# THE MUNICIPAL COUNCIL, MADURAI v. R. NARAYANAN ETC

- **Citation:** [1976] 1 S.C.R. 333
- **Court:** Supreme Court of India
- **Decided:** 1975-08-18
- **Case number:** Civil Appeals Nos. 1656 to 1659 of 1973
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-municipal-council-madurai-v-r-narayanan-etc-6504
- **Pages:** 8

## Headnote

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THE MUNICIPAL COUNCIL, MADURAI
v.
R. NARAYANAN ETC.
August 18, 1975
[A. N. RAY, C.J., K. K. MATHEW, V. R. KRISHNA IYER
ANDS. M. FAZAL, ALI, JJ.l
333
Madras District Municipalities Act, 1920, s. 321(2)-Licence fee on hotelierslf can be treated a'> tax.
'
The appellant increased the licence fee imposed on hoteliers respondents
under s. 321(2), Madras District Municipalities Act, 1920, and they challenged
the increase.· The appellant justified the increase on the basis that the fee under
the section is a tax and falls u1i.der "tax on land and building" in Entry 49·~ List
II. VII Schedule of the Constitution.
The High Court held in favour of the
respondents:
Dismissin~ the appeal to this Court,
HELD : ( 1) The appellant would be competent to impose a prop~rty tax a.t
any oarticular rate it chooses, the user of the land and building as a restaurant
or hotel furnishing sufficient nexu~ for the legislature to impose a tax.
[339H, 340A]
Ajoy Kumar v. Local Board [1965] 3 S.C.R. 47, referred to.
(2) But the fee imposed under s. 321(2) in this case is not a tax.
[336G]
(a) Section 321(2) authorises the collection of a fee in contradiction to
tax.
[335B]
(b) Section 321 is in a part of the Act different from the part dealing
with taxation.
Wh~.Je the nomenclature of the levy or the location of
a section in the Act is not conclusive. they are relevant factors. for
deciding whether the. fee impos-ed is a tax or not.
[335-CD]
Liberty Cinerna Case [1965] 2 S.C.R. 477, referred to.
(c) Section 78(1A) author'ses the levy of property tax.
Section. 78(3)
contains the mandatory procedural prescriptions for imposing taxes.
When the legislature __ has carefully provided in the sub-section for
previous invitation and consideration of objiections to enhancement
of tax levies, resort to s. 321(2) to impose a tax as a fee would frus ..
trate the processual protection written into the la-w in regard to fiscal
measures.
[338 BCE]
(d) Schedule V with which s. 321 is directly linked sets out a number
of petty occupations all of which, theoretically cannot be carried on
except on land or in buildings.
If the licence-fee ~n s. 321 (2) is
read as land tax the fee in relation to every item of activity set out
in the Schedule would be tax on the basis of the trivial activity
furnishing the legal nexus between the tax and the land.
But, it
would. be straining the lanE?,uage to justify the imposition of a tax
on the land, on the basis of such a flimsy or casual connection.
[340C-E]

## Text

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THE MUNICIPAL COUNCIL, MADURAI
v.
R. NARAYANAN ETC.
August 18, 1975
[A. N. RAY, C.J., K. K. MATHEW, V. R. KRISHNA IYER
ANDS. M. FAZAL, ALI, JJ.l
333
Madras District Municipalities Act, 1920, s. 321(2)-Licence fee on hotelierslf can be treated a'> tax.
'
The appellant increased the licence fee imposed on hoteliers respondents
under s. 321(2), Madras District Municipalities Act, 1920, and they challenged
the increase.· The appellant justified the increase on the basis that the fee under
the section is a tax and falls u1i.der "tax on land and building" in Entry 49·~ List
II. VII Schedule of the Constitution.
The High Court held in favour of the
respondents:
Dismissin~ the appeal to this Court,
HELD : ( 1) The appellant would be competent to impose a prop~rty tax a.t
any oarticular rate it chooses, the user of the land and building as a restaurant
or hotel furnishing sufficient nexu~ for the legislature to impose a tax.
[339H, 340A]
Ajoy Kumar v. Local Board [1965] 3 S.C.R. 47, referred to.
(2) But the fee imposed under s. 321(2) in this case is not a tax.
