I.A. Ansari, J.
1. In a federal set up like ours, conflicts between Parliamentary and State enactments are not really uncommon. How to resolve such conflicts is also, by and large, well settled ; but every time, such a conflict is brought before the Courts for resolution, the Courts undertake a massive exercise. This happens not because of any kind of inherent disinclination, on the part of the Courts, to readily resolve such a conflict, but to ensure that in order to resolve such a conflict, the Courts, while interpreting with an open, liberal and modern mindset, the provisions of the Constitution of India and the laws framed thereunder, remain steadfast to the basic structures of the Constitution and while interpreting the Constitution, howsoever liberally, maintain not only the letter but also spirit of the basic and fundamental concepts of the Constitution. The present Writ petition invites this Court to undertake such an arduous exercise. In order to ensure that the States are not denuded of their powers and the concept of federalism as envisaged by the Constitution is maintained, should this Court allow the age-old concept of parliamentary supremacy to get diluted is one of the moot questions, which this Writ petition has raised. This Writ petition also invites this Court to reiterate the often-repeated the principles governing the powers of a delegatee. This Writ petition further gives to the question as whether the concept of 'toll' and 'fee' has, with the passage of time, undergone changes and if so, the extent of such changes.
2. By making this application under Article 226 of the Constitution of India, the petitioner has approached this Court with prayers, inter alia, to set aside and quash as ultra vires, illegal, unlawful and unconstitutional the Guwahati Municipal Corporation (Settlement of Check-gates, Parking Places, Markets, etc.) Bye-laws, 1997, and the settlement of Check-Gates and Parking Places for the year 2002-03, vide order, dated 31.3.2002, issued by the Guwahati Municipal Corporation.
3. In a nut-shell, the petitioner's case may be narrated as follows :
(j) The petitioner is a permanent resident of Margherita in the district of Tinsukia, Assam, and earns his livelihood from the business of transportation of coal and other items from Margherita to Rangia, in the State of Assam, and Tura, in the State of Meghalaya, and other places in and around the State of Assam. The petitioner owns a truck bearing registration No. AS-01/A-3946 and is the holder of a temporary permit allotted under Rule 70(A)(vii) of the Assam Motor Vehicles Act, 1988, qua the said vehicle.
(ii) National Highway Nos. 31 and 37, which form the subject-matter of challenge, vest exclusively in respondent No. 8, namely, National Highways Authority of India, an authority constituted under Section 3 of the National Highways Authority of India Act, 1988, (for brevity, "the NHA Act, 1988"), National Highways stand vested in respondent No. 8 by virtue of notification, dated 26.4.2002, issued in exercise of powers conferred on the Central Government under Section 11 of the NHA Act, 1988. Respondent Nos. 13 to 16 are Lessees in favour of whom tenders for running check-gates and parking places have been awarded vide impugned order, dated 31.3.2002, passed by respondent No. 5, namely, Guwahati Municipal Corporation, (hereinafter referred to as "the GMC"), an authority constituted under Section 4 of the Guwahati Municipal Corporation Act, 1971, (for short, "the GMC Act, 1971"). The respondent No. 5, in purported exercise of powers/ jurisdiction under Section 416(A)(9) of the GMC Act, 1971, passed the Guwahati Municipal Corporation (Settlement of Lease of Check-gates, Parking Places and Markets, etc.) Bye-Laws, 1997, (hereinafter called, "the 1997 Bye-Laws").
(iii) In purported exercise of powers/authority under the impugned 1997 Bye-Laws, the respondent No. 5 invited tenders for settlement of check-gates and parking places located on National Highway Nos. 31 and 37 in Guwahati, namely, Khanapara Checkgate located on NH-37, Saraighat Checkgate located at NH-31 and Khanamukh Checkgate located on NH-37 and Jalukbari Parking place on NH-37. Besides the check-gates and parking places aforementioned, tenders were also invited for some other check-gates and parking places located within the Guwahati Municipal Corporation area, namely, Narengi check-gate and Gar-Pandu Bus Stand. Gar-Pandu Bus Stand and Narengi check-gates have been excluded from the purview of this writ petition. The petitioner challenges the constitutional validity of installation and levy of tax at Khanapara, Saraighat and Khanamukh Checkgates and the Parking places, which fall on the National Highways.
(iv) Clause 15 of the terms and conditions of settlement of check-gates and parking places for the year 2002-2003 empowers a lessee to whom check-gate(s) would be allotted to levy tax from the prescribed class of vehicles and animals in terms of the lease and Clause 16 specifically empowers the lessee to levy entry fee from the owners or drivers of the vehicles entering into the city except those vehicles, which stand exempted by the written order of the Commissioner of the Guwahati Municipal Corporation. The petitioner has been informed that pursuant to the notice inviting tenders, bids were submitted and the check-gates and parking places were allotted to the qualified tenderers vide order, dated 31.3.2002, issued by respondent No. 2, namely, Principal Secretary to the Government of Assam, Municipal Administration Department, except Khanamukh Check-gate which was the subject-matter of litigation before this Court in Writ Petition (Civil) No. 158/2002. The lessee of Khanamukh Check-gate also, now, stands impleaded as party-respondent No. 17 in the present writ petition.
(v) The petitioner has absolutely no interest qua allotment of check-gates/parking places to the lessees. Installation of check-gates, parking places and levying of tax/fee/toll on vehicles travelling on National Highways of Guwahati is having direct adverse and prejudicial impact on the business interest of the petitioner, whose vehicle keeps plying on the said Highways inasmuch as the petitioner is being made to pay such unauthorized tax/fee/toll. Apart from the amounts mentioned in the official receipt granted against such collection of unauthorized tax/ fee/toll/ the petitioner, like all others, is compelled and coerced to pay much more than the prescribed rate under duress by the personnel manning the check-gates and the parking places. The petitioner has come to know recently from news-paper reports that the installation of check-gates is illegal. Moreover, the petitioner also has definite knowledge that similar check-gates, which were earlier installed on Highways passing through Nagaon, Tinsukia, Dibrugarh, etc. have been closed down by respondent Nos. 2 and 6 as illegal and unauthorized, but the respondent Nos. 2 and 6 have, at the same time, maintained stoic silence so far as the check-gates in the capital city of Guwahati are concerned.
(vi) The respondent No. 5 has no legal authority to install check-gates on the roads, which fall on National Highways and which are expressly vested in, and entrusted to the respondent No. 8. As per Entry-23 of List-1 of the Schedule-VII to the Constitution of. India, National Highway is a subject, which can be dealt with by the Parliament alone. The State Legislature, namely, respondent No. 1 does not have any authority or jurisction to legislate on National Highways. When the State Government has no authority to legislate on the subject of National Highways, the respondent No. 5, which is a creature of the Statute, cannot, by subordinate legislation, exceed the power of the State Legislature and impose/levy any tax/toll/fee. The 1997 Bye-Laws, which empowers the respondent No. 5 to levy tax/fee/toll on the check-gates and parking places located within the GMC areas, has a direct and immediate restraint on the trade and impede free flow and movement of trade and, hence, the said Bye-laws is hit by Article 301 of the Constitution of India and is, therefore, illegal. It is the Central Government alone, which has the authority under the scheme of the National Highways Act, 1956, (hereinafter referred to as the "NH Act") to legislate and collect tax qua National Highways. Section 16(2)(&) of the NHA Act, 1988, permits the National Highways Authority of India, in discharge of its function, to collect fees on behalf of the Central Government for the service and benefits rendered under Section 7 of the NH Act, 1956.
(vii) The respondent No. 2, who is the Principal Secretary to the Government of Assam, Municipal Administration Department, vide WT Message dated 6.2.2002, addressed to all Deputy Commissioners and Superintendents of Police, while expressing concern over the creation/ installation of check-gates or barriers on National Highways under some pretexts and for running of parking places, had requested the concerned authorities to curb any such illegal activities and to take punitive action. The petitioner has been informed that many such WT Messages were issued by Respondent No. 2. What is revealed from the WT Message (Annexure E to the writ petition) is that even Respondent Nos. 2 and 6 had definite knowledge that installation of check-gates on National Highways acts as barriers and is illegal. Respondent Nos. 2 and 6 are also aware about the illegal levy of tax at such check-gates/parking places, but despite having such knowledge, the said respondents have allowed and participated in the perpetration of such illegalities in the capital city of Guwahati on the strategic points under their direct guidance and supervision. The check-gates and parking places have been installed in strategic locations/areas of the city of Guwahati at all entry points seeking to levy entry fee/tax and parking fee for no facility whatsoever by forcefully stopping the vehicles for collection of tax at the concerned check-gates. In the garb of collecting tax at the check-gates and parking places aforementioned, the lessees have been indulging in extortion and are forcibly collecting amounts much in excess of the prescribed rates. Against the official receipt and the official prescribed rate of Rs. 200 as entry tax at the check-gate concerned, the petitioner was forced to pay an amount of Rs. 450 and against the official parking fee of Rs. 100, the petitioner was forced to pay an amount of Rs. 300. The burden of such unauthorized levying of tax is passed on the ultimate consumer, which have resultantly led to the spiraling rise in prices of essential commodities and goods/items in the State of Assam much higher than the prices it would normally have been, had such illegal check-gates/parking areas not installed and unauthorized taxes/parking fees not levied. Thus, the impugned 1997 Bye-Laws and the impugned order are encouraging rampant State-sponsored extortion racket. No tax can be imposed by the State Government or any authority under any Bye-laws, Rules or Regulations unless the Statute under which the subordinate legislation is made specifically authorizes such imposition. Section 144 of the GMC Act, 1971, cannot and does not empower levy of any tax on the passengers and goods passing over the National Highways and, hence, the impugned 1997 Bye-Laws and the impugned order of settlement of check-gates and parking places may be quashed.
4. The respondent Nos. 1 to 4, peculiarly enough, have not contested this case and none has appeared on their behalf, but since the validity of 1997 Bye-laws has been challenged in this writ petition learned Advocate General, Assam, has been heard. I have heard Mr. G. Subramaniam, learned Senior counsel, and Mr. A. Chowdhury, learned counsel appearing on behalf of the petitioner. I have also heard Mr. B.P. Todi, learned Senior counsel for respondent No. 5, Mr. B. Sharma, learned Additional CGSC, appearing on behalf of the respondent Nos. 7 and 8, Mr. M. Bhagawati, learned Government Advocate appearing for the respondent No. 9, Mr. A.M. Majumdar, learned Senior counsel for the respondent No. 15, Mr. N. Dutta, learned Senior counsel for the respondent No. 13, and Mr. K.N. Choudhury, learned Senior counsel for the respondent No. 17. I have also heard Mr. P. Pathak who has adopted the line of arguments advanced by Mr. N. Dutta. None has appeared on behalf of the respondent Nos. 10, 11 and 12.
5. The respondent No. 5, namely, Guwahati Municipal Corporation has contested this case by filing affidavit-in-opposition, their case being, briefly stated, thus : The GMC has been collecting toll on vehicles and animals since the year 1976 by virtue of the powers conferred under Section 144(2)(c) of GMC Act, 1971. The GMC has framed Guwahati Municipal Corporation (Toll on Vehicles and Animals) Bye-Laws, 1976 (hereinafter referred to as the "1976 Bye-Laws"). The GMC has also framed the 1997 Bye-Laws under the provision of Section 415 of the GMC Act, 1971. Subsequently, under the provisions of the 1976 Bye-Laws, four numbers of check gates and three numbers of parking places were installed. Out of these check gates and parking places, 3 entry toll collection booths and 2 parking places are located on NH 37 and NH 31 at convenient places under 1976 Bye-Laws. The said Check gates, though called Check gates, are, in fact, toll collection booths installed without any barrier on the National Highways and such collection are made at isolated places so that there is no obstruction to the free movement of vehicular traffic. For the financial year 2003-2003, 2 entry toll collection booths and 2 parking places were settled with the respondent Nos. 13 to 16 vide order dated 31.3.2003. Most of the Municipal Corporations have been collecting, within their respective areas, octroi or tax on goods and passengers and entry tax on vehicles entering into the city by installing collection booths. Since the respondent No. 5 collects toll as per provisions of GMC Act, 1971, read with the 1997 Bye-Laws framed thereunder, the collections cannot be said to be without authority of law and/or unconstitutional. Bye-Laws was made to settle the check gates, parking places, market, etc., in exercise of the powers conferred on the GMC by Section 416(1)(A)(9) of the Guwahati Municipal Corporation Act, 1971, and the same was duly published as required under Section 428 of the GMC Act, 1971, inviting objections and suggestions from all persons likely to be affected. The 1997 Bye-Laws was, thus, enforced after observing all the requirements as provided in the GMC Act, 1971. The money receipts enclosed with the petition do not bear any vehicle number and also the column 3. The grievances of the petitioner are not genuine. Moreover, the collection of tax/fee/toll by the GMC is not unauthorized and collections are being made through 1976 Bye-Laws and 1997 Bye-Laws made under the provisions of the GMC Act, 1971. So far as the GMC is concerned, the collection booths at NH 31 and NH 37 are genuine and established under the authority of law as per the provisions of the GMC Act, 1971, and the Bye-Laws framed thereunder. The collections are being made for the last over 25 years without causing any hindrance to traffic on the National Highways. Regarding collection of toll from vehicles, etc., entering in the municipal area a few local dailies highlighted some reactions in the matter. Although the GMC has not received any letter till April, 2002, either from the National Highway Authority or the Chief Engineer, PWD (National Highways) Guwahati raising any objection regarding such collections, which is being collected for the last over 25 years, the GMC has suo motu vide its letter No.
GEF/194/198/Pt/2002/A dated 2nd May 2002, based on the reactions highlighted in few local dailies, wrote to the Chief Engineer, PWD (National Highways), Guwahati that the GMC has been collecting toll from vehicles entering into the municipal area as per provisions of the law and the GMC, in their said letter, has clarified to the Chief Engineer, PWD (National Highways), Guwahati that the Corporation may consider any proposal of the National Highway Authority for slight modifications in respect of the locations of its collection booths so as to maintain speedy flow of traffic. This letter was issued by the GMC, for, in respect of the National Highways falling within the boundary of the State, the Chief Engineer, PWD (National Highway), Guwahati, is the appropriate authority to look after the development of National Highways within the State. Hence, it cannot be said that the GMC has failed in its duty in any way. Subsequently, the respondent No. 5 received letter, dated 7th May, 2002 from the Chief Engineer, PWD (National Highways), Guwahati, enclosing general letter, circular, dated 9.2.2001, with reference to the subject 'erection of tax collection barriers on National Highways' issued by Ministry of Surface Transport, Department of Road Transport and Highways, Government of India. The city limit of the GMC was duly notified vide No. MA/99/69/125, dated 5.3.1973, and, thus, in respect of the parts of NH-31 and NH-37, which fall within the GMC area, the Corporation is competent to levy entry toll as per the relevant provisions of the laws, bye-laws. The GMC collects toll on vehicles, etc., entering into the municipal area and is responsible for maintenance of the Highways falling within the Municipal area. The GMC is responsible for providing lights, sweeping, maintenance of drains, etc., on the Highways falling within the Municipal area. The GMC Act, 1971, is a special Act framed with the sanction of the President of the Republic of India. Since the GMC Act was enacted earlier than the National Highways Authority of India Act, 1988, there should have been provisions in the NHA Act, 1988, of Repeal and Savings for protection of local bodies with regard to levy and collection of Municipal taxes. The NH Act, 1956, provides that local bodies are competent to levy taxes on National Highways with the authority of law. The GMC has been levying entry toll on animals and vehicles entering the city on the strength of the 1976 Bye-Laws and not under the provisions of the 1997 Bye-Laws. The impugned 1997 Bye-Laws are made for laying down the procedure for settlement of collection booths, stand installed on the NH-31 and NH-37 without any barrier. As regards allegations of extortions taking place at the check gates and parking places, the GMC has made provisions for cancellation of settlement as specified in Clause 13 of the NU and the State police is the appropriate authority to ensure that no extortion takes places. However, the GMC is competent to terminate the lease of any such lessee, who indulges in extortion and the GMC will not flinch from cancelling the same if indulgence into such extortion is proved or the lessee concerned is convicted by a Court of Law on the basis of the police case.
6. The respondent Nos. 7 and 8, namely, Union of India and the National Highway Authority of India have also filed their
affidavit-in-opposition, their case being, in brief, thus: The National Highways Authority of India (hereinafter referred to "as the NHAI") is a body corporate established under the NHA Act, 1988, and is under the administrative control of the Central Government through Ministry of Road Transport & Highways. The NHAI has been constituted for the development, maintenance and management of the National Highways entrusted to it and for the matters connected therewith and incidental thereto. The respondent No. 8 has been entrusted by respondent No. 7 with various National Highways for the purpose of development, management and maintenance. By Government Notification, dated 26.4.2002, issued pursuant to Section 11 of the NHA Act, 1988, the NHAI has also been entrusted with certain stretches of NH-31 and NH-37 for the purpose of development, management and maintenance thereof including laying of a 4-lane Highway on the said stretches as the said stretches form part of East-West corridor and are to be developed under the National Highways Development Project Programme. For the time being, i.e., till commencement of widening of these stretches, the respondent No. 8 has been maintaining them through the PWD, Government of Assam, and the funds for the maintenance of the same are being provided by the respondent No. 8 with effect from 26.4.2002. The NHA Act, 1988, authorizes the respondent No. 8 to collect fees on behalf of the Central Government for services or benefits rendered under Section 7 of the NH Act, 1956. The respondent No. 8 is responsible for developing, maintaining and managing the National Highways and any other Highways vested in or entrusted to it by the Government. The State Government may charge fee/tax only with regard to those benefits or services rendered by it beyond the Right of Way of National Highways. If there is any parking facility beyond the right of way of National Highway, then and then only the State Government is authorized to legislate or charge fees with regard to such parking places and not otherwise. For erecting barriers/check-gates, prior permission of the Ministry of Surface Transport and Highways is required. In the case at hand, no such permission has been taken by the GMC. For charging of parking fee from the vehicles within the right of way on NH-31 and NH-37, no permission has been given by the respondents concerned. The State Government/Local Bodies may, if it so desire, develop any parking facility only outside the Right of Way of National Highways in its commercial interest or for any other purpose, but not within the Right of Way on the National Highway. The respondent No. 8 has not installed any check-gate or parking place on NH-31 and NH-37 so far. The respondent No.8 reserves such authority in accordance with the NH Act, 1956, and NHAI Act, 1988, and the Rules made thereunder for installation of toll booths/toll plaza, parking places, etc., for proper management of the National Highways or stretches thereof entrusted to it.
7. The respondent No. 9, who is the Director General of Police, Assam, has also filed his affidavit-in-opposition, which reveals, in short, thus : A WT Message, dated 6.2.2002, was issued by the Principal Secretary to the Government of Assam, Municipal Administration Department, and as per the instructions contained in the said message, the Superintendents of Police of the concerned districts have been taking necessary actions to curb the illegal activities at the various check-gates. Punitive actions have also been taken against the persons involved in such illegal activities, whenever detected. As for instance, Nagaon Police Station Case No. 83/2002 was registered under Section 384 IPC for extortion of money at Bebejia and Dhing Road Parking Places of Nagaon Municipal Board. The persons involved in the said incident of extortion has been charge-sheeted. By an order, dated 23.7.2002, this Court had directed the Respondent No. 9, (i.e., DGP, Assam) to enquire into the matter of excess collections at the check-gates by entrusting a competent person to investigate the same. The respondent No. 9, in compliance with this Court's order, entrusted Sri P. Bhattacharyya, IPS, Deputy Inspector General of Police, (CWR), Guwahati, with the enquiry. Accordingly, the said Deputy Inspector General of Police enquired into the matter and prepared a report, which was submitted to this Court by the respondent No. 9. The aforesaid report indicates that the lessees of the Check-gates/Parking places/loading unloading toll gates, established by the GMC, are collecting taxes at the rates, which are higher than the prescribed rates and in this regard, cases against the accused persons have been registered and investigation continues. The Dy. Inspector General of Police (CWR), Guwahati, has also moved the Commissioner, GMC, to take action regarding cancellation of the lease of the lessees as per the existing Rules and Bye-Laws.
