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K.T. Appanna Vs. Corporation of City of Bangalore - Court Judgment

LegalCrystal Citation
SubjectOther Taxes
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 505 of 1961
Judge
Reported inAIR1963Kant338; (1963)1MysLJ571
ActsCity of Bangalore Municipal Corporation Act, 1949 - Sections 286, 296, 297, 367(13), 370, 385(1) and 385(2)
AppellantK.T. Appanna
RespondentCorporation of City of Bangalore
Appellant AdvocateE.S. Venkataramaiah, Adv.
Respondent AdvocateS.V. Subramaniam ; and A.C. Byarappa, Advs.
Excerpt:
- section 26: [ram mohan reddy,j] custody of child rejection of application made under order 7, rule 11 (a) c.p.c., - order passed by family court - decree of divorce by mutual consent and childs custody in terms of the compromise - difficulties in implementation of visiting rights and custody of the child -separate application by the parties under section 26 of the hindu marriage act, 1955 for custody of the child - petitioners application for custody of the female child subject to visitation rights to the respondent-ex-husband was allowed and confirmed by the apex court with certain modifications in the year 2004.- application filed by the respondent under section 26 of the act for permanent and exclusive custody of the minor child, in the year 2006. petitioners objections - at.....somnath iyer, j.a hotel-keeper in bangalore who was called upon by the corporation of the city of bangalore to pay a licence fee of rs. 300/- for obtaining a licence for the year 61-62 to conduct his hotel business, is the petitioner before us. the demand made by the corporation is called in question on more than one ground. the first submission made is that since the licence fee which the petitioner is now called upon to pay was not prescribed by a bye-law made for that purpose under clause (13) of section 367 of the city of bangalore municipal corporation act, 1949, the demand was without the authority of law. the second submission was that since the fee was prescribed by a resolution passed by the corporation, the licence fee was not exigible. the third was that even if the corporation.....
Judgment:

Somnath Iyer, J.

A hotel-keeper in Bangalore who was called upon by the Corporation of the City of Bangalore to pay a licence fee of Rs. 300/- for obtaining a licence for the year 61-62 to conduct his hotel business, is the petitioner before us. The demand made by the Corporation is called in question on more than one ground. The first submission made is that since the licence fee which the petitioner is now called upon to pay was not prescribed by a bye-law made for that purpose under Clause (13) of Section 367 of the City of Bangalore Municipal Corporation Act, 1949, the demand was without the authority of law. The second submission was that since the fee was prescribed by a resolution passed by the Corporation, the licence fee was not exigible. The third was that even if the Corporation had the power to prescribe the licence fee, what was prescribed was excessive since the necessary correlation between the services rendered by the Corporation to the Hotelier and the fee imposed, did not exist.

2. It is common ground that until April 1, 1954, the licence fee payable by the petitioner was only Rs. 200/-a year. By a resolution passed by the Corporation, that licence fee in the case of the petitioner was enhanced to Rs. 300/- with effect from April 1, 1954. But till the year 1961-62 in consequence of a litigation between the corporation and the petitioner, the only licence fee which was paid by the petitioner to the Corporation was Rs. 200/-a year, and although for the year 1954-55 the petitioner did pay the enhanced fee, the excess licence fee was refunded by the Corporation. After the termination of the litigation, the Corporation has now demanded the payment of the enhanced licence fee, and it is the validity of this demand which is challenged in this writ petition.

