P (PLP)

S. A. RAHMAN, J.‑The facts giving rise to this regular second appeal are as follows. Abdul Latif is a vegetable‑seller in the Small Town of Ramnagar in the Gujranwala District. It was alleged that he used to sell vegetables at the shop of his relative, Abdullah. The Punjab Government had published for general information, by Notification No. 25 dated the 3rd of February 1932, a general order made by the Town Committee of Ramnagar, in exercise of the powers conferred by clause (p) of section 35 of the Punjab Small Towns Act, 1921, (hereinafter referred to as the Act) and sanctioned by the Commissioner, Lahore Division, as required by subsection (1) of section 36 of the Act. This general order inter alia provided in paragraph 1 as follows. "No person shall sell wholesale or auction vegetables and fruits except in premises licensed by the Town Committee in this behalf and except a person to whom a hawker's license has been issued." Originally, the Commissioner had sanctioned the levy of a license fee of Rs. 100 per annum by the Town Committee for the sale or auction of fruit and vegetables, but this fee was raised to Rs. 150 per annum by Letter No. A/IV/94/410, dated the 1st of August 1938. The legal sanction for the levy of such fees is contained in section 41 of the Act, but the rates of the fees to be charged must under this section be approved in each case by the Commissioner. On getting a report that Abdul Latif was selling vegetables within the area of the Town Committee, in the premises of Abdullah, a notice was issued to him by the Committee to show cause why he should not be proceeded against under the law. On receipt of his reply, a resolution was passed at a meeting of the Committee to the effect that the license fee of Rs. 150 for the year 1948‑49, be recovered from Abdul Latif. The letter then brought the suit out of which the present appeal has arisen for a declaration that the license fee of Rs. 150 imposed upon him by resolution dated the 29th of March 1949 of the Small Town Committee, Ramnagar, which he described as a "tax", was against law as the Committee had failed to follow the provisions of section 29 of the Act, the "tax" had not been sanctioned by the Commissioner or the Punjab Government and further was ultra vires of the Committee. He also stated that, it fact,, he was n3ither working as an auctioneer nor as a whole sale vendor of vegetables and fruit. He asked for a declaration that the Committee's action was illegal and of no effect and for an injunction restraining the Committee from realizing a sum of Rs. 150 from him. The suit was contested on behalf of the Com mittee, and the trial Court dismissed the suit with costs. On appeal, the learned Senior Subordinate Judge, Gujranwala, upheld the decision of the trial Court but left the parties to bear their own costs. Abdul Latif has come up in second appeal to this Court. Both the Courts below have referred to the imposition as a "tax". This, in my opinion, is a misnomer, on the facts of this case. The sum represents the license fee which the Committee could charge by virtue of section 41 of the Act, with the sanction of the Commissioner, in respect of the licensing of premises, inter alia for the sale of articles of food or drink, as laid down in clause ( ) of section 35 of the Act. . The Courts below have concurrently held that the plaintiff was unable to establish that the provisions of section 29, which lay down a procedure for the imposition of taxes other than a town rate, under section 22 of the Act, had not been followed. They also found that the plaintiff had been selling vegetables at the shop of his uncle, Abdullah, and that he held no license. It was further held that the Committee's action was supported by the sanction of the Commissioner. The learned Senior Subordinate Judge, however, noted that under section 41 of the Act, the Committee could only charge a license fee for the sale of vegetables etc., but could not ,impose any fees upon a person who had not applied for any such license. He very rightly pointed out that if he failed to get such a license, he could possibly be prosecuted for con travention of the law, but that there was no authority for the Committee to forcibly recover such a fee from a person who had neither applied for a license, nor had been granted one. As this point had, in the opinion of the learned Senior Subordinate judge, not been taken in the plaint or in the grounds of appeal before him, he refused to give effect to it and affirmed the order of the trial Court. In my view, the reference to section 29 of the Act in this case was misconceived. That section concerned the procedure to be followed while imposing certain taxes falling within the purview of section 22 of the Act. The relevant sections in the present case appear to be 35 and 41. of the Act. We are concerned with license fees which are within the ambit of clause (P) of section 35 and clause (d) of subsection (1) of section 41. No other provision in the Act has been brought to `my notice authorising imposition of any license fees in respect of the sale of vegetables and fruit within the Com mittee area. It is clear that these two provisions refer only to the licensing of premises as contrasted with the issuing of licenses to sellers of articles of food or drink. Curiously enough, however, clause (1) of the general order passed by the Committee, ostensibly under clause (p) to section 35, refers not only to the necessity of taking out licenses for premises in which vegetables and fruit are to be sold, but also for persons who have to sell them. If this clause is to be enforced, it would imply that not only the locus for sale has to be licensed but also the individual offering articles for sale has to take out a personal license. In this respect, the general order seems to travel beyond the four corners of the Act and the part of the clause prohibiting any person, who does not hold a hawker's license, appears to be ultra vices of the Committee. It is to be observed that the two letters of the Commissioner, copies marked Exhibits D. 4 and D. 5, convey sanction to the charging by the Town Committee of a license fee for premises to be used for the sale of vegetables and fruit, but not for personal licenses. The order of the Commissioner appears to be in accord with the provisions of the Act, but the scope of the general order made by the Committee is very much wider than the language of the Act would warrant. In the present case, it is not denied on behalf of the Committee that the shop of Abdullah where Abdul Latif is alleged to have sold vegetables and fruit constituted licensed premises. Their only complaint is that Abdul Latif had himself taken out no hawker's license. There was no legal obligation, in my opinion, on Abdul Latif, imposed by the Act, to do so. To the extent, therefore, that the Committee imposed such an obligation upon him, their act was ultra vires. Even if the act of the Committee in requiring sellers of vegetables and fruit to take out personal licenses were to be held as valid, I fail to see how they could call upon a person who does not take out a license, to pay the prescribed fee. At the most, any person, who commits a breach of a general or a special order made by the Committee under section 35 of the Act, could be prosecut ed and fined under the provisions of section 38. I do not understand why this particular objection was not given effect to by the learned Senior Subordinate Judge. It concerns a law point which goes to the root of the case and involves no question of fact. It could have been, therefore, allowed to be raised at the appellate stage. Learned counsel for the Committee, Mr. Mohsin Shah, has frankly conceded that he was unable to point to any other provision of the Act, which could lead to a different conclusion. In the circumstances, a remand to the Courts below for the decision of these legal points appears to be unnecessary. In view of the above discussion, I hold that the act of the Committee in calling upon the appellant to pay Rs. 150 in the cir cumstances of this case was ultra vires of the Committee an illegal. I, therefore, allow this appeal, set aside the orders passed by the Courts below and grant a declaration to the plaintiff-appellant to the effect that the resolution of the Committee imposing fee of Rs. 150 on the appellant was ultra vires of the Committee and not enforceable in law. It appears to be unnecessary to grant an injunction restraining the Committee from recovery of this sum, as there seems to be no provision in the Act which could be utilized for the recovery of such an imposition. The appellant will have his costs throughout. A.H. Appeal accepted.