Decided on January 17,1967

HAJEE A. P. ANDREW Respondents


- (1.) THIS appeal is by the Health Inspector, Municipal council, Ernakulam against the order of acquittal passed by the Bench magistrate's Court, Ernakulam in Summary Case 215 of 1965 on the file of the said court.
(2.) THE respondent Hajee A. P. Andrew was prosecuted by the Health Inspector for failure to take the requisite licence from the municipal Commissioner for conducting the non-vegetarian refreshment room at the railway junction. Ernakulam where he was making and storing comestibles for sale. THE period for which the licence fee was demanded was 1964-65. THE licence fee payable by the accused, according to the municipal council, is Rs. 122. THE accused stated that he is not bound to take any licence from the municipality since he was already a licensee under the railway administration and that the annual licence fee he was paying to the railway administration is rs. 3,000. He also stated that no services were rendered to him by the municipality to enable them to collect any licence fee from him. He is being given instructions from time to time regarding the sanitation etc. , from the railway sanitary staff and he is, therefore, not bound in any event to pay any fee to the municipality and take a licence. THE learned Magistrate accepting this plea of the accused has acquitted him. The question that arises for determination in this appeal, is whether the accused who is running a non-vegetarian refreshment room at the railway station within the railway premises under a licence from the railway administration, is bound to take another licence from the municipality. The question has to be approached from two stand-points and they are: (1)whether he is entitled to exemption under S. 279 of the Kerala Municipalities act, 1960 (shortly stated the Act); and (2) whether the element of quid pro quo as a condition precedent is to be established before the municipality demands any licence fee from the accused. S. 279 of the Act enjoins an exemption from taking out licence in certain cases. The section reads: " Nothing in this Chapter shall be construed as requiring the State Government or the Central Government to take out a licence in respect of any place in the occupation or under the control of or any property belonging to such Government. " It has clearly come out from the evidence of D. W. 1 the station master that both the vegetarian and non-vegetarian refreshment rooms are run by the 'railway for the convenience of the railway passengers. The supervision and control of both the refreshment rooms is vested in the railway administration with the difference that the vegetarian refreshment stall is run directly by the railway department, while the non-vegetarian refreshment room is run by an approved licensee. The argument advanced for the municipality was that the exemption under S. 2/9 of the Act would apply only to vegetarian refreshment rooms and not to the other since the latter is not run directly by the department. I do not see any scope for such a contention, because in effect both the categories of refreshment stalls are run by the department the vegetarian by the servants of the department themselves and the other by a licensee approved and controlled by the department. S. 279, therefore, is applicable, and no licence is required to be taken by the railway department which is part of the Central Government.
(3.) THE second question would turn upon the doctrine of quid pro quo which means "something for something", in other words, it means "consideration". THE following observation appearing in THE corporation of Calcutta v. Liberty Cinema AIR. 1965 SC. 1107, is particularly instructive in this connection: "public interest seems to be at the basis of all impositions, but in a fee it is some special benefit which the individual receives. In the case of fees for services the Government does some positive work for the benefit of persons and the money is taken as the return for the work done or services rendered this court was presumably of the view that those were services to the institutions making the levy a fee, for it declared the levy invalid on the ground it was not correlated to the costs of these services and therefore was a tax which was beyond the competence of the Madras legislature which had enacted the statute. It would appear that the services here considered were not for controlling the institutions but for doing work which secured to them their funds and the proper application of them. " Thus 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. THE fee claimed in the present case has to be approached from this background. THE Health Inspector P. W. 1, has candidly admitted that the railway sanitary staff is in charge of the railway premises and that the municipal sweepers are not allowed to enter the railway premises without the permission of the station master: "municipality sweepers railway station psa AI versus t]mimdna Railway station sweepers -Dw sanitary inspectors Dw D-v. P. W. 1 has tried to draw a distinction between the sanitation work of the vegetarian refreshment stall and that of the non-vegetarian refreshment stall; but the station master as D. W. 1 has discredited the attempt at such discrimination and he has stated that the sanitation of both the vegetarian and non-vegetarian refreshment rooms is in the charge of the railway sanitary staff. Learned counsel for the appellant pointed out that instructions are being given from time to time by the Health inspector in respect of the sanitation of the refreshment rooms and that is tantamount to rendering services and that is a sufficient quid pro quo to justify the demand of the licence fee. Such a contention was put forward in the decision of the Supreme Court cited supra and the contention was overruled by the learned judges in the following terms: "in order to make a levy a fee for services rendered the levy must confer special benefit on the persons on whom it is imposed. No case has been brought to our notice in which it has been held that a mere control exercised on the activities of the persons on whom the levy is imposed so as to make these activities more onerous is service rendered to them making the levy a fee. " In short, no reciprocal service is rendered by the municipality for the exaction of a fee from the accused. In the first place, the refreshment room is run by the railway administration through its licensee, and secondly there is no quid pro quo behind the demand. In either view no liability can be fastend upon the accused for not taking a licence. The acquittal in the circumstances is proper and in confirmation of the same the appeal is dismissed. Dismissed.;

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