P.M.R.M.M. Sivasami Nadar and Others vs Municipality

Beasley, C.J.—These Civil Revision Petitions are against the decrees of the District Munsif of Madura in two small cause suits covered by a

common judgment. The petitioners here are the owners of certain motor buses and the suits, the subject of this petition, were tiled against the

Madura Municipality and the toll-gate contractors for refund of sums alleged to have been illegally collected by them in respect of the buses owned

by petitioners. The petitioners obtained license from the Madura Municipality for the second half year commencing from 30th September 1930 in

respect of two motor buses, M.D. No. 539 and M.D. No. 761, owned by them. That license entitled the vehicles to enter the Municipal limits

without the payment of any toll fee. On 16th October 1930 the Chairman of the Municipality, it is alleged, illegally cancelled the license in

consequence of which the petitioners had to pay toll-gate fee for the remaining period of that half year in respect of the two buses in question.

The main question in the suits was whether the license granted in respect of the suit buses was validly cancelled by the Chairman. This question

depends upon whether the petitioners obtained the license by misrepresentation or fraud and whether Section 321 of the Madras District

Municipalities Act applies to cases of licenses granted in respect of motor vehicles. If that section applies, then the question is whether there was

any misrepresentation or fraud on the part of the petitioners. The petitioners are residents of Aruppukottah and all their employees, conductors and

drivers, are also permanent residents of that place. The petitioners in C.R.P. No. 1941 of 1932 own a number of motor buses. Five of them are

plying for hire between Aruppukottah and Madura; and of these M.D. No. 539 is one. The petitioner in C.R.P. No. 1940 of 1932 is the owner of

a similar service called the Meenambika Motor Service and owns six buses plying for hire between the same two stations; and one of these is

M.D. No. 761. These two services and one other service called Muthumariamma Service formed themselves into an association called the

Aruppukottah Madura Motor Association and this association looks to the booking of passengers from Madura, keeps an office at Madura in

which there is an accountant employed. The petitioners applied to the Chairman of the Municipal Council by Exs. D and B, which are not before

me, for the issue of license u/s 102, Madras District Municipalities Act.

The license was granted to them on 30th September 1930 and subsequently the toll-gate contractor complained to the Chairman that the

plaintiffs had no sheds at Madura and were not keeping their buses at Madura and that therefore no license should have been granted to them.

Accordingly, the Chairman inspected the shed alleged to belong to the petitioners with the License Inspector and found that the sheds alleged to

have been engaged for parking the cars by the petitioners were not sufficient to hold all the cars belonging to the two services; and he consequently

cancelled the license so far as the suit buses were concerned. Section 78, Makdras District Municipalities Act, empowers every Municipal Council

to levy a tax on (d) carriages and animals. Section 93 provides that the tax on carriages and animals shall be a half yearly tax and shall be levied on

all carriages and animals, ''kept'' within the Municipality; and Section 99 provides that every person having possession, custody or control of any

taxable carriage or animal shall be liable for the full half yearly tax if the carriage or animal has been ''kept'' within the Municipality for an aggregate

period of not less than sixty days in the half year and Sub-section (4) of that section provides that every person having possession, custody or

control of any taxable carriage or animal within the Municipality shall be presumed to have ""kept'' the same within the Municipality for sixty days in

the half year. Section 102 requires the applicant for a license to fill up a printed form giving the information in writing as is required there.

The advantage which an owner of a motor bus obtains by getting a license is that he pays a sum of Rs. 250 in respect of each vehicle and this

entitles the vehicle to pass through the toll gates on Municipal boundaries without payment of any toll which would otherwise amount to a greater

sum than Rs. 250 for a similar period. As already stated, the inspection by the Chairman revealed the fact that the two cars in question were

standing on the public road without any accommodation. This, in the view of the District Munsif, was a sufficient justification for the Chairman care

calling the license; and he was of the opinion that, as the trip sheets maintained by the conductors which would admittedly show the number of trips

each bus had between Aruppukottah and Madura on a certain day and also the number of days on which each bus halted at Madura for the night

had not been produced, the petitioners had failed to show that these motor buses were ""kept'' in Madura. He next proceeds to deal with the

expression ''kept within the Municipality,''in Section 103. He is of the opinion that ''keep'' connotes a place where the particular article kept is

placed, that a person is said to keep'' a car if he either owns it or has it in his custody or possession or under his control, that it cannot be said that

a person ''keeps'' a car unless he has an accomodation to contain the car and that it cannot be contended for one moment that he can be keeping a

bus on the ""roadside permanently. I am quite unable to follow this argument.

The expression ''kept within the Municipality'' contains no such limitation. It is to be noticed that license fee is also leviable in respect of animals

kept within the Municipality. Because an animal may be tied up to one tree one day and allowed to graze in a field the next day and so on m

different fields on other days, can it be contended that, because there is no fixed place for tying up the animal, the license fee is not leviable? On the

question of law, I am of the opinion that the learned District Munsif has wrongly decided the case. It may be argued that he has disposed of it also

on a question of fact, namely, that the cars being found on the roadside it was the duty of the petitioners to prove that they were not habitually

parked in. that position but were accommodated within the sheds. This, I think, is an incorrect view of the position because Section 99(4) puts the

burden on the owner of a taxable carriage where he has the possession, custody or control of it to show that it has not been ''kept'' within the

Municipality for sixty days because by reason of that section the presumption is that every person having possession, custody or control of a

taxable carriage within the Municipality has kept the same within the Municipality for sixty days in the half year until the contrary is shown. A

person who keeps a motor vehicle in a street cannot be said to have parted with possession of it nor do I think necessarily that he has not got its

custody or has lost the control over it. I think that the facts were not sufficient to require the evidence which the learned trial Judge thought should

have been produced by the petitioners. Under these circumstances, in my opinion, the learned District Munsif''s view of the matter was incorrect

and his decrees must be set aside and the suits remanded for disposal as against the Municipality and not against the toll-gate Contractor and the

question to be decided is the amount to which the petitioners are entitled. The costs in the lower Court will abide the result of the trial on the

remand but the petitioners will be entitled to costs on both these petitions which are allowed.