- (1.) THIS is a second appeal by the plaintiff Ramjilal in a suit for injunction.
(2.) THE plaintiff-appellant obtained a piece of open land 16 sq. gaj in area from the defendant Municipal Committee of Bhadra for purposes of carrying on his trade and was paying a certain amount of rent per month, which is called Tah-bazari. THE plaintiff's case was that lately, the defendant had issued a notice to auction the aforesaid land and in pursuance thereof had held the auction on the 31st of August, 1947 and that the course of action adopted by the defendant in auctioning the land was illegal. THE plaintiff alleged that all that the defendant was entitled to do was to recover the Tah-bazari and that it had no power to auction the land so long as the plaintiff was prepared to pay the agreed amount. THE plaintiff therefore filed the suit, out of which the present appeal has arisen, for a perpetual injunction restraining the defendant from auctioning the land and form dispossessing the plaintiff so long as the letter was willing to pay the Tah-bazari agreed to between them. THE plaintiff filed the suit on the 1st of September, 1947. THE defendant resisted the suit by saying that the land in question belonged to the Municipality and that the status of the plaintiff was that of a tenant as well as he was required to pay a sum of Rs. 4/- per month for the land held by him, and that the defendant was within its authority in auctioning the land and letting it out to any other person who was prepared to pay a higher rent therefor. Both lower courts dismissed the plaintiff's suit and this has given rise to the present appeal. The principal contention raised before the lower Court and which was repeated in this Court was that the bye-laws for the regulation of Tah-bazari under which the defendant auctioned the land, were void, unenforceable and of no effect. These bye-laws are published in the Bikaner Rajpatra, dated the 6th of December, 1941 and under notification No. 76 have been stated by the General Minister of the former State of Bikaner to have been farmed by the Bhadra Municipality under sec. 55 (A) and sec. 81 read with secs. 117 and 118 of the Bikaner Municipal Act (Act No. VI of 1923) (hereinafter referred to as the Bikaner Act ). The contention of learned counsel for the appellant was that the bye-laws in question had been made by the Bhadra Municipality under sec. 55 (A) with the previous sanction of His Highness's Government as they were a tax and were so construed by the farmers of the bye-laws themselves and by the former Government of Bikaner. The relevant portion of sec. 55 reads as follows: - "subject to any general or special orders which His Highness my make in this behalf and to the rules, any board may, from time to time, in the manner directed by this Act, impose in the whole or any part of the municipality and of the following taxes, namely: - (A) with the previous sanction of His Highness' Government-any tax: - Then follows sec. 56 which lays down the procedure for the imposition of a tax. The relevant portion of sec. 56 is in these words, - 56. (1) A board may, at a special meeting, pass a resolution to propose the imposition of any tax under sec. 55. (2 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (3 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (4 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (5 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (6 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (7) When any proposal of a board has been sanctioned by the Chief Controlling Revenue Authority or by the Chief Control ling Re venue Authority and His Highness' Government as the case may be, His Highness' Government shall notify the imposition of the tax in accordance with such proposal, and shall, in the notification, specify a date on which tax shall come into force. (8 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (9) A notification of the imposition of a tax under this Act shall be conclusive evidence that the tax has been imposed in accordance with the provisions of this Act. The main contention raised on behalf of the appellant is that in the present case the Government of the former State of Bikaner did not comply with sub-sec. (7) quoted above and as it failed to specify a date on which the tax shall come into force, the bye-laws made by the Bhadra Municipality were of no effect whatsoever and no action could be taken under them. It is necessary to point out in this connection that there was no General Clauses Act enacted in the former State of Bikaner by the half of which an effect date of Bikaner by the help of which an effect date can be assumed and supplied in the enforcement of these bye-laws It is admitted before me that the notfication imposing the tah-bazari dated the 27th of November, 1941 did not specify the date on which it was to come into force. It is true that the bye-laws under reference were confirmed by His Highness' Government and had also been published in the State Gazette, but it was argued that that per se was not enough and that it was obligatory under the Bikaner Act for the Government to have specified a date in their notification from which the tax was to come into force. This contention is all right so far as it goes because it seems to me to be well established that a taxing provision must be construed strictly and bye laws made by a local authority must satisfy all the conditions which are laid down by law for enacting and enforcing them. Reference may be made in support of this view to The Borough Municipality of Amalner vs. The Pratap Spinning, Weaving and Manufacturing Co. Ltd (1) - "statutes which impose pecuniary burdens are subject to the rule of strict construction. Usually this rule of strict construction is applied in cases where it is doubtful whether the taxing Act really touches the person or the subject taxed But the same approach will have to be adopted if it is found that power is confir-red upon a local body to levy taxes on condition that the local body follows the procedure prescribed by the Act before levying such a tax. In other words, if the provisions of the Act in effect emphasis that compliance with the preliminary procedure amounts to a condition precedent before the levy of the tax, it would not be open to the local body to contend that the tax levied by it or the rule framed by it in that behalf should be benevolently construed and its failure to comply with the preliminary procedure should be condoned. " The question to determine however is whether Tah-bazari is a tax and its imposition fails within the four corners of sec. 55 (a) of the Bikaner Act. The question is not free from difficult, particularly because the framers of the bye-laws in question appear to have construed it as a tax. If it is a tax under sec, 55 (a), then the Provisions of sec. 56 are at once attracted and a date must have been fixed for the coming into force of these bye-laws and as such a date was not fixed, one of the conditions precedent for the enforcement of the bye-laws was not given effect to and it would follow therefore that the said bye-laws could not receive effect and remained a paper affair only. Having given the matter my most careful and anxious consideration, I have reached the conclusion, however, that tah-bazari is not a tax. This expression has not been defined any where in the Bikaner Act. Fallon's New Hindustani-English Dictionary