G. MEHROTRA, J. : This Rule was issued on an application under Art. 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. The petitioner carried on business of selling fresh vegetables and similar other food-stuffs for the last 13 years by keeping a stall in the municipal market of Dibrugarh town, on payment of fees to the lessee of the said municipal market. For runn­ing the said stall in the municipal market, the peti­tioner had been paying As. -/4/- only per day since 1945. The chairman, Municipal Board, Dibrugarh by publishing a notice dated 2-1-1957, notified the sale by public auction of the right to collect the authorised fees in respect of the municipal market of Dibrugarh, consisting of Zones A and B to be held on 14-2-1957 at 10 a.m. for a period of one year from 1-4-1957 to 31-3-1958. The conditions for the sale of the aforesaid markets by public auction were published on 31-1-1957 by the Chairman. On 31-1-1957, the Chairman Dibrugarh Munici­pal Board-respondent No. 2 published a notifica­tion showing the enhanced rates of fees for the two Zones of the municipal market. This publication of the enhanced rates affects the business of die peti­tioner as the rates have been substantially enhanced. On 7-2-1957, the Bazar Committee of the Munici­pal Board consisting of the opposite parties Nos. 3 to 8 in a proceeding held in the municipal meeting hall, decided to enhance the rate of fees for the different stalls of the municipal market. The decision of the Bazar Committee was then issued in the name and under the signature of the Chairman. On 12-2-1957, the proceedings of the Bazar Committee held on 7-2-1957 were placed be­fore the Board and were approved by majority of the members. Against this enhancement, the citizens of Dibrugarh filed a petition before the Deputy Commissioner, asking him to direct the stay of the operation of the resolution of the Board. It was pointed out to the Deputy Commissioner that the enhancement of the fees will affect die price of the consumer goods. Against this enhancement, the citizens of Dibrugarh filed a petition before the Deputy Commissioner, asking him to direct the stay of the operation of the resolution of the Board. It was pointed out to the Deputy Commissioner that the enhancement of the fees will affect die price of the consumer goods. The Deputy Commissioner stayed the operation and called for a report from the Chairman. On 23-2-1957, a report was submitted by the Chairman to the Deputy Commissioner. On 21-3-1957, an emer­gent meeting was held in which the Board accepted the Chairman's suggestion regarding the rate of en­hancement and thus the earlier enhanced rates were modified. In the meantime the auction sale of the right to collect fees had already taken place on 14-2-1957 and the settlement had been made in favour of the respondents Nos. 9 and 10. In the emergent meeting, it was also suggested that as the rates of fees have been modified, a fresh auction should take place; but it was decided that respondents Nos. 9 and 10 who were the highest bid­ders in the earlier auction of the markets should be given right to collect fees at the modified rates. On 27-3-1957, after considering the report of the Chair­man, the Deputy Commissioner rejected the repre­sentation made by the members of die public. Ano­ther application was made challenging the enhance­ment of the rates of fees by some of the stall-keepers by their application dated 23-3-57, which was also rejected by the Deputy Commissioner by his order dated 31-3-1957. On these facts, the present petition was filed in this Court on 20-5-1957 and the Rule was issued. (2) Three points have been canvassed before us by Mr. Chose who appears for the petitioner. Firstly it is urged (hat S. 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 011 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 Art. 19 (1) (g) of the Constitution. The argument in effect is that the petitioner has a right to carry 011 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 Art. 19 (1) (g) of the Constitution. The power given to impose tolls and fees being in very wide terms and capable of being arbitrarily exercised, cannot be regarded as a reasonable restric­tion on the right to carry on trade and the provi­sions of S. 140 are thus not saved under Art. 19(6) of the Constitution. (3) Reliance was placed on the case of Dwarka Prasad Laxroi Narain v. State of U. P., reported in AIR 1954 SC 224 (A). Emphasis was laid on the fol­lowing observations at page 227 of the report: "Legislation, which arbitrarily or excessively in­vades the right, cannot be said to contain the quality of reasonableness, and unless it strikes a proper ba­lance between the freedom guaranteed under Art. 19(l)(g) and the social control permitted by clause (6) of Art. 19, it must be held to be wanting in re­asonableness." The