Decided on April 18,1967

H.K. UMMAR Respondents


- (1.) This appeal is against acquittal. The accused was prosecuted by the Cannanore Municipality before the Sub-Magistrate, Cannanore in C. C. 1017/66 for running a non vegetarian refreshment room in the railway station building at Cannanore without license. The charge was denied by the accused.
(2.) The prosecution was under S.284 of the Kerala Municipalities Act which provides that: "........................... no place within municipal limits shall be used for any one or more of the purposes specified in Schedule III without the licence of the commissioner and except in accordance with the conditions specified therein and where the licence is for keeping hostels, restaurants ............ the licence issued by the commissioner shall always contain and be deemed to contain a condition that admission or service therein shall be available to any member of the public....." For this rule to apply, the prosecution must show in the first place that the restaurant in conducted within the municipal limits; but in the present case the evidence is to the effect that the restaurant is run in the railway station building, and if it is shown that the restaurant itself is run by the Central Govt. or the State Govt. the exemption adumbrated under S.279 would apply; but no specific plea to that effect is seen to have been raised in the case. The acquittal has, however, been entered on the ground that there is no 'quid pro quo' to support the levy. The view taken by the learned Magistrate, I think has to be upheld. The dictionary meaning of quid pro quo is 'something for something'. For the municipality to demand a licence fee, it must be shown that in return, some service or other should be rendered to the person by the municipality; in other words, in order that the licence fee may be justified some special benefit must be conferred on the person on whom the fee is imposed. It was so held by the Supreme Court in The Corporation of Calcutta v. Liberty Cinema ( AIR 1965 SC 1107 ).
(3.) Learned counsel argued that the fee in question must be treated as a tax and in that case the element of quid pro quo need not be present. I cannot agree with the contention. The levy now demanded is by way of licence fee and not tax. The imposition of licence fee can be justified only on proof of quid pro quo. In the present case the evidence of pw. 1 is sufficient to show that no special service is rendered by municipality to the accused The view taken by the learned Magistrate is hence correct and in confirmation of the order of acquittal the appeal is dismissed.;

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