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Mistra Nand Kaushik Vs. State of Uttar Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectOther Taxes;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 5 of 1966
Judge
Reported inAIR1968All204
ActsGeneral Clauses Act, 1897 - Sections 8; Indian Tolls Act, 1851 - Sections 2; Constitution of India - Article 226; Code of Civil Procedure (CPC) , 1908 - Order 7, Rule 7
AppellantMistra Nand Kaushik
RespondentState of Uttar Pradesh and anr.
Appellant AdvocateP. Naithani, Adv.
Respondent AdvocateJunior Standing Counsel
DispositionPetition allowed
Excerpt:
.....and charge of the toll - rates of the levy provided in the notification - toll shall be notified time to time in respect of bridges which have been levied - held, present judgment is based on the legal position - legal position changes - right of party will change accordingly - petition allowed. (ii) constitution - relief claimed - article 226 of constitution of india - demand of relief by the petitioner - held, appropriate relief should be awarded to the petitioner - petition allowed. - - section 8 may not in its terms apply to a statutory notification, but it is settled law that section 8 of the general clauses act enunciates a general and well-established principle of interpretation and is of general application where statutes have to be..........states that in spite of the said decision of this court, the respondents are continuing to levy toll at the rate of rs. 5.62 p. though the copy of the judgment of this court was placed before the respondent, they demur from acting in accordance therewith on the plea that the benefit of the said judgment will be given only to the operators who were parties in the writ petitions which were disposed of by the said judgment. on that account the petitioner has come to this court at this stage.3. it appears that in exercise of the powers conferred by section 2 of the indian tolls act, 1851 (act viii of 1851) the state government issued a notification dated november 1, 1956 specifying the terms and conditions for the levy and charge of the toll, from persons using bridge which may be.....
Judgment:
ORDER

Satish Chandra, J.

1. This is a petition under Article 226 of the Constitution for a writ in the nature of mandamus directing the respondents not to realise any toll tax from the petitioner, or in the alternative, to charge only at the rate of Rs. 3.75 for the outward journey alone and not for the return journey if it is completed by the midnight of the following day.

2. The petitioner plies a stage carriage under a temporary stage carriage permit on Muzaffarnagar-Budhana-Kandla-Issopur Teel route. This route crosses river Hindon at Budhana. The State Government hap constructed a bridge over river Hindon. This bridge was opened for traffic from 21st September, 1960 Persons using this bridge were subjected to the levy of toll tax from that date Several stage carriage operators of this route challenged the levy of the toll tax by writ petitions filed in this Court. Mohammad Ibrahim v. State of U P Writ Petition No. 1809 of 1961 = (AIR 1967 All 241 writ petitions were heard and decided by a learned Single Judge of this Court on 21-9-1965. By his judgment the learned Single Judge repelled the various constitutional grounds urged to challenge the levy and held that under the notification dated 1-11-1956 the respondents were entitled to recover toll at the rate of Rs. 3.75 from the petitioners in respect of their stage carriage having a carrying capacity of more than 12 passengers, for using the Hindon bridge and that no toll was chargeable in respect of the return journey, if the return journey was completed by the midnight of the following day and the toll receipt for the outward journey was produced. The learned Judge also held that the notification dated 22-3-1963 on which reliance was placed on behalf of the respondents, did not alter the situation either with respect to the rates of toll or with respect to exemption from payment of toll on the return journey, if completed by the midnight of the following day, and if the original ticket was produced. He held that the action of the State Government in levying toll at the rate of Rs. 5.62P. per vehicle was not justified. He directed the State Government to realise toll only at the rate of Rs. 3.75 P. per vehicle for the outward journey.

The petitioner states that in spite of the said decision of this court, the respondents are continuing to levy toll at the rate of Rs. 5.62 P. Though the copy of the judgment of this Court was placed before the respondent, they demur from acting in accordance therewith on the plea that the benefit of the said judgment will be given only to the operators who were parties in the writ petitions which were disposed of by the said judgment. On that account the petitioner has come to this court at this stage.

