ORDER
1. Both the writ applications were heard together and are disposed of by this judgment.
2. More than 200 butchers moved the two writ petitions. Their contentions are identical as well as the prayers. The petitioners are carrying on business by slaughter cows. Bullock and buffaloes at the Tangra Slaughter House set up by the Calcutta Corporation. The two matters are governed by the Calcutta Municipal Act, 1951. The petitioners have permits as required under the law and used to pay Rs. 50/- for the same and the slaughtering charges for the catties. The petitioners’ case is that Ss. 445, 446, 451, 456 and 457 are, among others, relevant to the case. The Administrator of the Calcutta Corporation has been made a party-respondent because the Corporation was superseded in 1972. The actual grievance of the petitioners is that the Corporation has been realising Rs. 50/- for the grant of written permission for the right to slaughtering cows and buffaloes at the Tangra Slaughter House and the Corporation realises slaughtering fees as follows:– Rs.7/- for each buffalo, and Rs. 6/- for each cow or bullock. Apart from this Rs. 2/- is charged for stallage. The petitioners have pointed out to the Bye-laws
under S. 527(46) of the Calcutta Municipal Act, 1951 to establish their case. The peti-tioners have set their claim on Cls. 9 to 10 of the Bye-laws. It is stated that although the Bye-laws provide for the supply of adequate food and water to animals under Cl. 10 thereof but the authorities failed to provide such amenities of adequate food and water. The doctrine of quid pro quo is denied to the petitioners. The petitioners have challanged the legality of the Circular No. 76 of 1980-81 dated 23rd March, 1981 issued by the Secretary of the Corporation in form of Notice by which the rates of licensed permit as well as the slaughter fees, etc, were revised and upgraded with effect from 1st April, 1981. The permit fee went up from Rs. 50-00 to Rs..75-00, the slaughtering fee for buffalo from Rs. 7-00 to Rs. 10-00 and cow or bullock from Rs. 6-00 to Rs. 9-00. It is contended that the revision of fees and charges are arbitrary made without proper sanction of the State Government and that in no slaughter house in West Bengal, except Tangra Slaughter House under the Calcutta Corporation, such enhancement has been made. The allegations are that the Corporation failed to make proper and adequate arrangement for providing food and water to the animals and as such cannot increase the fees without suitably improving the service as required under the law and as such the arbitrary revision of fees and charges by the Calcutta Corporation infringes Art. 19(1)(f) of the Constitution. According to the petitioners it also offends Arts. 14 and 265 of the Constitution as no due regard has been shown to the doctrine of quid pro quo. As such it is prayed that Annexure ‘D’ relating to the increase of fees and charges be declared as ultra vires of Arts. 14 and 265 of the Constitution and also to quash the same.
3. The Corporation of Calcutta defended the case by filing the Affidavit-in-Opposition affirmed by the Superintendent of the Slaughter House. It is stated that the Corporation was empowered to grant licence to persons under the Calcutta Municipal Act, 1951 for the purpose of slaughtering animals for human food or for the purpose of skinning, cutting up and cleaning carcasses
of animals as slaughtered therein or purchasing meat, heads or offal. The Constitution is entitled to charge fees at fixed from time to time for the slaughter of cows, buffaloes, sheeps and goats at the said Slaughter House and the Corporation is entitled under S. 527(46) of the Act to frame Bye-laws for the purpose of regulating the use of Municipal Slaughter Houses in Calcutta. By Notification dated 9th September, 1957 published in the Calcutta Gazette dated 19th September, 1957 the Governor in exercise of powers vested under S. 561(1) of the Act of 1951 was pleased to sanction after modification certain Bye-laws made by the Corporation under S. 527(46) of the Act after complying with the requirements of S. 530 and published under S.535 of the Act. In paragraph 11 of the said affidavit it is stated that the fees which have been made was nominal in comparison to the increase in the price of meat during the last 5 years prior to the institution of the instant writ petitions. The price of mutton and beef was Rs. 12/- per kg. and Rs.4/- per kg., respectively, in 1976 whereas in 1981 the same at Rs. 22/- and Rs. 7/- per kg., respectively. The fees for slaughter of cattle has increased from Rs.8.25/- to Rs. 12/- per cattle. One large animal yields about 150 to 200 kg. of meats and as such the increase for the slaughtering fees would come to .02 to .03 paise per kg. in respect of one animal whereas the butchers have increased the price by Rs. 3/- and Rs. 10/- per kg. in case of beef and mutton, respectively. In paragraph 18 of the affidavit certain inaccuracies mentioned in paragraph 11 of the writ petition have been clarified. It is stated that an animal is required to be kept for a minimum period of 24 hours at the Slaughter House before slaughtering during which period the animal would be provided with adequate food and water at the expense of the Corporation but the same is not followed and the persons do not bring animals 24 hours in advance. It is denied that no service is rendered to the animals as provided in Cl. 10 of the Bye-laws. It is further stated that the impugned Circular No. 76 of 1980-81 was issued in accordance with law and the revision of rates was not arbitrary or ultra vires. There is no contravention of
Article 265 of the Constitution nor it infringes Art. 19(1). On the contrary it is stated that the Corporation was fully justified in its action of upgrading the revision of fees which it was fully empowered and entitled to do in law and such increase in the fees in no way offends Art. 14 of the Constitution. The doctrine of quid pro quo is not at all applicable and as such the writ application cannot succeed.
