Commissioners of Arrah Municipality vs Inder Chand

Wort, J.—This appeal comes before this Court after remand. The case was remanded for the purpose of deciding a question of fact relating to a drain in Arrah. The Municipal Commissioners, who are the appellants, were the defendants in the trial Court in a case in which the plaintiff claimed the following reliefs:

That on the facts and circumstances stated it be declared that the imposition of a fee by the defendants for taking license for plaintiff''s keeping platform is illegal and ultra vires and the defendants have no right to realize the same from the plaintiff and that the said levy of platform-tax is illegal, ultra vires and beyond the power of defendants and the defendants are not entitled either in law or in equity to do the same and demand the same from the plaintiff.

The second relief claimed was:

That the defendants be restrained from realizing platform-fee or taking proceedings against the plaintiff under the Municipal Act or by-laws of the Municipality for not taking a license or compelling the plaintiff to remove his platform (if any) during the pendency of the suit.

The plaintiff further claimed a refund of the amount paid with interest. Several questions were raised in the Courts below, and in the lower Appellate Court the plaintiff succeeded. The learned Judge in the Appellate Court came to the conclusion, contrary to the contention of the Commissioners, that the drain was not a Municipal drain and that therefore the Municipal Commissioners had no jurisdiction over it. He also decided two questions of law in favour of the plaintiff which will be indicated by the points to which I shall refer in the judgment. This Court, being in doubt as regards the findings of fact, remanded the case to the Subordinate Judge for the determination of the question whether the drain was the Municipal drain, or whether it was within the limits of the District Board Road.

The contention of the plaintiff was that the District Board Road was 38 feet 8 inches in breadth and that the drain in question came within those limits. The learned Judge in the Court below, after remand, has come to the conclusion that the drain is beyond the limits of the District Board Road. At the instigation of the parties, a Commissioner was appointed and ha came to the following conclusion. "His report," says the learned Judge,

shows that the road in front of the plaintiff''s house was 4& feet & inches wide from the southeast corner of the plaintiff''s house, ii feet & inches wide from the southern stairs of the plaintiff''s house, and &i feet 5 inches wide from the northeast corner of the plaintiff''s house....From the measurements made by the Commissioner it will appear that at 20 places, where the plaintiff wanted the widths of the road to be measured, it varied from Hi feet to 38 feet 6 inches, the average coming to 29 feet 10 inches.

The learned Judge has come to the conclusion accordingly, and it will be seen therefore that the drain is beyond the limits of the District Board road, and on that conclusion it seems to be abundantly clear that, contrary to the plaintiff''s contention, the drain is that of the Municipal Commissioners and not of the District Board. However, that matter does not dispose of the case. Dr. Mitter on behalf of the respondent raises several questions of law. The first is on the construction of Section 82, Bihar and Orissa Municipal Act, 1922. Section 82 provides that:

The Commissioners may, from time to time, at a meeting convened expressly for the purpose, of which due notice shall have been given, subject to the provisions of this Act and with the sanction of the Local Government, impose within the limits of the Municipality the following taxes and fees, or any of them.

Then a list of Clauses (a) to (1) of the matters with regard to which fees are chargeable under Sub-section (l). It is with regard to Sub-section (2) that the question arises. Sub-section (2) runs thus:

The Commissioners may from time to time, at a meeting convened as aforesaid, and in accordance with, a scale of fees to be approved by the Local Government, charge a fee in respect of the issue and renewal of any license which may be granted by the Commissioners under this Act and in respect of which no fee is leviable under subs. (1).

Shortly it is contended that the tax which the Commissioners here purported to impose by their Resolution of 18th January 1935, comes within the mischief of that sub. section. Section 180, which is the warrant to the Commissioners to impose the tax, is as follows:

No platform shall be erected, re-erected or extended upon or over any public road or drain without the previous sanction of the Commissioners.

Pausing there, I may observe that one of the contentions of the plaintiff-respondent in the Courts below was that the previous sanction had been granted by they Commissioners in 1935, that a fee had been paid, and that therefore the tax which the Commissioners sought to impose was illegal. But that point apparently was given up, and certainly was not argued in this Court. Sub-section (2) of Section 180 of the Act provides:

The owner of every platform, except platforms which are Used for giving such access to the houses as the Commissioners may consider necessary, shall, if the Commissioners at a meeting so direct, take out a license for keeping the platform,

Sub-section (3), provides that such license shall remain in force for one year. Sub-section (4), provides that:

For every such license there shall be paid a fee to be fixed by the Commissioners at a rate of not less than two annas nor more than eight annas for each square foot or the superficial area of the platform except such portion thereof as is used for giving such access to a house, etc.

Sub-section (5) is a penalty clause making, a person who contravenes the provisions of the section liable to a fine not exceeding fifty rupees. At first it was thought that in this case the Commissioners had acted ad hoc in fixing fee for the license with regard to this particular platform. But that view of the matter is clearly wrong when the Resolution of 18th January 1935 is looked into. It was passed at a meeting of the Commissioners at which the Chairman, the Vice-Chairman, and four other members were present and the resolution which was passed unanimously on that occasion was that "two annas six pies per square foot per year be levied on the platform abutting on the Municipal drains" in a certain area described in the Resolution. It was further resolved that

fees on the platform on Municipal roads, lanes, drains or lands within the rest of the area be levied at the rate of two annas per square foot per year.

