MUNICIPAL BOARD Vs. MANOHAR LAL

JUDGEMENT

(1.) The following question has been referred to the Full Bench for opinion : "Whether Section 293, U. P. Municipalities Act, authorises a Municipal Board to change a fee in respect of projections which existed prior to the enactment of the bye-law imposing such a fee."

(2.) The facts and circumstances leading to the reference are these: The city of Kanauj has been declared to be a municipality under Section 3, U. P. Municipalities Act, 1916. In the year 1938 the Municipal Board of Kanauj made a bye law under Section 298 (E) (b), Municipalities Act described as the "Projection Bye-laws" levying an annual fee on the projections within the limits of the municipality. The bye-law was duly sanctioned by the sanctioning authority and it was notified in the United Provinces Gazette. Subsequently by means of another notification in the Gazette the bye-laws were made applicable to the "existing projections within municipal limits," Manohar Lal, the plaintiff-respondent, resides and owns a house within the municipal limits of Kanauj. In the year 1934 he rebuilt or made alterations in his house and built a projection on a public street, which is less than 25 feet in width. The Municipal Board of Kanauj levied a projection tax amounting to Rs. 39-8-0 in respect of the projection in the plaintiff's house. The plaintiff filed the suit, which has given rise to the present appeal for a declaration that the fee, which he called a new tax known as "projection tax," was illegal and the bye-laws relating to the old projections, which were framed under Section 293, Municipalities Act, were not duly published and were illegal and the Board had no right to impose a new tax on the projections that were in existence prior to the promulgation of the bye laws. The plaintiff accordingly prayed for a permanent injunction restraining the defendant-Board from realising the tax from the plaintiff. The suit was contested by the Board on whose behalf it was contended that the bye-laws were perfectly valid and the Board was competent to make them.

(3.) The trial Court (Munsif of Kanauj) held that the bye-laws so far as they related to the existing projections were ultra vires. On appeal the learned Civil Judge of Farrukhabad remitted the following issue to the trial Court for a finding : "Whether there exists any projection of the plaintiff's building on the defendant's street. What is the width of the defendant's street and what is its effect on this case?" On this issue the trial Court recorded a finding that the projection made by the plaintiff was over the defendant's street, which was less than 25 feet in width and that the defendant was not entitled to impose tax on that projection for that reason. On receipt of this finding and after hearing further arguments, the learned Civil Judge held that the bye-laws imposing projection tax on the existing projection, which was made before the projection tax was imposed, was beyond the scope of Section 298, List I (E) (c), Municipalities Act and that the bye-laws framed by the Municipal Board showed that the Board was not competent to permit projection over a street, which was less than 25 feet in width. Consequently, the Board was not empowered to levy any fee for any such projection. In the result, the appeal was dismissed.