THE GREATER HYDERABAD PETROL & DIESEL OIL DEALERS ASSOCIATION, HYDERABAD AND ORS. Vs. THE MUNICIPAL CORPORATION OF HYDERABAD AND ANOTHER

JUDGEMENT

(1.) The first petitioner in an Association of Petrol and Diesel Dealers in Hyderabad, Petitioners 2 to 55 are dealers who deal in petrol and diesel oil etc. In this writ petition they pray for the issue of a writ of mandamus directing the respondents, namely, Municipal Corporation of Hyderabad and the Additional Commissioner to for bear from enforcing the notification dated 14-4-1972 issued under Section 521 (1) (e) (ii) and Section 622 (2) of the Hyderabad Municipal Corporation Act, 1955 (Referred to in this judgment as the Act) insofar as the notification relates to items 20 to 22 of Annexure I, Part II assessment on the basis of power, labour regard to factories, battery charging, (item 5) and items 5, 41, 121 of Annexure II.

(2.) The impugned notification says that in exercise of the powers conferred under Section 521 (1) (e) of the Act, the Commissioner is of the opinion that the trades and operations mentioned in Annexure II to the order are dangerous to health or property or likely to create nuisance either by its nature or by reason of the manner in which or the conditions under which the same is or is proposed to be carried on and orders that no such trade or operations be carried on without licence or permission. The notification further fixes the rates of licence fee as against each item contained in Annexures I and II of the order. The notification was to come into force from 1-4-1972. Annexure I of the order deals with the schedule of rates of licence fee. Part II deals with the articles which shall not be kept without a licence in or upon any premises in quantities exceeding at any one time maximum quantities started opposite such articles respectively. Item 20 of this part is petroleum. Item 21 is dangerous petroleum and item 22 is oil. Col. 3 refers to the quantity and Col. 4. gives the licence fee which varies with the quantity. Part III contains articles which shall not be kept without a licence, in or upon any premises for sale or other than domestic use. Part IV sets out trades or operations connected with trade which shall not be carried in or upon any premises without a licence. The last port of this part provides that subject to the provisions of Factories Act, 1948, no person shall newly establish in any premises or remove from one place to another, or re open or renew after discontinuance for a period of not less than three years, or enlarge or extend the area or dimension of any factory/workshop etc. except with the previous written permission of the Commissioner. Certain licence fee is prescribed obviously for obtaining such permission either based upon the power employed on the number of labourers employed. In regard to particular matters specified in that part, a fixed licence fee is charged. One of them is item, 5, battery charging, for which licence fee is Rs. 2,500/-. In Annexure II under the beading U/s. 521 (1) (e) (ii) number of items are mentioned. Out of these, we are concerned in this writ petition with items 5, Automobiles fittings and accessories shops, item 41 Motor servicing and item 121, Motor and Motor Cycle repairing.

(3.) The main contention of the writ petitioners is that the licence fee that is levied under Section 622 (2) of the Act is a fee and not a tax. Such a fee must be commensurate with the services rendered by the Corporation. In this case it is alleged that the Municipality is not providing any special service to the petitioner's commensurate with the fee proposed to be levied under different heads. There is no co-relation between the fee levied and the services rendered. It is also alleged that the fee which was to be levied is a fee set apart for the services should not be merged with the otto public revenues collected by the Municipality. Hence, the notification leying the licence fee violates the petitioner's rights under Article 14, 19 (1) (g) and (f) of the Constitution of India as it is not a reasonable restriction in the interests of the general public on the right of the petitioner's to carry on trade and is discriminatory in nature. Figures are given in the petition in order to make out a case that there is an enormous increase in the rated licence fee, which according to the petitioner's works out to more than 1200/- in some cases. The petitioners therefore, with these allegations filed this writ petition questioning the notification.