It seems to me quite clear therefore that whether the Commissioners were entitled u/s 180 of the Act to act ad hoc as I have described it, they certainly did not purport to do so by the Resolution of 18th January 1935. What they were apparently doing was that they were fixing a scale of fees for the issue and renewal of any license which might be granted by the Commissioners under this Act and in respect of which no fee was leviable under Sub-section (1) (of Section 82).

To repeat myself, it is clear that the Commissioners were fixing a scale of fees for licenses with regard to platforms erected over Municipal drains. Now, it is contended by Dr. Mitter therefore that unless they have the previous sanction of the Government the tax so charged was ultra vires of the Commissioners. It is admitted that the consent of the Local Government was not obtained. The words of the Sub-section I shall repeat:

The Commissioners may, from time to time, at a meeting convened as aforesaid, and in accordance with a scale of fees to be approved by the Local Government charge a fee in respect of the ''issue and renewal of any license which may be granted by the Commissioners.

I used the words "previous sanction of the Local Government," and although the expression may be to some extent inaccurate, it is quite clear that if the Sub-section applies the imposition of the tax without the consent of the Local Government would be illegal: and that is the question which arises for determination in this appeal. It was contended, as I have already stated that the Commissioners could act in each case and fix a fee according to circumstances of each'' case, and that as the Legislature has fixed the limits within which the tax should be imposed, no consent of the Local Government was necessary.

Sub-section (2) of Section 82 speaks of the issue and renewal of fees for licenses charged under, under Sub-section (1). Instances of this are to be found in three Sections. Section 256 of the Act, provides that "the Commissioners may, from time to time, grant licenses to persons applying for the same." It is true that the Section does not appear on the face of it to warrant the Commissioners charging any license fee, the Act merely referring to a license to be granted by the Commissioners and the power of the Commissioners to prescribe a scale of the rates for the sale of such articles referred to in the Section. But I assume that authority is given to the Commissioners that fees would be chargeable for the grant of that license. Section 259 of the Act, gives power to the Commissioners to license premises used for trades described in the various Sub-clauses of the Section, and Sub-section (3) of the same Section provides:

The Commissioners at a meeting may, subject to a maximum to be fixed by the Local Government, levy a fee in respect of any such license and the renewal thereof, and may impose such conditions upon the grant of any such license as they may think necessary.

Section 261 provides power to Commissioners to license premises occupied by cartman, livery stable keeper or keepers of vehicles, and Sub-section (2) gives them power to license places for such purpose and may levy a fee not exceeding one rupee on the issue and renewal of any such license. It is to be noted that there is a distinction between Sub-section (2) of Section 261 and Sub-section (3) of Section 259 of the Act. Sub-section (2) of the latter makes no reference to the consent of the Local Government, whereas under Sub-section (3) of Section 259 the Commissioners at a meeting may, subject to a maximum to be fixed by the Local Government levy a fee. I apprehend therefore that although the consent of the Local Government is to be obtained under Sub-section (3) of Section 259 it is not the consent referred to in Sub-section (2) of Section 82. But the same cannot be said in my judgment with regard to Section 261 (2) which provides that:

The Commissioners may license places for such purpose, and may levy a fee not exceeding one rupee on the issue and renewal of any such license. Such license shall be renewed in the first and seventh months of each year.

The language of Section 261 and Section 180(2) is not materially different, and it seems to me that it would be difficult, if not impossible, to contend that the license fee chargeable u/s 261 would not be subject to the consent of the Local Government under Sub-section (2) of Section 81. And if that argument is well-founded, it seems equally impossible to exempt from the provisions of Sub-section (2) the license fees to be imposed u/s 180 of the Act, the Section with which we are dealing in this case. It is clear, as I pointed out at the commencement of my observations, that the Commissioners purported to fix a scale of fees and that would seem in any event to come specifically within the mischief of Sub-section (2) of Section 82.

I do not pretend to say that the matter is without difficulty, but is my judgment it was necessary in this case to have the approval of the Local Government to the scale of fees chargeable under the Resolution of 18th January 1935.

Another question of law arose, and that is that the Resolution fixed no time for which license fees would come into operation.

In the circumstances of the case it is unnecessary to come to a conclusion with regard to that matter, but I may add that in passing a Resolution of this kind the Commissioners would be well-advised to fix such a date. The remaining point is whether the plaintiff is in the circumstances entitled to the relief which he claimed in the suit. In the second item he asked for an injunction restraining the Commissioners from taking proceedings against the plaintiff; that, it is clear, is a relief to which the plaintiff is not in any circumstances entitled; but, in my judgment, he was entitled to a declaration that the imposition of the fee for the plaintiff''s keeping the platform was ultra vires the Commissioners and that the plaintiff was entitled to a refund of the fees which, as I understand, were paid into the Court of the Munsif. The appeal of the Commissioners is dismissed and the judgment of the Court below set aside, the plaintiff being entitled to a decree for the relief indicated in this judgment.

Harries, C.J.

I agree.