Greater Guwahati United Motor Transport Association vs The Gauhati Municipal Corporation State of Assam

M. Sharma, J.—This petition has been filed invoking the writ jurisdiction of this Court for arbitrary, unauthorised and illegal realisation of entry tax from the vehicles belonging to the members of the Petitioner Association which are plied within the limits of the city of Guwahati.

A scheme for Mini City bus for unemployed youths were introduced by the State Government in the year 1988, Many educated unemployed youths purchased vehicles for plying as Mini City bus to make their livelihood. The Mini City bus owners of greater Guwahati formed an Association in the name and style of Greater Guwahati United Motor Transport Association, (GGUMTA) with its office at GS Road Guwahati - 7. All the members of the Association are permit holders. The Petitioners were duly authorised by the Association to take necessary steps before appropriate authorities including the court of law for redressal of their grievances. The Respondent No. 1 Guwahati Municipal Corporation is a body corporate u/s 5(2) of Guwahati Municipal Corporation Act. According to the provision of the Act the, Commissioner is the Chief Executive and the corporation can be sued through him. The corporation is a local body entrusted with the duly of municipal administration of the pity of Guwahati and is a statutory body filed Under the Guwahati Municipal Corporation Act, 1969. Amongst, various right and duties entrusted to the Respondent No. 1 corporation u/s 6 of the Act has also the right to levy and collect toll on vehicles and animals entering the city as provided u/s 144(2)(c) of the Act and to facilitate such levy and collection of toll on the vehicles and animals entering the city of Guwahati, have framed a set of Bye Laws. "The Guwahati Municipal Corporation (Toll on vehicles and animals) Bye laws 1976." Under Bye law 4 of the Bye laws the Respondent corporation is empowered to collect toll on every animal and/or vehicles entering the city from outside at a rate as determined by the corporation. Under Bye law 9 (i) of the Bye laws, the Commissioner is competent to determine the number and location of check posts at different convenient and suitable parts of the city for levying and collecting such tolls. The members of the Petitioner Association plied their vehicles in various Mini City bus routes within the city of Guwahati, Amongest the various routes in which the Petitioner Association operates their vehicles, certain routes originate at different places like Adabari and other places, and alter passing through the Zoo Narengi route and Noonmati respectively terminates at Satgaon, viz, the Narengi Tinali. The termination point of the Mini City buses at Satgaouis within the jurisdiction of the Guwahati Municipal Corporation which falls within the Ward No. 31 of the Gauhati Municipal Corporation. In fact the city limits of the Gauhati city extends approximately 4/5 kms beyond the termination point at Satgaon to which the Mini City buses extend their service. These Mini City buses have to pay parking fee to the Respondent corporation for parking their vehicles at the termination point at Satgaon which shows that the termination point at Satgaon is within the jurisdiction of the Gauhati Municipal Corporation. Respondent corporation in order levy and collect the toll of vehicles and animals entering the city of Guwahati from outside have established a check gate at Narengi Tinali, Guwahati. The check gates, according to the Bye laws should be located at the point of entry to the city. But in this case the Noonmati Check gate has been established few kilometres inside the city of Guwahati. It is also alleged that as a consequence, certain vehicles like the Petitioner''s vehicles, which are required to travel from one point to the another within the jurisdiction of the corporation and are required to pass through the check gate and also has to pay the toll for every entry into the city of Guwahati Petitioner''s vehicles passes through the cheek gate at Narengi Tinali and terminates at Satgaon and they requires to pay the entry toll although such vehicles at no point of time go outside the limit of the city, nor enter the city like some other vehicles. During the course of the day almost 40 or more Mini City buses, belonging to the Petitioner, passes through the check gate at Narengi and each mini bus on each trip is required to pay Rs. 15/- (Presently as stated at the Bar enhanced to Rs. 15/- as entry toll at the check gate. One such Mini bus makes about six trips per day and kg such, 40 Mini buses make six trips and required to pay about Rs. 3,600/- per day. Under the law, it is contended inter alia, such vehicles which enter the city of Guwahati from outside are required to pay the entry toll. But due to arbitrary action of the Respondent corporation putting up the check gate at Narengi which is a few kilometres inside the limits of the Gauhati city, the vehicles of the Petitioner Association are required to pass through the Narengi Tinali check gate and have to pay the entry toll to the Respondent ''which actually ply within the limits of the Gauhati Municipal Corporation. Moreover, some of the receipt issued by the Respondent corporation against the payment of such entry toll did not show the vehicle number and the signature of the collecting authority and those are mere plain receipt form bearing the Book number and date (Annexure-II to the writ petition).

