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Harrisons and Crossfield Ltd., Quilon Vs. Municipal Council, Kottayam - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberO.P. Nos. 71 and 123 of 1954 (E)
Judge
Reported inAIR1958Ker69
ActsTravancore District Municipalities Act, 1116 - Sections 261(1) and 342(2)
AppellantHarrisons and Crossfield Ltd., Quilon
RespondentMunicipal Council, Kottayam
Appellant Advocate K.P. Abraham,; George Kurian and; M.L. Joseph, Advs.
Respondent Advocate Mathew Muricken and; N. Mumaran Achan, Advs. in O.P. No. 71 of 1954-E and;
Cases ReferredChinthamoni Sahu v. Cuttack Municipality
Excerpt:
.....in their premises within limits of municipality - writ petition against levy and collection of licence fees by respondent - petitioner prayed that certain notification dated 15.05.1953 published by respondent under section 261 which forms basis for levy and notice of demand be quashed - notification which forms basis of levy requires licence to be taken and prescribed fee to be paid only from 01.04.1953 - levy of licence fee for year ending 31.03.1953 not covered by said notification - writ allowed in part and levy for year ending 31.03.1953 quashed. - - 1. the purpose mentioned last in general terms in schedule iii to the travancore district municipalities act, is vague, bad in law and void. we are unable to accept the contention that no reasonable person could form an opinion..........are by the same petitioner, a company, and are directed against the levy arid collection of licence fees by the 1st respondent municipal council and its commissioner, the 2nd respondent. o. p. 71 of 1954 is against the levy for the years ending 31st march, 1953 and 31st march, 1954 while o. p. 123 of 1954 is against the levy for the year ending 31st march, 1955. licences were insisted upon, and fees were levied, for the storage of rubber and tea by the petitioner company in their premises within the limits of the municipality, and' a separate fee of rs. 250 a year was charged in respect of each commodity. the fees were paid under protest, and the prayer in the petitions is that the notification dated 15th may, 1953 published by the 1st respondent council in the gazette dated 9th.....
Judgment:

Raman Nayar, J.

1. These petitions under Article 226 of the Constitution are by the same petitioner, a company, and are directed against the levy arid collection of licence fees by the 1st respondent Municipal Council and its Commissioner, the 2nd respondent. O. P. 71 of 1954 is against the levy for the years ending 31st March, 1953 and 31st March, 1954 while O. P. 123 of 1954 is against the levy for the year ending 31st March, 1955. Licences were insisted upon, and fees were levied, for the storage of rubber and tea by the petitioner company in their premises within the limits of the Municipality, and' a separate fee of Rs. 250 a year was charged in respect of each commodity. The fees were paid under protest, and the prayer in the petitions is that the notification dated 15th May, 1953 published by the 1st respondent Council in the gazette dated 9th June, 1953 under the provisions of Section 261 of the Travancore District Municipalities Act, (Act XXIII of 1116), which notification forms the basis of the levy and the notices of demand issued by the 2nd respondent, be quashed by a writ of certiorari or such other writ or order as the Court may deem proper. In O. P. 71 of 1954 there is an additional prayer for the refund of the fees aggregating to Rs. 1,000 paid by the petitioner under protest.

2. The grounds taken in O. P. 71 of 1954 run as follows:

'1. The purpose mentioned last in general terms in Schedule III to the Travancore District Municipalities Act, is vague, bad in law and void.

2. The said notification dated 15th May, 1959 and in particular items 33, 129 and 132 therein, are illegal and ultra vires.

3. The said Notification as far as the aforesaid items therein are concerned is outside the powers of the respondents under Section 261 of the Travancore District Municipalities Act.

4. The Notification and in particular the aforesaid items therein do not satisfy the requirements of the Act or of Schedule III to the said Act.

5. The aforesaid Notices issued to the Petitioner Company are illegal and ultra vires.

6 Neither rubber nor tea are articles which come within any of the purposes mentioned in Schedule III to the said Act.

7. The imposition of two sets of license fees for the same promises levied on the same person is contrary to the provisions of Section 261 to the Act and offends the provisions of Article 276(2) of the Constitution of India.