4. Mr. Bhattacharyya the learned Advocate appearing for the petitioners, in his argument submitted that the petitioners are carrying on business of slaughtering of catties (cows, bullocks and buffaloes) at the Calcutta Corporation Slaughter House at Tangra. The petitioners are to apply to the Superintendent of the Slaughter House on payment of Rs. 50/- per annum for the grant of written permission for slaughtering at the said Slaughtering House. Rule 10(i) of the Bye-laws framed under S.457 of the Calcutta Municipal Act, 1951 provides that the animals brought by the petitioners for the purpose Of slaughtering should be kept at the live stock-yard for not less than 24 hours for medical check up and during this period the animals would be given adequate food and water at the expense of the Corporation. But the Corporation was not providing food and water according to the said Rule and as required under S. 456(a)(iv) of the Act. It is stated that the condition of the Tangra Slaughter House is deplorable and the Corporation did not take any step for the improvement of the condition of the Slaughter House. By Circular No. 76 of 1980-81 dated 23rd March, 1981 issued by the Administrator of the Corporation the fees for *ritten permission were enhanced from Rs. 50/- to Rs. 75/-; slaughtering fees for cows and bullocks from Rs. 6/- to Rs. 9/- and buffaloes from Rs. 7/- to Rs. 10/- and stalling from Rs. 2/- to Rs. 3/-. Mr. Bhattacharayya attacked the aforesaid enhancement on three grounds:– (a) for about a decade there had been no improvement for the service condition of the Slaughter House and the livestock-yard; (b) the Corporation has deliberately violated the provisions of R. 10(i) of the Bye-laws and denied the obligation under
S. 456(a)(iv) of the Act of 1951; and (c) the
enhancement is arbitrary and not co-related to the principles of quid pro quo. It is submitted that the Corporation has made wrong statements that the obligations according to law have been duly discharged by it. The main contention of the learned Advocate is that nowhere the respondents sought to justify the cost of service rendered or intended to be rendered by them to the petitioners, on the contrary the basis of increase was the profit or turn over of the petitioner of cost of the service rendered by the respondents.
5. The learned Advocate for the petitioners dealt at length on the concept of tax and fees and also principles of quid pro quo and in this connection cited , State of Maharashtra v. Lohama Maha Parishad; , G. K. Shygoor v. Corporation of City of Bangalore and also , Kewal Krishna v. State of Punjab. He also cited , Srinivasa General Traders v. State of Andhra Pradesh to emphasise that there should be reasonable relationship between the levy of fee and service rendered. The learned Advocate made special emphasis on the decision of Delhi Municipal Corporation v. Md. Yasin . This case has also been relied upon by both the parties. Much emphasis has been given by the learned Advocate on the point that as the Calcutta Municipal Act, 1951 is not a taxing statute or revenue enactment as such no fees can be levied on the basis of income or turnover even if they are increased, and certainly it is not the case of the Corporation that the enhancement of the fees were necessary to meet the expenses. The most pertinent emphasis was made on the abolition of the system of shelter and food which was incumbent on the Corporation and that nothing has been said by the Corporation that the enhancement was necessary to meet the cost of service rendered to the butchers at the Tangra Slaughter House. It is also submitted that in spite of the abolition of the system of keeping the catties for 24 hours and to give them food, the Corporation was charging and realising the stallage of fees Rs. 2/- per cattle and for providing fodder and shelter even today.