8. The respondent No. 13, who is the lessee of Saraighat Check-gate, has contested this case by filing his affidavit-in-opposition, his case may be stated thus : The writ petition is liable to be dismissed on the ground of delay, laches and negligence on the part of the petitioner in filing the same and/or approaching this Court. The Respondent No. 5, namely, the GMC, has been levying and collecting the relevant imposts on vehicles, animals, etc., entering the Guwahati Municipal area for the last 25 years. Since the writ petitioner claims that he is the owner of a truck bearing Registration No. AS-1/A-3946, which series of registration mark was issued by the competent authority during the year 1990-91, it is apparent that the writ petitioner has been plying his truck for the last more than 10 years and, as such, he was aware about the collection of the imposts by respondent No. 5 for the last more than 10 years and he paid the same as and when he carried coal in his said truck from Margherita to Rangia without raising any objection. Now, all of a sudden, after about 10 years, the petitioner has approached this Court assailing the levy and collection of the imposts on vehicles, animals, etc. entering the Guwahati Municipal Area without giving any explanation for such delay. In fact, the National Highways Laws (Amendment) Act, 1997, received the assent of the President of India on 25.3.1997. The writ petitioner has no explanation to furnish as to why he did not approach this Court for 5 years since 25.3.1997. The instant settlement order for the year 2002-03 was issued on 31.3.2002, pursuant to a Notice Inviting Tender published in the month of February, 2002. The present writ petition was filed only on 23.6.2002 and there is no explanation for such delay. The writ petitioner is accordingly guilty of serious laches and negligence arid on this ground alone, the present writ petition is liable to be dismissed. The writ petition has not been filed bona fide as there has been a gross abuse of the process of law and the petitioner is not entitled to any relief. The petitioner has moved this petition at the behest of some interested parties, who had participated in the tender process for giving settlement and who, having failed to be successful therein, have, now, got initiated the present action before this Court. This is evident from the fact that the writ petitioner has not assailed the constitutional validity of the installation and levying of the check-gates by the Departments of Sales Tax, Forest, etc. The petitioner has only challenged the 1997 Bye-Laws and not 1976 Bye-Laws, which, in fact, authorizes the GMC to levy and collect imposts on vehicles, animals, etc., entering the GMC area. According to the petitioner, on 4.6.2002, he along with his driver carried consignment of coal in his said truck from Margherita to Rangia, but no document has been annexed to the writ petition to substantiate the said statement. The nearest coal loading railway station of Margherita is Ledu coal loading railway station and not the Rangia Coal Loading railway station. The coal available, at Margherita, is exclusively owned by the Coal India Limited and not by any private parties. The Coal India Limited never sell and/or despatch any coal without issuing appropriate supporting documents and, as such, it is apparent that there must be some documents issued by the Coal India Limited against the coal consignment allegedly carried by the writ petitioner on 4.6.2002. Non-annexing of the said documents issued by the Coal India Limited to the writ petition shows that the writ petitioner has made palpably incorrect statements in the writ petition and has thereby sought to mislead the Court. He has not approached this Court with clean hands and, as such, the writ petitioner is not entitled to any relief from this Court. The respondent No. 5 levies and collects imposts on vehicles, animals, etc., entering the GMC area and, for the purpose of the same, has constructed toll collection booths by the side of the road without raising any barrier restricting free flow of traffic. The impugned Bye-Laws permit the GMC to levy imposts on vehicles, animals, etc., entering the GMC area. The Respondent No. 13 does not admit that the Bye-Laws seek to legislate on the subject of National Highways. The said Bye-Laws are not invalid and are not hit by any provisions of the Constitution of India. The NH-31 and NH-37 does not vest exclusively in respondent No. 8. The State of Assam remains the owner of the land on which NH-31 and NH-37 have been laid and constructed. The check-gates and parking places are not located in any portion vested in the NH Act. The NHAI is not the only appropriate authority empowered to collect tax/tolls/fees on areas falling under the National Highways. The impugned imposts do not amount to imposition of tax on vehicles running on the National Highways. Section 144 of the GMC Act, 1971, is not violative of Articles 245 and 246 of the Constitution and it is not unreasonable, discriminatory or unconstitutional and void. The 1997 Bye-Laws and the settlement of check-gates and parking places for the year 2002-03 are not without legislative competence or nullity in law nor do the Bye-Laws seek to legislate on a subject falling exclusively under Entry-23 of List-1 of the VIIth Schedule to the Constitution of India. The GMC Act, 1971, and the impugned 1997 Bye-Laws can coexist with the Central Legislation, i.e., the National Highways Act, 1956 and the National Highways Authority of India Act, 1988. The aforesaid State legislations and the Central Legislations are capable of reconciliation. Compliance with the provisions of the concerned State Legislations do not involve non-compliance of the provisions of the aforesaid Central Legislations or vice versa. The State Legislature is competent to enact legislation providing for the levy and collection of imposts on the entry of vehicles, animals, etc. entering the Guwahati Municipal Area and, as such, the impugned levy and collection of imposts are valid. It is submitted that contrary to what is stated above, if it is held that the aforesaid State enactment and Bye-Laws framed thereunder cannot coexist with the aforesaid Central Legislation, in such event, the doctrine of pith and substance will necessarily apply and the impugned State Legislations shall prevail over the Central Legislation, in question. This Court may not adopt an approach or an interpretation, which has the effect of or tend to have the effect of whittling down the powers reserved for the States. The levy and collection of parking fee and imposts on vehicles, animals, etc. entering the GMC area amount of Rs. 14.00 crores, in total, which forms more than 70% of the total revenue received/collected by the respondent No. 5 and the same is utilized towards the developmental and maintenance works for the benefit of the public at large.
9. By filing an additional affidavit, the respondent No. 13 has set up his further case thus: The respondent No. 5 has not installed any check-gate and/or barrier on the National Highway. The respondent No. 5 has not taken any action, which restrict the free flow of movement of traffic. The respondent No, 5 has constructed toll collection booths and parking fee collection booths by the side of the road so as to enable smooth collection of toll and fee. The revenue generated from such collection of toll or fee as well as the relevant records like the vouchers, registers, etc., are public property and cannot be left open on the road side. The respondent No. 13 has made a prayer for a direction from this Court to respondent No. 9 to ensure that the personnel from the police task force be permanently stationed at the toll and parking fee collection booths. The respondent No. 13 has specified uniform for his agents and employees at the Check-gate as white shirt with light coloured trousers, which they faithfully comply while on duty, and he submitted a list of agents and employees along with their photographs and photo identity cards to the office of the respondent No. 5, on 10.4.2002, for counter-signing by the competent official of respondent No. 5, but the same have not been returned back to the respondent No. 13 till date. The respondent No. 9 seeks to rely on a report submitted by his subordinate officer, who ex-facie seeks punitive action against the respondent No. 13 on the basis of statements of unnamed persons recorded under Section 161 of the Criminal Procedure Code, which is not permissible in law. The Ministry of Surface Transport and Highways can legally be concerned only with smooth movement of traffic on the National Highways. It is in this perspective that they speak of installation of barriers on the National Highways as reflected in the letter dated 9.2.2001 (Annexure-B to the affidavit-in-opposition filed on behalf of respondent No. 9). As there is no barrier on the National Highways either in toll collection booths or in parking fee collection booths constructed by the respondent No. 5, the condition of having no barrier on the National Highways put by the Ministry of Surface Transport and Highways has been fulfilled and, as such, the settling aside and quashing of the 1997 Bye-Laws and Settlement order, dated 31.3.2002, aforementioned does not arise at all. The Ministry of Surface Transport and Highways, Government of India, is not and cannot be concerned with the revenue generating act on the part of any constitutional authority in exercise of the powers validly granted under any State law. There can be no direction from the Ministry of Surface Transport to the constitutional authorities like the GMC or the State of Assam to restrain from collecting tax, toll or fee levied under the valid State laws. Any such direction, if made, is illegal, unconstitutional and cannot be enforced.
10. The case set up by the respondent No. 15, who is described the lessee of the parking place at NH-37 is thus: The writ petition has been filed at the behest of those, who were also trying to obtain lease of the parking place, in question. The petitioner has challenged the 1997 Bye-Laws without challenging the provisions of the parent Act, i.e., GMC Act, 1971. The writ petition is, therefore, not maintainable. The respondent No. 15 has not, at any point of time, installed any barrier on the National Highway for collection of taxes in terms of his settlement order or otherwise. The relevant legislation is within the ambit of the State Legislature nor is the impugned Bye-Laws are against the public interest and ultra vires the Constitution. The power of imposition of the tax by way of toll on vehicles and animals entering into the city of Guwahati has been specifically conferred on the GMC under Section 144(2)(c) of the Act. Collection of tax in the name of toll in exercise of this power is being done by the GMC as per the procedure and rates prescribed under the Bye-laws. Hence, it is denied that the Bye-laws of 1997 in any way seeks to legislate on National Highways or that it is in any manner hit by article 246(1) of the Constitution or that the imposition/levying of tax on vehicles passing through the National Highway No. 31/37 as well as the imposition of parking fees is in any way invalid or without any authority of law. Both the NH Act, 1956 and the 1997 Bye-Laws occupy different fields of legislation and can operate in separate zones and, hence, the 1997 Bye-Laws cannot be said to have attempted to prevail over the NH Act, 1956. The 1997 Bye-Laws is a valid piece of delegated legislation.
11. The respondent No. 17, who is the lessee in respect of Khanamukh check-gate, has also contested this case by filing his affidavit-in-opposition, his case being, in a nutshell, thus : The present writ petition is not maintainable on the ground that the respondent No. 17, being the lessee of Khanamukh Check-gate, which was settled vide order dated 3.6.2002 had not been initially impleaded as a party-respondent despite of the fact that specific allegations against the lessee of Khanamukh Check-gate had been made, apart from making a specific prayer for setting aside the said settlement, dated 3.6.2002. The writ petition was filed before this Court on 25.6.2002, i.e., approximately twenty two days after the said Khanamukh Check-gate was settled with Respondent No. 17. Thus, though the respondent No. 17 is a necessary party, his non-impleadment is enough to dismiss the writ petition. On the basis of the relevant enquiries in the office of the District Transport Officer, East Kamrup, the respondent No. 17 has learnt that the actual owner of the truck bearing registration Number AS-01/A-3946 is one Sri Dulal Mallick, son of Sri Motilal Mallick, and the claim of the petitioner that he is the owner of the said truck is absolutely false. Assuming, while not admitting, that the writ petitioner is the registered owner of the truck, in question, even then, from a bare perusal of the registration number of the truck owned by the petitioner, it is apparent that the said truck has been in business for the last 9 to 10 years and, as such, the petitioner has been regularly paying the Municipal tax/toll, in question, for the last as many years. That apart, the GMC has been collecting tax/toll continuously from the year 1976 without any objection being raised by the petitioner. In that view of the matter, the present petition having been filed only in June, 2002, is hit by delay and laches as well as the principles of waiver, estoppel and acquiescence and, as such, the writ petition does not merit any consideration by this Court. The conduct for the petitioner in approaching this Court at such a belated stage without affording any plausible explanation or reasons for such delay clearly establishes the fact that the petitioner has been set up by the business rivals of the respondent No. 17, who having failed in the tender process, have, now, embarked on this mission for the sole purpose of causing loss and injury to the respondent No. 17 by abusing the process of law. The settlement of Khanamukh Check-gate for the year 2002-03 was issued in favour of respondent No. 17 on 3.6.2002 by means of tender process involving competitive bidding. However, the business rival of the respondent No. 17, having failed to succeed in the tender process, have set up the petitioner to approach this Court by filing the present petition with the sole oblique intention of wrecking vengeance on the respondent No. 17, which would be fortified from the fact that levying of tax/tolls/fees on the same Highway by the Sales Tax Department/Forest Department as well as various other State Government Organization have not been challenged in the present petition even though the said tax/toll/fees are also collected by the agencies aforementioned by setting up check-gates side by side of the GMC Check-gates. The impugned levy of tax/ tolls/fees is collected under the authority of the 1976 Bye-Laws and the 1997 Bye-Laws merely prescribe the manner and mode in which the said levy is to be collected. However, in view of the fact that the 1976 Bye-Laws authorizing the GMC to levy and collect imposts on vehicles, animals, etc., entering the GMC area is not under challenge in the present petition, no effective relief can be granted to the petitioner by this Court. Although the petitioner has claimed to be earning his livelihood from the business of transportation of coal from Margherita to Guwahati, Rangia and Tura in the State of Meghalaya and other places in and around the State of Assam in his capacity as the owner of the truck aforementioned, yet, surprisingly, the petitioner has not annexed any documents, viz. the valid permit, etc., evidencing the fact that he is a genuine carrier of coal and other items nor has he furnished any particulars stating the definite points of loading and unloading of coal so as to establish the fact that during the course of transportation, the petitioner had, in fact, passed through Khanamukh Check-gate and has actually paid any tax/toll/fees as levied by the GMC. Non-furnishing of the aforesaid material particulars would have fatal consequences in so far as the maintainability of the present petition is concerned. Moreover, although the petition has been filed by a private individual, i.e., the writ petitioner, a bare perusal of the statements and averments so made in the petition makes it abundantly clear that the same are more in the nature of a Public Interest Litigation and, therefore, the petitioner, as a private individual, does not have any locus standi to maintain the instant writ petition and the same is liable to be rejected forthwith as the bona fide and credentials of the petitioner are clearly under a shadow of doubt. The petitioner has miserably failed to establish a case that there has been any restraint on trade or that free flow and movement of trade has been impeded. In view of Entry-59 of List-11 of the VIIth Schedule to the Constitution of India read with Article 246 as well as the provisions of Sections 144 and 416 of the GMC Act, 1971, the Bye-Laws, in question, have been enacted in accordance with the provisions of Article 265 of the Constitution of India. There is no notification whatsoever under Section 2(2) of the National Highways Act, 1956, declaring that the stretch of the Highway, upon which the Khanamukh Check-gate is situated, shall be a National Highway. In view of the fact that declaration under Section 2(2) of the NH Act, 1956, is the basic notification declaring a Highway to be a National Highway, no highway or any part thereof can be presumed, in the absence of such notification, to be a National Highway. The provisions of Sections 2, 11 and 16 of the NHA Act, 1988, only provide for vesting of certain National Highways and/or other Highways for development, maintenance and management to the NHAI. Assuming but not admitting that certain portions of the Highways, on which the Khanamukh Check-gate as well as certain other Check-gates stand installed, have been vested in the NHAI, yet the said stretches of Highways have been merely entrusted with the NHA for the purpose of development, maintenance and management and such vesting cannot by any stretch of reasonable reckoning be construed as declaration of the relevant stretch of Highway as a National Highway, as has been sought to be portrayed by the petitioner. To the best of knowledge of respondent No. 17, the stretch of the Highway commonly referred to as Guwahati bye-pass connecting Jalukbari with Khanapara belongs to the PWD (National Highway) of the Government of Assam. However, under the Prime Minister's Developmental Scheme, the aforesaid bye-pass has been entrusted and/or vested in the NHAI for the purpose of development of the said Highway even though the aforesaid stretch of the bye-pass has not yet been declared as a National , Highway by issuing any notification as required under Section 2(2) of the NH Act, 1956. The revenue, which is generated from the collection of tax/toll in the Check Gates including the one run by the respondent No. 17, forms a substantial part of the revenue generated by the Guwahati Municipal Corporation, which are being used for providing certain basic amenities and service to the public at large residing within the Guwahati Municipal Corporation areas as envisaged under the Act of 1971 and if such collection of tax/toll is prohibited by this Court, then, in such an event, the same would have a direct and adverse impact on the interest of the public at large insofar as the same would have a cascading affect in the services and amenities provided by the GMC that are being enjoyed by the residents of Guwahati. The power of enactment is derived from the Article 246(3). Therefore, the relienace placed by the writ petitioner on the Entry 23 of list-I of the VIIth schedule is of no avail. On the other hand, under Entry-59 of List-II of the VIIth schedule, the State of Assam is competent to enact the GMC Act, 1971, wherein under Section 144 read with Section 416, the power has been conferred by way of subordinate legislation upon the Respondent No. 5 to enact the Bye-Laws. Therefore, it cannot be said that the exercise of the power to enact the impugned Bye-laws are not traceable to any legitimate source. The challenge in the writ petition based on the grounds enumerated in the paragraphs 4(A) to 4(H) of the writ petition are wholly misconceived and legally not sustainable.
12. Elaborate submissions have been made before me on behalf of the parties and many of such submissions are repeatative in nature. However, the main issues, which this writ petition has raised, may, in brief, be summarized as follows :
(i) Whether the petitioner has the locus standi to file and maintain this writ petition ?
(ii) Whether there is delay in filing the writ petition and whether this delay is enough to dismiss the writ petition ?
(iii) Whether there was acquiescence on the part of the petitioner to the toll/tax/fee levied by the GMC and if on account of such acquiescence, the writ petitioner has forfeited his right to challenge the validity of the levy ?
(iv) Whether the Check Gates and the Parking Place, which are subject-matters of challenge in the present writ petition, are located on National Highways ?
(v) Whether the State, has the power to make law imposing toll/ tax/fee on the vehicles and animals moving on the National Highway and whether the State and its delegatee, namely, the GMC have acted beyond their competence in enacting the 1997 Bye-laws and in applying the same to the vehicles and animal entering into the municipal area but passing over the National Highways ?
(vi) Whether the 1997 Bye-laws is a valid piece of delegated legislation at all ?
(vii) To what relief(s), the parties are entitled ?
Point Nos. (i), (ii) and (iii)
13. Since the above points are closely inter-linked, I take up for the sake of convenience, all the above points together.
14. Let me, first, deal with the question as to whether the writ petitioner has locus standi to move this Court with the present writ petition. In this regard, it has been submitted, on behalf of the lessees and the GMC, that the writ petitioner has no locus standi to file and maintain this writ petition inasmuch as he, it is alleged, is not a "person aggrieved" and is not a bona fide litigant. The Writ petitioner, it is alleged, has not been able to establish that he is a "person aggrieved". It is pointed out that the vehicle, in question, was allegedly purchased by the Writ Petitioner only in March 2002, i.e., just on the eve of filing the Writ petition. This apart, no permit has been annexed to the Writ petition, it is pointed out, to show that the Writ petitioner as owner of the truck or as a carrier has ever had the occasion to cross the Check Gates and/or park his truck at the parking place in question. From these omissions, it can be concluded, according to the learned counsel for the GMC and the lessees, that the Writ petitioner has been set up by the unsuccessful bidders of the lease and business rivals of the lessees. Mr. K.N. Choudhury further submits that the petitioner can be termed as a busybody or meddlesome interloper, In support of this submission, reliance is placed on the Apex Court's decision in Jasbhai Motibhai Desai v. Roshan Kumar Hajibashir Ahmed, reported in (1976) 1 SCC 671, whenever it has been held as follows :
"37. It will be seen that in the context of locus standi to apply for a Writ of Certiorari, an Applicant may ordinarily fall in any of these categories : (i) 'Person aggrieved'; (ii) 'Stranger'; and (iii) 'Busybody or meddlesome interloper'. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things, which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of pro bono public, though they have no interest of the Public or even of their own to protect. They indulge in the pastime of meddling with the judicial process either by a force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some Applicants in this category, may be no more than speaking wheels of administration. The High Court should do well to reject the Applications of such busybodies at the threshold."
15. In short, it has been contended, on behalf of the contesting respondents, that the writ petitioner is not a "person aggrieved" on account of the fact that he has not produced any paper/document to show that he is the owner of the vehicle (Truck) bearing Registration No. AS-01A-3946 and/or that he earns his livelihood from the business of transportation of coal and other items. The petitioner also has not produced, it is submitted, any road permit, which could show that his truck plies on the routes on which he claims to have been plying his truck, i.e., from Margherita to Guwahati and Rangia, in the State of Assam, and Tura, in the State of Meghalaya. Reacting to such assertions made on behalf of the respondents, the petitioner has submitted, in this case, a certificate of registration in respect of the said vehicle and also requisite road permit, which indicate that the petitioner has been the owner of the vehicle since 25-3-2002 and he also holds a permit enabling him to ply, the vehicle, in question, on the routes on which the check-gates and parking place, in question, are located. This apart, the petitioner has also produced, in this case, receipts issued by various Check gates and Parking Place, set up by the GMC, for collection of toll/parking fees. It is alleged by the petitioner that apart from the fact that the GMC has no right to collect toll/tax/fees/ the petitioner is required to pay, like many others, much more than what the rate for such toll/ tax or fees has been fixed by the GMC and such extortions are in flagrant disregard of law, which the GMC and the State Government have allowed to continue. The respondent No. 9, who is the Director General of Police, Assam, has submitted in his affidavit that the allegations of extortion of money from persons, who ply vehicles on the routes, in question, are rampant. Though the GMC and the lessees, in question, have vehemently denied such accusations of extortion taking place and though it becomes a question of fact as to whether the allegations of extortion are true or not, suffice it to mention here that when the petitioner has approached this Court with the grievance that toll/tax/ fees is being illegally collected from him and that the amount so collected is much more than what the Municipal authorities have fixed and when this allegation is supported by the affidavit of none other than the Director General of Police, Assam, this Court cannot outright shut the door of the Court for the petitioner by calling him "meddlesome interloper" as has been contended by Mr. K.N. Choudhury, learned Senior counsel for the respondent No. 17, and it becomes the duty of this Court to examine if there is any truth in any of the allegations made by the petitioner and/or in the grievances with which the petitioner has approached this Court. In other words, once the writ petitioner has prima facie shown that the petitioner has approached this Court, not for indulging in pass time, the writ petition cannot be closed as not maintainable. I have, therefore, no hesitation in holding that the writ petition is maintainable and this Court is bound to examine various contentions of the petitioner to see if interference by this Court is called for.
