Uttarakhand High Court
Kunj Bihari vs Special Judicial Magistrate Ii And Ors. on 11 April, 2005
Equivalent citations: 2005(2)AWC1363(UHC), (2005)2UPLBEC41, 2005 ALL. L. J. 1417, (2005) 32 ALLINDCAS 306 (UTR), (2005) 59 ALL LR 539, (2005) 2 ALL WC 1363, (2005) 32 ALLINDCAS 306
Author: Prafulla C. Pant
Bench: Prafulla C. Pant
JUDGMENT Prafulla C. Pant, J.
1. By means of this writ petition, moved under Article 226 read with Article 227 of the Constitution of India, the petitioner has sought writ in the nature of certiorari calling for the records and quashing of the impugned order dated 21.3.2005 (copy Annexure-4 to the writ petition) passed by the Special Judicial Magistrate, Dehradun, in criminal complaint case No. 1242 of 2004, Cantonment Board v. Kunj Bihari.
2. Brief facts of the case as narrated in the writ petition are that the petitioner is owner of bus No. UP-07/ J 8703, having stage carriage permit to ply the vehicle between Dehradun and Dakpathar. The road between Dehradun and Dakpathar is part of National Highway No. 72. This National Highway No. 72 (for brevity hereinafter NH-72) starts from Rishikesh with terminal point at Ambala. The said Highway pass through Dehradun, Ponta Sahib and Nahan. NH-72 was notified as National Highway vide Notification dated 6.1.1999 and before that it was a State Highway. On 21.12.2004, the Executive Officer, Cantonment Board, Dehradun exercising its powers conferred under Section 82 of the Cantonment Act, 1924 (Act No. 2 of 1924) submitted a complaint against the petitioner before the Court of Special Judicial Magistrate, Dehradun by issuing challan No. 13 for nonpayment of toll tax at Premnagar barrier on 26.7.2004. The Special Judicial Magistrate (respondent No. 1) registered the complaint case No. 1242 of 2004 on the basis of the challani report, against the petitioner. The petitioner appeared before the Magistrate and filed his objections against the complaint on 21.1.2005, challenging the power of Cantonment Board (respondent No. 2) realizing any kind of toll or tax on a National Highway. According to the petitioner, the entire control over the National Highway vests with the Central Government under National Highways Act, 1956 (Act No. 48 of 1956) and the control of National Highways (Land and Traffic) Act, 2002 (Act No. 13 of 2003). In this connection, the petitioner has referred Section 4 and Section 7 of the Act. No. 48 of 1956. Petitioner has also raised the plea that under Section 15 of Act No. 13 of 2003, the jurisdiction of all the Courts except Supreme Court and High Court is barred in respect of any dispute regarding which the power has been given by the Central Government to Highway Administration/Highway Tribunals. It is further pleaded by the petitioner that Municipal Board or Cantonment Board has no power to collect any kind of toll or fee without approval of the Central Government. In this connection, the petitioner has referred the letters dated 9.2.2004 (copy Annexure-6 to the writ petition) and 30.7.2004 (copy Annexure-7 to the writ petition) issued by the Engineers of the National Highways. Public Works Department, Dehradun, wherein objection has been raised relating to realization of the toll by the Cantonment Board by putting a barrier over the National Highway. The Special Judicial Magistrate (respondent No. 1) before whom the complaint case is pending, after hearing the parties, rejected the objections of the petitioner vide its order dated 21.3.2005 (copy Annexure-4 to the writ petition) holding that it has the jurisdiction to proceed with the case in the matter. Aggrieved by the same, the present writ petition has been filed.
