Cases Referred:

Advocates Appeared:
Advocate For Appellant: Ch. Inder Dass
Advocate For Respondent: C.K. Daftary
Advocate For Respondent: O.C. Mathur
Advocate For Respondent: Amar Nath Raina
Advocate For Respondent: Amar Chand Vaid

Per Bhat J

(1) This writ petition challenges the levy of toll at Lakhanpur. Nagrota, Banihal and other places under the Levy of Tolls Act, 1995 B, (wrongly put as 1955 A. D. in the writ petition, or under the law in force authorising such a levy. It further challengs the levy of toll of one rupee a maund on all goods imported into the State at Lakhanpur. The contents of the brief petition are as follows: -

(2) That the petitioner who is a permanent resident of the State of Jammu and Kashmir is charged road toll at Lakhanpur, Nagrota and Banihal as prescribed by the Levy of Tolls Act, 1995, corresponding to 1938 A. D (wrongly put in the petition is 1955). These three places are situated on the National Highway as declared by the National Highways Act. 1956 The State further realises Rupee 1/- per manud on all goods imported in the State by road. The Central Act does not authorise imposition of any levy as Road Toll on any National Highway except in terms of Section 7 of the Act. The levies above referred to are not covered by the Section. The levy of Tolls Act has been repealed by the National High ways Act because the National Highway vests in the Central Government. The Central Act could not levy any such toll. These two levies are illegal The Central Government had been moved in this behalf. It had called the comments of the State Government as far as back as 1963 but the toll is being still levied. The imposition of this toll may be declared illegal.

(3) This writ petition has been contested by the State. The State contends that the impost is valid and does not militate against any provision of the Constitution. The impugned Act falls within the residuary legislative field of the State and the State was competent to levy this tax as would appear from list II of the VII Schedule of the Constitution of India (Entry 59) as applied to the State. The petition is misconceived.

(4) When the case was admitted on 9-3-1966 it was ordered that the case be heared by a Division Bench. By an order of the Division Bench dated 13th of December, 1966 the case was ordered to be put before the Full Bench. Ultimately it was heard by the Full Bench.

(5) We have heard the arguments of the learned counsel for the parties.

(6) The brief argument of the learned counsel for the petitioner is that the National Highways Act (Act No. XLVIII of 1956) was enacted in the year 1956 and came into force on15-4-1957. It applies to the State of Jammu and Kashmir also. Under the schedule to the Act, at serial No. 2 IA the Highway connecting Jullunder, Madhopur, Jammu, Banihal, Srinagar, Baramulla and Uri has been declared to be a National Highway under section 2 of the said Act. Under section 4 of the same Act all National Highways shall vest in the Union. Mr. I. D. Grover further argued that after the National Highway had vested in the Union of India, the State Government rendered no service or benefits for which it could charge any fee or tax. Under section 7 itself fees could be charged by the Central Government of rendering certain service or benefits. As the State Government had nothing to do with this Highway now, the question of its rendering any service therefore does not arise and therefore the tax was illegal. After the said Act i. e. the National Highways Act, 1956 came into force the levy of Tolls Act of 1938 of the State stands automatically repealed because under entry No. 20 of Vllth Schedule, Union List, Highways declared by or under law made by Parliament to be National Highways, is central subject. Under -Article 246 (1) of Constitution of India Parliament has exclusive power to make such laws with respect to any of the matter enumerated in List I in the seventh Schedule, Union List. Similarly under clause (3) the State Legislature has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the seventh Schedule, State List. Under Article 251 of the Constitution of India the State Legislature has power to make any law which under the Constitution it has power to make, but if any provision of law made by the Legislature of the State is repugnant to any provision of the law made by Parliament which Parliament has under either of the said articles power to make this law made by the Parliament whether passed before or after the law made by the Legislature of the State shall prevail and the law made by the Legislature of the State shall to the extent of the repugnancy but so long only as the law made by Parliament continues to have effect, be inoperative. Similarly under Article 254 of the Constitution of India "if any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of any existing law with respect to one of the matters enumerated.........the law made by Parliament, whether passed before or after the law made by the Legislature of such State or as the case may be, the existing law prevail and the law made by the Legislature of the State shall, to the except of the repugnancy be void. Under section 7 of the National Highways Act the Central Government has the power to levy fees at such rate as may be laid down by rules made in this behalf for services or benefits rendered in relation to the use of ferries, temporary bridges and tunnels on national highways. The Central Government has not levied any fees under this section. The levy of Tolls Act stands repealed. Mr. I. D Grover further argued that this impost was a restriction on the freedom of inter-State trade and commerce and militated against Article 301 of the Constitution of India as applied to this State. Such a tax could be levied only by the Parliament or by the State Legislature with the previous sanction of the President. Admittedly no sanction of the President has been secured for the enforcement of, in this case, for continuance of this Tolls Act Mr. Grover has referred to two authorities AIR 1967 SC 1189 ALL 430. Therefore the tax recovered as toll at the stations mentioned above is illegal.