16. It is true, as has been contended by Mr. K.N. Choudhury, learned Senior counsel appearing on behalf of the respondent No. 17, that it is no more res-integra that in the writ petition and/or counter affidavit, if the facts are not pleaded or the evidence in support of such facts is not annexed to the pleadings, the Court will not entertain the point. The Apex Court has clearly held in Bharat Singh v. The State of Haryana, reported in (1988) 4 SCC 534, that there is a distinction between the pleadings under the writ petition/affidavit and plaint and that while in a pleading, that is, in a plaint or a written statement, facts and no evidence are required to be pleaded, in a writ petition or a counter affidavit, not only that facts have to be pleaded, but also evidence in proof of such facts are to be annexed thereto.
17. In view of the fact that the petitioner has produced the relevant registration book in respect of the said vehicle and also a valid permit showing, as indicated hereinabove, that he is the registered owner, of the vehicle aforementioned and he holds a valid permit to ply the vehicle on various routes, which pass through areas, where the check-gates and parking place, in question, are located, and when the petitioner has also produced some receipts issued by the GMC's collection counters aforementioned, one cannot treat the petitioner as a disinterested and/ or non-aggrieved person nor can this Court avoid looking into the grievances of the petitioner that the tax/toll/fees, which the lessees, in question, with the consent of the GMC, collect is illegal and invalid. This apart, it is imperative to note that the petitioner has stated in his writ petition that he is owner of the said truck and that he earns his livelihood from the business of transportation of coal and other items. Nothing has been produced and/or submitted by the contesting respondents to show that these averments are untrue or incorrect.
18. Though it has been alleged by the GMC and the lessees, in question, that the petitioner has been projected as an aggrieved person by those persons, who could not succeed in obtaining lease of various Check Gates and Parking Places, for the purpose of settling their personal scores, nothing has been produced before this Court in support of such allegations. This Court has been urged upon to draw such an inference from the fact that though Check Gates, similar to the ones that the GMC has set up, have been set up by other departments of the Government, namely, Sales Tax, Forest etc. on the same routes on which the GMC Check Gates stand installed, the petitioner has expressed no grievance against them and, hence, the Court may infer that the petitioner is a person, who has been projected by the unsuccessful bidders of the CMC's Check Gates; otherwise, there is no reason why while challenging the legality and functioning of the GMC Check Gates, the petitioner expresses no grievances against the Check Gates of other governmental departments such as Sales Tax Department, Motor Vehicle Department, Forest Department etc. In this regard, it is of great importance to note that the petitioner has refuted this allegation by submitting that these departments have a primary legislation to enforce such collections, whereas the impugned By-laws of the GMC cannot give a valid authority to the GMC to collect toll in the manner as has been done by them. Though this assertion of the writ petitioner may or may not be correct, this Court cannot infer merely from the fact that the writ petitioner has not challenged the legality of the Check Gates established by other departments of the Government that the petitioner is working as a front man for unsuccessful bidders of the CMC's Check Gates, particularly, when there is not even an iota of materials on record to substantiate such an allegation made against the petitioner and when there is no accusation made before this Court that any kind of extortion takes place in the name of collection of tolls at the check gates set up by the other governmental departments.
19. Reference, therefore, made by Mr. K.N. Choudhury to the case of Jasbhai Motibhai Desai v. Hoshan Kumar Haji Bashir Ahmed reported in (1976) 1 SCC 671, has no application to the facts of the present case.
20. Now, turning to the question as to whether the Writ petition is not maintainable on the account of unexplained delay and latches on the part of the writ petitioner, as has been alleged by the GMC and the lessee aforementioned, it may be pointed out that it, has been alleged by these respondents that the tax/toll/fees have been levied by the GMC for a long time and since, at least, 1997, when 1997 Bye-laws came into force in pursuance of the powers contained in the GMC (Toll on Vehicles and Animals) By-laws 1976 (hereinafter referred to as "the 1976 Bye-laws") which had come into force in the year 1977. Hence, the writ petitioner has approached this Court, according to the respondents aforementioned, after a delay of, at least, 5 years. This inordinate delay, according to the contesting respondents have not been explained convincingly and the writ petition is, therefore, liable to be dismissed. Reference in this regard has been made to Aflatoon and Ors. v. Governor of Delhi and Ors., reported in (1975) 4 SCC 285, (1994) 6 SCC 620 (K.R. Srinivash v. R.M. Premchand), 1993 Suppl. (2) SCC 20 (Ram Jas Foundation v. Union of India).
21. While dealing with the above aspect of the matter, it is worth noticing that the petitioner has become the owner of the vehicle aforementioned on 25.3.2002 and according to what he has pleaded, he has started working as a transporter of coal etc. as owner of the said truck since 25.3.2002 in such a situation, it cannot be really said that the writ petition suffers from inordinate delay. Moreover, since the writ petitioner has approached this Court with the grievance that tax/toils/fees are being illegally enforced and rampant extortions are being indulged in, this Court cannot stop short of examining the truth or merit in these allegations by taking recourse to the technical plea of delay and latches, for, non-interference by Courts in exercise of their Writ jurisdiction into belated and stale claims is not a rule of law but a rule of practice. Since interference in stalle claims may have to make the Court upset the right, which has, in the meanwhile, accrued in favour of someone else/ the Courts, at times, decline to interfere with belated claims, but when the materials on record do not show existence of delay or the delay is explained, the Court cannot refuse to interfere on the plea of delay and latches. In this regard, reference made by Mr. A. Chowdhury to Dehri Rohtas Light Railways Co. Ltd. v. District Board, Bhojpur and Ors., reported in 1992 (2) SCC 598) is not entirely misplaced inasmuch as the Apex Court in this case has held as follows :
"The rule which says that Court may not interfere into belated and stale claim is not a rule of law, but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose......... The test is not the physical running of time. Where the circumstances justifying the conduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches." (Emphasis is added)
22. It is also of immense importance to note, at this stage, that acquiescence to a law, which suffers from lack of jurisdiction, cannot make the law valid nor should it restrain the Court from giving relief to the person wronged merely on the ground that the person wronged had acquiesced to such invalid law. I am guided to adopt this view from the law laid down in Lohia Machine Limited v. Union of India and Ors., reported in 1985(2) SCC 197, wherein the Apex Court has laid down as follows :
"It is a settled law that acquiescence in an earlier exercise of rule making power which was beyond the jurisdiction of the rule making authority cannot make such exercise of rule making power or a similar exercise of rule making power, at a subsequent date, valid. If a rule made by rule making authority is beyond the scope of its power, it is void and it is not at all relevant that its validity has not been questioned for a long period of time : If a rule is void it remains void whether it has been acquiesced or not." (Emphasis is supplied)
23. That acquiescence to illegal levy of tax cannot debar the person concerned from claiming relief has been succinctly and authoratively laid down by the Apex Court in Amalgamated Coal Fields v. Janapada Sabha Chhindwara, (AIR 1961 SC 964), wherein it has been held as follows :
"2. It may be stated at the outset that the tax now impugned has been imposed by the local authority from March 12, 1935 and that the first occasion when its validity was attacked was in only 1957, though if the petitioners are right in their submissions, their acquiescence might not itself be a ground for denying them relief...." (Emphasis is added)
24. Acquiescence to an illegal collection of tax cannot legalise such collection. Since a levy is guided by law, be it in the form of fees, tolls or taxes, it has to have sanction of law. Courts cannot shirk its duty to examine such grievances by taking recourse to technical plea of delay and allow thereby, albeit inadvertently, illegal levy to continue, particularly, when levy is not in respect of one time payment, but a continuous act of collection of levy.
25. The principle that acquiescence to an illegal tax for a long time is not a ground for denying relief to the petitioner has also been dealt with and settled in Gopal Narain v. State of Uttar Pradesh and Anr. (1964 SC 370) in the following words :
"15.... the house tax was imposed with effect from January 31, 1870 and the latrine tax was imposed with the effect from May 23, 1981 and the latter tax was replaced by scavenging tax with effect from April 1, 1939. Though decades have passed by, no one has questioned till now the validity of those taxes on the ground that the procedure was not strictly followed. There is a presumption, when a statutory authority makes an order, that it has followed the prescribed procedure. The said presumption is not in any way weakened by the long acquiescence in the imposition by the residents of the Civil Lines. Nonetheless no tax shall be levied or collected except in accordance with law. If it is not imposed in accordance with law, it would infringe the fundamental right guaranteed under Article 19(1)(f) of the Constitution. While the long period of time that lapses between the imposition of the tax and the attack on it may permit raising of certain presumptions where the evidence is lost by efflux of time, it cannot exonerate the statutory authority if, it imposes a tax in derogation of the statutory provisions. We will, therefore, proceed with the specific objections raised by the petitioner." (Emphasis is supplied)
26. It is submitted by Mr. N. Dutta, learned Senior counsel, that though the validity of the 1997 Bye-law has been challenged, the validity of the Section 144(2)(c) read with Section 416 of the GMC Act, 1971, which are the enabling provisions, have not been challenged. It is pointed out by Mr. Dutta that the Legislature, while enacting the GMC Act, 1971, expressly made provisions for imposition of toll under Section 144(2)(c) on vehicles and animals entering the city. It also pointed out by Mr. Dutta that the State Legislature, in exercise of powers conferred by Entry-59, List-II of the VIIth Schedule of the Constitution of India, has empowered the Municipality to impose toll. This apart, power to frame Bye-laws for levying tax, etc, has been conferred upon the GMC, according to Mr. Dutta, by Section 416, The 1997 Bye-laws having been framed under the statutory powers conferred on the GMC Act 1997, which, again, is traceable to legitimate a source, i.e., Entry-59 of List-II of the VIIth Schedule of the Constitution of India, the contention of the Writ petitioner that the GMC has no authority to collect toll/tax/ fee is, submits Mr. Dutta, wholly misconceived.
27. In fact, contends Mr. Dutta, the power to impose and collect the impost, which is under challenge, is derived by the GMC from the 1976 Bye-law and the impugned 1997 Bye-laws merely lay down the procedure for settling the Check Gates, Parking Places etc. Thus, the power to frame the 1997 Bye-laws and impose the levy is derived from the 1976 Bye-laws but the 1976 Bye-laws, which is the enabling provision so far as the imposition of levy is concerned, is not under challenge.
28. Lending support to what Mr. Dutta points out, Mr. K.N. Choudhury has submitted that the Writ petitioner cannot be permitted to challenge the 1997 Bye-laws on the grounds enumerated in the Writ petition without challenging the 1976 Bye-laws. The only logical inference, according to Mr. K.N. Choudhury, which can be drawn from the omission of the Writ petitioner to challenge the validity of Section 144 read with Section 416 of the GMC Act, 1971, and the 1976 Bye-laws is that the levy is good, but the manner in which it is sought to be collected is bad. The fact that the Writ petitioner has challenged the manner of collection of levy and not the authority to levy is, according to Mr. Choudhury, ample proof of the fact that the Writ petitioner has been set up by the business rivals of the lessees.
29. As regards the effect of the petitioner having not challenged the validity of the GMC Act, 1971, and the 1976 Bye-laws, suffice it to mention here that if need be, the Court will, at the most, examine validity of the 1997 Bye-laws presuming that Section 144 and 416 of the GMC Act as well as the 1976 Bye-laws are valid, but the mere fact that validity of the relevant provisions of the GMC Act, 1971, and the 1976 Bye-laws have not been challenged cannot become a ground to outright dismiss this writ petition as not maintainable.
30. Another ground on which the writ petition is claimed to be not maintainable in its present form is that the respondent No. 17, who is, as lessee of Khanamukh Check-Gate, a "necessary party", was not impleaded as a party respondent. In view of the fact that the respondent No. 17 already stands made a party, I do not see any merit in this submission.
Point No. iv
31. Let me, now, turn to the merit of the present writ petition. On coming to the merit of the Writ petition, what is of paramount importance to note is that it has been agitated by the respondents No. 13 and 17, who are lessees of Khanapara Check Gate and Khanamukh Check Gate respectively, that the Check Gates, in question, are not on National Highways. Neither the State Government nor the GMC has disputed that the Check Gates and the Parking place, in question, are on the National Highway. However, as the dispute raised by the lessees aforementioned hits at the root of the Writ petition and may substantially affect the outcome thereof, it is necessary to determine if the Check Gates as well as the parking place, in question, are located on the National Highways. The question so posed needs this Court to carefully examine in the light of the provision of the National Highway Authorities Act, 1988 (i.e., NHA Act, 1988), the National Highway Act, 1956, (i.e., NH Act, 1956) in the present form and also as it existed before its present amendments made in 1997 by the National Highways Laws Amendment) Act, 1997.
32. Highways, in India, generally fall into two categories, viz. National Highways and State Highways. The N.H. Act, 1956 specifies the highways which are termed as National Highways by describing the points/places from which the highways originate and terminate including, broadly speaking, the places through which such highways pass.
33. Section 2 of the NH Act, 1956, which relates to declaration of certain Highways to be National Highways, as originally enacted, is quoted hereinbelow :
Declaration of certain highways to be National Highways :
(1) Each of the Highways specified in the Schedule except such parts thereof as are situated within any Municipal area is hereby declared to be a National Highway.
(2) The Central Government may by notification in the Official Gazette declare any other Highways to be National Highways and on publication of such notification, such Highways shall be deemed to be specified in the Schedule.
(3) The Central Government may by like notification omit any Highway from the Schedule and on publication of such notification, the Highways so omitted shall cease to be National Highway.
34. Section 3 of the National Highways Act, 1956, as originally enacted, defined the expression "Municipal Area" to mean "any Municipal area with a population of 20,000 or more, the control or management of which is entrusted to a Municipal Committee, a Town Area Committee, A Town Committee or any other Authority".
35. The preamble of the NH Act, 1956, makes it clear that this is an Act to provide for declaration of certain Highways to be National Highways and for matters connected therewith. The expression "National Highway" has not been defined in the NH Act, 1956, but, the same has been defined under Section 2(c) of the NHA Act, 1988, thus: "National Highway means any highway for the time being declared as a National Highway under Section 2 of the National Highways Act, 1956".
36. Sub-section (1) of 2 of the NH Act, 1956, as it stands now, provides that each of the highways specified in the Schedule is hereby declared to be a National Highway. Sub-section (2) of Section 2 provides that the Central Government may, by notification in the Official Gazette, declare any other highways to be National Highway and on publication of such notification, such highway shall be deemed to be specified in the Schedule. Sub-section 3 of Section 2 provides that the Central Government may, by notification omit any Highway from the Schedule and on publication of such notification/ the Highways so omitted shall cease to be national Highway.
37. It has been submitted by Mr. N. Dutta, learned Senior counsel appearing on behalf of the respondent No. 13, that with the omission of the expression "except such part thereof as are situated within any Municipal area" will logically means that after the amendment of the NH Act, 1956, the portion of the National Highway 37, which, originally, passed through the city of Gauhati from Jalukbari to Jorabat via Khanapara and connected Guwahati with Jorabat becomes the National Highway 37 and the stretches of the National Highway 37, which came into existence in the form of Gauhati bypass, i.e., the stretch between Jaiukbari and Khanapara since after 1956 cannot be treated as part of the National Highway 37 nor can the stretch between the original junction point of the National Highway 31 near Pandu and the present Jalukbari junction be treated as part of the National Highway 31, for, there is no notification, points out Mr. Dutta, under Section 2 of the NH Act, 1956, declaring the stretches aforementioned as National Highways. This plea is supported by Mr. K.N. Choudhury also. The contention of the lessees concerned, it is submitted, needs to be appreciated because of emergence of the Guwahati Bypass from Jalukbari point of National Highway 37 to Khanapara via Beltola. No materials has been placed before this Court, points out Mr. K.N. Choudhury, either by the National Highway Authority of India or by the writ petitioner to show which stretch of the National Highway 37, i.e., one going through the city (Assam Trunk Road meeting at Jorabat) or the Guwahati bypass has been declared to be National Highway 37 by the amendments introduced in 1997. This contention assumes special significance, submits Mr. K.N. Choudhury, on account of the fact that after the 1997 amendment, either of the aforementioned stretches of the road are capable of being construed as National Highway 37. The submissions are, undoubtedly, attractive.
38. Let me, now, examine as to how far the above submissions can be said to be correct in the reality of the situation.
39. While answering the above question, it is of immense importance to note that whether a particular stretch/highway/road/passage/ thoroughfare is a National Highway or not is a mixed question of fact and law and cannot be treated as mere question of fact and/or a mere question of law.
40. While dealing with the above aspect of the matter, it is also necessary to bear in mind that since after enactment of the NH Act, 1956, ground realities have changed substantially all over the country. There was a time, way back in 1956, when many of the National Highways all over the country used to pass not only through major cities in the country but also through small townships and the stretches, which were so passing through Municipal areas stood, as defined in Section 2 of the NH Act, 1956, excluded from being National Highway; but since thereafter, link roads were made and developed all over the country-linking two different parts of the same National Highway through such link roads, which are popularly known as bypass, with a view to enabling the vehicles/persons passing over the national highway to avoid travelling through thickly populated cities/townships thereby making the flow of traffic more convenient for the persons passing through the National Highways and also for the convenience of the residents of the Municipal areas. The question, now, is as to what was/is the status of such link roads or the bypass ?
41. With regard to the above, it is extremely important to note that vide letter No. NHI-40(1)/68, dated 31st January, 1969, the Government of India clarified its stand on the bypasses as follows :
"Subject : Maintenance of National Highway connection two ends of a bypass.
I am directed to refer to your letters No. 2148E/23/PWE-59/N/66, dated the 5th April, 1968 regarding maintenance of the National Highway bypasses and the abandoned portions of the Highway thus bye passed and to say that the Government of India have been advised that under Section 5 of the National Highways Act 1956, it is their responsibility to develop and maintain in proper repair all National Highways. Changes in alignment do take place occasionally and where that happens, it is responsibility of the Central Government to maintain the changes in portion of the National Highways. In the Schedule attached to the National Highway Act, the highways are described in general terms and the alignments are not specified. It does not appear to be intention of the Act that any changes in the Schedule should take place merely because of changes in alignments of portions of the National Highways automatically becomes part of the National Highways can be administratively made over to the State Government for maintenance without making any changes in the schedule to the Act or issuing any notification under Section 5 thereof."
42. By another letter No. NHI-40 (1)/68, dated 1st March, 1969, the Government of India further clarified its stand as follows :
"Subject: Maintenance of National Highways connecting the two ends of a bypass.
I am directed to refer to your letter No. 46GIE/XXIII-PWE-59N/66, dated 15th March, 1969 and to confirm that the abandoned portion of the National Highway ceases to be a part of the National Highway system and no longer vests in the Government of India. The State Government to whom the abandoned portion of the National Highway is made over are competent to transfer it to any local authority under its control."
43. Changes in the alignment of the National Highway, it is not disputed, do take place for various reasons. If the National Highway is a curved one, the same may be straightened and the curved portion of the Highway may stand abandoned. Whether such abandoned portion will continue to remain as National Highway and whether the straightened portion will not become National Highway until the time a notification, as envisaged in the Section 2 of the NH Act, 1956, is published.
44. Interpretation of the statute has to be forward-looking and not retrogate. It may so happen that the abandoned linked portion of the National Highway may completely cease to be a highway/thoroughfare and it may even turn into a jungle. Should it be, in such a situation, claimed that since no notification under Section 2 of the NH Act, 1956, has been published to exclude the abandoned portion of the National Highway or to include the newly created linked portion of the National Highway, the abandoned portion will continue to remain as the National Highway. Such an interpretation will be far away from realities of life inasmuch as, on such an interpretation, the National Highway may exist, according to the statute, on a particular stretch, whereas in reality, it will not. Such a conclusion will be ridiculous.
