SRI SATYA NARAIN SINGH versus DISTRICT ENGINEER, P.W.D. AND ANOTHERS

J.-This is an appeal by certificate from tho judgment of the High Court of Allahabad reversing the decision of a single Judge of that Court directing the issue of a writ of Mandamus against the respondents under Art. 226 of the Constitution. The points which arise for consideration in the appeal are whether the appellant who was at the relevant time the lessee of a right to collect tolls from persons, vehicles etc., crossing the river by public ferry at Pipraghat, District Ballia was bound to allow State carriage buses belonging to the Government of Uttar Pradesh to cross the river by the ferry without collecting any toll or was entitled to claim abatement of rent from the Government under the proviso to s.15 of the .Northern India Ferries Act 1878 (hereafter referred to as the Act).

pp. 106–107

In order to appreuiate the points a few facts need to be stated. There is a ferry at the village Pipraghat, district Ballin for crossing the river and the right to collect tolls in respect of that ferry is put to public auction annually. The highest bidder at the auction gets the right. The rent or licence fee is collected from him in monthly instalments during the year with respect to which the right was purchased by the licensee. The appellant was the highest bidder for the year 1954 and the licence fee payable by him was Rs. 31,751/·. The practice right upto 1954 .was to allow the lessee to collect a toll of Rs. 5-1-0 from every stage carriage bus. Till March 9 of tha.t year only privately owned stage carriage bt1ses used to ply on the route in which the ferry crossing was comprised. Thereafter the r0ute has been taken over by the Roadways Dapartment of tha State of Uttar Pradesh. From March 9 to March 16, the appellant realised tolls at Rs. 5.J.O from the State-owned stage carriage buses when he was informed by a ]13tter by the first respondent that he should allow the Roadways buses to use the ferry for crossing and recrossing the river on credit till March ill, 1954 and should thereafter submit his bill with respect to the tolls to the Roa<lways Department of the Government_\He was also informed that further or<lers will he issm·d on April I, 19ii4. The a.ppella nt accordingly a I low< the H.oad ways buses to use the ferry for eros~ing and rP-r-rossiug the rivor and submitted his bill to the Roadways Department on J\Iarch :ll, HJ,i.i. That bill was, howover, not paid.

pp. 107–108

On April I, I he received two communications from respondeut no. I by one of which ho was iufo1 med that no toll is leviab.le ou the Roadways vehieles an<l by another he was asked to pay the mouthlv instalment of t.he liccnc<' foe without making. auy deduetion therefor consequent upon the exemption of tho Roadways busrs from tolls.

p. 108

The appellant had move<l the High Court of Allahabad under Art. ~26 of tlw Constitution fur · the issue of a it directing the respondent "to refrain from precluding the pditioner from charging tolls from the Hoadwavs hus1·s"', to issue a writ comm:inding the respon;lents to ;;llow a batcmt>nt to tlw appellant and to issun rm int1·l'im direction to the respondents asking tht!m to refrain from rcalis· ing the unpaid monthly instalments of the licence fees till the decision was gi1«,11. Before the petition was decided the appellant's licence had run out and, therefore, at the hearing the appellnnt confined himself to one relief, tha,t id, commanrling the rnspondcnts to allow rebate une account of the excmp· tion of the Roadw:iys buses from liability to pay the tolls. The petition however, not amendP-d. We may incidentally mention that 11part. from the relief,; a.bo\'C referred to, the appellant clrdmed two more reliefo, one of which was to pass any such oth•-r and further order as may be 1lc1·nwd fit and proper.

p. 108

The learned single ,Judge of t.he High Court ~h,9 decided the petition ill the first instance c~me to the conclusion that the appelhnt was entitled to abatement of rent under the third paragraph of s.15 of the Act and directed the issue of a writ tu the respondents directing them to "perform their statutory duty relating to abatement of rent" payable by the appellant consequent on the exemption ofBoad-

pp. 108–109

buses from payment of tolls under the aforesaid provision before claiming or recovering arrears of rent from him. The respondents preferred an appeal under the Letters· Patent which was heard by a Division Bench of the Allahabad High Court. The learned Judges held that a licensee is not entitled to abatement of rent unless the Government makes a declaration under s.15 of the Act subsequent to the grant of licence to him. It pointed out that the G.O. No. 1946/17-,') l dated December 11, 1951 upon which reliance was placed by the learned single Judge being prior in point uf time to the grant of the licence to collect tolls to the appellant, did not entitle him to claim abatement. It, however, held that the appellant may be entitled to claim abatement of rent or licence fee under the general law but that such a relief could be claimed only in a suit but not in a proceeding under Art. 226 of the Constitution. They thus allowed the appeal and dismissed the petition.

p. 109

Section 15 of the Northern India Ferries Act, 1878 runs thus:

p. 109

"Toll, according to such rates as are from time to time fixed b} the State Government, shall be levied on all persons, animals, vehicles and other things crossing any river by a public ferry and not employed or transmitted on the public service:

p. 109

Provided that the State Government may from time to time, declare that any persons, animals, vehicles or other things shall be exempt from payment of such tolls .

p. 109

. \VherP the tolls of a. ferry have been let under s~ction 8, any such decl>iration, if made nft~r the date of the lease, shall entitle the ]Pssce to such abatement of the rent payable in rc8poct of tho tolls as may be fixed by the . Commi~sioner of the division or such other officer as tho :qtatc Government may, from timp, to time, appoint in this behalf by 11ame or virtue of his office."