8. The recovery of the license fee levied under the said Notices is illegal and the amounts paid thereunder are liable to be refunded'.

The grounds in O. P. 123 of 1954 are the same excepting that in ground No. 8 nothing is said about the liability to refund.

3. The objection taken in ground No. 1 has not been urged before us nor that based on Article 276(2) of the Constitution in ground No. 7, obviously because the levy is of a fee and not of a tax.

4. The several grounds, though differently worded, mean much the same thing, namely, that the levy is not authorised by the Act. It is therefore necessary to consider the relevant provisions of the Act. But before doing so, we might observe that the notification dated 9-6-1953, which forms the very basis of the levy, requires a licence to be taken, and the prescribed fee to be paid therefor, only from the 1st April, 1953. The levy of licence fees aggregating to Rs. 500 for the year ending 31st March, 1953 is therefore not covered by this notification, and to this extent O. P. 71 of 1954 has to be allowed.

5. Section 261 of the Act under which the notification purports to have been issued runs, so far as is material, as follows:

'261 (1) The Council may publish a notification in our Government Gazette and by beat of drum that no place within Municipal limits or at a distance within three miles of such limits shall be used for any one or more of the purposes specified in Schedule III without the licence of the executive authority and except in accordance with the conditions specified therein. X X X X'

And Section 342 (2) provides that for every licence granted under the Act fees may be charged on such units and at such rates as may be fixed by the Municipal Council.

6. The notification under Section 261, more or less adopting the language of that section, and at the same time exercising the power conferred by Section 342 (2) says :

'Under Section 261 of the Travancore District Municipalities Act XXIII of 1116 as amended by Act XVII of 1952, it is hereby notified for the information of the public, that no place within the Kottayam Municipal limits shall be used for any one or more of the purposes specified in the list given below from 1st April, 1953 without a licence from the Executive Authority and except in accordance with the conditions specified therein. Applications for licence shall be presented is accordance with the provisions of Sub-section (2) and (5) of Section 261 and accompanied by the fees specified in the list against each item'.

Item No.

Purpose

Amount per annum

Remarks.

Rs.

As.

Ps.

x

33

Rubber and goodsmanufactured of rubber-storing

10

0

0

F'or every 2000 Ibs orfraction thereof up to a maximum of Rs. 250 provided that no fee ischargeable for any storage up to 500 Ibs.

x

129

Tea-storing

10

0

0

For every 2000 lbs orfraction thereof subject to a maximum of Rs. 250 provided that no fee will bechargeable for any storage below 500 Ibs,

X

7. The argument based on the wording of Section 261 (1) is that it is the place and not the purpose that has to be licensed, and that so long as the place is licensed it can be used for any one or more of the purposes specified without a separate licence being taken and a separate fee paid for each purpose. We are unable to agree with this construction of the section. For such a construction would lead to the manifest absurdity that if for example, a place is licensed Sot storing sweetmeats, it can be used for the manufacture of cement or nitro-glycerin without a fresh licence for the purpose. It seems to us that the grammatical as also the true construction of the section is that a licence is required for the use of a place for any of the purposes (in other words, for each of the purposes) be they one or more, specified in Schedule III and in respect of which the council has published a notification under the section.

8. We might also observe that the word 'place' is a word of indefinite import which can cover anything from a pin-head to the universe according to the context in which it is used. In the context in which it is used in Section 281 (1), we have no difficulty in holding that different portions of the same premises used for different purposes as, for example, a bakery and a pottery run in different portions of the same building, can be different places, and, in particular, that a room or godown used for the storage of tea is a different place from a room or godown used for the storage of rubber although both might be in the same premises. We are unable to accept the argument that the entire premises covered by one door number must be deemed, for the purposes of the Act, to constitute one single place,

9. It is next said that only the place, and not the purpose, can be a unit for the purpose of charging fees under Section 342 (2). This is the same argument in a different form and means that the licence fee must be fixed with reference to the place and not with reference to the purpose for which it is used. All that we need to say with reference to this argument, apart from what we have already said, is that there is nothing in the wording of Section 342 (2) to support it. Having regard to the object of Section 261 and the purposes specified in Schedule III, it seems to us that the purpose more than the place must be a unit for levying fees under Section 342 (2); for, the cost of licensing with the supervision that it implies, would vary considerably according to the purpose for which the place is used.