6. Mr. Sircar, the learned Advocate appearing for the Corporation, in his submission based its argument on S. 456(a)(iv) of the Calcutta Corporation Act, 1951 which empowers the Corporation to levy charges, fees, etc. for the right to slaughter animals in any Municipal Slaughter House and for feed of such animals and such levy, charges, fees, etc. are raised from time to time by the Corporation. He also mentioned the Bye-laws framed u/S. 527(46) of the Act of 1951 which was gazetted after obtaining sanction from the Governor and also discussed the powers conferred on the Corporation under Clauses 2 and 3(a). Mr. Sircar relied on paragraph 11 of the Affidavit-in-Opposition and submitted that the revision was made after a long time and such revision was reasonable and fair and cannot be said as arbitrary. He further submitted that the services rendered by the Corporation are adequate so far water, sheds and lighting arrangement are concerned and the services of veterinary surgeon are also available. It is admitted that the keeping of animals for 24 hours before slaughtering in the sheds had been done away with since May 1979 for various reasons and as such supply of feed/ fodder is not required. It is also submitted that there is no direct relation between the enhancement of fees and the improvement of services rendered in the Slaughter House in spite of significant increase in the extent for maintenance of sanitation, cleaning, water provision, shed, etc. which have become more costly than pre-1981. The learned Advocate very much relied upon (supra) and (supra).
7. I have gone through the facts of the case and considered the submissions made by the respective parties. The entire case revolves round a few sections of the Calcutta Municipal Act, 1951 and a few clauses of the Bye-laws regulating the use of Municipal Slaughter Houses in Calcutta. The petitioners’ sole grievance is based upon the CircularNo. 76 of 1980-81 dated 23rd March, 1981 issued by the Corporation and the main ground of attack of the Circular is S. 456 of the Calcutta Municipal Act, 1951. Chapter XXVII of the said Act deals with Markets and Slaughter Places and Sees. 456 and 457 come within this Chapter. It
is relevant to quote in fuH S. 456 of the Act which is as under:–
“Power to Corporation to levy charges, farm rents, etc., in municipal markets, etc.-
The Corporation may –
(a) charges such stallages, rents and fees –
(i) for the occupation or use of any stall, shop, standing, shed or pen in a municipal market, municipal slaughter-house or municipal stock-yard,
(ii) for the right to expose goods for sale in a municipal market,
(iii) for the use of machines, weights, scales and measures provided under S. 446 for any municipal market, and,
(iv) for the right to slaughter animals in any municipal slaughter-house and for the feed of such animals, before they are ready for slaughter,
as may from time to time be fixed by it in this behalf; or,
(b) farm the stallages, rents and fees, leviable as aforesaid, or any portion thereof, for such period as it may think fit; or
(c) put up to public auction, or dispose of by private sale, the privilege of occupying or using any stall, shop standing, shed, or pen in a municipal market, municipal slaughterhouse or municipal stock-yard, for such period and on such conditions as it may think fit.”
The petitioners concentrated specifically on sub-clause (iv) of clause (a) of S. 456 which provides, that the Corporation may charge such stallages, rents and fees for the right to slaughter animals in any municipal slaughter house and for the feed of such animals, before they are ready for slaughter, as may from time to time be fixed by it in this behalf. The next Sec. 457 relates to the bye-laws and table of charges to be posted up in markets and slaughter-houses. This Section, inter alia, lays down that the printed c’opy of the Bye-laws made under S. 527 and of the table of stallages, rents and fees, if any, in force in any market or slaughter-houses under S.456, in English, Bengali, Hindi and Urdu languages,
shall be affixed on some conspicuous spot in the market-building, market-place or slaughter-house. Sub-sec. (46) of S. 527 empowers the Corporation to make laws generally for carrying out the provisions and intentions of the Act of 1951 and in particular without prejudice to the generality of the foregoing power it might make Bye-laws regulating the use of any municipal market, municipal slaughter house, municipal stock-yard, or any part thereof, or any place set apart under clause (d) of sub-sec. (1) of S. 451. Under S.527 (46) of the Act of 1951 the Calcutta Corporation made bye-laws regulating the use of Municipal Slaughter Houses in Calcutta which were published in the Calcutta Gazette dated 19th September, 1957 and clauses 9 and 10 thereof are of importance so far as this matter is concerned. Section 548 relates generally to the duration, conditions, suspention, revocation, and production of licenses and written permissions.
