Cuttack Municipality vs Surendra Nath Sahu

Harries, C.J.—This is a Letters Patent appeal from a decision of Mohamad Noor J., upholding concurrent decrees of the Courts below passed in favour of the plain, tiff-respondent. The plaintiff, respondent brought a suit against the Cuttack Municipality claiming a declaration that the Municipality were not entitled to charge an annual license fee in respect of druggists'' shops registered in the Municipality. The learned Munsif who heard the case came to the conclusion that the by-law upon which the Municipality relied was ultra vires the Bihar and Orissa Municipal Act, 1922, and he decreed the plaintiff''s claim for the declaration.

On appeal the lower Appellate Court upheld this decision which was again affirmed in second appeal by Mohamad Noor J. The facts of the case can very shortly be stated as follows : The respondent is a medical practitioner who occupied certain premises which have been used as a druggist''s shop for over twenty years. Some time after the Bihar and Orissa Municipal Act, 1922, came into force the Municipality, acting under the provisions of Section 291(j) of the Act, fixed a fee for the granting of a license to holders of druggist shops. Such a license is made necessary by reason of the provisions of Section 282 of that Act.

The fee fixed for the license appears to have been Rs. 20 and the by-law of the Municipality was confirmed by the Local Government as required by Section 354 of the Act on 1st June 1929. The Gazette of that date has this item:

By-law framed by the Commissioners of the Cuttack Municipality u/s 291 (f) and (j) Bihar and Orissa Municipal Act. The fees for the grant of a license u/s 282 of the Bihar and Orissa Municipal Act shall be Rs. 20.

There can be no question, and indeed it is not denied, that the respondent paid Rs. 20 after this by-law came into force. The Municipality, however, claimed a right to demand Rs. 20 per annum, and this they did until the year 1931. In that year the Municipality amended this by-law and substituted "Rs. 10" for "Rs. 20," and this amendment was confirmed by the Local Government on 7th September 1931, and notification of the amendment and confirmation appeared in the Gazette of that date. After this date the license fee was Rs. 10 and not Rs. 20, and though it was not stated that the fee was an annual one the Municipality claimed from the druggists in the town this sum of Rs. 10 annually. Tha respondent, among others, paid this sum for some years under protest.

The Municipality, realizing the difficulties that they were in, again amended their by-laws, and this amendment was confirmed by the Local Government and published in the Gazette of 9th April 1934. By that amendment the fee for a druggist''s license was stated to be not Rs. 10 but Rs. 10 a year. This is the first mention in the official notifications of an annual fee being chargeable. The section requiring premises kept for the retail sale of drugs to be licensed is Section 282(1), Bihar and Orissa Municipal Act. That section is in these terms:

No shop or place shall be kept for the retail sale of drugs recognized by the British Pharmacopoeia,. not being also articles of ordinary domestic consumption, unless the same has been registered in the office of the Commissioners. The Commissioner shall upon registration, grant the keeper of such shop or place a license which he shall be bound to display in some conspicuous part of his premises....

Once a druggist''s shop is registered, it would appear that the Commissioner must grant a license, and the license is not an annual one but is a license which permits the occupier of those premises to sell certain drugs for an indefinite period. The section permitting the Municipality to levy a fee for such license is Section 291(j) of the

Act, and that is in these terms:

The Commissioners at a meeting may make bylaws consistent with this Act-fixing the fees for the grant of any license under this chapter.

There can be no doubt that the Municipality had a right to fix a fee for the license granted to the respondent to sell drugs on these premises. The fee fixed was not an annual one but a lump sum one of Rs. 20

The respondent paid that fee, and I cannot see how he can be compelled to pay any further sum. He paid the fee fixed for his license, and he obtained the license, which entitles him to carry on the sale of drugs on these premises. Had the license been an annual one, different considerations would have arisen; but the section does not contemplate an annual license, and no one suggests that the license granted to the respondent was an annual one.

His premises were registered, and the Commissioner, as he was bound to do, granted a license permitting the sale of drugs on these premises. Having paid all that the law required him to pay for the license, he could not, in my view, be made to pay more by an amendment of these by-laws to make the fee payable an annual one. It may be argued hereafter that this amendment making the fee an annual one is ultra vires the statute; but it is unnecessary for me to express any opinion on that question in this particular case, though the lower Courts and Mohamad Noor J. have expressed their views on the subject. For the decision of this case it is sufficient to say that the respondent, having paid the prescribed fee, cannot by a subsequent amendment be compelled to pay more.

The fee, which was fixed and which he paid, was a lump sum fee for all time, and that being so, he could not be made to pay any further sum. As I have said, I prefer in this case to express no opinion as to the rights of parties when a new license is granted under this section. That matter can be considered when the facts give rise to the question. In the present case however there is no possible ground upon which the Municipality can demand further payment when it is abundantly clear that the respondent paid what was by law fixed in 1929 as a lump sum fee for this license. Having paid that, his liability was at an end.

In the result therefore I hold that the plaintiff, respondent was entitled to a declaration that he personally was not liable to pay any further amount in respect of the license granted to him u/s 282, Bihar and Orissa Municipal Act. For these reasons this appeal must fail and I would dismiss it with costs.

FazI Ali, J.

I agree.