B.C. Mitra, J.
1. The petitioner in this application seeks appropriate writs and orders directing the respondents, their servants and agents not to demand the licence fee from the petitioner who is a purchaser of guts and entrails from the municipal slaughter house of the respondent No. 1. The petitioner is an exporter of guts, to various foreign countries, and for the purpose of his business he purchases from the licensed butchers of the municipal slaughter house offals, entrails and guts. After purchase of the materials thepetitioner claims to process such materials at is factory, and for this purpose he holds a trade licence from the respondent No. 1. The petitioner's case is that the Calcutta Municipal Act, 1951, (hereinafter referred to as the Act) and the Bye-laws framed under Section 527(46) of the Act do not make any provision for imposing on, or realising from, the petitioner any licence fee as the buyer of guts and offals. The petitioner's contention is that he is a purchaser of the materials from the licensed butchers who pay licence fees for use of the municipal slaughter house. Section 456(a) (i) read with Section 548(2) makes provision for issuing of licence for the slaughter of animals in the municipal slaughter house upon payment of a fee. Bye-law 3(a) of the Bye-Laws framed under Section 527(46) of the Act provides that every person who intends to slaughter animals in a slaughter house shall make an application for such slaughter to the Superintendent of the slaughter house for a licence. An annual fee of Rs. 5/- is required to be paid under Bye-law 3(d) for such licence. Under Bye-law 1 no person other than a Veterinary Surgeon or an officer of the Directorate of Veterinary Services and Animal Husbandry is permitted to have access to a slaughter house, except for the purpose of slaughtering animals intended for human food, or for the purposes of skinning, cutting up, clearing carcasses of animals or purchasing meat, heads, skin or offal.
2. The petitioner's contention is that besides the annual fee, and other fees for licences for use of the Municipal Slaughter House and also for sale of meat, entrails and offal, the Act does not empower the respondents to impose or levy or demand any fee on the buyers ofguts, entrails and offals from the licensed butchers. According to the petitioner, neither the Act nor the Bye-laws authorise levy or realisation of any licence fee from the purchaser of entrails or guts. The fee has been realised from the petitioner from the financial year 1959-60 to March, 1962. The petitioner contends that the fee wrongfully levied by the respondents, was paid by him under duress in order to enable him to fulfil his contractual obligation with foreign buyers. In the year 1962-63 a sum of Rs. 12,500 was realised on account of licence fee and thisamount was paid by the petitioner. The petitioner further contends that the illegal levy has been increased from year to year as in 1959-60 the fee realised was only Rs. 1600/-, in 1960-61 it was Rs. 10,000/-, in 1961-62 it was Rs. 10,000, and in 1962-63 it was raised to Rs. 12,500/-.
3. Mr. S.N. Coraj, learned counsel for the petitioner, contended that the imposition of a licence fee for purchase of entrails and offals was violative of the fundamental right of the petitioner regarding freedom of trade which was guaranteed by the Constitution. The second contention of Mr. Gorai was that the imposition was a tax and not a fee inasmuch as there was no quid pro quo. No benefits were conferred upon the purchasers of the entrails and offals in return for the money realised from them, nor were any services rendered to the purchasers by the respondents in return for the fees paid. It was, therefore, argued that the levy itself and its subsequent increase were illegal as there was no authority in law for such levy. Thirdly it was contended by Mr. Gorai that the payment was made from 1959-60 to 1962-63 under a mistaken view of the law.
4. Mr. Gorai elaborated the above contentions by referring to Section 456 of the Act which deals with the powers of the Corporation to levy charges and rent in municipal markets. He argued that Section 456(a)(i) empowers the Corporation to charge stallages, rent and fees for occupation or use of a stall, shop, standing. shed or pen in a municipal market, municipal slaughter house or municipal stockyard. But the petitioner did not occupy any stall, shop, standing, shed or pen in the municipal slaughter house so as to justify the levy of a licence fee. There was nothing in Section 456(a)(i) to justify the levy of a licence fee on the petitioner, who went to the slaughter house only for the purchase of entrails and offals.
5. It was next argued that under Bye-law 1 of the Bye-laws framed under Section 527(46) of the Act, purchasers of meat, heads, skin or offal were expressly permitted to enter into the slaughter house. The bar imposed by Bye-law 8 was confined to access to a slaughter house during the hours fixed for slaughtering animals or during the process of skinning, cutting up, cleaning or stamping the carcasses. Relying upon these provisions in the Act and the Bye-laws Mr. Gorai argued that there was nothing in the Act or the Bye-laws which empowers the respondents to impose the licence fee.
