1. This is an appeal on behalf of defendant 2, the District Board of Pabna, and arises out of a suit which was commenced by the plaintiff, who is a leading lawyer of Pabna, for refund of a sum of eight annas said to have been recovered from him as a bridge toll. The question is as to the legality of this imposition. The facts of the case are shortly as follows : In the year 1929 a bridge known as the Manoharpur Bridge was constructed by the District Board out of its own funds at a cost of Rs. 18,000 and it appears that the District Board thereupon obtained the sanction of the Local Government for the establishment of a toll-bar on this bridge and the levy of a toll on persons, vehicles and animals passing over the bridge under the provisions of Section 86A, Local Self-Government Act (Bengal Act 3 of 1885). That sanction was contained in letter dated 6th June 1929, which is Ex. E in the case. Recently, the Road Board which is a body set up by the Central Government undertook the construction of a new bridge on the same site. This bridge was ultimately meant to be, and was in fact, taken over by the District Board, but the cost was borne by the Road Board. Only some old materials from the old bridge which was admittedly dismantled for the purpose were used in its construction. During the progress of the work a diversion road was made through the river bed for the temporary passage of traffic.
2. The plaintiff's ease is that he was required to pay a toll of two annas on each of four occasions when he drove his car, three times over the diversion road and once over the bridge. He says this was an unauthorised levy, and has accordingly brought this suit for recovery of the amount which he was thus called upon to pay. The plaintiff also asked for recovery of a sum of Rs. 10 as special damage for the wrongful levy. There were two other defendants in the suit besides the District Board, namely defendants 1 and 3. Defendant 3 is a person to whom the District Board had leased the right of realising the tolls, and defendant 1 who actually collected the money was a servant of defendant 3.
3. The learned Munsif decreed the suit so far as the tolls realized in respect of the diversion road were concerned, but in regard to the toll paid for driving the car over the bridge itself, he held the levy was justified and rejected the claim. He also rejected the prayer for special damage. In the result, he made a decree for six annas only in the plaintiff's favour. Appeals were taken against this decision to the learned Subordinate Judge by both parties. So far as the decree for six annas was concerned, it was upheld and has become final, and we are not concerned with it in the present appeal. As for the claim for two annas which was dismissed, the Court however reversed the judgment of the learned Munsif, holding that the imposition was illegal and not covered by any valid sanction, and in that view he passed a decree for this amount. Hence the present appeal by the defendant District Board. The matter has been argued at length before us by Mr. Hamidul Huq on behalf of the Board, but we are not at all satisfied that he has made out a case in favour of his clients. The question depends on the effect of Section 86A, Local Self-Government Act. This section--to quote only the relevant portions--provides that:
The District Board, with the sanction of the Local Government, may establish a toll-bar on any bridge in the district which has, after the date of the commencement of the Bengal Local Self-Government (Amendment) Act, 1908, been constructed or purchased out of the District Fund or to the cost of the construction or purchase of which contribution has, after the said date, been made out of the District Fund...and may levy tolls at such toll-bar on persons, vehicles and animals passing over such bridge.
4. There is an important proviso to this section, which lays down that 'no toll-bar shall be established or tolls levied otherwise than for the purpose of recovering' certain amounts which are specifically set out in Clauses (a) to (d) of the proviso. Clause (a) authorises the recovery of 'expenses incurred by the District Board in constructing, purchasing, contributing to or widening such bridge,' and Clause (d) of
the capitalized value of the estimated cost to the District Board of maintaining such bridge...and of renewing it, if it requires renewal.
This is followed by a further proviso that
no toll-bar shall be established or tolls levied on or in respect of any bridge...the cost or estimated cost of which, as indicated in Clauses (a), (b) and (d) of proviso (1), was or is less than five thousand rupees.
5. It is not disputed that there was a proper sanction under this section in respect of the bridge which was constructed in 1929. As already stated, this sanction was contained in a letter of 6th June 1929 (EX. E), and it was expressed in terms of the section itself. It was directed therein that under Section 86M(2) of the Act the toll-bar should be removed as soon as the charges had been recovered, the period of recovery being limited to 12 years from the date of the sanction. Directions were also given for keeping a special account of the recoveries in a prescribed form. The total cost of construction was estimated by the District Board at the round figure of Rs. 18,000, and this was accepted by the Government as the amount recoverable. The letter went on to point out that the District Board had apparently overlooked the possibility of having to undertake the renewal of the bridge in due course as distinct from its maintenance by repairs, and it was stated that should such renewal be undertaken at a later stage and the cost thereof increase the charges recoverable on the authority of the sanction given, the District Board should make a further report to Government. With reference to this portion of the letter, we may state at once that in our opinion it is impossible to regard this as sufficient authority for recovery of the cost of future renewal without further sanction. We cannot accept the argument that the sanction under Section 86A need not specify the amounts to be recovered under one or more of the clauses set out in proviso (1). The section must be read as a whole, including the proviso, and if it is so read, there can be no doubt that the sanction will not be valid or complete unless it expressly mentions the amounts the recovery of which is sought to be authorized thereby.
