Research › Search › Judgment

Uttarakhand High Court · body

2004 DIGILAW 212 (UTT)

Arun Kumar Jaiswal v. Cantonment Board, Dehradun

2004-09-01

P.C.VERMA, RAJESH TANDON

body2004
Judgment P.C. Verma, J. 1. Both the above writ petitions have been filed by the petitioners seeking a writ of mandamus/prohibition commanding/ prohibiting the respondents not to impose and collect the octroi-toll within the cantonment area of Dehradun and Chakrata (Dehradun) by their own staff or through contractor. 2. The petitioners are residents of Dehradun. According to them, respondent no. 1 is illegally collecting Octroi/toll from the vehicles coming within the cantonment area of Dehradun by exercising powers under section 60 of the Cantonment Act, 1924 read with provisions of Indian Tolls (Army and Air Force) Act, 1901, according to which, the Cantonment Board may impose tax/octroi/toll if two conditions are fulfilled, namely, (i) there must be previous sanction of Central Government and (ii) tax to be imposed must be such which under any enactment for the time being in force may be imposed in any Municipality in the State within Cantonment is situated. 3. Cantonment Board, Dehradun is situated in District Dehradun within the State of Uttaranchal. State of Uttaranchal was created on 9-11-2000, under the provisions of the U.P. Reorganisation Act, 2000. Prior to that date, Dehradun was part of State of Uttar Pradesh. It is pleaded by the petitioner that prior to 1991 (wrongly described in the petition as 1994), all the Municipalities/ Municipal Corporations/Municipal Boards, within the State of U.P. used to collect octroi/toll tax by exercising the powers under section 128 of the U.P. Municipalities Act, 1916. However, the State of U.P. vide U.P. Urban Self Government Laws (Amendment) Act, 1991 (wrongly described in the petition as 1994), abolished octroi/toll, etc. Thereafter, no octroi is being imposed and recovered by any of the Municipality. As such, no Municipality, Municipal Board, Municipal Council within the State of Uttaranchal is recovering any octroi-toll. Nor till day, State of Uttaranchal has authorized any Municipality to levy and recover the octroi/toll. 4. The respondents filed counter affidavit and submitted that they are authorized to collect the tax. Cantonment Board is empowered under section 60 of the Cantonments Act, 1924 read with provisions of Indian Tolls (Army and Air Force) Act, 1901 to impose any tax in its area, which under any enactment 'for the time being in force' may be imposed in any municipality in the State, wherein such cantonment is situated. Cantonment Board is empowered under section 60 of the Cantonments Act, 1924 read with provisions of Indian Tolls (Army and Air Force) Act, 1901 to impose any tax in its area, which under any enactment 'for the time being in force' may be imposed in any municipality in the State, wherein such cantonment is situated. As per sub-section (2) of Section 60 of the Cantonment Act, any tax imposed under this section shall take effect from the date of its notification in the Official gazette or where later date is specified from such later date. The only pre condition is to get prior sanction of the Central Government for imposing such tax. The octri and levy were imposed in 1956 vide two different notifications. The notification dated 1-11-1956 no. 369 imposing toll tax has been annexed for example. The Cantonment Board has already obtained the sanction of the Central Government. The respondents also averred that Cantonment Board, Dehradun provides civic amenities in the form of roads, drains, sanitation, water supply, etc., and toll tax is one of the important segments of the budget of Cantonment Board. If the same is taken away or stayed, not only the General function of the Board will be affected, but also the poorest section of the society will be hard hitted because the Cantonment funds one Intermediate College, two Junior High Schools, three Primary Schools, Hospital and Dispersing almost free for them. Therefore, it is submitted that the petition is liable to be dismissed. 5. Section 60 of the cantonmett Act, 1924 deals with general power of taxation. Section 60 (1) of the Act provides that the Board may, with the previous sanction of the Central Government, impose in any cantonment any tax which under any enactment 'for the time being in force', may be imposed in any municipality in the State wherein such cantonment is situated. As per sub section (2) of Section 60 of the Act, any tax imppsed under this section shall take effect from the date of its notification in the official gazette. Or where any later date is specified on this behalf in the notification from such later date. As per sub section (2) of Section 60 of the Act, any tax imppsed under this section shall take effect from the date of its notification in the official gazette. Or where any later date is specified on this behalf in the notification from such later date. Under section 63 of the Cantonment Act, the Central Government may authorize the Board to impose the tax either in the original former, if any objection has been submitted, in that form or any such modified form as it thinks fit. 6. Section 60 of the Cantonment Act is being reproduced as under: "60. General Power of taxation.