Chennakesav Reddi, J.
1. This is an appeal preferred against the order of our learned brother P.A. choudary J., by the petitioner in W.P. No. 937 of 1981. By which the writ petition was dismissed.
2. The relevant facts that resulted in the filing of the writ petition are these the petitioner is the Begum Bazar Fish Marchants association. All the members of the Association are fishmongers. They have their shops in the Begum Bazar market. They have been granted licences by the commissioner of the Municipal corporation of hyderabad to sell fish in the stalls in the Municipal market the municipal market at Begum Bazar has 39 stalls the market belongs to the hyderabad Municipal corporation and the market is meant exclusively for the sale of wet fish. The Municipal corporation of Hyderabad, maintains some other markets for the sale of wet fish. They are located in secunderabad Nizam shahi Road Nimboli adda panja Gutta etc.
3. The Hyderabad Municipal corporation levies different rates of stallages, rents and fees in municipal markets and slaughter-houses for the use and occupation of a stall or open space in a municipal market and for the right to expose fish for sale at the rates fixed the stallages and rents and the rights to expose wet fish for sale in all the markets except the one at Begum Bazar but the right to collect charges imposed by the corporation in so far as the Begum Bazar market is concerned. Is sold by public auction.
The commissioner issued a Notification on 10-2-1981 bringing it to the notice of the intending bidders that the right to collect fees on the sale of wet fish at Begum Bazar market will be sold in the public auction on 27-2-1981. Aggrieved against the said Notification the petitioner-Association has filed this writ petition questioning the right of the Hyderabad Municipal corporation to auction the right to collect fees on the sale or the right to expose goods for sale. It is also contended in the writ petition that hte fees chargeable under S. 534, Hyderabad Municipal corporation Act, 1955 (hereinafter referred to as the Act) is a licence fee for the right conferred to sell and theat once a licence is granted after collecting the fees, the authority cannot collect any fees the authority cannot collect any fees for each transaction of sale and impose a fee each time the goods are brought into the market. It is further submitted that the power exercised by the corporation in auctioning only the right to collect fees on the sale in the Begum Bazar market and not in respect of the other markets which are also maintained for the same purpose is discriminatory and violative of art. 14 of the Constitution.
4. The writ petition is resisted by Municipal corporation contending that the Municipal corporation has got the power under S. 534 of the Act to sell the right to collect the fee by conducting public auction and that the contractor who acquires such right as the highest bidder at the auction will collect at the rates fixed by the corporation and that there is no express bar in S. 534 of the Act which disables the Municipal Corporation from putting public auction of its right to collect fees for the right of the members to sell or expose goods for sale in the municipal market. It is also pleaded that the petitioners are in no way affected by the auction and no injury or loss in caused to the petitioner-association or any other vendors and that the writ petition is therfore not maintainable. The writ it is submitted has become infructuous since the auction in pursuance of the impugned notification for the year 1981-82 has been held and fresh auction was again held for 1982-83 also on 8-4-1982.
5. The learned single Judge dismissed the writ petition holding that as an owner of the Municipal market the corporation has undoubted authority under S. 534 of the Act to charge rent and fee for use and occupation of the stalls open space etc., and that as a proprietor of the property it can employ the agency of a contractor to collect these charges. The learned Judge also held that the fee collected for the righ to expose wet fish for sale is not a 'Tax' he also negatived the contention that there is practice of discrimination against the petitioner-Association in auctioning the right to sell fish in the Begum Bazar market while no such auction is held for the right to expose for sale the wet fish in the other markets. Consequently the writ petition was dismissed. In this writ petition was dismissed. In this writ appeal all the three questions that were raised and repelled by the learned single Judge are reiterated before us.