3. Before considering the various submissions made before us by Mr. Venkataramaiah, it would be necessary to advert to the relevant statutory provisions. Section 286 of the City of Bangalore Municipal Corporation Act, 1949 which would be referred to as the Corporation Act and by which the questions arising in this writ petition are governed, prohibits a person from keeping a lodging house, eating-house, tea-shop, coffee-house, cafe, restaurant, refreshment room, or any place, where the public are admitted for repose or for the consumption of any food or drink or any place where food is sold or prepared for sale, without or otherwise than in conformity with the terms of a licence granted by the Commissioner in that behalf. It is not disputed that since the petitioner's hotel falls within the orbit of this section, it was necessary for him to obtain a licence for conducting the business of a hotelier as he has been doing. Clause (13) of Section 367 of the Corporation Act authorises the Corporation to make bye-laws providing for the regulation and licensing of hotels, lodging houses, boarding-houses and the other establishments referred to in that clause. Section 385 of the Corporation Act on the interpretation of which the decision in this case primarily depends, reads:

385 (1) 'Every licence or permission granted under this Act or any rule or bye-law made under it shall specify the period if any, for which and the restrictions, limitations and conditions subject to which the same is granted, and shall be signed by the Commissioner.

2(a) Save as otherwise expressly provided in, or may be prescribed under, this Act for every such licence or permission, fees shall be paid in advance on such units and at such rates as may be fixed by the Corporation:

Provided that the Commissioner may at his discretion consider any application for the grant or renewal of any Licence or permission though the fee payable therefor has not been paid in advance;

Provided further that not more than one fee shall be levied in respect of any purpose specified in more heads than one of Schedule V if such heads form part of a continuous process of manufacture and the fee so charged shall not exceed the highest fee chargeable in respect of any one of the said purposes.

* * * * * * * *'

It is under the provisions of Sub-section 2(a) of this Section that the petitioner was called upon to pay the prescribed fee of Rs. 300/- in advance. The enhanced fee of Rs. 300/-was prescribed by the Corporation purporting to act under this Clause of Sub-section (2) of Section 385 by a resolution which it passed to that effect. What the Corporation did was to prescribe the fee payable by each person falling within Section 286, the fee payable by him depending upon the rental value of the place where his business was being conducted. The lowest fee payable was Rs. 15/- and the highest was Rs. 300/-.

4. That resolution passed by the Corporation provided that in cases in which the rental value of the place of business is Rs. 250/- and above, the licence fee payable by him was Rs. 300/-. Since the rental value of the premises at which the petitioner was conducting his business exceeded Rs. 250/-, if the resolution passed by the Corporation was within its competence, it is admitted, that the licence fee payable by him was that specified in the resolution namely, Rs. 300/-. But what was contended before us was that the only process for the prescription of a licence fee payable in respect of a licence necessary under Section 286 of the Corporation Act, was that specified in Clause (13) of Section 367 of the Act viz., by the making of a bye-law for that purpose. It was said that unless the fee was prescribed by a bye-law, it was not exigible and that a resolution by the Corporation could not be the source of me authority to prescribe the licence fee payable in respect of licences obtained under the Act. Sustenance for this contention was sought to be drawn from Clause (13) of Section 367 which reads:

367. 'The Corporation may make bye-laws not inconsistent with this Act or with any other law to provide--

* * * *

(13) for the regulation and licensing of hotels, lodging houses, boarding houses, choultries, rest houses, restaurants, eating houses, cafes, refreshment rooms, coffee houses and any premises to which the public are admitted for repose or for the consumption of any food or drink or any place where any food or drink is exposed for sale; * * * * * * *'

5. It was argued that this clause of Section 36/, which was an exhaustive and complete Code on the regulation and licensing of hotels, also conferred power on the Corporation to make a bye-law prescribing the fees payable for licences which may be obtained under Section 286 of the Corporation Act. That the expression 'for the regulation and licensing of hotels' with which Clause (13) of Section 367 opens, was wide and comprehensive enough to include within its ambit, the power to prescribe the fee payable in respect of a licence, and that that being so, the only source of the authority for the prescription of the licence fee was a by-law which could be made under its provisions, was the argument advanced. It is the validity of this postulate with which we are concerned in this writ petition.

6. Mr. Venkataramiah has urged that if a bye-law could be made under Clause (13) of Section 367 regulating a note) or licensing it, there would be no justification for the supposition that the power of regulation and licensing which may be exercised through a bye-law under that clause, did not include the power to prescribe the fee payable in respect of a license which a person was bound to obtain under Section 286. In support of his proposition that the power of 'regulation and licensing' included also the power to charge a reasonable sum for issuing a licence, our attention was asked to paragraph 662 of Dillon's Book on Municipal Corporations Volume II (Edition V).

