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S. Gopalan, Health Assistant Vs. Varkey Job - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Appeal No. 156 of 1963
Judge
Reported inAIR1965Ker216; 1965CriLJ364
ActsKerala Municipalities Act, 1961 - Sections 2 and 284; Travancore District Municipalities Act, 1116 - Sections 326
AppellantS. Gopalan, Health Assistant
RespondentVarkey Job
Appellant Advocate V. Rama Shenoi and; R. Raya Shenoi, Advs.
Respondent Advocate K. Velayudhan Nair,; V.S. Moothaih,; K.J. Joseph,;
DispositionAppeal dismissed
Cases ReferredDy. Commr. of Agrl. Income Tax v. Sherneilty Rubber
Excerpt:
.....warrant presumption that licence fee exorbitant that it could have no true relation to value of services rendered to persons who take out licence - evidence shows that no tendered for which licence fee collected - acquittal set aside. - - 714 of 1962. the respondent was prosecuted for failure to take out a licence for storing tea and coffee busks for sale in building no. nowhere is there any indication in the decision to hold that in each and every case where a person is prosecuted for failure to take out a licence, the municipality or the panchayat has to prove that the licence fee is not unreasonable. , observed :the legal position is well settled that the presumption is in favour of the enactment being within the constitutional limits of the enacting authority. we are not..........a tax is 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 lor services rendered and as such there is an element of quid proquo 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 lor all public purposes; whereas a.....
Judgment:

Govinda Menon, J.

1. This is an appeal filed by the Health Inspector of the Changanacherry Municipality against the order of acquittal passed by the Bench of Magistrates' Court, Changanacberry in Summary Trial Case No. 714 of 1962. The respondent was prosecuted for failure to take out a licence for storing tea and coffee busks for sale in building No. 349 within the municipal limits. When the particulars of the offence oft which the accused was charged were brought to his notice and he was asked to show cause why he should not be convicted the accused merely stated that he had not committed any offence. Prosecution witnesses were then examined and when questioned under Section 342, Criminal P. C., the accused admitted that he was conducting trade without taking out a licence, but contended that as the municipality was not rendering any special service for his trade and was not spending any money lor the purpose, the municipality has no right to demand any licence fee and that he was notbound to take out a licence. No evidence was adduced on the tide of the defence. On a consideration of the prosecution evidence the Court held that it had not been proved that the municipality was rendering any special service for the business of the accused and following the decision in Wadakkancherry Panchayat v. Kunjan, 1982 Ker L T 988 found the accused not guilty and acquitted him. The correctness of the view taken by the Court below is challenged in this appeal.

2. We will now refer to the relevant provisions in the Kerala Municipalities Act -- Act 14 of 1961 (hereinafter referred to as the Act). Section 284 of the Act provides for places not being used for certain purposes without licence. That section authorises the Municipal Council to publish a notification in the gazette and by beat of drum that no place within the municipal limits should be used for any one or more of the purposes specified in Schedule III without the licence of the Commissioner and except in accordance with the conditions specified therein. It is provided that such notifications would take effect only after 60 days from the date of publication. Sections 344 and 347 provide that the council may make bye-laws not inconsistent with the Act or with any other law, for the several things enumerated in the section. Further conditions on the authority to frame bye-laws are provided in Sections 350 and 351 of the Act. Section 350 provides that the Municipal Council shall) before making bye-laws, publish a draft of the proposed bye-laws together with a notice specifying a date after which such draft will be taken into consideration, and shall before making the bye-laws, receive and consider objections, if any from interested persons. Section 351 provides that no bye-law shall have effect until the same shall have been approved and confirmed by the Government. It is also provided that after approval it has to be published in the gazette. In making a bye-law the Municipal Council is given powers under Section 349 to provide that a breach of the bye-law shall be punishable with a fine which may extend to fifty rupees.

3. According to the proviso to Section 2 of the Act all rules, regulations, bye-laws and orders made, notifications and notices issued, taxes rates and fees imposed or assessed under the Acts repealed shall, so far as may be, be deemed to have been made, issued, imposed or assessed under this Act. So all the bye-laws and notifications issued under the old Act and the fees provided therein will be valid even after the coming into force of the new Act.

