G. Ramanujam, J.
1. The Writ Appeal is directed against the judgment of Ramaprasada Rao, J., in W.P. No. 1574 of 1970(P). The appellant is Swadeshi Cotton Mills Co., Ltd., Mudaliarpet, Commune, Pondicherry, hereinafter called the Mills. It is a public limited company which took over the quondam Savana Mills in the year 1956. For the purpose of its business the Mills obtains most of its raw materials and other stores from outside the Pondicherry State. It purchases cotton from various States in the country and also imports the same from abroad. In addition it also purchases various materials like colour chemicals, sizing and packing materials, kerosene oil lubricants, spare parts, stationery, building materials and fuel etc. from places outside the Pondicherry State. Mudaliarpet Commune, in which the Mills are situate is not served by Railway and even the road transport could only be through the town of Pondicharry. The goods purchased by the Mills from outside Pondicherry State have, 'therefore, to be brought into Pondicherry Commune by rail or by lorries. If the goods are sent by rail they are cleared at the Pondicherry railway station on payment of what the petitioner initially called 'octori duty' but which later transpired to be a Municipal tax or fee levied by the Pondicherry Commune in exercise of its powers under the Municipal Law of 1880. After such clearance of the goods from the railway station, when they are brought to Mudaliarpet Commune, through the roads, they are checked at the Commune boundary and a similar tax or fee is again levied. When, after the manufacture the Mills despatches the yarn, cloth etc. to various places outside the Pondicherry State they pass through Pondicherry Commune again, a similar tax or fee is levied on the goods despatched.
2. The Pondicherry Commune, by the resolutions, dated 5th May, 1961 and 12th May, 1961 enhanced that duty on several articles brought into Pondicherry Commune by rail or road. The appellant challenged the power of the Pondicherry Commune to impose such a charge on the goods which merely pass through that Commune on the ground that the nature of the duty being an 'octroi' the Pondicherry Commune cannot levy any duty on goods which are not intended to be consumed therein and that the said levy is unauthorised and illegal. The appellant's further case is that even if the levy is not in the nature of 'octroi' it would still be unauthorised, illegal and beyond the competence of the Pondicherry Commune, and that even if the provisions of the Municipal Act of 1880 are construed to authorise the levy under the caption 'weighing, measuring and gauging charges', the levy in question which does not contemplate any quid pro quo cannot be justified.
3. The respondents, the Pondicherry Commune and the Union Territory of Pondicherry contended that the levy made by the Pondicherry Commune is legal and duly authorised, that the impost is only a tax and not a fee, that such taxes have been levied and collected practically from the year 1880 without any challenge from any quarter and that, in any event, the validity of the impost could not be attacked in view of Section 7 of Central Act XLIX of 1962.
4. The question whether the impost impugned by the appellant is in the nature of 'octroi' though urged in the writ petition was given up before us, and the learned Counsel for the appellant confined his challenge only in relation to three matters: (1) that the impost in this case cannot be justified as a fee; (2) that there being no authority to levy a tax, the levy in this case is illegal; and (3) that Section 7 of Central Act XLIX of 1962 could validate only taxes lawfully levied earlier and that the same cannot be invoked to validate unlawful or unauthorised levies. We, therefore, proceed to consider only the said objections.