3. It appears that in exercise of the powers conferred by Section 2 of the Indian Tolls Act, 1851 (Act VIII of 1851) the State Government issued a notification dated November 1, 1956 specifying the terms and conditions for the levy and charge of the toll, from persons using bridge which may be notified. The schedule of this notification provided the rates of the levy.

4. The U. P. Gazette dated 30th July, 1960 published a notification No. 2284-CW/ XXTII-P.W.A-58-C(W)-60- dated July 19, 1960. This notification stated that in exercise of the powers conferred by Section 2 of the Indian Tolls Act, 1851 (Act VIII of 1851) and in pursuance of the provision of paragraph 2 of the Government notification of No 5495(3) C/XXVIII - PWA-217-C-58. dated November 1, 1956, the Government of Uttar Pradesh is pleased to notify the bridge over the Hindon River at Budhana on Muzaffar-nagar-Budhana Road in Muzaffarnagar district as a bridge which shall be subject to the levy of tolls from the date it opens to traffic on the terms and condition laid down in the aforesaid notification as amended from time to time. By virtue of this notification the bridge at river Hindon became subject to the notification dated 1st November 1956, and tolls were levied on that bridge from the date it opened to traffic. The notification dated November 1, 1956 was amended from time to time Ultimately the State Government issued a notification No 2662C/XXIII-PWA-133C/1960. dated March 22, 1963. The opening part of this notification stated :--

'In exercise of powers conferred under Section 2 of the Indian Tolls Act 1851 (Act No. VIII of 1851) and in supersession of notification No. 5495(3) C/XXIII-PWA217-C. 1953, dated November I, 1956. as amended from time to time, the Governor of U. P. is pleased to order that tolls, at the rates specified in Schedule I annexed hereto, shall, subject to the conditions given below, be levied and chargeable from all such persons, vehicles and beast of burden, using all such permanent bridges, Iving on roads under tile control and management of the State Public Works Department, as may hereafter be notified under paragraph 2 of this notification.'

The notification then goes on to specify the various conditions. Paragraph 2 of this notification reads as follows:

'2. The bridges in respect of which toll shall be levied shall be notified from time to time.'

5. This notification of 1963 specifically supersedes the notification dated November 1, 1956 as amended from time to time. The 1956 notification as also the amendments made to it from time to time consequently stand repealed from the date the 1963 notification came into effect. Thereafter no toll could be levied under or in pursuance of the 1956 notification. The toll could be levied in pursuance of the 1963 notification in respect of such permanent bridges as may be notified under paragraph 2 thereof. It has been conceded by the respondent that no notification has been issued under the 1963 notification, or after the coming into force of the 1963 notification, notifying that the bridge on river Hindon shall be subject to the levy and charge of the tolls.

6. For the respondents it is urged that the notification dated July 19, 1960 continues to operate and entitles the respondents to levy and charge tolls in respect of the bridge over the Hindon river. For this Section 8 of the General Clauses Act is pressed in service. Section 8 of the General Clauses Act reads as follows:

'Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.'

It is urged that reference in the notification dated 19th July, 1960 to the notification dated November 1, 1956 should be read as a reference to the repealing and re-enacting notification dated March 22. 1963 and hence the 1963 notification will govern the bridge over river Hindon.

7. For the petitioner it is urged that Section 8 applies to an Act or Regulation. The notifications are neither a Central Act or Regulations as defined by Section 3(7) and 3(50) of the General Clauses Act, and as such Section 8 is inapplicable. Section 8 may not in its terms apply to a statutory notification, but it is settled law that Section 8 of the General Clauses Act enunciates a general and well-established principle of interpretation and is of general application where statutes have to be construed. It lays down the general principle that the repeal and re-enactment should not normally upset the scheme and provision of other enactments which relate or refer to the repealed enactment. See National Sewine Thread Co. Ltd. v. James Chadwicks Brothers Ltd., AIR 1953 SC 357 and Union of India v. Mohd. Usman, AIR 1965 All 269.