[336G]
(a) Section 321(2) authorises the collection of a fee in contradiction to
tax.
[335B]
(b) Section 321 is in a part of the Act different from the part dealing
with taxation.
Wh~.Je the nomenclature of the levy or the location of
a section in the Act is not conclusive. they are relevant factors. for
deciding whether the. fee impos-ed is a tax or not.
[335-CD]
Liberty Cinerna Case [1965] 2 S.C.R. 477, referred to.
(c) Section 78(1A) author'ses the levy of property tax.
Section. 78(3)
contains the mandatory procedural prescriptions for imposing taxes.
When the legislature __ has carefully provided in the sub-section for
previous invitation and consideration of objiections to enhancement
of tax levies, resort to s. 321(2) to impose a tax as a fee would frus ..
trate the processual protection written into the la-w in regard to fiscal
measures.
[338 BCE]
(d) Schedule V with which s. 321 is directly linked sets out a number
of petty occupations all of which, theoretically cannot be carried on
except on land or in buildings.
If the licence-fee ~n s. 321 (2) is
read as land tax the fee in relation to every item of activity set out
in the Schedule would be tax on the basis of the trivial activity
furnishing the legal nexus between the tax and the land.
But, it
would. be straining the lanE?,uage to justify the imposition of a tax
on the land, on the basis of such a flimsy or casual connection.
[340C-E]
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1656 to 1659
of 1973.
Appeal by special leave from the judgment and Order dated the·
29th September, 1972 of the Madras High Court in Writ Appeals Nos.
191, 23, 24 & 190 of 1968 respectively.
S. Chllllaswamy and K. Hingorani, for the appellant.
8-L839SupCl/75
334
SUPREME COURT REPORTS
[1976) l S.C.R.
A. K. Sen, A. V. Ranganf and A. Subashini, for the respondents.
The Judgment of the Court was delivered by
KRISHNA IYER, J.-The die-hard 'tax'-'fec' dilenima survives, as
these appeals, by special leave, attest, long after this Court has dispelled the fiscal-legal confusion on the point in a series of rulings.
The cases before us were provoked by a sudden escalation of licence
'fee' imposed on all hoteliers by the common appeilant, the Madurai
Municipal Council (now it is a Corporation, but that makes no difference) (Council, for short). The scale of fees which, perhaps, merdy
defrayed the cost of issuing the licence, was moderate to begin with
\afid paid periodically by the respondents wlho run hotels within the
. municipal limits; but their present grievance is that the resolution of
December 28, 1965, whereby a sharp spurt in the rates of. fee was
brought about, bas been tainted with 'unconstitutionality'.
The authority, to justify the levy qua fee, must render some special
services to the category from whom the amount is exacted and the
total sum so collected must have a reasonable correlation to the cost
of such services.
Where these dual basic features· are absent,
you
cannot legally claim from the licensee under the label 'fee'.
This Court has, as late as the Salvation Army Case( 1) set out the
tests. beyond doubt.
When the respondents (writ-petitioners) challenged the fee raise, the plea in defence first was that the impost was
a fee strictly so called, that it was requited by adequate benefits and
that the larger lay-out on the inspecting staff ancj allied items, both
necessitated and validated the new increase.
However, on later and
better reflection, may be, the inspirational source for
which was
stated to be this Court's pronouncement in the Liberty Cinema Case (2),
the Connell rightly abandoned the fee-cum-quid pro quo formula and
anchored itself on the right to exact the higher rate as a 'tax on land
amd building' under Entry 49 of List II, in the Seventh Schedule, read
with s. 321 (2) of the Madras District Municipalities Act, 1920 (for
short, the Act). This volte face as it were, was not objected to by the
opposite party and the writ petitions and writ appeals were disposed
of on that footing. The learned Single Judge upheld the levy but the
appellate Bench upset it. The appellant Council has journeyed to this
Court to repair the blow on its revenue since there are 1~200 and odd
hotel-keepers similarly situated in the Madurai Municipal limits, although only four have figured as respondents here.
The financial
dimension of the decision is, indeed, considerable.
