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2015 DIGILAW 497 (JK)

Avinash Kumar v. State & Ors.

2015-09-16

DHIRAJ SINGH THAKUR, JANAK RAJ KOTWAL

body2015
JUDGMENT Per: D.S. Thakur, J. 1. The present Letters Patent Appeal has been preferred against the judgment and order dated 29.4.2015 passed in OWP No. 514/2015. 2. With a view to understand the controversy in its correct perspective, it is necessary to give in brief the following facts. 3. The Municipal Committee, Rajouri issued an NIT for allotment of an annual contract of 'Lorry Adda Entry Fee' for the year 2015-16. Being the successful tenderer, contract was allotted to the petitioner. Vide letter dated 31.3.2015, the Executive Officer, Municipal Committee, Rajouri granted permission for installation of tax post for collection of lorry entry fee on the following points: 1. Near- Darhali Bridge on Rajouri to Thannamandi road. 2. Near- Salani Bridge. 3. Near- Khandli Bridge on Rajouri to Budhal Road. 4. Near- Nagesh Bridge on Poonch road. 4. The petitioner, however, was aggrieved of the order dated 8.4.2015 issued by the Administrator (ADDC) Municipal Committee, Rajouri wherein the petitioner was prohibited from charging any entry fee from vehicles plying on the national highway/vehicles plying from directly Jammu to Poonch and vice-versa. 5. Aggrieved of this order, the petitioner challenged the same before the writ Court, citing precedents for the earlier years whereby the Executive Officer, Municipal Committee, Rajouri had, for the years 2012-13, allowed the contractors to charge Lorry Entry Fee from vehicles plying on the highway, which entered in the limits of Municipal Committee, Rajouri and for that purpose, had allowed them permission to install posts on the national highway near Salani Bridge and TCP Tandwal on the Jammu-Poonch Road. 6. It appears that when the matter came up before the writ Court, learned counsel for the petitioner made a statement that he would be satisfied if the petition was disposed of by directing the respondents to allow the petitioner to collect the lorry entry fee as per letter dated 31,3.2015, which specified four points for installation of tax posts for collection of lorry entry fee. The writ court accepting that argument, disposed of the petition, by providing that the petitioner would be entitled to install tax post for collection of lorry entry fee in terms of the letter dated 31.3.2015 and to collect entry fee as per details provided in letter dated 8.3.2015 on all vehicles other than the vehicles plying on national highway/vehicles plying directly from Jammu to Poonch. 7. 7. The present letters patent appeal has been preferred against this consent order. 8. From the record, it appears that by virtue of an interim order dated 19.5.2015, permission was granted by the court to the appellant herein to collect lorry entry fee from vehicles excluded by the impugned order dated 8.4.2015 subject to furnishing of an undertaking that he would maintain a separate register, indicating the fee so collected from vehicles plying on the national highway and vehicles plying directly from Jammu to Poonch and vice-versa. It was also directed that the fee, so collected, would be deposited with the Municipal Committee, Rajouri. 9. Notwithstanding the fact that the judgment and order impugned dated 29.4.2015 was disposed of without admission, ex-parte, on the consent given by the counsel for the petitioner himself and on terms based thereupon, counsel for the appellant has yet again questioned the order dated 8.4.2015 on the ground that no such condition could have been imposed, prohibiting the collection of the entry fee as the national highway was passing within the jurisdiction of the Municipal Committee, Rajouri and that the counsel, who made the statement before the writ Court, could not have been expected to be authorized to give such a consent, which would have entailed dismissal of the writ petition. It was further urged that the impugned stipulation contained in order dated 8,4.2015 constituted a fundamental breach of the contract between the parties and was therefore, nonest in law. 10. Heard learned counsel for the parties. 11. It is no longer res integra that no appeal lies against a consent order. Learned counsel appearing for the petitioner before the writ court had specifically given up his right to challenge the order impugned dated 8.4.2015 and it was in those circumstances that the writ petition had been disposed of with a direction to the respondents to allow the collection of lorry entry fee in accordance with the collection points fixed in terms of letter dated 31.3.2015. In case, the counsel had been acting without instructions, it would have been appropriate to file a revision petition before the same Court and sought a judgment on merits. 12. Even if we were to test the right of the appellant on merits, we feel that it is without any legal basis whatsoever. In case, the counsel had been acting without instructions, it would have been appropriate to file a revision petition before the same Court and sought a judgment on merits. 