C.A. Vaidialingam, J.
1. The respective petitioners in these two petitions, challenge the validity of Section 12 of the Travancore-Cochin Vehicles Taxation Act, 1950, --Act XIV/1950 as well as a notification dated 28th April 1953 issued by the T. C. State Government directing the levy of tolls on vehicles using the bridge across the Meenachil river at Palai on the Ponkunnam-Lalam road.
2. The petitioner in 0. P. 404/60, represented by the learned counsel Sri. P. Govindan Hair, states that the petitioner is engaged in the business of transport service and is an operator of stage carriage services, and inparticular, it is operating a stage carriage KLR 310 on the route from Palai to Vandanmada in the Kottayam District. The petitioner further avers that the said bus has to pass over the bridge at Palai, constructed on the Meenachil river, by the State Government. At the northernend of the bridge, a toll gate has been established by the State Government and it is leasing out annually the right to collect the tolls.
3. The petitioner further alleees that the petitioner and the other operators on the route, have to pay a toll of Rs. 2/- per day per vehicle and take a toll-pass for passing through the bridge and the petitioner has been accordingly paying toll at the said rate from the datebe started service on the said route.
4. The petitioner further avers that neither theState nor the Executive Engineer Public Works Department, respondents 1 and 2 respectively, have any power to levy or collect the said toll nor have they any power to lease out the right to collect the said tolls to any one. The imposition of a tax, in the form of toll is again, according to the petitioner, illegal and ultra vires the powers of the State and the Executive Engineer and is opposed to the provisions of Article 255 of the Constitution.
5. The petitioner further claims to be paying vehiclestax to the State as an operator of stage carriage under the Travancore Cochin Motor Vehicles Act 1950, and in consequence the respondents 1 and 2 are not entitled to collect any other amounts by whatever name it is called. The petitioner also alleges that the imposition and collection of toll amounts to an unreasonable infringement of the petitioner's fundamental right guaranteed under Article 19(1)(g) of the Constitution and that it violates the provisions of Article 301 also.
6. In particular, the petitioner states that Section 12 is void and ultra vires inasmuch as it amounts to an excessive delegated legislation, without in any manner providing the quantum, extent of the toll, nor the maxima and minima of such an imposition. Section 12 is also attacked on the ground that the entire matter is left to the naked and arbitrary discretion of the Government, without in any way attempting to define or lay down any principle or standards which are to guide the State Government before taking action under Section 12. In short, the petitioner urges that there has been a complete surrender or abdication of the legislative function to the executive.
7. The petitioner also avers that to his knowledge, there has been no notification published in the Government Gazette as required under Section 12 of the Act, levying tolls on vehicles using the Palai bridge.
8. On these allegations, the petitioner seeks to have the provisions of Section 12 of the Travancore-Cochin Act XIV/1950, as well as the further proceedings taken in pursuance of the said section by way of levy and collection of the toll on the Palai bridge quashed by appropriate writ or direction.
9. The State has filed three counter-affidavits in this matter on 5-1-61, 6-6-61 and 16-6-61. In the first counter-affidavit, the Assistant Secretary to the Government,Public Works Department states that the high level bridge across the Meenachil river at Palai was constructed at the expense of the erstwhile State of Travancore-Cochin at over 3 lakhs of rupees. The Government issued a notification dated 28th April 1953, under Section 12 of the Travancore-Cochin Vehicles Taxation, Act 1950. An extract of the notification which is published in the Travancore-Cochin Gazette on 28th April 1953 is given in the counter-affidavit.
10. The State also avers that when once a notification under Section 12 of Travancore-Cochin Act XIV of 1950, is published, it attracts the operation of the provisions of the Travancore Tolls Recovery Act -- Act IV/ 1088 and it is the case of the State that the provisions of the Travancore Act IV/1088 provide for the imposition and collection of tolls on bridges, roads &c.; constructed at the cost of the State Government.
11. The State Government further says that the special circumstances which weighed with the Government in authorising the levy of tolls in question were :
(a) Existence of heavy programme of construction of bridges involving heavy outlay;
(b) Substantial amounts spent by the Government for the construction of bridges; and
(c) The need for recovering the capital cost involved in such constructional activities.
12. It is also the case of the State that the levy of toll in the circumstances cannot be attacked or assailed on all or any of the grounds taken by the petitioner in this writ proceeding.
13. The State further avers that toll is a payment taken in respect of some benefit conferred and Section 12 of the Act in question, does not suffer as a piece of excessive delegated legislation, as in the very nature of things, the legislature can only entrust the task of implementation of the provisions of Section 12 to a body like the Government. There is no question of the legislature abdicating its functions in any manner. There is also, according to the State, no violation of the provisions of Article 19(1)(s) or Article 265 or Article 301 of the Constitution. According to the practice obtaining, the toll collection is being auctioned every year and the lessee collects the toll for each year, in pursuance of the notification issued by the Government and therefore, the petitioner is liable to pay toll as specified in the notification dated 28th April 1953, issued under Section 12 of the Travancore-Cochin Act XIV of 1950.
14. In its second counter-affidavit, the State gives certain further facts. It is mentioned that the total amount spent for construction of the bridge is Rs. 4,50,518-40 nP. and immediately after the completion of the bridge, in question, levy of tolls on vehicles using the bridge was enforced with effect from 1st May 1953, as per notification dated 28th April 1953, issued under Section 12 of the Travancore-Cochin Act. The State has realised as on 17-3-61 a sum of Rs. 83,604-25 nP. by way of collection of toll on this bridge for the year 1960-61. It is stated that the amount payable under the contract is Rs. 18,011/-. Even after excluding the annual cost of repairs and maintenance of the bridge, the amount of toll, according to the State, for the year 1960-61 work out only less than 4 per cent return on the capital spent for the construction of the bridge. Therefore, the State avers that in view of the value of the service that a vehicle using the bridge obtains, the toll paid by a vehicleis very small and therefore, the levy of toll is extremely fair and reasonable.
15. It is further stated that the quantum of toll must depend upon the cost of construction of a bridge or road which provides the convenience, the value of the advantage gained by its use and other special circumstances that exist for the levy. In the nature of things, it is impossible for the legislature to fix a standard in such matters, and delegation of power to an authority, like the Government, to fix the rates of tolls, inevitabte and is therefore, not invalid.
16. The State also affirms that the Statute has in this case, laid down the principle and indicated the relevant considerations to guide the Government in fixing the rates of tolls'. Article 301 of the Constitution has no application, as the toll is not a compulsory exaction, but only a consideration received for allowing the use of the bridge or the road as may be.
17. In its third and last counter-affidavit, the State furnishes certain more additional facts in regard to the levy of tolls on the major bridges constructed at the expense of the former State of Travancore-Cochin. It is mentioned that prior to the construction of the Palai bridge in question, a bridge at Kolfakadavu in Mavelikara taluk was constructed in the year 1952 and opened for traffic in August of the same year. The Chief Engineer, Public Works Department, Travancore-Cochin, by his communication dated 12th August 1952, given as Annexure 'A', proposed the levy of toll in respect of the Kollakadavu bridge . According to the Chief Engineer, there is a heavy programme of construction of major bridges and lack of funds is the obstacle for realisation of that programme. Therefore, according to the Chief Engineer, temporary tolls may be levied on all new major bridges in the State for a period sufficient to recoup the expenditure on each bridge and as soon as the expenditure on a particular bridge has been recouped by collection of tolls, the tolls may be discontinued.