order which was impugned in that case was 'Uttar Pradesh Coal Control Order, 1953.' Clause (4)(iii) of the U. P. Coal Control Order which was attacked in that case was in the following terms: "The Licensing Authority may grant, refuse to grant, renew or refuse to renew a licence and may suspend, cancel, revoke, or modify any licence or any terms thereof granted by him under the Order for reasons to be recorded. Provided that every power which is under this Order exercisable by the Licensing Authority shall also be exercisable by the State Coal Controller or any person authorised by him in this behalf." The petitioner's licence had been cancelled and it was the order of the cancellation, in the exercise of the power under clause (4)(iii) of the order which was challenged in that case. It was held by the Supreme Court that as the power of cancellation given under Clause (4)(iii) was unrestricted and arbi­trary in nature, such provision was hit by Art. 19(1) (g) of the Constitution. There are two answers to this contention. Firstly the petitioner is using the municipal market for carrying on his business of selling vegetables. It was held by the Supreme Court that as the power of cancellation given under Clause (4)(iii) was unrestricted and arbi­trary in nature, such provision was hit by Art. 19(1) (g) of the Constitution. There are two answers to this contention. Firstly the petitioner is using the municipal market for carrying on his business of selling vegetables. If the Municipal Board is given power to impose toll or to levy fee for the exercise of such a right to expose goods for sale in its market and for the use of stalls standing thereon, it cannot be said to in­fringe the petitioner's fundamental right of carrying on business under Art. 19(l)(g) of the Constitution. What is restricted by levy of fee is the right to: carry on business in the municipal market; but therei is no restriction placed by S. 140 on the right of the1' petitioner to carry on business in general. The second answer to this contention is that S. 140 does not give any arbitrary or unrestricted , power. Section 140 reads as follows: "The Board at a meeting may charge rents.,, tolls and fees for the right to expose goods for sale in a municipal market and for the use of shops, stalls and standings therein." The whole object of giving such power is to give ; right to the Board to realise such amount from the i shopkeepers as may be essential for the maintenance I of the market. The power is thus restricted for the) " object under the said power and it cannot be said ' that S. 140 itself contains a quality of unreasonable­ness and is hit by Art. 19(l)(g) of the Constitution. It was argued by the counsel for the State that the Board has also not been given arbitrary and unfet­tered power. If any fee levied is .exorbitant the vegetable sellers can always approach the Deputy Commis­sioner under S. 291 as they did in this case, and' he will examine the question on the merits. It can­not, therefore, be said that the power is uncontroll­ed. As we have held that the limitation on the power is to be found in the Act itself, it is not neces­sary to examine this argument. It can­not, therefore, be said that the power is uncontroll­ed. As we have held that the limitation on the power is to be found in the Act itself, it is not neces­sary to examine this argument. (4) The next contention raised by the petitioner's counsel is that S. 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 fee 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 S. 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. (5) In the case of the Commissioner, Hindu Reli­gious Endowments, Madras v. Lakshmindra Tirtha Swamiar, reported in AIR 1954 SC 282 (B), their Lordships of the Supreme Court have laid down the difference between a tax and a fee. It was observed at page 295 of the report as follows: "A neat definition of what 'tax' means has been given by Latham C. J. of the High Court of Australia in 'Mathews v. Chicory Marketing Board' 60 CLR 263 at p. 276 (C). 'A tax' according to the learned Chief Justice, 'is a compulsory exaction of money by public authority for public purposes enforceable by law and is not payment for services rendered." It is said that the essence of taxation is compulsion, that is to say, it is imposed under statutory power without the tax-payer's consent and the payment is enforced by law. The second characteristic of tax is that it is an imposition made for public purpose without reference to any special benefit to be con­ferred on the payer of the tax. This is expressed by saying that the levy of tax for the purposes of general revenue, which when collected forms part of the public revenues of the State. As the object of a tax is not to confer any special benefit upon any particular individual, there