Against such arbitrary action of the Respondent corporation the Petitioner Association since its inception have been making several representation/appals to the Respondent corporation. In their representation dated 29.6.92 to the Commissioner attention was drawn against the illegal collection or entry toll from the Mini city buses or the Petitioner Association. But the Respondent corporation has not taken any steps to mitigate the grievance of the Petitioner and continued to collect the entry toll. On 8.11.93 a meeting was held between the Addl. Deputy Commissioner, Kamrup, Respondent Commissioner and the President and Secretary of the Petitioner association. In that meeting Petitioner Association was assured by the Respondent Commissioner that on completion of the contract for the year 1993-94 the concerned check gate would be shifted to its appropriate location in the limits of the Guwahati city from its present site which is in far inside the city limits, It is relevant to mention that the check gates are leased out to private persons, though under Bye law 11 of the Bye laws the check gates have to be manned by the officer and employees of the corporation. The allegation is that leasing out of the check gates to some unscrupulous individuals makes the situation worst and for that the toll payers like the Petitioner association have been suffering and are harassed without any reason.

Petitioner also challenged the rates of tax shown in the tender form and prays for a direction from this Court to the Respondent to install the Narengi Tinali check gate at a more appropriate location at the entry point of the city of Guwahati and shift the same from its present location at Narengi Tinali and also prays for quashing the notification dated 10.2.94 relating to submission and acceptance of tender, more particularly, to set aside the prescribed rates of tax. Though the Petitioner association raised the propriety of establishing the check gate far inside the limits of the city its main grievance is against proposed exorbitant enhancement of tolls for each trip from Rs. 5/- to Rs. 15/-. Further, the association alleges discrimination in fixing the toll to a Mini City bus which is not in conformity to other vehicles like a bus and a truck. Mr. Choudhury, learned senior counsel for the Petitioner in course of his argument fairly submitted that he is not questioning the financial authority of the corporation to impose tolls but has impugned the legality of imposing tolls in an arbitrary manner putting the Petitioner association to pay more tolls in comparison to similarly situated other vehicles which amount to illegal enrichment on the part of the corporation.

In its affidavit denying the allegation of the Petitioner association the Respondent has averred that no tax has been collected from any of the members of the association from 22.3.94. Incompliance with the court''s order dated 22.3.94 and 25.3.94 and Respondent corporation issued ah order dated 30.3.94 directing that no entry tax from the Mini City buses be collected within the limits of the city. However, some of the vehicles which moved but of the city of Guwahati to different places paid entry tax out of their own, as, such vehicles are liable to pay entry tax. Further averment is that in that route oilier Mini buses apart from the Mini buses oft he Petitioner association ply beyond the city limits of Guwahati and again entered, the city and they have been paying the entry tax without any complaint that taking advantage of the High Court''s order dated 22.3.94 and 25.3.94 the Petitioners refused to pay entry tax inspite of plying the vehicles beyond the limit of city of Guwahati though the members of the association are liable to pay tax for that; that some of the office bearers of the Petitioner association some to the check gate to sec that none of the members have to pay the entry tax for which police has to interfere in realisation of tax from the incoming vehicles which the corporation is unable to realise and thus the lessee is suffering financial loss. Facing the situation the corporation called upon the office bearers of the Petitioner association and requested them to furnish a list of members of their association, number of the vehicles as well as the route permission documents for the vehicles of the Petitioner association so that effective steps could be taken to implement the order of this court; but the Petitioner association has not complied with by taking the undue advantage of the court''s orders dated 22.3.94 and 25.3.94.

As it transpires under the relevant Bye laws the Commissioner of the Gauhati Municipal Corporation is the competent authority to decide location of check gates for collection of entry toll/tax. From the very beginning (1989) the Narengi check gate was located at Narengi Tinali. However, during construction of the permanent capital at Pragjyotishpur for widening and improving the Zoo Narengi road the Deputy Project Superintendent, Fly Over Construction Project, PWD by his letter dated 4.9.89 (Annexure-D to the application for vacation/cancellation) requested the Commissioner, Gauhati Municipal Corporation to shift the shaded area as shown in the Plan, to facilitate the project work. Accordingly Respondent Commissioner shifted the gate to a place which is known as Forest Gate. It is because of the objection of the Petitioner the check gate has been again shifted to Narengi Tinali which is a most convenient place for collection of entry toll, Under the Bye laws Commissioner is the competent authority to decide the location of the check gate and nobody can claim for change of location of such check gates that their only grievance can be against realisation of entry toll from their vehicles moving in and out through the check gate.

In that view of the mailer this Court proposes to examine Whether the entry toll levied on the vehicles of the Petitioner association has been fixed arbitrarily, forcing the Petitioner association to pay more, which is beyond the scope of the Respondent corporation.