6. The first question relates to the power of th Municipal corporation of Hyderabad to auction the right to collect fees on the sale or the right to expose goods for sale under S. 534 of the Act section 534 of the Act reads as follows:-
'Section 534 Levy of stallages, rents and fees in municipal market or slaughter houses:-
The commissioner may-
(A) Charge for the occupation or use of any stall shop standing shed or pen in a municipal market or slaughter house and for the right to expose goods for sale in a municipal market and for weighing and measuring goods sold in any such market and for the right to slaughter animals in any municipal slaughter-house such stallages, rents and fees as shall from time to time be fixed by him. With the approval of the standing committee. In this behalf or.
(B) with the approval of the standing committee from the stallages rents and fees leviable as aforesaid or any portion thereof for any period not exceeding one year at a time : or
(C) put up to public auction or with the approval of the standing committee dispose of by private sale the privilege of occupying or using any stall shop standing shed or pen in a municipal market or slaughter-house for such term and on such conditions as he shall think fit to impose'.
7. Clause (a) to S. 534, empowers the commissioner to charge such stallages, rents and fees as shall from time to time be fixed by him for the use and occupation of any stall. Shop standing shed or pen in a municipal market and for the right to expose goods for sale in a municipal market . Clause (c) of the section authorises the commissioner to put up to public auction or to dispose of by private sale, with the approval of the standing committee, the privilege of occupying or using any stall, shop standing shed or pen in a municipal market or slaughter house. It is clear that cl. (C) does not empower the commissioner to auction the right to expose goods for sale in a municipal market. The learned counsel for the petitioners contends that the omission to confer authority to put to public auction the right to expose goods for sale in a municipal market is intentional and deliberate since cl. (A) specifically confers on the commissioner to charge fees for the right to expose goods for sale in a municipal market. He therefore contends that the commissioner has no power to auction the right to collect fees for the right to expose goods for sale in the municipal market. He argues that the section only empowers the commissioner to collect fees and not to auction the right to collect fees for the right to sell or the right to expose the goods for sale. In Nalinakhya Bysack v. Shyam sunder Haldar. : 4SCR533 it was observed that in interpreting a statute 'It is not competent to any Court to proceed upon the assumption that the legislature has made mistake the Court must proceed on hte footing that the legislature intended what it has said even if there is some defect in the phraseology used by the legislature the Court cannot aid the Legislature's defective phrasing of an Act or add and amend or by construction. Make up deficiencies which are left in the Act even where there is a casus omissus: it is for others than the courts to remedy the defect'.
8. The observations of the Supreme Court in K.M. Vishwanatha pillai v. K. M. Shanmugham pillai. : 2SCR896 were also referred to. In that case the Supreme Court observed that the rules of construction of statute do no permit insertion of any words.
9. The learned standing counsel for the corporation submits that the corporation has been auctioning the right to collect the rents and fees from persons occupying the stalls and open places since several years and that nobody objected to or challenged the same and that this long delay is fatal to the maintainability of this writ petition.
10. As observed in Grace Brothers proprietary LTd. The common wealth. 72. Commonwealth LR 269 at P. 289.
'Time does not run in favour of the validity of legislation. If it is ultra vires, it cannot gain legal strength from long failure on the part of lawyers to perceive and set up its invalidity. At best lateness in an attack upon the constitutionality of a statute is but a reason for exercising special caution in examining the arguments by which the attack is supported'.
11. Therefore long delay or failure on the part of the petitioners to question the legality of the action does not give legal strength if the action is really ultra vires the statute.
12. However it is claimed by the learned standing counsel that as the owner of the municipal market the corporation has a right to collect or engage an agent to collect rents and fees for use and occupation of its property and that there is no bar enacted in hte Act. From engaging an agent to collect. According to the learned counsel even if the auction bidder collects any fees he collects only at the rates fixed by the corporation as notified under S. 536 of the Act. And therefore, no prejudice is suffered by the petitioners. Begum Bazar municipal market is owned and maintained by the Hyderabad Municipal corporation. As proprietor of the property the corporation has a right to collect or to employ the agency of a contractor for the collection of the rental fees stallage. Etc. That it has the authority to charge or impose. There is no prohibition in cl. (C) of S. 534 of the Act from employing any such agency. In the absence of any such prohibition it is impermissible to insert any such words of prohibition in the statute. Further, any such prohibition would result in great hardship and inconvenience to the corporation in the collection of the rents on its property which can easily be avoided. We therefore hold that the commissioner has authority under S. 534 of the Act to auction the right to collect fees on the sale or the right to expose goods for sale in the municipal market.