45. Therefore, it logically follows that if a portion of the National Highway is abandoned, it ceases to be National Highway and the portion of the Highway, which links two disjointed portions of the same National Highway, shall be treated as the "National Highway". The abandonment of such a portion of the National Highway is not really exclusion of the National Highway inasmuch as the National Highway will still exist. Existence of Highway is a condition precedent for enabling the Parliament to declare the Highway as a National Highway or for the Central Government to declare, by notification, the Highway as the National Highway. The word "Highway" has not been defined in the NH Act, 1956. According to the Shorter Oxford Dictionary. On Historical Principles, Vol II, 3rd Edition, "Highway means a public road open to all passengers, a high road ; esp. a mail or principal road. The ordinary or main road by land or water". Chambers Dictionary (Revised Edition 1976) shows that "Highway" means : A public road on which all have right to go ; the main or usual or course. Thus, the Highway is nothing but a principal or a main road connecting two different places. Such connection will remain existing even when a portion of the original Highway stands abandoned.
46. Though there is provision for either inclusion of a Highway within the ambit of National Highway and for exclusion thereof, there is no provision in the NH Act, 1956, for abandonment of the original link of the National Highway. On account of by-pass or link road, the National Highway is not excluded but remains existing. Since the NH Act, 1956, is silent on this aspect, it can be filled up by executive instructions and, i.e., precisely what the Government of India has done. When the NH Act, 1956, was amended in 1997, by the National Highway Laws (Amendment) Act, 1997, one has to assume that the Parliament was aware of the Government of India's stand with regard to abandonment of the stretches of the National Highways and of various
notifications/circulars issued in this regard and the Parliament must be deemed to have put its seal of approval on such
47. Thus, when the bypass becomes the principal road linking one part of the National Highway with another, such a bypass is nothing but the National Highway and the portion, which is abandoned, ceases to be a part of the National Highway. Notwithstanding such a situation, since the National Highway still continues to stand and the link between the two places, joined by the bypass, still survives, it cannot be said that the National Highway, on account of the bypass and/or abandonment of old portion of the National Highway, has ceased to exist. Assuming for the sake of argument that a part of the National Highway is eroded by water or is destroyed by any other natural calamities, but the portion of the National Highway, which has been so eroded, is linked by a new road, such a link road will make the National Highway survive, for, by the new link road, only alignment is changed and not the National Highway.
48. What, thus, crystallizes from the above discussions is that after the amendments in 1997, introduced into the NH Act, 1956, the omission of the words "except such part thereof as are situated within any Municipal area" will mean that if the National Highway passes through the Municipal area, such a Highway, notwithstanding the fact that it falls within the municipal area, will, now, be treated as National Highway, but if it has not been in use and bypass has been created, in the meanwhile, the bypass will be treated as the National Highway. In other words, such a bypass does nothing but connects two points of the same highway. Since the National Highway still exists connecting the two places, the abandonment is really not exclusion nor is the bypass a new inclusion and, hence, a new notification, as envisaged in Section 2 of NH Act, 1956, is not really required.
49. There is no dispute before me that by the notification No. SO 464 (E), dated 26.4.2002, issued by the Ministry of Road Transport and Highways, Government of India, the National Highway 31 passing from Guwahati to Nagaon including Guwahati bypass stands entrusted, in accordance with provisions of Section 5 of the NH Act, 1956, to the National Highway Authorities. There is also no dispute that vide notification No. SO 465(E), dated 26.4.2002, issued by the Ministry concerned, Government of India, National Highway 31 from Gauhati to Nalbari-Bijni Section as well as National Highway 37 from Nagaon to Gauhati including Guwahati bypass stand entrusted to the National Highway Authorities under Section 11 of the NHAI Act, 1988. It is also not disputed that by Notification No. SO 196(E), dated 6.3.2000, the National Highway No. 37, Guwahati bypass section stands entrusted to the National Highway Authority of India by the Central Government in exercise of their powers under Section 11 of the NHAI Act, 1988.
50. In the context of what has been pointed out above, when we come the tactual matrix of the present case, we have to bear in mind the fact that in 1997, when the Parliament amended the 'National Highway Act, 1956, it was aware of the situation that bypass did exist connecting Jorabat with Guwahati on the periphery of the municipal area and that the road, which was passing through the city of Guwahati linking Guwahati to Jorabat, stood abandoned. The Parliament was also aware that the newly created bypass between Khanapara, where the Khanapara Check Gate stands set up, and the Jalukbari junction, has been handed over to the National Highway authorities.
51. In such a situation, when the Parliament declared, in 1997, in respect of National Highway 37 that this Highway starts from its junction near Goalpara and connects Guwahati with Jorabat, etc., it meant that the Highway, which stood entrusted to the NHAI, became the National Highway.
52. The Parliament was also aware of the existence of Saraighat bridge and in this background, when it specifies in the Schedule to the NH Act, 1956, that the National Highway 31 is the one, which is passing from Bhaktiyarpur, etc., and proceeding 'generally' via Nalbari, Chariali and Amingaon to its junction with the National Highway 37 near Pandu, it meant the stretches of the highway between the points, where National Highway 37 meets National Highway 31, is included within the National Highway. Any other interpretation of the Schedule to the National Highway Act, 1956, will be far away from the ground realities. The interpretation of the Statute, which is akin to ground reality, has to be accepted by the Court and not what is belied by the realities of life.
53. From the above, it is abundantly clear that the National Highways Act, 1956, in its Schedule does not provide the "route", but only provides and indicates, (in the light of Section 2 of the Act), the "point to point" connection of a Highway as a National Highway. Thus, any fresh re-alingment and/or re-routing of such "point to point" connection indicated in the Schedule of the NH Act, 1956, does not require a fresh notification from the Central Government. Therefore, in the same logic, the bypass connecting already existing two points (places) as indicated in the Schedule mentioned in the Act is not required to be notified afresh as a National Highway.
54. For what have been discussed here, I have no hesitation in concluding that the check-gates and the parking place under challenge are located on National Highways.
Point No. v
55. Having settled that the Check Gate and the parking place, in question, are located on the National Highway, let me, now, advert to the issue under point No. v
56. While dealing with the above aspect of the matter, it is pertinent to note that it has been contended, on behalf of the petitioner, that under Entry 23 of List I (Union List), it is the Parliament, which can legislate on the subject of National Highway and no State Legislature can make a law, either directly or indirectly, to set at naught the legislation made by the Parliament on the subject of National Highway. In the case at hand, points out Mr. G. Subramanium, the GMC, while making the 1997 Bye-laws, has made it in such a way that it allows them to set up Check-Gates and Parking places on the National Highway, which the GMC has no authority to do. It is also contended, on behalf of the petitioner, that there is no primary legislation, i.e., no enactment by the State authorizing the GMC to set up Check Gates and Parking places on the National Highways and, hence, in the absence of any such primary legislation, the GMC cannot make any Bye-laws authorizing itself to set up Check Gates and Parking places on the National Highways. A legislation, such as 1997 Bye-laws, may not, according to Mr. Subramanium, be allowed to continue.
57. The learned Advocate General, Assam, who has been heard on account of the fact that the vires of the 1997 Bye-laws, was under challenge, has submitted, on his appearance before the Court, that he is not representing any of the parties to this writ petition and that his mere role is to assist the Court to arrive at a correct decision on the subject-matter of dispute.
58. It has been submitted by the learned Advocate General that though under Entry 23 of the Union List, it is the Parliament, which has the power to legislate on the subject of national highway, any law, which the State Legislature makes, with respect to any of the entries in the State List, will be valid even if there is incidental encroachment into the Parliamentary legislation, for, it is the doctrine of pith and substance, evolved by the Courts, which saves such a State legislation if the State legislation is, in pith and substance, can be traced to any entry in the State List. If in pith and substance, submits learned Advocate General, the 1997 Bye-laws can be traced to an entry in the State List, then the Bye-laws will be intra-vires.
59. It is also submitted by the learned Advocate General that the State, in exercise of its powers contained under Entry 5 read with Entry 59 of the State list, has enacted the GMC Act, 1971, and Section 144(c) thereof allows the Municipalities to impose toll on entry of vehicles and animals entering the city and it is Section 416 of the GMC Act 1971, which empowers the Municipalities to frame Bye-laws for collection of tolls. Thus, the 1997 Bye-laws can be safely traced, contends the learned Advocate General, to the Entry 5 and 59 aforementioned. Looked at from this angle, contends the leaned Advocate General, the imposition of tolls by the GMC on the vehicles and animals entering the city is valid even if the place of collection happens to be the national highway inasmuch as the national highway, points out the learned Advocate General, forms part, in the present case, of the municipal area of the GMC.
60. Lending support to the above submissions made by the learned Advocate General, Mr. N. Dutta has referred to AIR 1947 PC 60, (1970) 3 SCC 355, AIR 1981 SC 1863, (1984) 2 SCC 302, AIR 1983 SC 937, AIR 1989 SC 516 to show that in pith and substance, the 1997 Bye-laws is valid. This plea has also been supported by Mr. E.N. Choudhury, Mr. A.M. Mazumdar and Mr. B.P. Todi and they have relied in support of their submissions on AIR 1950 SC 11, AIR 1955 SC 504, AIR 1957 SC 297, AIR 1960 SC 424, AIR 1966 SC 1780, AIR 1970 SC 999, AIR 1972 SC 215, AIR 1977 SC 1825, 199 (Supp) 1 SCC 707, 1995 (Supp) 2 SCC 187, AIR 1998 SC 2636, AIR 1999 SC 1144, 2002(7) Scale 435 and 2002 (1) Scale 327. The learned counsel for the parties also relied upon AIR 1949 FC 81, AIR 1950 FC 69, AIR 1957 SC 18, AIR 1964 SC 925, AIR 1966 SC 619, AIR 1975 SC 1088 and 2002 (1) Scale 327.
61. In addition to what the learned Advocate General and the learned Senior Counsel for the lessees have submitted on the validity of 1997 Bye-laws, Mr. B.P. Todi, learned Senior Counsel appearing on behalf of the respondent No. 5 (i.e., the GMC) has submitted that the GMC earns considerable amount of revenue from the toll/fees collected at the check gates and parking places, which are under challenge, and with the help of the collections so made, GMC provides various facilities, such as, sweeping of the roads, street lights on roads, etc., for the residents of Guwahati and also for the persons passing, over the national highways located within the Corporation's area. Against providing such facilities, when the GMC collects tolls, points out Mr. B.P. Todi, such collections cannot be held to be bad in law.
62. As far as Mr. N. Dutta and Mr. K.N. Choudhury are concerned, they have, while supporting the case of the GMC, submitted to the effect that quid pro quo is not an essential element of toll inasmuch as a toll can be imposed, it is pointed out, for the privileges enjoyed and/or for the services rendered. In the case at hand, it is pointed out, the national highways fall within the area of the Corporation and since the Corporation allows vehicles and animals the privilege to enter into such areas, even when they are passing over the National Highways, the GMC is entitled under the law to impose and collect tolls from the vehicles and animals entering the city for the privilege so granted and various services, such as, street-lighting, sweeping of the road, etc., provided by the GMC. Support for this submission is sought to be derived by the learned Counsel for the lessees from the law laid down in International Tourists Corporation v. State of Haryana and Ors., reported in (1981) 2 SCC 318, Giridharilal v. State of J&K, reported in AIR 1969 J&K (FB) 113, Corporation of Calcutta v. Liberty Cinema (AIR 1965 SC 1107), Gopal Narayan v. State of U.P. (AIR 1964 SC 370), State of Karnataka v. Drive-in-Enterprise, reported in (2001) 4 SCC 60, Kerala State Electricity Board v. Indian Aluminium Company Limited, reported in (1976) 1 SCC 466, Meghalaya Truck Owners Association v. State of Meghalaya, reported in (1989) 2 GLR, ITC v. Agricultural Produce Market Committee and Ors. (AIR 2002 SC 852), Municipal Board of Haridwar v. Raghubir Singh (AIR 1966 SC 1502) and International Tourist Corporation v. State of Haryana, reported in (1981) 2 SCC 318 and Automobile Transport Company v. State of Rajasthan (AIR 1962 SC 1406).
63. Reacting to the above submissions made on behalf of the petitioner, it has been contended, on behalf of the contesting respondents, that the State has already legislated the GMC Act, 1971, and Section 144 thereof empowers the Municipality to impose toll on vehicles and animals entering into the City. This apart, it is pointed out, Section 416 of the GMC Act, 1971, permits the Municipality to frame Bye-laws for collection of toll/fees and it is in pursuance of the powers so contained under Section 416 that the GMC framed 1996 Bye-laws. Thus, according to the learned counsel for the contesting respondents, there is in existence a primary piece of legislation, which empowers the GMC to impose and collect toll from vehicles and animals entering into the city and by making 1997 Bye-laws, the GMC has merely made the arrangement for collection of toll, which is, it is reiterated, permissible under Section 416. Since neither the State nor the GMC has legislated on the subject of National Highways, the legislation of 1997 Bye-Laws is, according to the contesting respondents, a valid piece of delegated legislation, particularly, when, the petitioner does not, it is pointed out, challenge the validity of the GMC Act, 1971, and/or the legality of the 1976 Bye-laws. Even if the collection counters happen to be placed on the National Highways, though without restricting movement of traffic, it cannot be said, contends learned counsel for the contesting respondents, that the State or the GMC has encroached upon the forbidden territory of the Union List.
64. Before dealing with the merit of the rival submissions made before me on behalf of the parties, it is important to bear in mind that it is Article 245 of the Constitution, which gives the power to the State Legislature to make laws and Article 246(1) lays down that while the Parliament has exclusive power to make laws with respect to any of the matters enumerated in List-I in the VII Schedule, the State legislature has, vide Article 246(3), exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List-II in the VII Schedule subject, however, to the powers of the Parliament given under Article 246(1) meaning thereby that no State legislature can make laws setting at naught a piece of parliamentary legislation made under Article 246(1). As regards List III, i.e., concurrent list, Article 246(2) makes it clear that while Parliament as well as State Legislature have the power to make laws with respect to any of the matters enumerated in List III, yet in case of any conflict between the two, it is the legislation made by the Parliament, which shall prevail.
65. It is, no doubt, true that Entry 23 in the Union List empowers the Parliament to legislate on the subject of National Highways and no State Legislature can make any law with respect to the subject of National Highways. However, if a State legislation is one, which has been made under any of the entries in the State list, then, any incidental encroachment on the subject of the National Highways by the State Legislature can be overlooked.
66. Parliament or a State Legislature should keep within the domain assigned to it and should not trespass into the domain reserved to the other, and a law made by one that trespasses or encroaches upon the field assigned to the other is invalid. But before the legislation, with respect to a subject in one List and touching also on a subject in another List, is declared to be bad, the courts apply the rule of pith and substance. In determining whether an enactment is legislation "with respect to" a given power, what is relevant is not the consequence of the enactment on the subject-matter or whether it affects it, but whether, in its pith and substance, it is a law upon the subject-matter in question. This was emphasized very clearly in Gallagher v. Lynn, 1937 AC 863 at 870 in these words, "It is well established that you are to look at the "true nature and character of legislation' ; the "pith and substance of the legislation'. If, on the view of the statute, as a whole, you find that the substance of the legislation is within the express powers, then, it is not invalidated if incidentally it affects matters, which are outside the authorized field."
67. The doctrine of pith and substance has been developed in Canada. The leading Canadian cases on this doctrine are : Citizens Insurance Company v. Parsons, 7 AC. 96 ; Russell v. The Queen 1882, 7 A.C. 829 ; Attorney General for Canada v. Attorney General for British Columbia, 1930 A.C. 111.
68. The Federal Court in Subramanayam Chettiar case (AIR 1941 FC 47) followed the doctrine. In Prafulla Kumar Mukherjee (AIR 1947 PC 60) the Privy Council referred to Subramanayam Chettiar case in dealing with the question of distribution of powers and laid down the test of pith and substance. The Privy Council, while referring to Subramanayam Chettiar case, quoted Sir Gwyer, CJ, thus : "It must inevitably happen from time to time that legislation, though purporting to deal with a subject in one list, touches also on a subject in another list, and the different provisions of the enactment may be so closely intertwined that a blind observance to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the Legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule, which has been evolved by the Judicial Committee, whereby the impugned statute is examined to ascertain its 'pith and substance' or 'its true nature and character" for the purpose of determining whether it is a legislation with respect to the matters in this list or in that."
69. The doctrine of "pith and substance" adopted by the privy Council was followed by the Supreme Court in F.N. Balsara (1951 SC 318), the Supreme Court held that if an Act, when so viewed, substantially falls within the powers expressly conferred upon the Legislature which enacted it, then it cannot be held to be invalid merely because it incidentally encroaches on the matters which have been assigned to another Legislature. In such matters the seeming conflict or encroachment of jurisdictions, what is more important is the true nature and character of the legislation. A necessary corollary of the doctrine of pith and substance is that once it is found that in pith and substance the impugned Act is law on the permitted field any incidental encroachment in a forbidden field does not affect the competence of the Legislature to enact the law.
70. This rule envisages that the legislation as a whole be examined to ascertain its "true nature and character" in order to determine in what List it fails. If according to its "true nature and character" the legislation substantially falls within the powers conferred on the Legislature which has enacted it, then it is not invalid merely because it incidentally trenches or encroaches on matters assigned to another Legislature. To ascertain the true character of a law, it must be looked into as an organic whole. It would be a wrong approach to view the statute as a mere collection of sections, to disintegrate it into parts and then to examine under which entry each part would fall and then to determine which part of it is valid and which invalid. Instead, the Act should be taken in one piece and then its true character determined. The doctrine saves the incidental encroachment, if only the law in pith and substance falls within an entry within the legislative field of the particular Legislature, which has made it. The validity of legislation is not determined by the degree of invasion into the field assigned to the other Legislature though it is a relevant factor to determine its "pith and substance", as the legislation in question may advance so far into the other sphere as to show that its true nature and character is not concerned with a matter falling within the domain of the enacting Legislature, in which case it will not be valid. Once it is found that in pith and substance a law falls within the permitted field any incidental encroachment by it on a forbidden field does not affect the competence of the legislature to enact the law. Effect is not the same thing as subject-matter. If a State Act, otherwise valid, has effect on a matter in List I, it does not cease to be a legislation with respect to an entry in List II or. III.
71. The doctrine of pith and substance introduces a degree of flexibility into the otherwise rigid scheme of distribution of powers. It gives an additional dimension to the powers of the Centre as well as the States. The reason behind the rule is that if every legislation were to be declared invalid, however, slight or incidental the encroachment of the other field, then the power of each Legislature will be drastically circumscribed to deal effectively with the subjects entrusted to it. The doctrine gives quite a good deal of manoeuvrability to the courts and furnishes them with a tool to uphold legislation, for it is for them to decide its true nature and character and thus they have a number of choices open to them and most often the courts by putting a favourable interpretation on the legislation in question use their power to support the same. (AIR 1972 SC 2301). Therefore, in deciding whether any particular enactment is within the purview of one Legislature or the other, it is the pith and substance of legislation in question that has to be looked into (AIR 1990 SC 1927, para 67, AIR 1989 SC 516, para 23, (2001) 4 SCC 60, para 6],
72. It is settled position of law that if the source of power of the State Legislature can be traced to an entry in the State list, the enactment, as a whole, will be valid even if there is incidental encroachment on the field covered by parliamentary legislation or reserved for legislation by Parliament unless both the enactments are of such nature that none of the two can survive together. In such a situation, if the Parliamentary legislation can be traced to an entry in the Union List or Concurrent List, it is the Parliamentary legislation, which must prevail. Reference may be made to Sudhir Chandra Nawa v. Wealth Tax Officer (AIR 1969 SC 59) and Indu Bhushan Bose v. Rama Sundari Devi AIR 1970 SC 228).
73. It has been pointed out, and correctly so, on behalf of the contesting respondents, that it is Entry No. 5, which empowers the State to frame laws with regard to local Government, that is to say, constitution and power of municipal corporations. It is also correctly pointed out, on behalf of the contesting respondents, that Entry 59 empowers the State to impose toll. Hence, a combined reading of the Entries 5 and 59 shows that the State is empowered to frame laws empowering, in turn, Municipal Corporations to impose toll. The State has accordingly enacted the GMC Act, 1971, empowering the Municipality to impose, vide Section 144(2)(c), toll on the vehicles and animals entering the city.
74. Now, the question is as to whether the expression "City", occurring in Section 144(2)(c), will include the National Highways or exclude the same. Section 144(2)(c) may be, read to say that the Municipality can impose toll on vehicles and animals entering into the city irrespective of the fact whether such a toll is imposed on entry into the National Highway, located within the municipal area, or on other roads and highways located within the city.
75. I may pause here to point out that as indicated hereinabove, Section 2 of the NH Act, 1956, as originally enacted, declared certain Highways to be National Highways, but while so declaring the National Highways, it clarified that the National Highway shall not include such parts thereof as are situated within any municipal area.
76. By the National Highways Laws (Amendment) Act, 1997, the words "except such parts thereof as are situated within any municipal area" stand omitted.