3. The Cantonment Board (respondent No. 2) has filed its counter-affidavit to the writ petition in which it has challenged the maintainability of the writ petition on the ground that the remedy to file a revision against the impugned order was available to the petitioner under Section 397 of the Code of Criminal Procedure, 1973. There is yet another preliminary objection raised in the counter-affidavit that under Section 84 of the Cantonments Act, 1924 (Act No. 2 of 1924), the remedy of appeal was available to the petitioner against the levy of tax by the Board, as such, the present petition is not maintainable. Under the Act No. 2 of 1924 there is no exception for National Highways and as such the power under Section 82 read with Section 259 of said Act can be exercised over such Highways if they fall within the limits of the Cantonment Board. The Cantonment Board, in its exercise of powers under said Sections, is supported by the approval of the Central Government vide SRO No. 369, dated 1.1.1956 published in the Gazette No. 45, Part II. dated 17.11.1956 of the Government of India, and SRO No. IX/60/ Toll tax, dated 22.1.2001 published in Gazette dated 3.3.2001 of the Government of India (copy Annexure-1 to the writ petition). According to the respondent No. 2, none of the aforesaid provisions contained in the Cantonment Act, 1924 or the SROs has been declared ultra vires by any of the authorities. It is further stated in the counter-affidavit that under Sections 116 and 117 of the aforesaid Act of 1924, the Cantonment Board has to provide wholesome drinking water supply, sanitation, health services, public urinals, plantation, street lights etc. within the notified area of the Cantonment Board. And the same is also being provided to those using part of NH-72 which passes through the area of the Cantonment Board. It is also clarified in the counter-affidavit that the National Highway passes through the Cantonment area from boundary pillar Nos. 1-C to 1-D in Premnagar to boundary pillar Nos. 1 to boundary pillar No. 72 in Rangharwala. Defending the impugned order passed by the Special Judicial Magistrate, it has been stated in the counter-affidavit that the said authority is empowered to proceed with the complaint case against the petitioner. Stating that toll tax is being realized for last 40 years it is pleaded by the respondent No. 2 in its counter-affidavit that the power of the Cantonment Board is not affected only for the reason that the Highway is a National Highway.
4. I heard learned Counsel for the parties at length and perused the affidavits and counter-affidavit filed by the parties alongwith the annexures annexed thereto.
5. Undoubtedly, the cause of filing this writ petition is the impugned order dated 21.3.2005 (copy Annexure-4 to the writ petition) passed by the Special Judicial Magistrate (respondent No. 1) in complaint case No. 1242 of 2004 which is filed by Cantonment Board against Sri Kunj Bihar (petitioner) under Section 82 of the Cantonments Act, 1924, for non-payment of toll at barrier Premnagar on 26.7.2004 in respect of Bus Registration No. UP-70/J 8703 owned by him. The offence under said Section 82 is punishable with fine of Rs. 250/- or ten times of the octroi tax avoided, whichever is greater. There is no dispute that the said complaint case is being proceeded under the provisions of Code of Criminal Procedure, 1973. Section 397 of the Code of Criminal Procedure empowers the High Court as well is the Sessions Judge calling for records to exercise power of revision. Section 397 of the Code of Criminal Procedure is being reproduced below :
"397. (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality and propriety of any finding. Sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
Explanation.--All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 398.
(2) The powers of revisions conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the either of them."
The impugned order passed by the Special Judicial Magistrate could have been challenged under aforesaid Section before the Sessions Judge, Dehradun. Since, the objection raised by the petitioner before the learned Magistrate, if allowed would have disposed of the complaint itself without proceeding further, therefore, the impugned order cannot be said to be an interlocutory order. As such, I have in reason to hold that the remedy of filing a revision was available to the petitioner, which he had not availed.
6. Section 83 of the Cantonments Act, 1924, which empowers the Cantonment Board regarding lease of octroi, terminal tax or toll, is followed by Section 84 which contains provision as to appeals. Section 84 of said Act (as amended vide Act No. 15 of 1983) reads as under :--
"84. Appeals against assessment.--(1) An appeal against the assessment or levy of, or against the refusal to refusal, any tax under this Act shall lie to the District Court.
(2) If the District Court, on hearing of an appeal under this section, entertains reasonable doubt on any question as to the liability to, or the principle of assessment of, a tax, the Court may, either on its own motion or on the application of the appellant, draw up a statement of the facts of the case and the point on which doubt is entertained, and refer the statement with its opinion on the point for the decision of the High Court.