13. It is then contended that the members of the petitioner-Association have been granted trade licences under S. 528 of the Act to sell or expose for sale any Article in the municipal market and therefore they have a right to do business and expose goods for sale in the stalls and that the authorities can only levy and collect stallage or rents and fees but not any fees on their right to sell or the right to expose goods for sale in the stall. He submits that any such levy after a trade licence is granted on the sale or the right to expose for sale any goods in the municipal market stall amounts to levy of 'tax' and not a 'fee'. He submits that what S. 534 empowers to impose is only a fee and therefore should bear a reasonable proportion for the services rendered by the corporation to those who pay that fee. It is admitted in the counter-affidavit that members of the petitioner-Association were selling wet fish in the stalls leased out to them and they have been issued trade licences. The corporation is charging rent for the occupation of the stalls wherein they expose fish for sale. It is the grievance of the petitioner-Association that the corporation is levying fees for the right to bring fish for sale to the stalls even from persons who have been granted licences to sell fish in the stalls of the municipal market. The corporation can undoubtedly. Collect rent for the stalls. But can the corporation still collect any fees as fixed by it from these stall holders on every basket or cart-load of fish they purchase and bring from outside into the stalls for sale? We think that such collection of fee from those lessees or licencees of stalls who are also holders of trade licences on the fish brought into the stall for sale or exposure for sale at the rate mentioned in the notification will amount to 'tax' and not fee'. We must hasten to add that this does not mean that the corporation is not entitled to collect the stallage as fixed by it.
14. The learned standing counsel for the corporation however argues that there are several persons who are not trade licencees but who bring fish from outside to the Begum Bazar fish market and expose them for sale and that all the merchants from the other fish markets purchase the fish in auction and take the fish to their respective markets for sale as retail dealers and that the Municipal corporation is entitled to collect the charges for occupation or use of the open space in the market area at the rates fixed by the corporation from time to time from these persons who bring fish from outside. The corporation is clearly entitled to collect fee from persons who bring fish from outside into the begum Bazar market and expose wet fish for sale in the open space in the Begum Bazar market. They are not prohibited from auctioning the right to collect the fee for the exposure of wet fish for sale from those persons who bring fish from outside into the market. But when the lessees of the stalls themselves purchase and bring fish from outside in baskets or carts etc., for sale the corporation or its agent is not entitled to collect any fee from them, since that would not be 'fee'.
15. The distinction between 'tax' and 'fee' has been lucidly pointed out in Government. Of Andhra Pradesh v. Hindustan Machine Tools ltd. : AIR1975SC2037 . Chandrachud., j., (as he then was) speaking for the Supreme Court observed:
'Fees are a sort of return or consideration for services rendered, which makes it necessary that there should be an element of quid pro quo in the imposition of a fee. There has to be a correlationship between the fee levied by an authority and the services rendered by it to the person who is required to pay the fees : 1SCR1005 , : 3SCR475 :
'But the true legal position as stated by Mukherjee J., in the commr. Hindu Religious Endowments, Madras v. Shri Lakshmindra Thirtha swamiar of shri shiruru Mutt, : 1SCR1005 is that 'it is absolutely necessary that the levy of fees should on the face of legislative provisions be correlated to the expenses incurred by Government in rendering the services'. In the total absence of any data showing such a correlationship the levy of permission fee has to fail'.
