Madras High Court
Sourashtra Brahmana Dharma Paripalana ... vs Madurai City Municipal Corporation ... on 14 February, 1997
Equivalent citations: (1997)1MLJ324
JUDGMENT S.S. Subramani, J.
1. Plaintiff in O.S. No. 64 of 1992, on the file of District Munsif's Court, Melur, is the appellant.
2. Relevant facts as alleged in the plaint may be summarised as follows:
The suit property belongs to the plaintiff. The property is used as a meeting hall of the plaintiff's sabha. The property is attached Sri Srinivasaperumal Temple and they lie together. It is said that the temple and the property are lying as one block and have been exempted from property from the year 1956 onwards. While so, a notice was received by plaintiff under Section 228 and 442 of the Madurai City Municipal Corporation Act, 1971, whereunder the schedule property was described as a 'Kalyana Mandapam'. It is said that the plaintiff is not using the said as a 'Kalyana Mandapam' nor is it used for carrying on any manufacturing, trade or in any other way, so that rubbish is accumulated in large quantities. Therefore, according to the plaintiff, the notice in question is invalid and arbitrary, and the defendant has not followed the Madurai City Municipal Corporation Act and Rules before serving the notice. It is further stated that the defendant is not justified in fixing a sum of Rs. 500 on the plaintiff. The fixation of quantum is arbitrary and baseless. The act of the defendant is beyond its jurisdiction and power. It is also beyond the provisions of the Madurai City Municipal Corporation Act and Rules. Therefore, the plaintiff seeks a declaration that the notice issued under Sees.228 and 442 of the said Act is arbitrary and illegal, void and unenforceable, and a consequential permanent prohibitory injunction restraining the defendant from collecting annually Rs. 500 from plaintiff.
3. In the written statement filed by the defendant, it is said that even though the same i.e., building is attached to the temple,-it is used as 'Kalyana Mandapam' for private parties. Large quantities of rubbish are collected due to the use of the building as a 'Kalyana Mandapam'. Therefore, the Corporation is entitled to issue notice under Sees.228 and 442 of the Madurai City Municipal Corporation Act and also realise Rs. 500 per annum. It is only a nominal fees which it is entitled to collect. Services are being rendered by the Corporation for realising the fees. The suit is, there fore, liable to be dismissed with costs.
4. The trial court, as per judgment dated 26.8.1992, decreed the suit. It was of the view that the defendant has not proved that rubbish is being collected. The matter was taken in appeal before the lower appellate court. The suit was dismissed, by allowing the appeal.
5. While allowing the appeal, the lower appellate court held that even on the admission of the plaintiff, the building is used as a 'Kalyana Mandapam' and that the statement is that it is used by its members and not by private persons. Further, the lower appellate court found that when a Public Authority issues a notice, there is a legal presumption that all official acts are done in accordance with law, unless the same is specifically challenged. In this case, according to the lower appellate court, the same is not specifically challenged and, therefore, the levy is valid. Regarding the quantum, the lower appellate court said that it is only a nominal amount and there need not be any mathematical accuracy for the services rendered to the amount collected. The suit was dismissed. It is against the said judgment, the plaintiff has preferred this second appeal.
6. At the time of admission of the second appeal, the following substantial question of law was raised for consideration:
Whether the lower appellate court has correctly understood the scope of the provisions of Section 228 and 422 of the Madurai City Municipal Corporation Act.
7. Even though in the plaint, it is alleged that the property is not used as 'Kalyana Mandapam' the evidence of P. W. 1 is categoric when he states that at least by the members the building issued as 'Kalyana Mandapam'. Naturally it follows that gathering will be there and catering will also be there. Obviously there will be rubbish, which will have to be collected by the defendantCorporation.
8. Under Section 227 of the Madurai City Municipal Corporation Act, it is the duty of the Municipality to remove the rubbish. But in cases where the rubbish accumulates in large quantities, a special provision is made under Section 228 of the said Act. Under that section, the Corporation can direct the owner or occupier of suclf premises to collect all rubbish or filth accumulating thereon and to remove the same at such times, in such carts, etc., it can charge the said owner or occupier periodical fee. Section 228(b) reads thus:
After giving such owner or occupier notice of his intention, cause all rubbish and filth accumulating in such premises to be removed, and charge the said owner or occupier for such removal such periodical fee as may, with the sanction of the Standing Committee, be specified in the notice issued under Clause (a).