(7) Mr. Daphtary, Attorney General of India who appeared for the State in this case contended that the passing of the National Highways Act and vesting of national highway from Lakhanpur to Uri in the Union of India has in no way affected the levy of Tolls Act passed by the State Legislature in the year 1938, Levy of tolls is within the exclusive competence of the Stare Legislature Under the State list, taxes, which a State Legislature can levy, are contained form entry No. 46 onwards upto entry No. 62 Entry No. 59 pertains tolls. He argues that the National Highways Act had no application to the circumstances of this case and the passing of that Act in no way, even by implication, shall be deemed to have repealed the State Tolls Act. The Act had been passed before the National Highways Act came into force, Even after the passing of the Constitution the scope of the two acts i. e. National Highways Act and the Levy of Tolls Act was entirely different; under the former fees could be levied for rendering service or benefits in relation to the use of ferries temporary bridges and tunnels. Even under section 7 of the Highways Act the road as such has been excluded. The fees could be levied in addition to any tax for the use of ferries, temporary bridges and tunnels. Under the levy of Tolls Act this toll was levied for the mere use of the road and it was within the competence of the State Legislature to pass such laws of levying of toll. Mr. Daphtary further argued that by using the expression national highways shall vest in the Union" the right of the State over the highway was not taken away. Vesting in the context refers only to the management and upkeep of the surface of the road. There was a clear difference between fee and tax. This toll was a tax and was not covered by the term fee used in Section 7 of the National High-ways Act.

(8) We shall now examine the arguments in detail and refer to the law discussed and otherwise relevant to the subject

(9) The first argument of Mr. Grover that entry 20 of the Union List in the Seventh Schedule made the levy of this toll a Union subject is not correct. When we read the two lists, the Union list and the State lists, entry 23 of the Union list is "Highways declared by or under law made by Parliament to be national highways," which only means that any laws that may be passed with respect to highways can be by Parliament. There could be no quarrel with such a power. If the Union Legislature passed any law with respect to national highways, as it has done by the passing of the National Highways Act No. XLVIII of 1 956, that law will be the relevant and enforceable law on the subject. But so far as levy of toll is concerned that is not a Central subject but is exclusively contained in the State list at item No. 59, Levying of any tolls is exclusively within the jurisdiction Legislature. Therefore any law passed by the State Legislature, whether before or after the enforcement of the Constitution, which deals with tolls, is saved and is the exclusive field of the State Legislature.

(10) The word "toll" has been described in the Websters New International Dictionary as a tax or dues paid for some liberty or privilege particularly for the privilege of passing over a highways as a road or bridge, for that of keeping a booth, vending goods etc. in fair, market or other limited space as a manor, for importing or exporting goods. In Byrine™s Law Dictionary, 1923 edition ˜toll™ is a payment for passing over or using a bridge, road, ferry, railway, market; port, anchorage etc. In Wharton™s Law Lexicon (fourteen edition among other things the words ˜toll™ is described as a tribute or custom paid for passage. Under the English Law, broadly there are two kinds of tolls recognized, which are known as toll traverse and toll-thorough. According to Byrnes Law Dictionary toll traverse was a sum payable for passing over the private soil of another, or over a private road, bridge, ferry or the like, and total thorough was a sum payable for passing over the public highway: to support a claim for such a toll (which is a franchise) a consideration must be shown i. e. repairs to the highway by the owner of the franchise. According to Whartons Law Lexicon toll traverse is taken for every beast driven across a mans land. In Halsburys Laws of England, third edition, Vol: 19. (Simonds Edition) "a toll traverse is a toll taken in respect of the original ownership of the land crossed by the public (though now perhaps severed there- from), the land having been at the date of the grant the private property of the grantee, and having been then dedicated by him to the public in consideration of the toll to be taken." "A toll-thorough is independent of any ownership of the soil by the original grantee, the consideration necessary to support it being usually the liability to repair the particular highway or bridge. The distinction between the two classes of tolls was put by Lord Parker of Waddington in Hammerton Vs Earl of Dysart (1916) 1 A. C. 57. This matter of tolls under somewhat similar circumstances same up for consideration in a recent authority reported as AIR 1962 AIR 25 Hindustan Vanaspati Manufacturing Co:, Ltd., Versus Municipal Board, Ghaziabad and others. There was a difference of opinion between the two learned Judges Moothan C. J. and Dayal J. The matter was referred to the third learned Judge A. P. Srivastava J, Mootham C. J. on page 28 of the judgment said: -

"......In the case of the toll traverse it is the dedication of the road to the public and in the case of a toll thorough the obligation to perform some service such as maintaining the road in repair."