Shri Chellaswamy, counsel for the Council, has been refreshinoly
fair in his submissions and consistently with the case urged in the
High Court to support lhe levy, has grounded his defence of the 'feehike' on the taxing _power of the municipal body under the Act. The
core of the matter, therefore, is w!ilether the context and text of the
statute and other surrounding circumstances warrant the validation of
the levy as a tax in essence, be its name what it may.
(I) [1975] I. S. C. C. 50~.
(2) [1965] 2 s. C. R. 477.
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MUNICIPAL COUNCIL v. R. NARAYANAN (Krishna Iyer, J.) 335
A
Let us formulate the problems for facility of logical handling.
Agreed, as both parties now a~e, that this licence fee stands or falls·
as a tax, the principal question is whether the 'fee' provided for in
s. 321(2) of the Act, under which it is collected, is a tax at all, having
regard to the anatomy of the Act. If it can be so regarded, the next
point is whether Entry 49 of List II can bring within its constitutional
B
compass the licence fee for running a hotel trade. Thirdly, if that is
permissible, are there other incurable infirmities ? These apart, some
matters of subsidiary moment do arise and may be considered in the
appropriate sequence .
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The initial terminological hurdle in the way of the appellant is that
s. 321 (2) of the Act authorizes the collection of a licence
fee
in
contra-distinction to property tax in s. 78 of the Act. (cf. A joy Kumar
v. Local Board(!).
Naturally, Shri A. K., Sen, counsel for the contestants, insisted that the Act had made a deliberate dichotomy between the two types of levy, placed them subject-wise in different parts
of the statute and meaningfully referred to them as 'tax' and 'fee'
in ss. 78 and 321 (2), respectively. Counsel for the appellant, relying on certain passages in Liberty Cinema, (supra) desired us to
slur over the verbal error. True, mere nomenclature cannot, without
more, lead to rejection of the plea of tax, though it is a relevant factor,
since, to some extent, Liberty Cinema (supra) has whittled down
the efficacy of this circumstance. This Court there observed, at p.
483:
"Now, on the first question, that is, whether the levy is .
in return for services, it is said that it is so because s. 548
(of Calcutta Municipal Act 33 of 1951) uses the word 'foe'.
But, surely, nothing turns on the words used. The word 'fee'
cannot be . said to have acquired a rigid technical meaning
in the English language indicating only a levy in return for
services. No authority for such a meaning of the word was
cited.
However that may be, it is conceded by the reS'/X)ltden/ that the Act uses the word 'fee' indiscriminately. It is
admitted that some of the levies authorised are taxes though
called fees.
Thus, for example, as Mitter J (in the High
Court, Division Bench) pointed out, the levies authorised by
ss. 218, 222 and 229 ar~ really taxes though called fees for
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no services are required to be rendered in respect of them.
The Act, therefore, did not intend to use the word fee as
referring only to a levy in return for services."
(emphasis, ours)
We have therefore to have a view of the concerned parts of the Act
with a comparative eye on the Calcutta Municipal Act which felI for
decision in Liberty Cinema (supra).
Every local authority, under the
Nlevant statute, has the power to tax, so as to finance the various welfare activities it is expected to fulfil.
Similarly such local bodies also
exercise the police powers of the State to the extent they are vested
(1) [1965] 3 S.C.R. 47.
336
SUPREME COURT REPORTS
[19761 1 s.c.R.
in them by the State law for the purpose of controlling, regulating and
proscribing operations of individuals which may need to be conditioned by licences and permissions or prohibited in public interest because
they arc noxious or dangerous .. Towards these ends, licences
and
fees for services, if any, rendered may be prescribed. The Madras
Act, like other similar statutes, embraces both types of activities in
a systematized way. Thus Taxation and Finance are covered by Part
III while Public Health-Safety and Convenience, comes under Part
IV, Procedure and Miscellaneous, which include general
provisions
regarding licences and permissions, are clubbed together in Part VI.
Section 78, empowering property tax levy, falls in Part III (Taxation
and Finance), whik s. 321, relating to licence fees, is located in Part
VI. The scheme tbns separates issue of licences and levy of licence
fees from taxes on property and other items.
Prima facie,
in the
absence of other compelling factors, to lug in a taxing provision into
Part VI may, therefore, lead to obscruity and confusion.