8. The impugned Circular No, 76 of 1980-81 effective from 1st April, 1981 revised “the fees and charges” in respect of slaughtering permit of buffaloes, cows and bullocks and slaughtering fees of buffaloes, cows, bullocks, sheeps and goats as well as the stallage. The pertinent point to decide iswhether the charges for stallages, rents and fees as referred to in S. 456 is coupled with any condition or not. S.456(a)(iv) clearly states as under:–“The Corporation may charge such stallages, rents and fees for the right to slaughter animals in any municipal slaughter house and for the feed of such animals, before they are ready for slaughter, as may from time to time be fixed by it in this behalf……”The relevant
portion of Clause 10 of the Bye-laws made under S. 527(46) of the said Act as referred to hereinbefore which is as under:–
“(i) every animal brought for slaughter at a
slaughter house except goats or sheeps shall
pass through the stock-yard which is available
for use or occupation, and shall be kept there
for a period of not less than 24 hours before
slaughter during which time or any subse
quent extension thereof, the animal shall be
provided with adequate food and water at the
expense of the Corporation.”
So it becomes incumbent upon the Corporation to provide the animals in the slaughterhouse with adequate food and water. It is the definite case of the petitioners that no feed or fodder is provided to the animals by the Corporation for years together. It is further stated by a Supplementary Affidavit by one of the petitioners, Jamil Ehsan, affirmed on 14th July, 1988 that by an Affidavit-in-Opposition affirmed by Sri Shovon Maitra, the Superintendent of Calcutta Municipal Corporation, on 9th January, 1980 it was specifically stated in paragraph 7 thereto as under:– “I state that the compulsory keeping of cattle for 24 hours prior to slaughter has been abolished under the, Special Regulation issued by the State Government”. After this specific statement on oath by the Corporation much of the force as contained in Clause 10 of the Bye-laws faded away and the directory provision that the animal should be kept for a period of not less than 24 hours before slaughtering remained no more effective. The question arises that when the condition attached with S.456 read with Clause 10 of the Bye-laws to feed the animals goes away, then on what basis “the fees and charges” could be raised by the impugned Circular. The defence has harped upon S. 431 of the Act which is in respect of premises generally and also on S. 451 which prohibits the person from carrying out any private markets, slaughter house or stock-yard without or otherwise than in conformity with the terms of a licence granted by the Corporation. These two sections, in my opinion, do not at all come to the rescue of the Corporation because here 1 deal exclusively with S. 456 and the Bye-laws made u/S. 527(46). S. 456 must be read with Schedule IV of the Act wherein slaughterhouses as such do not figure.
9. It is the admitted position that the system of keeping the animals for 24 hours was abolished and the supply of fodder was suspensed prior to the institution of the writ petition as well. as the issuance of the impugned Circular. From the arguments it is further clear that the basis of the reasons of the increase in the fees and charges is not only the profit or the turnover of the petitioners and but also the cost of the services rendered
by the Corporation, Mr. Sircar, appearing for the Corporation, submitted that despite the fact that fodder is not supplied to the animal, the proper maintenance of slaughter-house as well as the significant increase in expenditure of such maintenance, its sanitation and cleaning facilities as well as provision of water and maintenance of shed have become more costly which were not such prior to 1981. I must say that the plea of profit or the turn over is redundant and will not be of any assistance to the Corporation.