defines tah-bazari as the ground or site of a market and tah-bazari as the ground rent of a stall in a market. No other definition was placed before me. It is clear, therefore, that tah-bazari is really not a tax but it is a ground-rent of a stall or a site in a market. There is a clear distinction, in my opinion between a 'tax' and 'rent' A tax is a compulsory exaction by the state for purposes of raising revenue. It is generally distinguished from a fee by saying that the latter is levied for some service to certain person and it is not meant to augment the general revenue but is usually fixed at such a level as to meet the expenses of the service rendered in connection with the matter for which the fee is levied. See Maharaja Shri Umaid Mills Ltd. vs. State of Rajasthan (2 ). This distinction between a 'tax' and a 'fee' is, however, immaterial for purposes of sec. 55 (a) of the Bikaner Act, as it appears to me to cover both taxes and fees strictly so called. What is of importance for our present purposes is that a tax or a fee is essentially different from 'rent'. "rent" is a periodical payment by a tenant to the owner or landlord for use of his land or building. In other words it is essentially a payment made by a person, who uses the land, to the landlord for use of that land and is usually the result of a common agreement between the parties concerned. It is not at all a compulsory payment rightly understood. It is necessary in this connection further to remember that under sec. 51 of the Bikaner Act, subject to any special reservation made or to any special conditions imposed by His Highness' Government, all markets and all public streets and public land in a municipal town vested in and would be under the control of the Municipal Board. It follows, therefore, that the defendant was the owner of the land occupied by the plaintiff in the present case and had complete control over it. It was within its authority when it leased out such land and charged rent for it. Must it be said that when it was charging tah-bazari or ground-rent for site within the four walls of a municipality, it was levying a tax or a fee ? I am of opinion that what the municipality does in such a case when it lets out some land to be under the occupation of somebody and charges something for it, is not to levy a tax of a fee but it only charges a rent. I am further of opinion that when she municipality does so, it really exercises the right which any owner of land exercises. I also think that it must be allowed to exercise such a right unless there is any law which prevents it from doing so. But no such law has been brought to my notice which takes away this power from the municipality. I have, therefore, arrived at the conclusion that the imposition of tah-bazari is not properly speaking the imposition of any tax and, therefore, the provisions of S. 55 (a) are not attracted. It further follows as a corollary that the provisions of sec. 56 (7) are also not called into operation. It is true that the defendant Municipal Committee endeavoured to regulate tah-bazari by certain bye-laws. It seems to me that the said bye-laws, even if they are held not to have been made under sec. 55 (a) but under sec. 129 which is the general section for the making of bye-laws by a board, no affect can be given to them because although they have been confirmed by the State Government and also published and all the other procedure for the making of such bye-laws, had been followed, cannot be given effect to because neither the State Government nor the Municipal Committee notified that they would come into force with effect from such and such date. They would, therefore, remain a dead letter. The matter, however, does no rest there I say so because even if this particular method of enforcing the rights of ownership and control which vested in the defendant would not receive effect by means of these bye-laws, the rights of the defendant, which it possesses under the Bikaner Act and under the general law of the land could not be taken away. I am of opinion that |if the particular mode of the exercise of its rights by the Municipal Committee of Bhadra failed because the bye-laws were made in an imperfect manner, its vested right would not thereby vanish and it would be still open to it to exercise such rights as it possesses in law by any other alternative method which may be open to it under the ordinary law of the land. The defendant being the owner of the land in question without any doubt or dispute and the plaintiff being really a tenant or a lessee thereof, it was open to the former to terminate the lease of the plaintiff and give another lease on a more favourable rent, if it so liked. I may state in this connection that so far as the former State of Bikaner was concerned, there was no valid law which placed any restrictions on the rights of landlords as against their tenants in the matter of their eviction in 1947 It was held in The State vs. Megraj (3) by a Division Bench of this Court to which I was a party that the Defence of India Act and the Rules applied to the former State of Bikaner came to an end on 30th of September, 1946, and that no steps were taken to keep any part of the Rules alive later as was done in what was then British India and in some of the other States which are now part of the State of Rajasthan. The Bikaner State Rent Restriction Order, 1942, and the Prevention of Eviction Order, 1942, therefore, spent their force from the 1st October, lv46. Any subsequent modification of those orders would be of no avail because the Orders themselves, of which any modification was or might have been intended, lost their validity and existence. The position then reduces itself to this that the defendant Municipal Committee was the owner of the suit land which was under the occupation of the plaintiff and that it intended to terminate the plaintiff's lease which it had the authority to do under the general law of the land by giving a reasonable notice of such termination and as a preparation for giving a further lease, the Municipal Committee wanted to let out the land by public auction. There was, in my opinion, no legal impediment to the course of action adopted by the Committee because there is no law which prohibited it from auctioning its land and which any owner of land may well do in the exercise of his or its ordinary rights of ownership and there was no law in 1947 in the nature of restricting the eviction or any similar rights of the landlord in the former State of Bikaner. No content on has been raised before me that the plaintiff had no reasonable notice in the present case and I may also add that the Transfer of Property Act was not at all in force in the former State of Bikaner, in 1947. The result of the above discussion is that the defendant Municipal Committee, Bhadra, was within its rights in auctioning the suit land as was done by it and that the plaintiff is not entitled to any injunction restraining it from doing so. I may add that I have not considered the position of the plaintiff under the Rajasthan Premises (Control of Rent and Eviction; (Act, 1950 Act No. XVII of 1950) as I was not called upon to take it into consideration, and I would leave the question entirely open as to whether the plaintiff is or is not protected from eviction under the said. Act. This appeal must, therefore, fail and is hereby dismissed with costs. .;