p. 110

The proviso to the· section confers upon the State Govp,rnment power to declare from time to time any persons, anima Is, vehicles etc., exempt from p'\yment of such tolls. Before the question of allo\\'imr ahatement of rnnt or licence fee can arise it must first ho est.ah!ishod that there was a valid exempt.ion with respect to any vehicles etc., under s. 15 of the Act. The section also provides that where such declaration is ma.de sub- 8equent to the grant of licence to colloct tolls under s. 8 the licensee is entitled to abatement of rent.:

p. 110

The Government order to which reference has been made in th<> two judgments of the High Court runs as follows:

p. 110

"Subject: Exemption from payment. of toll.

p. 110

I am dt•sircd to sa:v that a question ha.a hecn raised whether the Roadways Motor v.,hicles should be exempt from payment of forrv tolls while crollSing any river by a public ferry. Government have given their full consiclera.t.ion to this matter and havti come to the conclusion that the motor vehicles run by the Road\\'ays with the operational fitaff 'accompanying them on duty fall under the exemption granted from payment of frrry toll in paragraphs 2(a) of notification no. 252/-fX.20!J/(10) dated March 16, Ul25 (published on page 347 of the District Board Manual). .

pp. 110–111

2. I am, however, to observe tbat the passengers travelling in these vehicles with their goods and all the private goodF, being t~ans­ ported in the Roadways trucks shall be hable to the payment of tolls as heretofore according to the rates fixed by the Local Government.

p. 111

3. The District Magistrate, District Board and ferry contractors in your division may please be informed accordingly.''

p. 111

It may be pointed out that this order, if what appears to be merely a communication addressed to certain authorities can be regarded as a Government order, does not itself confer any exemption with respect to the buses run by the U. P. Roadways but sets out. the opinion of the Government that such buses must be regarded as being exempted under a notification of March 16, 1925 issued under s. 15 of the Act. That notification reads thus:

p. 111

"2. The following shall be exempt from the payment of tolls:

p. 111

(a) All persons animals and vehicles crossing -tny river by a public ferry when employed or transmitted on the public or District Board service."

p. 111

Admittedly at that date thn State was not running any bus services in the IJnited Provinces (now the State of Uttar Pradesh). May be there were no Government-owned buses at all in any other province of India at that time. Moreover it would not be reasonable to assume that a State enterprise of this kind was even in the contemplation of the U. P. Government nt that time. At that time, apart from running some railways the Stiite had not entered the commercial field.· It is in the light of these facts that the language of the notification of March 16, 1925, must be interpreted.

p. 111

ii2 SUPREi\IE COtJRT HEPORTS [l!l62] surP. What the notification ex~mpts is vehicle crossing the ri1·cr on 'pulilic or diHtrict board service'. Could it be said that plying motor buses liy wa~· of commercial activity is running it a public service? It is undoulitedly not easy to define what is "public s•?rvice" and rach activity has t.o he· consiriered by itself for d~ciding whether it is carried on as a public service or 11ot. Certain activitil'B will undoubtedly he regarded as public services, as for instance, t.hose undertaken in the exercise of thl: sovereign power of the State or of governmental functions. About these there can be no doubt. Similarly a pure business undertaking though rnn by the Government cannot be classificd as public service. But whern a particular activity concerns a public utility a question may aiise whether it falls in the first or the second category. The mero fact that that activity may be useful to the public would not necessarily render it public service. An activity howe\•er beneficial to the people and however useful cannot, in our opinion, he reasonably regarded as public service if it is of a typu which may be carried on by private individuals and is carried on by government with a distinct pn>fit motive. It may be that plying stage carriage buses even though for hire is an acth·ity undertaken by the Government for ensuring the people a cheap, regular and reliable mode of tranoport and ·is in that sense henrficial to the public. It does not, however, cease to be a commercial activity if it is run with profit motive. Indeed even private operators in order to attract custom are also interested in providing the samo facilities to the public as the Government under-· taking provides. Since that is so, it is difficult to see what difference there is between the activity carried on by private individuals and that carried on by Government. By reason of the fact that a commercial undertaking is owned and run by the State it do~s not ipso .facto bepome a 'public service'. It is not disputed before us that the Roadways department of the Government of U. P. is running a profit making and a profitable activity by excluding every kind of competition. In the circumstances, therefore, we find it impossible to hold that its vehicles crossing over ferries can be regarded crossing on public service. They are, therefore, not entitlec'I to any exemption under the notification of March 15, 1925. Since thev are not entitled to any exemption the question of abatPment of rent does not arise.

pp. 112–113

It is true that the petitioner, as already stated, confined himself at the sfa ge of ar1rnments in the High Court to the relief of abatement because of change of circumstances which took place between the date of filing his petition and its hearing. He did so evidently upon a misundAr· standing of the legal position with regard to the scope of the notification of March 16, l!l25. How· ever, the appellant has raised an alternntive con· tention in his Statement of the case to the effect that the Roadways buses which carry passengers are used by the Government for carrying on a commercial undertaking '1.nd that; therefore they do not come within the exemption made by the noti· fica ti on of the year 1925. In view of this and of the fact that the petition which contains a prayer for grant of 'other relief' has not been amended and is thus in its original form we see no difficulty in granting appropriate relief to the appellant.

p. 113

In the result we allow the appeal and set a•ide the judgment of the Division Bench as well as of the single judge of the High Court of Allahabad and direct that a writ in the nature of mandamus shall issue to the respondents directing them to pay to the appellant full tolls with respect to every crossing of the' Roadways buses over t.he ferry betwe<'n l\farch 16, 191">4, and the dnto on which the licence in favour of the appellant expired.

pp. 113–114

The costs of the appellant here and in the High Court will lrn borne by the r•,8pondents.

p. 114

Appeal allou:ed. IXDER LAL

p. 114

v.

p. 114

LAL SINGH (P. B. A. K. e.ncl

p. 114

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