MADAN GOPAL RUNGTA Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this case the petitioner is a lessee under a registered deed of lease executed by the Collector of Palamau with regard to the Nawadih Iron Mines in the district of Palamau. In pursuance of the registered deed of lease the petitioner had been working the iron mines and has been transporting iron ore from Nawadih to Daltonganj Railway Station for being despatched to Kidderpore dock, Calcutta. It appears that the iron ore is carried from village Nawadih to Daltonganj Railway Station across the dry bed of the river Koel by means of truck. It is alleged that in April, 1958, opposite party No. 4, Dwarka Prasad obtained lease of the right to levy tolls on trucks passing across the bed of the river Koel. It appears that the lessee charges tolls for empty trucks at the rate of Re. 1/-per truck and for loaded truck at the rate of Rs. 4/-. It is alleged on petitioner's behalf that this rate is unreasonable. The petitioner also applied to the Collector of Palamau for laving mats on the river bed for the use of his own trucks, but the prayer was refused by the Collector of Palamau on the 25th of November, 1958. The petitioner took the matter in appeal to the Commissioner of Chota Nagpur, but the appeal was dismissed by the order of the Commissioner dated the 3rd of January, 1959. The petitioner has obtained a rule from the High Court Calling upon the respondents to show cause why a writ in the nature of mandamus should not be issued commanding the respondents not to realise tolls from the petitioner for plying the trucks across the sandy bed of the river Koel. Cause has been shown by the learned Government pleader on behalf of the Respondents to whom notice of the rule was given.

(2.) On behalf of the petitioner learned Counsel submitted, in the first place, that the levy of tolls by the Collector of Palamau is not based upon any legislative or statutory authority, and violates the provisions of Article 265 of the Constitution which states that "No tax should be levied or collected except by authority of law." It was conceded by the learned Government pleader on behalf of the respondents that there is no Notification by the State Government under Section 2 of the Indian Tolls Act (Act VIII of 1851) authorising the State Government to levy the tolls upon lorries plying across the sandy bed of the river Koel. It was also conceded by the learned Government Pleader that the tolls were imposed in this case not under any legislative statutory authority, but merely in exercise of the administrative power of the Deputy Commissioner of Palamau, It was pointed out by the learned Government Pleader that the river bed is recorded as gairmajruamalik in the name of the Secretary of State in Council in the record-of-rights; but the argument of Mr. P. R. Das on behalf of the petitioner is that even if the river bed has vested in the State Government the public have a right to pass across the river bed. It is alleged in paragraph 25 of the application that "from time immemorial People without any qualification or limitation cross the bed of the river at any point or points and can carry goods by any vehicle, motor or otherwise, and have therefore right of usage to do so." These facts are not controverted in the counter-affidavit filed by the State of Bihar and the other respondents in this case. It is submitted by learned Counsel on behalf of the petitioner that the right of the Government as owner cannot operate in derogation of the right of the Public which has been acquired by custom and immemorial usage. In my opinion, the argument of learned Counsel is correct. It is true that the State Government is owner of the river bed, but the right of ownership is subject to customary right of the public to cross the river bed. The legal position has been clearly stated by the Madras High Court in C. S. S. Motor Service v. State of Madras (1952) 2 Mad LJ 894: (AIR 1953 Mad 279) in the following passage which has been quoted with approval by the Supreme Court in SagKir Ahmad v. State of U. P., 1955-1 SCR 707 at p. 719 : (AIR 1954 SC 728 at p. 735):

(3.) In the present case the petitioner has also claimed the right of laying that (tatar) on the river bed and passing his own trucks thereon. But in our opinion the petitioner has not proved any such usage and he has no such right. We think that the petitioner has only the right of crossing the river bed by any vehicular conveyance without laying any mat thereon. We, therefore, reject the contention of learned Counsel for the petitioner on this point. But with regard to the main question, namely, the legality of the levy of tolls, we are of opinion that the application must be allowed on this point and a writ in the nature of mandamus should be issued commanding the respondents not to impose any tolls on trucks, either loaded or empty, plying across the bed of the river Koel.