10. For the argument that only one licence fee is leviable in respect of one place, irrespective of the number of purposes for which it is used, reliance is placed on the decision in Chinthamoni Sahu v. Cuttack Municipality, (S) AIR 1955 Orissa 175 (A). No doubt there are certain observations in para 9 of the judgment which support this view, but a reading of the judgment as a whole will show that the decision turns not so much upon the construction of Sections 291 and 337 (2) of the Orissa Municipal Act (corresponding to Sections 261 and 342 (2) of our Act), but upon the finding that, on the facts of that case, the levy of separate fees for doing business in different commodities was harsh and unreasonable and amounted to a tax.

We might also say that the Orissa Act has not been placed before us and so one cannot be sure that the reasoning in that case appeals here. In particular we might observe that it would appear from the extracts given in the judgment that the storage of different commodities is not specified as different purposes under that Act. And it was not so much the demand for separate licences as the levy of more than one fee that was pronounced to be unlawful. In the present petitions, no ground is taken that the fees levied are excessive and amount to a tax; and although such a ground was sought to be taken in the course of the argument we have declined to allow that. We might, however, say that, on the face of them, the fees do not seem to be so high as to lead to the inference that they have no reasonable relation to the services involved.

11. The next contention is that neither the storage of tea nor the storage of rubber is among the purposes specified in Schedule III. It is true that they have not been specifically named, but the last entry in the schedule is a residuary entry and it runs thus:

'In general, any purpose or the doing in the course of any industrial process anything which in the opinion of the executive authority is likely to be dangerous to human life or health or property or is likely to create or cause a nuisance'.

The absence of punctuation notwithstanding, it is plain that the words, 'or the doing in the course of any industrial process anything' form a separate clause, independent of the word 'purpose' that precedes them. Leaving out that clause the entry would read, 'In general, any purpose which in the opinion of the executive authority is likely to be dangerous to human life or health or property or is likely to create or, cause a nuisance'. There is no point in that argument that the storage of tea or rubber is not connected with any industrial process, and so long as in the opinion of the executive authority it is a purpose likely to lead to the results mentioned it comes within the scope of the entry.

12. We are not called upon to pronounce whether the storage of tea or rubber is likely to have such consequences -- that is for the executive authority to decide. But it seems to us apparent that storage in large quantities, Improperly done, can lead to such results. We are unable to accept the contention that no reasonable person could form an opinion of the kind necessary to bring the storage within the scope of the entry, and, if as the words, 'In general' with which the entry opens imply, the purposes specifically named in the preceding entries furnish a text, we should think that many of them are actually and potentially far less offensive and dangerous than the storage of tea or rubber.

13. It is contended that there is nothing to show that the executive authority did, in fact, form an opinion in the matter and that it was on an opinion expressed by him that the 1st respondent included the items concerned namely, items 33 and 129 in its Gazette notification of the 15th May 1953. But this was not questioned in the petitions or in the affidavits filed in support of them, and the respondents were not called upon to show that the executive authority did in fact form and express such an opinion. We might also observe that the second respondent is the authority that has to form this opinion. It is under his signature that the Gazette notification appears, and in paragraph 5 of his counter-affidavit he has said that the impugned items, items 33 and 129, were included in the notification on the authority of the residuary clause of Schedule III. The inference is reasonable that it was on the basis of his opinion that the first respondent included these items in its notification.

14. Apart from the retrospective levy for the year ending 31st March 1953 we are unable to see anything illegal or objectionable in what the respondents have done.

15. In the result O. P. 71 of 1954 is allowed in part and the levy for the year ending 31st March 1953 amounting to Rs. 500 is quashed. For the rest it is dismissed. There will be no order as to costs. O. P. 123 of 1954 is dismissed with costs. Advocate's fee Rs. 150.


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