ORDER
Judgement Pronounced by E. Padmanabhan, J.
1. The present Writ Appeal has been preferred being aggrieved by the order of dismissal dated 29.12.1997 passed in W.P. No.12846 of 1997 on the file of this court.
2. This court ordered notice of motion on 23.2.1998. The respondents have been served and they have entered appearance through their respective counsel.
3. Heard Mr.R. Krishnamurthi, Senior Counsel appearing for the appellant and Mr.Patty B. Jaganathan for the first respondent and Mr.K.P.H. Thulasiraman, Special Government Pleader for the second respondent. The parties will be referred to as arrayed in the Writ Petition, for convenience.
4. The Writ Petitioner filed W.P. No. 12846 of 1997 praying for the issue of a writ of certiorarified mandamus calling for the records of the first respondent, Executive Officer, Vailankanni Town Panchayat culminating in his office R.C. No.356/97/A2 dated 10.8.1997, quash the same and forbear the first respondent from conducting the auction proposed to be held on 26.8.1997 or any other future date to which it may be adjourned and from collecting any amount from the vehicles entering into Vailankanni in the form of toll-gate kist or entry fees.
5. The petitioner being the Procurator of Shrine Basilica of Our Lady of Health, Vailankanni raised objections with respect to the first respondent's auction notification dated 10.8.1997, where the first respondent Panchayat notified an auction of the right to collect entry fees from the motor vehicles, which enter Vailankanni town for the period from 28.9.1997 to 27.9.1998.
6. This Court is not concerned with respect to the terms and conditions of auction notification or with respect to the auction procedure adopted by the first respondent. On the other hand, what is challenged being that the first respondent Panchayat has no authority to levy entry tax or fee on vehicles, which enter Vailankanni Town Panchayat limits, such a levy is illegal, without authority of law and ultra vires the powers of the first respondent Panchayat.
7. In the writ petition, the petitioner contended that the provisions of the Tamil Nadu District Municipalities Act do not confer power on the respondent Town Panchayat to levy tax in the form of toll-gate kist from the vehicles, which enter the first respondent Town Panchayat nor the Indian Tools Act 1852 empowers the respondents to levy toll nor there has been any notification by the second respondent State Government under the Tolls Act nor any fee or tax or kist could be collected from the vehicles which enter the limits of the first respondent Panchayat nor the levy of entry fee on the motor vehicles by the first respondent is authorised by law. Though very many other contentions were raised by the petitioner, it is not necessary to refer to the details set out in the affidavit filed in support of the writ petition.
8. The first respondent filed a counter, contending that in terms of section 156 of the Tamil Nadu District Municipalities Act and Section 270 B read with Section 270 D, the first respondent is entitled to levy and collect toll-gate kist from the motor vehicles, which enter its limits. The Writ Petition has been dismissed by the Honourable Single Judge on the view that the petitioner is liable to contribute recurring of non-recurring contributions as may be fixed under Section 156 of the Tamil Nadu District Municipalities Act, 1920.
9. We are unable to sustain the view taken by the Hon'ble Single Judge in dismissing the writ petition. Mr.Patty B. Jaganathan, learned counsel appearing for the first respondent relied upon the two statutory provisions and sought to sustain the levy of toll-gate kist on vehicles which enter the first respondent Panchayat.
10. It is not in dispute that the first respondent Town Panchayat is governed by the provisions of the Tamil Nadu District Municipalities Act, 1920. It is also not in dispute that there neither been a notification by the second respondent State Government under the Indian Tolls Act, 1851 nor there could be a notification under the said provision to enable the first respondent Panchayat to collect toll from the vehicles, which enter the first respondent Panchayat limits.
11. Part III Chapter VI of the Tamil Nadu District Municipalities Act, 1920 provides for Taxation and finance. Section 78 of the Act provides that every municipal council may levy the following taxes (i) Property tax, (ii) a profession tax, (iii) a tax on carriages and animals (iv) a tax on carts
The Municipal council, by a resolution shall determine to levy a tax specifying the rates.
12. Section 78-A enables the municipality to levy duty on certain transfers of property in accordance with the provisions. Section 79 of the Act provides for levy of tax with the previous sanction of the State Government and Central Government on persons travelling by railway from any station notified under Section 116 of the Act in or near the municipality, which is resorted to by pilgrims. Sections 78 and 79 of the Act are the provisions, which enable the municipality to levey taxes.