18. It is further averred that the Government considered the said proposals of the Chief Engineer contained in Annexure 'A' and passed an order on 22nd August, 1952, giving sanction for the levy of toll on the Koilakadavu bridge from 26-8-1952 in view of :
(a) existence of a programme of construction of bridges involving heavy outlay;
(b) the fact that substantial sum has been spent on the bridge; and
(c) the need to recover the capital cost to implement the policy mentioned in Clause (a).
19. Accordingly, the State issued a notification in respect of the collection of tolls on the Koilakadavu bridge on 22-8-52, more or less in terms identical with the notification issued regarding the collection of tolls over the Palai bridge, in question.
20. It is further stated that in 1953, when the Palai bridge was constructed, at the expense of the Travancore-Cochin State, the latter once again took up the question of levying tolls on bridges pursuant to a letter of the Chief Engineer dated 27-4-1953 filed as Annexure 'B' and is also stated that the Government decided to levy tolls in respect of the Palai bridge and they issued the notification in question on 284-1953.
21. The State also takes the alternative contention that if Section 12 of T. C. Act XIV/1950 is held invalidfor any reason, the notification issued on 28-4-53 may be treated as a notification issued under Section 2 of the Travancore Tolls Recovery Act -- Act IV/1088 as amended by Act III/1098, which is an existing law on the date of the commencement of the Constitution, and the said Act is not liable to be attacked on the ground that it is an excessive piece of delegated legislation in view of the fact that the Act was passed, when the legislative and executive functions were vested in His Highness the Maharaja of Travancore who was then Supreme Head.
22. In annerure 'A' referred to in this counter-affidavit of the State, no doubt, there is a suggestion by the Chiet Engineer, P. W. D. dated 12-8-52 pointing out the desirability of levying a toil in respect of the vehicles using the Koilakadavu bridge. Similarly, in Annexure 'B', which is again a communication dated 27-4-53 from the Chief Engineer, P. W. D. to the Government, it is stated that it is proposed to levy a toll on vehicles passing over the Falai bridge from 1st May 1953, and that it is suggested as one of the temporary tolls to be levied on all new major bridges in the State for a period sufficient to recoup the expenditure incurred on the bridge.
23. In O. P. No. 563 of 1960, which is again filed by another operator of a stage carriage service over the same route, the grounds of attack made on Section 12 of the Travancore-Cochin Act No. XIV/1950 and the notification issued by the State on 28th April 1953, are substantially the same as that made in O. P. 404 of 1960. The petitioner, apart from operating stage carriage services over the route, also claims to use a car for the petitioner concern, and the said car also, along with the other buses, has to pass over the bridge at Palai and make payments by way of tolls. So far as the stage carriage is concerned, the petitioner states that he pays a sum of Rs. 2 per day and he also pays 0.75 nP. for the car as toll under the notification Issued by the Government on 28-4-1953.
24. Apart from the other grounds of attack common to the connected writ petition, the petitioner also states that Section 12 of the Travancore-Cochin. Act XIV/1950 contravenes the provisions of Section 304 of the Constitution and as the previous sanction of the President was not obtained, the law is bad.
25. The State has filed counter-affidavits in this writ petition also where the same stand is taken by them as in the connected writ petition viz. O. P. 404 of 1960. It is not necessary for me to advert to those counter-affidavits filed by the State in this writ petition in any great detail as I have already adverted to them in the other writ petition.
26. Reply-affidavits have also been filed in both the writ petitions and it is not necessary for me to advert to them because they only reiterate the stand taken by the petitioners in their original affidavit. There is an averment that the notification dated 284-1953, cannot in law or fact be treated as a notification under Section 2 of the Travancore Tolls Recovery Act -- Act IV of 1088 as amended by Act III of 1098 and it is also averred that there is nothing to indicate in the notification itself that the State has purported to act under the provisions of the Travancore Tolls Recovery Act. Even otherwise, the petitioners state that the Travancore Tolls Recovery Act does not empower the State to levy tolls and if at all, the said Act only provides the procedure for realisation of tolls. The said Act is conspicuous by the absence of any charging section. Even on the basis that the notification can beconsidered to be one issued under the Travancore Tolls Recovery Act, the said Act also suffers from all the infirmities alleged in the affidavit.
27. Before I set out the specific contentions raised by the learned counsel for the petitioners and the learned Advocate General on behalf of the State, I will advert to the salient features of the Travancore Tolls Recovery Act --Act IV of 1088 as amended by Act III/1098, because an alternative contention has been raised by the State that the notification, which is under attack, can in any event, be considered to be one issued under the provisions of the Travancore Act.
28. The Travancore Toils Recovery Act--Act IV/1088 purports to provide for the recovery of tolls on public roads and bridges. The preamble to the Act states that the Act is enacted, as it was found necessary to define the procedure for the realisation of tolls on public roads and bridges in Travancore.
Section 1 states that the Act is to be called 'The Tolls Recovery Act' and it extends to the whole of Travancore coming into force from 1st Makaram 1083.
Section 2 has been relied upon by the learned Advocate General as giving power to the State Government to levy tolls. On the other hand, Mr. P. Govindan Nair, learned counsel for the petitioner in O. P. No. 404 of 1960, whose contentions have been adopted by Mr. M. A. Joseph, learned counsel for the petitioner in the connected writ petition, has urged that there is absolutely nothing in Section 2 which could be construed as giving any power to the State to levy tolls. It is Mr. Govindan Nair's contention that the whole enactment itself only prescribes the procedure for realisation of tolls if it has been or could be levied by the State under any other power. Therefore, it is better to set out the provisions of Section 2 which runs as follows:
'Procedure to be followed for recovery of tolls : The following procedure shall be observed for the recovery of tolls levied upon any road or bridge which has been or shall hereafter be, made or repaired at the expense of our Government at such rates as Our Government may fix from time to time'.
I do not propose to deal with the points urged regarding this Act at this stage, because that will have to be considered and dealt with by me when dealing with thealternative contention of the learned Advocate General andin that context I will have to consider the scope and nature of the Travancore Act.
Section 3 gives power to the Government to place the collection of tolls under the management of such persons as appear proper to the Government and the liability of such persons employed in the management and collection of tolls is stated to be the same as those employed in the collection of land revenue.
Section 4 again deals with the procedure in case ofnon-payment of tolls. It provides for seizure of the carriages, or animals, on which toll is chargeable and also gives power for bringing the cases before a magistrate who may sell the properties seized for the discharge of the toll and other incidental expenses and the balance amount, if any, is to be returned to the owner of the property, Again it provides for release of the properties seized on tender of the amounts mentioned therein.
Section 5 makes it obligatory on the part of thepolice officers to assist the toll collectors in the execution of the Act.
Section 5-A provides for levying penalty for evasion of payment of tolls.
Section 6 provides for levying penalty on unauthorised persons demanding tolls &c.;
Section 7 provides for a table of tolls to be put near the toll gate or station in the language and in the manner mentioned therein.
Section 8 gives powers to the officers entrusted with the management of the collection of tolls to compound the payment of tolls with the previous sanction of the Government.
Section 9 gives' power to the Government to lease the collection of tolls.
Section 10 provides that when the tolls on any public road or bridge have been leased, the lessee and every person employed by the lessee as his agent for collecting the tolls, are to be considered as persons appointed to collect lolls.
29. I shall also advert to the provisions of the Travancore-Cochin Vehicles Taxation Act, 1950--Act XIV of 1950. The preamble to the Act states that it is expedient to provide for the levy of a tax on vehicles in the State of Travarcore-Cochin.
