1. This is a second appeal by the defendant, the Municipal Board of Baharanpur. The suit was for a declaration that
the order of the defendant dated 4th April 1934 and other connected orders imposing a tax in the shape of license fee on the brick carts of the plaintiff was against law and procedure, improper, invalid and penal and was not binding.
2. It was also prayed that a perpetual injunction be issued restraining the defendant Board from passing any such order in the future. There was also a prayer for the recovery of a certain sum of money. The Court of first instance dismissed the suit but the lower Appellate Court has decreed it.
3. The plaintiff has a brick-kiln outside the limits of the Municipal Board of Saharanpur. He has got six bullock carts and these carts are used by the plaintiff for carrying the bricks to the houses of persons, within the limits of the Municipality, who purchase bricks from the plaintiff. The Municipal Board has ordered the plaintiff to take out a licence for plying these carts for hire within the Municipality and to pay the fee prescribed therefor under the bye-law made by the Municipal Board under Section 298, List I H (c). The fee fixed for the type of cart used by the plaintiff is Rs. 4 per cart per quarter. The plaintiff paid Rs. 24 on account of the six carts for one quarter and brought this suit, his main allegation being that no hire for the carts is charged from the purchasers of the bricks and it cannot therefore be said that the plaintiff's carts ply for hire within the limits of the Municipal Board. He contended that he was consequently not liable to pay anything on account of these carts. The Board besides raising other pleas contended that the suit was barred under the provisions of Sections 160 and 164, T.P. Municipalities Act (No. 2 of 1916) and that the plaintiff did charge hire for the carts-from the purchasers of the bricks and the carts therefore did ply for hire within the municipal limits. Both the Courts below have agreed in holding that the plaintiff did charge hire from the purchasers of the bricks for the carts which carried the bricks to the houses of the purchasers. On the other contention of the defendant, the trial Court held that the suit was not barred by Sections 160 and 164 of the Act, but it dismissed the suit on the finding that the plaintiff's carts did ply for hire within the limits of the Municipal Board. On appeal by the plaintiff, the lower Appellate Court, while agreeing, as stated above, with the trial Court that the plaintiff did charge hire for the cartage of the bricks,, allowed the appeal of the plaintiff on the ground that
plaintiff's carts are not open to hire within the limits of the Municipality to anybody and for any purpose whatsoever.
4. It further observed that as
these carts are exclusively used by the plaintiff himself for cartage of bricks from his brick kiln to the places of his customers inside the Municipality,
the Board was not entitled to impose the fee in question. The Court did not record any finding on the question whether the suit was barred under the provisions of Sections 160 and 164 of the Act. The first point raised by the learned Counsel for the defendant-appellant before us-is that the suit was barred under the provisions of Sections 160 and 164 of the Act and the Civil Court had no jurisdiction to entertain it. The contention is that the feel imposed is a tax on the carts, which are vehicles plying for hire within the municipality and that the provision requiring I persons plying such carts for hire to take out a licence before commencing to do so is only a method for the realization of the tax imposed. Now the power to impose taxes is conferred on Municipal Boards by Section 128 of the Act which is the first Section in Ch. 5, headed 'Municipal Taxation. Imposition and Alteration of Taxes.' Sub-section (1)(iv) authorizes Municipal Boards to impose a tax on
vehicles and other conveyances plying for hire or kept within the Municipality or on boats moored therein.
5. Chapter 9 is headed : 'Rules, Regulations and Bye-laws' and Section 298 occurs in this chapter. Sub-section (2) of that Section is* as follows:
In particular, and without prejudice to the generality of the power conferred by Sub-section (1), the board of a municipality wherever situated, may in the exercise of the said power, make any bye-law described in list I below and the board of a municipality, wholly, or in part, situated in a hilly tract may further make, in the exercise of the said power, any bye-law described in list II below.
6. In list I there is a heading H, Clause (c) of which authorizes the Board to make a bye-law
imposing the obligation of taking out licences on the proprietors or drivers of vehicles plying for hire...and fixing the fees payable for such licences and the conditions on which they are to be granted and may be revoked.
7. The contention of the learned Counsel for the plaintiff-respondent is that the fee imposed by the Municipal Board on the plaintiff is not a tax and that fees for licences for which provision can be made by means of 'bye-laws framed under Section 298 of the Act must be distinguished from taxes properly so called. He contends that as this fee is not a tax, Sections 160 and 164 of the Act are not applicable, and therefore a suit is maintainable. We consider that the contention of the learned Counsel for the defendant-appellant is well-founded. The power to tax vehicles and other conveyances plying for hire within the Municipality has been conferred by Section 128(1)(iv). It is open to the Board to make bye-laws and rules for the realization of these taxes in any manner that may be permissible under the Act. Section 298 authorizes Municipal Boards to impose on the proprietors and drivers of such vehicles and conveyances the obligation of taking out a licence before they so ply the vehicles or conveyances within the Municipality and to fix the fee payable for such a licence. That in our opinion is only the method in which the Board realizes the tax on the vehicle or conveyance and the fee levied on this licence is nothing but the tax which the Board is authorized by Section 128 to impose. It is not suggested that besides this fee the Municipal Board has demanded, or can demand, from the plaintiff, or any other proprietor or driver of such carts, any further sum of money on account of tax under Section 128(1)(iv). The imposition of this obligation to take out a licence and to pay a fee therefor makes the collection of the tax, which is authorized by Section 128(1)(iv), simpler than it might otherwise be; but the adoption of this method for the collection of the tax cannot make it any the less a tax.