77. From a bare reading of the above change, which has taken place, it is clear that before the amendment effected in 1997, the stretch/stretches of the National Highway, which used to pass through a municipal area, stood excluded from the national highway, and the consequence was that the State or the municipality concerned was free to enact any law in respect of the stretch/stretches aforementioned and it could, therefore, impose toll on vehides/animais entering into the city and passing over such stretch/stretches of the National Highway.
78. However, under the National Highway Act, 1956 (as stands amended in 1997), if a National Highway passes through a city, the National Highway shall stand excluded from the territorial limits of the area of the city. In other words, the National Highway will remain as National Highway, notwithstanding the fact that it is passing through a city and consequently, the Municipality, by virtue of Section 144(2)(c), can have, now, no power to make bye-laws to enable it to collect toll on such stretches of the National Highway.
79. Referring to Section 3A and 3D read with Section 4 of the NH Act, 1956, it is submitted by Mr. A. Chowdhury, on behalf of the petitioner, that the National Highway vests in the Union and, therefore, in view of Entry 23 of List-I of the VIIth Schedule, the Parliament alone is competent to make legislation on National Highway and that once a stretch of any Highway is declared as national highway, the same, in tune, with the Land Acquisition Act, vest absolutely in the Union of India free from all encumbrances.
80. Controverting the above submissions made by Mr. Choudhury, it is contended, on behalf of the lessees, that the meaning of the expression 'vesting", occurring under the Land Acquisition Act, cannot be attributed to the word 'vest' in the NH Act, 1956, which, according to learned counsel for the lessees, merely aims at declaring certain Highways to be National Highways and for matters connected therewith. Reliance in support of this submission is placed on the Full Bench decision in Giridharilal Anand Saraf v. State of Jammu & Kashmir, reported in AIR J&K (FB) 113, wherein while dealing with the meaning of the words "National Highways shall vest in the Union" as appearing in Section 4 of the NH Act, 1956, the Court held as follows :-
"13....Therefore, the argument of Mr. Grover that this National Highway as vested in the Union of India does not mean that the ownership of the roads has been transferred from the State of Jammu & Kashmir to that of Union of India. The Union shall have control over this Highway so far as its maintenance and proper up-keep demands".
81. While considering the above aspect of the case, it is of immense importance to note that the preamble to the NH Act, 1956, makes it clear that this Act was enacted not only for declaring certain Highways to be National Highways, but also to provide for matters connected therewith. To achieve the object of the Act, it appears that the scheme of NH Act, 1956, has been radically changed by excluding the National Highways from the Municipal area, as indicated hereinabove, and also by substituting the original Section 3 of the said Act by a set of Sections, namely, Sections 3A to 3J by the National Highway Laws (Amendment) Act, 1997.
82. From a careful and combined reading of Sections 3A and 3D(2) of the Act (as stand introduced now) it would appear that the Central Government has the power to acquire land for the purpose of building, maintenance, management and operation of a National Highway or part thereof and on such acquisition, the land shall vest absolutely in the Central Government free from all encumbrances. What is significant to note is that for declaration of National Highway, the condition precedent is that there must be a Highway in existence. Section 3A(1) shows that the Central Government can acquire land for building a National Highway. This means that the Central Government can acquire a land, convert the same into a Highway and declare the same as National Highway. There is subtle but definite distinction between 'develop' and 'build'. According to Webster's Encyclopedic Unabridged Dictionary of English Language (1989 Edition), the word 'develop' means to bring the capabilities or possibilities of, bring to a more advanced or effective, to expand, and the word 'build' means to construct something by assembling and joining parts or materials, to establish, increase or strengthen, to mold, form, create, etc.
83. Thus, the use of the word 'build' in Section 3A(1) shows that if upon acquisition of a land by the Central Government in terms of Section 3A, the Central Government does not convert the same into a Highway, the State Government cannot enter into the same and start collecting toll. This aspect of the matter is also clear from the language used in 3F. If the land is covered into a Highway but not open to use and yet not declared as a National Highway, the State Government cannot start collecting toll on the same. Can the situation change if the Highway so built is declared a National Highway ? The answer to this question has to be an emphatic 'No' inasmuch as until the time the Central Government invites the State or any local body or authority to provide for some kind of facilities for the persons/animals/vehicles passing over such National Highway in terms of Section 5 of the N.H. Act, 1956, the State Government cannot impose any levy for use of such National Highway.
84. A careful reading of NH Act, 1956, shows that there are two ways in which a National Highway can be declared, one of the ways being that a Highway is already in existence and the same can be declared as a National Highway in terms of Section 2 or a Highway can be, first, created by the Central Government in terms of Section 3A and, then, the same may be declared as a National Highway in terms of Section 2. Since in respect of the land, which is acquired under Section 3A, the State Government cannot enter into the same land until the time the same is declared as a National Highway, it logically follows that the status of those Highways, which are already in existence and declared as National Highways in terms of Section 2, will not alter; rather, it will remain the same. In other words, there can be no distinction between the National Highway, which is build on acquisition land and, then, dectared a National Highway and a highway, which is already in existence, is merely declared as a National Highway.
85. The question, now, is as to whether the word 'vest' occurring in Section 3D is, in substance, absolute or not. Black's Law Dictionary, Seventh Edition, defines "vest" thus :
"To confer ownership of property upon a person. To invest (a person) with the full title to property. To give (a person) an immediate, fixed right of present or future enjoyment. To put a person into possession of land by the ceremony of investiture."
86. While dealing with the above aspect of the matter, it is pertinent to note that according to Jowitts Dictionary of English Law, 1997 Edition, Volume-2, vest; vested means - when a person becomes entitled to a right, estate, etc., it is said to vest in him. "Vest" is used specially to denote a transfer by or under an Act of Parliament. Thus, by the Bankruptcy Act, 1914, Section 18(1), as soon as a person is adjudicated bankrupt, his property vests in the trustee for the time being; that is, the property is transferred to the trustee in the same way as if the bankrupt had executed a conveyance of it. A statutory transfer of this kind may be either-absolute (As in the previous example) or limited; thus, where an Act of Parliament enacts that a street shall vest in a local authority, this means that the surface of the land, and so much of the soil as is necessary for its use as a street, shall be transferred to the authority.
87. In Fruit & Vegetable Merchants Union v. Delhi Improvement Trust (AIR 1957 SC 344), the Apex Court, while interpreting the word Vest' in the context of the provisions of Improvement Trust Act, held as follows :
"It would thus appear that the word "vest has not got a fixed connotation, meaning in all cases that the property is owned by the person or the authority in whom it vests. It may vest in title, or it may vest in possession, or it may vest in a limited sense, as indicated in the context in which it may have been used in a particular piece of legislation."
88. It is, thus, clear from the case of Fruit & Vegetable Merchants Union (supra) that while examining the word 'vest' for the purpose of ascertaining its implication in a statute, the word 'vest' has to be interpreted in the context of the provisions of the Act.
89. It is also imperative to note that Section 3D(2) is worded similar to that of Section 16 of the Land Acquisition Act. In Municipal Corporation of Greater Bombay v. Hindustan Petroleum Corporation, reported in (2001) 8 SCC 143, the Apex Court held thus : "Section 16 of the Land Acquisition Act provides that when the Collector has made an award under Section 11, he may take possession of the land which shall thereupon vest absolutely in the Government, free from all encumbrances." Here, the vesting in the context of the provisions of the Act shows that the right, interest and title of the land holder are extinguished and the right and title vest absolutely in the Government free from all encumbrances.
90. In the aforesaid case of Municipal Corporation of Greater Bombay (supra), it has further been held thus :
"We are, therefore, of the view that the word 'vest' means vesting in title, vesting in possession or vesting in a limited sense, as indicated in the context in which it is used in a particular provision of the Act."
91. In the light of the decisions in F&V Merchants Union (supra) and Municipal Corporation of Greater Bombay, if the provisions of Section 3A(1) read with Section 3D(2) are analysed together, it would become abundantly clear that the word 'vest' is suffixed by the word 'absolutely' and also by the words "free from all encumbrances'. Thus, the word 'vest', appearing in Section 3D(2), shows that upon acquisition of the land, the title, rights and interest in respect of such Sand shall stand vested in the Central Government.
92. The inference that the vesting of the land acquired by the Central Government under Section 3A is absolute in title, rights and interest is strengthened from the fact that Section 3F of the NH Act, 1956, clearly lays down that it shall be lawful for a person to enter and do other acts necessary upon the land for carrying out the building, maintenance, management or operation of a National Highway only when such person is "authorized" by the Central Government. In other words, unless the Central Government so authorizes, the State Government or any other authorities cannot even enter into such acquired land. Section 3F will have meaningful existence on the statute book only if we attribute to the word "vest", occurring in Section 3D, the meaning that it deserves, namely, that the vesting is absolute in title, rights and interest.
93. It is also of paramount importance to note that while Section 3D(2) speaks of such absolute vesting of land in favour of the Central Government, as indicated hereinabove. Section 4 of the said Act speaks of vesting of National Highways (built on such land of the Central Government), in the Union with further responsibility, as per Section 5 of the Act, to develop and maintain the same unless and until such responsibility is delegated by the Central Government to the Government of a State.
94. Thus, if Section 4 is, now, analysed in the context of changes, which have taken place in the NH Act, 1956, and the scheme of the NHA Act, 1988, it would become dear that the vesting of National Highways in the Central Government is absolute in right as well as title and it has, therefore, been given the right to control, regulate and operate the National Highways, which will in turn, will mean that it has the right to determine the manner in which it will allow its possessory right over such National Highways to be relaxed in favour of others so that others can use such National Highways.
95. It also deserves to be borne in mind that Section 11 of the NHA Act, 1988, empowers the Central Government to vest in or entrust any National Highway to the National Highway Authority. Upon such vesting, Section 6 of the NHA Act, 1988, empowers the authority not only to develop, maintain and manage such National Highway, but also to regulate and control the plying of vehicles on such National Highway so much so that it can collect fees for the services or benefits rendered under Section 7 of the NH Act. This power of collection of fees by the Central Government is clearly traceable to Entry 96 read with Entry 23 of the Union List. Here, the Authority acts as a delegatee of the Central Government, which is absolute owner of the land acquired by it under Section 3D and has the sole power as well as responsibility to build a National Highway on such acquired land.
96. Since it is the Parliament, which has the power under Entry-23 of List-I to legislate on the subject of National Highway and it makes clear in the NH Act, 1956, that on declaration of a highway as National Highway, the said National Highway vests in the Union, there can be no dispute that this vesting is absolute in nature inasmuch as this vesting is for the purpose indicated by Section 3A, namely, building, maintenance, management and operation of the National Highways.
97. However, irrespective of the fact whether vesting of National Highways in the Union is absolute or not, the fact remains that the operation of National Highways has been given by the Statue to the Central Government and the National Highways Authority have been given the power under Section 16(d) to regulate and control the plying of vehicles on the National Highways vested in or entrusted to it for proper management thereof. If this be the power of the National Highways Authority, no other authority can do anything, which will affect this power. If any obstruction is caused in the exercise of this power, then, the extent to which such obstruction is caused, the State enactment will be invalid.
98. The Bye-Laws of 1997 empowers the GMC to place check-gates as well as parking places on the National Highways. If it is allowed to survive, it will set at naught the power given to NHAI under Section 16(d) to regulate and control the plying of vehicles on the National Highways. Thus, to the extent that the 1997 Bye-Laws aim at placing of Check-gates and parking places on the National Highways, the same cannot be held to be sustainable in law.
99. It is extremely important to note that in Giridhari Lal Saraf (supra), the J & K High Court had considered the provisions of Sections 4 and 5 of the NH Act, 1956. Since Section 4 merely states all National Highways shall vest in the Union and Section 5 makes the Central Government responsible for development and maintenance of National Highways, it came to the conclusion that in the context of the provisions of the Act, the Central Government does not become the owner of the National Highways. While this decision was rendered. Sections 3A to 3J did not exist. Such an interpretation, at the point of time, when the decision in Giridhari Lal Saraf (supra) was pronounced, might have, perhaps, been correct, but with the introduction of Sections 3A to 3J, it clearly transpires that the Central Government will not only develop a Highway into National Highway and maintain the same, but it may also create a Highway, convert the same into a National Highway and for the purpose of such conversion, the Central Government has power to acquire land, which did not exist in the old Act and upon such acquisition, the land will vest in the Central Government absolutely and free from all encumbrances. That the vesting is absolute, in substance, is also clear from the fact that the NHA Act, 1988, has been enacted by the Parliament and the NH Authority has been given the power to regulate and control the plying of vehicles on the Highways vested in, or entrusted to, it for proper management thereof. A combined reading of Section 16(2)(d) of the NHA Act, 1988, read with Section 3A(1) of the NH Act, 1956, would show that the Central Government is not only responsible for building and maintenance of the National Highways, but also has the power to manage and operate the same and regulate as well as control the plying of vehicles thereon. No wonder, therefore, that under Section 3F, the State Government cannot even enter into such a land until authorized by the Central Government. Unless the vesting envisaged under Section 3A read with Section 3D is treated as absolute, the Central Government will neither be able to manage and operate the National Highway nor will the National Highway authorities be able to regulate and control the plying of vehicles on such National Highways. The changes in the scheme of the Acts aforementioned do not permit me to follow the law laid down in Giridharilal Saraf (supra), for, circumstances and situation having changed, parity of reasoning can be invoked [Refer (1985 2 SCC 443).
100. Therefore, the GMC Act, 1971, which applies only to the Municipal Area, namely, the City of Gauhati will not apply to the "National Highways", which vest exclusively in the Union. To this extent, the GMC Act, if made applicable to the National Highways, would mean extraterritorial application and will be hit by Article 245 of the Constitution of India. Therefore, Article 243X of the Constitution or Section 144 of the GMC Act will have no application on the National Highways.
101. There is, admittedly, no legislation by the State of Assam under entries 52, 56, 57, 58 and 59 empowering the State to levy and collect toll from the Check-gates and parking areas installed on the National Highways. The only legislation of the State of Assam under Entry 56 is the Assam Passengers and Goods Taxation Act, 1962, which nowhere permits the levy of the impugned toll/tax on National Highways. The constitutional validity of the Act was, therefore, upheld by the Hon'ble Supreme Court in Khyerbari Tea Company Case (AIR 1964 SC 925) as a legislation under Entry 56 of List II.
102. Coming to the provisions of the Constitution, it appears that Entry No. 23 of List I (Union List) of the 7th Schedule framed under Article 246 confers law making power to the Parliament in respect of all matters relating to National Highways including establishment of National Highways. In the same Union list under Entry No. 96, it is also indicated that legislation imposing fees in respect of any of the matters enumerated in the Union List can be done only by the Parliament. Therefore, if any fees is to be imposed on a National Highway (as envisaged under Entry 23) the same could only be done by a law made by the Parliament.
103. We should also bear in mind the provisions of Sections 4 and 5 of the National Highways Act, 1956, which provide that maintenance and development of a National Highway solely rests in the Union. It is only when the Central Government, by notification in the Official Gazette, direct that any function in relation to the development and maintenance of any National Highway shall be exercised by the Government of a State that the Government of the State as a deleagtee of the Central Government exercise such powers in respect of the National Highway as may be delegated to the State concerned.
104. Therefore, on bare perusal of Section 4 of the National Highways Act, it appears that the State Government of Assam or for that matter, the Guwahati Municipal Corporation can discharge any function in relation to the development and maintenance of any National Highway within its territory provided that the Central Government in the Official Gazette issues notification to this effect. Likewise, from Section 7 of the National Highways Act, it follows that fees for services or benefits rendered on National Highways can be imposed only by the Central Government by notification in the Official Gazette at the rates prescribed by the Rules. This power of imposition of fees is traceable to the Entry 96 of the Union List, Therefore, in the absence of a Central Gazette Notification empowering or delegating the responsibility of maintenance and development of the National Highway, in question, to the Government of Assam, the State Legislature remains incompetent to make a law imposing any fees on a National Highway.
105. In order to show that both the Central enactment as well as State enactment can operate in their respective fields, the contesting respondents have relied on Giridhari Lal Anand Saraf v. State of Jammu and Kashmir, reported in AIR 1969 J&K (FB) 113 and I.T.C. Ltd. v. Agricultural Produce Market Committee and Ors. (AIR 2002 (SC) 852), wherein the Apex Court has held to the effect, it is pointed out, that the Constitution of India deserves to be interpreted, language permitting, in a manner that it does not whittle down the power of State Legislature and preserve the federation even if the parliamentary legislation is traceable to the Union List.
106. I have already indicated above that in the face of changes, which have taken place in the NH Act, 1956 and with the introduction of the NHA Act, 1988, the decision in Giridhari Lal (supra) cannot be applied to the case at hand.
107. The submissions of Mr. Niloy Dutta and reiterated by Mr. K.N. Choudhury that the ITC Limited (supra) make it clear that the State has complete freedom to legislate with respect to every entry in the State List and this power cannot be whittled down by any Parliamentary legislation, even if the parliamentary legislation is traceable to an entry in the Union, appear to be somewhat misconceived.
108. Before coming to the decision in the ITC Ltd. (supra), it needs to be noted that in Sudhir Chandra Nawa v. Wealth Tax Officer (AIR 1969 SC 59), the Apex Court has laid down that the exclusive power of the State to legislate with respect to entries in the State List is subject to the exclusive power of the Parliament to legislate with respect to the entries in the Union List and in case of conflict between the two, it is the parliamentary legislation, which shall prevail if the legislation can be traced to any entry in the Union List. I am guided to adopt this view from the following observations 'made in Sudhir Chandra Nawa (supra) :-
"Exclusive power to legislate conferred upon parliament is exercisable notwithstanding anything contained in Clauses (2) and (3) that is made more emphatic by providing in Clause (3) that the Legislature of any state has exclusive power to make laws for such state or any part thereof with respect to any of the matters enumerated in list II in the seventh schedule, but subject to Clauses (1) and (2). Exclusive power of the State Legislature has therefore to be exercised subject to Clause (1) that is the exclusive power which the parliament in respect of the matters enumerated in list I. Assuming that there is a conflict between Entry 86, list I and Entry 49, List II which is not capable of reconciliation, the power of parliament to legislate in respect of a matter which is exclusively entrusted to it must supersede pro lento the exercise of power of the State Legislature." (Emphasis is added)
109. The decision in Sudhir Chandra Newa (supra) was rendered by a Bench of five-Judges. No decision has been brought by the learned counsel for the respondents to the notice of this Court to show that the above view has been overruled or deviated from by any larger Bench of the Apex Court.
110. It is, thus, clear that the State's power to levy toll under Entry 59 of List II is subject to the Entry 23 in List I, which relates to Parliament's power to legislate on the subject of national highway. In other words, no legislation by the State to levy toll on the national highway is permissible if such a legislation comes into conflict with any enactment made by the Parliament on the subject of national highway and makes it impossible for the Parliamentary legislation to be effectively enforced/operated.
