MUNICIPAL BOARD OF SAHARANPUR Vs. JAGDISH SARAN

JUDGEMENT

(1.) This is a second appeal by the defendant, the Municipal Board of Baharanpur. The suit was for a declaration that the order of the defendant dated 4 April 1934 and other connected orders imposing a tax in the shape of license fee on the brick carts of the plaintiff was against law and procedure, improper, invalid and penal and was not binding.

(2.) It was also prayed that a perpetual injunction be issued restraining the defendant Board from passing any such order in the future. There was also a prayer for the recovery of a certain sum of money. The Court of first instance dismissed the suit but the lower Appellate Court has decreed it.

(3.) The plaintiff has a brick-kiln outside the limits of the Municipal Board of Saharanpur. He has got six bullock carts and these carts are used by the plaintiff for carrying the bricks to the houses of persons, within the limits of the Municipality, who purchase bricks from the plaintiff. The Municipal Board has ordered the plaintiff to take out a licence for plying these carts for hire within the Municipality and to pay the fee prescribed therefor under the bye-law made by the Municipal Board under Section 298, List I H (c). The fee fixed for the type of cart used by the plaintiff is Rs. 4 per cart per quarter. The plaintiff paid Rs. 24 on account of the six carts for one quarter and brought this suit, his main allegation being that no hire for the carts is charged from the purchasers of the bricks and it cannot therefore be said that the plaintiff's carts ply for hire within the limits of the Municipal Board. He contended that he was consequently not liable to pay anything on account of these carts. The Board besides raising other pleas contended that the suit was barred under the provisions of Secs.160 and 164, T.P. Municipalities Act (No. 2 of 1916) and that the plaintiff did charge hire for the carts-from the purchasers of the bricks and the carts therefore did ply for hire within the municipal limits. Both the Courts below have agreed in holding that the plaintiff did charge hire from the purchasers of the bricks for the carts which carried the bricks to the houses of the purchasers. On the other contention of the defendant, the trial Court held that the suit was not barred by Secs.160 and 164 of the Act, but it dismissed the suit on the finding that the plaintiff's carts did ply for hire within the limits of the Municipal Board. On appeal by the plaintiff, the lower Appellate Court, while agreeing, as stated above, with the trial Court that the plaintiff did charge hire for the cartage of the bricks,, allowed the appeal of the plaintiff on the ground that plaintiff's carts are not open to hire within the limits of the Municipality to anybody and for any purpose whatsoever.