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1954 Supreme(Raj) 282
Rajasthan High Court
Modi, J.
Ramjilal - Appellant
Versus
Municipal Board, Bhadra - Respondents
S.B. Civil R. Second Appeal No. 173 of 1951
Decided On : December 14, 1954
Chaitandas, for Appellant; Ganpatsingh, for Respondent
Headnote:(a) Municipalities—Bikaner Municipal Act, 1923, secs. 55 and 56—Bhadra Municipality— Bye-laws as to tah bazari.(b)—Municipality—Tah bazari not tax but rent which Municipality entitled to charge even though bye-laws under which it proceeds are invalid.
The plaintiff-appellant obtained a piece of open land 16 sq. Gaj in area from the defendant Municipal Committee of Bhadra for purposes of carrying on his trade and was paying a certain amount of rent per month, which is called Tah-bazari. The plaintiffs case was that lately the defendant had issued a notice to auction the aforesaid land and in pursuance thereof had held the auction on the 31st of August, 1947, and that the course of auction adopted by the defendant in auctioning the land was illegal. (Para 2)
The principal contention raised before the lower court and which was repeated in this Court was that the bye laws, for the regulation of Tah-bazari under which the defendant auctioned the land, were void, unenforceable and of no effect. The main contention raised on behalf of the appellant is that in the present case, the Government of the former State of Bikaner did not comply with sub-sec.(7) of sec. 56 and as it failed to specify a date on which the tax shall come into force, the bye-laws made by the Bhadra Municipality were of no effect whatsoever and no action could be taken under them. (Paras 3 and 5)
Held that Tah-bazari is really not a tax but it is a ground-rent of a stall or a site in a market. There is a clear distinction, between a tax and rent ; a tax is a compulsory exaction by the State for purposes of raising revenue, while Rent is a periodical payment by a tenant to the owner or landlord for use of his land or building. In other words, it is essentially a payment made by a person who uses the land to the landlord for use of that land is usually the result of a common agreement between the parties concerned. The imposition of Tah-bazari, therefore, is not properly speaking the the imposition of any tax and, therefore, the provisions of sec. 55(a) are not attracted. It further follows as a corollary that the provisions of sec.56(7) are also not called into operation. It is true that the defendant Municipal Committee endeavoured to regulate tah-bazari by certain bye-laws, which cannot be given effect to because neither the State Government nor the Municipal Committee notified that they would come into force with effect from such and such date. But even if this particular method of enforcing the rights of ownership and control which vested in the defendant would not receive effect by means of these bye-laws, the rights of the defendant, which it possesses under the Bikaner Act and under the general law of the land could not be taken away. If the particular mode of the exercise of its rights by the Municipal Committee of Bhadra failed! because the bye-laws were made in an imperfect manner, its vested right would not thereby vanish and it would be still open to it to exercise such rights as it possesses in law by any other alternative method which may be open to it under the ordinary law of the land. The defendant being the owner of the land in question without any doubt or dispute and the plaintiff being really a tenant or a lessee thereof, it was open to the former to terminate the lease of the plaintiff and give another lease on a more favourable rent if it so liked. (Para 6)
2. The plaintiff-appellant obtained a piece of open land 16 sq. gaj in area from the defendant Municipal Committee of Bhadra for purposes of carrying on his trade and was paying a certain amount of rent per month, which is called Tah-bazari. The plaintiffs case was that lately, the defendant had issued a notice to auction the aforesaid land and in pursuance thereof had held the auction on the 31st of August, 1947 and that the course of action adopted by the defendant in auctioning the land was illegal. The plaintiff alleged that all that the defendant was entitled to do was to recover the Tah-bazari and that it had no power to auction the land so long as the plaintiff was prepared to pay the agreed amount. The plaintiff therefore filed the suit, out of which the present appeal has arisen, for a perpetual injunction restraining the defendant from auctioning the land and form dispossessing the plaintiff so long as the letter was willing to pay the Tah-bazari agreed to between them. The plaintiff filed the suit on the 1st of September, 1947. The defendant resisted the suit by saying that the land in question belonged to the Municipality and that the status of the plaintiff was that of a tenant as well as he was required to pay a sum of Rs. 4/- per month for the land held by him, and that the defendant was within its authority in auctioning the land and letting it out to any other person who was prepared to pay a higher rent therefor. Both lower courts dismissed the plaintiffs suit and this has given rise to the present appeal.
3. The principal contention raised before the lower Court and which was repeated in this Court was that the bye-laws for the regulation of Tah-bazari under which the defendant auctioned the land, were void, unenforceable and of no effect. These bye-laws are published in the Bikaner Rajpatra, dated the 6th of December, 1941 and under notification No. 76 have been stated by the General Minister of the former State of Bikaner to have been farmed by the Bhadra Municipality under sec. 55 (A) and sec. 81 read with secs. 117 and 118 of the Bikaner Municipal Act (Act No. VI of 1923) (hereinafter referred to as the Bikaner Act). The contention of learned counsel for the appellant was that the bye-laws in question had been made by the Bhadra Municipality under sec. 55(A) with the previous sanction of His Highnesss Government as they were a tax and were so construed by the farmers of the bye-laws themselves and by the former Government of Bikaner. The relevant portion of sec. 55 reads as follows:—
"Subject to any general or special orders which His Highness my make in this behalf and to the rules, any board may, from time to time, in the manner directed by this Act, impose in the whole or any part of the municipality and of the following taxes, namely:—
(A) with the previous sanction of His Highness Government-any tax:—
4. Then follows sec. 56 which lays down the procedure for the imposition of a tax. The relevant portion of sec. 56 is in these words,—
56. (1) A board may, at a special meeting, pass a resolution to propose the imposition of any tax under sec. 55.
(2).................................................
(3)......................................................
(4)......................................................
(5)......................................................
(6)......................................................
(7) When any proposal of a board has been sanctioned by the Chief Controlling Revenue Authority or by the Chief Control ling Re venue Authority and His Highness Government as the case may be, His Highness Government shall notify the imposition of the tax in accordance with such proposal, and shall, in the notification, specify a date on which tax shall come into force.
(8)..................................................
(9) A notification of the imposition of a tax under this Act shall be conclusive evidence