Section 1 deals with the short title, extent and commencement of the Act.
Section 2 is the definition section.
Section 2(9) defines 'tax' as meaning the lax leviable under Sub-section (1) of Section 3, it is not necessary to note the various other expressions which have also been defined.
Section 3(1) states that the Government may, by notification in the Gazette from time to time, direct that a tax shall be levied on every vehicle using any public road in the State. Section 3(2) provides that the notification issued under Sub-section (1) shall specify the rates at which, and the year, half-year, or the quarter for which the tax shall be levied, provided that the rate shall not exceed the maxima specified in Schedule I in the case of motor vehicles and the maxima specified in Schedule III in the case of vehicles other than Motor Vehicles.
Section 4(1) (a) provides that the tax levied in respect of a motor vehicle in pursuance of a notification issued under Sub-section (1) of Section 3 shall be paid by the registered owner or person having possession or control of the motor vehicle at his choice either auarterly, half-yearly or annually upon a quarterly, half-yearly or annual licence to be taken out by him. Clauses (b), (c) and (d) of Sub-section (1) of Section 4 and Sub-sections (2) and (3) of Section 4 deal with miscellaneous matters like giving power to the State for giving refund of tax or for granting a temporary licence and other incidental matters.
Section 5 deals with payment of tax and issue of licence in respect of vehicles other than motor vehicles. Section 6 makes it obligatory on the part of an owner of vehicle, other than a motor vehicle, to report to the licencing officer the particulars of the vehicle.
Section 7 deals with the exhibition of a licence granted in a conspicuous part of the vehicle and also gives power to any police officer specially authorised, to stop the vehicle for the purpose of satisfying himself that a licence has been duly obtained and it also provides for punishing any person who fails to stop a vehicle when required by a police officer with fine which may extend to Rs. 50/-.
Section 8 provides for penalty for failure to pay tax.
Section 9 again provides for recovery of tax as an arrear of land revenue.
Section 10 provides for payment of compensation from the profits of the tax collected to the local authority which was levying toll or tax or both in respect of any vehicle.
Section 11 gives power to the Government to exempt or show concession by way of reduction or modification of the tax payable by any person or in respect of any vehicle using a specified route.
Section 12, which is the target of attack in this proceeding, and on the basis of which the notification, in question, is stated to have been issued by the State, runs as follows :
'Establishment and levy of tolls in special cases'.
'Where Government are satisfied that special circumstances exist for the levy of toll on any road or bridge they may subject to such conditions as they may deem fit to impose direct by notification in the gazette the levy ot tolls on vehicles using such road or bridge and thereupon the provisions of the law relating to tolls for the time being in force shall apply thereto.'
Section 13 provides for protection in respect of acts done in good faith.
Section 14 provides that no local authority shall, after the, commencement of the Act, levy any toll or tax in respect of any vehicle or collect any such toll or tax and it also gives power to the State Government to exempt any local authority from the operation of the said section.
Section 15 authorises any magistrate to try any offence punishable under the Act and Section 16 provides for the procedure to be adopted in the cases mentioned therein.
Section 17(1) gives power to the Government to make rules for carrying out all or any of the purposes of the Act and Sub-section (2) therein is to the effect that any such rule may also provide that a breach thereof shall be punishable with fine which may extend to fifty rupees.
Section 18 which was the subject of consideration by a Division Bench of this Court is as follows :
'Power of Government to amend Schedule I, II or III :
(1) Government may by notification in the Gazette amend, alter, add to, or cancel in part or the whole of Schedule I, II or Ml appended to this Act.
(2) All references in this Act to Schedule I or Schedule II or Schedule III shall be construed as referring to such Schedule as for the time being amended in exercise of the powers conferred by Sub-section (1).'
Section 19 repeals the two enactments referred to therein.
Schedule I of the Act enumerates the classes of motor vehicles, as also the maximum quarterly tax leviable in respect of (a) vehicles fitted with pneumatic tyres; and (b) other vehicles.
Schedule II, dealing with temporary licence, again gives the classes of vehicles as well as the maximum tax for vehicles (a) fitted with pneumatic tyres and (b) other vehicles. Under these two heads again, there is a subdivision providing the rate according to (a) period not exceeding 7 days; and (b) period exceeding 7 days but not exceeding 30 days.
Schedule III gives the classes of vehicles, other than motor vehicles, and the maximum annual tax that couldbe levied in respect of such vehicles. It may be mentioned at this stage that though Sub-section (1) and (2) of Section 3 gave power to the Government to direct a tax being levied and also gave power to the Government to specify the rate at which the tax shall be levied, the proviso to Sub-section (2) of Section 3 has clearly stated that the rate shall not exceed the maxima specified in Schedule I in the case of motor vehicles and the maxima specified in Schedule III in the case of vehicles other than motor vehicles. Again Clause (c) of Sub-section (1) of Section 4 giving power to the Government to grant temporary licence for a period not exceeding thirty days at a time in respect of motor vehicles provides that the tax which could be so levied and collected shall not exceed the maxima specified in Schedule II. The above is broadly the scheme ot the Travancore-Cochin Vehicles Taxation Act 1950 --Act XIV/1950.
30. The notification issued by the Travancore-Cochin Government under Section 12 of the Travancore-Cochin Vehicles Taxation Act, 1950 Act XIV/1950 and which is under attack is as follows :
'TRAVANCORE-COCHIN VEHICLES TAXATION ACT, 1950
(XIV of 1950)
Directing that Tolls on vehicles shall be levied on the newly constructed Bridge at Palai.
Notification No. PW5-4771/33/PWC dated 28th April 1953, published in the Gazette dated 28th April 1953 -- Part I. Page 957.
In exercise of the powers conferred by Section 12 ot the Travancore-Cochin Vehicles Taxation Act, 1950 (XIV of 1950), Government are pleased to direct that tolls on vehicles shall be levied on the newly constructed bridge across Meenachil river at Palai on Ponkunnam-Lalam road at such rates and subject to such conditions as are mentioned in the schedule hereto annexed from the 1st of May 1953, Government being satisfied that special circumstances exist for the levy of the said tolls.
Schedule of Maximum rates that may becharged at the bridge toll at the Bridge across Meenachil river at paiai, onPonkunnam-Lalam Road.
Toll rate (each)
Annual compounding fees under clause 6 of the Rules.
Traction Engine & Tractors ...
(a) Do with waggon or waggons attached. ...
(b) Waggon only (each). ...
Large buses 14 seats and above.
Small buses below 14 seats. ...
Six wheeled units of about 2 tons capacity...
Passenger & Delivery vans.
Heavy 4-tyred lorries. .
Six tyred lorries.
Motor cars. ...
10.Other Four-wheeled vehicles. ......0-4-05-4-011.Two.wheeled vehicles (other than ordinary cycles). ....0-2-02-10-012.Rickshaw or push-push. ....0-2-02-10-013.Motor rickshaw....0-2-02-10-014.Motor Cycle without side car. ......0-2-02-10-015.Motor Cycle with side car. ....0-3-03-15-016.Ordinary cycles.... NilNil.Note: (1) Lorries of 1 ton or less chassis weight will be classified as light lorries and those above 1 ton as heavy lorries.
(2) Chassis of a motor vehicle (without body) will be charged at corresponding vehicle rates.
1. No toll to be levied on
(a) All State cars.
(b) Vehicles belonging to His Highness the Raj Pramukh.
