1951 Supreme(All) 122

IN THE HIGH COURT OF ALLAHABAD
Wali Ullah, Agarwala and P. L. Bhargava, JJ.
MUNICIPAL BOARD - Appellant
Versus
MANOHAR LAL - Respondents
Letters Patent Appeal 28 Of 1946
Decided On : 07/27/1951

Headnote:

MUNICIPALITIES ACT - SECTION 293 - PROJECTION FEE - EXISTING PROJECTIONS - AUTHORIZATION TO CHARGE FEE - INTERPRETATION OF SECTION 293 - SCOPE AND APPLICABILITY - DISTINCTION BETWEEN NEW AND EXISTING PROJECTIONS - POWER TO LEVY FEES - CONDITIONS FOR ALLOWING USE AND OCCUPATION - RELATIONSHIP BETWEEN SECTIONS 209, 210, 211, AND 293 - OWNERSHIP OF AIR SPACE AND UPWARD LIMIT OF OWNERSHIP - GENERAL RULE AND EXCEPTIONS.

Fact of the Case:

The plaintiff, a resident of Kanauj, owned a house with a projection over a public street less than 25 feet wide. The Municipal Board of Kanauj levied a projection tax on the plaintiff's house under bye-laws framed under Section 298(E)(b) of the U.P. Municipalities Act, 1916. The plaintiff filed a suit challenging the legality of the tax, arguing that the bye-laws were ultra vires and that the Board had no right to impose a new tax on existing projections. The trial court held that the bye-laws were ultra vires insofar as they related to existing projections. On appeal, the Civil Judge of Farrukhabad remitted the issue of whether a projection existed on the plaintiff's building and the width of the street to the trial court. The trial court found that the projection was over the defendant's street, which was less than 25 feet wide, and that the defendant was not entitled to impose tax on that projection for that reason. The Civil Judge dismissed the appeal, holding that the bye-laws imposing projection tax on existing projections were beyond the scope of Section 298, List I (E)(c), Municipalities Act and that the bye-laws framed by the Municipal Board showed that the Board was not competent to permit projection over a street less than 25 feet wide. The Board appealed to the High Court, which held that the bye-laws were duly made but dismissed the appeal on the ground that it would be unjust and inequitable to charge a fee for projections existing before the bye-law was passed. A Division Bench of the High Court referred the question of whether Section 293 of the Municipalities Act authorized a Municipal Board to change a fee in respect of projections that existed prior to the enactment of the bye-law imposing such a fee to a Full Bench for opinion.

Finding of the Court:

The Full Bench held that Section 293 of the Municipalities Act authorized a Municipal Board to charge a fee in respect of projections over municipal property that existed prior to the enactment of the bye-laws imposing such a fee, provided that the person who made the projections had not acquired any title to the property over which the projection hangs and desired the Municipal Board to allow the projections to continue after the promulgation of the bye-laws imposing the fee.

Issues: 1. Whether Section 293 of the U.P. Municipalities Act, 1916, authorizes a Municipal Board to change a fee in respect of projections that existed prior to the enactment of the bye-law imposing such a fee. 2. Interpretation of Section 293 and its scope and applicability. 3. Distinction between new and existing projections in the context of projection fees. 4. Power of Municipal Boards to levy fees for use and occupation of municipal property, including projections. 5. Conditions for allowing use and occupation of municipal property, including projections. 6. Relationship between Sections 209, 210, 211, and 293 of the Municipalities Act in the context of projections and projection fees. 7. Ownership of air space and the upward limit of ownership, including the general rule and exceptions.

Ratio Decidendi: 1. Section 293 of the Municipalities Act empowers Municipal Boards to charge fees for the use or occupation (otherwise than under a lease) of any immovable property vested in or entrusted to the management of the Board, including public streets or places of which it allows the use or occupation, whether by allowing a projection thereon or otherwise. 2. The expression "allows the use or occupation whether by allowing a projection thereon or otherwise" in Section 293 is not confined to new projections only or to continued use or occupation of municipal land permitted in the future. It also applies to cases of existing projections or to continuance in the future of use or occupation that commenced in the past. 3. A Municipal Board can charge fees for allowing the use and occupation of municipal property, including projections, under Section 293, irrespective of whether such use or occupation has already existed for some time, provided that the land is still vested in the Municipal Board. 4. The power to charge fees under Section 293 is independent of the power to direct the removal of projections under Section 211 of the Municipalities Act. A Municipal Board may allow existing projections to continue and charge fees for their use and occupation instead of ordering their removal. 5. The charges levied under Section 293 are different from any charge that may be levied by the Board under Section 209 as a condition precedent to the making of a projection and thus allowing the use and occupation of municipal property in the future.

Final Decision: The Full Bench answered the question referred to it by holding that Section 293 of the Municipalities Act authorizes a Municipal Board to charge a fee in respect of projections over municipal property which existed prior to the enactment of the bye-laws imposing such a fee if the person who has made the projections has not acquired any title to the property over which the projection hangs and he desires the Municipal Board to allow the projections to continue after the promulgation of the bye-laws imposing the fee.