10. Before I enter into the crucial discussion it will be better if some effort be made to explain what is meant by ‘fees’ and ‘charges’ as referred to in the Circular and the word ‘fees’ as contained in S. 456 of the Act. ‘Fees’ has been described as professional or other remuneration, perquisite, fixed salary or wage, etc. in the Shorter Oxford English Dictionary on Historical Principles, Volume I, P. 684 and ‘charge’ as incidental expenses, liability to pay money laid upon a person or estate (ibid, p. 293). The word ‘fee’ is meant as the price paid for services, wages, the sum exacted for any special privilege (vide Chambers 20th Century Dictionary, New Edition 1983, reprinted 1986, p. 461). The word ‘charge’ means to exact or demand from, to ask as the price (ibid, p. 212). More elaborate is the meaning of the word ‘fee’ in the Black’s Law Dictionary, Fourth Edition, 1951, pages 740-41 where ‘charge’ means a charge fixed by law for services of public officers or for use of a privilege under control of Government; a recompense for an official or professional service or a charge or emolument or compensation for a particular act or service. Black gives ‘fee’ the further meaning of a fixed charge or a perquisite charged as a recompense for labour and trouble, a reward, compensation, or wage given to a person for performance of professional services or something done or to be done. Similarly, Black defines ‘charge’ as an obligation or duty as well as a liability (ibid, p. 294). Maxwell in his “Interpretation of Statutes” comments that it is a well-settled rule of law that all charges must be imposed by clear an unambiguous language, because in some degree they operate as penalties Liverpool Corporation v.
Arthur Maiden Ltd., 1938 (4) All ER 200; Russell v. Scott, 1948 AC 422.
11. ‘Fee’ is defined as meant to compensate the Government for expenses incurred in rendering service of a special nature to the persons from whom the fee is collected Muthu Swamy Raja v. Kodayanallur Panchayat Union, . Two elements are essential in order that a payment may be regarded as a fee. In the first place, it must be levied in consideration of certain services which the individual accepts either willingly or unwillingly, and in the second place, the amount collected must be earmarked to meet the expenses of rendering these services and must not go to the general revenue of the State to be spent for general public purposes Rajani Kant v. State of Uttar Pradesh, . It must be borne in mind that u/ S. 456 of the Act the charge means and includes charge for stallages, rents and fees in municipal markets and slaughter-houses and is not exclusively confined to sub-clause (iv) but must be taken as a whole.
12. It is strange that both the petitioners and the respondents have commonly relied upon the two decisions of the Supreme Court : first. Municipal Corporalion of Delhi v. Mohd. Yasin ; and second, the City Corporation of Calicut v. Thachambalath Sadasivam . Let me scan the two. In first the Supreme Court held that fee is a payment for services rendered and benefit provided or privilege conferred. It was further held that neither the incidence of the fee nor the service rendered need be uniform. The Supreme Court also held that it cannot act as a cost accountant and it is not necessary or expedient to weigh too meticulously the cost of the services rendered against the amount of fees collected so as to evenly balance the two and it was also held that the maxim of quid pro quo in the strict sense is not the one and the only true index of a fee. Let it be stated that quid pro quo means:– what for what; something for something; used in law for the giving one valuable thing for another; it is nothing more than the mutual consideration
which passes between the patties to a contract, and which renders it valid and binding (Black, p. 1415). In the case of Municipal Corporation of Delhi, the Corporation enhanced the fee for slaughtering animals in its slaughter houses which was much more than the amount shown to be actually expended in connection with slaughter houses in its budget. The enhancement was challenged in the Delhi High Court and the Notification relating to enhancement was quashed. In the case the Supreme Court discussed its several previous decisions and also tried to elaborate the principle of quid pro quo between the person paying the fee and the authority imposing it vide , Hinger Rampur Coal Company Ltd. v. State of Orissa. The Supreme Court said that “If specific services are rendered to a specific area or to a specific class of persons or trade or business in any local area, and as a condition precedent for the said services or in return for them cess is levied against the said area or the said class of persons or trade or business, the cess is distinguishable from a tax and is described as a fee.” After discussing the decisions of H. H. Swamiji v. Commissioner, Hindu Religious and Charitable Endowments Department and the Southern Pharmaceutical and Chemicals, Trichur v. State of Kerala , the Supreme Court held in the case of Municipal Corporation of Delhi that “there is no generic difference between a tax and a fee, though broadly a tax is a compulsory exaction as part of a common burden, without promise of any special advantages to classes of tax-payers whereas a fee is a payment for services rendered, benefit provided or privilege conferred. Compulsion is not the hall-mark of the distinction between a tax and a fee, That the money collected does not go into a separate fund but goes into the consolidated fund does not also necessarily make a levy a tax. Though a fee must have relation to the services rendered, or the advantages conferred, such relation need not be direct; a mere casual relation may be enough.” The Supreme Court upheld the Notification of the Delhi Municipal Corporation enhancing the fee for slaughtering
13. In the decision of the City Corporation of Calicut (supra) the earlier decision of the Municipal Corporation of Delhi (supra) has also been fully taken note off. Here the Supreme Court held as under : “It is thus well-settled by numerous recent decisions of this Court that the traditional concept in a fee of quid pro quo is undergoing a transformation and that though the fee must have relation to the services rendered, or the advantages conferred, such relation need not be direct, a mere casual relation may be enough. It is not necessary to establish that those who pay the fee must receive direct benefit of the services rendered for which the fee is being paid. If one who is liable to pay receives general benefit from the authority levying the fee the element of service required for collecting fee is satisfied. It is not necessary that the person liable to pay must receive some special benefit or advantage for payment of the fee.” Though the facts of the two cases were different but the aforesaid principle laid down by the Supreme Court is of immense importance in deciding the instant Writ petition. I must say that in the instant case the word “and” in sub-clause (iv) of S.456(a) is disjunctive and not conjunctive and must be read as such and interpreted as Such, not otherwise.