(11) Then this Lordship quotes a number of English authorities drawing out a distinction between toll traverse and toll thorough.

Dayal J. in para 14 of the judgment held that the word: -

" toll is not of any recent use. There have been many a kind of toll charged in England. Different name have been given to them. The two tolls recognized under the common law with respect to the passage on the highways have been given the names of toll-traverse and toll-thorough.

(12) Then the learned Judge mentioned other tolls such as fair toll, stallage toll, canal toll, ferry toll, market toll.

At page 39 of the judgment Srivastava J says: -

"A toll thorough has no connection with the ownership of the land and is usually granted to someone who undertakes to do something for the benefit of the person who uses the passage, i. e. makes the road or a bridge or keeps it in repairs, arranges for a ferry or provides some other facility. A toll traverse is on the other hand connected with the ownership of the soil and is allowed to be charged for the use of the land by the person liable for the toll. The contention that some sort of consideration is necessary to support the levy of tolls is correct. Judicial authority on this point is so overwhelming that it is not possible to dispute this proposition. The right to levy a toll is based either on a grant or has been acquired by prescription. Ordinarily in order to justify a toll it is necessary to aver and prove the existence of some consideration. If however, the right had been exercised from time immemorial its legal origin as well as consideration may be presumed. Similarly if the right has been granted by statute the consideration may be mentioned in the statute itself and can even be presumed even if it is not so mentioned because the Legislature would not have granted the right unless there was some consideration to justify the grant. Usually, the consideration is some amenity, service, benefit or advantage which the person entitled to the toll undertakes to provide for the public in general or the persons liable to pay the toll. Some times the consideration may be traced to ownership or jus dominii. Permission by the owner of the land for the use of his land for any purpose may therefore be sufficient consideration if the person charging the toll is the owner. If the benefit or the advantage which is the consideration is made available it is not necessary for incurring the liability to pay the toll that the benefit or advantage should actually be utilized."

(13) In this case the dispute was whether a toll levied by the U. P. Municipality under section 128 of the U. P. Municipal Act could be charged from a factory, the appellants in that case. The appellant company was manufacturing Banaspati and it required supply of raw-material, which was brought to the factory. The factory premises situated within the limits of certain Municipal Board were connected with the main railway line by a branch line. The branch line was constructed at the cost and on the land of the Company. Wagons bringing supplies to the factory passed along the railway siding in order to reach the factory premises and in that way entered the limits of the Municipal Board. The Municipal Board claimed to levy a toll u/s 128 of the U. P M. Act on the railway wagons bringing supplies to the appellant company. The company disputed its liability to pay the tax. The High Court held that it was not necessary that the benefit provided must be capable of being enjoyed by the vehicle or person sought to be made liable for the toll although the company had connected its premises with the main line by its own side line. It was held that enjoyment of amenities provided by the Municipal Board was sufficient and imposition of toll on wagons was held valid. There are numerous English cases on the subject. Mr. Justice Willes in Brecon Markets Co : Vs. Neath and Hrecon Rail. Co: (1872), L. R, 7 C, P. 555 remarked at page 566: -

"Accordingly it was argued that the claim in question could be maintained as a toll thorough because nothing is done by the corporation or by the plaintiffs towards the repair of the railway company. It was, however, insisted that the claim might be maintained as for a toll traverse which consists of a toll granted and claimed for going over the land of the grantee. A toll traverse is said to differ from a toll thorough in this that no consideration for it need be averred. This does nor, however, mean that there held no consideration for it; it merely expresses that, as there can be no toll traverse except in respect of going over the land of the grantee, the consideration of using the land is implied from the character of the toll, and need not be further averrred than by stating that it is a toll traverse".

