B.C.Mitra, J. - (1.) The petitioner in this application seeks appropriate writs and orders directing the respondents, their servants and agents not to demand the licence fee from the petitioner who is a purchaser of guts and entrails from the municipal slaughter house of the respondent No. 1. The petitioner is an exporter of guts, to various foreign countries, and for the purpose of his business he purchases from the licensed butchers of the municipal slaughter house offals, entrails and guts. After purchase of the materials the p etitioner claims to process such materials at is factory, and for this purpose he holds a trade licence from the respondent No. 1. The petitioner's case is that the Calcutta Municipal Act, 1951, (hereinafter referred to as the Act) and the Bye-laws framed under Section 527 (46) of the Act do not make any provision for imposing on, or realising from, the petitioner any licence fee as the buyer of guts and offals. The petitioner's contention is that he is a purchaser of the materials from the licensed butchers who pay licence fees for use of the municipal slaughter house. Section 456(a) (i) read with Section 548(2) makes provision for issuing of licence for the slaughter of animals in the municipal slaughter house upon payment of a fee. Bye-law 3(a) of the Bye-Laws framed under Section 527(46) of the Act provides that every person who intends to slaughter animals in a slaughter house shall make an application for such slaughter to the Superintendent of the slaughter house for a licence. An annual fee of Rs. 5/- is required to be paid under Bye-law 3(d) for such licence. Under Bye-law 1 no person other than a Veterinary Surgeon or an officer of the Directorate of Veterinary Services and Animal Husbandry is permitted to have access to a slaughter house, except for the purpose of slaughtering animals intended for human food, or for the purposes of skinning, cutting up, clearing carcasses of animals or purchasing meat, heads, skin or offal.
(2.) The petitioner's contention is that besides the annual fee, and other fees for licences for use of the Municipal Slaughter House and also for sale of meat, entrails and offal, the Act does not empower the respondents to impose or levy or demand any fee on the buyers of g uts, entrails and offals from the licensed butchers. According to the petitioner, neither the Act nor the Bye-laws authorise levy or realisation of any licence fee from the purchaser of entrails or guts. The fee has been realised from the petitioner from the financial year 1959-60 to March, 1962. The petitioner contends that the fee wrongfully levied by the respondents, was paid by him under duress in order to enable him to fulfil his contractual obligation with foreign buyers. In the year 1962-63 a sum of Rs. 12,500 was realised on account of licence fee and this amount was paid by the petitioner. The petitioner further contends that the illegal levy has been increased from year to year as in 1959-60 the fee realised was only Rs. 1600/-, in 1960-61 it was Rs. 10,000/-, in 1961-62 it was Rs. 10,000, and in 1962-63 it was raised to Rs. 12,500/-.
(3.) Mr. S.N. Coraj, learned counsel for the petitioner, contended that the imposition of a licence fee for purchase of entrails and offals was violative of the fundamental right of the petitioner regarding freedom of trade which was guaranteed by the Constitution. The second contention of Mr. Gorai was that the imposition was a tax and not a fee inasmuch as there was no quid pro quo. No benefits were conferred upon the purchasers of the entrails and offals in return for the money realised from them, nor were any services rendered to the purchasers by the respondents in return for the fees paid. It was, therefore, argued that the levy itself and its subsequent increase were illegal as there was no authority in law for such levy. Thirdly it was contended by Mr. Gorai that the payment was made from 1959-60 to 1962-63 under a mistaken view of the law.;