is, as it is said, no element of 'quid pro quo' between the tax­payer and the public authority. As the object of a tax is not to confer any special benefit upon any particular individual, there is, as it is said, no element of 'quid pro quo' between the tax­payer and the public authority. Another feature of taxation is that as it is a part of the common bur­den, the quantum of imposition upon the tax-payer depends generally upon his capacity to pay. Com­ing now to fees, a 'fee' is generally defined to be a charge for a special service rendered to individuals by some governmental agency. The amount of fee levied is supposed to be based on the expenses incurred by the Government in rendering the service, though in many cases the costs are arbitrarily assessed. Ordinarily, the fees are uniform and no account is taken of the varying abili­ties of different recipients to pay. These are un­doubtedly some of the general characteristics, but as there may be various kinds of fees, it is not possible to formulate a definition that would be applicable to all cases. As regards the distinction between a tax and a fee, it is argued in the first place on behalf of the respondent that a fee is something voluntary which a person has got to pay if he wants certain services from the Government; but there is no obli­gation on his part to seek such services and if he does not want die services, he can avoid the obliga­tion. The example given is of a licence fee. If a man wants a licence that is entirely his own choice and then only he has to pay the fees, but not otherwise. We think that a careful examination will reveal that the element of compulsion or coerciveness is present in all kinds of imposition, though in different degrees and that is not totally absent in fees. This, there­fore, cannot be made the sole or even a material criterion for distinguishing a tax from fees." At page 296 of the report it was observed that public interest seems to be at the basis of all impo­sitions, but in a fee it is some special benefit which the individual receives. As Seligman says, if is the special benefit accruing to the individual which is the reason for payment in the case of fees; in the case of a tax, the particular advantage if it exists at all is an incidental result of State action. As Seligman says, if is the special benefit accruing to the individual which is the reason for payment in the case of fees; in the case of a tax, the particular advantage if it exists at all is an incidental result of State action. If as we hold, a fee is regarded as a sort of re­turn or consideration for services rendered, it is ab­solutely necessary that the levy of fees should, on the face of the legislative provision, be correlated to the expenses incurred by Government in rendering the services. It was further observed in page 296 that there is really no generic difference between the tax and fees and as said by Seligman, the taxing power of a State may manifest itself in three dif­ferent forms known respectively as special assess­ments, fees and taxes. Our Constitution has, for legislative purposes, made a distinction between a tax and a fee and while there are various entries in die legislative lists with, regard to various forms of taxes, there is an entry at the end of each one of the three lists as regards fees which could be levied in respect of any of the matters that is included in it." (6) It is not disputed that die State Legislature has Been given power to legislate on markets under list 2, item No. 28 of the Seventh Schedule. Item No. 59 of List 2 of die Seventh Schedule gives power to legislate on tolls and item No. 66 on fees in respect of other items of die List. It cannot therefore be said that there is no legislative compe­tence to enact S. 140. The argument was that as there was no evidence produced in the case on be­half of the Board, which would go to show that die money collected as a fee was set apart for the main­tenance of the market and was not taken into the general revenue, it must be presumed that what the Board was levying in die name of the toll and fee is really a tax. We do not think that any material has been placed by the petitioner on whom essentially the burden lies before us to show that the money reali­sed as a fee was not utilised for the maintenance of the market. We do not think that any material has been placed by the petitioner on whom essentially the burden lies before us to show that the money reali­sed as a fee was not utilised for the maintenance of the market. Section 140 itself gives power to die Board to charge rents, tolls, and fees for the right to expose goods for sale in the shops, stalls and. standings therein. The Board gave the use of its stalls and shops and further permitted the shop-keepers to exercise rights to expose their goods for sale, in the municipal