MUNICIPAL COUNCIL WARASEONI AND ANR. ETC. ETC.

SATISH CHANDRA JAIN AND ANR. ETC. ETC.

NOVEMBER 15, 1995

[MADAN MOHAN PUNCHHI AND S.C. SEN, JJ.)

Madhya Pradesh Municipalities Act, 1961:

Ss.164(2), 164(3)-Cattle Registration and Marketfe-Lease for C recovery of-Lessee collecting fee but with-holding a part of contract amount-Recovery proceedings by Municipal Council against lessee-Lessee challenging collection of fee as invalid on ground that no servic s were rendered by Municipal Council at the place of cattle fail~Held, fee was validly imposed-Municipal Council provided necessa1y facilities at the place of cattle fair-Lessee clothed with auth01ity to collect tax and having actually D collected the fee, cannot withhold contracted money.

The appellant-Municipal Council granted to the respondent a le.ase for a year for recovery of cattle registration fee and market fee in respect of the transactions made at the place of cattle fair. Since the appellant did E not deposit a part of the Contract-money, the Municipal Council initiated proceedings against him for recovery of the balance amount. The respondent filed a writ petition before the High Court challenging the proceedings on the ground that the fees sought to be collected from him being in the nature of tax was invalid as no services were rendered by the Municipal Council at the place of cattle fair; and that in the event of imposition of F cattle registration fee being held beyond the power of Municipal Council the market fee too required to be quashed as it was inextricably added up in the contracted amount. The High Court allowed the writ petition.

Aggrieved, the Municipal Council filed the present appeal.

G Allowing the appeal, this Court

HELD : 1. The respondent cannot resist the recovery proceedings on the pretext that no services were rendered or were deficient at the site where business of sale of cattle was transacted. The High Court seemingly overlooked the Madhya Pradesh Government Gazette dated October 23, H 1950 wherein the Municipal Council had justified enhancement of fees

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from 1-2 paise to a rupee because the Municipal Council found it difficult A to put up with the expenses of sanitation, lighting etc. at the place of cattle fair. It is otherwise a matter of common knowledge that where a cattle fair is held and business transacted, certain basic facilities are normally provided by the Municipal Council, such as sanitation, space for storage and sale of fodder, troughs for drinking water for the cattle, pegs and B mongers to tie cattle, drinking water for human being visiting the area, as also eating places for them. Quid pro quo was, therefore, writ large with the imposition of fee. [276-H; 277-A-C; D]

Dha11iram v.Ja11apada Sabha Ja11jgir, (1965) MP L.J. 408, referred to.

2. The respondent, who was clothed with the authority of a tax collector and actually collected the fee, cannot be allowed to say that he had collected the fee wrongly and on that basis he would not pay the contracted money, since he had to reimburse himself by a wrong collection.

The High Court overlooked an important aspect of the case as to the

maintainability of the writ petition at the instance of the respondent.

[277-F-G]

3. The fee was validly imposed and sequally the portion of the fee representing market fee is automatically in order. [277-H; 278-A]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3360 of E 1979 Etc.

From the Judgment and Order dated 16.6.79 of the Madhya Pradesh High Court in Misc. P. No. 391 of 1972.

P.N. Lekhi, M.K. Garg, D.P. Mohanty, (N.P) B.K. Satija and AK. F Sanghi for the appearing parties.

The following Order of the Court was delivered :

Civil Appeal No. 3360 of 1979 :

A Division Bench of Madhya Pradesh High Court, quashed on a writ petition, the bill and notice of demand, issued against the respondent under section 164 of the M.P. Municipalities Act, 1961, on the basis that the fees sought to be collected from the respondent fetched him no quid pro quo.

The respondent herein was granted by auction a lease by the H

A Municipal Council, Waraseoni for a year from l.4;1971 to 31.3.1972 for recovery of cattle registration fee and market fee, popularly known in that region as "Baithaki". The contracted money was Rs. 1,75,000. The respondent did not pay 'the whole and withheld a sum of Rs. 29,592.63. The Municipal Council was constrained to start recovery proceedings against

the respondent under the provisions of the Act. A bill for the amount was sent to the respondent under Section 164(2) and a demand notice under Section 164(3) was also issued against the respondent. The respondent seeking quashing of the bill and the demand notice approached the High Court of Madhya Pradesh under Article 226 of the Constitution, which quashed the bill and the demand notice on the premise stated earlier.

