Achhru Ram, J.
1. This is an appeal from 'the decree of the learned Senior Sub-Judge of Delhi, affirming on appeal the decision of a Subordinate Judge decreeing the plaintiff's claim for refund of a sum of Rs. 188-10.0 alleged to have been wrongfully levied by the defendant by way of wheel tax on certain carts belonging to the B.B. and C.I. Railway, Bombay and plied in the city of Delhi and for issuing a perpetual injunction to the defendant restraining them from levying such tax from the plaintiff in future.
2. In 1914, the Municipal Committee of Delhi decided to levy wheel tax on all wheeled vehicles plied within the municipal limits of Delhi and the requisite formalities for the imposition of the tax were duly gone through. The B.B. and C.I. Railway, Bombay, has got a number of bullock carts that are plied within the said limits. A sum of Rs. 188-10-0 having been recovered from the said Railway Administration by the committee on account of wheel tax in respect of the said carts, the suit giving rise to the present second appeal was instituted by the Governor-General in Council represented by the General Manager of the B.B. and C.I. Railway, Bombay.
3. Section 135, Railways Act provides:
Notwithstanding anything to the contrary in any enactment, or in any agreement or award based on any enactment, the following rules shall regulate the levy of taxes in respect of railways and from railway administrations in aid of the funds of the local authorities, namely;
(1) A railway administration shall not be liable to pay any tax in aid of the funds of any local authority unless the general controlling authority has by notification in the official Gazette declared the railway administration to be liable to pay the tax....
The rest of the section is not material for the purpose of the present case. The words originally appearing in Clause (1) of the section were 'Governor-General in Council' but by Adaptation Order of 1937 they were replaced by the words 'general controlling authority.'
4. It is obvious that no local authority can levy any tax in aid of its funds from any railway administration unless the general controlling authority i.e., the Governor-General in Council has by notification in the Official Gazette declared such railway administration to be liable to pay the particular tax.
6] In pursuance of the powers conferred on them, the Government of India issued a notification in 1907 i.e., Notification No. 9977 dated 29th November 1907 declaring that every railway administration in British India should thereafter be liable to pay in respect of its property within any local area every tax which might lawfully be imposed by any local authority in aid of its funds under any law for the time being in force. On 24th August 1911, a fresh notification was issued i.e., Notification No. 221, under the afore-said section of the Railways Act respecting only the Administration of the B.B. and C.I. Railway including Rajputana and Malwa Railway, This notification provided that in supersession of all previous notifications on the subject, the Governor. General in Council was pleased to declare that the aforesaid Railway Administration should be liable to pay in aid of the funds of the local authorities, set out in the schedule thereto annexed, taxes specified against each in the second column thereof, the only tax mentioned against Delhi being house-tax.
6. I am quite clear that in so far as the B.B. and C.I. Railway is concerned, the notification of 24th August 1911 Superseded all-previous notifications including the notification of 1907 as affecting the said Railway Administration. After 24th August 1911, that Railway Administration could not be held liable for any-tax imposed by any local authority except that specifically mentioned in the schedule. As I read the notification of 1907, even before 1911 the Railway Administration concerned could not be held liable for any tax other than the tax levied in respect of property situate within the territorial limits of such local authority and I do not consider wheel tax levied on wheeled vehicles plied within the limits of any municipal area as tax levied in respect of property situate within that area. Such a tax is levied on account of the vehicle being plied and cannot be levied from the owner of such vehicle if he does not actually ply it within the said limits. Be that as it may, even if while the notification of 1907 was in force as affecting the Railway Administration in question, the Municipal Committee of Delhi could levy wheel tax in respect of bullock carts owned by it and plied within the limits of the municipal area, it ceased to have that power after the issue of the notification dated 24th August 1911 which expressly superseded all previous notifications as affecting the particular Railway Administration.
7. My attention was drawn by the learned Counsel for the appellant to the endorsement of the Secretary of the Railway Board forwarding a copy of the notification dated 24th August 1911 to the Municipal Committee of Delhi. That endorsement, however, does not help the appellant in any manner.
8. In the first place, it cannot be said to form a part of the notification and cannot, therefore, be taken to qualify or otherwise affect any of its provisions. In the second place, it does not even purport to qualify or [affect the said provisions. It simply said that the notification was intended only to bring matters up-to-date in so far as taxes which were at that time payable were in question and that further taxation proposed to be levied from time to time would be dealt with in each case on its merits under Section 135, Railways Act of 1890, That does not ipso facto make the Railway Administration concerned liable for any further taxation that may be levied. It only informs the Municipal Committee concerned that any further taxation proposed to be levied from time to time would be dealt with by the Government in each case on its merits if and when it is moved to take action by issuing a notification in respect of such tax under Section 135. It was open to the Municipal Committee of Delhi when it decided to levy wheel tax in 1914 to move the Government of India to issue a notification under Clause (1) of Section 135 declaring the Railway Administration concerned to be liable to pay such tax Unless and until such a notification has been issued, the Railway Administration cannot be held liable for the tax.
9. For the reasons given above, I see no force in this appeal and dismiss the same with costs.