Municipal Boards must justify licence fees based on actual services rendered; excessive fees may be deemed an illegal tax.

1. I regret that I have to differ from my brothers Jagdish Sahai and Bishambhar Dayal and to say that the appeal deserves to be dismissed.

2. The Municipal Board framed Rickshaw bye - laws in exercise of the power conferred upon it under S.298 (II) - List I - H (c) and (d) and 294. It is not in dispute that it could in exercise of the power frame the bye - laws imposing the obligation of taking out licences on the proprietors and drivers of rickshaws and fixing the fees payable for the licenses. What is contended is that cl.(12) of the bye - laws fixing a fee of Rs.30/-for a licence granted to a proprietor, and cl.(14) fixing a fee of Rs.5/- for a licence granted to a driver, of a rickshaw are invalid, because the total amount realised from the licence fees far exceeds the expenses incurred in the regulation of the plying on hire of rickshaws. It was contended in the plaint that the Board could charge a licence fee just to cover the probable expenses of regulating the trade of plying rickshaws on hire and could not make the licence fee another source of income to augment its general fund, that it maintains no extra staff to regulate the trade of plying rickshaws on hire, that it could at the most charge only a nominal fee for the licences and that consequently the licence fees are unreasonable and beyond the statutory powers of the Board.

3. The bye - laws were made in March, 1941, the licence fees originally fixed were Rs.25/- and Re.1/-, but they were enhanced to Rs.30/- in March 1948, and to Rs.57/- in February 1951, respectively. The suit challenging the bye - laws was instituted in 1956. The appellants did not plead that cls. (12) and (14) were invalid, either in 1941 when the bye - laws were enacted, or in 1948 and 1951 when the clauses were amended and the licence fees enhanced. Though they pleaded that the clause of action accrued when the bye - laws were enacted and when cls. (12) and (14) were amended, they did not specifically plead that the aggregate amount of the fees realised from the licensees in 1941 or even in 1948 and 1951 exceeded the expenses of regulating the trade so much as to be unreasonable and to amount to imposition of a tax.
A reading of the plaint suggests that they filed the suit on the basis that at the time of the institution of the suit the income from the licence fees far exceeded the expenses of regulating the trade. If that is their case, a question would arise whether a bye - law, charging a licence fee which is reasonable and within the statutory powers and, therefore, valid, becomes invalid because at a later date the income becomes unreasonably high in comparison to the expenditure. That question has not been discussed by the trial Court and by my learned brothers. If a bye - law valid on the date of its being made remains valid in spite of change of circumstances, i.e., a Board is not obliged by law to go on continuously amending its bye - laws as relevant circumstances change, I do not see how the bye - laws in question, not alleged to be invalid on the dates when they were enacted or amended, can be declared as invalid because the relevant circumstances have changed since then.

4. We are concerned with two licence fees, one realised from Proprietors to whom licences are granted and the other realised from drivers to whom liceaices are granted. If the total income far exceeds the expendiure in regulation of the trade, it may still be that the total income from proprietors or the total income from drivers does not far exceed the total expenditure on the regulation of the trade and in