111. That the exclusive power of the State Legislature to legislate with respect to Entries in List II is subject to the Entries in List I meant for the Parliament has also been reiterated by a five-Judge Bench in Indu Bhusan Bose v. Rama Sundari Debi (AIR 1970 SC 228). In this case, it has clearly been laid down that the State Legislature's power to make provisions for Local Self Government in all areas of the State under Entry 5 of List II is subject to the Entry 3 in List I inasmuch as Entry 3 of List I gives exclusive authority to the Parliament to Legislature with respect to Cantonment Areas and Local Self Government thereof. This decision clearly shows that the meaning of the words "notwithstanding" in Clause (1) and "subject to" in Clause (3) of Article 246 was considered in Indu Bhusan (supra) also and the words aforementioned were interpreted to mean that where an Entry is in general terms in List II and part of the entry is in specific term in List I, the entry in List I takes effect notwithstanding the Entry in List II. This interpretation is also resorted to on the principle that the 'special' excludes the "general and general entry in List II is subject to the special Entry in List I. For instance, though house accommodation and rent control might fall within either of the State List or the Concurrent List,. Entry 3 in List I carves out the subject of rent control and house accommodation in Cantonment Areas from the general subject of house accommodation and rent control. The relevant portion of the observations of the Apex Court in this case are quoted hereinbelow :
"12...... In the Constitution, the effect of Entry 3 of List I is that Parliament has exclusive power to make laws with respect to the matters contained in that Entry, notwithstanding the fact that a similar power may also be found in any Entry in List II or List III. Article 246 of the Constitution confers exclusive power on Parliament to make laws with respect to any of the matters enumerated in List I notwithstanding the concurrent power of Parliament and the State Legislature, or the exclusive power of the State Legislature in Lists III and II respectively. The general power of legislating in respect of relationship between landlord and tenant exercisable by a State Legislature either under Entry 18 of List II or Entries 6 and 7 of List III is subject to the overriding power of Parliament in respect of matters in List I, so that the effect of Entry 3 of List I is that, on the subject of relationship between landlord and tenant insofar as it arises in respect of house accommodation situated in cantonment areas. Parliament alone can legislate and not the State Legislatures. The submission made that this interpretation will lead to a conflict between the powers conferred on the various Legislatures in Lists I, II and III has also no force, because the reservation of power for Parliament for the limited purpose of legislating in respect of cantonment areas only amounts to exclusion of this part of the legislative power from the general powers conferred on State Legislatures in the other two Lists. This kind of exclusion is not confined only to legislation in respect of house, accommodation in cantonment areas. The same Entry gives Parliament jurisdiction to make provision by legislation for local self-government in cantonment areas which is clearly a curtailment of the general power of the State Legislatures to make provision for local self-government in all areas of the State under Entry 5 of List II. That Entry 5 does not specifically exclude cantonment areas and, but for Entry 3 of List I, the State Legislature would be competent to make provision for local government even in cantonment areas." (Emphasis is supplied)
112. Keeping in view the above, let me, now, revert to the decision in the ITC Ltd. (supra).
113. It needs to be noted that in the ITC Limited (supra), the States concerned and, particularly, Mr. A.K. Ganguli, learned senior counsel appearing for Tamil Nadu Agricultural Marketing Board (as reflected from Para 15 of the case) contended, referring to the provisions of Article 246(3) of the Constitution, that the expression "subject to" appearing in Article 246(3) has reference to those entries in List II, which provides that the subject-matter of the said entries are subject to the provisions contained in certain specified entries appearing in either List I or List III, as for example, Entry 2 in List II provides Police (including railways and village police) subject to the provisions of Entry 2A of List I and similar provisions can be found in several entries in list II like entries 17, 22, 24, 26, 27, 32, 33, 37, 54, 57 & 63 but only three entries in List II, viz., entries 13, 23 and 50, which do not specify any entry in List I or List II subject to which the said entries would remain operative, but restrict the scope of these entries by general reference to the provisions contained in List I or List III. Therefore, in respect of all other entries in List II, the State Legislature, it was contended, enjoys the exclusive power to enact laws and consequently, if the State act has been enacted under Entry 28 of List II, the State Act must be allowed to operate. It was pointed out by Mr. Ganguli that the principle that Parliament enjoys superior legislative powers with regard to subject-matters enumerated in List II would hold good only in respect of those entries in List II, which expressly provide that the subject-matter thereof are subject to the matters dealt with in various entries in List I, but that principle cannot be extended to the subject-matter covered by other entries in List II.
114. The minority view expressed in the ITC Limited (supra) did not accept the above contention advanced by Mr. Ganguli.
115. Though it appears from the submissions made before me, on behalf of the contesting respondents, as if the majority view in the ITC Limited (supra) accepted the submissions made by Mr. Ganguli in its entirely, it is of immense importance to note that the majority view in this case, (as expressed per Y.K. Sabharwal, J), made the real question involved in the case explicit by observing thus :
"The dispute in this case is not about parliamentary supremacy as none has doubted it in view of Article 246(1) of the Constitution but is whether Parliament has competence at all to legislate in respect of raw tobacco or it falls within the competence of State. If we hold that white legislating in the field of industry as provided in Entry 52 of the Union List, the Parliament is not competent to legislate in respect of the field anterior to industry, i.e., its raw material and can legislate only in respect of the process of manufacture or production, in that eventuality, the State legislation will have to be held to be constitutional, intra virus and applicable." (Emphasis is added)
116. The decision in the ITC Limited (supra) shows that in the opinion of the majority, the Parliament had no power to legislate in respect of the subject-matter, which had given rise to the controversy in the case. It was for this reason that the Court took the view that the parliamentary legislation, to the extent that the same was in conflict with the State legislation, was ultra vires. It is nowhere observed in the ITC Ltd. (supra) that with the object of preserving federalism, the State laws must be allowed to prevail even if the same make validly enacted parliamentary legislation ineffective or puts restrain to the functioning or enforcement of the parliameptary legislation. Far from this, it was observed (per Y.K. Sabbarwal, J) at para 94 thus :
"The Constitution of India deserves to be interpreted, language permitting, in a manner that it does not whittle down the powers of State Legislature and preserves the federation while also upholding the central supremacy as contemplated by some of its articles."
117. It is also pertinent to refer to the observations made (per Y.K. Subbarwal, J), in the ITC Ltd. (supra), wherein, the State's power to legislate with respect to entries in List II vis-a-vis the entries in List I has been discussed and it has been laid down that an interpretation, which tends to make all entries in List II subject to the entries in List I and List III shall be avoided unless such an interpretation in respect of an entry is unavoidable. In other words, if a parliamentary enactment with respect to an entry in List I is such that it completely occupies the filed of legislation in respect of any such entry, then, the State enactment made with respect to the entry, in question, cannot survive if it tends to encroach upon the field of parliamentary legislation in such a manner that it makes the functioning of the Parliamentary legislation, as a whole, or with respect to any particular aspect thereof impossible.
118. The relevant observations made in para 96 in the ITC Ltd. (supra) are as follows :-
"96. ....Wherever it was intended to be made subject to such control, whether of List I or that of List III, it was said so. A perusal of List II shows that whenever a particular entry was intended to be made subject to an entry in List I or III., it has been so stated specifically. Therefore, an interpretation which tends to have the effect of making a particular entry subject to any other entry, though not so stated in the entry, deserves to be avoided unless that be the only possible interpretation...." (emphasis is added)
119. Thus, if the 1997 Bye-laws, make it impossible for the NH Act, 1956, and/or the NHA Act, 1988, to operate/function effectively, 1997 Bye-laws cannot survive even if its source can traced to the Entry 59 of the List II.
120. Laying down the principles of interpretation, when the validity of the legislations made under various entries are challenged, the Apex Court (per Y.K. Subbarwal, J) observed as follows :
"97. The principles of interpretation are well settled. There is no doubt that the entries in the lists in the Seventh Schedule do not provide competence or power to legislate on the legislature for which the source of power is contained in Article 246 of the Constitution. In deciding question of legislative competence, it has to be kept in view that the Constitution is not required to be considered with a narrow or pedantic approach. It is not to be construed as a mere law but as a machinery by which laws are made. The interpretation should be broad and liberal. The entries only demarcate the legislative field of respective legislature and do not confer legislative power as such and if it is found that some of the entries overlap or is conflict with the other, an attempt to reconcile such entries and bring about a harmonious construction is the duty of the Court. When, however, reconciliation is not possible, as here, then the Court will have to examine the entries in relation to legislative power in the Constitution." (Emphasis is added)
121. From the concurring judgment of Ruma Paul, J, in the ITC Ltd. (supra) it is clear that the majority accepted that the non-obstente Clause in Article 246(1) and the words "Subject to" in Article 246 and 243 establish supremacy of Parliament and if any of the entries in three Lists overlap, the entry in List I will prevail. Coupled with this, some entries in the State List have been expressly made subject to the power of the Parliament to legislate either under List I or under List III. This becomes clear from the following observations made in the ITC Limited (supra) (Per Ruma Paul, J) at para 129 and 130 :-
"129. That the legislative power of Parliament in certain areas is paramount under the Constitution is not in dispute. What is in dispute is the limits of those areas as judicially defined broadly speaking parliamentary patrimony is provided under Articles 246 and 254 of the Constitution. The first three clauses of Article 246 of the Constitution relate to the demarcation of legislative power between the Parliament and the State Legislature under Clause (1), notwithstanding any thing contained in Clauses (2) and (3) Parliament has given exclusive power to make laws with respect to any of the matters enumerated in List I or the Union List in the Seventh Scheduled Clause (2) empowers the Parliament, and State Legislatures subject to the power of Parliament under Sub-clause (1) to make laws with respect to any of the matters enumerated in List III in the Seventh Scheduled in the Constitution as the "Concurrent List" notwithstanding anything contained in Sub-clause (3). The State Legislatures have been given exclusive powers in respect of matter enumerated in List II in the Seventh Schedule described as the "State List but subject to Clauses (1) and (2). The three lists while enumerating in detail, the legislative subjects carefully distributes the areas of Legislative Authority between Parliament (List I) and the State (List II). The supremacy of Parliament has been provided by the non-obstinate Clause in Article 246(1) and the words 'subject to' in Article 246 (2) and (3). Therefore, under Article 246(1) if any of the entries in the three lists overlap, the entry in list I will prevail. Additionally some of the entries in the State List have been made expressly subject to the power of Parliament to legislate either under List I of under List III. Entries in the List of the Seventh Schedule have been liberally interpreted; nevertheless Courts have been wary of up setting this balance by a process of interpretation so as to deprive any entry of its content and reduce it to useless 'lumber'. The use of word 'exclusive' in Clause (3) denotes that within the legislative fields contained in List II, the State Legislatures exercise authority as plenary and ample as Parliament. The fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis-a-vis the States does not mean that States are mere appendages of the Centre. Within the sphere allotted to them, States are Supreme, The Centre cannot tamper with their powers. More particularly, the Courts should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the powers reserved to the States."
"130. Although Parliament cannot legislate on any of the entries in the State List, it may do so incidentally while essentially legislating within the entries under the Union List. Conversely, the State Legislatures may encroach on the Union List, when such an encroachment is merely ancillary to an exercise of powers intrinsically under the State List. The fact of encroachment does not affect the vires of the law even as regards the area of encroachment. This principle commonly known as the doctrine of pith and substance, does not amount to an extension of the Legislative fields. Therefore, such incidental encroachment in either event does not deprive the State Legislature in the first case or Parliament in the second of their exclusive powers under the entry so encroached upon. In the event the incidental encroachment conflicts with legislation actually enacted by the dominant power, the dominant legislation will prevail." (emphasis is added)
122. From a close reading of the above observations of the Court (per Roma Paul, J) it is clear that if any of the legislations made by the State with respect to any entry in the State List collides with Parliamentary legislation made with respect to any of the entries in the Union or Concurrent List and if a situation arises, where the two enactments, one made by the Parliament and the other by State Legislature, cannot co-exist together, then, it is the Parliamentary Legislation, which will prevail, if the same can be traced to the Union or Concurrent List. The Parliamentary legislation in the ITC Ltd., (supra) was struck down, if I may reiterate, because the Parliamentary enactment was found to be not within the field set forth by the entries in the Union and/or the Concurrent Lists, whereas the State legislation could be traced to a field reserved for the States in the State List.
123. In the case at hand, the situation is not akin to the case of ITC Limited (supra). In the present case, it is the Parliament, which has exclusive power to legislate on the subject of National Highway. This position is not and cannot be disputed. No law made by the State Legislature, under entry 59 of List II, can prevail upon this power. When the Parliament has, by a valid legislation, excluded the National Highway from the purview of Municipalities, the State legislature cannot make a law, which, in fact, annuls or set at naught the Parliamentary legislation so made. Otherwise also, entry 59, in the List II, as indicated hereinabove, has to be read subject to entry 23 in List I if the question of levying of toll on the National Highway by the State is questioned.
124. We must keep in mind that prior to 24.1.1997, that portion of a National Highway, which incidentally fell within any municipal area, was excluded from the purview of the definition of National Highway under the National Highways Act, 1956. Therefore, prior to the said date, i.e., 24.1.1997, even the State Government had the power to enact laws imposing toll or fees in respect of that part of the National Highway, which came under any municipal area, particularly, because such a part of the National Highway was required to be maintained as a State Highway by the State Government prior to 24.1.1997. But after coming into force the National Hignway Laws (Amendment) Act, 1997, the National Highway, while passing through a municipal area, remains a National Highway and though notionally speaking, the National Highway may exist within the area of the municipality concerned, the National Highway stands excluded from the area of operation of the municipal enactments.
125. If all the factors pointed out above, namely, that a National Highway passing through the territorial limit of a city is not included within the part of the municipal area, the National Highway vests absolutely with the Central Government and the National Highway Authority is empowered to regulate and control plying of vehicles on the National Highways are taken together into consideration, it becomes abundantly clear that a National Highway, as it stands today, is a field, which is completely occupied by a valid piece of legislation made by Parliament under Entry 23 of List I. No State Legislature can, therefore, enact any law in such a manner so as to set at naught the legislation so enacted by the Parliament.
126. All the references, which have been made, on behalf of the respondents, to the various case laws are the decisions, when the National Highway formed a part of the city limit, but with the amendment of the National Highway Act, 1956, and with the coming into existence of the National Highway Authority Act, 1988, the scenario is completely changed. If any State Legislature makes a law for imposing toll on vehicles passing on the National Highway, such a piece of legislation will be invalid. Consequently, if the State makes provisions for collection of toll, directly or indirectly, from the vehicles and/or animals passing on the National Highway, such an enactment can also not be valid, for, the law is settled that what cannot be done directly can also not be done indirectly.
127. In the above backdrop, let me, now, consider the factual matrix of the present case. It is noteworthy that when the GMC Act came into force in 1971, National Highway formed a part of the city area. In a situation, such as this, when the State enacted Section 144(2)(c) and empowered the Municipality to collect toll from vehicles and animals entering the city, the enactment could not have been challenged, for, even if the vehicles or the animals had to pass over the National Highway, while moving through the city area, it was still within the city, but after coming into force of the National Highway Act, 1956, as amended in 1997, if Section 144 (2)(c) has to survive, it has to be held that the Municipality has powers to impose toll on vehicles and animals entering into the city so long as they do not pass over the National Highways. Even if Section 144(2)(c) is to be interpreted extremely liberally, what it will mean is that even if toll has to be collected from the vehicles and animals entering into the city, then, such toll has to be collected away from the National Highway. It needs to be emphasized that Section 144(2)(c) does not say nor could it have said in the year 1971 that the word "city" will not include the National Highway; but after the amended Act of 1997, the word "city" will not include the National Highway; otherwise, Section 144(2)(C) cannot survive.
128. With the help of 1997 Bye-laws, the GMC has empowered itself to install Collection Counters for toll/tax/fees from any place within the city inasmuch as Check-gate has been defined under Section 3(E) of 1997 Bye-Law as follows :
" 'Checkgate' - means the places where the Municipal Corporation of Guwahati installs collection counters of revenue as per rates to be fixed for each purpose for its convenience authorizing its Municipal Officers and Staff or its authorized agent for assessing or realizing the tax/tolls/ fees on vehicles/passengers/animals/goods etc. on entry into the city as empowered under the Act."
129. Similarly, Parking place has been defined under Section 3(F) as follows:
" 'Parking Place' - means the places as notified by the Corporation demarcating and specifying any portion of roads, footpath and open spaces or any such places developed for the purpose of parking of vehicles within the city."
130. Thus, the Check gate will mean the place, where the GMC installs collection counter. Now, the question is as to what the word 'place' will mean? Shall it mean and include National Highway ? If the word "Place" has to be given its natural meaning, in the context of the amended National Highway Act, 1956, the word "place" will not include National Highway, for, the National Highway stands excluded from the limit of the city area of the GMC. In short, if the 1997 Bye-laws has to survive, then, the words, "place", in the definition of the term "Check-Gate", as given in Section 3(E), has to be read down as meaning a place within the area of the GMC, but excluding the National Highway.
131. Thus, when the GMC does not have the power to install collection counter on the National Highway even under 1997 Bye-laws, setting up of the Check Gates on the National Highway is completely illegal.
132. 1997 Bye-laws can still survive and so will the GMC, 1971, if the
same are read subject to the limitation that the collection counters for revenue cannot be set up by a Municipality on the National Highway.
133. Similarly, the word "place", which may be notified as Parking Place by the GMC, cannot include the National Highway and, hence, no place on the National Highway can be made Parking Place by the GMC. If the GMC is allowed to declare any part of the National Highway as a parking place, the result will be devastating. It will not only affect the power of the National Highway Authorities to control and regulate traffic on the National Highway, but also adversely affect their power to manage and develop the National Highways inasmuch as it will impede and adversely affect the movement and free flow of vehicles on National Highways.
134. If the GMC Act, 1971, is held to aim at putting restrictions on the movement of vehicles on the National Highway, it cannot be saved by the doctrine of pith and substance. It is settled law that the power of local authorities like the GMC to frame bye-law is subject to the statute, which creates them. Reference may be made to Hardwar Municipality v. Raghubir Singh AIR 1966 SC 1502, wherein it was held thus :
"Now it has been ruled on many an occasion in this Court that local authorities like the Board do not act as legislatures when they impose a tax but as the agent of the State legislatures. Their powers and the extent of these powers must be found in the statute which creates them and endows them with such powers."
135. Reference may also be made to Jothi Timber Mart v. Corporation of Calicut, AIR 1970 SC 265, where in it has been held as follows :-
"The Municipality derives its power to levy tax from the State Legislature, and therefore, its power can not be wider than the authority of the State Legislature. If the State Legislature is not competent to levy a tax or can levy tax subject to limitations imposed by Article 246(1), the Municipality has to act within such limitation." (Emphasis is added)
136. In fact, Section 144(2)(c) does not say that it includes National Highway. The State government has not even contested this case. It is only the GMC, which claims that Section 144(2)(c) envisages levying of toll on the National Highways too, though the National Highways, now, stand excluded from the city area.
137. It is also important to note that the law made on special entry has to yield to the law made under general entry. Entry 23, which relates to the National Highway, is a special entry; whereas Entry 59, which relates to toll, is general in nature. Hence, the general entry in respect of toll cannot be held to include levying of toll on the National Highway and, once it is so held, there is no difficulty in holding that no levy can be imposed on the National Highway unless the legislative enactment on the National Highway permits such a levy. I have come to take this view from the law laid down in Kerala State Electricity Board v. Indian Aluminium Co. Ltd. AIR 1976 SC 1031, wherein it has been held as follows:-
"In view of the provisions of Article 254, the power of Parliament to legislate in regard to matters in List III, which are dealt with by Clause (2), is supreme. The Parliament has exclusive power to legislate with respect to matters in List I. The State Legislature has exclusive power to legislate with respect to matters in List II. But this is subject to the provisions of Clause (1) (leaving out for the moment the reference to Clause 2). The power of Parliament to legislate with respect to matters included in List I is supreme notwithstanding anything contained in Clause (3) (again leaving out of consideration the provisions of Clause 2). Now what is the meaning of the words "notwithstanding" in Clause (1) and "subject to" in Clause (3) ? They mean that where an entry is in general terms in List II and part of that entry is in specific terms in List I, the entry in List I takes effect notwithstanding the entry in List II. This is also on the principle that the "special" excludes the "general" and the general entry in List II is subject to the special entry in List I, For instance, though house accommodation land rent control might fall within either the State List or the Concurrent List, Entry 3 in List I of Seventh Schedule carves out the subject of rent control and house accommodation in cantonments from the general subject of house accommodation and rent control (see Indu Bhusan v. Sundari Devi, 1970 (1) SCR 443 = AIR 1970 SC
228. Furthermore, the word "notwithstanding" in Clause (1) also means that if it is not possible to reconcile the two entries the entry in List I will prevail. But before that happens attempt should be made to decide in which list a particular legislation falls. For deciding under which entry a particular legislation falls the theory of "pith and substances" has been evolved by the Courts. If in pith and substance a legislation falls within one List or the other but some portion of the subject-matter of that legislation incidentally trenches upon and might come to fall under another List, the Act as a whole would be valid notwithstanding such incidental trenching. These principles have been laid down in a number of decisions." (Emphasis is supplied)
138. If Parliament's power to effectively carry out its legislative mandate is restricted by State law, the State law, to the extent of such restriction, must yield to the parliamentary law. The 1997 bye-laws cannot, therefore, be interpreted in such a way that it obstructs the Central Government to effectively carry out the mandate of the parliamentary legislation and in such a situation, the State law, i.e., 1997 Bye-laws has to yield to Parliamentary enactment and must be interpreted to stand excluded by the parliamentary legislation.
139. The 1997 Bye-laws aims at setting up collection counters of revenue. These collection counters may or may not be on the National Highway. If the 1997 Bye-laws aims to set up revenue counters and/or parking places on the National Highway, it cannot be held to be valid.
140. Section 144(2)(c) has to be, now, read subject to such limitation as have come into being after the National Highway Act, 1956, stands amended by the National Highways Laws (Amendment) Act, 1997 and the National Highway Authority Act, 1988.
141. What, thus, crystallizes from the above discussion is that the GMC has no power to apply the 1997 Bye-laws to impose toll on vehicles and animals passing over the National Highways nor can it collect fees for parking vehicles on the National Highway In short, even if the 1997 Bye-laws is found to be, Otherwise, a valid piece of legislation, the word 'place', occurring in the definitions of the words 'Check-gate' and 'Parking place' in the 1997 Bye-laws, shall be read subject to the condition that the word 'place' shall not include the National Highway or any part thereof.
