Skip to content


Mohd. YasIn Vs. Municipal Corporation of Delhi Etc. - Court Judgment

LegalCrystal Citation
Overruled ByMunicipal Corporation of Delhi and Ors. Vs. Mohd. Yasin
SubjectConstitution
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 133 of 1968
Judge
Reported inILR1970Delhi612
ActsDelhi Municipal Corporation Act, 1957 - Sections 412
AppellantMohd. Yasin
RespondentMunicipal Corporation of Delhi Etc.
Advocates: F. Anthony,; K.B. Rohtagi,; Chirag-ud-Din Qureshi,;
Cases ReferredRatilal Panachand Gandhi v. The State of Bombay and
Excerpt:
tax and levy--difference between--fee for slaughtering animal at municipal slaughter houses raised several times over--held to be tax in circumstances of the case--delhi municipal corporation act, section 412. ; a tax is a compulsory exaction of money by public authority for public purposes enforceable by law and is not payment for services rendered. a fee, on the other hand, is generally defined to be a charge for special service rendered to individuals by some governmental agency. tax is a common burden and the only return which the taxpayer gets is the participation in the common benefits of the state. fees, on the other hand, are payments primarily in the public interest but for some special service rendered or some special work done for the benefit of those from whom the payments..........as a sort of return or consideration for services rendered, it is absolutely necessary that the levy of fees should, on the face of the legislative provision, be co-related to the expenses incurred by government in rendering the services.'(10) the court in the above case struck down the provision of section 76 of the madras hindu religious and charitable endowments act, 1951 because the court found that the said provision relating to the payment of annual contribution dealt with a tax and not a fee. the provision, as such, was held to be beyond the legislative competence of the madras state legislature. (11) after the infirmity pointed out by the supreme court in the madras hindu religious and charitable endowments act had been removed by legislative amendment, the question of the.....
Judgment:
H.R. Khanna, C.J.

(1) This judgment would dispose of two Civil Writ Petitions Nos. 133 and 134 of 1968, which have been filed by Mohd. Yasin and Siraj-ud-Din respectively for the issuance of a writ to quash the order dated January 31, 1968 of the Commissioner of Municipal Corporation, Delhi, whereby the fee for slaughtering animals at slaughter houses of Municipal Corporation was increased. The respondents in the two petitions are the Municipal Corporation of Delhi, respondent No. 1, the Commissioner of Municipal Corporation of Delhi, respondent No. 2, and the Chairman, Standing Committee, Municipal Corporation of Delhi, respondent No. 3.

(2) The two petitioners are butchers by profession. Mohd. Yasin slaughters buffaloes at Motia Khan Slaughter House, Delhi, while Siraj-ud-Din slaughters sheep and goats at that slaughter house. Municipal Corporation, Delhi, is running three slaughter houses. The main slaughter house is at Motia Khan which is meant for slaughtering buffaloes, sheep, goats and pigs. Besides that, the Corporation has two other slaughter houses at Mahrauli and Shahdara which are meant for slaughtering sheep, goats and pigs. In March, 1953, Delhi Municipal Committee prescribed the following fees for the slaughtering of animals at the three slaughter houses : Sheep, goats and pigs Rs. 00.25 Paise each. Buffaloes Rs. 1 .00 each.

(3) The above rates of fee remained in operation till January, 1968. meeting of the Standing Committee of the Delhi Municipal Corporation was held on January 18, 1968, One of the items of the additional agenda was to increase the rates of the slaughtering fees as under : Sheep, goats and pigs Rs 2.00 each Buffialoes Rs 8.00 each

(4) The Standing Committee of the Corporation in that meeting accorded its approval to the enhancement of the slaughtering fee as proposed. The Commissioner of Corporation thereupon issued Office Order dated January 31, 1968 as under : The following will be the schedule of slaughtering fees for slaughtering of animals at the Slaughter Houses of the Municipal Corporation of Delhi with effect from 1-2-1968: 1. Sheep, goats and pigs Rs. 2.00 each 2. Buffaloes Rs. 8 .00 each

'THEabove fees have been prescribed in accordance with the provisions of Section 412 of the Delhi Municipal Corporation Act, 1957 (6 of 1957) and with the prior approval of the Standing Committee.'

