TMI Blog2013 (6) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... Nigam it will be decided by the collector. Thus the objections raised by the Nagar Nigam cannot be ignored or taken lightly. Since for regulatory fee there is no need for any quid pro quo, though the fee cannot be excessive. The assertion of the petitioners that charging of ₹ 12,000/- per annum is highly excessive. The bye-laws have provided ₹ 6,000/- as licence fee for country-made liquor and ₹ 12,000/- for foreign liquor. Thus the fee of ₹ 6,000/- for country-made liquor and ₹ 12,000/per annum is not excessive as it works out to only about ₹ 500/- and ₹ 1,000/- per month, which is a meagre amount. Writ dismissed. - Writ Petition No. 657,693 (MB) of 2002 , 367 (MB) of 2002 , 388 (MB) of 2002 , 658 - 674 (MB) of 2002 & 695 (MB) of 2002 & 2354, 2493, 2510, 2511, (MB) of 2004 - - - Dated:- 29-5-2013 - Rajiv Sharma And Vishnu Chandra Gupta,JJ. JUDGMENT In the afore-captioned batch of writ petitions, the cause of action for filing writ petitions and the relief sought are identical in nature and as such all the writ petitions are being decided by a common judgment. Heard Sri S.K. Srivastava, Ms. Appoli Srivastava, Sri Amitabh Rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se this will lead to conflict as denial of license by the Nagar Nigam will render the license granted by the Excise department ineffective or useless. The principle of taking license fee requires providing of certain services in lieu of it but bye-laws formulated by the Nagar Nigam does not prescribe or lay down the type of services, which they will render to an Excise licensee. Lucknow Nagar Nigam has sought to justify the said bye-laws on the basis of Section 541 (20) read with Section 438 of U.P. Nagar Nigam Adhiniyam. Section 541 and 438 of U. P. Nagar Nigam Adhiniyam speaks about the premises where any trade is to be done and details of premises can be prescribed. The bye-law is silent on this point. Similarly, Section 438 (1) (d) provides for taking licence for doing trade. In fact, if entire section is perused, it would reflect that it intends to control the dangerous trade. The word 'trade' used in this section would not be so called trade of liquor. The reason that there are certain trades on account of their pernicious nature cannot be called trade as is commonly understood. In such alleged trades, like Excise, gambling, lottery etc, it is only the privilege of the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise licence granted by the Collector, Lucknow. Petitioners of Writ Petition No. 2354 (MB) of 2004, Writ Petition No. 2510 (MB) of 2004 and writ petition No. 2511 (MB) of 2004 were granted licence by the Excise Collector for running Indian Made Foreign Liquor or country liquor shop in district Unnao and petitioners of Writ Petition No.2493 (MB) of 2004 were granted Excise License to run English Wine Shop and country liquor shop in District Rae Bareli. In Writ Petition No. 2493(MB) of 2004, petitioner no.1 was granted licence to run an English Wine Shop at Rae Bareli for the Excise Year 2003-2004, whereas petitioner no. 2 was granted licence to run a country liquor shop by the Collector, Rae Bareli for the Excise Year 2003-04. Petitioners of Writ Petition No. 2493 (MB) of 2004, Writ Petition No. 2354 (MB) of 2004, Writ Petition no. 2510 (MB) of 2004 and Writ Petition no. 2511 (MB) of 2004 have questioned the bye-laws framed by the respective Nagar Palikas in purported exercise of powers under Section 298 of the Uttar Pradesh Municipalities Act, 1916 whereby licence fee is recoverable by the Nagar Palika from the persons running the excise shops. According to petitioners, under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 5(8) enshrines that in urban areas, no new shop shall be opened without notice to the Nagar Mahapalika, Town area or notified area, as the case may be. Section 114 of the Nagar Nigam Adhiniyam provides for obligatory duties of the Corporation. Sub section (46) of Section 2 of the Nagar Nigam Adhiniyam defines "nuisance" to include any act, omission, place or thing which causes or is likely to cause injury, danger, annoyance or offence to the sense of sight, smell or hearing or which is or more may be dangerous to life or injurious to health or property. Thus, it is evident that for carrying out the obligatory duties, huge amount of money is required, which is recovered by way of municipal taxes/fees. Moreover, as far as notification pertaining to bye-law is concerned, it has been pointed out that the impugned bye-law was duly notified in the U.P. Gazette dated 29.03.1997 and public notice was also given through leading newspaper in the year 2000. Therefore, there is no procedural defect as asserted by petitioners. According to him,under section 541, the Nagar Nigam is fully competent to pass such laws in matters envisaged in different sub-sections of section-541, so long a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld by Hon'ble The Supreme Court :- "The traditional view that there must be actual quid pro quo for a fee has undergone a sea change. The distinction between a tax and fee lies primarily in the fact that a tax is levied as part of a common burden, while a fee is for payment of a specific benefit or privilege although the special advantage is secondary to the primary purposes of regulation in public interest, if the element of revenue for general purposes of the State predominates, the levy becomes a tax. In regard to fee, there is, and must always be, co-relation between the fee collected and the service intended to be rendered. In determining whether a levy is a fee, the true test must be whether its primary and essential purposes it 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 is must be "by and large" a quid pro quo for the services rendered. However, co- relationship between the levy and the services rendered/expected is one of general character and not of mathematical exactitude. All that is nece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pro quo must be there between the services rendered and the fee charged so that the licence fee is commensurate with the cost of rendering the service although exact arithmetical equivalence is not expected. However, this is not the only kind of fee which can be charged. Licence fee can also be regulatory when the activities for which a licence is given required to be regulated or controlled The fee which is charged for regulation for such activity would be validly classifiable as a fee and not a tax although no service is rendered. An element of quid pro quo for the levy of such fees is not required although such fees cannot be excessive." In Dr. Chakresh Kumar Jain and Ors. v. State of U.P. and Ors., AIR 2001 Alld. 343, a Division Bench of this Court pointed out the distinction between a compensatory fee and a regulatory fee. Quid pro quo is required in the case of a compensatory fee but not for a regulatory fee. In P. Kannadasan v. State of Tamil Nadu and Ors., AIR 1996 SC 2560, the Supreme Court observed that there is no need for any element of quid pro quo in a regulatory fee. The Supreme Court took the same view in the State of Tripura and Ors. v. Sudhir Ranjan Nath, AIR 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or to obtain license from Nagar Nigam before opening of new shops which was also in consonance with rule 5(8) of Uttar Pradesh Number and Location of Excise Shops Rules, 1968. Under section 541, the Nagar Nigam is fully competent to enact laws in matters envisaged in different sub-sections of section-541, so long as the bye-laws are not inconsistent with the Nagar Nigam Adhiniyam. The section 541 (20), (36) and (41) state as under :- "(20) the control and supervision of all premises used for any of the purposes mentioned Section 438 and of all trades and manufactured carried thereon and the prescribing and regulating of the construction, dimensions, ventilation, lighting, cleansing, drainage and water supply of any such premises. (36) securing the protection of public markets, gardens, public parking places and open spaces vested in or under the control of the Corporation from injury, or misuse, regulating there management and the manner in which they may be used by the public and providing for proper behavior of persons in them. (41)fixing of fees for any license, sanction or permission to be granted by or under this act; from the perusal of Sub Section -20 of Section 541, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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