- (1) The Board may, with the previous sanction of the Central Government, impose in any cantonment any tax which, under any enactment for the time being in force, may be imposed in any municipality in the State wherein such cantonment is situated. (2) Any tax imposed under, this section shall take effect from the date of its notification in the Official Gazette or where any later date is specified in this behalf in the notification, from such later date." When the Cantonment Board, Dehradun imposed the toll tax and octroi in the year 1956, the Municipalities of the State of U.P. had power to impose toll/octroi under section 128 of the U.P. Municipalities Act, 1916. It existed at the time of imposition of toll and octroi in 1956 by Cantonment Board, Dehradun. 7. Section 128 of the U.P. Municipalities Act is being reproduced as under: "128. It existed at the time of imposition of toll and octroi in 1956 by Cantonment Board, Dehradun. 7. Section 128 of the U.P. Municipalities Act is being reproduced as under: "128. Taxes which may be imposed : (1) Subject to any general rules or special orders of the State Government, in this behalf, the taxes which a board may impose in a whole or any part of a Municipality are- (i) a tax on the annual value of buildings and lands or of both; (ii) a ta.; on trades and callings carried on within the municipal limits and deriving special advantages from, or imposing special burdens on municipal services; (iii) a tax on trades, callings and vocations including all employments remunerated by salary or fees; (iii) a theatre-tax which ,'I means a tax on amusements or entertainments; I (iv) a tax on vehicles and other conveyances plying for hire or kept within the municipality or on boats moored therein; (v) a tax on dogs kept within the municipality; (vi) a tax on animal used for riding, driving, draught or burden, when kept within the municipality; . (vii) a toll on vehicles and:1other conveyances, animals, and laden collies entering the Municipality; (viii) an octroi on goods or animals brought within the municipality for consumption, use or sale therein. (ix) a tax on inhabitants assessed according to their circumstances and property; (x) a water-tax on the annual value of buildings or lands or of both; (x-a) a drainage tax of the annual value of buildings leviable on such buildings as are situated within a distance, to be fixed by rule in this behalf for each municipality, from the nearest sewer line; (xi) a scavenging tax; (xii) a conservancy tax for the collection, removal and disposal of excrementitious and polluted matter from privies, urinals and cesspools; (xiii) a tax on goods imported into, or exported from any municipality on which an octroi was in force on the sixth day of July, 1917 or which the previous sanction of the Central Government, any other municipality; (xii i-A) (xiii-B) a tax on deeds of transfer of immovable property situated within the limits of the municipality; , (xiv) any other tax which the State Legislature has power to impose in the State under the Constitution. (2) Provided that taxes under clauses (iii) and (ix) of sub-section (1) shall not be levied at the same time nor shall an octroi on goods under clause (viii) of sub-section (1) and a tax under clause (xiii) of sub-section (1) be levied at the same time, nor shall the taxes under clause (x-a) and (xiii) of sub-section (1) be levied at the same time; Provided further that no tax under clause (xiii-B) of sub-section (1) shall be levied on deeds of transfer of immovable property situated within such area of the municipality as forms part of the local area of any improvement Trust created under section 3 of the U.P. Town Improvement Act, 1919; Provided also that no tax under clause (iv) of sub-section (1) shall be levied in respect of the motor vehicle. (3) Nothing in this section shall authorize the imposition of any tax which the State Legislature has no power to impose in the State under the Constitution: Provided that a board which immediately before the commencement of the Constitution was lawfully levying any such tax under this section as then in force, may continue to levy that tax until provision to the contrary is made by the Parliament." 