(5) The petitioners challenge the validity of the above enhancement of the fees mainly on the ground that what is now sought to be levied is in fact a tax and not a fee and as such is illegal. Ground has also been taken that the proposed enhanced levy contravenes the provisions of Article 14 and of Article 19(1) (f) and (g) of the Constitution.

(6) The petitions have been resisted by the respondents and the affidavits of Shri H.N. Chopra, Commissioner of the Corporation have been filed in opposition to the petitions.

(7) Before dealing with the point as to whether the levy in question constitutes a tax or fee we may observe that according to clause (k) of Section 42 of the Delhi Municipal Corporation Act (hereinafter referred to as the Act) it shall be incumbent on the Corporation to make adequate provision by any means or measlires which it may lawfully use or take for 'the construction and maintenance of municipal markets and slaughter houses and the regulation of all markets and slaughter houses.' Sub-clauses (i) and (iv) of clause (a) of Section 412 of the Act provide :

'THECommissioner, with the previous approval of the Standing Committee, may- (a) charge such stallages, rents or fees as may from time to time be fixed by him in this behalf- (i) for the occupation or use of any stall, shop, stand, shed or pen in a municipal market or municipal slaughter house. (iv) for the right to slaughter animals in any municipal slaughter house, and for the feed of such animals before they are ready for slaughter;'.

(8) According to Section 413, a copy of the table of stallages, rents and fees, if any, chargeable in any municipal market or municipal slaughter house, and of the bye-laws made under this Act for the purpose of regulating the use of such market or slaughter house printed in such language or languages as the Commissioner may direct, shall be affixed in some conspicuous place in the market or slaughter house. Perusal of the relevant part of Section 412, reproduced above, makes it manifest that what is permitted is the charging of a fee for the purposes mentioned in that section. The case of the petitioners is that the proposed levy is a tax and not a fee. As against that, it is contended on behalf of the respondents that the proposed levy answers to the description of a fee. In order to resolve this controversy we have to see as to what are the characteristics of indicia which distinguish a fee from a tax. The matter was dealt with by their Lordships of the Supreme Court in the case of The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmiindra Thirtha Swamiar of Sri Shirur Mutt, : [1954]1SCR1005 . Speaking for the Court, Mukherjee, J. observed:

'Aneat definition of what 'tax' means has been given by Latham C.J. of the High Court of Australia in Matheva v. Chicory Marketing Board, 60 C. L. R. 363. 'A' tax'. according to the learned Chief Justice, 'is a compulsory exaction of money by public authority for public purposes enforceable by law and is not payment for services rendered. This definition brings out, in our opinion, the essential characteristics of a tax as distinguished from other form of imposition which, in a general sense, are included within it. It is said that the essence of taxation is compulsion, that is to say, it is imposed under statutory power without the taxpayer's consent and the payment is enforced by law. The second characteristic of tax is that it is an imposition made for public purposes without reference to any special benefit to be conferred on the payer of the tax. This is expressed by saying that the levy of tax is for the purposes of general revenue, which when collected form part of the public revenues of the State. As the object of a tax is not to confer any special benefit upon any particular individual, there is, as it is said, no element of quid pro quo between the tax-payer and the public authority. Another feature of the taxation is that as it is a part of the common burden, the quantum of imposition upon the tax-payer depends generally upon his capacity to pay. Coming now to fees, a 'fee' is generally defined to be a charge for a 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,. Ordinarily, the fees are uniform and no account is taken of the varying abilities of different recipients to pay. 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.'

(9) Dealing with compulsion, it was held that an element of compulsion or coerciveness is present in all kinds of imposition, though in different degrees and that it is not totally absent in fees. This aspect thereforee could not be made the sole or even a material criterion for distinguishing a tax from fees. It was further observed:

'THEdistinction between a tax and a fee lies primarily in the fact that a tax is levied as a part of a common burden, while a fee is a payment for a special benefit or privilege. Fees confer a special capacity, although the special advantage, as for example in the case of registration fees for documents or marriage licenses, is secondary to the primary motive of regulation in the public interest. Public interest seems to be at the basis of all impositions, but in a fee it is some special benefit which the individual receives. If, as we hold, a fee, is regarded as a sort of return or consideration for services rendered, it is absolutely necessary that the levy of fees should, on the face of the legislative provision, be co-related to the expenses incurred by Government in rendering the services.'