5. Originally Pondicherry was a French Settlement administered by two sets of laws: (1) the Metropolitan Law, i. e., laws made by the French Parliament; and (2) the laws made by the State Legislature of Pondicherry. For the first time on 12 March, 1880 by a Decree passed by the President of the French Republic, Pondicherry State was divided into 17 Communes. The Commune was a basic administrative cell and it enjoyed a large measure of decentralisation. It was administered by two bodies, the Municipal Council which had deliberative powers and the Mayor, whose powers were executive. On 26th December, 1910 the Pondicherry Commune, for the first time levied a measurement and weighment fee in order to secure additional fund required far the maintenance of the roads of the town in good condition, on ground-nuts brought into the Commune whether these groundnuts are intended to be exported or not. Later, by a further resolution, dated 28th October, 1917 it fixed rates of levy for a large number of other articles. By resolution dated 13th August, 1921 it, however, resolved to redesignate the above impost as 'supervision fee on merchandise in circulation'. By a later resolution, dated 16th August, 1935 the above supervision fee was levied in respect of various other commodities including cotton. On 6th September, 1946 there was a further resolution raising the fee for supervision on merchandise in circulation in relation to cotton from fifty paise to one rupee per unit, whatever be the weight and size of the bales of cotton or cloth. On 5th May, 1961 the Commune resolved to fix the rates of levy for cotton waste. By a resolution dated 12th May, 1961 the above supervision charges were raised from one rupee to two rupees per bale in respect of every bale of cotton yarn or cloth. It is this resolution imposing a higher rate of charge on cotton, cotton yarn and cloth etc., which appears to have provoked the appellant to file the writ petitions challenging the validity of the levy.
6. As a result of the de facto transfer of French Settlements in India to the Indian Union following a treaty of cossion in 1954, the administration of these Settlements was carried on by the Government of India by applying the provisions of the Foreign Jurisdiction Act and by orders of the President issued from time to time till the de jure merger which took place on 16th August, 1962. By the 14th amendment to the Constitution, Pondicherry Territory has been treated from 16th August, 1962 as a Union Territory and Article 239-A was introduced enabling the creation by Parliament of local Legislatures or Council of Ministers or both for certain Union Territories including Pondicherry. Later Parliament has enacted the Pondicherry (Administration) Act, 1962 (Central Act XLIX of 1962) providing for the administration of Pondicherry. By Section 4 of that Act, all laws in force immediately before the appointed day that is, 16th August, 1962 in the former French Establishments when the Treaty of cession came into force, were continued in Pondicherry until amended or repealed by a competent Legislature or other competent authority. Section 7 of that Act is as follows:
Continuance of existing taxes: All taxes, duties, cesses, and fees which, immediately before the appointed day, were being lawfully levied in the former French Establishment or any part thereof shall continue to be levied n Pondicherry and to be applied to the same purpose, until other provision is made by a competent Legislature or other competent authority.
In exercise of the power contained in Article 239-A Parliament had enacted Central Act XX of 1963 providing for the Constitution of Legislative Assemblies and Council of Ministers. On 1st July, 1963 the Pondicherry Legislature started functioning. The levy referred to above and complained of by the appellant continued to be made on the basis of Section 7 of Central Act XLIX of 1962.
7. The appellant for the first time on 4th November, 1969 complained to the Mayor of Pondicherry Commune against the said levy treating it as an 'octroi' duty. On 21st April, 1970, the appellant issued a notice to the Mayor of Pondicherry Commune to refund a sum of Rs. 3,62,839. 94., the amounts said to have been collected by the Commune from 12th May, 1961 upto that date. On 3rd May, 1970 the appellant filed the Writ Petitions Nos. 1574 and 1575 of 1970, contending that the impugned levy cannot legally be made by the Pondicherry Commune where the goods are neither produced nor consumed and claiming refund of the tax so far levied. The said petitions came to be dismissed by Ramaprasada Rao., J, holding that the levy is not in the nature of 'octroi', that the levy was legally imposed and that the fame was rightly continued under Section 7 of Central Act XLIX of 1962. The appellant thereafter has filed this appeal challenging the decision in the said writ petitions.
8. After the filing of the Writ Appeal the Pondicherry Legislature had promulgated an Ordinance called The Pondicherry Municipal Decree (Levy and Validation of Taxes, Duties, Cesses and Fees), Ordinance, 1973, conferring on the Municipalities the power to levy all taxes which were being levied by the Pondicherry State before. The appellant has, therefore, filed W.P. No. 1712 of 1973, questioning the validity of the said Ordinance, presumably apprehending that the said Ordinance would be relied on by the Pondicherry State to sustain the levy which is impugned in the Writ Appeal. But at the time of the hearing, the learned Additional Solicitor-General appearing for the Pondicherry State stated that he does not propose to sustain the levy impugned in the Writ Appeal by invoking the provisions of the Ordinance. In view of this statement, Mr. Venugopal, learned Counsel for the appellant did not press the Writ Petition. It is, therefore, unnecessary for us to consider the Writ Petition on merits. The Writ Petition is, therefore dismissed. No costs.