It is true that in that paragraph what was observed by the learned Author was that under the authority 'to license and regulate', a Municipal Corporation may by ordinance require a licence to be first taken out and charge a reasonable sum for issuing the same and for keeping the necessary record. It is, in my opinion, not very useful to depend upon an observation to that effect which may be contained in a Book on the general powers of Corporations, since the expression 'regulation and licensing' occurring in a statute must be interpreted in a manner which best fits into the scheme of the law in which that expression occurs having regard to its general scheme and object. Although the expression 'regulation' has, it cannot be disputed, reference to some kind of a general power of control and may involve the power to impose restrictions on the exercise of a trade which is regulated both as to time and as to place for the prevention of nuisance or for the maintenance of order, that general meaning to be given to that expression may not always be the only meaning which could be given to it in every law in which that expression occurs.

Likewise, although the expression 'licensing' which refers to a power which may be exercised for the governance of a trade or business which is sought to be licensed in that way and although that expression may in conceivable contexts include the power to prescribe a fee for the licence which is directed to be obtained or has to be obtained, if the statutory provision in which that expression occurs does not permit the understanding or interpretation of that expression in that way and the law in which that expression Is employed contains other provisions which make it clear that that expression does not include the power to presence a fee, we should not, in my opinion, fall back upon the general meaning to be given to the expression 'licensing or regulation' and hold that the power to prescribe a fee is one of the concomitants of the power of regulation and licensing in every case.

7. Now, as ordinarily understood, the licence which Is directed to be obtained under Section 286 of the Act and the bye-law which authorises licensing of the trades referred to in Clause (13) of Section 367 have reference to an authority or privilege to do something which would be otherwise wrongful or illegal or inoperative. If Section 286 of the Act says that a hotelier must obtain a licence, what It expects the hotelier before he conducts his business is to obtain the authority which is requisite for that purpose. Likewise if Clause (13) of Section 367 permits a bye-law to be made for licensing of a hotel or for its regulation, what it empowers is to make a bye-law specifying many things which may be done for the purpose for which that bye-law is authorised. The regulatory part of the bye-law may include various acts of control which may be exercised by the Corporation for the control of the hotel business. Likewise the licensing part of the bye-law may specify the conditions, restrictions and limitations subject to which the business of a hotel may be conducted.

8. But it was argued that a bye-law may be made by the Corporation not only for this purpose but also for the purpose of prescribing a fee which has to be paid by a licence before he could obtain a licence or in order to obtain it. If nothing else could have been said about this matter and if the question entirely rested on the provisions of Section 286 and Clause (13) of Section 367 of the Corporation Act, it might have been possible to think that Mr. Venkataramiah's submission was without an answer.

9. But it seems to me that the most complete and effective answer to this argument which was advanced before us is what is contained in Section 385 (2) of the Act. Sub-section (1) of that section enumerates the contents of a licence or permission granted under the Act or under any rule made thereunder or under a bye-law made under Section 367. What it directs is the specification in that licences or the permission the period for which the licence or permission was granted, the restrictions, limitations and conditions subject to which the licence or the permission as the case may be, was issued and further directs that the document should contain the signature of the Commissioner. Sub-section (2) (a) then proceeds to state that unless otherwise expressly provided, every application for such licence or permission should be accompanied by the payment in advance of a fee computed at the rates as may be fixed by the Corporation.