It is beyond dispute that the Municipal authority has financial authority sanctioned under the law to impose tax/tolls etc arid the Bye laws framed thereunder prescribe for execution of such financial power. In Siliguri Municipality and Others Vs. Amalendu Das and Others, the Apex Court, deciding the financial power of Municipality held that normally the High Court should not, as a rule in proceedings under Art 226 of the Constitution grant any stay of recovery of tax save under very exceptional circumstances. The grant of stay in such matters should be an exception and not a rule. The court cannot be unmindful of the need to protect the authority levying the tax, for at that stage the court may or may not succeed. The court has to show awareness of the fact that in a case a Municipal Corporation cannot function or meet its financial obligations if its source of revenue is blocked by an interim order restraining the municipality from recovering the tax as per the impugned provision. The Municipal Corporation has to maintain essential civic services etc and have to spend more for providing civic amenitities to the tax payers.

But when writ jurisdiction of this High Court is involved under Article 226 of the Constitution, alleging arbitrary imposition of tax which puts the aggrieved parties in hardship, the writ court has jurisdiction to review such action of the Municipal authority and set it in right.

The allegation meted out by the Petitioner association shows mat the proposed enhancement of tax would put the members of the Petitioner association in a hard position. The prescribed rates of entry tax/toll given in terms and condition of check gates for the year 1994-95 (Annexure-V to the writ petition) which is impugned in this writ petition is quoted below:

Prescribed rates of entry Tax

(a) Truck (Loaded) Rs. 20,00 every entry

(b) Truck (Empty) Rs. 10.00 "

(c) Bus Rs. 15.00 "

(d) Taxi Rs. 8.00 "

(c) Mini truck/Van (Loaded) Rs. 10,00 "

(d) Do (empty) Rs. 5.00 "

(g) A Motorickshaw Rs. 8.00 "

(h) Bullock cart Rs. 8.00 "

....

....

In clause (c) of the prescribed rates shows that there is no separate head for imposing toll on Mini city buses. Mini city bus has been clubbed with bus, Petitioners allegation is that a bus is a bigger passenger vehicle which contains about 45 to 50 seals whereas a Mini bus contains only 29 seats. As there is no separate fixed toll to be paid by the Mini buses Petitioner association has to pay same toll imposed on a bus which is exorbitant and arbitrary. There is no categorisation of bus and Mini bus which ought to have been categorised in view of the capacity of carrying passenger, as apparently, as vehicle with more seat capacity earns more than the smaller one. Due to this non categorisation of bus and Mini bus the Mini bus has to pay more tolls in comparison to a bus which carries more passengers with the advantage of collecting same fares from its passengers. In view of that matter the rate of taxes should be less than a bus. The averment of the Respondent corporation that as the corporation has the authority under law to enhance the rate of entry tax and rates were enhanced with due approval of the Government is not sustainable, as the taxing authority has to consider the capability of unequal to pay tax and in that view or the matter this can be held that the Petitioner association has been paying more inspite of its capacity to pay more. It is also brought to the notice of this Court that the Petitioners are also paying road taxes under Assam Passenger and Goods Tax Act in addition to the entry toll to the corporation. However, collection of toll by the corporation cannot be said to be unauthorised tax as alleged by the Petitioner association and there is no violation of article 265 as it cannot be held as a forced collection by the taxing authority. Petitioner also cannot question the right of the corporation to lease out the Check gates to individual persons and if the financial and administrative exigencies require, the corporation can do so. As submitted by Mr. Choudhury, learned counsel, that u/s 110 of the Municipal Act money realised as tax must go to the Municipal fund directly is not sustainable on the ground that it cannot be stated that the money collected by leasing out the check gates does not go directly to the fund of thee corporation. Mr. A.B. Choudhury, learned Counsel for the Respondent submitted that Bye law 12 of the Bye laws provide for appeal and if Petitioner association is aggrieved it can approach the appellate authority and there is also scope for negotiation between the corporation and the association and in earlier occasions also the Petitioner association was invited for discussion and for amicable settlement of their problems. Admittedly since 1989 Petitioners are paying toll/tax without objection but now only they have approached this Court objecting the location of the check gate and enhancement of tax to Rs. 15/-. But from the documents produced by the parties it appears that enhancement of tax was made step by step and the present enhancement is not a sudden enhancement.

In view of my above discussion, in this situation the Petitioner association and the Respondent corporation can arrive at an amicable settlement and find out a solution which will be conducive for both sides. In that, view of the matter the interim orders dated 22.3.94 and 25.3.94 by which the Petitioners were directed not to pay the toll from 22.3.94 onwards is vacated. The averments made in the application for modification of the said interim order shows that the grant of that interlocutory order dislocated the working of the check gate and that for non payment by the members of the Petitioner association the corporation is facing financial difficulty in view of the lease agreement with the lessee which will put the corporation in financial liability. The Petitioner association is directed to continue to pay the toll/tax at the rate of Rs. 15/- until some mutual agreement is arrived between the corporation and the Petitioner association. In any case, the Respondent corporation shall bear in mind, while fixing the future tolls on Mini buses (presently enhanced to Rs. 15/-), of their paying capacity in comparison to a bus as the paying capacity of a bus and a Mini bus is not equal.

In the result the petition is partly allowed.