The Calcutta Municipal Act, 1951, also bas some scheme of sorts
and deals with Finance in Part III, Taxation in Part IV and Public
Health, Safety and Convenience in Part V. In the same Part, Chapter
XXVI deals with a miscellany of matters like Inspection and Regulation of Premises, and of Factories, Trades and Places of Public Resort.
Section 443 deals wi.tb licensing and control of theatres, circuses and
places of public amusement.
Strangely enough, s.
548(1)
which
relates to 'licence and written permission' also empowers in addition to
any other matter required to be specified under any other Section of
this Act- ·
(.a)
(b)
(c)
(d)
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(e) the tax or fee, if any, paid for the licence or written
permission."
There is thus in s. 548 an extra power specifically conferred to levy
tax or fee, which is signHicantly rubsent in the Madras Act (We are
aware there is some obscurity here because cinema licensing is provided
for earlier in s. 443).
It is this provision of the Calcutta Act (s. 548)-which fell for construction before this Court in Liberty Cinema (supra). While one may
discern a broad scheme in that Act, there is some wobbling in the sense
that a power to tax is oddly placed in a Chapter primarily concerned
with licences an\l permissions.
The Madras Act, on the other hand,
speaks with more precision and relegates licences and licence fees to a
Part different from Taxation anli Finance.
The procedure for each is
also delineated separately.
For these reasons we refuse to aceede to
the contention that 'fee' in. s. 321 (2) is a tax.
Shri A. K. Sen has cited a catena of Madras cases, spread over
several decades, where, under this very Act, fee has been interpreted
as fee with a tag of special services in lieu of such payment. He has
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MUNICIPAL COUNCIL v. R· NARAYANAN ('Krishna Iyer,!.) 337
further pressed the drafting indifference while using the words 'fee' and
'tax' in s.548 of the Calcutta Act to repel the application of the observations in Liberty Cinema (earlier quoted) to the provisions of the Madras
Act. In the latter, the contrast is boldly projected not only in the phraseology but in the chapter-wise dealing with the tWO topics. We feel the
force of this submission.
Shri Chellaswamy sought to counter the contention based on the
location of s.321 in a Part which has nothing to do with taxation. In
Liberty Cinema (supra) this Court had occasion to warn against reaching any conclusion, when there is a tax -fee conflict based on the collocation of subjects in a statute or the placement of a provision under a
certain rubric as clinching.
What is telling [s tihe totality, not som~
isolated indicium. A short-cut is often a wrong-cut and a fuller study
-0f the statute to be construed cannot be avoided. Sarkar, J. (as he then
was), in Liberty Cinema (supra), observed at p. 488:
"It was also contended that the levy un.der s.548 (of the
Calcutta Municipal Act) must be a fee and not a tax, for all
provisions as to taxation are' contained in Part IV of the Act,
while this section occurred in Chapter XXXVI headed 'Procedure' in Part YIU whilch was without a heading. It was
pointed out that Part V dealt with 'Public Health Safety and
Convenience' ands. 443 which was included in Chapter XXVI
contained in this Part was headed 'Inspection and Regulation
of Premises, and of Factories, Trades and Places of Public
Resort'. A cinema house, it is not disputed, is included in the
words 'Places of public resort'.
It was, therefore, contended
that a levy outside Part IV could not be a tax and hence must
be a fee for services. This contention was sought to be supported by the argument that s.443 occurred in a Part concerning Public Health, Safety and Convenience and therefore the
intention was that the levy authorised by the section would be
in return for work done for securing public health, safety and
convenience and was hence a fee. We are wholly unable to
accept this contention.
Whether a particular levy is a fee or
tax has to be decided only by refere,nce to the terms of the section as we 'have earlier stated. Its position in the Act cannot
,determine its nature; an imposition which is by its terms a tax
and not a fee, which in our opinion the present imposition is,
cannot become a fee by reason of its having bee.n placed in a
certain part of the statute. The reference to the heading of
Part V can at most indicate that the provisions in it were for
conferring benefit on the public at large.