What makes me disposed to take the view that Mr. Venkataramiah's argument should not be accepted is the most revealing contrast between the language of Sub-section (1) of this section and that of Sub-section (2). Sub-section (2) makes it clear and expressly states that the rates at which the licence fee should be paid are those 'fixed by the Corporation', while Sub-section (1) refers to a licence or permission granted 'under this Act or any rule or bye-law made under it'. If Clause (13) of Section 367 which authorises a bye-law for the regulation and licensing of a hotel does not in express terms state that that bye-law may be made for the purpose of prescribing a fee payable for a licence which is to be obtained by a hotelier, and, IT sub-section (2) of Section 385 says that that licence fee is what may be fixed by the Corporation, and if in addition, the licence in respect of which that fee may be fixed by the Corporation is referred to in Sub-section (1) as a licence which is required by the Act or rule or bye-law, it seems to me that it would be impossible for anyone to think that the fee has to be prescribed by the Corporation only by a bye-law and not in the way in which it is generally fixed viz., by a resolution to that effect.

Mr. Venkataramiah has not explained to us satisfactorily why Sub-section (1) speaks of a licence 'under a bye-law' and why Sub-section (2) does not refer to a tee fixed by such bye-law, and why on the other hand Sub-section (2) speaks of a fee fixed by the Corporation. If Sub-section (1) refers to a licence required by a bye-law and Sub-section (2) speaks of a fee fixed by the Corporation, what I think abundantly clear, in my opinion, is that the fee payable in advance is to be fixed by the Corporation and not by the bye-law. Any other interpretation would leave unexplained why Sub-section (2) does not speak of a fee fixed by a bye-law and why it speaks of a fee fixed by a Corporation.

10. In my opinion, the true construction to be placed upon the provisions of Sub-section (2) of Section 385 is to treat that sub-section as the source of the authority of the Corporation to fix the fee payable for a licence to be obtained under Section 286 or under a bye-law made under Clause (13) of Section 367. While section 286 and Clause (13). of Section 367 have reference to a licence and the latter statutory provision has reference to a bye-law which may be made for the purpose of licensing a hotel and therefore is in the nature of a general provision relating to the licensing of a hotel, Sub-section (2) of Section 385 is a special and independent provision creating in the Corporation the power to prescribe a fee for a licence which may be required by a bye-law made under Clause (13) of Section 367 and under Section 286. If therefore the Legislature authorised a bye-law generally for the purpose of licensing and enacted a special provision like Section 385 (2) confiding the power to fix a fee for licences to the Corporation, the Corporation becomes the repository of the power to fix a fee without being under the obligation to make a bye-law for that purpose under Clause (13) of Section 367.

We must, in my opinion, place upon the provisions or Section 286, Clause (13) of Section 367 and Sub-section (2) of Section 385 an interpretation which will be an interpretation which harmonises every one of these three statutory provisions giving effect to each one of them and every part thereof. While the interpretation suggested by Mr. Venkataramiah that the prescription of a licence fee may be made only by a bye-law made for that purpose under Clause (13) of Section 357 will make the expression 'as may be fixed by the Corporation' occurring in Sub-section (2) (a) of Section 385, unmeaning and devoid of content, the interpretation that Section 385 (2) (a) is a special provision under which the donee of the power to prescribe the fee to be paid in respect of a licence is the Corporation which may exercise that power without recourse to a bye-law, is what will not take away from Section 385 (2) (a) the content ascribable to the words 'as may be fixed by the Corporation' occurring in that clause.

11. I do not see any reason why we should take the view that, although Sub-section (2) (a) of Section 385 expressly states that the licence fee may be fixed by the Corporation which means that it may be fixed by the Corporation by a resolution, the power exercisable by the Corporation in that way is only for the purpose of making a bye-law under Clause (13) of Section 367. I do not also feel disposed to take the view that what makes the licence fee exigible is the fixation of that fee by a bye-law made under Clause (13) of Section 367 and not its determination by the Corporation in the exercise of its power expressly conferred on it by Section 385 (2) (a).

12. I am therefore prepared to say that there is nothing in Clause (13,) of Section 367 and in the Corporation Act, when it is interpreted in; the context of Sections 286 and 385 (2) of that Act, which would justify the interpretation that the scale of fees in respect of a licence to be obtained under Section 286, should be prescribed only by a bye-law and not by a resolution of the Corporation. In my opinion, whatever may be the purpose for which a bye-law under Clause (13) of Section 367 may be made, once a licence is prescribed by a bye-law made for that purpose it would be within the competence of the Corporation to prescribe the fee payable in respect of such licence.