8. Vide U.P. Urban Local Self-Government Laws (Amendment) Act, 1991, clauses (vii) and (viii) of sub section (1) section 128 of the U.P. Municipalities Act, 1916 have been omitted. The said amendment is being reproduced as under: "2. Amendment of Section 128 of U.P. Act NO.2 of 1916.- In section 128 of the United Provinces Municipalities Act, 1916, hereinafter in this chapter referred to as the principal Act, (a) in sub section (1), clauses (vii), (viii), (xiii) and (xiv) shall be omitted; (b) in sub-section (2), in the first provision, the words "nor shall an octroi on goods under clause (viii) of sub section (1) and a tax under clause (xiii) of sub section (1) be levied at the same time" shail be omitted." 9. It is submitted by the learned counsel for the petitioner, that since Board is not empowered to levy the tax any more. 10. It is submitted by the learned counsel for the petitioner, that since Board is not empowered to levy the tax any more. 10. In view of sub section (vii) and (viii) of Section 128, of the United Provinces Municipalities Act, 1916, since the toll and octroi could be imposed by the Municipalities of the State of U.P. , the Cantonment Board situated within those Municipalities were also competent to impose and collect the octroi/toll. The clause 'for the time being in force' used by the Legislature u/s 60 of the Cantonment Act, 1924 clearly spells out the intention of the Legislature that when the Cantonment Board decides to impose a tax, it can impose only those taxes, which could be imposed by the Municipal Board in the State under any enactment 'for the time being in force', wherein such cantonment is situated. Thus, at the time of imposition of tax under section. 60 of the Cantonment Act, the power of Municipal Board to impose a tax under any enactment is to be seen. The taxes, which are to be imposed under section 60, by the Cantonment Board, have been adopted from the law, 'for the time being in force', empowering the Municipality, wherein such Cantonment is located. 'For the time being in force' means 'at the time of imposition of tax'. Therefore, it is an adoption of taxes. Once tax is imposed at any point of time, when that may be imposed by the Municipality in the State by Notification in .accordance with the provisions of section 61, 62 and 63 of the Cantonment Act, the taxes so imposed, stand adopted. Subsequent amendment in the Local Act will not nullify the prior imposition of tax as 'at that point of time' the provisions existed empowering the municipality to impose such tax. 11. A bare reading of section 60 shows that the Cantonment Board can levy the aforesaid tax subject to the sanction of the Central Government. Sanction of the Central Government is the only pre-condition. Once the sanction is given by the Central Government, taxes can be levied. 12. Therefore, at the time of imposition of the tax, the cantonment board was empowered to impose the tax as per clause (vi), (vii) and (viii) of section 128 of the United Provinces Municipalities Act, 1916 as it existed within its power under law 'for the time being in force'. 12. Therefore, at the time of imposition of the tax, the cantonment board was empowered to impose the tax as per clause (vi), (vii) and (viii) of section 128 of the United Provinces Municipalities Act, 1916 as it existed within its power under law 'for the time being in force'. The impugned notifications are amendment to the previous notifications issued in the year 1956. 13. The power to add, amend, vary or rescind any notification, orders, rules or bye-laws issued by the Central Government lies with the Central Government only. Section 21 of the General Clauses Act, 1897 provides as under: "21. Power to issue, to include, power to add, to amend, vary or rescind, notifications, orders, rules or bye-laws- Where by any Central Act or Regulation, a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction, and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued." 14. In the present case, the Cantonment Board concerned in exercise of the powers conferred under section 60 of the Cantonment Act, 1924 (2 of 1924), and with the previous sanction of the Central Government, Imposed a toll Tax/octroi, which it was empowered to impose as per clause (vi), (vii) and (viii) of section 128 of the United Provinces Municipalities Act, 1916, as it existed within its power under law 'for the time being in force'. Therefore, the impugned notifications do not call for any interference. 15. For the reasons recorded above, the writ petitions are devoid of merit and are hereby dismissed. No order as to costs.