K. Ganga Raju and Others Vs. Gram Panchayat Board and Others - Court Judgment

Excerpt:
constitution - fee - section 69 (iv) of a.p. gram panchayats act, 1964 and article 265 of constitution of india - appellants license holder of coconut trees situated on land controlled by panchayat - fee on trees increased by panchayat - appellants contended that gram panchayat had no right to impose fee unless there was quid pro quo - trees situated on land controlled by gram panchayat - gram panchayat entitled to impose fee and same can be increased any time - quid pro quo not necessary - increase in fee justified. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the legislature and annihilate mandate of the provisions of sections 170 and 149 of the act. the insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. therefore, the joint appeal as filed by the insured and the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under workmens compensation act, but also under benevolent provisions under section 166 and 167 of the m.v. act. the right of driver to seek compensation is not restricted only to the workmens compensation act, it has been enlarged to enable such person to seek just compensation (sections 166 and 168), conferring upon him the right of election engrafted under section 167 of the act to choose either of the two forum. the only defence which the insurer could take is limit of its liability as enumerated under section 147 of the act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the tribunal which crystallizes into enforceable right against both. in the instant case, the claimant/driver has exercised right of election under section 167 of the act to seek compensation under section 166 of the act resulting in award passed by the tribunal. therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. the settled principles governing determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. - 7. in view of the above contentions, the important question of law that arises for our consideration is 'whether requirement of quid proquois essential or not, for levying or increasing the fee of licence granted to plant and enjoy the benefit of fruit hearing trees on the gram panchayat's land. in the said case, the supreme court was only considering the power of the gram panchayat to levy fee for according permission for construction of a building and the supreme court clearly held that there is no provision in the act empowering the gram panchayat for levying such fee and further, there is no quid pro quo. so, the levy is bad.ordery. bhaskar rao, j. 1. this writ appeal is filed assailing the judgment of the learned single judge dismissing w. p. no. 4565 of 1989 dated 27-4-1995.2. the facts of the case are that the appellants herein are licensees of the coconut trees in a gram panchayat poramboke situated in relangi village. they used to pay re. 1/- per tree per annum in the year 1964. thereafter, the same was increased to rs. 2/- in the year 1970 and rs. 7/- in the year 1981 and rs. 10/- in the year 1984 and again increased to rs. 20/- in the year 1985 vide gram panchayat's resolution no. 153 dated 29-11-l988. the same was questioned in the writ petition.3. ii was contended in the writ petition that the amount levied is 'fee' but not 'tax' and hence cannot be enhanced unless there is quid pro quo. if it is a tax, the panchayat has no power to levy tax for grant of licence. there are no guidelines framed for the enhancement of the tax. therefore, the same is arbitrary.4. the learned single judge held that theamount levied by the gram panehayat on the appellants is not a tax and only a fee. it was further held that where fee is collected for rendering any service, there is requirement of quid pro quo. but, where a fee is levied on the person (o derive sonic benefit from out of the permission or licence issued by ihe local authority, no quid pro quo is necessary. therefore, the writ petition was dismissed. against that, the present appeal if filed.5. the learned counsel for the appellants contends that in govt. of a. p. v. hindustan machine tools, : air1975sc2037 , the supreme court has decided the., power of the gram panehayat to levy fee and held that where there is no quid pro quo, the levying of fee is not proper. the supreme court was dealing with the fee levied under a. p. gram panchayats act and, therefore, ihe said judgment squarely covers the present case.6. on the other hand, the learned government pleader contended that there are 2 types of fee levied by the gram panchayat: one is for quid pro quo and the other is to derive some benefit. further, in upaj mandi samiti v. orient paper & industries ltd., : (1995)1scc655 , the supreme court held that where the fee is levied on a man who gets benefits out of the transaction, the same cannot amount to quid pro quo.7. in view of the above contentions, the important question of law that arises for our consideration is 'whether requirement of quid proquois essential or not, for levying or increasing the fee of licence granted to plant and enjoy the benefit of fruit hearing trees on the gram panchayat's land.'8. to appreciate the above contentions, it is relevant to extract the different kinds of fee levied by the gram panchayat as per the provisions of the andhra pradesh gram panchayats act. chapter iv of the a. p. gram panchayats act deals with 'taxation and finance'. section 69 enumerates the power of the gram panchayats to levy tax, fee and other subjects. section 69 (iv) empowers the gram panchayats for levying fees for the occupation of buildings including chavadis and sarais under the control of the gram panehayat section 69 (4) empowers the gram panchayal for levying a duly in the form of a surcharge on the seigniorage fees collected by the government onmaterials other than minerals and minor minerals quarried in the village. similarly, there are a number of other provisions empowering the gram panchayat to levy duty, fees and tax. it is not relevant to refer to all of them for the purpose of this case. the above enumerated provisions