(c) Vehicles belonging to the P. W. D. Gazetted Officers and Section Officers within their jurisdiction.
(d) All vehicles and machinery belonging to the T. C. Government excluding those of the State Transport Department.
(e) All vehicles belonging to the Indian or International Red Cross.
(f) All vehicles, belonging to the Defence Department of the Government of India.
(g) All vehicles belonging to all Foreign Embassies of the Government of India.
2. The levy of tolls at rates specified in the schedule of rates appended herewith is for a day from 6 A. M. on any one day to 6 A. M. on the next day and no toll shall be levied more than once on any vehicle passing over the bridge during the course of a day reckoned as above.
3. Proper notice boards, warning signals and lights shall be maintained at a distance of about 100 yards of the bridge on either side.
4. A large notice board setting forth the schedule of maximum rates shall also be put up near the toll gate which may be fixed at either end of the bridge.
5. A toll pass in the following form shall be issued Immediately on receipt of the toll.
BRIDGE TOLL PASS
Name of Bridge
Description of the vehicle
Distinguishing number of the vehicle or name of driver.
Name of toll contractor, or other collecting agency.
Date of issue:
Signature of Agent receiving the toll:
N. B. This pass will be issued when the toll is paidand is valid from 6 A. M. on any one day to 6A. M. on the next day.
6. The Departmental officer not below the rank of a Sub Division Officer of the P. W. D. shall on payment of one annual compounding fees specified in the schedule of rates hereto annexed issue an annual toll pass to any bona fide Inhabitant to enable the vehicle maintained solely for his private use to pass through the bridge toll gate, provided the Inhabitant produces a certificate from the Tahsildar of the taluk in which the inhabitant resides, to the effect thatthe inhabitant is residing within 3 radious of 2 miles from the bridge, and that the vehicle with respect of which the pass is applied for is maintained or kept solely for his private use. Such a pass will be in force from the date of issue to the last day of December following the date of issue and will be non-transferable. No refund shall be made in the event of a person disposing of his vehicle during that period, The number and year of the compounding pass issued for vehicles shall be painted in a conspicuous place on the vehicle. No such toll pass shall be issued for vehicles plying for hire or commercial purposes. The expression 'Inhabitant' in this clause does not include any partnership firm or company. The expression 'private use' in this clause does not include use for trade or business-purposes.
7. Additional rules if found necessary, shall be issued by Government and duly published in the Gazette'.
I have extracted the notification in full so that it gives a complete picture of the various matters provided in the notification. I may also state that the grievance of the petitioner in O. P. No. 404 of 1960 is that his bus has to !pay daily a toil of Rs. 2/- coming under large buses', '14 seats and above' being entry No. 2 in the schedule to the Notification. Similarly, the grievance of the petitioner in O. P. 563/60 is that his client has to pay not only toll for each of his buses at Rs. 2/- per day under entry No. 2 referred to above, but has also to pay for his motor car Re. 0. 75 nP. daily under entry No. 9 of the schedule.
31. I may also state that though the petitioners have alleged in their petitions that there has been no notification made in the gazette by the State Government as required under Section 12 of the Travancore-Cochin Vehicles Taxation Act, 1950, this contention cannot be accepted, because, as stated by the State in its counter-affidavit, the notification above referred to has been published in the Travancore-Cochin Government Gazette at pages 957 and 958 of part I dated 28th April 1953. Apart from the question of the validity of the section itself or the notification issued under that section, it is now clear that actually there has been a publication of the notification, in question, in the State Gazette as mentioned earlier.
32. It can also be stated that though the particular period during which the collection was sought to be made by way of tolls in these writ petitions has expired, the learned Advocate-General has stated that the collections are being continued even for the subsequent periods on the basis of Section 12 of the Travancore-Cochin Act and the notification referred to earlier. Therefore, the validity of the section, as well as the notification, which are both attacked, will have to be investigated.
33. The main contention of Mr. P. Govindan Nair, learned counsel for the petitioner in O. P. 404/60 who has advanced the leading arguments in these two writ petitions, is that Section 12 of the Travancore-Cochin Vehicles Taxation Act, 1950 empowering the Government to levy tolls on vehicles using any road or bridge, amounts to a piece of excessive delegated legislation. The learned counsel also contended that the Act does not provide the quantum and extent of the toll, nor the maxima or minima of the imposition that can be levied by the Government and that the legislature has left those matters to the naked, uncontrolled and arbitrary discretion of the Government. The legislature has not defined nor has it laid down, nor even indicated what could be called 'special circumstances' as contemplated under Section 12 of the Travancore-Cochin Act. Nor has the legislature laid down any legislativepolicy or any rule of guidance which should be taken into account by the Government to come to a decision as to existence of 'special circumstances.'
It is also urged that the legislature has laid down no policy, settled no principle, furnished no standard, nor has the legislature prescribed any limit to the levy or to the rate of the levy that could be imposed by the State. That is, in short, Mr. P. Govindan Nair urged that there has been a complete surrender or abdication of the legislative functions to the executive and therefore the learned counsel urged that Section 12 of the Travancore-Cochin Act and also the notification under attack, will have both to be struck down. The learned counsel quite naturally relied upon certain decisions of the Supreme Court laying down the principles to be taken into account in considering whether there has been an abdication of legislative powers to the executive or whether the particular piece of legislation has, while indicating the policy and principles, left it to the executive only to fill in details.
34. Mr. P. P. Govindan Nair, drew my attention in particular to the provisions of Section 3 as also the various matters mentioned in Schedules I and II of the Travancore-Cochin Act. Though the legislature in that section has given power to the Government to direct the levy of a tax on vehicles using a public road in the State and though power also is given to specify the rate of taxation,nevertheless, under the proviso to Sub-section (2) ofsection 3, the legislature has clearly put a restriction on the powers of the Government by specifically stating that the rate of taxation to be imposed by the Stats shall not exceed the maxima specified in Schedule I in the case of motor vehicles and the maxima specified in Schedule III in the case of vehicles other than motor vehicles. Similarly, Mr. P. Govindan Hair also relied upon the provisions of Clause (c) of Sub-section (1) of Section 4 of the Travancore-Cochin Act, which, while giving power to the Government to grant temporary licence for a periodnot exceeding thirty days on payment of the tax prescribed by the Government, has also restricted the powerof the Government by indicating that the tax for issue of a temporary licence shall not exceed the maxima specified in Schedule II; whereas on the other hand, looking at Section 12, the learned counsel, urged that apart from the fact that there is no principle or guidance as to what are the factors to be considered for coming to the conclusion about the existence of 'special circumstances', the legislature has also nowhere placed any restriction on the power of the Government regarding the rate at which the tolls can be levied. There is no schedule provided in the Act prescribing maximum rate of tolls that can be levied under Section 12 in respect of motor vehicles and vehicles other than motor vehicles, as the legislature has thought fit to provide in respect of taxation in Schedules I, II, and III of the Travancore-Cochin Act.
35. The learned counsel also relied upon the decision of a Division Bench of this Court of Joseph and Velu Pillai, JJ., reported in Damodaran v. State, 1959 Ker LT 829 : (AIR 1960 Ker 58) regarding a notification issued by the Government under Section 18 of the Travancore-Cochin Act XIV of 1950. Section 18(1) of the Act Rave power to the Government to amend, alter, add to, or cancel in part or the whole of Schedule I, II or III by notification in the Gazette and Sub-section (2) of Section 18 provided that all references in the Act to Schedule I, IIor III shall be construed as referring to such scheduleas for the time being amended in exercise of the powers conferred by Sub-section (1). On 24th September 1957, the State Government, by virtue of powers vested under Section 18 of the Act, issued a notification in effect enhancing the maxima specified in Schedules I and III of the Act substantially for certain classes of vehicles and also to fix the rates for such vehicles.
