G.L. Oza C.J.
1. This is a petition filed by the petitioners challenging an auction notice issued by the Municipal Corporation, Bilaspur, dated 21-2-1981, and the rates of tax proposed therein.
2. According to the petitioners, they are citizens of India residing in Bilaspur and carrying on business of plying trucks. According to these petitioners, by notification dated 27-12-1980 the erstwhile Municipality of Bilaspur was constituted as a Municipal Corporation, Bilaspur, with effect from 1st January 1981. It is also alleged that that notification indicated that the limits of the Municipality would be the limits of the Municipal Corporation so constituted. At the time of this notification, the Municipal Council of Bilaspur was superseded and an Administrator was looking after the functions of the Municipality. Therefore, by this notification dated 27-12-1980, Collector, Bilaspur, was appointed an Administrator of the newly constituted Bilaspur Municipal Corporation with effect from 1st January 1981 and the former Chief Municipal Officer was appointed as the Commissioner of the Bilaspur Municipal Corporation.
3. It is alleged by the petitioners that within the limits of the Municipal Corporation there existed a bridge, known as Sarkanda Bridge. The photograph of this bridge has been filed as Annexure A4 and it is alleged that this bridge is fifty years old which was being used by the citizens of Bilaspur for crossing the river Arpa which flows within the city. The limits of the Corporation are beyond this bridge and across the river Arpa and it is alleged that this bridge was open to vehicular traffic since the date of its construction and the citizens of Bilaspur were using this bridge and they were never called upon to pay tax or toll for its use during the tenure of the former Municipal Council.
4. It is alleged that respondent No. 4, the Commissioner of Municipal Corporation, Bilaspur, issued an auction notice dated 21-2-1981 and in this notice it was stated that they wanted to construct a diversion termed as Rapta across the river Arpa as an alternative route for crossing the river meant for mechanically propelled vehicles and it is further alleged that this Rapta is nothing else but a diversion created exclusively for vehicular traffic. A photograph of this Rapta under construction has also been filed along with this petition. It is further alleged that by this notification tenders were invited so that the contractor who will construct this Rapta or the diversion will be entitled to recover tax termed by them as 'Path kar' for the year 1980-81 and 1981-82. It is also clear that this Rapta will not be open during the rainy season. It is alleged that in response to this auction notice a contract was knocked down in favour of respondent No. 5 who entered into an agreement with the respondents and this respondent No. 5 was authorised to construct a diversion as indicated and further it is alleged that this respondent No. 5 has been authorised to collect tax as per schedule to the notice dated 21-2-1981 and by this all kinds of mechanically propelled vehicles will be liable to pay tax at the rates mentioned therein. This schedule also shows that for non-commercial vehicles the tax would be charged once in twenty-four hours and from commercial vehicles the rate of tax is chargeable for each entry. According to the petitioners, the purpose of creating this diversion is nothing except to collect some income for the Municipal Corporation, Bilaspur, as according to the petitioners at any time before the Municipal Council never thought of making any such alternative arrangement. It is alleged that the stand of the Municipal Corporation is that the old bridge Sarkanda is no longer good for vehicular traffic although it was thought that it was good enough during the rainy season and it is alleged that in view of Section 6 of the M. P. Motor Vehicles Taxation Act, 1947, the Corporation is not authorised to levy any kind of tax, toll or licence fee on the passage of vehicles. It is also contended by the petitioners that even under the M. P. Municipal Corporation Act the Municipal Corporation is not authorised to levy any kind of tax on motor vehicles.
5. According to the petitioners, what is proposed to be charged under the schedule to annexure A. 5 is in the nature of toll on the vehicles using the aforesaid diversion and under the provisions of Section 132(2)(c) of the Municipal Corporation Act the Municipal Corporation can levy a tax known as 'toll tax' and it is contended that this tax could not be charged for crossing of the diversion as it could only pay a tax on entry. According to the petitioners as they are the residents within the Corporation limits, no tax under Section 132(2)(b) could be levied against them. It is also alleged that for imposition of a tax procedure under Section 135 of the Act was to be followed and it is contended that before issuing Annexure A-5, no such procedure was followed and therefore this levy of tax (Path kar) is not justified in law and the Corporation has no authority to levy such a tax in view of Section 6 of the M. P. Motor Vehicles Taxation Act, 1947. It was also contended that the respondents had no power to close down the Sarkanda bridge for more than one month unless there is a notification in the official gazette under Section 74 of the Motor Vehicles Act.
6. In the return filed on behalf of the State Government, most of the facts are not disputed. What is stated is that this Rapta or fantoon bridge is created for diverting the heavy vehicular traffic to avoid accidents on the old bridge. It is stated that this arrangement was made not only to collect money but in order to avoid accidents and to provide for an alternative route for traffic of vehicles. It has been alleged that the notification was issued on 1-4-1981 and it is in the nature of ferry toll which was to be collected. This notification which has been produced along with the return purports to have been issued under Section 4 of the Northern India Ferries Act, 1878. In the return filed by the other respondents, the Corporation authorities, it has been alleged that because the bridge is a narrow one, in order to provide an alternative way this Rapta was created and this was done to avoid accidents. It was stated that because this Rapta had to be created, the charges were proposed to be recovered from the users of the Rapta for services rendered and not in the nature of tax. Reference has again been made to Section 8 of the Northern India Ferries Act. This Act will not apply to the construction of a bridge or a Rapta, the charges under that Act were not justified. It was also frankly conceded that this alleged notification dated 18-8-1981 has not been published in the M. P. Gazette and it is clear that this levy could not be justified under the Northern India Ferries Act at all. It is also clear that it is not a tax levied under Section 132 of the M. P. Municipal Corporation Act. Learned Deputy Advocate General appearing for the State and the learned counsel appearing for the Corporation authorities were not in a position to lay their hands at any provision of law which could justify the levy. Learned counsel appearing for respondent No. 5, on the other hand, contended that as under the notice from the Municipal Corporation the respondent No. 5 spent money to build up the Rapta, charges were collected under the terms of the contract notice itself but none of the counsel appearing for the respondents were in a position to justify the levy of this tax under any law. It was contended by learned counsel for the petitioners that such a levy which is not authorised by law could not be collected and recovered by the Corporation or anyone under the authority of the Corporation. An attempt was made in the return to refer to the Northern India Ferries Act but apparently a bridge or a Rapta could not be a ferry and a levy under that Act could not be justified. It is, therefore, clear that this imposition of tax or fees is not authorised under any provision of law and the Corporation or anyone under the Corporation, therefore, is not authorised to collect it. The period of this notice has expired but it is alleged by the petitioners that year after year the same is being followed and therefore it was contended that it is necessary to get a decision in this case. It is, therefore, apparent that as this levy is not justified in law, it could not be levied against anyone passing over the Rapta.
7. In this view of the matter, therefore, the petition is allowed and imposition of any tax or levy on the vehicles passing over the Rapta is held to be not authorised in law and, therefore, quashed. In the circumstances of the case, parties are directed to bear their own costs. Security amount, if deposited, shall be refunded to the petitioners.