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Civil Appeal No. 86 of 1974, decided on 15th March, 1986.

(On appeal from the judgment and order dated 15‑5‑1973 passed by the Lahore High Court, Lahore in L.P.A. 36 of 1973).

‑‑‑Art. 185(3)‑‑Cantonments Act (11 of 1924), S. 60 Municipal Administration Ordinance (X of 1960), S. 33, Third Schedule, items 6 & 12‑‑Leave to appeal granted to consider whether levy of toll tax by Cantonment Board on all motors, lorries and buses plying on portion of Grand Trunk Road within limits of Cantonment Board, was illegal, having regard to item No.12 as that only justified tax on vehicles other than motor vehicle and boats.

‑‑‑S. 60‑‑Municipal Administration Ordinance (X of 1960), S. 33 read with Third Schedule, items Nos. 6 & 12‑‑Toll tax‑‑Levy by Cantonment Board on use of Highway owned by Provincial Government‑‑Legality of‑‑Distinction between taxes mentioned under items 6 & 12 of Third Schedule to Ordinance (X of 1960), Toll tax was levied for using strip of road within limits of Cantonment Board or for some benefit or service rendered by levying authority in contradistinction to item 12 which deals with taxes on vehicles other than motor vehicles and boats‑‑Item 12 refers to taxes on property such as vehicles which item 6 refers to tax for use of property and is described in nature of tolls‑‑Plea that Highway was not owned by Cantonment Board and as such no toll could be charged by it for use of property which did not belong to it, repelled‑‑Toll in instant case was toll through which had no nexus with ownerships of highway.

Markets Co. v. Neath and Brecon Rly., Co., (1872) 7 C P 555 and Hindustan Vanaspati Manufacturing Co., Ld. v. Municipal Board, Ghaziabad and others A I R 1962 All. 25 ref.

‑‑‑S. 33‑‑Third Schedule Items 6 & 12‑‑Word "toll"‑‑Definition‑‑A tax due or paid for some liberty or privilege, particularly for privilege of passing over highway as a road or bridge, or payment of a sum of money in respect of some benefit derived by payer from use of some property, service or facility provided by another.‑‑[Words and phrases].

Burmah Oil Co. Ltd. v. Trustees for the Port of Chittagong and others P L D 1961 S C 452 ref.

‑‑‑ Word 'trip' explained.

Kelly v. New York City R. Co. 104 New Yourk Supplement 561, 565 ref.

Hassan Ahmad Kanwar Advocate Supreme Court and Inayat Hussain, Advocate‑on‑Record (absent) for Petitioner.

Bashir Ahmed Ansari, Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate‑on‑Record for Respondent No.l.

Respondents Nos. 2 and 3: Ex parte.

Date of hearing: 15th March, 1986.

‑The petitioner in the High Court challenged Notification No. 715/71, dated 2nd of April. 1971, issued under section 60 of the Cantonments Act, 1924, by which a toll tax was levied by the Cantonment Board, Okara, on all the motors, lorries and buses at the rate of Re.l per lorry or bus per trip plying on the portion of the Grand Trunk Road between Okara and Sahiwal within the limits of the Cantonment Board.

By section 60 of the Act, a power is given to the Cantonment Board to levy any tax with the approval of the Central Government which, under any enactment for the time being in force, could be imposed in any municipality in the province within whose limits a Cantonment is situate.

Under section 33 of the Municipal Administration Ordinance, 1960, a municipal committee could impose taxes, rates and tolls and fees mentioned in the third schedule with the previous sanction of the Government. Item No. 6 of the third schedule refers to "taxes of the nature of tolls", while Item No.12 deals with "tax on vehicles, other than motor vehicles and boats".

In the High Court, it was urged; firstly, that per trip means 'journey both ways' and in that context only the levy could be made only once when the vehicle entered the area either for proceeding to Okara from Sahiwal or to Sahiwal from Okara; and, secondly, that as the Highway was not owned by the Cantonment Board Okara, but by the Highway Department of the Provincial Government no toll could be charged for the use of the property which did not belong to it.

