar Dayal, J.
90. In view of the opinion of the learned Judge to whom the difference in opinion was referred this appeal is dismissed with costs which we assess at Rs. 500/-