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Travancore Rayons Ltd. Vs. Municipal Council, Perumbavoor - Court Judgment

LegalCrystal Citation
SubjectOther Taxes;Constitution
CourtKerala High Court
Decided On
Case NumberO.P. 237 of 1955 (E)
Judge
Reported inAIR1958Ker149
ActsTravancore District Municipalities Act, 1114 - Sections 261, 261(1), 261(2) and 342; Travancore District Municipalities Act, 1116 - Sections 261; ;Constitution of India - Articles 14 and 226
AppellantTravancore Rayons Ltd.
RespondentMunicipal Council, Perumbavoor
Appellant Advocate K.P. Abraham,; George Kurian and; M.M. Cherian, Advs
Respondent Advocate T.N. Subramonia Iyer and; S. Subramonia Iyer, Advs.
Cases ReferredHarrisons and Crossfield Ltd. Quilon v. Municipal Council Kottayam
Excerpt:
.....licence within municipal limits - fee may be charged for every licence - making of rayon yarn and rayon transparent paper is single industrial purpose - court directed to collect only single fees for licence for manufacture of rayon yarn and transparent paper. - - x manufacturing articles from which offensive or unwholesome smells, fumes, dust or noise arise. and that all these items would come under the entry relating, to the manufacture of articles from which offensive or unwholesome smells, fumes, dust or noise arise, item no. 62 in the schedule to the bye-laws which specifies as many as thirteen purposes 'under the heading, machinery using for any industrial purpose,'that that item is really based on the entry of precisely the same wording in schedule iii. this is a matter to..........film made out of wood-pulp and other materials, and the fact that the process of manufacturing rayon paper is different from the ordinary conventional processes does not make it paper any the less. it does not cease to be paper by being called a transparent cellulose film, and we think that the making of rayon transparent paper, can be brought under the entry in schedule iii relating to the manufacture of paper. but, as we have already observed, it is not under that entry but under the entry relating to the use of machinery for industrial purposes that the bye-laws have brought the paper factory of the petitioner company.11. the notification of the purposes mentioned under item 62 of the schedule to the bye-laws purports to be under this entry relating to the use of machinery for any.....
Judgment:

Raman Nayar, J.

1. The petitioner in this case is a company called the Travancore Rayons Ltd., Perumbavoor. The 1st respondent is the Municipal Council Perumbavoor, and the 2nd Respondent is its executive authority, or commissioner as he is designated. By bye-laws made under Section 326 of the Travancore District Municipalities Act, (Act XXIII of 1116) in exercise (so far as we are in this case concerned) of its powers under 'Ss. 261 and 342 of the Act, the 1st respondent council prohibited the use of any place within the municipality from 1-4-1955 onwards for any one or more of the purposes specified in the schedule annexed to the bye-laws without a licence from its executive authority, and it also prescribed the fee for the grant of a licence for each such purpose.

These bye-laws were approved and confirmed any the Government under Section 326 of the Act and were published in a notification dated 22-1-1955 in she gazette of the 25th January 1955, The schedule may, so far as is relevant for the present purpose, be translated thus (The words in brackets appear in the original in the same manner, i. e., in English and within brackets)

No.

Annualfee to be paid

X

62.

Machinery - using forany industrial purpose

X

(10)

Yarn factory run bysteam or

electricity (Rayonsyarn)

1,000

(11)

Paper factory run bysteam or electricity (Rayons transparent paper)

1,000

(12)

For running a powerhouse X

1,500

94.

Hotel and Tea-shop -

A Class ... ...

24

B Class ... ...

15

C Class ... ...

4

2. On 25-7-1955 by the letter, Ext, P-1, the 2nd respondent drew the petitioner's attention to the gazette notification dated 22-1-1955 and re-squired it to apply forthwith for licences for the following items, remitting the fees prescribed there-for :

1.

For making Rayon yarn.

RS. 1,000

2.

For making transparentpaper.

Rs. 1,000

3,

For running a powerhouse.