market and as a consideration for the said use, they charged fees which were uti­lised for the maintenance of die market. It is not necessary to show that every pie which/ is realised as a fee is spent for the maintenance of the market. In die report, submitted by the Chairman to the Deputy Commissioner, when he was dealing with the matter, under section 291 of the Municipal Act and which is Annexure 'J' to the petition, it is clearly mentioned that all-round improvements of the market were going on by constructing stalls in: the Rice and Pan market and there being a proposal to reconstruct the sheds on the open vegetable market which required a considerable amount for which the enhancement in the rate was necessary. It was also pointed out in the report that the stall-keepers in and around the pucca vegetable-market had been using their respective stalls for resi­dential purpose as well, without paying any fee to the lessee for the night use. All these facts go to show that the rate has been enhanced with a view to develop the market and it cannot be said that there was no correlation between the fee charged and the services rendered. In fact, the petitioner did not object to the levy of any fee; what he is objecting to is the enhancement and no material has been placed before us to show that the enhance­ment has been arbitrary and the imposition has been capriciously made. We do not find therefore any force in the con­tention raised by the petitioner that the provisions of S. 140 infringe fundamental rights guaranteed under Art. 19 (l)(g) of the Constitution nor there is any substance in the contention that under the garb of imposition of the fee, the Board has imposed a tax. We do not find therefore any force in the con­tention raised by the petitioner that the provisions of S. 140 infringe fundamental rights guaranteed under Art. 19 (l)(g) of the Constitution nor there is any substance in the contention that under the garb of imposition of the fee, the Board has imposed a tax. (7) It was very half-heartedly mentioned in the petition that the action of the Chairman was arbit­rary and mala fide; but we find no substance in the allegation of mala fide. Lastly it was contended that the auction sale was held on 14th February, 1957. The Chairman's suggestion of the modifica­tion of the rates was accepted in the emergent meet­ing held sometimes in March, 1957, - after the auction had already taken place. It was violation of the provisions of the byelaws which require one month's notice before the auction takes place. Reliance was placed on the Rules and Proce­dure for the sale of pounds and markets by Munici­pal Boards in Assam. Rule 3 provides that the sale by public auction of the right to levy fines and charges in respect of any pound and to collect the authorised fees in respect of any market shall be held, public notice having been given one month previously, not later than the 14th day of February, in the financial year preceding that in which the .lease is to take effect. Rule 4 (a) provides that a public notice shall be given by the Chairman and shall state (1) the name of each pound or market to be leased; (2) the time and place of sale; (3) the term for which the .lease will be given and (4) the conditions. It is .argued that under R. 4(3) the enhanced rate of fee which the lessee had the right to realise had to be mentioned in the notice given one month before the auction sale; but it could not be mentioned in the notice which was given on for the 14th February, 1957, inasmuch as the enhanced rate itself was de­cided upon in March, 1957. It is thus argued that the auction sale in favour of the respondents Nos. 9 and 10 is illegal. We do not think that there is any substance in this conten­tion. It is thus argued that the auction sale in favour of the respondents Nos. 9 and 10 is illegal. We do not think that there is any substance in this conten­tion. What is required under R. 4(3) of the Rules is to mention the term of the lease, i.e. the period for which the lease is to be given, it is not essen­tial to mention in the notice, the rate at which the , auction-purchaser will be entitled to realise the fees from die shop-keepers. Moreover, that is a matter which affects the rights of the auction-purchasers. The restriction, if any placed on the right of the shop-keeper, is by the enhancement of the fee, and not by the auction sale in favour of the oppo­site parties Nos. 9 and 10. The petitioner cannot, therefore, challenge the auction sale held on the 14th February, 1957 and the right of the opposite parties Nos. 9 and 10 to realise the fee from them. (8) In the result, therefore, we find no force in this petition and it is accordingly rejected with costs. Hearing fee is fixed at Rs. 100/- payable to the State. (9) H. DEKA, J. :- I agree. M.K.S. Petition dismissed.