13. Excepting the taxes as enumerated under Sections 78 and 79 the levy of duty on certain transfers of property under Section 78-A, the first respondent Municipality has no authority to levey any tax, much less on the motor vehicles, which enter the municipal limits, no other provision of the Act has been shown by the counsel appearing for the respondents authorising levey of fee or toll collection from the motor vehicles of whatever nature, which enter the first respondent Panchayat limits.
14. Section 156, which is relied upon by Mr. Patty B. Jaganathan, reads thus:-
156. Contributions from persons having control over places of 'pilgrimage', etc.,:- Where a mosque, temple, mutt or any place of religious worship or instruction or any place which is used for holding fairs, festivals or for other like purposes is situated within the limits of a municipality or in the neighbourhood thereof and attracts either throughout the year or on particular occasions a large number of persons, any special arrangements necessary for public health, safety or convenience whether permanent or temporary shall be made by the municipal council, and the council may require the trustee or other person having control over such place to make such 'recurring or non recurring contribution as the State Government may determine to the funds of the municipal council.'
15. Section 156 appears in Chapter VIII of the Act and this Section enables the municipality to recover such recurring or non recurring contributions as the State Government may determine to the funds of the municipal council, where a mosque, temple, mutt or any place of religious worship or instruction or any place, which is used for holding fairs, festivals within the limits of municipality and attracts either throughout the year or on particular occasions a large number or persons and any special arrangements necessary for public health, safety or convenience being made by the municipal council.
16. In other words, it is a contribution, which the mosque, temple, mutt or other persons having control over such places to contribute to the municipality towards the expenditure incurred by the municipality towards the special arrangements made by the municipality for public health, safety or convenience. Such contribution has to be determined by the State Government.
17. Section 156 has no application at all nor it could be relied upon by the first respondent to levy kist or toll or fees, from the motor vehicles which enter the limits of the first respondent. The reliance placed on Section 156 by the learned counsel for the first respondent cannot be sustained as Section 156 does not empower the first respondent to levy toll or collection of fees from the motor vehicles entering the limits of the first respondent.
18. Section 270-B provides that a municipal council may construct or provide and maintain public landing places, halting places and cart stands and may levy fees for the use of the same. Section 270 (1-A) enables the municipality to farm out the collection of fees from the persons using public landing places, halting places and cart stands.
19. The explanation to Section 270-B make it clear that a can-stand shall, for the purposes of this Act, include a stand for carriages including the motor vehicles within the meaning of Motor Vehicles Act and animals. Section 270-B enables the municipal council to levy fees for the use of landing places, or halting places and can stands.
20. Section 270-C provides that where a municipal council has provided a public landing place, halting place or cart-stand, the executive authority may prohibit the use for the same purpose by any person within such distance thereof, as may be determined by the municipal council, of any public place or the sides of any public street.
21. Section 270-D provides for recovery of cart-stand fees, when the fee is not paid on demand by the person appointed to collect fee, the vehicle could be seized and detained for recovery of fees as provided in that section. Section 270-E provides for private cart-stand.
22. Thus a reading of Section 270-B, 270-C and 270-D of the Act shows that collection of fee is authorised, only if the vehicles use.the halting place or public landing place or cart-stand constructed or provided and maintained of fee for the use of cart-stand or halting place. The municipalityhas to provide and maintain the said halting place and notify the same. For the use of halting place, the municipality could collect fees either directly or farm out the same.
23. It is not the case of the first respondent that the entire area of the first respondent municipality is a halting place for vehicles nor such a notification had been issued nor such a notification declaring the entire municipal area as halting place or cart-stand could have been made at all.
24. Prohibiting use of public street or main thoroughfares for parting the vehicles is different from providing a halting place and maintaining the same by the concerned municipal council and only for use of such halting places the fee could be collected. As such section 270-B is of no assistance for it authorises the first respondent to collect or levy toll kist from all the vehicles, which enter the limits of the first respondent.