The said notification was attacked before the learned Judges on the main ground that the delegation of powers under Section 18(1) of the Act, amounted to excessive delegation. This contention was accepted by the learned Judges and they have held that the delegation under Section 18(1) of the Act must be struck down and accordingly, the impugned notification there was also declared ultra vires the powers of the Government. The learned counsel Mr. P. Govindan Nair urged that the same principles laid down by the learned Judges applied to the case on hand and therefore, it must be held that the delegation under Section 12 goes beyond permissible limits and as such, the notification in this case under attack, will have also to be held ultra vires the powers of the Government.
36. I am not at present dealing with some of the other contentions raised, based upon Articles 301 and 304 of the Constitution. Nor am I now adverting to his contention that the notification cannot be sustained even on the basis of the Travancore Act.
37. The learned Advocate-General, on the other hand, urged that there is no question of any excessive delegation in the circumstances of this case. In the very nature of things, the learned Advocate-General urged that the legislature can only entrust the task of implementation of the provisions of Section 12 of the Travancore-Cochin Act to a body like the Government and that an executive authority like the Government may be trusted to act with the sense of propriety and fairness. It is not the case of the petitioners that there has been an arbitrary exercise of power by the State or that the rate of levy itself is unconscionably high. The learned Advocate-General also urged that the statute has laid down the principle and also enacted, the relevant provisions to guide the Government in fixing the rate.
38. The various matters mentioned in the three counter-affidavits filed on behalf of the State, will clearly show that there is a heavy programme for construction of major bridges and that the policy of the State is to recoup the expenditure on particular bridges, especially those constructed at an expense of over 3 lakhs of rupees. The State Government has taken into account the various aspects of the matter namely the expenses incurred by them for constructing the bridge, the annual cost for repairs and maintenance of the bridge as also the approximate return that they expect on the capital spent for the construction of the bridge in question. It is after e consideration of all these aspects, that the Government have satisfied themselves that special circumstances exist in this case justifying levy of tolls and that is why they have issued the notification undar Section 12 of the Travancore-Cochin Act. The toll is paid by the vehicle as a consideration for the value of the service that a vehicle obtains, in using a bridge, and the rate also is fairly negligible being extremely fair and reasonable.
39. The learned Advocate General again referred to certain decisions of the Supreme Court to show that, under such circumstances, it cannot be stated that there has been an excessive delegation, nor can it be held thatthere has been abdication of legislative functions to the executive.
40. In particular, the learned Advocate General stressed that the decision of the Supreme Court in Banarsi Das v. State of M. P., AIR 1958 SC 909, though adverted to by the learned Judges of this court in their decision in 1959 Ker LT 829: (AIR 1960 Ker 58), has not been properly appreciated. The learned Advocate General further stressed that the decision of the Supreme Court in Edward Mills Co. v. State of Ajmer, (S) AIR 1955 S C 25, wherein, the Government's power to alter a schedule, by issuing a necessary notification wider the Minimum Wages Act was recognised, has not been even placed before the learned Judges who decided 1959 Ker LT 829: (AIR 1960 Ker 58). That decision according to the learned Advocate General, of the Supreme Court clearly concludes the position as against the petitioner. The learned Advocate General has also referred to certain other decisions in support of his contention that the delegation in this case is within reasonable limits and cannot certainly be considered to be excessive.
41. I will now advert to the decisions relied uponby Mr. P. Govindan Nair, learned counsel for the petitioner and also the learned Advocate General for theState.
42. No doubt the nature of the delegation under Section 18 (1) of the Travancore-Cochin Vehicles Taxation Act, 1950 was the subject of consideration by my learned brothers Joseph and Velu Piliai, JJ. In 1959 Ker LT 829 : (AIR 1960 Ker 58). The learned Judges have also, if I may say so with respect, considered the case law on the subject of excessive delegation. No doubt, as the learned Advocate General pointed out, the learned Judges have distinguished the decision of the Supreme Court in AIR 1958 SC 909. The learned Advocate General is also well-founded in his contention that the decision of the Supreme Court in (S) AIR 1955 S C 25, has not been adverted to by the learned Judges.
43. The learned Judges in 1959 Ker LT 829 : (AIR 1960 Ker 58), had to consider the nature of the delegation contained in Section 18 of the Travancore-Cochin Act read along with the provisions of Section 3 of the Act. The question that arises before me is entirely different and therefore, I have to consider the nature of the attack levelled against Section 12 and the notification Issued thereunder, in the light of the contentions urged before me.
44. So far as the contention of the learned Advocate General that the executive authority like the Government can be trusted to act reasonably and fairly when exercising powers under Section 12 of the Act is concerned, in my view, that contention can be straightaway dealt with by quoting the observations of Chief Justice Evans in Panama Refining Co. v. Ryan, (1934) 293 U S 388 : 79 law Ed 446. At page 459 the learned Chief Justice observes :
' . . . . . The question whether delegation of legislative power by the Constitution is permitted, is not answered by the argument, that it should be assumed, that the President has acted, and will act for what he believes to be the public good. The point is not one of motives but of constitutional authority, for which the best of motives is not a substitute.'
45. The principle applicable in the circumstances, has been stated by the Supreme Court in In re Article 143, Con-stitution of India etc., AIR 1951 SC 332. At page 400 His Lordship Mr. Justice Mukherjee observes:
' .... The essential legislative function consists inthe determination or choosing of the legislative policy andof formally enacting that policy into a binding rule of conduct. It is open to the legislature to formulate the policyas broadly and with as little or as much details as itthinks proper and it may delegate the rest of the legislative work to a subordinate authority who will work out thedetail within the frame-work of that policy.
So long as a policy is laid down and a standard established by statute no constitutional delegation of legislative power is involved in leaving to selected instrumentalities the making of subordinate rules within prescribedlimits and the determination of facts to which the legislation is to apply'.
46. In Shanmugha Oil Mills v. Coimbatore Market Committee, AIR 1960 Mad 160, Mr. Justice Ramachandra Iyer (as he then was) had to consider the question as to whether there has been an excessive delegation of legislative authority under Section 11 (1) of the Madras Commercial Crops Markets Act -- Act 20 of 1933 as amended by Act 33 of 1955. Under the said section, power was given to the Market Committee to levy a cess by way of sales tax on any commercial crop, bought and sold in the notified area at such rates as the State Government may, by notification determine. The learned Judge, after a consideration of the various decisions laying down the principles applicable in such cases, has come to the conclusion, that under the said section, as it stood at the relevant time, there was no maximum or minimum fixed and that there is no indication in the enactment by way of guidance to the assessing authority and that there is no power to control the assessment that may be levied by the executive Government by virtue of the authority grant-'ed to it under Section 11(1) of the Act.
47. In Hamdard Dawakhana v. Union of India, AIR 1960 SC 554, the validity of one of the sections namely, Section 3 (d) In the Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954 -- Act 21 of 1954 was considered by the Supreme Court. Section 3 (d) of the Act which was considered by their Lordships was as follows :Section 3 :
'Subject to the provisions of this Act, no personshall take any part in the publication of any advertisementreferring to any drug in terms which suggest or are calculated to lead to the use of that drug for -----
(d) the diagnosis, cure mitigation, treatment or prevention of any venereal disease or any other disease or condition which may be specified in rules made under this Act.'