6. In support of the contention that without express power to impose or realise the licence fee a statutory corporation had no right to realise such fee. Mr. Gorai relied upon a decision of this Court reported in : AIR1960Cal102 , Narendranath Chakravarty v. Corporation of Calcutta.
7. Mr. J.N. Mitter, learned counsel for the respondents, firstly contended that the Corporation rendered sufficient services to the petitioner, and other purchasers of entrails and offal, and that such services provide a sufficient quid pro quo for the levy of a fee. In support of this contention he relied upon the various services rendered by the Corporation mentionedin the sub-paragraphs under paragraph 14 of the affidavit-in-opposition affirmed by Anil Mukherjee on November 16, 1964. Mr. Mitter argued that amongst the services rendered by the Corporation are the building of the slaughter house itself which has been set up at a considerable cost, payment of the staff salary for the maintenance of the slaughter house, supply of water and electricity to the slaughter house, maintenance and cleaning of the slaughter house, employment of sweepers for keeping the slaughter house clean, setting apart of a part of the slaughter house for the use of purchasers of entrails and guts, supply of water to the purchasers of guts and entrails for washing and cleaning the materials, supply of electricity to such portions and examination and supervision of the slaughter of animals by qualified persons. It was argued that these are the special services rendered by the Corporation to the petitioner and other purchasers of entrails and offals. It was argued that if the levy itself was lawful, there was sufficient quid pro quo to justify the imposition of a licence fee. It seems to me that there is a good deal of force in this contention of Mr. Mitter. If there is statutory authority and sanction for the imposition and realisation of the fee, in my view, it cannot be assailed on the ground that there was no quid pro quo.
8. Mr. Mitter next contended that the Corporation had ample powers under Section 456(a)(i) of the Act to impose a licence fee on the purchasers of entrails and offals, who went to the municipal slaughter house for the purpose of making the purchase. He also relied upon Section 548(2) of the Act which provides that for every licence or written permission a fee might be charged at such rate as might be fixed by the Corporation and such fee should be payable by the person to whom the licence or written permission was granted. Relying upon these provisions in the Act, Mr. Mitter argued that there was ample provision in the Act to justify the levy and realisation of a licence fee on the petitioner. He argued that Section 456(a)(i) contemplated the levy of a fee against other things, for the use of a stall, shop, standing, shed or pen that the petitioner who went into the slaughter house for the purpose of purchasing entrails was undoubtedly making use, at any rate, of a standing in the municipal slaughter house and for this use the petitioner was bound to pay a licence fee. In support of this contention reliance was placed upon Tromans v. Hodkipson, (1903) 1 KB 30, in which it was held that the use of a public bar for carrying on the business of ready-money amounted to a use of the bar for the purpose of betting in contravention of Section 3 of the Betting Act, 1853. This decision is of no assistance lo Mr. Mitter as the use referred to was use as contemplated by the particular English statute and therefore it cannot be said that the petitioner in this ease was using the municipal slaughter house under See 156(a)(i) of the Act.
9. Mr. Mitter next relied upon another English decision in Shell-mex and B.P Ltd. v. Clayton. (1955)3 All E R 102. In that case also the term 'use' came up for interpretation and it was held that as the rate-payer's business consisted of sale and distribution of oil, it was using in its business the oil which it sold and distributed and the oil was clearly brought to the premises with the intention that it should be so used. This decision again has no bearing whatsoever on the use of a stall, shop, standing shed or pen by a purchaser of entrails and offals under the Calcutta Municipal Act, 1951.
10. Mr. Mitter next relied upon a decision of the Madras High Court reported in AIR 1960 Mad 265 In re T.V. Moidu in which the meaning of the term 'use' came up for consideration and the learned Judge considered various meanings of the term use in different dictionaries in connection with the use of a motor vehicle in contravention of the provisions of the Motor Vehicles Act, 1939. This case again is of no assistance as I am concerned with the use of a shop, stall, standing or pen under a particular statute.
11. Mr. Mitter next relied upon a decision of the Supreme Court in Commr, Hindu Religions Endowments, Madras v. Shri Lakshmindra Thirtha Swamiar Mutt : 1SCR1005 , in support of his contention that the levy in this case was not a tax but a fee. This case again is of no assistance to Mr. Mitter as the learned counsel for the petitioner argued on the basis that the imposition was a licence fee and not a tax and even as a fee, the imposition was illegal.
12. Mr. Mitter next relied upon another decision of the Supreme Court in Corporation of Calcutta v. Liberty Cinema : 2SCR477 . In that case again the question was whether the imposition was a tax or a fee and secondly whether there was a valid delegation of power to impose a tax and whether there was sufficient guidance provided in the statute to authorise the Corporation to impose or enhance a tax already imposed. This decision again does not uphold Mr. Mitter's contention that the statute authorises imposition of a licence fee on the petitioner, although there is no provision either in Section 456(a)(i) and Section 548(2) on the said Bye-laws to impose such a licence fee.
