DEVASSIA Vs. CHANGANACHERRY MUNICIPALITY
HIGH COURT OF KERALA
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(1.)The petitioner was tried by the Second Class Bench of Magistrates, Changanacherry and convicted for an offence punishable under bye law 20 of the bye laws framed by the Changanacherry Municipal Council for contravention of bye law 1 which requires a licence to be taken for the storage for sale of tiles, bricks and surki in building No. 348 in Ward No. 6 of the Municipality. On appeal to the District Magistrate, Kottayam the conviction and sentence were confirmed. Aggrieved with the order he has come up in revision.
(2.)On the concurrent findings of the courts below it can be taken as proved that the petitioner was actually trading in these articles and that he had not taken out a licence for the user of the premises for such purposes. The first point raised by the learned counsel appearing for the petitioner is that the fee claimed by the Municipality in this ease cannot be said to be a licence fee, but is really a tax and the Municipality has no right to claim the amount and the accused's failure to remit the amount and take out a licence cannot be said to be a contravention of the provisions of the Act or the bye laws. It is true that courts have dealt with the question whether a particular fee claimed is licence fee or tax. Decisions have laid down that in fees there is always an element of "quid pro quo" which is absent in tax and in order that the collection made can rank as fees, there must be correlation between the levy imposed and the expenses incurred by the State for the purpose of rendering such services. But the decision of the question must necessarily depend upon the facts of each particular case and sufficient data must be produced to lay the foundation for an argument that it is really a tax and not a licence fee. In this case this point was not taken at all in the Courts below and as such the Municipality had no opportunity to adduce evidence. The petitioner, therefore cannot be permitted to raise the point for the first time in revision. It may incidentally be mentioned that the question whether the licence fee claimed by this particular Municipality is really a tax and not a fee had come up for consideration before this court in the case in Natesan Achari v. Municipal Council, Changanacherry ( 1960 KLT 843 ) and on the evidence adduced by the Municipality it was held that the fee charged as licence fee was neither unreasonably high nor arbitrary and that it cannot be considered to be a tax.
(3.)The next question that was urged was that notices ought to have been given to the petitioner before imposing the licence fee and as no notice was issued the imposition is illegal. I cannot agree. Here the offence is failure to take out a licence for user of the premises for any of the purposes mentioned in the schedule. It is the duty of the petitioner to pay the fee and take out a licence before he starts using the premises for any of the purposes and no notice is necessary or contemplated under the Act or the bye laws. The decisions relied upon by the petitioner relate to the imposition of profession tax and other taxes where notice seems to be imperative. No other points are urged.
The order of the lower court is confirmed and the revision petition is dismissed.
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