14. Apart from the above two decisions upon which both the petitioners and the respondents relied heavily and tried to twist the decisions in their favour, respectively, the petitioners have also relied upon a few more which are as under:– (a) The Commissioner, Hindu Religious Endowments, Madras v. Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, ; (b) The State of Maharashtra v. The Salvation Army, Western Indian Territory, (c) Kewal Krishna v. State of Punjab, ; (d) Sreenivasa General Traders v. State of Andhra Pradesh, ; and (e) G. K. Sheygoor v. Corporation of the City of Bangalore, . From the aforesaid decisions the petitioners want to emphasize that there
should be a reasonable relationship between levy of fee and service rendered and the element of quid pro quo must be established between the payer of the fee and the authority charging it and the authority collecting the fee must show that the services which they are rendering in lieu of fee is for some special benefit for the payer of the fee. Even in the decision of Karnataka High Court, as referred to hereinbefore, the Supreme Court allowed the Corporation of City of Bangalore to levy fee on parking of vehicles in the places vested in the Corporation and the levy was declared not without jurisdiction. It was only declared that the picking up of only a few areas and allowing other areas to be used as free parking places is discriminatory. The reliance of the petitioners on the following extract from (supra) paragraph 5 to the effect that “two elements are essential in order that a payment may be regarded as a fee in the first place, it must be lieved in consideration of certain services which the individuals accept either willingly or unwillingly and in the second place, the amount collected must be earmarked to meet the expenses of rendering these services and must not go to the general revenue of the State to be spent for general public purposes.” This quotation from the Karnataka case must not be given undue importance in view of the fact that this passage is quoted in this decision from the Supreme Court’s decision in the case of State of Maharastra v. Sri Lohana Maha Parishad . This concept of fee and the rendering of service vis-a-vis the general revenue of the State and spending the same for the general public purposes has undergone a total change by the two later decisions of the Supreme Court as referred to hereinbefore in Delhi Municipal Corporation’s case and the case of City Corporation of Calicut.
15. I cannot agree with the submission of Mr. Bhattacharyya that it was nobody’s case that the enhancement of the fees was necessary to meet the expenses. It is the positive case of the respondents and submitted forcefully by Mr. Sircar that the revision of fees was necessitated after a long time because of the services rendered by way of adequate
water supply, lightening arrangement, service of veterinary Surgeon and proper maintenance of sheds as well as of the Tangra Slaughter House. According to the Corporation there has been a significant increase in expenditure for proper maintenance of slaughter-house, its sanitation, cleaning facilities as compared to pre-1981 expenses. Undoubtedly, it is a fact that in the Affidavit-in-Opposition nothing has been said about the enhancement of necessary cost for rendering service to the butchers at the Tangra Slaughter House but the respondents made extensive argument on this aspect of considerable expenditure which are borne by the Corporation on that account and the Court has taken notice of the same. No doubt, the argument advanced by the Corporation as contained in paragraph 11 of the Affidavit-in-Opposition is untenable and the Court is not taking notice of it. The Corporation cannot act as a taxing authority on the profit,
16. I have discussed practically all the points which are necessary in deciding the instant writ petition. Now the final verdict hinges upon clause (a) of S. 456 which empowers the Corporation to charge fees upon four items stated thereunder including sub-clause (i) for occupation or use of standing, shed or pen in a municipal slaughterhouse or municipal stock-yard and sub-clause (iv) for the right to slaughter animals in any municipal slaughter-house and also for the feed of such animals, before they are ready for slaughter, and to fix the fees from time to time. So far sub-clause (i) of clause (a) of S. 456 is concerned it lost the attention of the petitioners at all and it is one of the conditions for which fees are to be realised and not only for the provision made under sub-clause (iv) of the said clause (a) of this section. It has never been argued on behalf of the petitioners that the Corporation is not providing the standing shed or pen and the stock-yard in the Municipal Slaughter House at Tangra, the only point taken was that the Corporation is not feeding the animals and the entire case was built on this edifice. But the impugned Circular No. 76 of 1980-81 clearly indicates fees and charges not only in respect of the slaughtering of the buffaloes, cows and
