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High Court Of Madhya Pradesh
P. V. Dixit, C. J. , K. L. Pandey and N. M. Golvalker, JJ.
DHANIRAM - Appellant
Versus
JANAPAD SABHA - Respondents
Misc. Petn. 358 Of 1962
Decided On : 03/02/1965
Section 93 of the Act deals with the leasing out of the levy of those tolls and fees which are within the powers of the Janapad Sabha and are legal, and not ultra vires. So also section 94, when it provides that the moneys mentioned therein shall be recoverable as if they were arrears of land revenue, speaks of the arrears of those fees, cesses, tolls etc. and sums due from a contractor on account of the sale of right to levy fees and tolls, which are within the powers of the Sabha and can validly be imposed by it. It follows that if the Sabha had no power to impose the levy the collection of which was leased out to the contractor, the sums due against such a contractor cannot be realised as arrears of the land revenue under section 94 of the Act.
But the question whether besides as arrears of land revenue, such a sum can be recovered from the contractor not, left undecided. [Para 5
(2) Local Government Act, 1948 (C.P. & Berar) - S. 89 (d) - Sabha authorised to levy fees’ and not 'tax' - distinction between 'tax' and 'fee' - fees on registration of animals sold in the market - not related to the kind of the animals but related to the price of the animal - is a tax and not a fee - is beyond the powers of the Sabha.
The Janapada Sabha is creature of the statute and as such it can exercise only such powers of taxation and imposition of tolls or fees as are entrusted to it by the statute.
Under section 89 (d) of the Act or under any other provision of the Act, the Janapad Sabha has not been empowered to levy a 'tax' on the registration of animals sold in any public market, it can only levy, a ‘fee’. In order to constitute an imposition a 'fee', one of the, essential requisites is that there must be a co-relation between the fee collected and the service intended to be rendered. AIR 1954 SC 282, AIR 1954 SC 388, AIR 1954 SC 400 & AIR 1961 SC 459 relied on.
Where the imposition is on the basis, of three pies per rupee per head on the purchase money payable by the purchaser, there is no co-relation between the fee collected and the service intended to be rendered. Such an imposition is not a fee at all, but a tax.
If the levy of a fee on registration of cattle sold, is based not upon the kind of animal registered but upon the price paid in respect of animals of the same class, there is no co relation between the fee collected and the service rendered. The imposition is ultra vires the powers of the Sabha. ILR 1956 Nag. 102 relied on. 1962 JLJ 619 not approved. [Para 6
( 1 ) THIS is an application under Article 226 of the Constitution for the issue of a writ of certiorari for quashing proceedings initiated against the petitioners for recovery of an amount of Rs. 16,000/- said to be clue from them to the Janpad Sahha, janjgir, on account of a contract for recovery of "cattle sale registration fees" us if it were arrears of land revenue.
( 2 ) BY a notification issued on 31st March 1947 in exercise of the powers conferred on it by the Central Provinces and Berar Local Self Government Act, 1920, and the rales made thereunder, ihe District Council of Bilaspur imposed "cattle sale registration fees" at the rate of "three pies per rupee per head on the purchase money payable by the purchaser''. On the enactment of the Central Provinces and berar Local Government Act, 1948, repealing the C. P and Berar Local Self government Act, 1920, the Janapad Sabha, Janjgir, came into existence and that body continued the levy of the catile sale registration fees imposed by the notification dated 31st March 1947. The Jan-pad Sahha sold by public auction the right of collection of this fee for the period from 1st April 1957 to 31st March 1958 to the petitioner Dhaniram for a consideration of Rs. 32000/ -. The other applicant dhajaram furnished a surely bond for the payment of the amount of Rs. 32,000 by dhaniram to the Janpad Sabha. When the petitioner Dhaniram failed to pay to the janpad Sabha an amount of Rs. 16,000/-said to be due from him in respect of the contract, proceedings for recovery of the amount as if it were arrears of land revenue were started against both Dhaniram and Dhajaram.
( 3 ) THE petitioners contend that under Section 89 (d) of the Act of 1948 the Janapad sabha could impose only a fee and not a tax on the registration of animals sold in any public market; that the imposition made by the notification dated ihe 31st march 1947 was one of a tax and not of fees and was in excess of the powers conferred on the Janpad Sabha by the statute and thus illegal; that Sections 98 and 94 of the Act permitted the teasing out of the right to collect only those tolls or fees, which the Sabha could validly impose and not of those impositions which were in excess of or in contravention of the powers conferred on it by the Act, and likewise Section 94 enabled the Janpad Sabha to recover, as if it were arrears of land revenue, the amount of only those cesses, fees, tolls and rates which if had the power to levy; that as the imposition by the Sabha of cattle sale registration fee with reference to the sale price of the animal sold was illegal and beyond the powers of the Sabha, the lease to the petitioner Dhaniram of the right to collect the cattle sale registration lee was void and there was no liability on the petitioners to pay any amount under that lease to the Sabha; and that even if under the contract of lease the petitioners were liable to pay any amount to the sabha, in any case it could not be recovered as if it were arrears of land revenue.
( 4 ) SHRI Dabir, learned counsel for the petitioner, urged that the present case fell within the rule laid down by a Division Bench of this Court in Nagpur Kshatriya khatlk Samaj v. Corporation of the City of Nagpur, ILR (1986) Nag. 102 : ( (S) AIR 1956 Nag. 162) and was indistinguishable even on facts from that case; and that the imposition levied by the Janpad Sabha was a tax. On the other hand, Shri Sen, learned counsel for the Janpad Sabha, sought to support the validity of the imposition by relying on Manobar Vasudeo v. Gram Panchayat, Ratanpur, AIR 1962 Madh. Pra. 177, where a Division Bench of this Court distinguished the case of Nag-pur Kshatriya Khatlk Samaj ILR (1966) Nag. 102 : ( (S) AIR 1956 Nag. 152) (supra) and held on facts and circumstanced similar to those in the present case that the charge made by the Gram Panchayat, Ratanpur, for registration of the cattle sold in the market established by the Gram Panchayat with reference to the
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