13. In the view that I take, the argument founded on Section 370 of the Act which says that no bye-law made by the Corporation under the Act shall have any validity unless and until it is sanctioned by the Government can have little relevance. So long as it is not necessary for the Corporation to make a bye-law for the prescription of the licence fee and so long as a resolution passed by it is efficacious enough for that purpose, the requirement of Section 370 that sanction should be obtained of the Government for a bye-law made under Section 367 would have no materiality.

14. The argument which was at one stage advanced that that interpretation is likely to create a clash of exercise of power under Sections 367 and 385 (2) is, to my mind, quite insubstantial. What was envisaged by Mr. Venkataramiah was that it was not inconceivable that a bye-law may be made under Clause (13) of Section 367 prescribing a particular scale of fees and a resolution prescribing an entirely different scale of fees was equally possible under Section 385 (2) of the Act. The apprehension, in my opinion, is utterly groundless since the authority which makes the bye-law is the same which exercises the power under Section 385 (2) viz., the Corporation, and no one can suggest that that authority would make a bye-law under Clause (13) of Section 367 entirely at variance with its own resolution under Section 385 (2) of the Act.

I am also not impressed by the submission made that the expression, 'as may be fixed by the Corporation' means as may be fixed by a bye-law made under Clause (13) of Section 367 of the Act or as may be fixed as explained by Mr. Venkataramiah under the other statutory provisions contained in the Act which have relevance to the exercise of that power. This argument is really the same argument which has been repelled by me put in a different form. Further, this argument suffers from the same infirmity which 1 have already indicated viz., the absence in Section 385(2) of words justifying that interpretation. Mr. Venkataramiah was unable, to explain why is Sub-section (2) of Section 385 directed the fixation by the Corporation of the licence fees in accordance with a bye-law made under Sub-section (13) of Section 367 of the Act. there were no words to that effect in that sub-section. That the Legislature was making a distinction between, the power to make a bye-law and the power to prescribe a licence fee independent of the bye-law is plainly revealed by the contrast between the language in which Sub-section (1) is worded and that in which Sub-section (2) is worded.

15. There is one more reason why we should come to the conclusion that, under the scheme of the Corporation Act, the authority which has the competence to prescribe the licence fee is the Corporation. Sub-section (1) of Section 385 speaks of the three categories of licences. The first of them is a licence granted under the Act. The second is one granted by the rules made under the Act, and the third is a licence granted under a bye-law. Within the first category falls a licence which has to be obtained under Section 297 of the Act which requires a person who wishes to use his premises for any of the purposes mentioned in schedule V to the Act to obtain a licence for such use. But Section 297 does not specify the fee to be paid by such person for the licence to be so obtained by him. But according to the provisions of Section 385 (2), the fee payable for that licence has to be paid by the licensee in advance at the rate fixed by the Corporation.

The position, therefore, is while the Act requires a licence, it does not prescribe the fee to be paid for that licence, and when we asked Mr. Venkataramiah to tell us who under the Act had the authority to prescribe the fee payable for such licence and whether it was not the Corporation which was authorised to fix that fee under sub-section (2) of Section 385 that could so fix it, Mr. Venkataramiah was driven to construct an argument that the fee payable even for a licence under Section 297 of the Act had to be prescribed by a bye-law made for that purpose under Clause (16) of Section 367 of the Act. It is plain that that clause of Section 367 on which Mr. Venkataramiah depends can have no relevance whatsoever to the fixation of the fee payable under Section 297 since that clause provides for the sanitary control and supervision of places used for any of the purposes specified in Schedule V and of any trade or manufacture carried therein. When this was pointed out to Mr. Venkataramiah that this clause had no materiality for the purpose of Section 297, he had to admit that it was so.