9. The appellant's first submission is that the duty in question though levied as supervision duty was at its origin a measurement and weighment fee for services rendered and that, therefore, the levy in this case having been made without reference to any service whatever rendered by the Municipality either to the appellant or to the goods in question, is invalid. Our attention had been drawn to the resolution, dated 26th December, 1910 of the Pondicherry Commune which for the first time introduced a duty called ' droit de measurage et de pesage', a duty for measurement and weighment, which according to the learned Counsel clearly connotes that the levy is only a fee for services rendered and not a tax as such. According to tie learned Counsel the resolution dated 13th August, 1921 redesignating the duty for measurement and weighment as a supervision duty on merchandise in circulation will not change the character of the levy and that it has to be taken as a fee and not a tax. The learned Counsel also points out that there is a clear-cut distinction between fee and tax, that fee should always be related to the services rendered while tax is levied for the purpose of increasing the revenue of the State, that in this case the levy, originally started as measurement fee but later redesignated as supervision fee, still retains the character of a fee and that admittedly no services having been rendered in relation to the goods in question by the Pondicherry Municipality, the levy cannot at all be sustained.
10. The learned Counsel is right in his submission that in our system of law, there is a clear-cut distinction between tax and fee, that while tax is levied as part of the common burden, a fee is a payment for a special service, benefit or privilege and that it is absolutely necessary that the levy of fees should always be correlated to the expenses incurred in rendering the service. But the question here is whether the impost in question is only a fee and not a tax as urged by the appellant, and whether the French Law which applied to Pondicherry Territory when the above impost was made for the first time recognised and took note of the distinction between a fee and a tax. There is considerable controversy between the parties on the question as to whether the impost is a fee or tax. While the appellant contends that it could only be a fee, the respondents contend that it is only a tax. On considering the relevant Municipal resolutions referred to above, we are inclined to think that even if the levy was originally made for certain services such as measurement and weighment of goods, the change brought about by redesignating it as a duty for supervision of the goods in circulation, should be taken to be significant in considering the nature of the impost. The word used both in the earlier notification, dated 26th December, 1910 and in the subsequent redesignation notification, dated 13th August, 1921 is 'droit'. The learned Counsel would construe this word in the first notification, dated 26th December, 1910 as a fee in view of the fact that at that time the Municipality had specifically established places for weighment and measurement and stated that any one paying the said 'droit' referred to in that resolution will be entitled to demand services for measuring and weighing the goods concerned. But after the levy has been redesignated as a supervision 'droit' it cannot be said that the Municipality contemplated offering any service in relation to the goods. As a matter of fact the learned Counsel concedes that the word 'droit' used in the earlier resolution dated 26th December, 1910 as well as in the later resolution dated 13th August, 1921 has an indefinite import comprehending within its scope all levies such as fee, cess, tax, duty or any other impost. We are inclined to agree with the contention of the learned Additional-Solicitor-General that the later resolution, dated 13th August, 1921 is very significant in that the Municipality has chosen to change the head of levy, that the said resolution not having been challenged as invalid at any time, it should be taken that what-. ever was the nature of the levy prior to that resolution, the levy after the resolution could only be taken to be a tax, and that the language of the said resolution itself shows that what is collected is a tax and not a fee. We are not inclined to agree with the learned Counsel for the appellant that the impugned levy is in the nature of a fee and not a tax. It is true that initially when the impost in question was made, an option or privilege was given to the person concerned to have his goods weighed or measured by the Municipality free of cost. But later in the year 1921, the service has been totally disannexed from the levy by withdrawing the said option or privilege and then onwards it became a supervision duty on the goods in circulation without there being any quid pro quo. The learned Additional-Solicitor-General contends that the import in question, being levied on the basis of unit and not on any quantitative basis it cannot be treated either as a measurement or weighment fee and that therefore, there is no idea of service in the matter of the levy of the impost in question. We are clearly of the view that even the measurement 'droit' lovied in pursuance of the resolution dated 261 h December, 1910 cannot be taken to be a fee, for the option to have the goods weighed or measured given to the person concerned is not as a quid pro quo for the payment and the said option can at any time be withdrawn and that at any rate after 1921 the impost by the Municipality is only a tax and not a fee for rendering any service to the goods such as measurement, weighment etc.
