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2005 DIGILAW 346 (JK)

Gurbax Rai Aggarwal v. State

2005-12-03

Y.P.NARGOTRA

body2005
1. The dispute in this writ petition pertains to levy of toll upon the petitioners under the provisions of Levy of tolls Act Svt.1995. The meaning of expression ˜Toll™ came to be examined by their lordships of the Supreme Court in Hans Raj & Ors vs State of J&K and ors reported in 2002(6) SCC 227. Their lordships observed: - The expression ˜toll™ normally means a definite payment exacted by the State or the local authority by virtue of sovereignty or lordship, or in return for protection, more specially, for permission to pass somewhere, do some act, or perform some function. Another meaning attributed to the term is a charge for the landing or shipping of goods at a port, a charge made for transport of goods, especially by railway or canal.� 2. Dealing with tolls under the statute their lordships noticed the statement in Halsbury™s Laws of England,4th Edn. P96 para 138 and observed:- It is stated that highway and bridge tolls may be payable under statute. In the case of an independent statutory undertaking engaged in the maintenance of a bridge, the power to revise the amount of the tolls may be in the undertaker™s direction, or the tolls may only be subject to a requirement that they are to be reasonable in amount.� Their lordships further observed:- It is clear from the above that though tolls are of different types and may be levied in different situations, it ordinarily means the amount which the Government, or a local authority or a person duly authorized by the Government may collect for passage of carriages and vehicles over a road or bridge. This meaning is by no means exhaustive. Where provision for levy and collection of tolls is made under a legislative enactment or a subordinate legislation then the levy is to be governed strictly according to the provisions of the statute or rules or any other instrument, as the case may be.� 3. While examining the scope of the J&K Levy of Tolls Act 1995, their lordships noticed that the Act stood enacted with a view to consolidate in one Act the provisions of levy of tolls upon public roads and bridges in J&K State. Section 3 of the Act is charging section which as it stood on the date when controversy arose between the parties, read as follows:- 3. Section 3 of the Act is charging section which as it stood on the date when controversy arose between the parties, read as follows:- 3. Rate of tolls to be levied (1)- The Government may from time to time prescribe, annual or alter rates of tolls to be levied upon any road, ferry or bridge in the State and may place the collection of such tolls under such management as may appear to it proper, and all persons employed in the management and collection of such tolls shall be liable to the same responsibilities as would belong to them if employed in the collection of the Excise Revenue under the Jammu and Kashmir Excise Act,1958. 2- The rates prescribed to be levied at the commencement of this Act shall be the rates mentioned in the first schedule hereto annexed. The rates shall continue to be levied till they are annulled or altered in accordance with the provisions of this section. 3- The power to annul or alter the rates vested in the Government under the foregoing provisions of this section may be exercised from time to time after publication in the Government Gazette. The amendment and alteration shall have the same force and effect as if they had been contained in the first schedule; 4- The persons under whose management the tolls are levied at the commencement of this Act shall levy the tolls prescribed and shall be held to have been appointed for collection of tolls under the provisions of this Act.� 4. In the schedule to the Act are enumerated vehicles of different types and the rates at which the tolls are to be charged in respect of the same. The schedule bears the heading Through Traffic up and down crossing the Domel toll Stations per trip each way�. Their lordships in Hans Raj™s case (supra) after noticing Section.3 and schedule to the Act observed:- From the contents of the schedule it is clear that the statute contemplates levy of toll for crossing upon different roads and bridges in the State and the State is vested with the power to prescribe by notification the toll rate of the levy and the manner of collection of the same. The scheme of the statute does not envisage levy of toll on goods or on any transaction of sale thereof. The scheme of the statute does not envisage levy of toll on goods or on any transaction of sale thereof. It is clearly a levy upon user of public roads and bridges in the State. The scheme fits in with the concept of tolls, be it toll-traverse or toll-thorough, to be levied in lieu of the advantage or privilege provided by the State Government for user of roads and bridges lying within the State. For the purpose of the levy the agency which has constructed the roads or bridges in question or the source of finance for implementation of project are not relevant.� Thus toll could be levied upon the petitioner if he had used public roads and bridges in the State. 5. The dispute in this case has arisen from the facts that some rice was imported by Food Corporation of India through railway and stored in its godowns. Food Corporation of India is said to have facility on railway siding. Rice consignment received by F.C.I. was found to be of sub-standard and therefore, the same was rejected and was sold in open auction through tenders. The petitioner-firm of Punjab submitted its bid and succeeded in purchasing sub-standard rice sold by F.C.I. The petitioner carried said rice out of the State of J&K through railways. The Chief Goods Superintendent Northern Railways Jammu also issued the following certificate in its favour:- Certified that M/S Gurbax Rai Aggarwal & Co. exported the rice out of the State which was lying at Food Corporation of India, Railway Station through Railway wagons. The rice was loaded in the Railway wagons from FCI godown and exported out of State both import and export of rice was through Rly wagons and the State Road was not used for this purpose¦..