GIRIJA PRASAD BOSE Vs. EXECUTIVE OFFICER JAJPUR MUNICIPALITY

JUDGEMENT

(1.) THE petitioners along with the opposite parties 4 to 10 jointly owned a private market known as Giraja Hat alias Agneswar Hat located within the limits of the jajpur Municipality. It is a private market within the meaning of Section 297 of the orissa Municipal Act, 1950 (hereinafter referred to as the Act) and is alleged to be running for more than 65 years. A fee being demanded for grant of the licence under Section 298 of the Act. On 6-1-70, an application was made to the municipality for renewal of the licence for the year 1970-71. On 4-2-70, the municipal Council resolved that a licence be issued in respect of the market upon payment of fee at 8 per cent of the gross income of the owners from the market for the year 1964-65 for which particulars were available with the Municipal council. Accordingly the licence fee was fixed at Rs. 1826/- and the applicants were called upon to deposit the amount by 12-2-70 so that the licence shall be renewed and failing the compliance the application for renewal of the licence shall be deemed to have been rejected. On 7-2-70, the petitioners had applied before the Municipal Council that the demand of such a heavy fee was illegal particularly because no service was being rendered by the Municipality in respect of the market. The petitioners moved this application before this court on 11-2-70 and obtained an order of injunction. It has been alleged by the petitioners that by the demand raised by the Municipal Council a restraint has been put on the owners of the market in the matter of running their business and under the colourable prefence of raising fee, a tax had in fact been demanded though the Municipal council has no power to levy a tax in respect of a private market The petitioners have, therefore, asked for a writ of mandamus from this court requiring the municipal Council not to enforce its demand and to renew the licence in respect of the market.

(2.) THE Executive Officer of the Municipal Council has filed an affidavit before this court wherein it has been stated that the petitioners failed to deposit the licence fee demanded from them by 12-2-70 and as such in terms of the resolution of the municipal Council the application for renewal has been rejected. It is said that such an order was subject to appeal under Section 305 of the Act and the petitioners have not availed of the statutory remedy before approaching this Court. The executive Officer has also tried to justify the demand being a "fee" and not a "tax".

(3.) SECTION 297 (1) of the Act provides, "no person shall open a new private market or continue to keep open a private market unless he obtains from the Municipal Council a licence to do so. " sub-section (3) of Section 297 further provides,