Innes, Kernan, and Muttusami Ayyar, JJ.
1. The facts are as follow : On the 15th April last, some cartmen going from Dharmapuri to Morapur drove their carts along an old road, probably with intent to avoid payment of toll which they would have had to pay if they had taken the more usual road, where a toll-gate is maintained. The toll-collector caught these men at a point about a mile beyond the toll-gate and demanded toll, but payment was refused. He therefore attached the bullocks, one for each cart, but the cartmen rescued the bullocks and drove away. The toll-contractor thereupon lodged a complaint before the Second-class Magistrate of Dharmapuri, accusing them of having taken away the animals he had attached.
2. The Second-class Magistrate dismissed the complaint under Section 147, Criminal Procedure Code, on the ground that the carts did not pass through the toll-gate, that the cartmen were at liberty to travel by any way they pleased, and that it was not lawful for the contractor to demand tolls at a mile off from the gate, and then attach the animals on refusal.
3. The Acting Joint Magistrate, however, considered the dismissal illegal on the ground that Section 63 of the Local Fund Act does not confine the liability to tolls to traffic passing through particular gates or points in a road or roads, but imposes it on all traffic 'passing along any roads within the circle ;' that, therefore, if traffic passes along a portion of road which a certain gate is intended to toll, the contractor of that gate has a right to enforce the payment of toll on such traffic, whether the same actually passes through the gate or not.
4. It seems to me that we are restricted to two theories of the intention of the Act--one, that tolls are only leviable at the toll-bar; the other, that the toll-collector may levy toll all over the Local Fund Circle, wherever he finds carts or carriages using the roads.
5. In this latter view, he may stop people by day or night on any portion of any such road, and levy the toll from them without their having the opportunity, which the levy of tolls restricted to the toll-gate would afford, of ascertaining whether the amount demanded be correct, and whether the person or persons claiming to be entitled to levy it are or are not the persons so entitled. I cannot think that excursions of this kind into all parts of the Local Fund Circle--excursions which might easily assume a predatory character--could have been contemplated. The annoyance to the public from such a system would be incalculable, and the danger of fraud and extortion from unauthorised persons personating the contractors would be very great.
6. I am inclined to think that the intention was to lay down in Sections 63, 641 and 682 the mode and place at which tolls were to be demanded and levied (except when compounded for as provided in Section 66), and that the place so prescribed is the toll-gate or station.
7. It may be that in this view there would be great difficulties in the way of preventing evasion of the tolls; but those difficulties, if they exist, may probably be overcome by multiplication of toll-bars and by further legislation, such as the Act 3, Geo. IV, Chap. 126, Section 41, attaching penalties to leaving the road with the purpose of evading the toll.
8. We have simply to construe the Act, and, after mature consideration, I am of opinion that the order of the Second-class Magistrate was right, and that there is no ground for our interference.
9. The rate is a charge on the vehicle, and may be levied on the vehicles as provided by the Act. The toll-gates are used as a convenient mode of levying the rates. When tolls are purposely evaded by the vehicles which are driven on the road of the circle not being taken through the gates, I feel much doubt whether such construction should be put on the Act as to frustrate its intention. I do not think the inconvenience of levying elsewhere than at the gate will be so extreme as Mr. Justice INNES thinks.
Muttusami Ayyar, J.
10. I also think that a highway toll can only be levied at a toll-gate or a toll-station. Section 68, which directs that a table of tolls be-exhibited, refers to them as authorized to be taken at a toll-gate or a toll-station. If a toll might be levied anywhere on the road within the Local Fund Circle,, whether there is a toll-station or not, the procedure prescribed by that section could not be complied with. Although every cart using a road within the Local Fund Circle may be made liable for the payment of a toll, the liability can only attach on complying with the procedure prescribed by Section 63 to Section 68. It is then urged that Section 63 enacts that Collectors may construct toll-bars, gates, and gate-keeper's stations at such places as the Governor in Council may sanction, and that toll-gates or stations are directed to be constructed only as a matter of convenience. If it were not intended to limit the authority to levy a toll to parts of the road with reference to the traffic in those parts, it is difficult to see why the sanction of Government is declared, to be necessary. Take, for instance, a road in a Local Fund Circle which passes through three villages, A, B, and C, several miles apart from each other, and on which there is a toll-station only at C, and suppose that carts ply only between A and B. If the contention were valid, it would be in the power of the toll-contractor, under Section 64, to seize any cart in A or B on the ground that on some previous occasion the road within the circle was used by that cart, and that a toll must be paid. Such a power would be open to serious abuse, and its legitimate exercise would involve an amount of annoyance and impediment to traffic which it was probably intended to prevent by directing that a toll-station be erected, authorizing the levy of the toll at that station only, and requiring that a table of tolls be exhibited there in order to prevent collections of toll in excess of the prescribed rate. It seems to me that the reasonable construction is that the erection of a toll-gate or toll-station is prescribed as part of the procedure to be followed to indicate the part of the road at which the Governor in Council may consider it expedient to levy a toll. In any other view, no effect could be given to Section 68. I do not desire to be understood as saying that when a cart approaches a toll-station, and makes a detour to evade the payment of the toll otherwise than by a road available to the public, and enters the road within the circle at a point beyond the station within the sight of the toll contractor, the cart may not be seized under Section 64. That is not the case before us. But I think, where the cart uses a road, whether old or new, available to the public and on which there is no toll-station, and gets to the road within the circle, then, in the absence of a toll-station at or near the point where it enters the road, there is no power to levy a toll and the cart is not liable to be seized. For these reasons I would decline to interefere.
1 Procedure in case of non-payment of toll.
(Section 64 : In case of non-payment of any such toll on demand the officer appointed or duly authorized to collect the same may seize any carriage or animal on which it is chargeable, or any part of its burden of sufficient value to defray the toll.
If any toll, together with the cost arising from such seizure and custody, remains undischarged for forty-eight hours, the Collector, or other revenue officer authorized by him in that behalf, may sell the property seized, for discharge of the toll and of all expenses occasioned by such non-payment, seizure, custody and sale.
Any balance that may remain shall be returned, on demand if made within six months, as to the owner of the property, and, if unclaimed after such period, shall be credited to the Local Fund.
After seizure of the property as aforesaid, the Collector, or other officer authorized as aforesaid, shall forthwith issue a notice that, after the expiration of two days, exclusive of Sunday, he will sell at such place as may be stated in the notice the property by auction.
Provided that, if at any time before the sale has actually begun the person whose property has been seized shall tender to the officer empowered to sell the property the amount of all the expenses incurred and of the toll payable by him, the property seized shall forthwith be released.]
2 Table of tolls to be exhibited.
Section 68 : A table of the tolls authorized to be taken at any toll-gate or station, legally written or painted in English words and figures and in the vernacular language of the district, shall be put up in a conspicuous place near such gate or station.]