NEK MOHAMMAD Vs. EMPEROR

JUDGEMENT

(1.) The applicants were convicted by a Special Magistrate of the 1 class under Section 299, Municipalities Act (Local Act 2 of 1916) and sentenced to pay a fine of Rs. 25 each. The conviction and sentence were upheld in revision by the learned Sessions Judge. In the present application before me it is contended that the conviction is illegal. It appears that the four applicants were taking four carts loaded with dried ginger from a place called Kalpi and they passed through the Municipal limits of Saharanpur on their way to Tapri, a railway station, for the purpose of sending the goods to Delhi. It is said that they did not pay the toll tax and as such they were guilty of a breach of rule framed by the Local Government for the Saharanpur Municipality. Section 299, Municipalities Act, provides that in making a rule the Local Government...may direct that a breach of it shall be punishable with fine which may extend to Rs. 500. The power to make rules is given to the Local Government by Section 296 of the Act and Section 128 of the same Act says that: Subject to any general rules or special orders of the Local Government in this behalf the taxes which a Board may impose in the whole or in part of the Municipality are: and then a list of the various taxes is given by Government Notification No. 850/11-D. T. 3, dated 1 May 1919, the existing rules regarding the assessment and collection of the terminal toll in the Saharanpur Municipality were superseded and fresh rules laid down. Under these rules the expression "terminal toll" means the tax imposed under Secs.128(1)(7), United Provinces Municipalities Act. Rule 2 says, No person shall bring within the toll limits of the Saharanpur Municipality (which shall be the same as the octroi limits published with Notification No. 2024/1,1-374-E., dated 11 July 1916), any head load, bahngi load, laden vehicle or any laden pack animal, on or in respect of which terminal toll is leviable, until the toll due has been paid to such persons and at such places as the Municipal Board may from time to time appoint.

(2.) A penalty was then provided and it was said that in exercise of the power conferred by Section 299(1) of the Act the Local Government hereby directs that a breach of Rule 2 shall be punished with fine which may extend to Rs. 50. By a Government Notification dated 27 October 1919 it was notified that under Sub- section (2), Section 135, United Provinces Municipalities Act, 1916, the Municipal Board of Saharanpur in exercise of the powers conferred by Section 128(1)(vii) of the said Act had imposed certain taxes in the Municipality of Saharanpur with effect from 1 December 1919. Then we have the heading "Terminal Toll" and the amount of the toll is fixed on head loads, bahngi loads loaded pack animals, loaded carts, loaded hand carts and motor lorries under sub-heading (I) and a proviso is added that on animals or carts laden with lime, bricks, tiles, stones, reh, surkhi, etc., etc., the, tax will be on a certain basis. We then get sub-headings (II) and (III.) It is not necessary for the purpose of this case to mention what those sub-headings contain. On 13 November 1922 there was another Notification and it was notified that under Sub-section 2, Section 135, United Provinces Municipalities Act, the Municipal Board of Saharanpur in exercise of the powers conferred by Section 128(1)(vii) of the said Act had made the following amendments under Section 136 of the Act in the terminal toll schedule of the Municipality published with Notification dated 27 October 1919 with effect from 1 December 1922: Amendments.-Add the following to the description of the terminal toll as II and alter the present Nos. II and III to III and IV: On carts, pack animals, head loads and bahngis entering the limits of the Municipality and loaded with articles contained in items 32 to 52 of the terminal tax schedule...the toll shall be levied at the rates of the terminal-tax in force in the Municipality. In November 1932 there was a further Notification which says that it is hereby notified that under Sub-section 2, Section 135 read with Section 136, United Provinces Municipalities Act, 1916, the Municipal Board of Saharanpur in exercise of the powers conferred by Section 128(1)(vii) of the said Act had made the following amendments in the terminal toll schedule of the Saharanpur Municipality, published with Notification of 1919 and subsequently amended with effect from 1 December 1932: Amendments.-Substitute the following for the description of the terminal toll No. 2 added by Notification of November 1922 No. 2. The following articles shall be charged toll at the rates of terminal-tax in force in the Municipality when imported by road through all the toll barriers and then the description of the articles as given in the terminal-tax schedule is set forth.

(3.) It would thus appear that although the original intention of Rule 2 as notified in May 1919 was to impose a tax known as terminal toll On head loads, "bahngi loads,, laden vehicles and laden pack animals and although the said intention was maintained in the notifications of October 1919 and even in November 1922 when carts, pack animals, head loads and bahngis laden with particular articles were subjected to a toll at the rate of terminal-tax, yet in the year 1932 the amendment in the shape of a substitution did away with head loads, bahngi loads, laden vehicles and laden pack animals and said that certain articles will be charged toll at the rates of terminal tax when imported by road through all the toll, barriers. It is not necessary for the purpose of the present case to say how far the present amendment of 1932 is consistent with the spirit of Rule 2 mentioned above, but even assuming that the way in which the tax is now being imposed is consistent with Rule 2, in the sense that the two read together might mean that head loads, bahngi loads, laden vehicles and laden pack animals containing the articles specified in the amendment of November 1932 will be liable to toll at the rate of terminal-tax, the question still remains whether in the circumstances mentioned at the beginning of my judgment the accused brought within the toll limits of the Saharanpur Municipality or imported by road through the toll barriers of the Saharanpur Municipality, the carts containing dried ginger which article would be included in No. 48 of the Notification of November 1932. The carts were coming from Kalsi and were going to Tapri and in the way they passed through the Saharanpur Municipality and they evaded the toll barriers. The goods were intended to be railed at Tapri for Delhi. I am not impressed by the argument of learned Counsel for the applicants that the carts did not pass through the toll barriers and therefore there was no breach, because the Notification of November 1932 mentions "through all the barriers". The meaning is that the carts passing through the Saharanpur Municipality will be within the ambit of the toll barriers and if a person happens to take his cart through a kachcha road and thus evades the barrier he will nonetheless be said to be passing through the toll barriers.