(10) The Court in the above case struck down the provision of Section 76 of the Madras Hindu Religious and Charitable Endowments Act, 1951 because the Court found that the said provision relating to the payment of annual contribution dealt with a tax and not a fee. The provision, as such, was held to be beyond the legislative competence of the Madras State Legislature.

(11) After the infirmity pointed out by the Supreme Court in the Madras Hindu Religious and Charitable Endowments Act had been removed by legislative amendment, the question of the virus of its provisions was again agitated in the case of Sudhindra Thirtha Swamiar and others v. The Commissioner for Hindu Religious and Charitable Endowments, Mysore and another, : AIR1963SC966 . The Court upheld most of the provisions of the Act. The view that there must be co-relation between the expenditure incurred by the Government and the levy of fee was reiterated.

(12) It would thus appear that tax is a common burden and the only return which the tax-payer gets is participation in the common benefits of the States. Fees, on the other hand, are payments primarily in the public interest, but for some special service rendered or some special work done for the benefit of those from whom the payments are demanded. Thus in fees there is always an element of quid pro quo which is absent in a tax. But in order that the collections made by the Government can rank as fees, there must be co-relation between the levy imposed and the expenses incurred by the State for the purpose of rendering such services. This can be proved by showing that on the face of the legislative provision itself, the collections are not merged in the general revenue but are set apart and appropriated for rendering these services. See in this connection Ratilal Panachand Gandhi v. The State of Bombay and others, : [1954]1SCR1055 . Similar view was taken by Gajendragad kar J., as he then was, while speaking for the majority in the case of The Hingir-Rampur Coal Co .Ltd. and others v. The State of Orissa and Others, : [1961]2SCR537 . It was observed : whereas a taxis imposed for public purposes and is not, and need not be supported by any consideration of service rendered in return, a fee is levied essentially for services rendered and as such there is an element of quid pro quo between the person who pays the fee and the public authority which imposes it. If specific services are rendered to a specific area or to a specific class of persons or trade or business in any local area, and as a condition precedent for the said services or in return for them cess is levied against the said area or the said class of persons or trade or business the cess is distinguishable from a tax and is described as a fee. Tax recovered by public authority invariably goes into the consolidated fund which ultimately is utilised for all public purposes, whereas a cess levied by way of fee is not intended to be, and does not become, a part of the consolidated fund. It is earmarked and set apart for the purpose of services for which it is levied.'

(13) The view taken, in the above cases was affirmed in the case of Corporation of Calcutta and other v. Liberty Cinema, : [1965]2SCR477 . Sarkar J, as he then was, speaking for the majority, observed that in order to make a levy a fee for services rendered the levy must confer special benefit on the persons on whom it is imposed.

(14) In the light of the criteria laid down above, we are of the opinion that the impugned levy is a tax and not a fee. In the agenda for the meeting of the Standing Committee the ground given for the enhancement of the fee was that the original fees were prescribed by the erstwhile Delhi Municipal Committee vide its resolution dated May 9, 1952. The price of meat was stated to have gone up about 10 or 12 times since then. The fee. it was said, was low in proportion to the current meat price and needed upward revision. The maintenance expenditure on slaughter houses was also stated to have gone up. It was added that if the proposed rate of slaughtering fees were accepted, the revenue from those fees was likely to be Rs. 14 to 15 lacs in one year. It would thus appear from the agenda that though there was a reference to the increase in the maintenance expenditure on the slaughter houses, two important facts, which were kept in view, were the rise in the cost of meat and the prospect of a revenue receipt of Rs. 14 to 15 lacs.

(15) The budget figures of the Municipal Corporation have been placed on the file and they show the following figures of income and expenditure in respect of the slaughter houses maintained by the Corporation :

____________________________________________________________________________ Excess of Particulars Income Expenditure income over expenditure ____________________________________________________________________________ (a) Actuals for 1968-69 4,24,494.00 2,56,520.00 1,67,974.00 (b) Budget estimates for 1969-70 .. .. 4,00,000.00 2,56,000.00 1,44,000.00 (c) Actuals for 1st six months ending 30-9-69 .. 2,82,400.00 1,56,773.00 1,25,627.00 (d) Estimate for the remaining six months ending 31-3-70 2,17,600.00 1,53,227.00 59,373.00 (e) Revised estimates for 1969-70 .. 5,00,000.00 3,15,000.00 1,85,000.00 (f) Budget estimate for 1970-71 .. 5,00,000.00 3,18,000.00 1,82,000.00' ____________________________________________________________________________