If the amount is not paid, the defendant is entitled to have the same realised by initiating coercive steps. Once, it is found that the building is used as 'Kalyana Mandapam' naturally, the defendant is entitled to ask the owner to pay the fee. As found by the lower appellate court, plaintiff has no case that notice was issued without any authority. Law presumes that official acts are done in accordance with procedure. In this case, there is no reason to believe that the Commissioner could have issued the notice without any previous sanction of the Standing Committee.
9. The power of the Municipality is, therefore, inherent and it is empowered by the Statute.
10. The other question that requires consideration is, whether the quantum fixed by the defendant is in any way excessive or arbitrary. In this connection, certain decisions of the Supreme Court may usefully be referred to.
11. In Municipal Corporation of Delhi v. Mohd. Yasin , their Lordships were considering the difference between a tax and fee and it was held that there is no generic difference between a tax and a fee, though broadly a tax is compulsory exaction as part of a common burden, without promise of any special advantages to classes of taxpayers whereas a fee is a payment for services rendered, benefit provided or privilege conferred. Their Lordships further went on to say that 'quidpro quo' in the strict sense is not the one and only true index of a fee, nor is it necessarily absent in a tax'. It was further held that 'The fee collected need not be shown to be related to expenditure incurred directly and exclusively in connection with the slaughtering of animals in its slaughter houses and also, shown as such in the municipal budget. There need not be any fastidious balancing of the cost of the services rendered with the fees collected.
12. In Sreenivasa General Traders v. State ofAndhra Pradesh , the entire law regarding levy of fee was considered by the Supreme Court. In paragraphs 31 and 32 of the judgment, their Lordships said thus:
The traditional view that there must be actual quid pro quo for a fee has undergone a sea change in the subsequent decisions....
In determining whether a levy is a fee, the true test must be whether its primary and essential purpose is to render specific services to a specified area or class; it may be of no consequence that the State may ultimately and indirectly be benefited by it. The power of any legislature to levy a fee is conditioned by the fact that it must be "by and large" a quid pro quo for the services rendered. However, correlationship between the levy and the services rendered (sic. or) expected is one of general character and not of mathematical exactitude. All that is necessary is that there should be a "reasonable relationship" between the levy of the fee and the services rendered.....
The same principle was reiterated in the decision reported in Sirsilk Limited v. Textiles Committee and Ors. (1989) 1 S.C.C. (Supp.) 168. In paragraph 34 of the judgment, their Lordships extracted the relevant portion from the decision rendered in Sreenivasa General Trader's case, , referred to supra, and accepted the principle that 'by and large' services will be sufficient. It may be noted that the earlier view that a substantial portion of the amount collected must be spent for the services rendered was given a goby and the same is taken note of in the decision reported in Kishan Lai Lakhmi Chand v. State of Haryana (1993)4 S.C.C. (Supp.) 461.
13. Durga Das Basu in 'Short Constitution of India - 12th Edition (1996), commenting on Article 227 of the Constitution, has stated thus:
The traditional concept of quid pro quo has, however, undergone a transformation in recent cases, leading to the following propositions:
(a) Though a fee must be co-related to the services rendered, such relationship need not be mathematical what has to be seen is whether there is a 'fair correspondence' between the fee charged and the cost of services rendered to the fee-payers as a class. A 'broad correlationship' is all that is necessary.
(b) Such relationship need not be direct; even a casual relationship may be enough.
(c) Neither the incidence of the fee nor the service rendered need be uniform.
(d) That others besides these paying the fees are also benefited does not detract from the character of the fee. [Italics supplied] In this case, it cannot be doubted that due to the collection of huge quantities of garbage, the general provision contained in Section 227 of the Act may not apply. Some additional services will have to be rendered. The court can take judicial notice of administrative and establishment charges, and when compared to the present day cost the annual payment of Rs. 500 is meagre. It is not arbitrary as contended by the learned Counsel for the appellant. The question to be considered is, whether the levy of fee has any correlation to the services rendered. A broad correlation alone is sufficient as per the law now settled by the Supreme Court. In that view of the matter, I do not think, the appellant has succeeded in challenging the levy in any way.
14. The lower appellate court has correctly understood the scope of Section 227 and 495 of the Act and has come to the correct conclusion that the levy is good, and the defendant is entitled to realise the same from the plaintiff. There is no merit in the appeal and the same is, therefore dismissed, however, without any order as to costs. Consequently, CM.P. No. 5767 of 1996 (for stay) is dismissed and C.M.P. No. 16143 of 1996 for vacating the interim injunction is allowed.