16. In this case already the menbers of the petitioner-Association have taken trade licences paying the fee therefore, and they are paying stallage charges. It is stated in the counteraffidavit that the corporation. As the owner of the market maintains the market. Therefore it is entitled to collect the licence fee for the maintenance of the market. It is also entitled to collect rents for the stalls constructed by it Beyond this. If it charges anything more for the sale of fish from these licenced fishmongers, it can be challenged for its incompetency as the charge is not 'fee' but 'tax' This view of ours gets support from the decision of the Madhya pradesh High Court in RamKripal sheoprasad v. Municipal committee Bilaspur : AIR1963MP240 , the Madhya pradesh High Court ruled that the impost of fees on the sale of cattle is a tax and not a fee and was, therefore beyond the powers of a Municipal committee. In that case the municipal committee has imposed fees on the sale of cattle at the rate of three pies per rupee on the sale price of such cattle. The right to realise these fees was sold by auction and one Ramkripal sheoprasad became the highest bidder in the public auction. The contract was duly reduced into writing between Ramkripal sheoprasad and the Municipality. Ramkripal and a part of the bid amount at the time of the auction. But he committed default in payment of the balance of the amount. Then the Municipality terminated the contract and filed a suit for realisation of the balance of the amount and however realised the amount as a result of the resale for the rest of the year. The trial Court held that the impost of fees itself was illegal. But, however since Ramkripal had enjoyed the rights and derived profits under it he was estopped from challenging its legality. On appeal the High Court held that imposition of fee on the sale of cattle is a tax and not a fee.
17. Lastly. It was urged that the procedure adopted by the respondent in auctioning the right to collect fees on the sale or the right to expose wet fish for sale in the Begum Bazar market while in other markets the right is not auctioned is discriminatory and offends art. 14 of the Constitution but it is clear from the counter-affidavit that except the Begum Bazar Fish Market the other markets are selling various commodities and not exclusively fish. It is thus clear that the Begum Bazar market is not similarly placed in all relevant factors as the other markets in the city. Therefore it is not possible to uphold the plea of discrimination.
18. To sum up our conclusions:-
1. The commissioner has power under sec 534 of the Act to put up for public auction the right to collect fees on the sale or the right to expose goods for sale in the municipal market.
2. The imposition of any fees on every basket or cart-load of wet fish brought for sale or to expose for sale in the stalls of the Municipal market Begum Bazar. By the licenced traders is a 'tax' and not fee because the element of quid pro quo between the payer of the 'fee' and the authorities charging it has not been estalished and the corporation is not competent to impose 'tax'.
However in so far as the persons who bring wet fish from outside into the Begum Bazar market to expose wet fish for sale in the open space. The right to collect the fees from them or auction the right to collect the fees on the sale or the right to expose fish for sale is valid and unquestionable.
3. The action of the Municipal corporation of hyderabad. In auctioning the right to collect fees on the sale or the right to expose wet fish for sale in the Begum Bazar market alone is not discriminatory and does not offend Article 14 of the Constitution as the other markets are not similarly placed in all respects.
19. Then there still remains the question, what is the nature of the relief that can be granted to the petitioner. The petitioner has questioned in this writ petition the validity of the notification dated 10-2-1981. Informing the intending bidders that the right to collect fees on the sale of wet fish at begum bazar for the period from 1-4-1981 to 31-3-1982. Will be sold in public auction on 27-2-1981. Now the said period had expired and for the subsequent year 1982-83. It appears a fresh auction had been held on 8-4-1982. In the circumstances the question of quashing the said notification which has already worked itself out does not arise. However we can declare on the validity of the action taken so that the illegality may be remedied in future, We accordingly declare that the commissioner, Hyderabad Municipal corporation has no power under Sec. 534 of the Act to collect any fee other than the stallage and licence fee from the licencees or lessees of the stall on every basket or cart-load or lorry of wet fish purchased and brought for sale in the stalls. The commissioner, however is entitled to collect or auction the right to collect any fee from persons who bring fish from outside into the Begum Bazar market and expose them for sale in the open space at the rates fixed by him from time to time.
20. In the result, the writ appeal is allowed as indicated above. No costs Advocate's fee Rs. 150/-
21. Appeal allowed.