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Judgment
A.H. Saikia, J.—On 10.10.2002 all these criminal revision petitions being based on similar and identical factual matrix involving common question of law, were heard and dismissed for the reasons to be recorded later on and accordingly the reasons for dismissing all those petitions are now recorded as under:
The order dated 30.8.2002 passed by the learned Additional District Magistrate, Ri Bhoi, Nongpoh in misc. case No. 25/2002 making the conditional order dated 31.7.2002 passed by the said authority in the above mentioned case u/s 133 Code of Criminal Procedure absolute and thereby directing the closure and removal of the illegal toll gates at the places mentioned in the said order, is the subject matter of challenge in all these criminal revisions.
The learned Additional District Magistrate, upon perusal of the report of the Extra-Assistant Commissioners relating to illegal erection of toll gates in National Highways as well as State PWD Roads within the Ri Bhoi District and on being satisfied, by his order dated 31.7.2002 issued show cause notice u/s 133 Code of Criminal Procedure to the revision Petitioners as to why the toll gates in question should not be removed fixing 16.8.2002. On receipt of such show cause the Petitioners in criminal revision Nos. 14(SH)/2002 and 16(SH)/2002 individually and separately replied to the said show cause stating that the toll gates in question at different places on the State PWD roads are being operated on being permitted by the Syiem of Mylliem who duly appointed the Petitioners as lessee for the period from 1.4.2002 to 31.3.2003. It is further stated that the gates in question are the customary gates which as per custom and practice have always been in existence as tolls are always being charged on goods by the Syiems who are the heads of traditional institutions being recognised by the Constitution of India, As such, it is contended that provision of Section 133 Code of Criminal Procedure are not attracted and further after taking evidence u/s 138 Code of Criminal Procedure only, the court can pass any such order-conditional or otherwise. The reply of show cause dated 14.8.2002 (Annexure-4 to the petition in criminal revision No. 14 (SH)/2002 which is also exactly similar to the show cause in criminal revision No. 16(SH)/2002) is quoted herein as under:
IN THE COURT OF SHRI T.K. MARAK, ADDITIONAL, DISTRICT MAGISTRATE: RI BHOI DISTRICT: NONGPOH.
C.R. (Misc) Case No. 25 of 2002
IN THE MATTER OF:
Show cause by Shri Patrick Syiem to the Order dated 31.07.2002 u/s 133 Code of Criminal Procedure.
MOST RESPECTFULLY SHEWETH:
That the undersigned has been served with a show cause Notice u/s 133 Code of Criminal Procedure as to why the toll gate he is operating should not be removed vide order dated 31.7.2002.
That the undersigned is not operating the gate at Byrnihat, Raid Marwet without authority of law but, the same is being operated by him as a duly appointed lessee under the Syiem of Mylliem vide order No. M.S./III(F)-15/2000-02/1658-62 dated 4.3.2002 and the same is inforce from 1.4.2002 to 31.3.2003. This factum of the lease along with the Schedule of rates leviable has also been duly communicated to the acting Syiem, Raid Marwet and also O/C of Byrnihat Police Station.
Copies of lease dated 4.3.2002 along with Schedule of Rates is annexed hereto and is marked as Annexure-1 and 2 respectively.
That in my case Section 133 is inapplicable and further Section 138 enjoins a duty upon this Hon''ble Court after taking evidence to see whether the order made is reasonable and proper and only after such satisfaction can issue and order conditional or otherwise. Furthermore, the gate which the undersigned is operating is a customary gate which as per custom and practice has always been in existence as tolls are always being charged on goods by the Syiems who are the heads of traditional institutions who are recognised by the Constitution of India.
That in this regard, in the circumstances the provisions of Section 133 Code of Criminal Procedure are not attracted and the proceedings are liable to be closed as concerned the undersigned.
That the statements made in paragraphs 1, 2, 3 and 4 hereinabove are true to my knowledge, information and belief and the rest are my humble submissions before this Hon''ble Court.
Patrick Syiem
Solemnly affirmed and declared before me by the abovenamed deponent on being identified by
Shri_____ Advocate, on this_____
day of August, 2002 at.
MAGISTRATE.
Be it noted that no reply of the show cause dated 31.7.2002 has been submitted by the Petitioners in criminal revision Nos. 15(SH)/2002, 17(SH)/2002 and 18(SH)/2002.
After going through the aforesaid show cause reply filed only by the Petitioners in criminal revision No. 14(SH)/2002 and 16(SH)/2002 when other Petitioners did not submit any such reply, it is found that the Petitioners are claiming their right to operate the toll gates on the basis of the lease granted to them by the Syiems who, according to them, are the competent authority to allot and settle the toll gates in favour of the private individuals and therefore the proceeding u/s 133 Code of Criminal Procedure cannot be initiated against them.
I have carefully gone through the order dated 31.7.2002 as well as the impugned order dated 30.8.2002 and also the above mentioned show cause submitted by the Petitioners in criminal revision No. 14(SH)/2002 and 16(SH)/2002. On meticulous perusal of the same it clearly appears that the permission and operation of the toll gates in question have been granted by the Syiem of Mylliem who appointed the Petitioners as lessee for collection of tolls to be charged on the vehicles plying on the National Highways and state PWD Roads. Mr. Thangkhiew, learned Counsel for the Petitioners vehemently argued that the gates in question are the customary gates and as per custom and practice those have always been in existence where from tolls are being charged on the vehicles by Syiems who are the heads of the traditional institutions on being recognised by the Constitution of India and as such Syiems have the jurisdiction to allot and allow the Petitioners to operate those toll gates on lease. Accordingly, the Syiem having the authority under the law, has appointed the Petitioners as lessee for one year from 1.4.2002 to 31.3.2003 to run those toll gates. Mr. N.D. Chullai, the learned Govt. Advocate, justifying the impugned action and remonstrating the contentions advanced on behalf of the Petitioners, forcefully contended that the erection of toll gates and collection of toll by the individuals are not permitted and without any authority of law. Moreso the Syiems have not been empowered to grant lease to the Petitioners for operation of any toll gates in question. All these toll gates are erected illegally and unauthorisedly causing grave public nuisance. I find enough force in the submission of learned Govt. Counsel. Records made available before this Court does not indicate any authority or permission by which the Syiems are allowed to allot and settle the toll gates to any individual under lease to collect tolls from the vehicles by erecting toll gates on the National Highways or state PWD Roads. It is admitted position that the Petitioners are operating the toll gates under the lease granted by the Syiem. This Court after giving thoughtful consideration to the entirety of the factual position of the case, is of the view that the Syiems have no authority or jurisdiction to grant lease to the individuals including the Petitioners for collection of tolls on the National Highways or State PWD Roads and as such the actions of the Petitioners as regards the operation of the toll gates and collection of the tolls therefrom are ex-facie illegal and unauthorised. Such action of collection of tolls by erecting toll gates on the National Highways or State PWD Road puts a clear hindrance and impediment on the free flow of trade and commerce as guaranteed under Article 301 of the Constitution of India. The toll is a kind of tax or charge for the use of roads, bridges, market places and the like and such imposition/collection of toll from the vehicles, is permissible only under the valid legislation enacted or framed by the appropriate authorities. In the instant case, admittedly, the Syiems are not permitted or authorised either by the statute law or by any state action to grant lease to the Petitioners for collection of tolls from the vehicles plying on the National Highways or PWD Roads run by the state. Consequently, this Court unhesitatingly hold that the entire operation of toll gates itself by the Petitioners is void ab-initio. That being the position, this Court does not find any reason to upset the impugned orders.
In the result, all these five petitions are dismissed. No costs.