11. The distinction between a tax and a fee is taken as the basis by the appellant for challenging the impugned notification, dated 12th May, 1961. According to the learned Additional-Solicitor-General, the distinction between a tax and a fee is a federal concept and such a concept will not apply to the French system which is not federal in character and the French system of law only recognised the distinction between direct and indirect imposts. In Commissioner of Hindu Religious Endowment v. L.T. Swamiar : 1SCR1005 , it has been pointed out that the Constitution itself makes a distinction between a tax and a fee. There are a number of entries in the list I of 7th Schedule which relates to taxes and duties of various sorts and the last entry in that list viz., Entry No. 96 speaks of fees in respect of any of the matters dealt with earlier in that list. Similarly entries 46 to 62 in the list II relate to taxes while the last entry, Entry 66 in that list deals with fees leviable in respect of matters specified earlier in the said list. Though levying of fees is only a particular form of exercising the taxing power of the State, our Constitution has placed fees under a separate category for purpose of legislation. Articles no and 119 specifically speak of fees for licences and for services rendered. It is in the context of these provisions of the Constitution, the Supreme Court felt that a fee cannot be equated to a tax and that both of them have got a different concept. It is because of the circumstance that our Constitution has, for legislative purposes made a distinction between a tax and a fee, the Court proceeded to treat 'tax' as denoting a separate concept from 'fee'. The question is whether the French Constitution makes a distinction between a tax and a fee. If it does not recognise any distinction between a tax and a fee and treats both the forms of exaction alike, we cannot import our notions of 'tax' and 'fee', while construing the provisions made by the statutory bodies functioning under the French Law. If there is no distinction between a fee and a tax under the French Law then the impugned levy is valid whether it is a measurement or weighment fee or a supervision charge. Dalloz in page 2 of his code des lois politiques et administratives under the head of Direct Taxes has set out various forms of tax. Items 8, 9 and 10 in that list deal with imposts for weighment, measurement and verification of alcometers and desimeters. If according to the learned Counsel for the appellant weighment and measurement 'droit' is a fee, it would not have been possible for the author to include it in the list of direct taxes. This shows that even measurement or weighment fee is treated as tax under the French Law.
12. The learned Counsel for the appellant has not produced any authority or material to convince us that the French Law in fact recognises the distinction between a tax and a fee, and that a measurement and weighment charge is only a fee and not a tax. Even if a distinction between a tax and a fee existed in the French Law, the levy in question can in our view, be treated only as a tax and not a fee as urged by the appellant. The first resolution is dated 26th December, 1910. It proposes to levy a charge for measurement and weighment. It has not fixed any quid pro quo for the imposition of the levy. It merely gives a privilege to the person paying the charge of having his goods weighed or measured in the places set apart for that purpose. The payment is not conditional on the goods being weighed or measured. Hence it cannot be said that the charge levied under that resolution is purely for services to be rendered. In the subsequent resolution dated 13th August, 1921 the levy is brought under a different head which has no reference to any-service such as weighment or measurement. The above resolution has not been challenged before us. In the subsequent resolution dated 16th August, 1935 the charge is imposed by unit and not by weighment, and this shows that the impost has predominantly a tax element. We have, therefore, to hold that even if the distinction between a tax or a fee is imported into the taxing system under the French Law which treats both of them as direct taxes and the validity of the taxing provisions under the French Law is to be tested with reference to the said concept which arose as a result of the peculiar characteristics of the Indian Constitution, the various resolutions referred to above before or subsequent to 1921 show that the tax element is predominant and that there need not be any quid pro quo for imposing the levy in question. We, therefore, reject the contention of the appellant that supervision charges levied in this case arc bad for the reason that no services are rendered by the Pondicherry Commune.
