NATESAN ACHARI Vs. MUNICIPAL COUNCIL CHANGANACHERRY

JUDGEMENT

(1.) THE Writ Petitioner is a goldsmith plying his trade of making ornaments in gold and silver for wages within the Changanacherry Municipality. THE 1st respondent is the Municipal Council, Changanacherry and the 2nd respondent the Commissioner thereof and the Writ, Petition seeks to quash, by a writ of mandamus or other appropriate writ, the bye-laws of the Municipality dated 26th December 1958, to the extent to which they permit the respondents to levy license fee on gold and silver workshops, that is to say, item 86 (2) thereof.

(2.) THE Municipality has been collecting a license fee of rs. 6/- per year for every shop from the goldsmiths for the last several years. By item 86 (2) of the bye-laws, Ext. P1 the license fee has been fixed at Rs. 6/- for a workshop where one smith is working, at Rs. 25/- where 2 to 5 smiths are working and at Rs. 50/- for a shop where there are more than 5 smiths working. THE petitioner had been paying the licence fee of Rs. 6/- during the previous years, but after Ext. P1 he refused to pay the licence fee and has filed this Writ Petition seeking to quash that portion of Ext. P1 which empowers the Municipality to levy license fee on gold and silver workshops, that is item 86 (2) thereof. His main contention is that the bye-laws, to the extent to which they permit levy of licence fee on gold and silver workshops, are ultra vires of the powers of the Municipality under the Travancore District municipalities Act. According to him S. 261 of the Act provides for the purposes for which places within the Municipality may not be used without license and these purposes are enumerated in Schedule III to the Act, which schedule does not include the making of gold and silver ornaments as one of such purposes. THE alternate contention of the Writ Petitioner is that the license fee sought to be levied on him is really a tax, as it is excessive and unreasonably high and as no service is being rendered by the Municipality in connection with gold and silver workshops.

(3.) THE learned counsel of the respondents, on the other hand, contends before us that the case, Aiyaperumal Achari v. State, 1951 k. L. T. 306, was not rightly decided, and that it requires reconsideration. He invites our attention to the meaning of the word "metal" in the New english Dictionary by Sir James Murray and also to other dictionaries like the chambers's 20th Centuary Dictionary and the Oxford English Dictionary. THEse dictionaries, of course do not make any distinction between the precious metals and the other metals in giving the meaning of the word "metal". At the same time dictionaries like Bouvier's Law Dictionary and Roland Burrow's judicial Dictionary (Words and Phrases Judicially Defined) explain that the word "metal" does not include precious metals. We have also perused the decision, Casher v. Holmes, 2b & AD 592, wherein Lord Tentorden, C. J. and littledale and Parke. JJ. , expressed the view that though gold and silver were, strictly speaking metals, they were never spoken of in popular language as metals, but only as precious metals. In view of this pronouncement and also the meaning of the word "metal" given in the Law Dictionaries, we are not inclined to hold that the view expressed by their Lordships of the travancore-Cochin High Court in Aiyaperumal Achari v. State, 1951 K. L. T. 306, is altogether incorrect. At any rate, it is clear that "metals" in the entry "metals-beating, breaking, hammering, casting, etc. ", is also capable of the interpretation that was put upon it by their Lordships of the Travancore-Cochin High Court. In such a case, where two interpretations are possible to a statute imposing a charge on the subject, it is well established that the interpretation that is favourable to the subject should be adopted. Parke, J. , in Casher v. Holmes, 2b & AD 592, observes: "besides it is a good rule of construction that where a charge is to be imposed on the subject it ought to be done in clear and unambiguous language, and as, at all events, it is not clear that gold and silver are included in the word "metals" I should be of opinion that the plaintiff was not bound to pay this sum claimed by the Commissioners". In Best & Co. v. THE corporation of Madras, I. L. R. 47 Madras 262 (F. B.), their Lordships of the madras High Court held that where the words of a taxing statute were capable of two constructions, the construction to be adopted should be the one in favour of the tax-payer. This decision has been followed in a recent decision of the high Court of Andhra Pradesh in Mootha Manikyam v. Kakinada Municipal Council, by Commissioner 1959-II Andhra Weekly Reporter 492. THEir Lordships held that in a taxing statute there was no room for any intendment, that a person could be taxed only if he came within the letter of the law and in case of doubt the provision of law would be construed against the Government and in favour of the tax-payer. This principle applies with equal force to the instant case. Hence we are inclined to hold that the entry in Schedule III, viz. , "metals-beating, breaking hammering, casing, etc. ", of the Travancore district Municipalities Act does not cover, beating breaking, etc. , of the precious metals, gold and silver, for the purpose of imposing a license fee.