� 6. On the export of rice being made by the petitioner Excise and Taxation Officer Toll Post Railway Station held the petitioner liable for toll amounting to Rs.6,92,640/- and vide his No.33335/RST dated 25.9.1991 the petitioner was called upon to make payment and told that failing which his consignment shall not be allowed to be carried out side the State. With regard to rice already exported a further demand of Rs.2,93,886.58 was made against the petitioner vide No.336/38/RSJ dated 27.9.1991. With regard to rice already exported a further demand of Rs.2,93,886.58 was made against the petitioner vide No.336/38/RSJ dated 27.9.1991. The petitioner challenged these notices of demand in OWP No.879/1991 on the plea that he had not used the roads or bridges for exporting rice out of the State therefore, was not liable to pay toll tax. Said writ petition was disposed of by order dated 23.2.1999 with the following observations/directions:- The stand taken by the counsel for the respondent is that godowns of the Food Corporation of India are located at such a place that if any person wants to have ingress and outgress has to use roads system provided by the state administration. In view of the above contradictory stand taken by the contesting authorities, matter is left to the determination of respondents. They would decide the disputed question of fact i.e. as to whether the petitioner and the Food Corporation of India used or not used the State Road system. This aspect of the matter would be decided by the authorities constituted under the Toll Tax Act. This is to be decided by some official high in the hierarchy. Let the matter therefore be decided by an officer to be designated by the Excise Commissioner. Matter would be decided by taking note of factual position. Excise Commission/would nominate the official within a period of two months.� 7. When the matter was not decided the petitioner filed contempt petition,COA 10/2001. The contempt petition was disposed of by order dated 17.9.2001. In the order following observations made are necessary to be noticed.:- This being a question of fact, the matter was left to the decision of the respondents. The respondents have taken a decision that as the petitioner in the course of export used the soil of the State for dumping the rice, therefore, toll tax was rightly leveled. In para 3 of the reply it is submitted that even though the road was not used but petitioner used the State oil. Reliance was placed on the view expressed by two Full Bench decisions of this court in case Girdharilal vs State of J&K AIR 1969 J&K 113 and decision given in OWP No.660/82 title M/S Mehta Food vs State of J&K and ors decided on 23rd of August 1999. Reliance was placed on the view expressed by two Full Bench decisions of this court in case Girdharilal vs State of J&K AIR 1969 J&K 113 and decision given in OWP No.660/82 title M/S Mehta Food vs State of J&K and ors decided on 23rd of August 1999. It is accordingly stated that as the Full Bench has observed that even if the toll in question is treated as fee even then there has to be no corresponding rendering of service this is because the toll in question is in the nature of toll traverse and not toll thorough.� In the order it was further observed:- In view of the above it cannot be said that the respondents are guilty of having dis-obeyed the order passed by the court. They have taken a decision. This decision has been taken bonafide. Therefore, no ground has been made out for continuing with the contempt proceedings. The petitioners are however left free to challenge the decision taken by the respondents.� It may be pointed out here that in terms of the interim direction passed in OWP 879/1991 the petitioner deposited an amount of Rs.6,92,640/- with the respondents. 8. Since the petitioner was not satisfied with the decision of the respondents that toll was leviable upon him he has filed the instant writ petition for seeking quashment of the demand notices dated 25.9.1991 and 27.9.1991 and the order dated 4.1.2001 passed by the respondents holding the petitioner responsible for payment toll tax irrespective of the fact whether he had used the roads of the State or not. The petitioner also seeks a direction to the respondents to refund the said amount deposited by him alongwith interest @ 18% P.A. The case of the petitioner is that he has not used the road system of the State therefore; he is not liable to pay toll tax under the provisions of Levy of Toll Tax Act. 9. The petitioner also seeks a direction to the respondents to refund the said amount deposited by him alongwith interest @ 18% P.A. The case of the petitioner is that he has not used the road system of the State therefore; he is not liable to pay toll tax under the provisions of Levy of Toll Tax Act. 9. The stand of the respondents in the counter affidavit in short is that in view of the judgment rendered in OWP 660/1982 (supra) even if the road system of the State has not been used by the petitioner while exporting rice out of the State of J&K yet the roads system i.e. railway track in the present case, though maintained by the Railway Department of Central Government, and the soil was used by the petitioner-firm which belonged to the J&K State and the State Government is, therefore, empowered to levy toll on the rice exported through railways. 10. Learned Advocate General, though accepts that the judgment rendered in Mehta™s case has come to be reversed in Hans Raj™s case (supra) yet according to him in view of the meaning to the expression toll� given in Hans Raj™s case in para 12,user of soil under railway track is covered under the Act and therefore toll can be levied upon export of rice. 11. I cannot agree with the contention of learned Advocate General. In the first place as the Act stood as in 1991,toll tax could not be levied on the goods exported in view of the judgment rendered in Hans Raj™s case. In that case the Supreme Court held SRO 348 dated 20.8.1982, whereby additional toll tax was directed to be levied on dry fruit etc. exported out of the State, to be bad in law and beyond the powers vested in the State Government U/S 3 of the Act. In view of the law laid down in Hans Raj™s case toll tax could not be levied on the rice exported by the petitioner. It can also not be levied on account of the petitioner having used railway for carrying the goods out of the State as was held in Hans Raj™s case itself by the Supreme Court that the scheme of the statute only provided for levy upon user of public roads and bridges in the State. It can also not be levied on account of the petitioner having used railway for carrying the goods out of the State as was held in Hans Raj™s case itself by the Supreme Court that the scheme of the statute only provided for levy upon user of public roads and bridges in the State. Railway track by no stretch of imagination can be treated to be a public road within the meaning of the Act. Reliance placed by Mr.Naik on para 12 of Hans Raj™s judgment is in my opinion also misplaced as in that para the meaning of expression toll� has been explained generally and not in the context of the provisions of Levy of Toll tax Act. 12. For the aforesaid reasons, the writ petition of the petitioner is allowed and it is held that toll tax could not be levied upon the petitioner on account of his exporting rice out of the State of J&K through railways. The respondents are directed to refund the amount of Rs.6,92640/- deposited by the petitioner within a period of two months. In the circumstances of the case however, the petitioner is not found entitled to any interest.