Rs. 1,500

4.

For conducting a canteenin the factory.

RS. 4

The petitioner company acknowledged the letter but took no action thereon, and by Ext. p.-4 dated 24-9-1955 the 2nd respondent gave notice to the company that unless it made the applications and paid the prescribed fees within three days it would be prosecuted under the provisions of the ACT. Thereupon the company came forward with the present petition under Article 226 of the Constitution praying for appropriate writs or ..... thereunder) in so far as they affected it, and prohibiting the respondents from levying and col-lecting the fees demanded.

3. The objections taken to the levy are that It is not authorised by the provisions of the Travancore District Municipalities Act, that it bears no relation to the cost of the special services involved and therefore is virtually a tax and not a fee, that it is a multiple levy in that it imposes a separate licence fee at different stages of the same manufacturing process, and that it is arbitrary, unreasonable and discriminatory and of-funds Articles 14 and 276 of the Constitution.

4. We shall first consider the relevant pro-visions of the Act under Section 261 thereof, the coun-cil may by notification in the gazette, prohibit the use of any place within the municipal limits for any one or more of the purposes mentioned in Schedule III without the licence of the executive authority, and under Section 342 (2) a fee may be charged for every licence on such unite and at such rates as may be fixed by the council aS we have already seen it was in exercise of these powers conferred on the council that the bye-laws in question were made.

5. The first argument is that the purposes notified under the bye-laws as purposes requiring a licence do not come within Schedule III. The relevant entries in Schedule III which sets out the 'purposes for which premises may not under Section 261 be used without a licence,' are the following:

'X

Chemical preparations--Storing, packing, pressing, cleansing, preparing or manufacturing by any process whatever.

X

Comestibies -- Baking, preparing, keeping or storing for human consumption (for other than domestic use).

X

Machinery--Using for any industrial purpose.

X

Paper--Packing, pressing, cleansing, preparing or manufacturing by any process whatever.

X

Silk--Packing, pressing, cleansing, preparing or manutacturing by any process whatever.

X

Manufacturing articles from which offensive or unwholesome smells, fumes, dust or noise arise.

X

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'.

6. It is not the case for the respondents that the impugned items in the bye-laws were included therein under the residuary clause by reason of any opinion expressed by the executive authority, but that they fall under one or the other of the purposes specifically named in Schedule III. It is said that item 62 (10) in the schedule to the bye-laws, namely, 'Yarn factory run by steam or electricity (Rayon yarn)' comes under the entry relating to the manufacture of silk in Schedule III; that item 62 (11) namely, 'Paper factory run by steam or electricity', comes under the entry relating to the manufacture of paper; that item 82 (12) namely, 'For running a power house', comes under the entry relating to the use of machinery for industrial purposes; and that all these items would come under the entry relating, to the manufacture of articles from which offensive or unwholesome smells, fumes, dust or noise arise, item No. 94 of the bye-laws namely, 'Hotel and tea-shop', it is said comes under the entry relating to the preparation and storage of comestibles for human consumption (for other than domestic use), and it was on the strength of these items in the bye-laws that applications for licences accompanied by the requisite fees were demanded for the four separate activities mentioned in the notice, Ext. P. 1.

7. It seems to us however, from a perusal of item No. 62 in the schedule to the bye-laws which specifies as many as thirteen purposes 'under the heading, 'Machinery using for any industrial purpose,' that that item is really based on the entry of precisely the same wording in Schedule III. Thus it would appear that sub-items 10, 11 and 1-2 of that item (which are the same as items 1. 2 and 3 of Ext. P. 1) relating to the manufacture of rayon yarn and transparent Paper and the runing of a power house, were notified on the strength of that entry in Schedule III and not under the several entries to which our attention has been drawn.

