JUDGMENT

H.C.P. Tripathi, J. - Samthar was formerly the capital of an Indian State which merged with the Union in January, 1950. It appears, before merger the town of Samthar had some sort of a Municipal Board for rendering service to its residents. After the merger the town of Samthar was declared a Notified Area and its administration was taken over by the Sub-Divisional Magistrate, Moth (District Jhansi) , who was appointed as an Administrator under Section 333 of the U.P. Municipalities Act as applied to Notified Areas. As the Notified Area Committee had till then not been constituted, he continued to exercise powers of the Notified Area Committee pending its establishment presumably under the aforesaid section of the Municipalities Act.

2. From the averments made by the parties in their affidavits, it appears that there is a large strip of open land belonging to the Notified Area which was formerly held by the Samthar Municipal Board in which a market is held for the sale and purchase of grains. This market is managed by the Notified Area which regulates the transactions of sale and purchase in accordance with its bye-laws framed in the year 1952 (Annexure A to the writ petition) . These bye-laws, inter alia, provide for charging weighment dues at the rate of Rs. 119/- per cent on the sales to be realised in equal proportions from the seller and the buyer. It has been urged on behalf of the appellants that the Notified Area has been realising such clues since the promulgation of the bye-laws in the year 1952.

3. The validity of the aforesaid bye-laws and the authority of the sub-divisional Magistrate acting for the Notified Area to charge such dues was challenged by the respondent by filing a writ petition, inter alia. in the assertion that the bye-laws had not been promulgated in accordance with law, that they had not been sanctioned by the Prescribed Authority namely, the Commissioner and that they were in the nature of a tax which the Notified Area was wholly incompetent to levy. The learned single judge, who heard the petition, reached the conclusion that the impugned bye-laws authorising the levy of the dues as referred to above had not been confirmed by the Prescribed Authority as envisage under Section 301 of the U.P. Municipalities Act and as such they were wholly illegal. The learned judge was of the opinion that the District Magistrate had no authority to sanction those bye-laws and. therefore, "the realisation of any fee or tax on the basis of such a bye-law is not warranted." Accordingly he allowed the Writ petition with costs. The present appeal is directed against the aforesaid order.

4. Shri V.N. Khare, learned counsel for the appellants, has argued that the imposition of this levy was not in the nature of a tax but a fee under Section 293 of the U.P. Municipalities Act, as applicable to the Notified Areas, that the bye law authorising imposition of such a fee was valid inasmuch as it had been sanctioned by the District Magistrate, who had been appointed as the Prescribed Authority by the State Government in exercise of its powers under clause (ii) of sub-sec. (17) of Section 2 of the said Act and that the contrary finding arrived at by the learned single judge was erroneous in law. The learned counsel in this connection has invited our attention to the provisions of clauses (i) and (ii) of Section 293 as applicable to the Notified Areas. He has urged that the bye-laws in terms indicate that while framing them the authority had in view not only Section 293 (i) but also Section 293 (ii) in view inasmuch as it has been provided therein that the aforesaid dues shall be realisable in the manner provided by Chapter VI of the U.P. Municipalities Act as applied to the Notified Areas learned counsel contends that by using the land of the Notified Area for the purposes of transacting their business both the seller and the buyer are liable to pay the aforesaid dues as provided in the bye-laws.

5. Shri S.N. Kacker lear