Under Section 16 of the said Act, power was given to the Central Government by notification in the official Gazette to make rules for carrying out the purposes of the Act. Sub-section (2) of Section 16 gave power to the Central Government to make rules to specify any disease or condition to which the provisions of Section 3 shall apply. It was contended before the Supreme Court that the words 'or any other disease or condition which may be specified in the rules made under this Act' in Clause (d) of Section 3 of the Act are delegated legislation and do not lay down any criteria or proper standards and that it surrenders unguided and uncanalised power to the executive to add diseases in the schedule. His Lordship Mr. JusticeKapur, who spoke for the Court, dealing with this contention, observes at page 566 as follows :
'The distinction between conditional legislation and delegated legislation is this that in the former the delegate's power is that of determining when a legislative declared rule of conduct shall become effective; Hampton and Co. v. United States, (1927) 276 US 394, and the latter involves delegation of rule making power which constitutionally may be exercised by the administrative agent. This means that the legislature having laid down the broad principles of its policy in the legislation can then leave the details to be supplied by the administrative authority. In other words by delegated legislation the delegate completes the legislation by supplying details within the limits prescribed by the statute and in the case of conditional legislation the power of legislation is exercised by thelegislature conditionally leaving to the discretion of an external authority the time and manner of carrying its legislation into effect as also the determination of the area to which it is to extend ..... thuswhen the delegate is given the power of making rules and regulations in order to fill in the details to carry out andsubserve the purposes of the legislation the manner in which the requirements of the statute are to be met and the rights therein created to be enjoyed it is an exercise of delegated legislation.'
The above observations, if I may say so with respect, clearly indicate that a legislature cannot delegate its power to make a law. The legislature must lay down definite boundaries within which powers of administrative authority are exercisable and the delegation should not be so indefinite as to amount to an abdication of legislative function.
48. Their Lordships after considering the scheme of the Act, came to the conclusion that 'the delegation is excessive' and observe at page 568 as follows :
'The question for decision then is, is the delegation constitutional in that the administrative authority has teen supplied with proper guidance. In our view, the words impugned are vague. Parliament has established no criteria, no standards and has not prescribed any principle on Which a particular disease or condition is to be specified in the schedule. It is not stated that facts or circumstances are to be taken into consideration to include a particular condition or disease. The power of specifying diseases and conditions as given in Section 3 (d) must therefore be held to be going beyond permissible boundaries of valid delegation. As a consequence the schedule in the rules must be struck down. But that would not affect such conditions and diseases which properly fall within the four clauses of Section 3 excluding the portion of Clause (d) which has been declared to be unconstitutional.'
49. In fact, Mr. P. Govindan Hair, learned counsel for the petitioner places considerable reliance on this passage extracted above to show that in the case before me, the words 'special circumstances' in Section 12 of the Travancore-Cochin Act are vague and that the legislature has established no criteria, no standards and has not prescribed any principle on which the State Government can come to the conclusion that 'special circumstances' exist and therefore, the power given to the State Government to satisfy itself about the 'special circumstances' for the levy of a toll must be considered to be an excessive delegation going beyond permissible limits.
50. The learned Advocate General in particular, relied upon 3 decisions of the Supreme Court namely, in (S) AIR 1955 SC 25; AIR 1958 SC 909 and Vasanlal Maganbhai v. State of Bombay, AIR 1961 SC 4.
51. In (S) AIR 1955 SC 25, the Supreme Court had to consider a notification issued under Section 27 of the Minimum Wages Act, 1948 Central Act XI of 1948. The schedule attached to the Act gave a list of employment and it is in respect to the scheduled employments that minimum wages had to be fixed. Under Section 27 of the Act power was given to the appropriate Government to add to either part of the schedule any employment in respect to which it is of opinion that minimum wages should be fixed, by giving notification in a particular manner and thereupon the schedule shall, in its application to the State, be deemed to be amended accordingly.
52. The contention raised was that the Minimum Wages Act nowhere formulates a legislative policy according to which an employment shall be chosen for being included in the schedule and that there are no principles, prescribed and no standards laid down which could furnish an intelligent guidance to the administrative authority in making the selection. The attack was that the matter has been left entirely to the discretion of the appropriate Government which can amend the schedule in any manner it likes and therefore, it was argued that the delegation of power virtually amounts to a surrender by the legislature of its essential legislative function and as such, Section 27 is invalid.
53. Mr. Justice Mukherjee, who delivered the judgment on behalf of the court, expresses the view that the primary duty of law making has to be discharged by the legislature itself; but delegation may be resorted to as a subsidiary or ancillary measure. The learned Judge, dealing with the attack made against Section 27 in the manner referred to earlier, after a consideration of the various provisions of the Act and the policy underlying the same, rejects the contention in the following words at page 32 :
'The legislative policy is apparent on the face of the present enactment. What it aims at, is the statutory fixation of minimum wages with a view to obviate the chance of exploitation of labour. The legislature undoubtedly intended to apply this Act not to all industries but to those industries only where by reason of unorganised labour or want of proper arrangements for effective regulation of wages or for other causes the wages of labourers in a particular industry were very low. It is with an eye to these facts that the list of trades has been drawn up in the schedule attached to the Act but the list is not an exhaustive one and it is the policy of the legislature not to lay down at once and for all time, to which industries the Act should be applied. Conditions of labour vary under different circumstances and from State to State and the expediency of including a particular trade or Industry within the schedule depends upon a variety of facts which are by no means uniform and which can best be ascertained by the person who is placed in charge of the administration of a particular State. It is to carry out effectively the purpose of this enactment that power has been given to the 'appropriate Government' to decide, with reference 'to local conditions, whether it is desirable that minimum wages should be fixed in regard to a particular trade or industry which is not already included in the list. We do not think that in enacting Section 27 the legislature has in any way stripped itself of its essential powersor assigned to the administrative authority anything but an accessory or subordinate power which was deemed necessary to carry out the purpose and the policy of the Act. The second contention of Mr. Chatterjee cannot therefore succeed.'
From the observations extracted above it will be seen that the Supreme Court was of the opinion that the legislative policy underlying the Minimum Wages Act was apparent on the face of the statute itself and therefore, in pursuance of that policy a delegation of the power mentioned in Section 27 of the Act was valid, as it could not be stated that the legislature has in any way, stripped itself of its essential powers.
54. No doubt, the learned Advocate General has placed considerable reliance upon this judgment of the Supreme Court and he also referred to the fact that this decision has not been considered by the learned Judges who gave the decision in 1959 Ker LT 829: (AIR 1960 Ker 58). In fact, the learned Advocate General urged that the provisions of Section 18 of the Travancore-Cochin Vehicles Taxation Act, 1950 are more or less identical with the provisions contained in Section 27 of the Minimum Wages Act which the learned Judges of the Supreme Court had to construe. As I mentioned earlier it is not necessary at all for me to consider the Division Bench judgment of this Court referred to earlier, as it was given on a comparison of the provisions of Sections 3 and 18 of the Act in question.
55. In my view, the decision of the Supreme Court in (S) AIR 1955 SC 25 cannot assist the learned Advocate General, because the Supreme Court was able to find that the legislative policy namely of statutory fixation of minimum wages with a view to obviate the chance of exploitation of labour, was apparent on the face of the enactment.