The cinema house
owners paying the levy would not as
such
owners
be
getting that benefit. We are not concerned with the benefit,
if any, received by them as members of the public for that is
not special benefit meant for them. We are clear in our mind
that if looking at the tenns of the provision anthorising the
levy, it appears that it is not for special services rendered to
the person on whom the levy is imposed, it cannot _be a fee
wherever it may be placed in the statute. A consideration
338
. SUPREME COURT REPORTS
[1976] l S.C.R •
of where ss.443 and 548 are placed in the Act is irrelevant for
determining whether the levy illlpose.d by them is a fee or a
t~."
So we do not rest our conclusion solely on the location of s. 321 In a
different Part from Taxatio11, while we recognise it as an indicator, among
a variety of considerations of course, when drafting precision is absent,
judicial caution has to be alerted.
To recapitulate, in the·Madras Act, Chapter VI of Part III is devoted
to Taxation and Finance. Section 78(l)(a) authorizes levy of property
tax.
The section sets out the other taxes a Municipal Council may levy.
Section 78 ( 3) together with a proviso, contains the procedural prescrip-
. lions for imposing taxes. Admittedly, there has been no compliance
with this procedure and, if such conformance is mandatory, as it is, the
case of tax set up by the appellant collapses (Vide : Atlas Cycle Industries v. Haryana(I).
Whether some minor defect or deficiency will
defeat the validity of the tax is moot but since here there is a total
failure to adhere or advert to the procedure in s.78, we need not consider
hypothetical shortfalls and their impacts.
Counsel for the appellant resourcefully urg[d that when two constructions are possible, we should opt in favour of validity since law leans
towards life and must sustain, not stifle it.
The statute, other things
being equal, must be interpreted ut res magis valeat guam par eat(') :
see Broom's Legal Maxims ( 10 ed.) p. 361, Craies on Statutes (6th ed.)
p. 95 and Maxwell on Statutes (11th ed.) p. 221. In his submission it
is possible to uphold the 'levy', miscalled 'fee', on the basis that it is a
tax.
The argument is that ignoring the placement of s. 321 (2) in
Part VI and blurring the precision of the word 'fee' used, we can still
loqk at the pith and substance of the matter and regard it as a 'tax on
land and buildings' provided for in Entry 49, List II of the Seventh Sche·
dule. He relied on A joy Kumar (supra) where also a landholder who
was holdin~a marke4 on his land was directed to take out a licence and
pay Rs. "6001- per year as licence fee, challenged the validity of the claim
on the score that the State had no power· to tax markets. Repelling this
contention, this Court held !hat the use to which the land w1s put furnished sufficient nexus for the Legislature to impose a tax on land. In
that connection, the following observations lay down the guide-lines :
"It is well-settled that the entries in the three legislative
lists have to be interpreted in their Wide~t amplitude and there-·
fore if a tax can reasonably be held to be a tax on land it will
come within entry 49. Further it is equally well-settled that
tax on land may be based on the annual value of the land and
would still be a tax on land and would not be beyond the competence of the State legislature on the ground that it is a tax
on income : (See Ralla Ram v. The Province of East Punjab :
(1948 FCR 207). It follows therefore that the use to which
the land is put can be taken into account in imposing a tax
(I) [197211 S. C. R.127.
(2) Quoted in Liberty Cinema : P· 484.
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MUNICIPAL COUNCIL v. R. NARAYANAN (Krishna Iyer,!.) 339
on it within the meaninl/. of entry 49 of List II, for the annual
value of land which can certainly be taken into account in
imposing a tax for the purpose of this entry would necessarily
depend upon the use to which the lan\l is put." {p. 49).
x
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"It will be seen from the provisions of these three subsections (sub-ss. (1) to (3) of s. 62 of the Assam Local Self
Government Act 1953-Act 25 of 1953) that power of the
board to impose the tax arises on its passing a resolution that
no land within its jurisdiction shall be used as a market. Such
resolution clearly affects land within the jurisdiction of the
board and on the passing of such a resolution the board gets
the further power to issue licences for holding of market~ on
lands Within its jurisdiction by a resolution and also the power
to impose an annual tax thereon." (p.49)
x
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" .. s. 62(2) which uses the words 'impose an annual tax
thereon, clearly shows that the word 'thereon' refers to any
land for which .a licence is issued for use as a market and not
to the word 'market'. Thus the tax in the present case being
on land would clearly be within the competence of the State
legislature." (p.51)
Generously following the line of thinking presented by Shri Chellaswamy, based on Ajay [(,umar (supra) we find difficulty in applying its
ratio to s. 321 (2). There the tax was on land
and the expression
'thereon' underscores this idea. Once the tax is on land, the link between
the tax and the land-user like running" market or hotel based on the letting value is good, but in the present case there is nothing to indicate that
it is a tax at all. Secondly, the phraseology does not suggest that it is
a tax on the land or the building.