13. The learned Counsel for the appellant then contends that if the levy in this case is treated as a tax, the Municipality has no power to impose such a tax, that the Municipal Act of 1880 will not enable it to impose a charge of the kind in question and that the levy is, therefore, unauthorised and illegal. By a Decree dated 12th March, 1880 the French Government had set up Municipalities in the various French Settlements in India. Under that Decree the Territory of French India was divided into 17 Communes of which Pondicherry is one. The Pondicherry Commune is to have a Mayor, 3 Deputy Mayors and 18 Municipal Councillors. The Municipal Council can deliberate on all matters within its competence and all its deliberations on a subject outside its competence will be null and void, and the Governor in Privy Council shall declare its being null and void. Any resolution passed by the Municipal Council can be declared by the Governor to be null and void and the Municipal Council or any one of its members can also prefer an appeal before the 'Conseil d' Etat' trying the disputed claims against the annulment order passed by the Governor. Chapter II of the. said Decree deals with the powers of the Municipal Councils. Article 46 sets out the following matters among others: (1) the budget of the Commune and in general, all receipts and expenditure either ordinary or extraordinary; (2) the mode of assessment, rates and rules regarding collection of all municipal revenue except the dock dues as matters which could be deliberated upon by the Council. Article 47 provides that the deliberations of the Municipal Council on the matters enumerated in the preceding article which are forwarded to the Governor, shall be enforceable after the approval by the Governor in Privy Council. Article 48 enjoins the Municipal Council to give its opinion in respect of the following matters among others, mode of assessment, rates and rules relating to levy of Municipal tolls, dock dues and high road charges. Article 52 divides the receipts of the commune into two categories 'ordinary' and 'extraordinary' and the ordinary receipts of the commune shall comprise of, among other things, Municipal tolls weighing, measuring and gauging taxes lawfully established. Article 54 states that the budget of each commune submitted by the Mayor and voted by the Municipal Council shall be finally approved by an Arrete of the Governor in Privy Council.
14. The learned Counsel for the respondents contends that the law under which ' droit de surveillance des merchandises en circulation ' is being levied by the Pondicherry Municipality under the Municipal Resolution dated 12th May, 1961 lawfully passed in exercise of the taxing powers vested in the Municipal Council under entry 6 of the lists of Taxes reserved for the commune under Article 52 read with Article 46(2) of the Municipal Decree, dated 12th March, 1880. It is said that the said Municipal Resolution has been duly approved by the Government in accordance with the procedure prescribed under Article 47 of the said Decree for the imposition of the taxes by the Municipal Councils. It is also pointed out that the tax presently levied and collected was under the name 'droit de surveillance des merchandises en circulation', as per the resolution of the Municipal Council, dated 13th August, 1921. Before that date the tax was called droit de mesurage' which was levied and collected as per the Arrete, dated 20th November, 1956 and was credited entirely to the State exchequer and the Commune had no share whatsoever in the proceeds realised. It is in pursuance of the revised scheme of distribution of taxing powers between the State and the Municipalities that the 'droit de mesurage' stood transferred to the commune after 12th March, 1880. The said levy has been continued by the Municipality till date although the rate of taxation and the nomenclature of goods subject to the levy were amended from time to time according to the financial exigencies of the Municipality.