56. The next decision referred to by the learned Advocate General, is the judgment of Supreme Court in AIR 1958 SC 909. In that decision, the Supreme Court had to consider the validity of a notification issued by the State Government under Section 6(2) of the relevant Act amending the schedule to the C. P. and Berar Sales Tax Act -- Act 21/1947. The attack was that the power given to the State Government to amend the schedule, amounted to an unconstitutional delegation of legislative power. In rejecting this contention Mr. Justice T. L. Venkatarama Iyer delivering the judgment on behalf of the court, observes at page 913 as follows:
'Now, the authorities are clear that it is not unconstitutional for the legislature to leave it to the executive to determine details relating to the working of taxation laws, such as the selection of persons on whom the tax is to be laid, the rates at which it is to be charged in respect of different classes of goods, and the like'.
It is this particular passage that is very much relied upon by the learned Advocate General in support of his contention that in this case, the legislature, leaving to the State Government to determine regarding details of special circumstances for levying of tolls and deciding the rate at which the tolls are to be collected, cannot be considered to be unconstitutional. But in my view, those observations referred to above will not at all assist the learned Advocate General because in the earlier portion of the judgment, the learned Judge has already expressed the view that the amending of a schedule in that case does not in any may alter the essential feature of the law, nor does it involve any change of policy as enunciated in the Act. Therefore, this decision, in my view, again emphasises the positionthat there must be a policy and guidance to be found is the enactment itself.
57. The last decision relied upon by the learned Advocate General is the decision of the Supreme Court reported in AIR 1961 SC 4. The learned Judges had to consider the vires of Section 6 (2) of the Bombay Tenancy and Agricultural Lands Act -- Act 67 of 1948. Under the provisions of the said Section, the Government had issued a notification fixing the maximum rent payable by certain tenants in possession of lands specified in the schedule to the notification. Section 6(2) of the said Act provided that the Provincial Government may, by notification in the official Gazette fix a lower rate of the maximum rent payable by the tenants of lands situate in any particular area or may fix such rate on any other suitable basis as it thinks fit. This provision was attacked before their Lordships on the ground that it suffers from the vice of excessive delegation. Again, the contortion was that the power delegated to the Provincial Government under Section 6(2) was Unfettered and uncanalised and there was no guidance afforded for exercising the said power. There was also an attack that while giving such wide power to the state Government, the delegate, in fixing the lower rate of maximum rent, the legislature has not prescribed any minimum as it should have. Mr. Justice Gajendragadkar delivering the majority judgment of the court, considered the various provisions of the statute and ultimately rejected the contention, because the legislative policy has been very clearly expressed in the relevant provisions of the Act and the legislature has also indicated in the statute the factors for determining reasonable rent. In view of this, the Supreme Court held that it is difficult to accept the argument that the Provincial Government has been given uncanalised or unfettered power by Section 6(2) to do what it likes without any guidance. The learned Judge states the principle applicable in such matters at page 7:
'It is now well established by the decisions of this court that the power of delegation is a constituent element of the legislative power as a whole, and that in modern times when the legislatures enact laws to meet the challenge of the complex socio-economic problems, they often find it convenient and necessary to delegate subsidiary or ancillary powers to delegate of their choice for carrying out the policy laid down by their Acts. The extent to which such delegation is permissible is also now well settled. The Legislature cannot delegate its essential legislative function in any case. It must lay down the legislative policy and principle, and must afford guidance for carrying out the said policy before it delegates its subsidiary powers in that behalf. As has been observed by Mahajan, C. J. In Harishankar Bagla v. State of Madhya Pradesh, AIR 1954 SC 465 at p. 468,
'the legislature cannot delegate its function of laying down legislative policy in respect of a measure and its formulation as a rule of conduct. The Legislature must declare the policy of the law and the legal principles which are to control any given cases, and must provide a standard to guide the officials or the body in power to execute the law'.
In dealing with the challenge to the vires of any statute on the ground of excessive delegation it is, therefore, necessary to enquire whether the impugned delegation involves the delegation of an essential legislative function or power and whether the Legislature has enunciated its policy and principle and given guidance to the delegateor not As the decision in Bagla's case, AIR 1954 SC 455shows, in applying this test this court has taken into account the statements in the preamble to the Act, and if the said statements afford a satisfactory basis lor holding that the legislative policy and principle has been enunciated with sufficient accuracy and clarity the preamble itself has been held to satisfy the requirements of the relevant tests. In every case it would be necessary to consider the relevant provisions of the Act in relation to the delegation made and the question as to whether the delegation is intra vires or not will have to be decided by the application of the relevant tests.'
His Lordship also adverts to the earlier decision of the Supreme Court in (S) AIR 1955 SC 25 where the validity of the provisions of Section 27 of the Minimum Wages Act was upheld.
58. After a consideration of the various provisionsof the statute which was before the Supreme Court, Mr. Gajendragadkar again comes to the conclusion that the material provisions of the Act in question aim at, givingrelief to the tenants by fixing the maximum rent payableby them and by providing for a speedy machinery to consider their complaints about the unreasonableness of therent claimed from them by their respective landlords andobserves at page 8:--
'It is in the light of this policy of the Act which iswrit large on the face of these provisions that we haveto consider, the question as to whether the delegation madeby Section 6(2) suffers from the infirmity of excessive delegation.'
The learned Judge ultimately came to the conclusion, as I mentioned earlier, that the legislative policy has been clearly expressed in the statute and also the various factors for determining reasonable rent have also been indicated in the statute itself and on that ground, Section 6(2)does not suffer from the infirmity of excessive delegation.
59. The principles laid down by the various decisions of the Supreme Court referred to above, come to this that essential powers of legislation cannot be delegated. The legislature must declare the policy of the law and the legal principles which are to control any given case and must also provide a standard to guide the officials or the body in power to execute the law. The legislature cannot certainly strip itself of its essential functions and vest the same on an extraneous authority. The primary duty of law-making has to be discharged by the legislature itself, but there can be a delegation resorted to as a subsidiary or ancillary measure. The legislature cannot abdicate its functions in favour of another.
60. On a consideration of the various principles deducible from the decisions of the Supreme Court, in my view, in this case, it should be held that the provisions of Section 12 of the Travancore-Cochin Vehicles Taxation Act 1950 -- Act XIV of 1950 should be considered as amounting to excessive delegation of legislative power and as such,it fallows that the notification dated 28th April, 1953 insued in exercise of the powers conferred under Section 12 of the Act is also invalid.
61. I have already adverted to the various provisionsof the Travancore-Cochin Act and I have not been able to and any policy or guiding principles in the Act which the State has to take into consideration before arriving at a decision regarding the 'special circumstances,' for the purpose of levying a toll. There is also no guidance or standard furnished in the Act for enabling the State Gov-ernment to fix the rates of such levy of tolls. In the absence of any legislative indication in the Act regarding any policy to govern the Government before taking action under Section 12 or placing any limits of assessment for the guidance of the assessing authority in the matter offixing of rates of tolls, the provisions of Section 12 of the Travancore-Cochin Act amount to excessive delegation of legislative power. In those cases of the Supreme Court relied upon by the learned Advocate General, where the Supreme Court has held a particular provision of the statute as not amounting to excessive delegation of legislativepower, their Lordships were satisfied that there is a policy or scheme or guidance indicated in the Act itself to enable the State Government to take action in a particular manner. No such guidance or policy is to be discernible anywhere in the particular statute before me.