8. The learned Counsel for the plaintiff-respondent has cited the case in Brij Mohan Lal v. Emperor : AIR1934All497 . In that case the applicant was convicted for the infringement of a bye-law framed by the Agra Municipality with reference to motor lorries plying for hire and a fine was imposed on him by the Magistrate. The Sessions Judge made a reference to this Court recommending that the fine be reduced. It was contended on behalf of the applicant that no offence had been committed because the bye-law which the accused had infringed was void, being ultra vires of the Municipal Board. It was argued that the licence fee was in substance a tax and that the Municipal Board could not impose a tax without the sanction of the Local Government. It was found in that case that the bye-law in question had been sanctioned by the Commissioner and it was observed that 'the license fee has not been imposed and sanctioned in the manner provided for a tax.' In the case before us there was no allegation made by the plaintiff that the bye-law in question had not been sanctioned by the Local Government. On the contrary, we find from the Manual containing the Saharanpur Municipal Bye-laws that the bye-law in question was sanctioned by the Local Government by Notification No. 1746/XI-48 H, dated 3rd May 1917. The case before us is thus distinguishable from the case cited. We cannot accept the general proposition advanced by the learned Counsel for the plaintiff-respondent that a fee payable for a licence can never be a tax. As already observed, the imposition of an obligation to take out a licence for plying on hire within the Municipality a vehicle or other conveyance on payment of a fee is only a method for the realization of the tax which the law authorizes the Board to impose on such vehicles and other conveyances. The point becomes clear by a reference to the Municipal Account Code (Vol. II of the Municipal Manual, 1937 Edition). Ch. II of the Code is headed: 'Taxes other than octroi or any similar tax payable on immediate demand, Rents and Fees.' Below this heading there is a note which says:
The same general outline of procedure applies to the collection of all taxes other than octroi, terminal tax, toll or other similar tax payable upon immediate demand or taxes such as wheel or dog tax collected by means of licences....
9. This note does not seem to have the force of law, but it brings out the point under consideration clearly. Rule 21 in Ch. 2 deals with 'taxes for which no assessment lists are made and which are not collected by means of licences.' Above Rule 30 the heading is : 'Collections by means of licences.' Below this heading there is an Explanation which says : 'The following rules apply equally to both taxes and fees that are collected by means of licenses....' It is thus clear that there are taxes which are collected by means of licences. It is obvious that all 'fees' are not 'taxes', but it is equally obvious that it is incorrect to say that no fee payable for a licence can ever be a tax. Reference may further be made to Vol. 1, Part III, 'Model Rules, Bye-laws and Regulations' of the Municipal Manual. These Model Rules have been 'framed by the Government for the assessment and collection of taxes under Sections 153 and 296 of the Act.' Section 153, which is in Ch. 5 of the Act, lays down:
The following matters shall be regulated and governed by rules except in so far as provision therefor is made by this Act, namely, (a) the assessment, collection or composition of taxes....
10. Section 296 lays down:
(1) The Local Government shall make rules consistent with this Act in respect of the matters described in Sections...153....
11. In accordance with these Sections the Local Government evidently makes rules for each Municipality based on the Model Rules contained in Part III of the Municipal Manual. We are not aware whether any Rule has been framed by the Local Government for the Saharanpur Municipality with regard to the collection of taxes on vehicles, etc. the imposition of which is authorized by Section 128(1)(iv). These Model Rules however are of assistance in elucidating the point. In Ch. 1 there is a heading: 'Model rules for the assessment and collection of a tax on vehicles (or animals)' at p. 376 of the Municipal Manual. Rule 2 lays down:
Every person who becomes possessed of a vehicle (or animal) liable to the tax shall...apply...for a licence....
12. It is therefore clear in our opinion that the imposition of an obligation on persons plying vehicles for hire within the Municipality to take out licences and to pay the fees fixed therefor is only a means of collecting the tax on such vehicles authorized by Section 128. In the view that we have taken, it is not necessary to consider whether the opinion of the Court below that, although the plaintiff charged hire for the carts from the purchasers of the bricks, the Board was not entitled to require the plaintiff to take out licences for these carts because they were only used for the cartage of plaintiff's bricks from his kiln to the places of his customers, is correct or not. We hold that this was a suit in respect of a tax lawfully imposed by the Municipal Board, and that, in view of the provisions of Sections 160 and 164, Municipalities Act, it was not maintainable and the Civil Court had no jurisdiction. For the reasons given above, we allow this appeal, set aside the decree of the lower Appellate Court and restore that of the Court of first instance with costs throughout.