8. Even though Section 8 in its term may not apply to a statutory notification, but since it enacts the general principle of interpretation, the principle would be equally available to the interpretation of statutory notifications. Hence, reference in any statutory notification to a repealed statutory notification shall, unless a different intention appears will be construed as reference to the provisions re-enacted in the repealing notification. This is the normal rule of construction, but it is subject to a different intention appearing. The different intention has to be express or necessarily implied in the repealing notification. The repealing notification may lead to the inevitable conclusion that no reference shall be made to the repealed notification.

9. A reading of the notification dated March 22, 1963 clearly reveals such a different intention. The opening paragraph of this notification expressly says that tolls shall be levied and chargeable for the using of such permanent bridges as may thereafter be notified under paragraph 2 of this notification. This coupled with paragraph 2 which says that the bridges in respect of which toll shall be levied shall be notified from time to time, leaves no doubt that this notification was intended to supply to such bridges as may from time to time be notified hereafter, that is to say, after 22-3-1963. This being the clear intendment of this notification, the applicability of the notification dated July, 19, 1960 which was made under the 1956 notification is ruled out. The notification dated July 19, 1960, consequently became a dead letter after the supersession of the notification dated November 1. 1956, there being nothing in the notification dated March, 22. 1963 to keep it alive till a fresh notification is made under it. The supersession or repeal of the 1956 notification is absolutely immediate. A contrary intention having been expressed, the normal rule of interpretation will not be applicable.

10. The learned Junior Standing Counsel submitted that the word 'hereafter' refers to paragraph 2 of the notification and does not refer to the future in point of time. I am unable to accept this interpretation. This will render the use of the word 'hereafter' completely superfluous. If this was the intention, the notification could have said 'as may be notified under paragraph 2 of this notification'. That would have clearly referred to paragraph 2. But the language, as it is, expressed both the concepts. The notification refers to paragraph 2 and in addition says 'hereafter'. The use of this word 'hereafter' in the context of this notification, expresses an intention that the bridges to which the terms and rates of this notification will apply will be those alone which are notified from time to time on or after March 22, 1963.

11. The bridge at river Hindon having not been so notified as yet, the respondents have no legal authority to levy or charge tolls from persons or vehicles using it.

12. As the petitioner is entitled to succeed on this ground, it is not necessary to decide the various other grounds mentioned in the petition. It is equally unnecessary to deal with the submission raised on behalf of the respondents that the learned single Judge who decided the earlier group of the writ petitions was not right in holding that toll could be levied only at the rate of Rs. 3.75 and not at the rate of 5.62. The learned single Judge did not deal with the aspect mentioned above. The question whether the notification of 1963. at all applies to Hindon bridge was not raised before his Lordship or decided by him.

13. In some of the connected petitions, the relief claimed is that the respondents be directed to realise toll from the petitioner at the rate of Rs. 3.75 P. only for the outward iourney. It is settled that the relief which is appropriate to the facts found and the legal position determined should be awarded. The court is not tied down to the actual relief claimed. The framing of the relief is in the discretion of the Court. Appropriate relief which can be granted, should be granted. See Charanjit Lal v. Union of India, AIR 1951 SC 41.

14. In the result the petition succeeds and is allowed. The respondents are directed not to levy or charge toll in respect of the stage carriage plied by the petitioner on the bridge over the river Hindon. The petitioner will be entitled to his costs.

15. At the time of the delivery of thejudgment learned counsel for the respondent urged that it may be clarified in theultimate order that if the respondents notified the bridge in question afresh under thenotification dated 22-3-1963 and charge toll,they will not be held guilty of committingcontempt by contravening the directionsmade in the present petition. The apprehension expressed by learned counsel is misconceived. The present judgment is based on thelegal position as obtaining at present. If thelegal position changes for any reason therights of the parties will change accordingly.At this stage it cannot be predicated whatthe respondents' action may in future be.It is, therefore, not appropriate to make anyobservation in that regard.


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