The Act, no doubt, is enacted because it is considered expedient to provide for the levy of a tax on vehicles in the Travancore-Cochin State and the definition of 'tax', I have already shown, means the tax leviable under Sub-section (1) of Section 3. Section 3, which is the charging section, prescribes a limit regarding the rate of tax that can be levied by the State Government. It is clearly stated in the proviso to Sub-section (2) of Section 3 that the rate of tax that is levied by the State shall not exceed the maxima in Schedule I in the case of motor vehicles and the maxima specified in Schedule III in the case of other Vehicles. Similarly, a restriction is placed upon the powers of the State Government to charge by way of tax in granting a temporary licence under Clause (c) of Sub-section (1) of Section 4 and the maxima again is specified in Schedule II. That means that the legislature has indicated that the object of the Act is to levy tax on vehicles and the State Government is given power under Section 3 to direct the levy of a tax by issuing a notification and also the power is given to specify the rate of tax. But the legislature has placed a restriction on the powers of the State Government by specifically providing that the rate shall not exceed the rates mentioned in Schedules I, II and III.
62. But coming to Section 12 of the Act as I mentioned earlier, there is absolutely no indication anywhere in theAct as to what circumstances can be considered to be'special circumstances' under Section 12 justifying thelevy of a toll, The decision as to what will constitute a'special circumstance' under Section 12 for levy of a toll,has been completely left to the sole and exclusive discretion of the Government without any guidance or restrictionwhatsoever. Again, the legislature has not specified onWhat basis the toll is to be levied on the various vehiclesusing the bridge or road. The maximum levy, that couldbe made under the section has not in any way been indicated by the legislature. As it is, it is open to the Government to treat any circumstance as a 'special circumstanceand the only requirement is that the Government shouldbe so satisfied. Further, it is also open to the Governmentto levy toll on any road or bridge as they may think necessary. All these go to show that the attack made on Section 12 that it amounts to an excessive delegation of legislative power, is certainly well-founded. This case comessquarely within the scope of the decision in AIR 1960SC 554.
63. Before closing the discussion on this part of the case, I may also refer to the recent judgment of my lord the Chief Justice sitting with Mr. Justice Madhavan Nair, reported in Hassan v. Sales Tax Officer, Manjeri,1961 Ker LJ 307 where the learned Chief Justice has also considered the question of excessive delegation. But in the particular case on hand, the learned Judges were able to find that the legislature has declared the policy and the legal principle which is to control the standard to guide the executive. Therefore, the learned Judges came to the conclusion that the vice of excessive delegation of legislative power beyond the limits permissible in law, does not exist in the particular provision they had to deal with.
64. The learned Advocate General next attempted to support the notification issued on 28th April 1953 as one coming within the powers vested in the Government under the provisions of Travancore Tolls Recovery Act -- Act IV/1088. In particular, the learned Advocate-General relied upon the provisions of Section 2 of the said Act, which I have already incorporated in the earlier part of this judgment. According to the learned Advocate-General, even If the notification is not valid under the provisions of the Travancore-Cochin Vehicles Taxation Act, 1950, once power is found in the Government for levying toils under the Travancore Tolls Recovery Act -- Act IV of 1088, it should be upheld by this Court. No doubt, the learned Advocate-General relied upon a decision of this Court in Lekhraj Sathramdas Lalvani v. Mathur, 1961 Ker LJ 382: (AIR 1962 Ker 152} of Ansari, C. J., and Raghavan, J., that courts cannot vary orders of authorities professedly under certain enactments, should the authorities legally have power to issue the orders under some other laws and if there is sufficient jurisdiction for passing orders, those orders cannot be vacated on the ground of their purporting to be under some power that does not confer jurisdiction.
65. The learned Advocate General also referred to the observations of the Supreme Court in Hazari Mal v. Income-tax Officer, AIR 1961 SC 200 at p. 202 that the exercise of a power will be referable to a jurisdiction which confers validity upon it and not to a jurisdiction under which it will be nugatory. While the proposition of law formulated by the learned Advocate-General can be accepted, in my View, it has no application to the facts of this case. There is nothing to indicate either in the notification or in the various counter-affidavits filed by the State that they ever intended to take action under the provisions of the Travancore Tolls Recovery Act -- Act IV of 1088. Even otherwise, in my view, there is no provision in the Travancore Tolls Recovery Act IV/1088 which gives power to the Government to levy tolls. No doubt, Section 2 of the said Act states that the procedure mentioned in the Act shall be observed for the recovery of tolls levied upon any road or bridge which has been or shall hereafter be made or repaired at the expense of the Government at such rates as the Government may fix from time to time. There is absolutely nothing in Section 2 which can be considered to authorise the Government to levy a toll as such. It can-not be considered to be a charging section as generally understood in a taxing statute. At the most. Section 2 can be considered to be a direction regarding the procedure indicated in the Act being followed if a levy of toll has been already made by the Government and if the rates also have been fixed by the Government from time to time.
Even otherwise, the provisions of Section 12 of the Travancore-Cochin Act should be considered to have placed further restrictions on the power of the Government to levy tolls. Even on the assumption that Section 2 of the Travancore Tolls Recovery Act can be considered to be a charging section authorising the collection of tolls, thatsection should be considered as giving powers to levy tolls on any road or bridge which has been or which is thereafter made or repaired at the expense of the Government. Therefore, the only condition that may be necessary for levying tolls if the Travancore Act applies, is that in particular road or bridge should have been made or impaired at the expense of the Government. But when we coma to Section 12 of the Travancore-Cochin Act, 1950, it does not give any such large and absolute powers as may be said to contain in Section 2 of the Travancore Act; but on the other hand, places a considerable restriction on the powers of the Government to levy toll. Under Section 12of the Travancore-Cochin Act it is not open to the Government to levy toll merely on the ground that a road or bridge has been made or repaired at the expense of the Government. It must go further and satisfy itself that special circumstances exist for the levy of toll. Therefore to this extent, the Travancore Act should be considered to have been modified.
66. Therefore in my view, even if the contention of the learned Advocate General that Section 2 of the TraVancore Act is considered to be a charging section is accepted, that section will have no further force or operation, in view of the provisions of Section 12 of the Travancore-Cochin Vehicles Taxation Act 1950. Section 12 of the Travancore-Cochin Act places a further restriction on the power of the Government than that given to it under the Travancore Act. To that extent, the provisions of Section 2 of the Travancore Act cannot be considered to apply to this case. Therefore, the notification issued in this case, must stand or fall on the validity of the powers conferred upon the State Government under Section 12 of the Tra-vancore-Cochin Act.
67. Therefore, it is not possible for me to accept the alternative contention of the learned Advocate General to treat the notification, under attack, as one issued under the Travancore Tolls Recovery Act -- Act IV at 1088.
68. In the view that I have expressed earlier that the provisions of Section 12 of the Travancore-Cochin Act suffers from the infirmity of excessive delegation of legislative power and that in consequence, the notificttion under attack should be struck down, it becomes unnecessary for me to consider the other grounds of attack raised by the learned counsel for the petitioner, based upon Articles 388 and 304 of the Constitution.
69. To conclude, the power given to the State Government under Section 12 of the Travancore-Cochin Vehicles Taxation Act, 1950 -- Act XIV/1950, is had to be goingbeyond permissible boundaries of valid delegation and therefore, the Notification dated 28th April 1953 it accordingly struck down. Both the writ petitions are allowed and it is open to the petitioners to apply for refund of any tolls that may have been collected from them. Parties will bear their own costs.