But, however, what is abundantly clear is that while Section. 297 of the Act prescribes a licence, there is no other provision in the Act save Sub-section (2) of Section 385 which provides for the prescription of a fee for that licence. Section 367 of the Act which authorises bye-law to be made for various purposes does not enumerate the prescription of a fee for a licence under Section 297 as one of the purposes for which a bye-law could be made for that purpose. No other provision was shown to us creating power in any one to prescribe the fee for a licence under Section 297. If that be the position ana Section 385 (2) is the only section which authorises the fixation of the fee and that sub-section says that that tee may be fixed by the Corporation, what is more than perfectly manifest would therefore be that the fixation of a fee for a licence under Section 297 is what may be made by the Corporation in the exercise of the power conferred under Section 385 (2) and that it may so fix the fee by passing a resolution to that effect.

Likewise it is equally clear that the position would be the same in respect of licences granted under the rules under the Act although there has been no discussion about it before us in the course of the argument. If therefore it becomes indisputable that the Corporation is the authority which has the power to fix a fee for the licence under Section 297 and that it may do so by a resolution under Section 385(2) of the Act, there is, I think scant reason for thinking that the fixation of a fee for a licence granted under Section 286 of the Act or for a licence which is made obligatory by a bye-law made under Section 367 (13), was not within the competence of the Corporation in the very same way in which it was within its competence to pass a resolution for the fixation of a fee for a licence under Section 297. We cannot interpret the expression 'as may be fixed by the Corporation' in one way for the purpose of Section 297 and in another way for the purpose of Section 286 or for the purpose of Clause (13) of Section 367.

If that sub-section is the source of the power of the Corporation to fix a fee for a licence under Section 297 it should also constitute the source for the fixation of a fee for a licence under Section 286. It would be seen from Section 97 of the Act that many taxes which may be imposed by the Corporation under its provisions, are taxes which may be imposed by the Corporation. That the Corporation may impose those taxes by a resolution to that effect passed under Section 98 of the Act is plain. If the Corporation has been bestowed the power to impose taxes by a resolution, it is not, in my opinion, right to think, although Section 385(2) expressly confers the power on the Corporation to prescribe a fee for licences, that the intention of the Legislature was that the prescription of that fee is to be made only by a bye-law made under Clause (13) of Section 367 and sanctioned by the Government under Section 370.

16. What I have said, in my opinion, is an equally effective answer to the argument advanced by Mr. venkataramiah that the prescription of a licence fee was a matter of such great importance that the Legislative intent was that that fee should be prescribed only by a bye-law with the sanction of the Government.

17. There is yet another reason supporting the view that the Corporation was created by the Corporation Act, the authority to prescribe the licence fee. Until the enactment of the Corporation Act, the law operating in that regard was the Mysore City Municipalities Act, 1933. Under Section 49 of that Act, the City Municipal Council corresponding to the Corporation was authorised to make rules with the approval of the Government, and, under Clause (n) of that section, power was conferred on the Municipal Council to make a rule prescribing the fee for a licence required by the Act. But under the Corporation Act, the corporation was not required to make a rule to fix the licence fee nor was power to fix such fee by a bye-law expressly conferred by Clause (13) of Section 367 of the corporation Act, but, instead, that power was bestowed on the Corporation by Sub-section (2) of Section 385. The fact that it was so done is in my opinion, the clearest indication of the Legislative intent that the prescription of a licence fee was taken out of the scope of a bye-law and was entrusted to the Corporation to be made in the exercise of its power conferred by Section 385(2).

18. The challenge to the demand made to the competence of the Corporation to prescribe a licence fee without recourse to a bye-law must, in my opinion, therefore fail.

