ZAKIRHUSSAIN Vs. STATE OF ASSAM

JUDGEMENT

(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 -03-2002, issued by the Guwahati Municipal Corporation.

(3.) In a nut-shell, the petitioner's case may be narrated as follows: (i) 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 No. 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 Highways No.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 No.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-I 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 jurisdiction 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 Art. 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)(k) 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 10 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 afore-mentioned, 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 Byelaws, 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.