V.G. Oak, J.
1. This petition under Article 226 of the Constitution raises the question of the validity of certain bye-laws framed by the Municipal Board, Allahabad. According to the petitioner's affidavit, he is the General Secretary of the Socialist Party, Allahabad. He wanted to organize a public meeting. He was in need of a loud-speaker. But he was unable to get any Loud-speaker.
He was told that under bye-laws framed by the Municipal Board, Allahabad it is necessary to secure permission from the Executive Officer, Municipal Board for getting a loud-speaker. The petitioner has, therefore, prayed for the issue of a writ of mandamus prohibiting the Municipal Board, Allahabad from enforcing the said bye-laws.
2. The Executive Officer of the Municipal Board, Allahabad has filed a counter-affidavit. A copy of the bye-laws in question has been filed. The material provisions of the bye-laws are that permission has to be taken for the use of loudspeakers. Further, certain fees have been prescribed for obtaining such permission.
3. Mr. G. K. Sahai appearing for the petitioner attacked the bye-laws on three grounds. His main contention was that the bye-laws infringe the fundamental right guaranteed by Article 19(1)(a) of the Constitution. Article 19(1)(a) of the Constitution, guarantees the right of freedom of speech and expression to all citizens. It is said that the restriction on the use of loudspeakers amounts to undue interference with the right of freedom of speech and expression.
4. In 'Romesh Thappar v.. State of Madras : 1950CriLJ1514 , theirLordships of the Supreme Court observed at page 597 (of SCR) : (at p. 127 of AIR) that, freedom of speech and expression includes freedom of propagation of ideas, and that freedom is ensured by the freedom of circulation.
5. The right to use loud-speakers came up for consideration before the United States Supreme Court in Saia v. People of the State of New York, (1948) 92 Law Ed 1574 (B). A municipal ordinance prohibited the use of amplifying devices casting sound upon streets and public places, except with the permission of the chief of police, without prescribing standards for the exercise of his discretion.
The Court held by majority that, the ordinance violated the constitutional right of free speech. Dissenting opinions were given by four learned Judges of the Court. Jackson J., was of the opinion that, society has the right to control as to place, time, and volume, the use of laud-speaking devices for any purpose, provided the regulations are not unduly arbitrary, capricious, or discriminatory.
6. The majority of the Supreme Court of America took a, different view in a subsequent case Kovacs v. Cooper, (1949) 93 Law Ed. 513 (C). In that case a city ordinance prohibited the operation upon the streets of sound amplifiers of other instruments emitting 'loud and raucous noises'. It was held by a majority of the Court that, sound amplification in streets and public places is subject to reasonable regulation.
7. It is true that Article 19(1)(a) of our Constitution guarantees freedom of speech and expression. But the use of mechanical appliances is not guaranteed by Article 19(1)(a). Use of mechanical instruments like loud-speakers and amplifiers is not covered by the guarantee of freedom of speech and expression. I, therefore, do not think that the impugned bye-laws infringe Article 19(1)(a) of the Constitution,
8. The second contention of Mr. O. K. Sahai is that, the bye-laws are beyond the powers conferred on the Municipal Board of Allahabad by the U. P. Municipalities Act. Section 298 of the U. P. Municipalities Act gives powers to Boards to make bye-laws. There is a long list of possible regulations. Part H of the list deals with public safety and convenience. There are several clauses in part H. Clause (m) of part H is:
'Prohibiting or regulating, with a view to promoting the public safety or convenience, any act which occasions or is likely to occasion a public nuisance and for the prohibition or regulation of which no provision is made under this heading.'
9. A public nuisance has been defined in Section 268, I. P. C. A person is guilty of a public nuisance who does any act which causes any common injury, danger or annoyance to the public. Now, it is notorious that the use of loudspeakers causes annoyance to the public. Clause (m) of Part H of Section 298 empowers a Municipal Board to regulate a public nuisance. The Municipal Board of Allahabad was, therefore, within its power in framing bye-laws for regulating the use of loud-speakers.
10. The last contention of Mr. G. K. Sahai was that the bye-laws provide for a tax, and imposition of such a tax is not permissible under the U. P. Municipalities Act. In bye-law No. 5 there is a reference to a scale of fees. But Mr. G. K. Sahai urged that these are not fees at all, taut the charges are really a tax.
11. The distinction between a tax and a fee-came up for consideration before their Lordships of the Supreme Court in several cases. In Commr. Hindu Religious Endowments v. Laksh-mindra Thirtha Swamiar : 1SCR1005 , their Lordships observed at page 295:
'A fee is generally defined to be a chargefor special service rendered to individuals by some governmental agency. The amount of fee levied is supposed to be based on the expenses incurred by the Government in rendering the service, though in many cases the costs are arbitrarily assessed ..... These are undoubtedly some of the general characteristics, but as there may be various kinds of fees, it is not possible to formulate a definition that would be applicable to all cases.'
12. Again in Ratilal Panachand. v. State of Bombay : 1SCR1055 , it was pointed out that a tax is in the nature of a compulsory exaction of money by a public authority for public purposes, the payment of which is enforced by law. Another characteristic of a tax is, that the imposition is made for public purpose to meet the general expenses of the State without reference to any special advantage to be conferred upon the payers of the tax.
On the other hand, two elements are essential in order that a payment may be regarded as a fee. In the first place, it must be levied in consideration of certain services which the individuals accepted either willingly or unwillingly and, in the second place, the amount collected must, be ear-marked to meet the expenses of rendering these services and must not go to the general revenue of the State to be spent for general public purposes.
13. Section 294 of the U. P. Municipalities Act. deals with licence fee etc. Section 294 states:
'The Board may charge a fee to be fixed: by bye-law for any licence, sanction or permission which it is entitled or required to grant by or under this Act.'
Under Section 294 of the Act it was open to the Municipal Board, Allahabad to charge a fee for issuing permits for the use of loud-speakers.
14. The question whether the levy in question is a tax or a fee will depend upon the nature of collection and the nature of service rendered j by the Municipal Board, Allahabad. On the one hand there is nothing in the affidavit filed by' the petitioner to show that, the charge under consideration amounts to a tax. On the other hand the counter-affidavit filed by the Executive Officer does not disclose what service is rendered by the Municipal Board in connection with the levy of the charge.
We do not know how much money is collected annually by the Municipal, Board, Allahabad from this head. Nor do we know the expenditure of the Municipal Board, Allahabad in this connection. In the absence of any definite allegation in the petitioner's affidavit and the necessary figures on the point, it is not possible to decide definitely whether the charge in question is a fee or a tax.
In the bye-laws themselves the charge has been referred to as a fee. We have seen that it' was permissible to impose a licence fee under Section 294 of the Act. So, for purpose of the present petition it may be assumed that, the charge in question is in fact a licence fee.
15. Thus all the contentions raised againstthe bye-laws fail. The petition is dismissed withcosts.