Judgment

KULDIP SINGH, J.: - The question before the High Court was whether the levy of fee under Section 295(2) of the Orissa Municipal Act, 1950 (the Act) was unjustified for non-compliance of the principle of quid pro quo. The High Court answered the question in the affirmative and quashed the collection of the fee and restrained the Municipal Council from enforcing the demand. This appeal by way of special leave is against the judgment of the High Court by Dhenkanal Municipal Council.

2. There is a Hat (weekly market) known as "Darbar Hat" within the jurisdiction of Dhenkanal Municipal Council. Market is held in the said Hat every Sunday. Large number of people congregate for sale/ purchase of various articles like cattle, food stuffs and groceries etc. During the financial year 1973-74 sum of Rs. 36,000/- was recovered by the Municipal Council as fee from the traders who attended the market. In the year 1974-75 the fee collected by the Municipal Council was Rs. 46,600 / -.

3. Raja Rao Dhanik, the respondent, challenged the levy of the fee by way of writ petition under Article 226 of the Constitution on the ground that no services were being rendered by the Municipal Council. According to him there were only three small size tin-sheds which were constructed many years back and at the time of the filing of the writ petition the sheds were in dilapidated condition. No amenities were provided in the area and the traders were forced to look after their own conservancy and convenience. There was no electricity in the market area. According to the petitioner the fee collected was put into the general funds of the municipality and no part of it was spent in providing amenities to the traders who met at the Hat on every Sunday. The only ground alleged before the High Court was that in the absence of quid pro quo the collection of fee was unauthorised and as such was liable to be struck down.

4. The additional counter-affidavit filed by the Executive Officer of the Municipal Council specifically stated that the budget estimate for the year 1974-75 included Rs. 55,000/- to be spent for providing amenities and services at the "Darbar Hat Market". The affidavit gave further details as under:

"4. That in pursuance of the budget estimate, the office has made the following estimate:-

(i) Construction of compound wall around Hat area Rs. 35,000/-.

(ii) To level the ground - Rs. 15,000

(iii) Construction of Hat Road Rupees 5,000/-.

5. That the following amenities have been provided by the Municipality till today. The Hat road leading from National High way to the Hat which is utilised only for the purpose of Hat has been electrified at huge cost. There was an existing well which is maintained, There are three existing tin shades for the purpose of the vendors displaying their articles for sale. There are two half constructed shades meant for the above purpose.

6. That besides the above amenities supplied the Hat is regularly cleaned and for sweeping the Hat average two sweepers are maintained. The pay of each sweeper is nearly Rs. 150/ - a month. Besides, during the rainy season to avoid epidemic, the hat is cleaned by use of disinfectant like bleaching powder.

7. That from out of the above expenditures, about Rs. 5,000/- is to be received as grant from the Government. Thus, the balance of about Rs. 47,000/ -would be spent during the year for the purpose of the market to give facilities to the traders and the consumers of the market and accordingly the farming out collection towards the fees collected from the market is quite reasonable and justified. Compound wall to the market area was felt to be a great necessity for the facility of the traders."

5. The High Court commented upon the affidavit reproduced above as under:

"According to Mr. Mohanty, the expenditures on various heads as indicated in the counter-affidavit of the Municipal Council, such as raising a wall around the market, laying roads up to the market area, of completing the sheds are in