15. The learned Counsel for the appellant however points out that Article 52 read with Article 46 only deals with the procedure to be followed by the Municipality and that they do not deal with the power to levy a tax and that the decision of Ramaprasada Rao, J., upholding the validity of the levy under Article 52(6) read with Article 46 of the Municipal Arrete of 1880 has ignored or overlooked the obvious distinction between the procedure and the authority to levy the tax. According to the learned Counsel, Article 52(6) can be taken only as enumerating all ordinary receipts of the commune, and it cannot be taken as providing the source of power to levy the tax. But on a due consideration of the matter, we are of the view that Article 52 should be taken as enumerating the various heads of taxes or sources of revenue on which the Municipal Council can deliberate. We are not inclined to agree with Mr. Venugopal for the appellant that apart from Articles 46 and 52, there should be a separate law enabling the Municipality to impose the taxes contemplated under the various items in Article 52. The learned Counsel draws our attention to the last clause under the head 'ordinary receipts' which is as follows:
And, generally, the proceeds from all town-dues and Police taxes the levy of which is authorised by rules.
He contends that it supports his stand that there should be some other statutory provision enabling the tax in question to be levied by the Municipality. But we do not understand the aforesaid clause as requiring a separate law authorising the Municipality to enforce the various matters referred to under the head 'ordinary receipts' in Article 52. After listing out the various items of ordinary receipts on which the Municipal Council can deliberate, the above clause sets out that the Municipality can also collect all town-dues and police taxes the levy of which is authorised by rules embodied in the arretes of the Governor made in Privy Council in consultation with the concerned Municipal Councils and the Council General. Article 52 enumerating the heads of receipts is to be treated as the list of items in respect of which the Municipal Council can impose a levy. Article 46(2) enables the Municipal Council to deliberate on the mode of assessment, and the rates and frame rules regarding the collection of all municipal revenue. The word 'municipal revenue' occurring in Article 46(2) clearly attracts Clause 52 which sets out the various items of municipal revenue. Apart from Article 52 we do not see any other provision in the Municipal arrete of 1880 which specifically confers on the Municipal Council the power to levy a tax. We do not, therefore, see any necessity for a separate law conferring on the Municipality the power to levy Municipal Tolls, weighing, measuring and gauging taxes and taxes connected with roads. Such a power can clearly be gathered from item 6 of Article 52. As already stated, the power to levy a measurement tax had been given to the local Government under Clause 34 of the arrete of the Governor dated 20th November, 1856. Article 36 of the same arrete exempted goods introduced into the commune by parties for their personal consumption and also goods which have already suffered such tax in any one of the French Settlements. The arrete dated 26th December, 1856, regulated the collection of measurement tax in Pondicherry and Article I of that arrete fixed the rate of measurement tax for certain articles on the quantitative basis. The power to levy a measurement tax was given under the Decree dated 12th March, 1880 to the Municipalities in the French Settlements including the Pondicherry Commune. Later on 13th August, 1921, the Municipal Council of Pondicherry changed the head of taxation and redesignated it as ' droit de surveillance des merchandises en circulation' and ever since that date the tax under that head is being levied by the Pondicherry Commune on various goods including cotton, cloth, yarn etc. The appellant has challenged only the resolution dated 12th May, 1961, which only refixed the rates of levy for various commodities. It is only this notification which has been challenged on the ground that the Municipality had no power to impose the tax in question. We have already expressed the view that the levy is authorised by item 6 of Article 52 read with Article 46 and that the learned Counsel is not right in his submission that those Articles only provide the procedure for levy of tax and they do not themselves authorise the levy of taxes. We have already pointed out that Ramaprasada Rao, J., had held that the procedure contemplated by the Municipal Act of 1880 has been duly followed. This finding of the learned Judge has not been questioned before us. The appellant's learned Counsel is questioning the authority of the Municipal Council to levy such a tax, though he concedes that the Municipality has followed the procedure contemplated by the Municipal Act of 1880 in imposing the charge. According to the learned Counsel, the Municipal Council is only a statutory body without any legislative power and it can act only within the four corners of the Municipal Act of 1880. But We have earlier held that the Municipal Act of 1880 gives the Municipal Council the power to levy the tax in question in view of item No. 6 of Article 52 read with Article 46(2) of that Act. The words 'and other taxes lawfully established' occurring at the end of item 6 of Article 52 suggest that the earlier items, municipal tolls, Weighing, measuring and gauging taxes and taxes connected with roads are all duly established.