(3) On a reference being made under Sub-section (2), the subsequent proceeding in the case shall be, as nearly as may be, in conformity with the rules relating to reference to the High Court contained in Order XLVI of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908) Explanation.--For the purposes of this section and Section 85, Section 86, Section 87, Section 88 and Section 92A, "District Court", in relation to a Cantonment, means the Principal Civil Court of original jurisdiction having jurisdiction over the area in which that Cantonment is situated, and includes such other Civil Court having jurisdiction over that area, as the Central Government may, by notification in the Official Gazette, specify in this behalf, in consultation with the High Court having jurisdiction over that area."
Admittedly, no appeal was filed by the petitioner regarding the toll tax imposed under Section 83 of the aforesaid Act No. 2 of 1924, before the Principal Civil Court of original jurisdiction i.e. Civil Judge (SD), Dehradun. As such, the remedy of appeal against the imposition of tax too has not been availed by the petitioner. There is no doubt, that the power to impose the tax flows from the Section 60 and Section 63 read with Section 83 of the said Act. The only requirement for imposition of toll tax in view of aforesaid Sections (Section 60, Section 63 and Section 83) is the previous sanction of the Central Government. SRO No. 369, dated 1.11.1956 read with SRO No. 79, dated 18.2.1974 and SRO No. XI/60/Toll Tax/142, dated 20.5.1989 issued by the Central Government (copies contained in Annexure-1 to the counter-affidavit) and published in the Gazette of Government of India, leave no doubt as to the approval received by the respondent No. 2 in imposition of the toll tax.
7. Shri L.P. Naithani, learned Senior Counsel for the petitioner drew my attention to Article 301 of the Constitution of India which reads as under :
"Article 301.--Subject to the other provisions of this part, trade, commerce and intercourse through-out the territory of India shall be free."
The aforesaid Article 301 of the Constitution of India needs to be read with Article 302 and Article 305 of the Constitution. Article 302 of the Constitution provides that Parliament may be law impose such restrictions on the freedom of trade, commerce or intercourse between one State and another or within any part of the territory of India as may be required in the public interest. Further, Article 305 of the Constitution saves the existing laws and provides that nothing in Articles 301 and 303 shall affect the provisions of any existing law except in so far as the President may by order otherwise direct. It further provides that nothing in Article 301 shall affect the operation of any law made before the commencement of the Constitution (Fourth Amendment) Act, 1955.
That being so, if the provisions of Cantonments Act, 1924 are read with aforesaid Articles it cannot be said that the trade, commerce or intercourse has been interfered in violation of the constitutional provisions of law.
8. Sri Naithani, relied heavily on Section 4 to 7 of the National Highways Act, 1956. Section 4 to 7 of the said act reproduced below :--
"(4) National Highways to vest in the Union.--All National Highways shall vest in the Union, and for the purposes of this Act "highways" include--
(i) all lands appurtenant thereto, whether demarcated or not;
(ii) all bridges, culverts, tunnels, causeways, carriageways and other structures constructed on or across such highways; and
(iii) all fences, trees, posts and boundary, furlong and milestones of such highways or any land appurtenant to such highways.
(5) Responsibility for development and maintenance of National Highways.--It shall be the responsibility of the Central Government to develop and maintain in proper repair all National Highways; but the Central Government may, by notification in the Official Gazette, direct that any function in relating to the development or maintenance of any National Highway shall, subject to such conditions, if any, as may be specified in the notification, also be exercisable by the Government of the State within which the National Highway is situated or by any officer or authority subordinate to the Central Government or to the State Government.
(6) Power to issue directions.--The Central Government my give directions to the Government of any State as to carrying out in he State of any of the provisions of this Act or of any rule, notification or order made thereunder.
(7) Fees for services or benefits rendered on National Highways.--(1) The Central Government may, by notification in the Official Gazette, levy fees at such rates as may be laid down by rules made in this behalf for services or benefits rendered in relation to the use of ferries, permanent bridges the cost of construction of each which is more than rupees twenty-five lakhs and which are opened to traffic on or after the 1st day of April, 1976, temporary bridges and tunnels on National Highways and the use of sections of National Highways.
(2) Such fees when to levied shall be collected in accordance with the rules made under this Act.
