Jagannath Das vs Jameshpur Notified Area Committee

K.K. Dutta, J.—This appeal arises out of a suit for recovery of licence fee with respect to the years 1961-62 to 1963-64. According to the case of the plaintiff, namely, the Jamshedpur Notified Area Committee, as made out in the plaint, the defendant is running a trade and business of coke (coal) from his coke depot in Bhalubasa coke depot within the local limits of Jamshedpur Notified Area Committee and is liable to pay licence fee at the rate of 1 per cent on the average value of coke stored per year. It was further alleged that the defendant withheld payment of the licence fee for the aforesaid years. In paragraph 7 of the plaint, the total value of the coke stocked by the defendant during each of the years in suit, that is, 1961-62 to 1963-64, has been specified and the plaintiff has claimed Rs. 437/-, Rs. 331/- and Rs. 334/- respectively for three years, that is, a total amount of Rs. 1102/-on account of licence fee at the rate of 1 per cent on the total value of the coke stocked during these years.

The defence, inter alia, was that the defendant was not liable to pay any license fee whatsoever as he is carrying on business in coke and not coal and licence fee is payable for the stock of coal and not coke. His further case was that the plaintiff''s claim for licence fee at the rate of 1 per cent on the total quantity of coke stored during each financial year is illegal. Pleas regarding non-maintainability of the suit etc. were also taken.

The trial Court came, to the finding that "coke" is synonymous with "coal" and, as such, the defendant''s contention about non-liability to pay licence fee on the ground that he was carrying on business in coke and not coal was rejected. The plea regarding non-maintainability of the suit was also rejected. But the objection taken in the written statement on the point as to the plaintiff being not entitled to realise licence fee at the rate of 1 per cent on the total value of the coke stocked during the years was not considered. On the findings above, the suit was decreed by the trial court.

The defendant thereon preferred an appeal, which was heard by the Subordinate Judge, Jarnshedpur. This Court also agreed with the finding of the trial court about the terra ''coal'' as including coke also and, as such, the defendant was held to be liable to pay licence fee for carrying on business in coke. It was further observed that the defendant was carrying on business both in coke and coal. This Court referred to the objection raised by the defendant in the written statement about the plaintiff''s claim at the rate of 1 per cent on the total value of coke as being illegal, but it has disposed of this objection on the basis that the only contention of the defendant in this connection was that he was dealing in coke and not coal and was, therefore, not liable to pay any licence fee. Hence, in accordance with the finding that the licence fee was payable for carrying on business in coke also, the appeal was dismissed. The present appeal has thereon been preferred by the defendant.

The first point that was urged before me in this appeal is that the defendant was not liable to pay any licence fee at all as he was carrying on business in coke and not coal and the licence fee is payable for storing or selling coal under the provisions of Sub-section (1) of Section 259 of the Bihar & Orissa Municipal Act and there is no provision for realisation of such fee for storing or selling coke. Under Sub-section (1) of Section 259, certain trades or businesses as specified in items (1) to (XVI) of this sub-section cannot be carried on within such local limits as may be fixed by the Commissioners without a licence granted by the Commissioners. Sub-section (3) provides for realisation of fee with respect to such licences at rates fixed by the Commissioners subject to the maximum fixed by the State Government. It was not disputed before me that these provisions are applicable to the Jarnshedpur Notified Areas Committee also and that under resolutions passed by this Committee, a licence is required to be taken out for carrying on business of storing and selling coal within the limits of the area of this Committee. It may be added that storing or selling coal is one of the trades and businesses specified in item (X) of Sub-section (1) of Section 259, referred to above. There is no specific reference to the business of storing or selling of coka in the list specified under items (i) to (xiv) of Sub-section (1) and hence the question to be determined is whether the term ''coal'' as used in item (x) of Sub-section (1) of Section 259 includes coke also. The terms ''coke'' and ''coal'' have not been defined anywhere in the Bihar & Orissa Municipal Act. It is, therefore, necessary to consider the dictionary meaning of these terms. In shorter Oxford Dictionary, the meanings of these terms have been specified as follows:

Coal-1. A piece of carbon glowing without flame,

A piece of burnt wood etc. that is, still capable of combustion without flame; cinder, ashes.

Charcoal.

A mineral, solid, hard, opaque, black or blackish, found in seams in the earth, and largely, used as fuel. It consists of carbonized vegetable matter.

Coke- Mineral coal deprived by dry distillation of. its volatile constituents.

It would appear from these definitions that coke is really nothing but coal of which the volatile elements have been removed by process of dry distillation. It is thus nothing but a variety of coal which is made readily combustible by removing its volatile substances. In common parlance also, the term ''coal'' is used with reference to coke also as being almost a synonymous term; although technically speaking, the term ''coke'' can be used with reference only to coal of which the volatile substances have been removed by the process of distillation. Reference may also be made in this connection to the definition of the term ''coal'' as given in Section 3(c) of the Coal Mines (Conservation and Safety) Act, 1952, which provides that coal includes coke in all its forms. This definition, no doubt, is meant only for the purpose of the aforesaid Act, but I am referring to it only for the purpose of showing that the term ''coal'' has been used in a wide sense as including coke as ;well. On consideration of all these aspects, I am unable to accept the contention of the appellant that no licence fee is payable for carrying on business of storing or selling in coke. It may be added that the fact that a licence fee is payable for carrying on trade and business of storing or selling coal within the Jamshedpur Notified Area Committee was not disputed before me. I may, however, mention that the finding of the learned Subordinate Judge that the defendant was carrying on business both in coke as well as coal (that is, coal of which volatile substances have not been removed) appears to be inconsistent with the allegations as made in the plaint itself, in paragraphs 4, 5 and 7 of which, there are clear and specific allegations to the effect that the defendant was carrying on trade and business in coke in his coke depot and had stored coke therein. However, this is hardly of any importance in view of the finding above that the licence fee is payable for carrying on business in coke also as the term ''coal'', as used in Sub-section (1) of Section 259 of the Municipal Act is comprehensive enough to include coke also.