Point No. (vi)
142. It is trite that there is a clear distinction between tax and toll. No wonder that Section 141 of the GMC Act, 1971, speaks of both tax as well as toll. From the scheme of the 3ection 141, it is clear that the Legislature has sought to make a distinction between taxes and tolls to be imposed by Municipalities. It is, therefore, not permissible for any Municipality to impose tax under the guise of imposition of tolls. The learned counsel for the petitioner has argued that toll tax being compensatory in nature, there must be some element of compensation present in toll, but since the respondent Corporation does not render any service or offer any facility, the imposition of toll tax and/or parking fees is illegal. This apart, for discharging its ordinary municipal duties, Municipality cannot collect toll, whereas in the case at hand, the GMC spends the earning from toll and parking fees in discharging its ordinary municipal duties. Reliance in support of this submission is placed by the petitioner on Kamaljeet Singh v. Municipal Board of Pilkhowa, reported in (1986) 4 SCC 174, Nagar Mahapalika, Varanashi v. Durga Das Bhattacharya AIR 1968 SC 1119 and Shervani Sugar Syndicate v. Municipal Board, Ujhani AIR 1982 All
143. The contention that tolls/fee/tax cannot be levied by municipal corporation for reimbursing the cost of ordinary municipal services which the municipal corporation is, according to learned counsel for contesting respondents, bound under the statute to provide to the general public is misconceived and untenable.
144. According to the learned counsel for the respondents, the decisions relied upon in support of the aforesaid proposition are distinguishable on fact and that the decision in (1986) 4 SCC 174, Kamaljit Singh v. Municipal Board, Pilkhowa, cannot be said to have laid down good law on the subject.
145. It is submitted, on behalf of the contesting respondents, that the Constitution Bench in Automobile Transport, Rajasthan (supra), by majority, has held that regulatory measures imposing compensatory taxes for use of trading facility do not hamper the trade, commerce or intercourse, but facilitate them and, therefore, are not hit by the freedom of trade and commerce guaranteed by Article 301 of the Constitution of India. Once the conclusion is arrived at that the "Levy is a Tax" imposed for public purpose, there is, contends learned counsel for the lessee, no requirement of supporting the tax by any consideration of service rendered in return. So far as this aforesaid proposition is concerned, it is, according to learned counsel for the lessees, no more res integra. Therefore, the observation in Pilkhowa's case (supra) that "Toll/Tax in question, however, cannot be treated to be compensatory tax for the use of trading facility. The Municipal Board provides no facility whatever to the owners of the vehicles like stage carriages making use of National Highway No. 24", is, according to the learned counsel for the contesting respondents, in direct conflict with the well settled legal proposition.
146. That apart, the factual matrix of the case in hand and the case before the Supreme Court is, according to Mr. K.N. Choudhury, different. In the case before the Supreme Court, the place from where the Tolls were collected from the Stage Carriages was at a point, which was quite at some distance from the township of Pilkhowa. In the present case, points out Mr. Choudhury, the Check Gates and, particularly, Khanamukh Check Gate is located within the GMC area and even the National Highway bypass, in question, falls within the GMC area.
147. The decision in Kamaljeet Singh v. Municipal Board, Pilkhowa (1986) 4 SCC 174, is, according to Mr. K.N. Choudhary, a judgment per incuriam and sub silentio and that the present case is governed by the decision of the Division Bench of this Court in Meghalaya Truck Owner's Association v. State of Meghalaya reported in (1989) 2 GLR 1.
148. Before ascertaining the correctness of the rival submissions made before me on behalf of the parties, it is necessary to examine the character and ingredients of toll tax. The word "toll" is described in the Webster New International Dictionary as a tax or due paid for some liberty or privilege, particularly, for the privilege of passing over a highway as a road or bridge, for that of keeping a booth, vending goods, etc. in a fair market or other limited space as a manner, for importing or exporting goods, arid compensation taxes for services rendered.
149. In Black's Law Dictionary, 7th Edn., the term "toll" has been described as:
"1. A sum of money paid for the use of something; esp., the consideration paid to use a public road, highway, or bridge.
2. A charge for a long-distance telephone call."
150. In Halsbury's Laws of England, 4th Edn., p. 96, para 138 dealing with "tolls at common law", it is stated that the common law recognizes two classes of tolls payable under a grant or presumed grant from the Crown in respect of the passage of a highway or bridge, namely, tolls-traverse and tolls-thorough. A toil-traverse is a toll taken in respect of the original ownership of the land crossed by the public (even if now perhaps severed from it), the land having been at the date of the grant the grantee's private property, and having been then dedicated by him to the public in consideration of the toll to be taken. It is further stated therein that a toll-thorough is independent of any ownership of the soil by the original grantee, the consideration necessary to support it being usually the liability to repair the particular highway or bridge.
151. Dealing with the concept 'toll', the Apex Court in State of UP v. Devi Dayal Singh, reported in 2000 (3) SCC 5, laid down as follows :
"The concept of "toll" is derived from English jurisprudence. Shorn of connotations, which are historically irrelevant in this country, a "toll" may be defined as a sum of money taken in respect of a benefit arising out of the temporary use of land. It implies some consideration moving to the public either in the form of a liberty, privilege or service. In other words, for the valid imposition of a toll, there must be a corresponding benefit." (Emphasis is added)
152. From the above, it is abundantly clear that "toll" cannot be legal and valid unless it gives some corresponding benefit to the passenger on whom the toll is levied.
153. The nature and characteristics of toll tax came up for scrutiny before the Apex Court in Municipal Board of Hardwar v. Raghuvir Singh, AIR 1966 SC 1502, wherein the Apex Court held as under :
"There were many kinds of tolls and all, of course, must be taken to be comprehended by the entry relating to tolls in the Government of India Act 1935 or the Constitution. There were for example toll-thorough and toll-traverse, which were the two main sub-divisions and there was toll-stallage. The first was a levy prescribed by towns for animals or men that went over through highways of a town or over ferries, bridges, etc., belonging to it. Toll-traverse was charged for passing over a private person's ground. Toll-stallage was a charge for occupation of land by pitching stalls in fairs and markets. A toll was thus a tribute or custom paid for a privilege, generally for passage over or for using a bridge, road, ferry, railway and sometimes for occupation of market, port anchorage, etc. The justification for tolls was that the person charged enjoyed a privilege and the amount went towards the construction, improvement or upkeep of these things." (Emphasis is supplied)
154. On a reading of the interpretation of toll tax as given by the Apex Court in Municipal Board of Hardwar (supra), it is clear that there has to be a consideration in justifying the imposition of toll tax. It is also clear that the privilege must be enjoyed by the person charged and the amount realized by way of toll tax should be utilised towards the construction, improvement or upkeep of the things like roads, ferries, stalls etc. over which the privilege is enjoyed. As such toll tax can be safely be said to be compensatory in nature, though the extent of compensatory nature cannot be required to be in the form quid pro quo.
155. The Allahabad High Court also in Sharvani Sugar Syndicate v. Municipal Boards, Ujhani, AIR 1982 All 403 has taken the same view following the decision of the Apex Court in Municipal Board of Haridwar (supra).
156. The Apex Court in Kamaljeet Singh v. Municipal Board, Pilkhowa, (1986) 4 SCC 174, held that the consideration for a toll is some amenity, service, benefit or advantage, which the person entitled to the toll undertakes to provide for the public, in general, or the person liable to pay the toll. In the aforesaid judgment, the Apex Court has held that simply because the Municipal Board had set up two electric poles at the toll barriers for the facility of collection of the toll tax does not justify the imposition of toll tax. The Court further observed that even assuming that the Municipal Board has to incur expenditure on maintenance of the connecting road and the nallah, yet they are facilities provided for which it recovers various taxes. Since there was no quid pro quo, the levy of toll was declared to be ultravires.
157. The Apex Court in International Tourist Corporation v. State of Haryana, (1981) 2 SCC 318, while dealing with the powers exercisable under Entry 56 of List II of the Seventh Schedule to the Constitution of India, held that the said powers to impose taxes are in the nature of regulatory and compensatory measures. However, the Apex Court further held that the although the nature of the tax is compensatory and regulatory in nature, the measure of the tax need not be proportionate to the expenditure incurred on the regulation provided and the services rendered. Distinguishing the powers under Entry 56 with the power to impose fee, the Apex Court observed as under :
"While in the case of a fee, it may be possible to precisely identify and measure the benefits received from the government and levy the fee according to the benefits received and the expenditure incurred, in the case of a regulatory and compensatory tax it would ordinarily be well nigh impossible to identify and measure, with any exactitude, the benefits received and the expenditure incurred and levy the tax according to the benefits received and the expenditure incurred. What is necessary to uphold a regulatory and compensatory tax is the existence of a specific, identifiable object behind the levy and a nexus between the subject and the object of the levy. If the object behind the levy is identifiable and if there is sufficient nexus between the subject and the object of the levy, it is not necessary that the money realized by the levy should be put into a separate fund or that the levy should be proportionate to the expenditure. There can be no bar to an intermingling of the revenue realized from regulatory and compensatory taxes and from other taxes of a general nature nor can there be any objection to more or less expenditure being incurred on the object behind the compensatory and regulatory levy than the realisation from the levy." (Emphasis is supplied)
158. Situated thus, it cannot be said that the GMC need not confer any privilege and/or offer any benefit and/or render any service justifying imposition of toll tax. Since the nature of imposition of toll is such that some privilege must be conferred on the person charged, general amenities provided by the Municipal Board in discharge of its statutory obligation to the public, in general, could not be put forward in justification of the imposition of toll, which requires some service to be rendered to the person made liable to pay the toll tax. Reliance placed by Mr. A Choudhury, in this regard, on the law laid down in Municipal Board of Pilkhowa (supra) and Nagar Mahapalika, Varanasi v. Durga Das Bhattacharya AIR 1968 SC 1119, is not misplaced at all inasmuch as both these decisions make it abundantly clear that for reimbursing the cost of their ordinary municipal duties, the GMC cannot impose toll on vehicles and animals entering into the city.
159. Although the strict principles of quid pro quo are not attracted in the case of toll and the services rendered need not fully commensurate with the amount of toll imposed, yet the imposition of toll tax cannot be justified, where no service, apart from the general service of the Municipal Board, is rendered to the person made liable to pay the toll. From the affidavits filed by the GMC, it is clear that the Corporation is trying to justify the imposition of toll tax for the services, which the Corporation is rendering in discharge of its statutory obligation to the public in general. Not even a single other service benefit and/or amenity, apart from what is claimed to be the GMC is responsibilities, is shown to being rendered by the GMC to the persons made liable to pay the toll, in question. At the time of the hearing also, the learned Counsel for the GMC could not bring to the notice of this Court any special service rendered by the Corporation justifying imposition of toll. Instead, it was argued that Corporation has the full powers to impose the toll tax and no special services and/or benefits are required to be rendered. The power of imposition of toll tax cannot be disputed, but as held by the Apex Court in State of UP v. Devi Dayal Singh, (2000) 3 SCC 5, revenue collected by toll cannot be used for augmenting the State's revenue and the same must have a reasonable relationship to the providing of the benefit and that for the toll imposed, some corresponding benefit must be made available to the person on whom the toll is imposed.
160. Since I have already held that some benefits and services must be rendered by the Corporation to the person paying toll tax which should be other than the services and amenities provided by the Corporation in discharge of its statutory obligation in public interest and no such services and/or benefits rendered by the Corporation could be brought to the notice of this Court, I am constrained to hold that the imposition of toll by the Corporation in the present case is illegal and without jurisdiction and the respondent Corporation is liable to be refrained and forbear from realizing any toll tax.
161. Though the GMC has claimed in para 11 of their affidavit that it is the GMC, which is responsible for maintenance of the Highways falling within the municipal area and that the GMC is responsible for providing lights, sweeping, maintenance of drain, removal of carcass, etc. from the Highways falling within the municipal area, it is of immense importance to note that in para 11 of their affidavit, the GMC does not refer to any statute or law to show that it is the responsibility of the GMC to maintain, besides the municipal roads, the National Highways too nor does it claim that it does, in fact, maintain any National Highways and/or the national highway/highway on which check-gates and/or Parking Place is located. This apart, the GMC does not assert that it does, in fact, provide lights, sweeping, cleaning of drain and/or removal of carcass, etc., for the persons, who bring their vehicles and animals into the city.
162. To a pointed query made by this Court, Mr. B.P. Todi, learned senior counsel for the GMC, could not refer to any statute/bye-laws, etc., to show that the GMC has any responsibility to maintain the national highway or provides any special or specific facility for the persons, who enter into the city with their vehicles or animals. A bare reading of the provisions of Section 5 of the NH Act, 1956, shows that the responsibility for maintenance of National Highways is of the Central Government and if authorized by the Central Government, it is the National Highway Authority or the State, as the case may be, which, then, becomes responsible for maintenance of such Highways. Nothing has been cited by the GMC to show that the Central Government or the National Highway Authority has entrusted the GMC with the maintenance of the highway, in question, and/or that the GMC maintains the same. In fact, the GMC does not boldly assert in their affidavit it is the GMC, which maintains the said highway, be it a national highway or a mere highway. Far from this, the respondents No. 7 and 8 have clearly stated in their affidavit that the National Highways, in question, are maintained by the respondent No. 8 through the PWD, Assam, and that funds for maintenance of these National Highways are provided by the respondent No. 8 w.e.f. 26.4.2002. This shows that the funds for maintenance of the National Highways, in question, are received by the State Government from the National Highways Authority.
163. In other words, neither the State nor the GMC spends, as indicated hereinabove, any amount on the maintenance, development or improvement of the National Highways, in question. Even if the National Highways, in question, are not national highways and mere highways, as the lessees aforementioned are claiming, yet the fact remains that neither the State nor the GMC maintains the said highways.
164. Though it has been urged, on behalf of the contesting respondents, that the decision of the Apex Court in Pilkhowa's case (supra) does not lay down good law inasmuch as the same is contrary to the decision of the Constitution Bench in Automobile Transport, Rajasthan (supra), I find this submission is somewhat misconceived. What has been laid down in Automobile Transport, Rajasthan (supra) is that compensatory taxes for use of trading facilities, if saddled with regulatory measures, do not hamper the trade, commerce or intercourse and that it does not hit trade and commerce guaranteed by Article 301 of the Constitution, In other words, what this decision lays down is that the tax, in question, has to be compensatory in nature and if such kind of a tax has regulatory measures, it cannot be said to hamper trade or intercourse. What the Apex Court has laid down in Pilkhowa (supra) is that unless the toll imposed is of compensatory nature, the toll tax is not valid. It is settled law that tax is exaction of money from the citizens, whereas toll, though may be exaction, has some element of compensation. This compensation cannot be to the extent of quick pro quo as is required in the case of fees. The Apex court has nowhere laid down in Automobile Transport, Rajasthan (supra) that the compensatory taxes or toll can be imposed without having provided any trading facility. That the Apex Court's decision in Pilkhowa case is correct position of law is clear from the fact that the law laid down in this case has been followed by the Apex Court in State of UP and Ors. v. Devi Dayal Singh, reported in (2000) 3 SCC 5, wherein the Apex Court has held as follows :
"7. The concept of "toll" is derived from English jurisprudence. Shorn of connotations which are historically irrelevant in this country, a "toll" may be defined as a sum of money taken in respect of a benefit arising out of the Public temporary use of land. It implies some consideration moving to the public either in the form of a liberty, privilege or service. In other words, for the valid imposition of toll, there must be a corresponding benefit, (see in this connection Hammerton v. Earl of Dysart, Brecon Markets Co. v. Neath & Brecon Rly. Co., Hindustan Vanaspati Mfg. Co. Ltd. v. Municipal Board, Ghaziabad, Maheswari Singh v. State of Bihar, Mohd. Ibrahim v. State of U.P. and Kamaljeet Singh v. Munidpal Board, Pilkhowa.
8. Although the section has empowered the State Government to levy rates of tolls "as it thinks fit", having regard to the compensatory nature of the levy, the rate of toll must bear a reasonable relationship to the providing of the benefit. No doubt, by virtue of Section 8 of the Act, the tolls collected are part of the public revenue and may be absorbed in the general revenue of the State, nevertheless by definition a toll cannot be used for otherwise augmenting the State's revenue." (Emphasis is added)
165. The Apex Court has, if I may reiterate, clearly held in Devi Dayal Singh's case (supra) that toll is a compensatory nature of levy and for reaching this conclusion, the Apex Court relies, amongst others, on the case of Municipal Board, Pilkhowa (supra). Hence, the correctness of the decision in Pilkhowa's case (supra) cannot be questioned by the lessees.
166. From a careful reading of the above observations made by the Apex Court in Devi Dayal Singh case (supra), it is also crystal dear that a toll cannot be used for augmenting the State general revenue even if it is compensatory in nature.
167. It is settled position of law that nomenclature of a levy is not material. What is material is what is the real nature and character of a particular levy. Hence, it is not material as to whether the GMC calls the levy as toll or fee. It is for the Court to decide as to what actually the nature of levy is. Reference may be made to State of Karnataka v. Drive-in-Enterprises, (2001) 4 SCC 60, wherein it has been held :
"The nomenclature of a levy is not conclusive for determining its true character and nature. It is no longer res integra that the nomenclature of a levy is not a true test of nature of a levy. In Goodyear India Ltd. v. State of Haryana 1990 2 SCC 71 : 1990 SCC (Tax) 223 it was held that the nomenclature of an Act is not conclusive and for determining the true character and nature of a particular levy with reference to the legislative competence of the legislature/ the court will look into the pith and substance of the legislation." (Emphasis is supplied)
168. What 'fee' means and indicates is succinctly described in AIR 1981 SC 1863, (Southern Pharmaceuticals & Chemicals v. State of Kerala), thus :
"Coming now to fees, a 'fee' is generally defined to be a charge for a special service rendered to individuals by some governmental agency. The amount of fee levied is supposed to be based on the expenses incurred by the Government in rendering the service, though in many cases the costs are arbitrarily assessed. Ordinarily, the fees are uniform and no account is taken of the varying abilities of different recipients to pay. These are undoubtedly some of the general characteristics. But as there may be various kinds of fees, it is not possible to formulate a definition that would be applicable in all cases.
If as we hold, a fee is regarded as a sort of return or consideration for services rendered, it is absolutely necessary that the levy of the fees should on the face of the legislative provision, be correlated to the expenses incurred by the Government in rendering the services.
The same view was reiterated by the Court in Jagannath Ramanuj Das v. The State of Orissa 1954 SCR 1946 (AIR 1954 SC 400) and in Ratilal Panichand Gandhi v. The State of Bombay 1954 SCR 1955: (AIR SC 388).
25. 'Fees' are the amounts paid for a privilege, and are not an obligation, but the payment is voluntary. Fees are distinguished from taxes in that the chief purpose of a tax is to raise funds for the support of the Government or for a public purpose, while a fee may be charged for the privilege or benefit conferred, or service rendered or to meet the expenses connected therewith. Thus, fees are nothing but payment for some special privilege granted or service rendered." (Emphasis is supplied)
169. With regard to the above, reference may also be made to State of Maharastra v. Salvation Army (AIR 1975 SC 846) wherein the Apex Court observed as follows :
"Now the first question for consideration is : What is the nature of a fee ? It is idle to parade the familiar learning on the question of the distinction between a tax and a fee. A tax is a compulsory extraction of money by a public authority for a public purpose enforceable by law and is not a payment for any specific service rendered. The levy of a tax is for the purpose of general revenue which when collected forms part of the public revenues of the State. There is no element of quid pro quo between the tax payer and the public authority. A fee is generally defined to be a charge for a special service rendered to individuals by the government or some other agency like a local authority or statutory corporation. The amount of fee levied is supposed to be based on the expenses incurred by the Government or the agency in rendering the service though in many cases, the costs are arbitrarily assessed. Fees are ordinarily uniform but absence of uniformity is not a criterion on which alone it can be said that a levy is in the nature of tax. In the case of a fee, no account is taken of the varying abilities of different recipients of the service to pay. As a fee is regarded as a sort of return or consideration for services rendered, it is necessary that the levy of fees should be correlated to the expenses incurred by the agency in rendering the services.
"A levy in the nature of a fee does not cease to be of that character merely because there is an element of compulsion or coerciveness present in it, nor is it a postulate of a fee that it must have direct relation to the actual services rendered by the authority to individual who obtains the benefit of the service. If with a view to provide a specific service, levy is imposed by law and expenses for maintaining the service are met out of the amounts collected there being a reasonable relation between the levy and the expenses incurred for rendering the service, the levy would be in the nature of a fee and not in the nature of a tax." See H.H. Sudhundra Thirtha Swamiar v. Commr. For Hindu Religious & Charitable Endowments, Mysore, (1963) Supp. 2 SCR 302, at p. 323=(AIR 1963 SC 966 at p. 975).