(3) Any fee leviable immediately before the commencement of this Act for services or benefits rendered in relation to the use of ferries, temporary bridges and tunnels on any highway specified in the Schedule shall continue to be leviable under this Act unless and until it is altered in exercise of the powers conferred by Sub-section (1);
Provided that if the Central Government is of opinion that it is necessary in the public interest so to do, it may, by like notification, specify any bridge in relation to the use of which fees shall not be leviable under this sub-section."
9. Learned Senior Counsel for the petitioner argued that aforesaid Sections read with the Control of National Highways (Land and Traffic) Act (Act No. 13 of 2002) give entire control over the National Highways to the Central Government and authority authorized by it. He further argued that National Highways are meant for free flow of traffic without any interruption from anyone except the Central Government or the National Highway Authorities. In my opinion, aforesaid Sections of the National Highways Act, 1956 do not begin with the expression "Notwithstanding anything contained in . any other law" or "Notwithstanding anything contained in the Cantonments Act, 1924". As such, unless such expression is used in the later Act made by the Parliament, it can only be read subject to the earlier enactment adopted by the Parliament. In other words, the provisions of the National Highways Act, 1956, as quoted above, need to be read subject to the provisions of the Cantonments Act, 1924. That being so, it cannot be said that the powers conferred on Cantonment Board is affected in respect of part of National Highway if the same passes through the Cantonment area.
10. On behalf of the petitioner it is contended that since the maintenance of the National Highways is done by the National Highway Authority under the aforesaid Act of 1956, as such, the Cantonment Board cannot impose any tax for which it is not spending a single penny. On the other hand, in para-9 of the counter-affidavit, the Chief Executive Officer of the Cantonment Board states that under Sections 116 and 117 of the Cantonments Act, 1924, the Cantonment Board has to provide wholesome drinking water supply, sanitation, health services, construction of lanes and drains, public urinals, plantation, street lights etc., as such, to generate revenue for the same, the Board is well within its powers to impose the toll tax.
11. Similar question arose in Avinash and Ors. v. State of Maharashtra and Ors., in Writ Petition No. 4378 of 2003, decided on 19.12.2003 [Maharashtra Law Journal (2004), pg. 511] in which Bombay High Court has held :--
"Therefore, even assuming that the land on which the road passes or the road itself belongs to the State or Central Government whether it be a State Highway or National Highway or otherwise, yet it passes through the local area of a Cantonment. In other words, therefore, the local body i.e. the Cantonment Board in respect of the Cantonment area can charge a tax ..................and is not barred from imposing such a tax merely, because the property belongs to the State or Central Government, unless there be an express prohibition on the Cantonment Board in imposing the tax. The taxable event is not passing on a road belonging to the Central or State Government. The taxable event is when a vehicle enters a Cantonment area, may be through the State or National Highway."
12. Lastly, my attention was drawn, on behalf of the petitioner, to Annexure-8 to the writ petition, which is copy of letter No. 12037/149/2004/U.R./N.H.-2, dated 2.2.2005, addressed to the Secretary, Public Works Department, Government of Uttaranchal written on behalf of the Director General (Road Development)/Special Secretary, Government of India, whereby it is stated that vide letter dated 19.1.2005 it has been informed that no approval has been given to the Cantonment Board, Dehradun to realize toll tax over NH-72. However, Annexure No. CA-2 to the counter-affidavit, which is copy of letter No. NH/12037/149/2004-UR/NH-II, dated 6th April, 2005 shows that the earlier letter dated 2.2.2005 has been cancelled as by said letter it has been informed that letter dated 2.2.2005 be treated cancelled. This letter dated 6.4.2005 is also issued by the Executive Engineer on behalf of the Director General (Road Development)/ Special Secretary, Government of India and is addressed to the Secretary, Public Works Department, Government of Uttaranchal. In view of said Annexure CA-2 of the counter-affidavit read with the copies of the SRO published in the Gazette of the Government of India (copy Annexure-1 to the writ petition) it is abundantly clear that objections raised by the Engineers to the National Highway Authority as contained in Annexure Nos. 6 and 7 to the writ petition, do not carry any force.
13. In view of the aforesaid discussion, this Court does not find any merit in the writ petition, which is liable to be dismissed. Accordingly, the writ petition is dismissed. No order as to costs.