13. The next contention of Mr. Mitter was that even if the levy of the licence fee was illegal, the petitioner was not entitled to an order of refund as claimed by him. In support of the contortion Mr. Mitter relied upon a decision of the Supreme Court in State of Madhya Pradesh v. Bhaital Bhai : 6SCR261 , in which it was held that even where an assessment of tax was made under a void provision of law and the payment was made by mistake, the Court was not bound to exercise its discretion in directing refund in an application under Article 226 of the Constitution. Reliance was placed on this decision by Mr. Mitter in support of another of his contentions, namely, that the petitioner was not entitled to any relief by reason of the delay involved in his making this application. I shall refer to this aspect of Mr. Mitter's contention later in this judgment. But so far as refund is concerned, learned counsel for the petitioner contended that he is not claiming refund of the fees already paid although a prayer has been made to that effect.Learned Counsel for the petitioner argued that his client would be content with a writ or order prohibiting the respondents from imposing or realising the illegal levy in future.
14. Mr. Mitter next argued that petitioner's application was barred by acquiescence as he had paid the licence fee for a number of years and thereby had acquiesced in the imposition and realisation of the fee. He argued that having paid the money for all these years it is not open to him to object to the levy. In support of this contention Mr. Mitter relied upon another decision of the Supreme Court in Pannalal Binjraj v. Union of India : 1SCR233 . In that case it was held that an asses see having submitted to the jurisdiction of a particular Income-tax Officer had thereby acquiesced in the jurisdiction of that officer to whom his case was transferred and he was not entitled to invoke the jurisdiction of the Supreme Court under Article 32 of the Constitution. This decision again is of no assistance to Mr. Mitter as there is no question of submitting to the jurisdiction of a tribunal in this case, but the question is if the imposition and realisation of licence fee is lawful.
15. The next contention of Mr. Mitter was that the petitioner's application was barred by delay. He argued that the fee was levied and realised from the year 1959-60 and was willingly paid by the petitioner upto 1962-63, and this petition was not moved by the petitioner until May, 1964. It was therefore argued that having waited so long, it was not open to the petitioner to come to this Court for relief at this stage. Before I proceed to deal with this contention, I must note, however, that this ground has not been taken by the respondents in the affidavit-in-opposition. The contention of delay undoubtedly involves questions of fact and the petitioner could have dealt with this contention in the affidavit-in-reply if this question was raised by the respondents in their affidavit-in-opposition. It is true that the tee has been levied and realised from the petitioner from the year 19.59-60 and was realised in subsequent years as noted earlier, and the enhanced fee was also duly paid by the petitioner. But the question before me is if merely by reason of delay in seeking relief the imposition of unlawful levy of a lee can be upheld.
16. Mr. Gorai sought to repel the contention of Mr. Mitter on the ground of delay, firstly by referring to paragraph 23 of the petition in which it is alleged that the payment was made by the petitioner on a mistaken view of the law; secondly Mr. Gorai referred to a rule issued by this Court in Matter No. 472 of 1963 in which a similar application was made with leave under Order 1 Rule 8 of the Code of Civil Procedure. Mr. Gorai contended that as that was a representative petition, his client did not rush to Court as the same question was involved in the earlier application, In any event, Mr. Gorai contended that if the imposition of the licence fee was itself illegal, mere delay would not bar the remedy to which his client was entitled
17. In support of the contention that delay bars the petitioner's remedy Mr. Mitter reliedupon the decision of the Supreme Court in : 6SCR261 (supra). In that case the Supreme Court while considering the question of repayment of money realised by the Government without authority of law, held that in the exercise of the Court's discretion the delay involved in moving the Court should be taken into consideration, and that even if the Court came in the conclusion that an assessment of tax was made under a void legislation and the payment was made under a mistake, the Court was not bound to exercise its discretion in directing repayment of the money already paid. It was further held that where there had been unreasonable delay the writ Court ought not ordinarily to lend its aid to a party. In considering the measure of delay, it was, however, held that the maximum period fixed by the legislature as the time within which the relief by a suit in a Civil Court must be brought, might ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 could be measured, and that even if such delay was less than the period of limitation prescribed for a civil action, the Court might consider the delay unreasonable. It was further held that the period of limitation prescribed for recovery of money paid by mistake under the Limitation Act was three years from the date, when the mistake was known and it was in this view of the matter that it was held that an order of refund of money paid could not be made. In this case, however. the learned counsel for the petitioner conceded that he could not press for an order of refund, but that he was entitled to appropriate writs restraining or prohibiting the respondents from realising any further licence fee in future. This decision is of no assistance to Mr. Mitter as the observations of the Supreme Court were made in the context of an order for refund of tax already paid. In this case, however, I am not concerned with an order of refund as such an order is not asked for.
