Sinha, J. - (1.) The Raigunj Municipality (hereinafter referred to as the "Municipality"), was constituted on the 15th August, 1951. Previously there existed merely an Union Board. After the partition of the old district of Dinajpur, Raigunj became a subdivision of the district of West Dinajpur. It is not disputed that jute has always been and still is the main industry there. But there is also considerable trade in rice, paddy and timber. On the 16th July, 1952, the Commissioners of the Municipality passed the following resolution: "Regarding Item No. 5A, it is unanimously resolved that within the Municipal area persons engaged in occupations mentioned in section 370(1) (ii), (ix), (x), (3d), (xii) only for wood and jute and (xiii) be required to take licenses under the above section 370 of the Bengal Municipal Act and that the State Government be moved to approve the levy of fees at 75 p.c. maximum laid down in Schedule IV, Part III, of the Act for the license." This resolution was modified by another resolution passed by the Commissioners of the said Municipality on the 30th July, 1952. It runs thus: "It is unanimously resolved that as in resolution No. 5 on 16th July, 1952, the Part III of Schedule IV was incorrectly taken as applicable for fees under section 370 of the Bengal Municipal Act, 1932, the following scales of fees be recommended in modification of that resolution for adoption in this Municipality." JUDGEMENT_34_LAWS(CAL)5_1955_1.html
(2.) The petitioner in this application is a jute merchant and stores jute within the jurisdiction of the Municipality. We are, therefore, concerned in this case with the license fee relating to the storing of jute. The rate was sanctioned by Government on or about the 25th April, 1953. Thereafter, bills have been served on the petitioner demanding the payment of the fees said to be calculated at the rate above mentioned. On the 24th November, 1953, this Rule was issued upon the opposite parties to show cause why a Writ in the nature of Mandamus should not be issued directing them to cancel and/or withdraw and/or forbear from giving effect to, the resolution dated 1.8.53., mentioned in the petition and/or from realizing any fee pursuant to the said resolution and/or why such further or other order or orders should not be made as to this Court may seem fit and proper. The date of the offending resolution is not the 1st of August, 1953. What happened was that the resolution was sanctioned by the Commissioner, under powers delegated to him by the State Government, and took effect from the 1st August 1953. The mistake arose from the fact that the municipality did not afford inspection of the impugned resolution, prior to the making of this application. However, before me, the parties have proceeded upon the footing that the impugned resolution is the one passed on the 30th July, 1952, which came into operation on and from the 1st August, 1953.
(3.) The contention of the petitioner in this application will be clear if we examine the nature of the resolution regarding the storing of jute, and the rate fixed for the license fee in respect thereof. Usually the license fee is a fixed amount to be paid in advance. But in this case, the license fee has been fixed at a sum calculated at the rate of "two annas a year per maund." It is not easy to comprehend what it exactly means, but I am told that the intention is to charge two annas per maund upon the total quantity of jute stored in a particular year in a godown, for which the license was being issued. The objection of the petitioner in short is that this imposition is in the nature of taxation, and that it is not a license-fee at all. It is argued that neither the State Legislature, nor the Municipality has jurisdiction to tax the storage of goods, i.e., levy a tax on the storage of goods, and, therefore, this was a colourable attempt to levy an imposition which they had no jurisdiction to impose. It is first of all necessary to consider the relevant provisions of the Bengal Municipal Act (hereinafter referred to as the 'Act').;