TMI Blog1955 (9) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... hikesh to Hardwar they are stopped at the Toll Barrier at Kharkhari a place within the limits of Hardwar and are required to pay toll tax on the motor vehicle to the toll clerk of the Municipal Board Hardwar Union at the rate of -/4/- per passenger. They have also got to pay a similar toll When they are carrying passengers from Hardwar to Rishikesh at the Toll Barrier. The toll is realised from the applicants under the provisions of the notification dated 29-10-1941 as amended by a subsequent notification of 22-2-1955. The said notifications affect the right of the petitioners to carry on, business. It works great hardship on the applicants inasmuch as, as a result of this levy the applicants have to increase the fare between Hardwar land Rishikesh and the road transport service has become more or less unpopular as compared to railway service and, the passengers in general prefer now to go by the train rather than by the road transport service. 3. A counter-affidavit' has been filed in the case on behalf of the Municipal Board in which it is 'alleged that the toll is levied against the passengers and that the business of the applicants has not at all been affected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... himself of the alternative remedy and whether or not he is entitled to any relief in that chain has not yet been decided. In my opinion this case goes no further than laying down that in the case where an equally efficacious, speedy and adequate remedy is available, the power under Article 226 of the Constitution should not be exercised. The case where the alternative remedy has already been available it will only lead to an inference that an alternative remedy is equally adequate. But it does not lay down that in all cases where an alternative remedy is available this court will not exercise its power under Article 226 of the Constitution. The powers under Article 226 of the Constitution are very wide. In cases where taxing statute is challenged, this court will not refuse relief to the petitioner on the mere ground that an alternative remedy is available to him. In the case of -- 'Buddhu v. Municipal Board Allahabad', AIR 1952 All 753 (FB) (B), it was held by this Court that in every case in which a fundamental right is involved a decision should be given by the Court on merits of an application under Article 226. There may be cases in which the existence of an al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d is a case in which it cannot be said that the alternative remedy available to the applicant is equally adequate and efficacious and that this Court should not exercise its jurisdiction under Article 226 of the Constitution. There is therefore no force in this preliminary objection. 5. The second objection taken to the maintainability of the present petition by the opposite party is that there has been suppression of material facts in the two petitions Nos. 326 of 1955 and 327 of 1955. It is stated that the fact that a suit on behalf of a large number of owners was pending was not mentioned in the petition. The omission to mention a particular fact does not necessarily disentitle the petitioner to get a relief unless the fact which has been omitted to be mentioned is material to the relief claimed by the applicant. The case of the petitioners is that they are entitled to a relief under Article 226 in spite of the existence of an alternative remedy and in spite of the fact that the alternative remedy has been availed of in this case. As the existence of an alternative remedy in the present case is no bar to the relief being granted to the petitioner the omission to mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation was issued by the State Government by which it was notified under Section 135 (2) that in exercise of the powers conferred by Section 128 (1) (vii) of the aforesaid Act the Municipal Board Hardwar, district Saharanpur had made certain amendments in the toll schedule. The amendments had been sanctioned by the Commissioner under Section 133 (1) of the said Act, By the amendment the rate of tax was increased from -/2/- to -/4/- and Clause (c) of the original notification was deleted. The first notification was issued in exercise of the powers conferred by Section 128, Sub-section (1) (xiv) which provides that the Municipal Board can impose any other tax which the provincial legislature has power to impose in the province under the Government of India Act, 1935. The present amendment has been made in the exercise of the powers under Clause (1), Sub-section (vii) of Section 128 of the Municipalities Act which provides that a Municipal Board can impose toll on vehicles and other conveyances, animals, and laden coolies entering the Municipality. The words entering the Municipality indicate that the toll is charged on vehicles for the use of the roads within the Municipal area. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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