That there is correlation between the levy and the services can be proved by showing that on the face of the legislative provision itself, the collections are not merged in the general revenue but are set apart and appropriated for rendering these services. Thus, two elements are essential in order that a payment may be regarded as a fee. In the first place, it must be levied in consideration of certain services which the individuals accept either willingly or unwillingly and in the second place, the amount collected must be earmarked to meet the expenses of rendering these services and must not go to the general revenue of the State to be spent for general public purposes. See The Commr. Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Shirur Mutt. (1954) SCR 1005, at pp. 1037, 1040 = (AIR 1954 SC 282 at pp. 294, 295) Mahant Sri Jagannath Ramanuj Das v. The State of Orissa (1954) SCR 1046 at p. 1053=(AIR 1954 SC400 at p. 403) and Ratilal Panachand Gandhi v. The State of Bombay, (1954) SCR 1055, at p. 1075 = (AIR 1954 SC 388 at p. 395)" (Emphasis is supplied)
170. In the case at hand, the GMC admits in their additional affidavit that 60% to 70% of their total revenue earning is received from collections of tolls and parking fees from the Check Gates and parking places. It is also clear from this affidavit that the entire money, so collected, goes into the general revenue account. There is not even a semplance of assertion or iota of material on record to show that the collection of revenue received from toll collection and/or any part or portion thereof extracted by the GMC is expended on providing any kind of special service/facility to the persons passing over the highways, in question, and/or for the use of vehicles and/or animals entering into the city and passing over the highways, in question. Viewed from this angle, it is clear that though called/termed as 'toll', the levy is, in fact, nothing but compulsory exaction of money by the GMC for the purpose of discharging its ordinary municipal duties and for maintenance of its staff. This is completely contrary to the law laid down by the Apex Court in Pilkhwa's case (supra) and Nagar Mahalika, Varanasi v. Durga Das Bhattacharyya (AIR 1968 SC 1119). I am also guided to adopt this view from the law laid down in Shervani Sugar Syndicate v. Municipal Board, Ujhani, (AIR 1982 All 402).
171. It deserves to be noted carefully that in Nagar Mahapalika, Varanasi v. Durgadas Bhattacharya, (AIR 1968 SC 1119), the Apex Court, while drawing a distinction between tax and fees, has clearly laid down that the municipality cannot impose tax under the guise of licence fee. Similarly, in the case at hand, the GMC cannot impose tax in the guise of toll by setting up its Check Gates, in question, and it cannot also impose parking fees, under challenge, without giving any service at all.
172. It is also contended before me that the facts in Pilkhowa's case (supra) were different from the one that we have at hand. According to Mr. K.N. Choudhury, in Pilkhowa's case, the place, where tolls were collected, was a point, which was quite at some distance from the township of Pilkhowa, whereas in the present case, the Check Gate, in question, and particularly, Khanamukh Check Gate, are within the GMC area. This submission too is incorrect inasmuch as even in Pilkhowa's case, the tolls were levied on vehicles and passengers passing on the National Highways located within the Municipal area. This apart, in Pilkhowa's case, the place of toll collection was at a quite some distance from the main township of Pilkhowa. Similar is the situation in the case at hand inasmuch as the Check Gates, in question , as well as the parking place, in question, are located, admittedly, on the National Highways, which fall within the municipal area, but far away from the main city area of Guwahati.
173. Since the decision in Pilkhowa's case (supra) largely applies to the case at hand, it is apposite to refer to the observations of the Apex Court in this case, which are as follows : (1986) 4 SCC 174 (Kamaljeet Singh v. Municipal Board) Pilkhowa :
"The High Court has upheld the levy of the toll tax relying upon the decision of this Court in Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan as being compensatory in nature. In Automobile Transport case, the maturity held that regulatory measures imposing compensatory taxes for the use of trading facilities do not hamper trade; Commerce or intercourse, but rather facilitated them and therefore are not hit by the freedom of trade and commerce guaranteed by Article 301 of the Constitution. The toll tax in question however cannot be treated to be compensatory tax for the use of trading facilities. The Municipal Board provides no facilities what you are to the owners of vehicles like stage carrier carriages making use of national High Way No. 24. The township of Pilkhwa is off the National Highway and is quite at some distance. It is connoted by a road and a part of the National Highway has been included within the Municipal limit. Merely because stage carriage operators like the appellant ply their stage carriages on permits used on the inter-statal route Delhi-Garhmukteshwar which falls on the national highway and stop their buses for the facility of passenger going to and coming from Pilkhwa, or that the Municipal Board has set up two electric poles at the toll barriers for facility of collection of the toll tax, does not justify the imposition of a toll tax. Usually, the consideration for a toll is some amenity, service, benefit or advantage which the person entitled to the toll undertakes to provide for the public in general, or the persons liable to pay the toll. The national highway is being maintained by the government and the approach road built by the Public Works Department. There is a nallah constructed by the Municipal Board for flow of sewerage water from the town of Pilkhwa, but that does not entitled the Board to levy a toll tax on stage carriage operators like the appellants as a compensatory tax. Even assuming that the Municipal Board has to incur expenditure on maintenance of the connecting, door and the nallah, but they are facilities provided for the residence of the town for which it recovers various taxes. Furthermore, maintenance of road, bridge etc. are statutory duties of the Municipal Board under Section 7 of the Act. The levy of the toll tax by the Municipal Board must therefore be struck down as ultra vires" (Emphasis is supplied)
174. Even in the case of Meghalaya Truck Owners Association (supra), this Court did not say that tolls are not compensatory in nature. What this Court observed was that the tolls do not stand on the same footing as fees. This is wholly correct inasmuch as fees require an element of quick pro quo whereas tolls have to be only compensatory in nature, which is levied on account of liberty given, privilege enjoyed and/or service rendered and/or facility offered as observed in Devi Dayal Singh (supra).
175. In the case at hand, the GMC cannot stop entry of vehicles and animals into the National Highways inasmuch as the National Highways, which vest in the Central Government, stands excluded from the municipal area. The use of the National Highway by persons, who drive their vehicles on the national highway or make their animals pass over the National highway is also a privilege, which the Central Government offers to the users of the National Highway. Admittedly, the GMC provides no specific service for those persons, who pass over the National Highway. Had the GMC provided facilities or/service for the persons passing over the National Highway, it might have been able to impose toll, though not by stopping vehicles on the National Highway, but by making collection counters away from the National Highway.
176. Since the lessees relies heavily on the decision, in International Tourist Corporation v. State of Haryana, (1981) 2 SCC 318, to sustain the toll, let me quote the relevant portions of the Apex Court's observations in this case, which are as follows :
"That part of the Highway which is within a municipal area is excluded from the definition of National Highway, and therefore, the responsibility for the development and maintenance of that part of the Highways is certainly on the State Government and the Municipal Committee concerned. Since the development and maintenance of that part of the Highway which is within a municipal area is equally important for the smooth flow of passengers and goods alongwith the National Highway it has to be said that in developing and maintaining the highway which is within a municipal area the State Government is surely facilitating the flow of passengers and goods along the National Highway. Apart from this, to the facilities provided by the State Government along all highways including National Highways, such as lighting, traffic control, amenities for passengers, halting places for buses and trucks are available for use by everyone including those travelling along the National Highways. It cannot therefore, be said that the State Government confers no benefits and renders no service in connection with traffic moving along National Highways and is, therefore, not entitled to levy a compensatory and regulatory tax on passengers and good carried on National Highways. We are satisfied that there is sufficient nexus between the tax and passengers and goods carried on National Highways to justify the imposition" (Emphasis is added)
177. A bare reading of the decision in International Tourist Corporation (supra) shows that on account of the fact that the part of the National Highway, which fell within the municipal area, did not exist within the municipal area, the Apex Court held that in developing and maintaining the highway, which fall within the municipal area, the State Government is facilitating the flow of passengers and goods along the National Highway. This apart, in the International Tourist Corporation (supra) the Municipality were providing other facilities on the Highway, such as, lighting, traffic controlling halting places for busses and trucks, amenities for passengers and it was for this reason that the Court held that it cannot be said that the State Government conferred no benefit and rendered no services in connection with the traffic moving along the National Highway and, hence, the State Government is entitled to levy a compensatory and regulatory tax on the passengers and goods carried on the National Highway. Two things flow from the above decision, viz.,
(1) The levy imposed has to be compensatory in nature for enabling the Municipality to levy toll; and
(2) Toll was upheld because the National Highway passing through the city area did not fall within the ambit of the definition of National Highway.
178. Both these elements are absent in the present case. The Municipality is not providing any amenities on the National Highway and the National Highway, while passing through the municipal area, retains its identity as national highway.
179. Thus, on account of complete absence of similarity of facts and situation, the parity of reasoning does not permit this Court to apply the law laid down in International Tourist Corporation (supra) to the facts of the present case. I am guided to adopt this view from the law laid down in Union of India v. Annan Ramalingam (1985) 2 SCC 443, wherein the Apex Court held thus :
"In the absence of parity of situation or circumstances, the doctrine of parity of reasoning can not be invoked."
180. I may also pause to point out that it has been asserted by the writ petitioner that no lay-byes have been constructed or made by the GMC for parking by the side of the National Highway and that parking fees are collected from the vehicles parked on the National Highway. To a pointed query made by this Court in this regard, Mr. A. Mazumdar, learned Sr. Advocate appearing on behalf of the respondent No. 15 (who is the lessee of the parking place in question) and Mr. B.P. Todi, learned senior counsel appearing on behalf of the GMC, could not assert that they have any place other than the National Highway, which is used or can be used as a parking place. What is, thus, happening is that without providing any facility for parking, the GMC has been collecting parking fees.
181. It needs to be borne in mind that the parking fees is fee and not toll, because the vehicles coming into the city have to pay toll for entering into the city and vehicles, which are parked on the National Highway, the GMC collects fees, but provides no facility for such purpose. It is not in dispute that fees requires some quid pro quo, which is completely absent in the instant case. Hence, collection of fees in the form of parking fees from the places on the National Highway is wholly invalid. Thus, the word "place" in the definition of the term "parking place", occurring in Section 3(F) of 1997 Bye-Laws, must be held to mean the place other than the National Highway, which may be notified by the GMC as a place for the purpose of vehicles within the city.
182. Assuming that the place(s), where the check-gates and Parking Place, in question, are located, are not national highways and that the levy collected by the GMC in the form of toll and/or parking fees is toll and/or fees, as claimed, yet the question, which still remains to be answered is whether the 1997 Bye-laws, which empower the GMC to collect toll and/or fees, is a valid piece of delegated legislation.
183. While considering the above aspect of the matter, it is imperative to note that Section 144 of the GMC Act, 1971, empowers, the Corporation to impose taxes and duties. Clause (c) of sub-section (2) of Section 144 also empowers the Corporation to levy a toll on vehicles and animals entering the city. Section 416 of the GMC Act, 1971, empowers the Corporation to make bye-laws including bye-laws relating to taxation, which includes bye-laws relating to levy, assessment, collection, refund or remission of taxes under the Act.
184. It was submitted, oh behalf of the respondent Corporation, that since Section 144 empowers the Corporation to levy toll on vehicles and animals entering the city and the Corporation has been empowered to frame bye-laws relating to levy, assessment, collection etc. of taxes under the Act, the 1997 Bye-Laws, which provides for collection of the toll tax by the Corporation through lessees, is legal and within the jurisdiction of the Corporation. No provision other than the provisions of Section 144(2)(c) could be pointed out to the Court for levy of toll by the Corporation.
185. Before examining the validity of the levy of the toll by the Corporation, it is necessary to examine the components, which enter into the concept of tax and/or toll. The first is the character of the imposition, which is known by its nature and prescribes the taxable event attracting the levy. The second is the clear indication of the person on whom the levy is imposed and who is obliged to pay the tax. The third is the rate at which the tax is imposed and the fourth is the measure or nature to which the rate would be applied for computing the tax. The Apex court in Govind Saran Ganga Saran v. CST (1985) 155 ITR 144 held that if the above referred components are not clearly or definitely as certainable, it is difficult to say that the levy exist in point of law. The Apex Court further held that any uncertainty or vagueness in the Legislative Scheme defining any of those components of levy would be fatal to its validity.
186. Further, it is also a settled law that in fiscal matters, a delegated authority cannot, in the absence of express provisions, impose tax, toll or fee. The power of imposition of tax and/or toll and/or fee by the delegated authority must be specific and there is no scope of implied authority for imposition of such levy. It is not proper to bring the theory of implied intent or the concept of incidental or ancillary power in the matter of exercise of fiscal powers.
187. Section 144 of the GMC Act, 1971, has empowered the GMC to levy a toll without setting down any standard for the guidance of the executive. Section 144 has practically effaced itself in the matter of levy of toll and has not given any guidance as regards the levy of toll under Section 144 or any other provisions of the Act, In this regard, no other provision was, if may reiterate, brought to my notice by the learned counsel for the respondent Corporation. This amounts to sanctioning conferment of powers by the legislature on the executive without laying down any guidance in the Act.
188. The principle of excessive delegation is well settled and the law on the subject has been summarized succinctly in Devi Das Gopal Krishnan v. State of Punjab reported in AIR 1967 SC 1895 as under :
"The Constitution confers a power and imposes a duty on the legislature to make laws. The essential legislative function is the determination of the legislative policy and its formulation as a rule of conduct. Obviously, it cannot abdicate its functions in favour of another. But in view of the multifarious activities of a welfare State, it cannot presumably work out all the details to suit the varying aspects of a complex situation. It must necessarily delegate the working out of details to the executive or any other agency. But there is a danger inherent burdened legislature or one controlled by a powerful executive may unduly overstep the limits of delegation. It may not lay down any policy at all; it may declare its policy in vague and general terms; it may not set down any standard for the guidance of the executive; it may confer an arbitrary power on the executive to change or modify the policy laid down by it without reserving for itself any control over subordinate legislation. This self-effacement of legislative power in favour of another agency either in whole or in part is beyond the permissible limits of delegation. It is for a Court to hold on a fair, generous and liberal construction of an impugned statue whether the legislature exceeded such limits. But the said liberal Courts to the extent of always trying to discover a dormant or latent legislative policy to sustain an arbitrary power conferred on executive authorities. It is the duty of the Court to strike down without any hesitation any arbitrary power conferred on the executive by the legislature." (Emphasis is added)
189. In Devi Das Gopal Krishnan's case (supra), the Apex Court declared Section 5 of the Punjab General Sales Tax Act, 1948, to be void on the ground that an uncontrolled power was conferred on the provincial Government to levy every year on the taxable turnover of a dealer, a tax at such rate as the said Government may direct, while rejecting the argument that the policy could be gathered from the Constitutional provisions, the Apex Court held that if the said contention is accepted, it would destroy the doctrine of excessive delegation and would also sanction conferment of powers by the legislature on the Executive Government without any guidance in the Act.
190. From the above, it is dear that the Rule making authority cannot be given an arbitrary, uncanalised and unguided power to levy tax and/or toll. From a plain reading of Section 144 of the GMC Act, 1997, the irresistible conclusion is that no guidance as regards levy of toll like the rates, the manner and collection of levy has been given to the Rule making authority. In the absence of such guidance by the legislature as regards the levy and collection of toll, the impugned levy of toll, with the help of 1997 Bye-Laws, cannot be said to be legally tenable in law. The principle that in a taxing legislation, greater latitude and greater play in joints should be allowed is well settled. But as held by the Apex Court in a recent decision in Shree Digvijay Cement Co. Ltd. v. Union of India, reported in (2003) 259 ITR 705, the aforesaid principle cannot be extended to validate a levy, which has no sanction of law howsoever laudable may have been the object to introduce it and howsoever laudable may have been the purpose for which the amount so collected may have been spent. If the levy and collection of any sum of money does not have the sanction of law and does not stand the test of the well settled principles laid down by the Apex court, the same is liable to be struck down.
191. Since the writ petitioner has not challenged the legality of Section 144, it does not mean nor can it be contended that the 1997 Bye-Laws cannot be challenged. Since the 1997 Bye-Laws is a product of unguided, unfettered and uncanalised powers vested in the GMC, the Bye-Laws under challenge cannot be allowed to stand good on record.
192. It has been submitted by Mr. K.N. Choudhury that in the Corporation of Calcutta v. Liberty Cinema AIR 1965 SC 1107, the Apex Court has held that a statutory provision for raising revenue for the purpose of the delegates for carrying out its functions under the statute for which taxing power is conferred on it is itself sufficient guidance to make the power to levy the tax valid.
193. The above submissions of Mr. K.N. Choudhury do not appear to be wholly correct inasmuch as in the Liberty Cinema (supra), it was contended, inter alia, that the Act, in question, was invalid on the ground that it suffered from illegal delegation of legislative function to the Corporation by the State, because the State had, it was alleged, left it entirely to the Corporation to fix the amount of tax.
194. Reacting to the above, the Apex Court held that no doubt, a delegation of essential legislative power would be bad, but the fixation of the rates of taxes is not of the essence of legislative power of taxation and that the fixation of rates of taxes may be legitimately left by a statute to a non-legislative authority, for, there is no distinction in principle between delegation of power to fix rates of taxes to be charged on different classes of goods and power to fix rates simpliciter and if power to fix rates in some cases can be delegated, then, equally the power to fix rates, generally, can also be delegated. The Apex Court, however, clarified that when the power to fix rates of taxes is left to another body, the legislature must provide guidance for such fixation.
195. Thus, in Liberty Cinema (supra), the enactment was upheld, because adequate guidance were provided to the Corporation to fix the rates of taxes. In the case at hand, no guidance has been provided by the GMC Act, 1971, to the GMC with regard to the fixation of rates of tolls to be levied on vehicles and animals entering the city and/or the manner or machinery for collection thereof.
Since the GMC Act, 1971, gives no indication that the GMC can get tolls collected on their behalf by private lessees, the GMC, as a delegatee, cannot further delegate its power of collection of tolls/fees/tax to any agent or delegatee thereof. I am guided to adopt this view from the law laid down in District Mining Officer v. Tata Iron & Steel Co. (AIR 2001 SC 3134), wherein it has been held as follows :
"The expression "levy and collection" in Article 265 in comprehensive sense and is intended to include the entire process of taxation commencing from taxing statute to the taking away of the money from the citizen. What the article enjoins is that every stage in this entire process must be authorized by the law." (Emphasis is added)
196. Reference may also be made to District Mining Officer and Ors. v. Tata Iron & Steel Company Limited, 2001 (7) SCC 358, wherein it has been held as follows :
"Levy as well as collection both must have the authority of law. The law will mean a valid law. The valid law, in turn, will mean that the tax proposed to be levied must be within the legislative competence of the Legislature and the law must be validly enacted. The expression levy and collection used in Article 265 means that the entire process of taxation commencing from the imposition of tax till the collection from the tax prayer has to have sanction of law." (Emphasis is added)
197. The levy, therefore, which is sought to be collected, with the help of 1997 Bye-Laws, made in pursuance of the powers contained under Section 416(1)(c) of the GMC Act, 1971, cannot be upheld.
198. Considering the matter, therefore, in its entirety, I am firmly of the view that the levy of toll and/or parking fees, which are under challenge in the present writ petition, are wholly without jurisdiction, ultra vires, illegal and invalid.
Point No. VII
199. In view of what is pointed out above, the ultimate collection of toll and/or fees, in question, is on the strength of 1997 Bye-laws. Since the relevant provisions of the GMC Act, 1971, and/or or the 1976 Bye-Laws are not under challenge in the present writ petition, I would not like to interfere with them, but since it is on the strength of 1997 Bye-Laws that the lessees aforementioned collect the toll and/or fees, the same cannot be permitted to survive, though striking down of the 1997 Bye-Laws has to be prospective in nature so as to avoid future complications.
200. In the result and for the reasons discussed above, this writ petition succeeds. The impugned 1997 Bye-Laws is hereby set aside and quashed with effect from today. The lease granted by the respondent No. 5, i.e., namely, the GMC in favour of the lessee, namely, respondent Nos. 13 to 17 shall accordingly stand set aside and quashed, but any amount(s), which already stand collected by [he lessees aforementioned and/or the GMC from the Check-gates and parking places shall, however, not be refundable to the persons from whom the collections have been made. It is further directed that the respondent No. 5 shall refund to the lessees aforementioned such amount or amounts, which may be due to be paid to them after deducting the lease amounts payable by them to the GMC with effect from the date of granting of the lease till today. The whole exercise, so directed, shall be completed by the GMC within a period of one month from today.
201. With the above observations and directions, this writ petition shall stand disposed of.
202. The parties are left to bear their own costs.