In exercise of the powers under Section 326 of the Travancore District Municipalities Act, 1116 to make bye-laws this municipality had published a notification framing bye laws alter complying with all the formalities and it was duly published in the Kerala gazette dated 27th January 1959. Bye-law 1 provides that no place within the municipality shall be used for any one or more of the purposes specified in the schedule without the licence of the executive authority of the council. Bye-law 20 provides that any person offending against any of these bye-laws shall be punishable with a fine which may extend to Rs. 50 and in case of a continuing breach with a fine which may extend to Rs. 15 for every day during which the breach continues after conviction for the first breach or with fine which may extend to five rupees for everyday during which the breach continues after receipt of notice from the executive authority to discontinue such breach. In the schedule of the bye-laws Item No. 40 refers to licence fee for storing coffee husks for sale and provides Rs. 20/- for wholesale trade and Rs. 5/- for retail trade. Item No. 122 is storing tea for which licence fee is Rs. 50/- for wholesale trade and Rs. 15/- for retail trade.

4. It is admitted in this case that the respondenthad made use ot his premises for storage and sale of tea and coffee husk and that no licence was obtained for conducting the trade. There is also no case that the accused had, in fact, applied for a licence, but has been wrongly refused. A notice Ex. P 1 was sent to the accused to show cause why action should not be taken against him for conducting the trade without a licence and even though notice was actually served on him he did not even send a reply.

The question for decision is whether in conducting the trade without obtaining a licence he has committed any offence. The Bench of Magistrates relying on the decision in 1962 Ker L T 988 (cited supra) held that what was sought to be levied was really a tax and not a licence fee and that by failing to pay the fee and obtaining the licence no offence is committed. A reading of the decision would show that in that case the two witnesses who alone were examined on the side of the prosecution had categorically stated that no services whatsoever had been rendered by the panchayat, that no amount has been set apart for the expenses in connection with the services to be rendered and, therefore, it was held that the essential element of 'quid pro quo' was absent in the levy. Nowhere is there any indication in the decision to hold that in each and every case where a person is prosecuted for failure to take out a licence, the municipality or the panchayat has to prove that the licence fee is not unreasonable. The observations made in that case must be read in the context of the special facts of that case and cannot be treated as laying down an unquestioned proposition of law that in each and every case unless the prosecution establishes that the licence fee claimed bears a co-relation between the fee collected and the services rendered the accused has to be acquitted.

5. It is true that decisions have laid down that in fees there is always an element of quid pro quo, which is absent in tax and in order that the collection made 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.

It is not necessary to deal with all the cases on the subject. It is sufficient to refer to one of the more recent decisions of the Supreme Court.

In Hingir Hampur Coal Co. Ltd. v. State of Orissa, AIR 1961 S C 459, the validity of the Orissa Mining Areas Development Fund Act, 1952 was challenged. The earlier decisions were considered and it was stated :

'It is true that between a tax and a fee there is nogeneric difference, Both are compulsory exactions of money by public authorities; but whereas a tax is 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 lor services rendered and as such there is an element of quid proquo 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 lor 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. There is, however, an element of compulsion in the imposition of both tax and fee. When the legislature decides to render a specific service to any area or to any class of persons, it is not open to thesaid area or to the said class of persons, to pread that they do not want the service and therefore they should be exempted from the payment of the cess. Though there is an element of quid pro quo between the tax payer and the public authority there is nooption to the tax payer in the matter of receiving the service determined by public authority. In 'regard to fees there is, and must always be, co-relation between, the fee collected and the service intended to be rentiered. Cases inlay arise where under the guise of levying a fee legislature may attempt to impose a tax, and in the case of such a colourable exercise of legislative power courts would have to scrutinise the scheme of the levy very carefully and determine whether in fact there is a co-relation between the service and the levy or whether the levy is either not co-related withservice or is levied to shut an excessive extent as to bea pretence of fee and not a fee in reality. In other words, whether or not a particular cess levied by astatute amounts to a fee or lax would always be a question of fact to be determined in the circumstancesof each case.'