6. It is admitted that the District Board did not in fact apply for any fresh sanction under Section 86A for the establishment of a toll-bar or the levy of tolls in respect of the new bridge, and it is mainly on this fact that the plaintiff relies for the purpose of showing that the toll which was levied on him was illegal. The terms of the section make it quite clear that the toll can be recovered only from persons using a bridge in respect of which sanction is given. If, therefore, the new bridge was different from the old one, it follows that any sanction that might have been obtained in connexion with the old bridge could not possibly justify any imposition on any one passing over the new bridge. Prom this point of view, there seems to be no answer to the plaintiff's claim, but as indicated, this rests on the assumption that the new bridge is not the same as the old one, and it rests also on the basis that another letter from Government dated 26th August 1935, Ex. F in the case, to be presently referred to, does not amount to a specific sanction in respect of the new bridge.
7. So far as the first point is concerned, we are not at all convinced by Mr. Huq's arguments that the new bridge must be taken to be the old one in another garb. That is not so in fact, and both the Courts below have definitely held and proceeded on the view that the bridge which was completed in 1937 was an altogether new bridge, though it might have been erected on the same site as the former bridge. The dimensions were different, the structure was different, and except that materials of the value of about Rs. 250 only were used from the old bridge, there is no sort of connexion whatever between the one and the other. As the old bridge had ceased to exist, it is obvious that no toll could be recovered, on the authority of the sanction obtained for that bridge, from a person using the new bridge. This takes us to the other point which was raised by Mr. Huq on the strength of the letter of 26th August 1935. His contention was that this letter was in effect a new sanction which the District Board obtained from the Government for the new bridge. It appears, however, on reference to this document that no such sanction had been asked for by the District Board, and no such sanction was actually given by this letter. All that the District Board had asked for was a ruling from the Government on the question whether the District Board would be entitled to continue levying tolls on the old bridge even after it had been reconstructed with grants from the Central Road Fund. In reply the Government merely conveyed the legal advice which they had obtained on the point. It was stated
that Government are advised that the balance outstanding on the old bridge should be considered as part of the total cost of the new bridge and should be taken as the contribution of the District Board towards the cost of the new bridge,
and it was finally added that 'in the circumstances, the District Board would be entitled to continue levying the toll till the balance due was realized.' Mr. Huq laid stress on this concluding sentence, but as we read it, it is only a part of the legal advice which the Government were conveying to the District Board. We are unable to hold that Government intended to convey any new sanction by this letter in respect of the new bridge. That ought to dispose of the point raised by Mr. Huq, and if this letter is not effective as a sanction, there is nothing else on which the defendant board can rely for the purpose of justifying the levy of the toll from the plaintiff. In the view we take of this letter, it is not necessary to refer to the other difficulties which stand in the appellant's way, but having regard to the importance of the case, we might perhaps notice one or two of the further points which were raised. For one thing, it is difficult to see how the present bridge could at all be brought within the description given in Clause (1) of Section 86A. On the facts of the case, the bridge was admittedly not a bridge constructed or purchased out of the District Fund. But it was argued that it was a bridge to the cost of construction of which a contribution had been made out of the District Fund within the meaning of this clause. Mr. Huq, however, was unable to point out what the contribution was, except to indicate that some materials of the old bridge had been used for the construction of the new bridge. Whether this could be regarded as a contribution out of the District Fund or not, a point which is not wholly free from difficulty, having regard to the provisions of Sections 52 and 63, it does not appear that the contribution was anything approaching the limit which is laid down in proviso (2) of Section 86A. The evidence of the contractor to the District Board is that the value of the materials used was Rs. 250 and this evidence remains unchallenged, and was accepted by both the Courts below as correct.
8. Mr. Huq, realizing the difficulty of his case, sought to argue that the outstanding balance which was due on account of tolls in respect of the old bridge should also be regarded as a part of the contribution of the District Board to the new bridge. This is an argument which one finds it extremely difficult to appreciate, much less to accept. This is no doubt the view which was indicated by Government in their letter of 26th August 1935. But one does not see how any amount which might have remained unrealised on account of the old bridge could be regarded as a contribution by the District Board towards the cost of the new bridge. Mr. Huq referred us to Clause (b) of the proviso to Section 86A for the purpose of showing that such unrealized amount would be the loss which the District Board suffered by reason of the dismantling of the old bridge necessitated by the construction of the new bridge, and contended that it should, therefore, be regarded as a part of the board's contribution. Clause (b), however, is a special provision regarding loss which the Board may suffer in having to pay compensation to owners of private ferries. We do not think it is possible to draw any argument by way of analogy from this provision so as to cover the case of unrealized amounts of tolls in respect of a bridge. The very fact that special provision is made in Clause (b) suggests that if a similar rule was intended to apply in the case of unrealized tolls for bridges, the Legislature would have made a similar provision in specific terms. We are unable, therefore, to hold that the District Board's contribution to the construction of the new bridge can be said to amount to anything more than the value of the old materials.
9. It may be further pointed out that from a statement of accounts which is on the record it appears that at the end of 1936-37 a total sum of Rs. 1688-9-0 only was still outstanding. Even if this sum be added to the value of the old materials which were used, the total would fall far short of Rs. 5000, the limit laid down in proviso (2). Mr. Huq drew attention to the fact that the amount outstanding at the end of the previous year was much higher and much nearer to this limit, namely, a sum of Rs. 4739-7-0. This cannot however justify any inference as to the precise amount outstanding at the material date. The new bridge was completed somewhere about May 1937, and it may be added that the plaintiff's car actually passed over the bridge on 11th June in that year. We are satisfied, therefore, that on no account can the new bridge be regarded as one which comes under Clause (1) to Section 86A, and this ought to put the defendant District Board out of Court. The result is that in our opinion the decree made by the learned Subordinate Judge must be affirmed, and this appeal dismissed with costs. We order accordingly.
10. I agree.