Nagar Mahapalika of the City of Kanpur through its Mukhya Nagar Adhikari v. Mohan Singh
1966-01-30
A.K.SARKAR, J.R.MUDHOLKAR, P.SATYANARAYANA RAJU
body1966
DigiLaw.ai
JUDGMENT : A. K. Sarkar, J. 1. The appellants are the Nagar Mahapalika (Municipality) of Kanpur and one of its officers. They have been found guilty of contempt of the Allahabad High Court by committing a. breach of an injunction issued by it. The appeal has been heard ex parte as the respondent Mohan Singh did not appear in this Court. The learned Attorney General appearing for the appellants has however taken us through the entire record and placed all points of view before us. 2. The injunction was issued in an application by the respondent concerning the grant of licences for rickshaws for hire by the Municipality. The bye laws of the Municipality published on July 11, 1959 provided that no fresh licences were to be issued and that gradually the number of licensed rickshaws would be reduced and brought down to a certain number. It appears that on July 7, 1961, the Municipality passed a resolution directing its Chief Officer to start issuing new licences for rickshaws plying for hire. The Municipalitys case is that this resolution was passed as the Allahabad High Court decided on September 11, 1959 in certain applications for writs, that the bye laws putting a ceiling on the number of rickshaws for hire to be licensed and authorising the Municipality to refuse fresh licences were invalid as in violation of the provisions of the Constitution and it had been advised by its legal advisers to act according to the judgment of the High Court. The respondent being dissatisfied with this resolution and having been advised that the bye laws were valid, moved the High Court at Allahabad for a writ quashing the resolution. The Municipality was the first respondent in the writ proceedings. In this matter Dwivedi, J. of the High Court, on July 14, 1961, passed an interim order in the following terms: "Until further orders of the Court, the first respondent is restrained from issuing any new licences for plying rickshaws in the city of Kanpur from todays date." It is not in dispute that the rickshaws referred to were those which plied for hire. On March 25, 1963, the respondent moved the High Court for suitable action against the appellants for contempt for breach of its order of July 14, 1961. The material allegations constituting the contempt are contained in paragraph 8 of the petition for committal for contempt.
On March 25, 1963, the respondent moved the High Court for suitable action against the appellants for contempt for breach of its order of July 14, 1961. The material allegations constituting the contempt are contained in paragraph 8 of the petition for committal for contempt. That paragraph reads as follows :- "That in direct contravention of the aforesaid ad interim order the Mukhya Nagar Adhikari has adopted a practice of taking rickshaw taxes from the rickshaw owners and their employees and permitting them to ply their rickshaws in the city of Kanpur. No written licences are issued by them but if taxes for different period are deposited in the Nagar Mahapalika, Kanpur a stamped receipt is issued to them and the number of the receipt is printed on the rickshaw and they are allowed to ply without licence." It was suggested that the other appellant had participated in the breach of the injunction by the Municipality. The High Court found the allegations established and held the appellants guilty of contempt of court and imposed certain fines on them. Hence this appeal. 3. We will deal with the case of the Municipality. It will have been noticed that it was not the respondents case that the Municipality had issued any new licence after the order of July 14, 1961. In fact, it was conceded that it did not do so. What was said was that the Municipality adopted a practice of realising rickshaw taxes from the owners and printing the fact of the receipt of the tax on the rickshaws and permitting them to ply without licences. The way the case seems to have been put before the High Court was that this was a subterfuge adopted by the Municipality to get round the order of the High Court, the object of which was to stop new rickshaws plying for hire, by permitting rickshaws to ply without a licence on payment of the tax. This contention was accepted by the High Court. It seems to us somewhat unfortunate that the matter proceeded in this way. An allegation of contempt of court is a serious one and is considered by courts with a certain amount of strictness. A person against whom such an allegation is made is entitled to be told the precise nature of it.
It seems to us somewhat unfortunate that the matter proceeded in this way. An allegation of contempt of court is a serious one and is considered by courts with a certain amount of strictness. A person against whom such an allegation is made is entitled to be told the precise nature of it. In this case the respondent did not state that any subterfuge had been adopted by the Municipality or that the Municipality had sought to defeat the order of the court; that was only insinuated. This is not a fair or permissible way of charging a person with contempt of court. The contempt alleged cannot be left to be spelt out from the allegations made nor can the person charged be left to guess what contempt is alleged against him. Further, paragraph 8 of the petition for committal for contempt stated that there was a direct contravention of the order which of course there was not as no licences had been issued. Neither were any particulars given as to how the alleged practice that was adopted was intended to get round the order, nor of how the Municipality permitted rickshaws to ply without licences. We think the learned Attorney General was perfectly justified in drawing our attention to these defects in the petition and characterising them as serious. 4. The Attorney General argued the case on the assumption that since the order of the High Court new rickshaws have been plying without licences. He, of course, denied that the Municipality had permitted this to be done. There is no evidence of such permission or indeed of any complicity of the Municipality with such plying of the rickshaws. Furthermore, it is of some significance to note that the order of the High Court did not require the Municipality to stop the plying of unlicensed rickshaws. 5. It is true, as stated by the respondent, that the Municipality stencilled on the back of the rickshaws the following words: "Rickshaw on hire ............ Receipt No dated ................ Name of owner .... 1962-63." Specimen of such stencilled writing has been annexed to the affidavit filed by the respondent. All of these however relate to the year 1962-63 and this supports the case of Municipality that they had not used the stencilled writing prior to this period, that is to say, prior to April 1, 1962.