(14) In another case Hammerton Vs. Earl of Dysart,1916-1 AC 57, Lord Parker of Waddington remarked: -

"toll are generally classified as tolls-traverse and tolls-thorough. If, apart from the franchise, no one would have had a right to do that for which the toll is charged the toll is a toll-traverse. If, apart from the franchise, any one would have had the right to do that for which the toll is charged, the toll is a toll-thorough. In the former case the consideration moving to the public may be the found in the right conferred on the public by the franchise. For example, if before the creation of the franchise the road for the use of which toll is charged was a private road, the consideration may be the dedication of the road, to the public........."

(15) Mr. I. D. Grover however relied on an authority reported as AIR 1958 All 430. In that case two points arose for consideration. One was taxing of vehicles carrying passengers at rates fixed per passenger and the second was whether the tax could be levied on a vehicle while entering and again while leaving the Municipal limits. It was held that tax could be levied per passenger but tax could be recovered only once i. e. on the vehicle entering within the Municipal limits. Therefore this authority does not help the petitioner, The other authority cited by Mr. Grover namely AIR 1967 SC 1189 also is not pertinent. In that case the point for consideration was the rules made under the Mysore Forest Act which regulated transit of timber, firewood, charcoal and bamboos in specified areas. It was held that the provision are not regulatory in character but restrictive of right to transport forest produce. The right to regulate was held to be valid but the right to impose restriction on movement of timber was held not permissible being derogatory to freedom of trade under Art, 301 Constitution of India. In an authority reported as AIR 1964 Punjab 506 it was held that a toll imposed by Municipal authority on vehicles entering into the Municipal limits was covered by the term toll-Standing tax already being charged for parking vehicles at stand. It was held that this former tax was not a case of double taxation as a tax on vehicles. In this case, argued Mr. Daphtary, the ownership in the road was and continue to be that of the State of Jammu & Kashmir. That is not denied in the pleadings of the petitioner. All that the petitioner states is that after the passing on the National Highways Act recovery of this toll becomes illegal. Mr. Daphtary argued that there is no deed of transfer, or conveyance of this road by the State Government in favour of the Central Govt. Therefore the ownership in this road remains where it was namely with the State of Jammu & Kashmir and the State could levy this tax merely because it allowed its property namely the road to be used by the vehicles which were charged this tax. No further consideration in the shape of benefits or service was necessary for the imposition of this tax.

(16) Mr. I D Grover laid emphasis on the word vest in Section 4 of the National Highways Act, 1956. He said that all national highways vested in the Union from the time of passing of this Act and this highway namely from Lakhan pur to Uri also vested in the Union, from which he argued that the ownership and other incidents to this road were transferred from the State of Jammu & Kashmir to the Central Government. The word Vest has been the subject matter of a long series of decisions in England and in India also. In Whartons Law Lexicon it is defined as (1) either to place in possession: to make possessor of; or, to give an absolute interest in property when a named period or event occurs; (2) (of a right or interest) Its coming into the possession of any one ensuring to the benefit of any one." Similarly in Byrne dictionary it is stated among other things to mean "where an Act of Parliament exacts that a street shall vest in all urban sanitary authority this means that the surface of the land, and so much of the soil as is necessary for its use as a street, shall be transferred to the authority. The English case Coverdale Vs. Charlton L. R. 4 Q. B D 104 is considered to be the leading case on the subject and therein Bramwell L. J. Observed: -

"I am disposed to hold that this street vest without any property in the soil. The word vest may have two meanings. It may mean that a man acquires the property ˜usque ad coelum™ and to the center of the earth but I donot think that to be its meaning here. One construction of the words ˜vest™ here is that it gives the property in the soil, the freehold, the surface and all above and below it, but that would be such a monstrous thing to say to be necessary for the proper control of the streets by the local board, that I cannot suppose it to mean such a thing. Suppose the soil of the freehold passes, and consequently it carries the right to the land to an indefinite extent upwards, and to the centre of the earth below the surface; I cannot make up my mind to say that is the meaning of the word vest in section 149.....what then is the meaning of the word vest in this section? The Legislatute might have used the expression transferred or conveyed but they have used the word vest. The meaning I should like to put upon it is that the street vests in the local board qua street; not that any soil or any right to the soil or surface vests, but that it vests qua street.....

The meaning I put upon the word vest is, the space and the street itself, so far as it is ordinarily used in the way that streets are used shall vest in the local board......That would show that street comprehends what we may call the surface, that is to say, not a surface bit of no reasonable thickness, but a surface of such a thickness as the local board may require for the purposes of doing to the street that which is necessary to it as a street and also of doing those things which commonly are done, in or under the streets; and to that ex

tent they had a property in it.