The High Court rejected the first contention on the ground that the words "per trip" meant first entry into the Cantonment area from either side relying on the interpretation of the word 'trip' in Kelly v. New York City R. Co. 104 New York Supplement 561, 565, which is quoted in Corpus Juris Secundum, Volume 39, at page 89 to elucidate the meaning of the word 'trip' in its relation to transportation. The second contention was also rejected as it was held that under the law Cantonment Boards are empowered to charge toll for entry into the areas which are within their boundaries and limits and it was not necessary that that area must otherwise be the property of the Cantonment Board. And as the toll is levied for services, which was not disputed on the factual plane, the levy of tax was totally justified. An appeal against this judgment failed as the Letters Patent Bench dismissed it on 15‑5‑1973.

Leave to appeal was granted to consider whether such a levy of tax was illegal having regard to Item No. 12 as that only justified tax on vehicles other than motor vehicles and boats, but this item was not pressed into service before the High Court which relied on Item No.6 of the third schedule as empowering the Cantonment Board to levy tax in the context of the language of the notification, which implicitly refers to the imposition of toll tax.

Now the word "toll" in legal parlance means "a tax due or paid) for some liberty or privilege, particularly for the privilege of passing over the highway as a road or bridge". (See Webster's New International Dictionary). Similarly in Black's Law Dictionary, Fifth Edition, at page 1334, a toll is defined to mean "a sum of money for the use of something generally applied to the consideration which is paid for the use of a road, bridge, or the like, of a public nature". In Burrnah Oil Co. Ltd. v. Trustees for the Port of Chittagong art' others P L D 1961 S C 452, this term was considered and its meaning given in the following words:

"In its generic sense a 'toll' may be described as a payment of a sum of money in respect of some benefit derived by the payer from the use of some property, service or facility provided by another."

Looking at the definitions of the word "toll", it was levied for using the strip of the road within the limits of the Cantonment Board area for some benefit or service rendered by the levying authority, in contradistinction to Item No 12 which deals with taxes on vehicles other than motors vehicles and boats. Those excepted from this item are already taxed under a Provincial Act such as the Motor Vehicles Ordinance, 1965, and this is the reason why they have been excepted. It were those vehicles which were within the municipal limits and which were not excepted, were liable to be taxed under Item No.12, Eminently Item No. 12 refers to tax on property such as the vehicles while Item No. 6 refers to tax for the use of the property, and is descirbed in the nature of tolls. This is the point of distinction between the two items.

Again as to the objection that it could not be levied by the Cantonment Board as it was not the owner of the Highway, this matter was considered in Markets Co. v. Neath and Brecon Rly. , Co.. (1872) 7 C.P. 555, and it was observed:

"Tolls for passing upon land are granted by the Crown in respect of a consideration to be enjoyed by the persons who are to pay them, and they cannot be effectually granted without such a consideration, or so as to extend or be taken beyond the place in which such consideration arises. They consist of two sorts, toll through, and tolls traverse. Toll through may be taken upon land not belonging to the grantee and consequently no consideration can be implied for such grant. It is ordinarily taken upon a highway, and is granted to someone who undertakes some public work for the benefit of those who use the highway, xxx.

xxxxx. A toll traverse is said to differ from a toll through in this, that no consideration for it need be averted. This does not, however, mean that there need be no consideration for it, it merely expresses that, as there can be no toll traverse except of going over the land of the granteee, the consideration of using the land is implied from the character of the toll, and need not be further averred than by stating that it is a toll traverse. The consideration is the giving us the land of the grantee."

In Hindustan Vanaspati Manufacturing Co., Ltd. v. Municipal Board, Ghaziabad and others A I R 1962 All. 25, this distinction was lifted from this case and it was held that ownership is not of essence in toll thorough. Obviously, therefore, the toll in the instant case toll thorough which had no nexus with the ownership of the Highway.

As for the definition of the single trip, the High Court has correctly held it to be on way at the point of entry within the limits of F the Cantonment Board.

Accordingly, the appeal fails, and is hereby dismissed but with no order as to costs.

M. I. Appeal dismissed.

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