bullocks which animals are under question by the petitioners but also the enhancement of the rate of slaughtering permit with regard to buffaloes, cows and bullocks as well as the stallage (cattle stock-yard), vide Annexure ‘D’ page 32 of the writ petition, which comes within the purview of S. 456 (a) as a whole. Undoubtedly, the Bye-laws under S. 527 (46) of the CM. Act, 1951 was made as far back in 1957 containing Clause 10 (i) which makes obligatory for the Corporation to provide the animals with adequate food and water, But now the position has changed as since 1979 according to the petitioners themselves the provision for keeping the animals for 24 hours has been given a go-bye and the petitioners raised no objection till 1981 or moved the Court for proportionate reduction of charges and fees. The Corporation has to spend even on water supply more amount than what it used to do prior to 1981 and the argument of the Corporation that the cost of the maintenance of the Tangra Slaughter House significantly increased for its maintenance of the shed, sanitation, cleaning facilities, water provision, etc. cannot be ignored under any circumstances and the same is covered under sub-clause (i) of S.456(a) if not under sub-clause (iv) of S. 456(a).
17. The Court is of the view that S. 456(a) with sub-clauses (i) and (iv) must be read along with Clause 10(i) of the Bye-laws which is subservient to the statule; and S.456(a)(iv) and Clause 10(i) must not be read bereft of the other provisions of the section and construed otherwise. It must be noted that the word “if occurring in Clause 10(i) is of significance and qualifies the entire process without providing any green signal to [he petitioners. The Court must take a pragmatic view of the entire thing while pronouncing its judicial verdic and it should not be carried out merely by parochial consideration. The writ court is a court of equity and the rules of equity are to be administered. Where there is any conflict between the rules, equity is to prevail. The Court may apply equity beyond the strict lines of positive law Miller v. Kenniston, 80 Me. 550; 30 A 114.
18. It is submitted by Mr. Bhattacharyya,
the learned Advocate of the petitioners, that the imposition of the enhancement of the fees by the impugned Circular infringes Arts. 14, 19(1) and 265 of the Constitution but the submission does not appeal to me at all. The enhancement of fees by the impugned Circular cannot be termed as tax and the said Articles have no application in the instant writ petition because principle of equality does not mean that every law must have universal application for all. The learned Advocate of the petitioners has also submitted that the enhancement of fees as contained in the impugned Circular had been made without the prior sanction of the State Government. In this connection, it is to be noted that the Administrator derived its power from S. 47E by virtue of the Calcutta Municipal (Second Amendment) Act, 1964 and . the Calcutta Municipal (Fourth Amendment) Act, 1972 and as such the Circular issued by the Administrator was in accordance with law.
19. In the light of the discussion made hereinbefore, I hold that the Circular No. 76 of 1980-81 dated 23rd March, 1981 revising the fees and charges in the Municipal Slaughter Houses of the Corporation of Calcutta with effect from 1st April, 1981 is sustainable in law and is legal and valid. Both the writ petitions fail and stand dismissed without costs. All interim orders are vacated. But it is directed that the Corporation shall charge the arrears of enhanced fees and charges w.e.f. 1st April, 1981 to 31st March, 1992 from the petitioners in 8 (eight) equal annual instalments, commencing from 1st April, 1992.
20. The Registrar, Appellate Side, is directed to send xerox copies of the Judgment to the (1) Mayor and (2) the Municipal Commissioner, both of the Calcutta Municipal Corporation, 5, Surendranath Banerjee Road, Calcutta-13, without delay.
21. Let xerox copy of the judgment be made available to the parties on usual undertaking and upon compliance of necessary formalities.
22. Petitions dismissed.