25. A cart-stand provided and maintained by the municipality is available for use of the members of the public who own or are in charge of vehicles for keeping their vehicles for a time. In Anamallais Bus Transport Pvt., Ltd., v. Commissioner, Dharapuram, Municipality Dharapuram, this court had occasion to consider the scope of section 270-B of the District Municipalities Act, 1920, Rajagopalan, J. held thus:-
Section 270-B applies to a public cart-stand, a cart-stand owned and maintained by a Municipality. It should be clear that such a cart stand is for the use of the members of the public that own or are in charge of vehicles which they desire to park there for a time. Whether the person in charge of the vehicle voluntarily uses the cart-stand, or whether he is compelled by any enforceable rule or regulation to use that stand may not make any difference - see United Motors (Coimbatore) Ltd., v. Palghat Municipal Council, : (1942)2MLJ472 .
A place owned by a Municipality where it keep its own vehicles and which is not available for use by any member of the public for letting his vehicle stand there, cannot be a cart stand within the scope of Section 270-B. Section 270-B (1) no doubt authorises the Municipality to levy fees for the use of the cart-stand. That is only permissive. If no fees are prescribed by the Municipality, there will be none to pay. Nonetheless, the place can be a public cart stand maintained by the Municipality under Section 270-B. So the payment or non-payment of fees for the use of the place, though a relevant factor, may not be determining factor in deciding whether the place is a cart stand.
In the case of a public cart-stand, at any rate, it seems clear that it is the availability of the place for use by members of the public, who own or are incharge or vehicles, for keeping their vehicles for a time the duration of stay is immaterial to let their vehicles stand there, that makes the place a cart stand. Exclusive use of the place by its owner, the Municipality for keeping its own vehicles there should suffice to establish that place is not a cart-stand within the meaning of Section 270-B.
26. There could be no levy of toll or tax on vehicles entering the limits of the first respondent as it is not a fee collected towards halting charges of vehicles in a public halting place or cart stand. Hence the reliance placed on Section 270-B is of little assistance to the first respondent.
27. No toll also could be levied or collected by the first respondent as there has been no authorisation by the State legislature to levy toll on the vehicles which enter the limits of the first respondent.
28. Schedule VII List II Entry 59 enables the State Legislature to make laws to levy a toll which means a payment realised for some benefit, e.g., for the use of a market, or a bridge, or the temporary use of land which the person or authority claiming the toll provides to the person liable to pay the toll. It is admitted that there has been no legislation by the State Government in this respect nor any notification has been issued under the Indian Tolls Act by the State Government authorising the first respondent to levy and collect toll.
29. Article 243X enables the state legislature by law to authorise a municipality to levy, collect and appropriate such taxes, duties, tolls and fees in accordance with such procedure.
30. Admittedly no such legislation has been undertaken by the State Legislature until now authorising the municipality to levy or collect taxes or duties and toll. In the absence of any legislative enactment, this Court holds that the first respondent has neither the authority nor the power to levy or collect any tax or duty or toll or fees on the vehicles, which enter the first respondent's limits.
31. Article 265 of the constitution provides that no tax shall be levied or collected except by authority of law. Article 265 of the constitution provides that not only levy but also the collection of a tax must be under the authority of valid enactment, which falls within the legislative competency of the legislature imposing the taxes.
32. In the light of the above discussions, this court finds no substance in the contentions raised on behalf of the respondents and this court further holds that the levy and collection of toll, kist or fee, whatever name by which it is called by the first respondent on all motor vehicles, which enter its limits is illegal and without authority of law. This court is unable to sustain the contention of the first respondent as no tax could be levied or collected by the first respondent except by authority of law.
33. So also toll could be levied or collected or appropriated by the first respondent, in the absence of any legislative enactment by the State legislature under Article 243X of the Constitution. The contentions raised by the learned Senior Counsel appearing for the appellant in this Writ Appeal have to be sustained and the order of the learned single Judge has to be set aside and consequently the Writ Appeal is allowed. The Writ Petition is allowed as prayed for.
34. In the circumstances, the order of dismissal of W.P. No. 12846 of 1997 by the Hon'ble Single Judge is set aside and the Writ Appeal is allowed as prayed for with cost Rs.3,000 to the writ petitioner to be paid by the first respondent. The CMP. No.2441 of 1998 is closed.