HARRISONS AND CROSSFIELD Vs. MUNICIPAL COUNCIL KOTTAYAM

JUDGEMENT

(1.) These petitions under Article 226 of the Constitution are by the same petitioner, a company, and are directed against the levy arid collection of licence fees by the 1st respondent Municipal Council and its Commissioner, the 2nd respondent. O. P. 71 of 1954 is against the levy for the years ending 31st March, 1953 and 31st March, 1954 while O. P. 123 of 1954 is against the levy for the year ending 31st March, 1955. Licences were insisted upon, and fees were levied, for the storage of rubber and tea by the petitioner company in their premises within the limits of the Municipality, and" a separate fee of Rs. 250 a year was charged in respect of each commodity. The fees were paid under protest, and the prayer in the petitions is that the notification dated 15th May, 1953 published by the 1st respondent Council in the gazette dated 9th June, 1953 under the provisions of Section 261 of the Travancore District Municipalities Act, (Act XXIII of 1116), which notification forms the basis of the levy and the notices of demand issued by the 2nd respondent, be quashed by a writ of certiorari or such other writ or order as the Court may deem proper. In O. P. 71 of 1954 there is an additional prayer for the refund of the fees aggregating to Rs. 1,000 paid by the petitioner under protest.

(2.) The grounds taken in O. P. 71 of 1954 run as follows: "1. The purpose mentioned last in general terms in Schedule III to the Travancore District Municipalities Act, is vague, bad in law and void. 2. The said notification dated 15th May, 1959 and in particular items 33, 129 and 132 therein, are illegal and ultra vires. 3. The said Notification as far as the aforesaid items therein are concerned is outside the powers of the respondents under Section 261 of the Travancore District Municipalities Act. 4. The Notification and in particular the aforesaid items therein do not satisfy the requirements of the Act or of Schedule III to the said Act. 5. The aforesaid Notices issued to the Petitioner Company are illegal and ultra vires. 6 Neither rubber nor tea are articles which come within any of the purposes mentioned in Schedule III to the said Act. 7. The imposition of two sets of license fees for the same promises levied on the same person is contrary to the provisions of Section 261 to the Act and offends the provisions of Article 276 (2) of the Constitution of India. 8. The recovery of the license fee levied under the said Notices is illegal and the amounts paid thereunder are liable to be refunded". The grounds in O. P. 123 of 1954 are the same excepting that in ground No. 8 nothing is said about the liability to refund.

(3.) The objection taken in ground No. 1 has not been urged before us nor that based on Article 276 (2) of the Constitution in ground No. 7, obviously because the levy is of a fee and not of a tax.