Posted On by &filed under High Court, Madras High Court.

Madras High Court
Corporation Of Madras vs Masthan Saib on 7 October, 1909
Equivalent citations: (1911) 21 MLJ 788
Author: Wallis


Wallis, J.

1. This is a suit by the Madras Corporation to recover from the defendant with interest three monthly instalments of a sum of Rs. 16,000 which the defendant agreed to pay to the Corporation for the right of collecting the fees payable under Section 334 of the Madras City Municipal Act, 1904, for licenses to slaughter animals at the Monegar Choultry slaughterhouse during the financial year 1907-08. The defendant raised various defences, and, after the settlement of issues, was allowed to raise a further issue “whether the contract referred to in the plaint is ultra vires of the Madras Corporation, and, if so, whether the suit is maintainable.” According to the evidence of Captain Ross, the Health Officer of the Corporation, which was not contradicted, the practice has been for the Corporation to have the animals intended for slaughter passed by an employee of the Corporation on admission to the slaughter-house and for the defendant or other lessee of the licensees to attend and collect the license fees from the owner of the animals as they are passed into the slaughter-house. In view of this evidence there can be no doubt that this was the right to collect license fees which both parties intended the defendant should collect under his contract, and he so collected them from April 1st to December 31st, 1908, when, in consequence of the license fees having been raised with out his assent, there was a butchers’ strike and for some six weeks no animals were slaughtered at the slaughter-house and, consequently, there were no fees for him to levy. Under Section 335(1) no person is to slaughter without a license from the President, and under Section 426(1) every license granted under the Act is to bear the signature of the President, which under Section 442 may be in facsimile. These provisions of the Act requiring a license signed by the President to be granted in the case of each animal were admittedly disregarded, the passing of the animal by the employee of the Corporation being treated by all parties as equivalent to the grant of a license. This is one of the illegalities relied on as an answer to the present suit. If the Corporation could lawfully lease to the defendant the right of collecting fees on licenses regularly made out and signed by the President, I am not prepared to hold that the irregularity of dispensing with written licenses and passing the animals for slaughter and leving the fees without that would afford any answer to this suit. The question then arises – Had the Corporation power to farm out the licensing fees to the defendant? – because, if they had not, the contract with the defendant was an illegal one, and the plaintiff would not be entitled to sue on it. Now it is to bi observed that under Section 168(b) the President is expressly authorised to take out tolls on vehicles and animals entering the city, and under Section 337 he is also empowered to farm out market fees. This is certainly some indication that it was not intended to give the Corporation the power to farm out license fees under Section 334. If they have the power to farm out taxes under this section it is not apparent why they might not equally farm out the collection of all the taxes and tolls enumerated in Section 115. If there were any authority for the proposition that when a Corporation is empowered by statute to levy fees of this kind power to farm out such fees passes as incident to the grant, it might be a question whether the fact that the power to farm out as expressly given in some sections of a local Act would be sufficient to negative the implication that the power was expressed in sections where it is not expressly mentioned, but I have not been referred to any authority in support of the proposition that the power to farm out passes as incident to the power to levy, and the case of The Southampton Dock Co. v. Southampton Harbour and Pier Board (1872) L.R. 14 Eq. 595 is against it. I am, therefore, of opinion that the Corporation had no power to farm out license fees. The other issues I should be disposed to find for the plaintiff, but the finding on the additional issue is fatal and the suit must be dismissed with costs, except that the defendant must pay the taxed costs of the application for the additional issues which were reserved.

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