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1977 DIGILAW 165 (KER)

HEALTH INSPECTOR, ALWAYE v. SIVASANKARAN

1977-06-30

S.K.KADER

body1977
Judgment :- 1. These appeals filed by the Health Inspector, Municipal Council, Alwaye, arise from orders of acquittal passed by the Judicial Magistrate of II Class, Alwaye, in five separate complaints filed by the appellant. As the points arising for decision in these appeals are common, the counsel appearing for both sides agreed and submitted that these appeals may be disposed of by a common judgment. 2. Crl. Appeal Nos. 333, 335, 391, 393 and 395 of 1976 arise from the orders passed respectively in C. C. Nos. 1252, 1220, 1210,1213 and 1209 of 1975. The complaint generally against the accused in these cases is that some of them are running saw mills, while others are manufacturing bricks within the limits of the Municipality by using electric motors of different H. Ps. varying from 20 H. P. to 115 H. P. without taking licence. All these cases related to the period 1974-75. According to the prosecution, in accordance with the notification under S.284 of the Kerala Municipalities Act, no place within the Municipal limits shall be used for any one or more of the purposes specified in Schedule III without taking a proper licence paying the necessary fee and the respondents herein were running saw mills and manufacturing bricks using electric motors without taking a licence and they thereby violated S.284 read with S.389 of the Kerala Municipalities Act and committed offences punishable under S 355 (1)(a) read with Schedule V of the said Act. 3. The Health Inspector alone was examined as pw.1 in all these cases on behalf of the Municipality. 4. In denying their guilt, the accused in the respective cases contended that they are not liable to pay any licence fee without quid pro quo, that no special service was rendered by the Municipality to them and that the notification relied on by the prosecution has not been produced and proved in these cases. 5. The learned Magistrate on a consideration of the evidence, acquitted the accused in all these cases on the ground that there is no evidence showing that special services were rendered by the Municipality to the trade or the business conducted by the accused and that the notification relied on has not been produced and proved. 6. 5. The learned Magistrate on a consideration of the evidence, acquitted the accused in all these cases on the ground that there is no evidence showing that special services were rendered by the Municipality to the trade or the business conducted by the accused and that the notification relied on has not been produced and proved. 6. Assailing these orders of acquittal, the counsel for the appellant strongly contended that the law does not require that the notification should be produced and proved, that this is a notification which can be taken judicial notice of by the court and that, at least in two cases, i. e., in Crl. Appeal Nos. 391 and 395 of 1976, there is evidence of pw.1 that the Municipality was rendering special services to the accused in the said cases and that therefore the order of acquittal should be set aside and the accused in each of these appeals should be convicted and sentenced according to law. 7. The counsel for the accused relied on a few decisions of this Court and also of the Supreme Court and contended that the notification in question cannot be taken judicial notice of under S.57 of the Indian Evidence Act, that it was the duty of the prosecution to have produced and proved the alleged notification, that in the cases under consideration the levy is not supported by quid pro quo and that the Municipality has not been rendering any special service and giving any special benefit to any of the accused in these cases individually or as a class or to those engaged in the same business as a class. 8. I shall first deal with the second point, namely, whether the levy of the fee impugned is supported by quid pro quo. The law is now well settled that there is a clear distinction between fee and the tax. It has been laid down by the Supreme Court in Corporation of Calcutta v. Liberty Cinema (AIR 1965 SC. 1107) that the levy of fee can be justified only if there are special benefits to the payer of the licence fee. A collection of money by a Government or local authority can be regarded or treated as fee only when it is levied in consideration of certain special services rendered to payers and the amount collected is earmarked to meet the expenses of rendering these special services. A collection of money by a Government or local authority can be regarded or treated as fee only when it is levied in consideration of certain special services rendered to payers and the amount collected is earmarked to meet the expenses of rendering these special services. It is also well settled that the special benefits to the payer of the licence fee must be something in addition to what is being enjoyed by the general public. There must be also correlation between the levy imposed and the expenses incurred for the purpose of rendering service or the special benefits conferred on the payee. The scope and ambit of these special services or special benefits which are required to justify the levy of licence fee have been explained in a series of decisions of this Court. (vide Kesavan Vaidyan v. Municipal Commissioner: 1970 KLT 831 FB.; Sankaran Nair v Vaniamkulam Panchayat: 1971 KLT. 264 FB ; Vijayamohini Mills v. Trivandrum Corporation: AIR 1971 Ker. 7 FB.; City Corporation of Calicut v. Sadasivan: 1968 KLT. 589 FB.; Travancore Tea Estates v. Executive Officer, Elappara Panchayat: 1968 KLT. 776 FB.; and Vasudeva Pai v. Municipal Commissioner: 1976 KLT. 199 DB ) A fee being a levy for consideration of rendering service of a particular type there must be correlation between the expenditure incurred by the local authority or the Government and the levy imposed. Special services are rendered to the payers of the licence fee collectively. Therefore, even if particular individuals do not obtain the benefit of services, they would nevertheless be liable for contribution. Services are not to be correlated to the services performed for each individual-it is the class or group of licensees that has to be taken into consideration. The position of law on