(16) It would further appear from the budget figures that the actual income for the year 1968-69 from slaughter houses was to the extent of Rs. 4,24,494.00 and the total expenditure for the slaughter houses including the expenses on establishment, repairs, maintenance and other miscellaneous items .came to Rs. 2,56,520.00. The income of Rs. 4,24,494.00 was at double the rate of the slaughtering fees fixed in 1952 in view of a stay order made by this Court on February 12, 1968. As per that stay order the Corporation was permitted to charge 50 Paise per small animal and Rs. 2 -00 per large animal as fee pending the disposal of the petition without prejudice to the rights of the parties. It would follow from the above that at double the rate of the slaughtering fees the Corporation was taking to the general revenue an amount of Rs. 1,67,974.00 being the excess of the income over the expenditure. The Corporation by the impugned order seeks to increase the fee eight-fold. The enhanced fee, in our opinion, is not co-related to the expenditure incurred by the Corporation in rendering the service of maintaining the slaughter houses. On the contrary the budget figures show that the primary object of enhancing the fee for slaughtering is to increase the income and augment the revenues of the Corporation. It is thus manifest that there is no' co-relation between the proposed fee and the services rendered in return by the Corporation because the proposed fee would be far in excess of the expenditure incurred. Although the Court would not insist upon arithmatical precision, there has to be some kind of approximation between the expense involved in the service to be rendered and the fee proposed to be charged. Such an approximation is missing in the present case. There is also nothing to show that the slaughtering fee is kept apart to meet the cost of service rendered by the Corporation and does not become a part of the general revenue. The different factors brought on record, in our opinion, go to show that the proposed levy has the ingredients of a tax and does not answer to the description of fees.

(17) An attempt has been made on behalf of the Corporation to show that besides the expenses incurred for the slaughter houses as shown in the printed budget, a number of other items of expenditure have to be borne by the Corporation for the slaughter houses. It is pointed out that the budgets of the Corporation are not prepared in any water-tight compartments and do not reflect as commercial balance-sheet and profit and loss account do, the exact magnitude of financial involvement in any particular venture. According to the respondents, the return at the rate of 10% of the value of the site of the slaughter houses would come to Rs. 3,50,000.00. It is also pointed out that for further improvements Rs. 2,00,000.00 are needed and that Rs. 70.000.00 are spent on the senior supervisory staff. The Corporation, it is also urged, is not charging butchering license fee and other fees.

(18) As against the above, it is urged on behalf of the petititioners that the Corporation did not in the previous years charge anything or charged only Rs. l,000.00 on account of the user of the site of the slaughter houses. The Corporation, it is submitted, is not justified in calculating an item of Rs. 3,50,000.00 under this Head. There was, it is further pointed out, no provision in the budget for an expenditure of Rs. 2,00,000.00 on the improvement of the slaughter houses, As regards the expenditure on the establishment, it is submitted, the Court should rely upon the amounts specifid in the printed budget. The Court, it is further stated, should exclude from consideration the income which the Corporation might have received by levy of certain fees, because such an amount does not represent an expenditure incurred for service rendered to the petitioners. We have given the matter our consideration and are of the view that for the decision of these cases we should rely upon the figures as given in the printed budget of the Corporation and not take into account other items of alleged expenditure which do not find a mention therein. The Court would presume that the different items of expenditure are shown under the proper headings and it would not, in our opinion, be a correct approach to take an item of expenditure shown under another heading as that relating to the slaughter houses in order to come to the conclusion that the expenditure on the slaughter houses is much more than is reflected in the budget of the Corporation. Although a ground was also taken in the peitition that the impugned levy contravenes the provisions of Articles 14 and 19 of the Constitution, hardly any arguments have been advanced before us on that score. It is also not clear as to how the impugned levy can be said to be vocative of Articles 14 and 19. Be that as it may, it is not necessary to dilate on this aspect of the matter as the petitions are being accepted on the ground that the impugned levy was in the nature of a tax and not a fee.

(19) We, thereforee, accept the two petitions and quash the order dated January 31, 1968, whereby the fee for slaughtering animals at slaughter houses of Municipal Corporation, Delhi, was increased eight-fold. Keeping in view all the circumstances, we leave the parties to bear their own costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //