Decided on April 17,1958

Haralal Poddar Appellant
The Municipal Board And Ors. Respondents


G. Mehrotra, J. - (1.)THIS Rule was issued on an application under Article 226 of the Constitution, praying for issue of a writ of Mandamus, Certiorari or other suitable writ, directing the Municipal Board of Dibrugarh to cancel, recall or forbear from giving effect to its resolutions dated 12 -2 -1957 and 21 -3 -1957 fixing enhanced rates of fees for different stalls of the Municipal market and the sale by public auction, held on 14 -2 -1957 for the settlement of the Municipal market.
The Petitioner carried on business of selling fresh vegetables and similar other food -stuffs for the last 13 years by keeping a stall in the municipal market of Dibrugarh town, on payment of fees to the lessee of the said municipal market. For running the said stall in the municipal market, the Petitioner had been paying Rs. -/4/ - only per day since 1945. The chairman, Municipal Board, Dibrugarh by publishing a notice dated 2 -1 -1957, notified the sale by public auction of the right to collect the authorised fees in respect of the municipal market of Dibrugarh, consisting of Zones A and B to be held on 14 -2 -1957 at 10 a.m. for a period of one year from 1 -4 -1957 to 31 -3 -1958. The conditions for the sale of the aforesaid markets by public auction were published on 31 -1 -1957 by the Chairman.

On 31 -1 -1957, the Chairman Dibrugarh Municipal Board -Respondent No. 2 published a notification showing the enhanced rates of fees for the two Zones of the municipal market. This publication of the enhanced rates affects the business of the 'petition or as the rates have been substantially enhanced. On 7 -2 -1957, the Bazar Committee of the Municipal Board consisting of the opposite parties Nos. 3 to 8 in a proceeding held in the municipal meeting hall, decided to enhance the rate of fees for the different stalls of the municipal market.

The decision of the Bazar Committee was then issued in the name and under the signature of the Chairman. On 12 -2 -1957, the proceedings of the Bazar Committee held on 7 -2 -1957 were placed before the Board and were approved by majority of the members. Against this enhancement, the citizens of Dibrugarh filed a petition before the Deputy Commissioner, asking him to direct the stay of the operation of the resolution of the Board. It was pointed out to the Deputy Commissioner that the enhancement of the fees will affect the price of the consumer goods.

The Deputy Commissioner stayed the operation and called for a report from the Chairman. On 23 -2 -1957, a report was submitted by the Chairman to the Deputy Commissioner. On 21 -3 -1957, an emergent meeting was held in which the Board accepted the Chairman's suggestion regarding the rate of enhancement and thus the earlier enhanced rates were modified. In the meantime the auction sale of the right to collect fees had already taken place on 14 -2 -1957 and the settlement had been made in favour of the Respondents Nos. 9 and 10.

In the emergent meeting, it was also suggested that as the rates of fees have been modified, a fresh auction should take place; but it was decided that Respondents Nos. 9 and 10 who were the highest bidders in the earlier auction of the markets should be given right to collect fees at the modified rates. On 27 -3 -1957, after considering the report of the Chairman, the Deputy Commissioner rejected the representation made by the members of the public. Another application was made challenging the enhancement of the rates of fees by some of the stall -keepers by their application dated 23 -3 -57, which was also rejected by the Deputy Commissioner by his order dated 31 -3 -1957.

On these facts, the present petition was filed in this Court on 20 -5 -1957 and the Rule was issued.

(2.)THREE points have been canvassed before us by Mr. Ghose who appears for the Petitioner. Firstly it is urged that Section 140 of the Assam Municipal Act, which empowers the Board at a meeting to impose tolls and fees for the right to expose goods for sale in the municipal market is ultra vires inasmuch as it gives unrestricted and very wide powers to the Board to levy tolls and fees. The argument in effect is that the Petitioner has a right to carry on his business of selling vegetables and other similar food -stuffs and the power given to the Board to impose tolls and fees on the stall -holders in the municipal market restricts such a fundamental right guaranteed under Article 19(1)(g) of the Constitution.
The power given to impose tolls and fees being in very wide terms and capable of being arbitrarily exercised, cannot be regarded as a reasonable restriction on the right to carry on trade and the provisions of Section 140 are thus not saved under Article 19(6) of the Constitution.

Reliance was placed on the case of Dwarka Prasad Laxmi Narain v. State of U.P. reported in : AIR 1954 SC 224 (A). Emphasis was laid on the following observations at page 227 of the report: Legislation, which arbitrarily or excessively invades the right, cannot be said to contain the quality of reasonableness, and unless it strikes a proper balance between the freedom guaranteed under Article 19(1)(g) and the social control permitted by Clause (6) of Article 19, it must be held to be wanting in reasonableness.

The order which was impugned in that case was 'Uttar Pradesh Coal Control Order, 1953.' Clause (4)(iii) of the U.P. Coal Control Order which was attacked in that case was in the following terms:

The Licensing Authority may grant, refuse to grant, renew or refuse to renew a licence and may suspend, cancel, revoke, or modify any licence or any terms thereof granted by him under the Order for reasons to be recorded. Provided drat every power which is under this Order exercisable by the Licensing Authority shall also be exercisable by the State Coal Controller or any person authorised by him in this behalf.

The Petitioner's licence had been cancelled and it was the order of the cancellation, in the exercise of the, power under Clause (4)(iii) of the order which was challenged in that case. It was held by the Supreme Court that as the power of cancellation given under Clause (4)(iii) was unrestricted and arbitrary in nature, such provision was hit by Article 19(1)(g) of the Constitution. There are two answers to this contention. Firstly the Petitioner is using the municipal market for carrying on his business of selling vegetables.

If the Municipal Board is given power to impose toll or to levy fee for the exercise of such a right to expose goods for sale in its market and for the use of stalls standing thereon, it cannot be said to infringe the Petitioner's fundamental right of carrying on business under Article 19(1)(g) of the Constitution What is restricted by levy of fee is the right to carry on business in the municipal market; but there is no restriction placed by Section 140 on the right of the Petitioner to carry on business in general.

The second answer to this contention is that Section 140 does not give any arbitrary or unrestricted power. Section 140 reads as follows:

The Board at a meeting may charge rents, tolls and fees for the right to expose goods for sale in a municipal market and for the use of shops, stalls and standings therein.

The whole object of giving such power is to give right to the Board to realise such amount from the shopkeepers as may be essential for the maintenances of the market. The power is thus restricted for the object under the said power and it cannot be said that Section 140 itself contains a quality of unreasonableness and is hit by Article 19(1)(g) of the Constitution. It was argued by the Counsel for the State that the Board has also not been given arbitrary and unfettered power.

If any fee levied is exorbitant the vegetable sellers can always approach the Deputy Commissioner under Section 291 as they did in this case, and he will examine the question on the merits. It cannot, therefore, be said that the power is uncontrolled. As we have held that the limitation on the power is to be found in the Act itself, it is not necessary to examine this argument.

(3.)THE next contention raised by the Petitioner's Counsel is that Section 140 only authorises the levy of tolls and fees which necessarily implies an idea of quid pro quo, the amount to be fixed as toll and lee should necessarily be correlated to the services rendered and under the garb of tolls and fees, it is not open to the Board to impose a tax. The power to impose tax has been given under Section 59 of the Act and as the present imposition neither comes under any of the Sub -sections nor it has been imposed after adopting the procedure for the imposition of the tax, the resolution enhancing the fee cannot be upheld.

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