Reference may also be made to another recent decision of the Supreme Court in Sadhindra Thirtha Swamiar v. Commissioner for Hindu Religions andCharitable Endowments, Mysore, AIR 1983 S C 960. In that case their Lordships were considering the validity of Section 76 of the Madras Hindu Religious Endowments Act which provided for payment of contribution not exceeding five per cent out of the income of every religious institution to the Commissions. It was urged that there was no co-relation 'between the expenses incurred and the amount collected as contribution. Their Lordships stated :

'From this statement of account it would not be possible to inter that the contributions under Section 76 (1)of the Act of 1951 were wholly disproportionate to the value of the services to be rendered. A levy in the nature of a fee does not cease to he of that character merely because there is an element of compulsion orcoerciveness present in it, nor is it a postulate of a lee that it must have direct relation to the actualservices rendered by the authority to each individual who obtains the benefit of the service. If with a view to provide a specific service, levy is imposed by law and expenses for maintaining the service are met outof the amounts collected there being a reasonable relation between the levy and the expenses incurred for rendering the service, the levy would be in thenature of a fee and not in the nature of a tax. It is true that ordinarily a fee is uniform and no account is taken of the varying abilities of different recipients.But absence of uniformity is not a criterion on which alone it can be said that it is of the nature of a tax. A fee being a levy in consideration of rendering serviceof a particular type, co-relation between the expenditure incurred by the Government and the levy must undoubtedly exist, but a levy will not be regarded asa tax merely because, of the absence of uniformity in its incidence, or because of compulsion in the collection thereof, nor because some of the contributorsdo not obtain the same degree of service as other may.'

Their Lordships were of opinion that the burden was on the petitioners and stated that no attempt was made before the High Court to establish that the levyof contribution was so exorbitant, that it could be said to have no true relation to the value of services rendered to the endowments by the administration.

6. Regarding burden of proof, in Maxwell on Interpretation of Statutes, 11th Edition at page 291 it is stated :

''In determining the validity of bye-laws made bypublic representative bodies under statutory powers,their consideration is approached from a standpointdifferent from that adopted towards by-laws of rail-way or other companies, which carry on business for their own profit, although incidentally for the advantage of the public. Courts of justice are slow to condemn municipal by laws, as invalid, on the supposed ground of unreasonableness, and support them if possible by a 'benevolent' interpretation are diting those who have to administer them with an intention to do so in a reasonable manner, and with being the best judges whether a particular by-law is required in their district or not.'

Basu in his commentaries on the Constitution o India 4th edition, Vol. 1 at page 176 has stated that the most important of the self imposed limits upon the power of judicial review both in the United States and in India is the presumption in favour of the constitutional validity of a statute which is challenged as unconstitutional.

The presumption of constitutionality was thus enunciated by Fazl Ali J,, in. Charanjit Lal v. Union of India, 1950 S. C. K. 860 at p. 879 : (A, I. R. 1951 S. C. 41 at p. 45) :

'The presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles.'

Thus the burden of proving all the facts which are requisite for the constitutional invalidity is upon the person who challenges the constitutionality.

In the case in Dy. Commr. of Agrl. Income Tax v. Sherneilty Rubber & Cardamom Estate Ltd., 1901 Ker. L. J. 435, Ansari, C. J., observed :

'The legal position is well settled that the presumption is in favour of the enactment being within the constitutional limits of the enacting authority.'

7. So where the municipal council has lawfully framed bye-laws fixing the licence fee and it has been approved by the Government and duly published the presumption is that the fee levied is reasonable and that there is co-relation between the fee collected and the service intended to be rendered and the party who challenges and says that it is a tax and not a fee has, to substantiate it. As stated already the accused did not even mense this defence before the prosecution led evidence. No doubt in cross-examination, questions were asked but the answers given by the prosecution witnesses do not warrant the presumption that the licence fee is so exorbitant that it could be said to have no true relation to the value of the services rendered to the persons who take out the licence. The Court below was wrong in imagining that the licence tee collected is not kept separate and in fact there is nothing in the evidence to warrant this assumption. If the accused wanted he could have got the municipality to produce all the relevant documents. We are not satisfied that the evidence would show that no services are tendered for which licence fee is collected.

8. The acquittal of the accused cannot, therefore, be supported and has to be set aside.

9. In the result the order of acquittal is set aside. The respondent-accused is found guilty and convicted of the offence charged and he is sentenced to pay a fine of Rs. 15/-, in default to undergo simple imprionment for three days. Under Section 383 Clause (ii) it is also ordered that the licence fee claimed will be recovered summarily and paid over to the municipality. Time for payment of tine and licence fee one month from this date.


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