8. To consider these items one by one, rayon is not silk but is what is ordinarily known as artificial silk, and although the dictionaries and encyclopedias discuss this article under the word, 'silk', it is always with the qualification, 'artificial.' The petitioner company no doubt makes rayon (or artificial silk) yarn, but it cannot be said that it manufactures silk in the sense in which that word is ordinarily used. In the ordinary sense, 'silk' means natural or real silk, or something of which natural or real silk is a component. Without the qualification, 'artificial' it would not include rayon, and a draper who sells rayon as silk without the qualification, 'artificial', would certainly be considered a cheat.

9. It is argued that rayon is a chemical and would come within the entry in Schedule III relating to the manufacture of chemical preparations. We do not agree. In a sense, of course, everthing under the sun is a chemical, but no one, we conceive, would describe rayon as a chemical preparation. We do not think that a factory making rayon yarn can properly be brought under the entries in Schedule III relating to the manufacture of silk and chemical preparations.

10. The petitioner company admittedly makes a product which, in its own terminology, is called, 'transparent paper'. We are told that this is not really paper but is a transparent cellulose film, made by pressing a viscous solution of wood pulp through a narrow slit. But it is not denied that it is put to the same use as ordinary packing paper and that it is marked as transparent paper. Paper is defined in the dictionary as 'a material made in thin sheets as an aqueous deposit from linen rags, esparto, wood-pulp, or other form of cellulose, used for writing and printing, wrapping and other purposes'. In other words, paper is a cellulose film made out of wood-pulp and other materials, and the fact that the process of manufacturing rayon paper is different from the ordinary conventional processes does not make it paper any the less. It does not cease to be paper by being called a transparent cellulose film, and we think that the making of rayon transparent paper, can be brought under the entry in Schedule III relating to the manufacture of paper. But, as we have already observed, it is not under that entry but under the entry relating to the use of machinery for industrial purposes that the bye-laws have brought the paper factory of the petitioner company.

11. The notification of the purposes mentioned under item 62 of the schedule to the bye-laws purports to be under this entry relating to the use of machinery for any industrial purpose; and there can be little doubt that they can properly be brought under that entry although there might be other entries, such as the last two extracted in paragraph 5, that may equally apply. That machinery is used on a very large scale by the petitioner company for industrial purposes, in particular, for making rayon yarn, rayon transparent paper, and for running a power house, is not denied. It is however argued that the levy of a separate licence fee for each of these items is really a multiple levy on a single manufacturing process and is not authorised by the provisions of the Act. Of course the fact that the three items fall under the same entry in Schedule III would not prevent the demand of separate licences and separate fees so long as they are different purposes, any more than the fact that what is really a single purpose falls within two or more entries would authorise the demand of separate licences and separate fees. The entry itself speaks of the use of machinery for any industrial purpose, and if there are more industrial purposes than one we should think that separate licences and separate fees can be insisted upon.

12. AS we have said, the contention of the petitioner company is that it carries out only a single manufacturing process, namely, the manufacture of rayon, and that rayon yarn and transparent paper are but different forms of the same manufactured product. The same viscose solution when pressed through a nozzle becomes rayon yarn, and when pressed through a narrow slit becomes transparent paper. This is not seriously disputed by the respondents, and it seems to us that the two articles are but different products of the same manufacturing process.

The manufactures are not being separately carried on, and, that being so, it would follow that the making of rayon yarn and rayon transparent paper is a single industrial purpose and not separate purposes. Even if they are regarded as different purposes it is not disputed that they are carried out in the same factory and it is not, said that the licensing, of the one involves expenses or services different from, Or in addition to the licensing of the other. In any view of the matter it would appear that the levy of separate fees would amount to a double levy and cannot; be justified.

13. The running of a power house, which again involves the use of machinery for an industrial purpose, however, stands en a -somewhat different footing. It is not denied that the petitioner company is running a power house as a separate unit. It is said that this is only for the purpose of producing electricity to supplement) the supply by the State Electricity Department, and that the production of electricity is for the purpose of manufacturing rayon yarn and rayon transparent paper.