The next point that was urged before me is that the plaintiff''s claim for licence fee at the rate of 1 per cent on the total value of coke stocked during the years in question is altogether illegal. As already men tioned, under the provisions of Sub-section (3) of Section 259, the licence fee is payable at such rates as may be fixed, by the Commissioners of the Notified Area Committee subject to the maximum laid down by the State Government, It appears that under the resolution passed by the Jamshedpur Notified Area Committee in a meeting held on 15-10-1951 (Vide Ext. 2/a) this Committee had decided to realise: licence fees at the maximum rates fixed by. the State Government. As shown by Ext. 1/b, the State Government by a resolution dated 4-12-1958 laid down the maximum rates of licence fee for different trades and business and the relevant portion of the notification with respect to business in coal is as follows:

Item (X):

Storing or selling of coal Re. 1/- per cent of average value of coal stored or Rs. 10/- per katha of land used for the storage of coal." In view of the two alternative modes for realisation of licence fee for storing or selling of coal as laid down in this Notification, the Jamshedpur Notified Area Committee was entitled to adopt either of the two modes and was therefore, entitled to levy licence fee on percentage basis, as provided for in this Notification. It must, however, be mentioned that according to the percentage basis, the maximum rate that can be levied is "1 per cent on average value of coal stored" and not 1 per cent on the total value of coal stored during a year. As already mentioned, in paragraph 7 of the plaint, the total value of the coke stored by the defendant during each of the years in suit has been specified and the licence fee has been calculated at 1 per cent of the total value of the coke stocked in each of the years. It is manifest that the plaintiff was not entitled to realise licence fee on this basis, that is, 1 per cent of the total value of the coke stocked during the entire year in view of the provisions of this Notification, which laid down the maximum rate as being 1 per cent on the average value of the coal stocked. The very use of the word ''average'' connotes that the figure is to be arrived at by taking the mean of a number of different figures. It was contended, in this connection, on behalf of the respondent, that what is meant is that if there is variation of price of coal from time to time, the average of the different prices should be taken and the value of the total quantity of coal stocked during the entire year should be determined on that basis and the licence fee should be levied at 1 per cent on that amount. Apart from the fact that the plaintiff''s claim has not been made on any such basis, it may also be pointed out that such an interpretation would lead to serious anomalies. For example, if a manhad stored 8000 maunds during the first six months and 2000 maunds during the next six months and the price prevailing during the first six months was Rs. 3/- per maund and that during the second six months was Rs. 7/- per maund, the average price comes to Rs. 5/- per maund. Hence, on calculation of the value of the total stock at the average price, the same comes to Rs. 50,000/- whereas on the basis of the calculation of the actual price during the two periods, the total comes to Rs. 24,000/- + Rs. 14,000/-, i.e., Rs. 38,000/- only. On the other hand, if the prices at the two periods were just the reverse, that is, Rs. 7/- per maund during the first six months and Rs. 3/- during the second six months, the total price on these , rates would come to Rs. 56,000/- + Rs. 6,000/, that is, Rs. 62,000/-. It would thus appear that according to the aforesaid interpretation, the licence fee would be. payable in one case at a much smaller amount than the total price of the quantity actually stocked and in the other case at a much larger amount than the actual price of the total quantity stocked during the year. There could evidently be no justification for any such discrimination and the Legislature could never have intended such a state of things. It would thus appear that what is meant by the words "average value of the coal stored" is that the value of the coal stored from day to day during a year has to be added up and the average thereof has to be determined by dividing the total by the number of days in the year, that is, either 365 or 366 as the case may be. The stock of coal may vary from day to day, as the stock increases as soon as a fresh supply is received and goes on decreasing day to day as a result of the daily sales and there also may be periods during which the dealer may be left without any stock at all. It appears that it is because of the fact that the stock of coal was liable to change from day to day that expression "average value" has been used while fixing the percentage basis for the purpose of determination of the licence fee. On consideration of all these aspects, I am unable to accept the contention of the respondent and hold that the amount of licence fee payable in any particular year has to be determined on basis of the average value of the stock by adding up the day to day value of the actual daily stock and dividing the same by the total number of days in the particular year, that is, 365 or 366.

It would thus follow that the claim as made by the plaintiff, which has been made on the total value of the entire stock during the whole of the year, is altogether wrong. The defendant was liable to pay only such amount of licence fee as would be payable at the rate of 1 per cent on the average value of the stock as determined according to the principles laid down above. There are, however, no materials for determination of such average value so far as the present suit is concerned. The plaintiff having wrongly based its claim on the amount of the total value of the stock during the entire year has not adduced any evidence or other materials from which the average value can be determined. As it is not possible to determine the amount to which the plaintiff is entitled on account of the plaintiff''s own default in making a wrong claim and failing to supply the relevant materials, no decree for any amount whatsoever can be passed in favour of the plaintiff in the present suit.

In the result, the appeal is allowed, the judgment and decree of the courts below are hereby set aside and the suit is dismissed. In the circumstances of the case, it is directed that the parties shall bear their own costs of this Court as well as the courts below.