Name of owner .... 1962-63." Specimen of such stencilled writing has been annexed to the affidavit filed by the respondent. All of these however relate to the year 1962-63 and this supports the case of Municipality that they had not used the stencilled writing prior to this period, that is to say, prior to April 1, 1962. This contention of the Municipality receives further support from the fact that the petition for committal for contempt was presented in March 1963, that is, almost two years after the order issuing the injunction. It is legitimate to think that if the Municipality had used the stencilled writing prior to April 1, 1962, the respondent would have moved his application for committal earlier. 6. The High Court referred to this practice of stencilling as a new practice and from that drew the inference that it was done by way of subterfuge to get round its order. The High Court also said that it showed that the Municipality with a like purpose started the practice of realising rickshaw taxes and permitting them only on such payment to ply for hire. This is why the High Court held that the object of the Municipality was to defeat the order by keeping within its letters and committing a breach of its spirit. It seems to us that there is no warranty for this view. 7. The learned Attorney General has drawn our attention to Section 172 (1) (b) of the Uttar Pradesh Nagar Mahapalika Adhiniyam (City Municipalities Act), 1959, which was the Act in force at the relevant time. That section provides that the Municipality "shall impose the following taxes, namely ............ (b) a tax on vehicles other than mechanically propelled vehicles, and other conveyances plying for hire or kept within the City ........" The collection of this tax would appear to have been made obligatory on the Municipality by this provision. The Municipality said so in its affidavit in the contempt proceedings and this was not denied by the respondent in his counter affidavit. It is important to note that the collection of the tax is obligatory not only for conveyances plying for hire but in respect of conveyances "kept"; it would appear that as soon as any person owned and kept a rickshaw within the municipal limits, the Municipality became bound to collect the tax from him.
It is important to note that the collection of the tax is obligatory not only for conveyances plying for hire but in respect of conveyances "kept"; it would appear that as soon as any person owned and kept a rickshaw within the municipal limits, the Municipality became bound to collect the tax from him. The Municipality has accordingly all along been realising this tax from all owners, of rickshaws plying for hire or kept in the city. No doubt, earlier, a person paying the tax also obtained the necessary licence from the Municipality for plying the rickshaw but after the High Courts order the Municipality could not and did not issue the licence. This however did not affect its statutory obligation to collect the tax. Then we find that in respect of the tax that was collected the Municipality granted a receipt. This receipt contained the following endorsement:- "In case of licences, this receipt is not substitute for licence and does not prejudice the right of Mahapalika to refuse the licence." It would thus appear that the Municipality gave notice to persons who paid the tax that a licence was required if they wished to ply the rickshaws for hire. What we have said in this paragraph would show that in any event the practice of realising rickshaw taxes was not a new practice. The Municipality had all along been realising the taxes and issuing the necessary receipts for them; earlier it issued the relative licences where applied for but after the High Courts order it did not do so. We wish to emphasise here that the realisation of tax was not a new practice started after the High Courts order. 8. The other new practice alleged was the stencilling of the receipt of the tax on the back of the rickshaws. The learned Attorney General drew our attention to the Mahapalika Vahan Kar Niyamavali (Vehicle Tax Rules) dated February 25, 1962. Rule 10 of these rules provided that a badge indicating the period for which tax had been paid would be issued and R. 11 said that the badge issued under R. 10 would at all time be displayed prominently on the vehicle.
