P.S. Kailasam, J.
1. C.R.Ps. Nos. 2434 to 2437 arise out of certain suits instituted by the Municipal Council, Trivellore, against the respondent for recovery of certain sums of money as balance of licence fee due on a private market and C R. Ps. Nos. 2438 and 2439 arise out of suits filed by the market-owner against the Manicipal Council, Trivellore, for recovery of the amount deposited with the Manicipal Council and also for a declaration that the levy of licence fee is invalid. The matter came up before the High Court on an earlier occasion and the learned Chief Justice remanded the appeals to the District Judge with the following observations:
Since this is a fee and not a tax and since it has been explicitly laid down that to levy such a fee without rendering any corresponding services would ipso facto make the imposition itself, invalid, it is for the municipality first to show that corresponding services were rendered.
Pleadings are not proof; and, a mere schedule of particulars does not establish anything. I may further stress that one argument of Sri Vedantachari, learned Counsel for the revision petitioner is that these services may be conceivably covered by the property taxes separately paid, and are not any exclusive services which could be regarded as quid pro quo for the levy of a fee.
The learned Chief Justice framed the following issues for determination:
(1) Are the levy of licence fees in 1;hese cases for the private market, supported by services rendered by the Municipality in respect of that market, justifying such an imposition?
(2) Are they such services, which are not merely referable to services performed by the Municipality to all owners paying property tax, and which could be exclusively shown as the justification for this licence fee?
After remand, the learned District Judge dismissed the appeals preferred by the Municipality holding that there is no justification for levy of licence fee by the Municipality.
2. Mr. S. Mohan, the learned Government Pleader, submitted that under Section 262-A of the Madras District Municipalities Act, when a licence granted under Section 262 permits the levy of any fees of the nature specified in Sub-section (2) of Section 260, a fee not exceeding fifteen per centum of the gross income of the owner from the market in the preceding year shall be charged by the municipal council for such licence. Section 262(1) of the Act deals with licence for private markets and it provides that no person shall open a new private market or: continue to keep open a private market unless he obtains from the Council a licence to do so; Section 260(2) of the Act provides that the Council may in any public market levy any one or more of the fees mentioned in Clauses (a) to (e) thereunder. The contention of the learned Government Pleader is that Section 260(2)(a) specifies the levy as fees. It is open to the Municipality to contend that it is really in the nature of a tax and as it is within the field of taxation by the State Government, such a levy is justifiable as a tax. In support of his contention, he relied on a decision of the Supreme Court in Ajoy Kumar v. Local Board : 3SCR47 , which was followed by this Court in Pichaiah Reddiar v. Municipal Council, Madurai : (1960)1MLJ44 . Mrs. Bhagirathi, amicus curiae, submitted that whatever may be the merits of this contention, in this particular case, as the order of remand by the learned Chief Justice which specifically prohibits the Court below from going into the question whether the levy was a tax or a fee and states that it should proceed on the basis that it was a fee, it is not open to this Court to entertain the submission of the Government Pleader. The objection is validly taken and whatever may be the position in law, so far as the petitioners are concerned, the question is no longer open to them, as the order of remand by the learned Chief Justice was not questioned and had become final. In this view, the only point that arises for consideration is, whether the levy as a fee could be justified. An initial objection to the levy is, the fee that is provided for is fifteen per centum, of the gross income of the owner from the market in the preceding year and as it is required that the fee should be commensurate with the services rendered by the Municipality, such a levy of fee cannot have any relation to fifteen per centum of the gross income of the owner. In this case, the Municipality has levied 10 per cent on the gross income. Whether it is 15 per cent, or 10 per cent the levy based on gross income cannot be justified because it will have no relevance to the quantum of services rendered by the Municipality. The nature of the fee will depend upon the cost of services rendered and will ordinarily be proportionate to the extent of the premises that are leased and not on the gross income of the owner.
3. Apart from this legal objection, on the facts, the learned District Judge has found that the levy claimed for by the Municipality cannot be sustained. That finding is one of fact and it has not been shown how that finding is erroneous.
4. These revision petitions will have to be dismissed and are accordingly dismissed.
5. I am thankful for the assistance rendered by Mrs. Bhagirathi, amicus curiae.