But this averment made in paragraph 7 (c) of the affidavit of the petitioner company, and repeated in paragraph 11 of its reply affidavit has been expressly denied in paragraph 6 of the counteraffidavit filed by the 2nd respondent wherein it is stated that the production of electricity is a distinct activity and that the averment that electricity is produced for the manufacture of rayon yarn and transparent cellulose film is incorrect. This is a matter to be determined on the basis of evidence, and we can hardly embark on such an enquiry in these proceedings. On the materials before us we are unable to say that the running of the power house forms part of the same industrial purpose as the manufacture of rayon yarn and transparent paper.

14. The levy in respect of the canteen presents no difficulty. It is not disputed that a canteen is being run in the' premises of the company, and all that is said is that the canteen is run not by the company itself but by its workers. That makes no difference. A canteen falls within item 94 of the schedule to the bye-laws. 'Hotel and tea-shop,' which, in turn comes under the entry in Schedule III reining to the preparation and storing of comestibles otherwise than for domestic use. So long as a place is used for a purpose notified under Sub-section (1) of Section 261 of the Act, Sub-section (2) thereof requires the owner or occupier of that place to take out a licence, and it is no answer to say that the actual use is by some other person.

15. The contention that while the Act authorises only the levy of a fee and not of a tax the fees actually demanded are so excessive and so out of proportion to the special services involved as to operate as a tax, is net one which can be properly considered in proceedings of this nature. It is strenuously opposed by the respondents, and the counter-affidavit filed by the 2nd respondent states that large expenditure has to be Incurred by the municipality for supervising and regulating the activities of the petitioner company and counter-acting their ill effects by proper sanitary control. This is a matter to be decided upon evidence and it involves an enquiry for which proceedings like the present are scarcely suited.

16. We might however observe that it is the admitted case that the factory run by the petitioner company is a very large factory spread over a large area and employing a large number of workers and that it uses power and machinery on a very large scale. The factory is more or less a township in itself, and, prima facie, it does not appear to us that the fees levied are so excessive as to lead to the inference that they are really a tax.

17. The contention based on article 276 of the Constitution is not pressed. With regard to that based on article 14 it is said that the petitioner company is the only person that has been called upon to Pay such high fees and that a perusal of the bye-laws will show that it is only the purposes which it undertakes that have been BO highly assessed, it is pointed out that the Maximum fee for any other purpose is only Rs. 260/-, and it is argued that the much higher fees prescribed in Clauses 10, 11 and 12 of item 62 of the schedule to the bye-laws are specially directed, against the petitioner company. In effect that might well be so, but there is nothing to show that it was the petitioner company as such and not the class to which it belongs that was intended to be reached.

That it happens to be the only one of its class does not affect the position. The classification appears to be a reasonable classification. For, it cannot be denied that a rayon factory ana a power house are, having regard to the object of Section 261 of the Act, purposes out of the ordinary Nor is it denied that from the point Of view of the area covered, the number of persons employed the extent to which power and machinery are used, in fact, of every factor relevant for determining the units and the rates for the lew of a licence fee under Section 342 (2) of the Act, the petitioner company js a concern by the side of which every other industrial concern within the municipality pales into insignificance. To make special provision for the unique is not to discriminate.

18. In the reply affidavit of the petitioner company a new ground is taken that under the provisions of the Act separate licence fees cannot he levied for the use of the same place for different purposes. We have already repelled such a contention in Harrisons and Crossfield Ltd. Quilon v. Municipal Council Kottayam, O. P. 71 and 123 of 1954, 1957 Ker LT 1150: (AIR 1958 Kerala 69) (FB) (A), and we do not think it necessary to repeat our reasons here.

19. In the result, we allow the petition in part and direct that only a single fee of Rs. 1000/-be collected for a licence for the manufacture of rayon yarn and rayon transparent paper. To the extent of the sum of Rs. 1000/- involved in the separate levy under classes 10 and 11 of item 62 of the schedule to the bye-laws (items 1 and 2 of Ext. P-1), the levy is quashed and the respondents prohibited from making any collection. Tile petition is otherwise dismissed. There will be no order as to costs.


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