Rule 10 of these rules provided that a badge indicating the period for which tax had been paid would be issued and R. 11 said that the badge issued under R. 10 would at all time be displayed prominently on the vehicle. Obviously, therefore, from the beginning of the financial year 1962-63 the position was that the Municipality which was all along bound to collect the tax, continued to do so and it became also bound to display on the rickshaws badges indicating the period for which the tax had been paid. This is what it did by stencilling on the back of the rickshaws the particulars of the tax paid. This stencilling was no doubt a new practice but it had to be adopted under the rules which for the first time came into force on February 20, 1962. In these circumstances, we are unable to agree with the High Court that the practice had been adopted to get round its order. 9. It is true that the stencilling marks also contained the words "Rickshaw for hire" and on this the High Court seems to have relied as lending support to the conclusion to which it arrived. But these words had to be there because the taxes in respect of the private rickshaws and rickshaws for hire were not the same. The High Court also referred to bye law 2 which provided that no person shall own a rickshaw for plying for hire unless he holds appropriate licence, and observed that this bye law meant that without a licence a person could not even own a rickshaw for plying for hire. In this view of bye law 2, the High Court came to the conclusion that the Municipality had no right to receive tax on a rickshaw which did not possess a licence. We have grave doubts if this is the correct interpretation. The Attorney General said that bye law 2, meant that no one could ply a rickshaw for hire without a licence -a reading which we are not satisfied is incorrect. In fact at one place in the judgment the High Court itself seems to have accepted it for it said that the bye law provided that "no person shall drive or pull a rickshaw .... unless he holds an appropriate licence".
In fact at one place in the judgment the High Court itself seems to have accepted it for it said that the bye law provided that "no person shall drive or pull a rickshaw .... unless he holds an appropriate licence". If the High Court was right, then there would seem to be conflict between this bye law and Section 172(1) (b) of the Act to which we have earlier referred. However, it is not necessary to pronounce finally on this question. It is enough to say that in a contempt proceeding, when something has been done in compliance with a certain interpretation of a statute which can be good, it would be difficult to hold that that act would amount to contempt of court by defeating the object of its order, particularly when that act was not in contravention of the express terms of the order. 10. With regard to Section 172(1) (b), the High Court observed that the tax there mentioned was intended to be imposed for the use of the Municipalitys roads and stands etc. by the tax payer and therefore the collection of the tax amounted to a permission to him by the Municipality to use its roads and stands. We find no justification for this view in the language of the section. There is no reason to think that the tax imposed by it was in the nature of a fee for the services of providing and maintaining the roads and stands. The section provides that the tax was leviable for the purpose of the Act which in substance means, for providing the Municipality with its revenue. If the High Courts view is right, its order of July 14, 1961 would have to be read as making the Municipality not to carry out its statutory obligation. It can at least be doubted if such an order would have been made if the High Courts attention had been drawn to this aspect of the matter. The Municipality can legitimately contend that it did not understand the order, which did not expressly say so, as directing it not to collect a tax, to do which was one of its statutory obligations. 11. The High Court also observed that it was the duty of the Municipality under its bye laws to proceed against persons who were plying rickshaws for hire without licences. That is no doubt tdue.
11. The High Court also observed that it was the duty of the Municipality under its bye laws to proceed against persons who were plying rickshaws for hire without licences. That is no doubt tdue. But here, there was no order on the Municipality to do so. The learned Attorney General drew our attention to the fact that the Cantonment Board of Kanpur, which administered a neighbouring large area, also had the right to issue licences to rickshaws for plying on hire within its area and that the Board in fact issued a large number of such licences. It appears that the rickshaws licenced by the Board have the right to ply also on the streets under the administration of the Municipality. The Attorney General drew our attention to this fact to show the difficulty of checking the licences of the rickshaws. We are unable to say that this contention is idle. But however that may be, the fact that the Municipality did not prosecute unlinced rickshaws, assuming that to have been so, would be too weak to establish that it was attempting to get round the order of the Court for the purposes of an application for committal for contempt. 12. Having given the matter our anxious consideration and particularly as we do not have the assistance of counsel for the respondent in this case, we regret that we are unable to agree with the view which appealed to the High Court. In our opinion, it cannot be said that the collection of the tax by the Municipality was intended to defeat the order of the High Court in any way. We also like to observe that there were no proper allegations of contempt of court and, in any event, the evidence adduced does not establish what was sought to be insinuated. 13. With regard to the other appellant, he was held liable because his signature was embossed on the rickshaws below the stencilled writing showing the receipt of the tax. It was said that he thereby participated in the subterfuge adopted by the Municipality. As, in our opinion, the Municipality had not adopted any subterfuge the other appellant, its officer cannot be held to have participated in any such act. 14. The appeal is allowed. The judgment and the order of the High Court imposing fines and awarding costs against them are set aside.
As, in our opinion, the Municipality had not adopted any subterfuge the other appellant, its officer cannot be held to have participated in any such act. 14. The appeal is allowed. The judgment and the order of the High Court imposing fines and awarding costs against them are set aside. The fines, if paid, shall be refunded to the appellants. Appeal allowed.