16. The learned Counsel for the appellant draws our attention to a decision of Ramakrishnan, J., in Parthasarathy v. State of Pondicherry 1965 M.W.N. 328 in support of his plea that the well known principles laid down for distinguishing tax from fee has to be applied in testing the validity of the impost in this case. In that case the Municipal Council of Karaikal had passed a resolution on 4th November, 1963, which was approved by the State of Pondicherry on 2nd April, 1964, authorising the Municipality to collect the fees at the bus stand, the rates depending upon the seating capacity of the buses which are parked there. The said levy was successfully challenged on the ground that the rates fixed bore no reasonable relation between the levy and the services rendered and that the pre-existing law granting power to the Municipalities to impose levy for granting licences to use parking places contemplated only the levy of licence fee commensurate to the services rendered and not the right to levy an arbitrary tax. But we find that the learned Judge in that case was construing Article 44 which deals with the power of the Municipal Council to regulate certain matters through resolutions. Naturally, therefore, the learned Judge construed that regulating power as enabling the Municipality under Article 44(6) to levy a fee. We are however concerned in this case with the scope of Article 52(6) read with Article 46 which deal with the power of the Municipality to raise the revenues under the various heads and the mode of collection of those revenues. We cannot, therefore, get any support from the above decision.
17. Though we have upheld the authority of the Municipality to impose the levy in question in this case under Article 52(6) read with Article 46(2) of the Decree of the year 1880, we consider it necessary to deal with one other contention put forward by the learned Additional Solicitor-General on behalf of the respondents. Apart from sustaining the authority of the Municipality to impose the tax under the Municipal Act, 1880, he contended that even assuming that the Municipal Council had in fact no power to levy the tax of the kind in question on the basis of Article 52(6) read with Article 46(2) as contended by the learned Counsel for the appellant, still the levy purporting to have been made under the Municipal Decree of 1880 should be held to be justified by Section 7 of Central Act XLIX of 1962. It is pointed out that the levy of the tax in question has been in vogue at least from 1856 under the caption 'droit de measurage ' and after 1921 under the caption 'droit de surveillance des merchandises en circulation', that the said levy has not been challenged at any time by any one, that it has been accepted and approved as a valid levy by the Governor, that it has not been declared void under Article 33 of the Decree of 1880 and that none questioned the levy by filing an appeal before the 'Conseil d' Etat', the only authority competent to pronounce against the validity of the levy. It is stated that the impost had been deliberated upon by the Municipal Council under Article 46(2) read with Article 52(6) and recommended to the Governor who had given the requisite approval, that the resolution had been duly gazetted and that all the legal formalities contemplated by the Municipal Decree of 1880 had been gone through. As the levy had been continued all these years without demur from any quarter it should be taken that all concerned proceeded on the basis that the Municipal Decree of 1880 authorised the imposition of the levy. Reference is made by the learned Additional Solicitor-General to certain passages from Crawford and Craies. Crawford on 'The Construction of Statutes' says at page 388 as follows:
Where the meaning of a statute is in doubt, the Court may resort to contemporaneous construction--that is, the construction placed upon the statutes by its contemporaries at the time of its enactment and soon thereafter--for assistance in removing any doubt. Similarly, resort may also be had to the usage or course of conduct based upon a certain construction of the statute soon after its enactment and acqui(sic)sced in by the Courts and the legislature for a long period of time. As is obvious, the meaning given to the language of a statute by its contemporaries is more likely to reveal its true meaning than a construction given by men of another day or generation. . . . .
To be sure, contemporaneous construction may not be controlling, yet it is obviously entitled to considerable weight, especially where men have acted under a particular interpretation of the statute for a long time. Such a construction should not be rejected by the Courts except for strong and forcible reasons, nor is such a construction to be lightly overturned.
The same author at page 393 says:
Where a certain contemporaneous construction has been placed upon an ambiguous statute by the executive or administrative Officers who are charged with executing the statute, and especially if such construction has been observed and acted upon for a long period of time and generally or uniformly acquiesced in, it will not be disregarded by the Courts, except for the most satisfactory, cogent or impelling reasons. In other words, the administrative construction generally should be clearly wrong before it is overturned. Such a construction commonly referred to as practical construction, although not controlling is nevertheless entitled to considerable weight. It is highly persuasive.