Two points were raised before the High Court; (i) that the fee imposed bore no correlation to the services rendered and being in the nature of tax was, therefore, invalid; and (ii) no lease could be granted for recovery of such fee when the fee itself was invalid. A question consequential in nature was also raised that since the said contracted sum of Rs. 1, 75,000 compositely related to cattle registration fee as well as market fee, the portion representing market fee could not be made out if imposition of cattle registration fee was held beyond the power of the Municipal Council. Sequally it was urged that the market fee too, needed to be quashed on account of its being inextricably added up in the contracted amount. The High Court, seemingly relying upon a Full Bench decision, of that Court Dhaniram v. Janapada Sabha, Janjgir, (1965) MP L.J. 408, held cattle registration fee to be invalid because it was thought that the imposition of such fee, independent as it was, on the price fetched for an animal, bore no correlation to the services rendered by Janapada Sabha, and, therefore, could not be described as 'fee'. In the instant case, the Municipal Council, did not specifically stated in its return as to what services it rendered to the sellers and buyers of animals and what was the purpose for which the fee was imposed. The return was general in terms. It was therefore, spelt out by the High Court that there was an implied admission that the fee collected was for purposes of general revenue.

This view of the High Court, with due respect, cannot be sustained; more so at the instance of the respondent contractor. That respondent could not bemoan that no services were rendered or were deficient at the site where business of sale of catde was transacted. The High Court H seemingly overlooked the Madhya Pradesh Government Gazette dated

MUNICIPAL COUNCIL WARASEONiv. S.C.JAIN 277

October 23, 1950 wherein the notice issued itself the Municipal Council, A Waraseoni had justified enhancement of fees from 1-2 paisa to a rupee because the Municipal Council found it difficult to put up with the expenses of sanitation, lighting, etc. at the place where cattle was sold and the sale registered within the municipal limits. It is otherwise a matter of common knowledge that where a cattle fair is held and business transacted, certain basic facilities are normally provided by the Municipal Council. To enumerate a few, it would provide sufficient space for storage and sale of fodder, enough troughs for storage of drinking water for the cattle, pegs and managers to tie cattle, provide drinking waters for human beings visiting the area, as also eating places for them. Besides, it has to look after sanitation of the place, as is natural for the cattle collected to be urinating and dropping dung requiring immediate attention for removal, if not altogether there and then, but at least for putting it in temporary storage till removed altogether. These facilities are inherent in a cattle fair which the Municipal Council is supposed to offer and maintain. Additionally, it

is worthy to note that here the cattle fair is a weekly affair; all the more D requiring constant availability of these facilities. Quid pro quo was, therefore, writ large with the imposition of fee.

Apart from what has been said above, it did not lie in the mouth of the respondent, having himself collected the fee, to say that no services were rendered. He is stealing the language of those persons who paid the E fee and could have objected. Noticeably, no tax payer has come forward to challenge the fee in question. The respondent was himself clothed with the authority of a tax collector, for he had contracted to pay a fixed amount to the Municipal Council for a year, having bought and attained the right to collect tax. He cannot be allowed to say that he had collected the fee F wrongly and on that basis he would not pay the contracted money, since he had to reimburse himself by a wrong collection. In this view of the matter, we think that the High Court overlooked an important aspect of the case as to the maintainability of the writ petition at the instance of the respondent. ·

Thus, on either ground of attack, there was no merit in the writ petition pref erred by the respondent and equally he had no locus to challenge the imposition of fee, which was otherwise validity imposed.

When imposition of registration of cattle fee is in order, the portion of the

fee representing market fee is automatically in order. The question of H

A splitting the two vanishes. In the view thus taken, this appeal is allowed, the judgment and order of the High Court is set aside and the writ petition filed by the appellant is dismissed, with costs.

Civil Appeal No. 1025 of 1995:

The appellant herein, contracted with the Municipal Council, Waraseoni to pay a sum of Rs. 1,59,000 on account of cattle registration fee for the year 1972-73. Since he fell in arrears in the payment thereof, a suit for Rs. 1,11,431.56 was filed by the Municipal Council against the appellant being dues of fees on sale of cattle, including interest. The appellant contested the suit. All the issues, except one, were decided by the Trial Court in favour of the appellant. The one decided against him was on the basis of the Full Bench decision in Dhaniram v. Janapada Sabha, Janjgir, (1965) M.P.L.J. 408. The suit was dismissed. The High Court on appeal at the instance of the Municipal Council reversed the Trial Court judgment and decreed the suit against the appellant with costs D throughout imposing future interests at the rate of 6% per annum from the date of the decree till realisation. Challenge to imposition of cattle registration fee has been negatived by us in the earlier decision made today in Civil Appeal No. 3360 of 1979. The basis of defence of the appellant thus stands knocked out. On the basis of the said ratio, there is no merit left in this appeal, which is accordingly dismissed, but without any order E as to costs.

R.P.

Appeal allowed.