the point is now fairly clear. Admittedly there is no evidence that any special service or special benefit has been rendered or performed by the Municipality to the accused in Crl. Appeal Nos 333, 335 and 393 of 1976 either individually or as a group or class of persons engaged in the same business. The counsel for the appellant made an attempt to show that there is some evidence on this point in Crl. Appeal Nos. 391 and 395 of 1976. Appeal Nos 333, 335 and 393 of 1976 either individually or as a group or class of persons engaged in the same business. The counsel for the appellant made an attempt to show that there is some evidence on this point in Crl. Appeal Nos. 391 and 395 of 1976. It was relying on certain stray answers given by pw 1 during cross-examination in these two cases that the counsel contended that the Municipality is rendering special services to the concerned persons. In C. C No. 1210/75 (Crl. Appeal No 391/76) pw.1 stated that the Municipality had arranged certain facilities to the timber merchants for unloading timber. The accused in this case is not a timber merchant and is only running a saw mill. There is no evidence that the market or the place where arrangements are said to have been made by the Municipality for unloading timber is anywhere near the saw mill of the accused in the case or that he is in any way benefited by this. In the other case, pw.1 stated that the Municipality used to spray anti-mosquito lotions in the locality where the accused is conducting the saw mill. This cannot be considered to be a special service done to the accused This is only part of the statutory duty of the Municipality to the general public. There is no evidence bow much was being levied or collected by way of licence fee and bow much was special services or benefits. A similar question came up for consideration before a Division Bench of this Court in Jeevaraj v. Commissioner, Badagra Municipality (1973 KLT. 845) and it was observed therein that the services rendered by the Public Health Staff by their visits, and advice on hygienic problems, scavenging operations in the area and the spraying of disinfectants had no relation to the activity that calls for the licence and that those services are what the Corporation is bound to render in discharge of its general statutory obligations. This decision was relied on in Saithu Kani Shahul Hameed v. State of Kerala (1974 (1) Ker.161) and Vasudeva Pai v. Municipal Commissioner (1976 KLT. 199) (Both Division Bench decisions). In Vasudeva Pai's case (1976 KLT. This decision was relied on in Saithu Kani Shahul Hameed v. State of Kerala (1974 (1) Ker.161) and Vasudeva Pai v. Municipal Commissioner (1976 KLT. 199) (Both Division Bench decisions). In Vasudeva Pai's case (1976 KLT. 199) it was held that the services rendered by the concerned authority should not be those in discharge of its statutory duties to the general public and such duties cannot be treated as 'special benefit' conferred on the payers of the licence fee. There is no satisfactory or reliable evidence to show that the Alwaye Municipality was offering special benefit or rendering special services to the accused in the respective cases individually or collectively as a class or group of payers of licence tee. This ground alone is sufficient to uphold the order of acquittal 9. As regards the question whether the notification said to have been published is one which comes within the scope of S.57 (1) of the Evidence Act or not, there are two views. In Executive Officer, Elayavoor Panchayat v. Bharathan, (1967 KLT. 161) a Division Bench of this Court, in a case coming under the Kerala Panchayats Act, 1960, held that a notification issued under S.96 of the said Act has to be produced and proved and that the court is not entitled to take judicial notice of any such notification. The notification impugned in this case is of the same nature. This decision and two other decisions of this Court on similar points came up for consideration before a Full Bench of this Court in Executive Officer, Chalakudy Panchayat v. V. P. Devassy (1970 KLT 991). While considering these decisions Their Lordships observed as follows: "The other decisions of this Court, namely. Pyli v. State of Kerala (1966 KLT. 102), Chandrasekharan v. State (1966 KLT. 638) and Executive Officer v. Bharathan 1967 KLT. 161) deal with notifications of a different kind. The first of these deals with a notification under S.19 of the Kerala Forests Act. While considering these decisions Their Lordships observed as follows: "The other decisions of this Court, namely. Pyli v. State of Kerala (1966 KLT. 102), Chandrasekharan v. State (1966 KLT. 638) and Executive Officer v. Bharathan 1967 KLT. 161) deal with notifications of a different kind. The first of these deals with a notification under S.19 of the Kerala Forests Act. 1961, declaring a particular area to be a reserved forest; the second deals with a notification fixing a maximum price under the Essential Commodities Act; and the third with a notification including a trade within the schedule of dangerous trades in the Madras Village Panchayats Act Whether notifications like these are legislative, or albeit statutory, essentially executive in character is a matter on which two views seem possible and on which we do not feel called upon to pronounce, although it would appear that there is much to be said for the view that the second and third are legislative in character." It is urged on behalf of the respondents that it is clear from the passage that Their Lordships have not decided this question finally. Whatever that may be, even if it has to be held that the notification in question is one coming under S.57 (1) of the Evidence Act, on that ground alone the orders of acquittal cannot be interfered with; and therefore, a decision on this question, for the purpose of these appeals, is not necessary as it is of no consequence. The prosecution has no case that there has been any contravention of S.285 of the Kerala Municipalities Act and no complaint in this regard also is not seen filed. It follows from the above discussion and findings that these appeals have no merit and the same are hereby dismissed confirming the orders of acquittal. Issue carbon copy of this judgment to the counsel for the respondents on payment of usual charges. Dismissed.