18. Craies on Statute Law says at page 141 that light may be thrown upon the meaning of an obscure enactment by taking into consideration the construction which for a long period of time has been put upon it. At page 144 the learned author says thus:
when there are ambiguous expressions in an Act passed two or three centuries ago it may be legitimate to refer to the construction put upon these expressions throughout a long course of years by the unanimous consent of all parties interested as evidence of what must presumably have been the intention of the legislature at that remote period.
19. In a similar case where the validity of port dues were questioned, Stirling L.J., expressed in Asheton Smith v. Owon (1906) 1 Ch. 179 as follows:
I will only add that the rates and dues were paid by the plaintiff's predecessors-in-title in respect of ships laden or unladen at Fort Dinorwic without dispute for a long period and down to a time shortly before bringing this action. This circumstance, though it may not preclude the plaintiff from questioning the right to levy rates or dues, yet as pointed out by Lord Blackburn in Clyde Navigation Trustees v. Laird (1883) 8 App. Cas. 653, may well render the Court cautions in holding that such right did not exist.
20. In Migneault v. Malo (1871) 4 Law Rep. 123 the question arose as to whether the grant of probate was conclusive on the question of the genuineness of the Will and whether it is open to the legal heir of the testator to impugn the Will. Though under the English Law, grant of probate is conclusive on the question of genuineness of the Will, a practice has been followed in Canada of not taking the grant of probate as conclusive and subjecting the probate to proof. The Privy Council expressed the view that they cannot disregard the practice followed by the Canadian Courts with respect to it for the last 70 years. At page 139, the Privy Council observed as follows:
Upon the whole, it appears to their Lordships that, by the uninterrupted practice and usage of the Canadian Courts of Justice since 1801, the law has received an interpretation which does not affix to the grant of probate, even in the circumstances of this case, that binding and conclusive character which it has in England and that according to that interpretation it was competent to the respondent to impugn the validity of this Will by way of defence to the action brought by the appellant for the payment of the annuity.
The learned Counsel for the respondents therefore, urges that all the parties concerned had. proceeded op the basis that Article 52(6) read with Article 46(2) enabled the Municipality to levy the tax, as it is only on that basis the levy has been made by the Municipality and -continued without demur from 1880 and that such interpretation of Articles 46(2) and 52(6) by the concerned authorities in the year 1880 which has not been questioned till now, should, therefore, be accepted.
21. The learned Counsel for the appellant however, contends that there can be no question of acquiescence in the matter of tax and the tax-payer can challenge the levy even if he had not demurred to the payment earlier. It is true that there is no question of acquiescence and the tax-payer cannot be prevented from raising the question of validity as and when he realises the illegality of the levy. But the question here is whether Article 52(6) has been understood by the parties concerned as authorising the Municipality to levy weighment or measurement tax. As submitted by the learned Additional Solicitor-General, tax has been levied practically from the year 1880 and the levy could be traced only to Article 52(6). The approval by the Governor of the levy made by the Municipality and the levy not having been challenged before the prescribed administrative tribunals shows that everyone concerned proceeded on the basis that the tax is properly leviable under item 6 of Article 52 and therefore the long and established interpretation of item 6 of the Article should be accepted. We are inclined to agree with the above submission of the learned Counsel. Right from the year 1880 when the Decree was passed by the President of the French Republic, Article 52(6) of that Decree has been construed as dealing with the various heads of taxation which the Municipality is entitled to impose and the tax in question not having been challenged on the ground that the taxing power has not been traced from that item, we must give such a construction to Article 52(6) as would accord with the long usage and the belief which the persons concerned entertained. We, therefore, hold that the levy in this case, has been duly authorised and that, therefore, it is validly continued under Section 7 of the Central Act XLIX of 1962.
22. The Writ Appeal is, therefore, dismissed with costs. Counsel's fee Rs. 250.