19. The next question to which I should proceed to refer is the argument that even if the Corporation had the power to prescribe the licence fees, there has been an excessive exercise of that power. It was urged that since the licence fee is a fee between which and the services to be rendered in respect of the licence obtainable on payment of such fee, there should be the necessary correlation, and as there was no such correlation in this case, the fee demanded of the petitioner, was not exigible. In the affidavit produced along with the application the petitioner states that the value of the services rendered by the Corporation to each of the many hotels of Bangalore, was not more than Rs. 25/- and no expense exceeding that amount was being incurred by the Corporation in respect of the services rendered by it. But in para 3 of the counter affidavit of the Corporation, that allegation has been more than sufficiently traversed. It has been explained in that part of the counter affidavit that while in the year 1951 when the maximum licence fee payable was Rs. 200/-which the petitioner was paying, there were only 589 hotels, that number had increased to 945 in the year 1961 which is the year with which we are concerned in this writ petition.

It is also further explained that while for the year 1950-51 the licence fee recovered in respect of those hotels was Rs. 21,395/- at the old rates, that recovered for the year 1960-61 at the same old rates was Rs. 46,620/-. For the year 1961-62, according to the statement contained in the counter affidavit, the licence fee recovered at the new rates was Rs. 63,556/-. It is thus seen that the fee which is recovered by the Corporation at the enhanced rate during 1961-62 does not exceed Rs. 17,000/- over and above the licence fee which was recovered at the old rates and does not represent more than about a third of the licence fee which was being originally recovered In Clause (d) of that paragraph of the counter affidavit what the Corporation proceeds to explain is that the expenditure incurred on the Health Department of the corporation has increased from Rs. 19,73,771/- which was the expense incurred in the year 1950-51 to Rs. 44,54,353/-which was the expenditure incurred for the year 1960-61. It will thus be seen that the expenditure incurred on the Health Department has increased by more than 125 per cent whereas the licence fee which was increased from Rs. 200/- to Rs. 300/- in the case of the petitioner has not been enhanced by more than 50 percent.

20. In Clause (e) of that paragraph of the counter affidavit the Corporation has enumerated the various items of services rendered to the hoteliers. They are as follows:

'(a) Environmental sanitation;

(b) Clearance of refuse and garbage;

(c) Spraying surrounding areas with insecticides;

(d) Personal services by the examination of food and food handlers working in the establishment;

(e) Prevention of food adulteration;

(f) Periodical inspections by the various Health Officers and Inspectors;

(g) Issue of licences;

(h) Propogation of Health Education by pamphlets, pesters etc; and

(i) Underground drainage and water supply.' That every one of these 9 items of services referred to in that part of the counter-affidavit is what a Corporation is obliged to render to a hotelier is, in my opinion, indisputable.

21. In Clause (f) of the counter affidavit, what is next adverted to by the Corporation is the increase in the salaries of the staff, and according to the allegation, there is an increase of 300 percent during the last ten years. That clause proceeds to state that the expenditure on conservancy has increased from Rs. 12 lakhs to Rs. 27/-lakhs during the relevant period.

22. In Clause (g) what has been pointed out is the expenditure incurred amounting to 2 1/2 lakhs of rupees for the purchase of lorries for the clearance of refuse which has been steadily accumulating and to the appointment of additional staff in the Health Department of the corporation.

23. The other clauses of this paragraph of the counter-affidavit refer to the establishment of health centres in the different areas of the Corporation for medical examination of food handlers and for their education in their spheres of work, and to the increase in expenditure in the drainage system and to the employment of additional staff to facilitate the disposal and scrutiny of applications for licences ana their issue.

24. This counter affidavit which refers to all these items of expenditure is accompanied by a tabular statement enumerating under each item of service rendered by the Corporation the expenses incurred.

25. It seems to me that the material contained in the counter affidavit is more than a complete answer to the argument advanced on behalf of the petitioner that the enhancement of the licence fee is not attributable to the increase in the cost of the expenditure which the Corporation has to incur for the various services to be rendered by them to the hoteliers within its area.