18. Mr. Gorai, on the other hand, relied upon an earlier decision of the Supreme Court in Suganmal v. State of Madhya Pradesh : 56ITR84(SC) . In that case also the Supreme Court held that normally petitions solely praying for refund of money by writ of mandamus should not be entertained as such petitioners would have the right of coming to the Civil Court for claiming the refund and it would be open to the State who collected the money to raise all possible defences to the claim, In this case the Supreme Court quoted with approval its earlier decision in : 6SCR261 (supra). Mr. Gorai contended that as his client was not claiming an order of refund, the observations made by the Supreme Court on the question of delay in the two decisions mentioned above, did not stand on the way of his getting relief by appropriate writs and orders prohibiting the imposition or realisation of the licence fee.
19. The next case relied upon by Mr. Gorai was also a decision of the Supreme Court in Amalgamated Coal Fields Ltd. v. Janapada Sabha Chhindwara : 1SCR1 . In that case a tax was imposed by a local authority from 1935 and the occasion when its validity was attacked was only in 1957 and it was held thatacquiescence would not itself be a ground for denying relief to a petitioner.
20. The next case relied upon by Mr. Gorai was a decision of the Rajasthan High Court reported in , in which it was held that the fact that the applicant continued to pay tax for about 10 months did not mean that what was illegal became legal by his action and it is further held that probably the applicant in that case did not know for sometime that the tax was not authorised by law as required by Article 265 of the Constitution and that as soon as he came to know of the illegality of the imposition, he gave notice that he would not pay the tax. Relying upon this decision Mr. Gorai argued that in this case also the petitioner was not aware of the illegality of the imposition and that thereafter he waited to see the result of the other petition made by the purchasers of entrails and offals and it was only after he realised that the petitioners in the earlier petition were not proceeding with the petition that he came to Court with the present petition. Mr. Gorai argued that mere delay in the facts of this case, ought not to bar the relief to the petitioner if the imposition was otherwise illegal.
21. Reliance was also placed on a FullBench decision of the Jammu and KashmirHigh Court reported in AIR 1958 J and K 11.
22. Mr. Gorai next referred to a decision of the Supreme Court in The Sales Tax Officer, Benaras v. Kanhaiyalal Mukundlal Saraf : 1SCR1350 , in which it was held that once it was established that a payment of tax was made by a party labouring under a mistake of law, he would be entitled to recover the same and the party receiving the same was bound to repay or return it. This decision is of no assistance to Mr. Gorai as he conceded that he was not pressing his claim for refund of the fees already paid.
23. Mr. Gorai next relied upon another decision of the Supreme Court in Calcutta Discount Co. Ltd. v. Income-tax Officer : 41ITR191(SC) , for the proposition that though a writ of prohibition or certiorari would not issue against an executive authority, the Court had the power to issue in a fit case, an order prohibiting an executive authority from acting without jurisdiction. Relying upon this decision Mr. Gorai submitted that if it was held that the imposition was illegal an order prohibiting the respondents from levying or realising fees ought to be made.
24. In my opinion, the contention of Mr. Gorai that the mere delay in this case ought not to bar the remedy, is well founded. In my view, there is no provision in the Act or in the Bye laws which I have discussed earlier, which empowers or authorises the respondents to impose a licence fee on the purchasers of entrails and offals at the slaughter house. The provisions in the Act relied upon by the learned counsel for the respondents to justify the levy of the licence fee do not, in my view, sanction the imposition of a licence fee on the petitioner. The Calcutta Corporation is a statutory body and its powersto realise fees, charges and taxes have been defined and created by the statute and unless there is a clear provision either in the statute or in the Bye-laws framed thereunder authorisingthe imposition of a licence fee on the petitioner, the imposition of the fee must be held to be unlawful. The Act confers no powers on the Corporation of Calcutta to impose or realise licence fee from the petitioner for the purchase of entrails and offals from the slaughter house and in the absence of such specific provision, the imposition must be held to be void. I must make it clear, however, that no order for refund of the fees already paid can be made in this application, as the petitioner has other remedies open to him for that purpose and he must seek such remedy, if he is so advised.
25. For the reasons mentioned above, this rule is made absolute in part. Let a writ in the nature of mandamus issue directing the respondents, their servants and agents not to impose, levy or demand the licence fees from the petitioner. The petitioner will be entitled to two-third of the costs of this application.