HARALAL PODDAR Vs. THE MUNICIPAL BOARD AND ORS.

JUDGEMENT

(1.) THIS Rule was issued on an application under Article 226 of the Constitution, praying for issue of a writ of Mandamus, Certiorari or other suitable writ, directing the Municipal Board of Dibrugarh to cancel, recall or forbear from giving effect to its resolutions dated 12 -2 -1957 and 21 -3 -1957 fixing enhanced rates of fees for different stalls of the Municipal market and the sale by public auction, held on 14 -2 -1957 for the settlement of the Municipal market.

(2.) THREE points have been canvassed before us by Mr. Ghose who appears for the Petitioner. Firstly it is urged that Section 140 of the Assam Municipal Act, which empowers the Board at a meeting to impose tolls and fees for the right to expose goods for sale in the municipal market is ultra vires inasmuch as it gives unrestricted and very wide powers to the Board to levy tolls and fees. The argument in effect is that the Petitioner has a right to carry on his business of selling vegetables and other similar food -stuffs and the power given to the Board to impose tolls and fees on the stall -holders in the municipal market restricts such a fundamental right guaranteed under Article 19(1)(g) of the Constitution.

(3.) THE next contention raised by the Petitioner's Counsel is that Section 140 only authorises the levy of tolls and fees which necessarily implies an idea of quid pro quo, the amount to be fixed as toll and lee should necessarily be correlated to the services rendered and under the garb of tolls and fees, it is not open to the Board to impose a tax. The power to impose tax has been given under Section 59 of the Act and as the present imposition neither comes under any of the Sub -sections nor it has been imposed after adopting the procedure for the imposition of the tax, the resolution enhancing the fee cannot be upheld.