On the other hand, it is on the
licence-fee. for plying a particular trade. It is not possible to blink at
· this vital distinction between Ajay Kumar (supra) and the present case.
Maybe that the Madurai Municipality is perfectly within its competence in imposing a property tax al any particular rate it chooses. The
user of the land or building as a restaurant or hotel being the link as
explained above,_ the fact that there is a tax on· all property within the
municipality does not mean that this local body cannot levy an additional
tax or surcharge on the land or building if put to a particular specialised use. We see no impediment in the municipal authority taxing hotels
at a certain rate exercising its power to impose property tax provided
there are no other legal impetliments in the way. We are not pursuing
the existence or otherwise of other impediments because that does not
fall for our consideration in this case.
Shri A.. K. Sen is right is his submission that unlike in the Assam
Act considered in Ajay Kumar (supra) in the present case we do not
even find the expression 'tax' used.
The. Municipal resolution might have been saved had we been able
to spell out a taxing power on property from s.321 (2) of the Act.
For, there is no gainsaying the State's right to tax land and buildings
340
SUPREME COURT REPORTS
(1976) 1 S.C.R.
and the nexus between the tax and the power may be land use. Since
running a restaurant or cinema house is ciearly a use of building, a ta_x
thereon, based on such user, is constitutionally impeccable. Such 1s
not the case here.
A
Thus the plea thats. 321 (2) lends itself to being regarded as a tax,
indifferently described as fee, breaks down for two reasons.
When the ,
Legislature has carefully provided in s.78 (3) for previous invitation
B
and consideration of objections to enhancement of tax levies, resort
to the device of tax disgnised as fee, under s.321 (2), may not require
any such procedural fairpess and discipline and thus will frustrate the
processual protection written into the law in regard to fiscal measures.
Secondly, Schedule V, with which s.321 is directly linked, sets out a
host of petty and lucrative ventures all of which, theoretically, cannot be
carried on except on land or buildings. Can it be that some\ flimsy or
casual connection with terra firma will furnish the legal nexus between
the tax imposed and the land on Which the work is done ? For example,
washing soiled clothes is an item in Schedule V. It is straining judicial
credulity to snapping point to say that such trivial user justifies a tax
on the land when washing is done. Running a hotel or market or permanent circus or theatre may stand on a different footing.
The commonsense of the common man is the best legal consultant in many cases
and eschewal of hyper-technical and over-sophisticated legal niceties
helps the vision. We cannot list out what, in law, will serve as a nexus
between land and tax thereon but, in a given case like in a hotel business, land-use may easily be discerned. The snag is that in the present
appeals the levy is not on land but on the licence for business and bearing in mind the identity of the legal concept, we reject the coatention
that the impugne'd resolution was an innocent tax on property. The
<:ase falls between two stools. It is not a fee ex concessionis it is n: t a
tax ex fade.
We further repel the request to read licence-fee ins. 321
(2) as land tax into every item of activity set out in Schedule V, from
washing soiled clothes on a broad stone to using a central place as a
posh restaurant.
The cumulative result of the multiple ~ubmissions we have been
addressed is that the impugned resolution is invalid. We do not bar
the door for the Municipality or the State to pursue other ways to tax
hotel-keepers, acting according to Jaw and under the power to tax in
Entry 49, List II, of the Seventh Schedule, while dismissing the appeals.
The legal controversy in this case is stricken with more than marginal obscurity and indeed, has exercised our minds on the diverse aspects of law considerably. Moreover, the battle is
between a local
authority which h in need of financial resources to fulfil its functions
and a host of hoteliers who flourish in private business. Bearing in
mind the conspectus of circumstances, we regard this case as one where
the proper order will be that parties do bear their own costs throughout.
V.P.S.
Appealr dismissed.
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