12. Even if we were to test the right of the appellant on merits, we feel that it is without any legal basis whatsoever. Right of a municipality to impose a tax, duty, toll or fee can be traced to Chapter VI of the Jammu and Kashmir Municipal Act, 2000 (for short, Municipal Act, 2000). Whereas, Section 65 deals with taxes, which municipality 'shall impose'. Section 66 deals with taxes, which municipality 'may impose'. Section 2(31) of the Municipal Act, 2000 defines "Tax" to include any toll, rate, cess, fee, or other impost leviable under the Act. 13. What the Municipality may impose as tax in terms of Section 66(ii) of the Municipal Act, 2000 is as under- "a tax on vehicles other than motor vehicles, plying for hire or kept within the municipal area." 14. Toll can be charged as envisaged by Section 66(vi) of the Municipal Act, 2000 as under- "a toll on vehicles other than motor vehicles, and conveyances entering the municipal area." 15. Section 66(xix) of the Municipal Act, 2000 prescribes as under-"with the previous sanction of the State Government, any other tax, toll or fee which the State Legislature has power to impose in the State under the Constitution of Jammu and Kashmir." 16. Counsel for the appellant urged that even when the Municipal Committee, Rajouri could not either collect or authorize the collection of tax, toll or fee in terms of Section 66(ii) or 66(vi) of the Municipal Act, 2000, which specifically prohibited and kept out of purview the motor vehicles, yet it was urged that the fee could be collected in terms of Clause (xix) of Section 66 of the Municipal Act, 2000 and must be presumed to have been authorized by the State Government. 17. This argument, however, does not impress us at all. It was never the case of the petitioner that the State Government had granted any such previous sanction to the Municipal Committee Rajouri for collection of such a toll, tax or fee. 17. This argument, however, does not impress us at all. It was never the case of the petitioner that the State Government had granted any such previous sanction to the Municipal Committee Rajouri for collection of such a toll, tax or fee. Even otherwise, Clause (xix) of the Municipal Act, 2000 talks about "any other tax, toll or fee", which necessarily excludes the tax, toll or fee, which is otherwise prohibited to be collected from motor vehicles in terms of Section 66(ii) and 66(vi) of the Municipal Act, 2000. 18. The reason for excluding motor vehicles from out of the purview of Section 66(ii) and (vi) of the Municipal Act, 2000 was because there is in force in the State of Jammu and Kashmir the Levy of Tolls Act, 1995 (1938 AD), which envisages collection of levy of tolls upon public roads and bridges in respect of men, animals, vehicles, machinery, commodities and goods. 19. Section 3 of the aforementioned Act gives the power to the Government to prescribe from time to time the rates of toll in the first schedule of the said Act, which can be levied upon any road, ferry or bridge in the State. 20. Section 4 of the aforementioned Act, envisages establishment of toll gates or stations by the Government. 21. Section 12 of the said Act prescribes for imprisonment for a term not exceeding six months with fine upto Rs. 2007- for any person (other than the person appointed to collect the toll), who inter alia either demands or levies any toll on any public road or bridge or for passing through any bazaar situated thereon. 22. Admittedly, the petitioner is not a person authorized by the Govt. to collect any toll from any vehicle plying on the Jammu, Rajouri, Poonch highway nor has the Govt. authorized the petitioner to establish any toll gates or stations at the points on any such highway. 23. The petitioner, thus, cannot legally lay any claim to establish any toll post or collection point on the highway simply on the basis of a contract agreement executed between him and the Municipal Committee, Rajouri. Any such permission granted in the past to the contractors by the Municipal Committee Rajouri can be said to be nothing but illegal. Such an illegality cannot be perpetuated in the face of the provisions of the Levy of Tolls Act. Any such permission granted in the past to the contractors by the Municipal Committee Rajouri can be said to be nothing but illegal. Such an illegality cannot be perpetuated in the face of the provisions of the Levy of Tolls Act. Even otherwise, we are of the opinion that the contract allotted to the petitioner was a Lorry Adda Contract and not a right to collect toll for user of the road within the municipality, which collection is specifically barred under Section 66 of the Municipal Act, 2000 itself. 24. For the reasons mentioned hereinabove, the appeal is found to be without merit and is accordingly dismissed along with connected application^). 25. Registry shall send a copy of this order to the Deputy Commissioner, Rajouri as also the Executive Officer, Municipal Committee, Rajouri. Appeal dismissed