26. Mr. Venkataramiah, however, contended that the expenses incurred over the food handlers cannot be taken into consideration for the purpose of deducing the existence or otherwise of the correlation between the services and the amount of fee. He stated that in respect of each of the food handlers appointed by Corporation, every hotelier is asked to pay annually Rs. 2/-. But Mr. Venkataramiah had to admit that what was paid by the hoteliers for these food handlers did not exceed Rs. 2/- a year and that the total payment thus made by the hoteliers did not exceed Rs. 40,000/- a year which is a very small fraction of the total expenditure incurred by the Corporation in regard to the very many services rendered by it, as stated above.

27. But it was said that the expenditure incurred by the Corporation amounting to more than Rs. 44 lakhs over Health Department and Rs. 27 lakhs over the conservancy and for other purposes, was not an expenditure incurred exclusively for the establishments of the hoteliers or for the services to be rendered to them but for the services rendered by the Corporation generally to all the rate payers within the area and could not form the criterion for the determination of the existence or otherwise of the required correlation.

28. But Mr. Venkataramiah had to admit that it was not possible for the Corporation to set apart an exclusive establishment for the services to be rendered to the hotelier or to the establishments owned by them, and that since the services rendered by the Corporation to the hoteliers were of the same nature if not more extensive than those which were rendered to the other rate payers within the area of the Corporation, it was inevitable that the total expenditure incurred by the Corporation in that way must necessarily include the expenditure incurred for the services rendered to the other rate payers. In a case like this it is not necessary for the Corporation to establish with mathematical nicety the exact correlation between the fee prescribed and the services rendered. What should be established is that the prescribed fee, on a proper construction of the materials produced before us, is commensurate with the services rendered. If it could be said as was said in Varadachari v. State of Madras, : AIR1952Mad764 , on which Mr. Venkataramiah depended that the entire expenditure incurred by the Corporation over all the rate payers within its area had been debited to the hoteliers in the form of fees or that a grossly disproportionate share had been demanded of them, it would of course follow that the required correlation did not exist.

But it is, I think, impossible for Mr. Venkataramian to insist upon the Corporation producing before court precise information as to the expenditure which is attributable to the hoteliers as distinct from the expenditure incurred over the other rate payers. In the nature of things, it is impossible for an authority like the Corporation to produce proof of correlation in that way. What is indisputable from the counter affidavit produced by the corporation is that the totality of the expenditure incurred over the various spheres of the Corporation activities has increased by 125 per cent during the period between 1950 and 1960, In some instances the increase has been even greater as in the case of the expenditure over the conservancy arrangements. If the enhancement of the licence fee is only by 50 percent and the fee recovered by the Corporation by reason of such enhancement was just about Rs, 17,000/- over and above the fee collected during the year 1960-61, I am not prepared to say that production of any further proof was necessary by the Corporation of the existence of the required correlation.

29. It was, however, contended that not more than a sum of Rs. 25/- was the expenditure incurred by the Corporation for each of the 945 hoteliers and that being so, the demand for payment of 3 sum of Rs. 300/- by the petitioner was indefensible. This submission, in my opinion, was only to be made to be repelled for its own unreasonableness. Mr. Venkataramiah could not explain why if what was incurred over the petitioner was only Rs. 25/- a year in the form of services, the petitioner continued to pay during all these many years a sum of Rs. 200/-towards the licence fee and why that impost was not questioned by the petitioner on the ground of unreasonableness, until now. It is also significant to observe that even in this writ petition what is challenged by the petitioner is only the enhancement of the fee from Rs. 200/- to Rs. 300/-.

30. There remains only one more submission to be considered, and that was an argument founded on the omission on the part of the Corporation to claim licence fee at the enhanced rate between the years 1954 and 1961. The explanation for this inaction on the part of the corporation was that there was a pending litigation which terminated in this Court only in the year 1961 between the Corporation and the petitioner. However that may be, if the prescription of the licence fee demanded for the year 1961-62 under Section 385 (2) was within the competence of the Corporation as indeed it was, it is no answer to the demand to say that the Corporation acquiesced in the payment of a smaller fee during the preceding years.

31. In the result, this petition is dismissed. In the circumstances, there will be no order as to costs.

G.K. Govinda Bhat, J.

32. I agree.


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