(17) There are a long series of authorities holding the same view. For instance Rolls Vs. Vestry of St. George, L R.14 Ch. D. pages 795 and 696-The Mayor of Tnnbridge wells Vs. Baird L. R (1866) A C. 484 All these cases have been discussed at length in ILR XXV (1902) Madras Series and the learned Judges held after considering all these authorities that: -

"When a street is vested in a Municipal Council, such vesting does not transfer the Municipal authority the rights of owner in the sire or soil over which the street exists. It does not own the soil from the centre of the earth usque ad colum, but it has the exclusive right to manage and control the surface of the soil and much of the soil below and of the space above the surface as is necessary to enable it to adequately maintain the street as a street. It has also certain property in the soil of the street which would enable it as owner to bring a possessory action against trespassers "

Similarly in another authority Gunendra Corporation of Calcutta reported in ILR Vol. XLIV. Calcutta Series (1917). It has been held in this case that:-

"The legal effect of statutory vesting of street in a municipality the ownership in the site or soil over which the street exists, exists. The effect of the statutory provision is merely to vest in them the property in the surface of the street, road or drain and in so much of the actual soil below and air above as may reasonably be required for its control, protection and maintenance as a highway or drain for the use of the public The Court will not presume that the intention for the Legislature was to confiscate private property and vest it in a public corporation without compensation granted to the proprietor. The right of the owner was intended to be abridged only to the extent necessary for the discharge of the statutory duties imposed on the Corporation for the benefit of the public

(19) In their case a number-of English and Indian authorities have been discussed. It was held by their Lordships of the Supreme Court in The Municipal Board Manglaur Vs. Mahadeoji Maharaj, AIR 1965 SC 1147 that a public pathway vests in the Municipality by virtue of S. 116 (G)UP Municipalities Act but the Municipality does not own the soil. It has the exclusive right to manage and control the surface of the soil and "so much of the soil below and of the space above the surface as is necessary to enable it to adequately maintain the street as a street. It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against trespassers. Subject to the right of the Municipality and the public to pass and repass on the highway, the owner of the soil in general remains the occupier of it and, therefore, he can maintain an action for trespass against any member of the public who acts in excess of his rights."

(20) The Madrass authority and some other authorities have been referred to in this case. Therefore, the argument of Mr. Grover that this national highway has vested in the Union of India does not mean that the ownership of the road has been transferred from the State of Jammu & Kashmir to that of Union of India. The Union of India has control over this highway so far as its maintenance and pepper up-keep demands.

(21) The next argument of Mr. Grover that u/s 7 of the National Highways Act Control Government can levy fees for services or benefits rendered, in relation to the use of ferries, temporary bridges and tunnels on national highways. The State does nothing in the shape of benefits or services to the petitioner or the public it cannot recover fees in the shape of tolls under the Levy of Tolls Act.

(22) This section empowers the Central Government to levy, a fee for the use of ferries, temporary bridges, and tunnels and not the road as such. All that it means that in addition to any other tax a special fee may be levied for the use of these three categories of amenities namely use of ferries, temporary bridges and tunnels. Secondly it is now very well settled that a fee is not a tax and a tax is not a fee. A fee is recovered for a certain specified return for payment of the same. The fee must be applied to the specific purpose for which it is recovered. It must be reasonable and proportionate to the subject or the benefit to be derived. A tax on the other hand goes to the general coffers of the State for the general benefit of the public. No specific or even commensurate benefit need accrue for the payment of a tax or as it is to be in legal parlance no quid pro quo is necessary for the imposition of a tax. Moreso it is much less so when the tax is levied by some statute as in this case by the Levy of Tolls Act, .1988.

(23) Toll is a tax and not a fee as indicated in the earlier portion of this judgment. In AIR 1954 SC 282 their Lordships held that: -

A tax is a compulsory exaction of money by public authority for public purposes enforceable by law and is not payment for services rendered. This definition brings out the essential characteristics of a tax as distinguished from other forms of imposition which, in a general sense, are included within it. The essence of taxation is compulsion, that is to say, it is imposed under statutory power with out the tax-payers consent and the payment is enforced by law. The second characteristic of tax is that it is an imposition made for public purpose without reference to any special benefit to be conferred on the payer of the tax. This is expressed by saying that the levy of tax is for the purposes of general revenue which when collected forms part of the public revenues of the State.

As the object of a tax is not to confer any special benefit upon any particular individual, there is no element of quid pro quo between the tax payer and the public authority. Another feature of taxation is that as it is a part of the common burden, the quantum of imposition upon the tax-payer depends generally upon his capacity to pay.

A fee is generally defined to be a charge for a special service rendered to individuals by some governmental agency. The amount of fee levied is supposed to be based on the expenses incurred by the Government in rendering the service, though in many cases the costs are arbitrarily assessed. Ordinarily the fees are uniform and no account is taken of the varying abilities of different recipients to pay. These are undoubtedly some of the general characteristics, but as there may be various kinds of fees, it is not possible to formulate a definition that would be applicable to all cases.

(24) A careful examination reveals that the element of compulsion or co-erciveness is present in all kinds of imposition, though in different degrees and it is not totally absent in fees. This, therefore, cannot be made the sole or even a material criterion for distinguishing a tax from fees.

(25) The distinction between a tax and a fee lies primarily in the face that a tax is levied as a part of a common burden while a fee is a payment for a special benefit or privilege. Fees confer a capacity, although the special advantage, as for example in the case of registration fee for documents or marriage licences, is secondary to the primary motive of regulation in the public interests. Public interest seems to be at the basis of all impositions, but in a fee it is some special benefit according to the individual which is the reason for payment in the case of fees; in the case of a tax, the particular advantage if it exists at all is an incidental result of State action."

(26) The last argument of Mr. Grover was that this Levy of tolls Act is in contravention of Article 301 of Constitution of India and such a legislature if at all permissible could be made with the consent of the President under Article 304. In Rajasthan An Act known as Rajasthan Passenger and Goods Taxation Act (18 of 1959) was promulgated in the year 1959. The constitutionality of that Act was challenged. The Supreme Court held in AIR 1361 SC 1480 that: -

"Sec. 3, Rajasthan Passengers and Goods Taxation Act, 1959, in terms, speaks of the charge of the tax in respect of all passengers carried and goods transported by the amount of fare and freight charged, it does not cease to be a tax on passengers and goods. The explanation to S. 3(1) lays down that even if passengers are carried or goods transported without the charge of fare or freight, the tax has to be paid as if fare freight has been charged. This clearly shows that the incidence of the tax is upon passengers and goods, though the amount of tax is measured by the fares and freights. Though the tax is laid on passengers and goods, the amount varies in the case of passengers according to the distance travelled, and in the case of goods because the freight must necessarily differ of weight, bulk and nature of the goods transported. The tax levied by S. 3 is in pith and substance a tax on passengers and goods and not on income of the petitioners or on fares and freights The charging section does not go beyond entry 56 of List II, Sch: 7 of the Constitution and is not unconstitutional on that ground.

(27) The levy of tax on passengers and goods is for the purpose of State and falls on passengers or goods carried by motor vehicles within the State. No doubt, it falls upon passengers and goods proceeding to or from an extra-State point but it is limited only the , fare and freight proportionate to the route within the State, For this purpose there is an elaborate scheme in R. 84 to avoid a charge of tax on that portion of the route which lies outside the State. There is thus no tax on fares and freights attributable to routes outside the State except in one instance which is contemplated by the proviso to subsection (3) of S 3. The levy of tax cannot be said to offend Arts. 301 and 304 of the Constitution."

(28) The observations of their Lordships of the Supreme Court quoted above would clearly cover the facts of this case. The State Government is the owner of the road called the National Highway. As such for the mere luxury of travelling on this road, The State Government is empowered to levy any tax. The tax levied will go to the coffers of the State and may be utilized for any purpose for which the revenues of the State can be utilized. The vehicles using this road of the State, are charged the toll and as already indicated legitimately so. The other argument that it is a restriction on inter-State trade and Commerce also has no force in view of the observation of their Lordships in the Supreme Court authority just cited namely AIR 1961 SC 1480. The toll is charged for use of the road in the State and this tolls Act has no extra territorial application. Now the same reasoning disposes of the other argument of the learned counsel for the petitioner pertaining to the charging of Rupee 1 for every maund of load carried by the vehicle. Heavier the load, greater will be the stress and strain caused to the road. Therefore the toll is less when the laden weight of a vehicle is comparatively smaller, it increases with the load carried by any vehicle. Lesser the laden weight of the vehicle, lesser the tax, greater the laden weight, more the tax. This levy has no bearing on inter State trade and commerce and is not violative of Article 301 of the Constitution of India, and therefore, no consent of the President was necessary.

(29) The result is that there is no merit in this writ petition, which is dismissed.