show that the gram panchayat is empowered to levy fee on different kinds of transactions. in hindustan machine tools case (supra), the supreme court was considering the validity of levying fees for according permission to construct a building. the supreme court held that there is no provision in the act for imposition of such fees. further, there is no quid pro quo for such fees. it was further held that the public authority has to show what services are rendered or intended to be rendered individually to the particular person on whom the fee is imposed, for justifying the imposition of fees. in the said case, the supreme court was only considering the power of the gram panchayat to levy fee for according permission for construction of a building and the supreme court clearly held that there is no provision in the act empowering the gram panchayat for levying such fee and further, there is no quid pro quo. in the present case, the gram panchayat is empowered to levy fee for the use of the poramboke land under the control of the gram panchayat. there is no dispute that the coconut trees on which fee is levied by the gram panchayat are situated in the poramboke land of the grain panchayat. therefore, it has power to levy fee. once it has power to levy fee, it has got power to increase the fee also. there is no dispute that the money value has gone down and the inflation rate is up. further, as contended by the learned government pleader, the income from each coconut tree is more than rs. 200/- per year. therefore, the increase in fee from rs. 10/- to rs. 20/- cannot be said to be disproportionate.9. the next contention is that there is no quid pro quo service provided by the gram panchayat. so, the levy is bad.10. there are two types of fees: one is levied for services rendered for which quid pro quo is essential; and the other is levied for use of the property of the local authority. where the fee is levied for the use of the property of the local authority, there is no requirement of quid pro quo and this principle has been considered by thesupreme court in upaj mandi samiti's case (supra):--'.....as indicated in article 110(2)of the constitution, ordinarily there are two classes, of cases where government imposes fees upon persons. the first is of grant of permission or privilege and the second for services rendered. in the first class of cases, the cost incurred by the government for granting of permission or privilege may be very small and the amount of imposition levied is based not necessarily upon the costs incurred by the government but upon the benefit that individual receives. in such cases, the tax element is predominant. if the money paid by privilege-holders goes entirely for the expenses of matters of general public utility, the fee cannot but be regarded as a tax. in the other class of cases, the government does some positive work for the benefit of persons, and the money is taken as the return for the work done or services rendered. .....theelement of quid pro quo in the strict sense is not always a sine qua non for a fee. the clement of quid pro quo is not necessarily absent in every tax. it is enough if there is a broad, reasonable and general correlationship between the levy and the resultant benefit to the class of people on which the fee is levied though no single payer of the fee receives direct or personal benefit from those services.....' the said decision of the supreme court squarely applies to the facts of this case. 11. the learned counsel for the appellants contends that the judgment of the supreme court in hindustan machine tools case (supra) was rendered by 3 honourable judges and that the supreme court held therein that the gram panchayat has no power to levy fee for granting permission for construction of a building and that the same is binding as per art. 141 of the constitution of india as a precedent and that, therefore, no fee can be levied on the coconut trees. for the proposition that once a point is decided by the supreme court, it is immaterial whether a particular argument is considered or not by the supreme court, the judgment is binding for the future cases, he relied on a decision of the supreme court in abdul shukoor v. arji papa rao, : air1963sc1150 . the same was again followed in b.m. lakhani v. malkapurmunicipality, : air1970sc1002 , shyamaraju v. u.v. bhat, : [1988]1scr340 and indian oil corpn. ltd. v. municipal corpn., : [1995]3scr246 .12. there is no dispute about the proposition laid down in the above judgments holding that once a particular point is decided, the judgment of the supreme court is binding, whether a particular contention is considered or not. as slated supra, in hindustan machine tools case (supra), the supreme court was considering a case wherein there was no provision for levying the fee on construction of the building. interpreting the provisions and considering the factsof that case, it was held that a gram panchayat of a. p. has no power to levy fee for construction of a building. but, in the present case, section 69 (i v) of the act empowers the gram panchayat for levying fee for use of the poramboke land under the control of (he gram panchayat. thus, there is a specific provision in the act which empowers the gram panchayat for levying fee for use of the poramboke land under its control. the facts of the present case are different. therefore, the decision of the supreme court in hindustan machine tools case cannot be said to be one dealing with the point involved in the present case. so, the same is not applicable to the facts of the present case. once it is not applicable to the facts of the present case, the question of it having the force of a binding precedent will not arise. in view of the above stated circumstances, we hold that the legal principle 'precedent is binding' is not violated.13. in view of the above circumstances, wedo not see any ground to differ with the judgment of the learned single judge. the writ appeal is dismissed.14. no costs.15. appeal dismissed.

Judgment:
ORDER

Y. Bhaskar Rao, J.

1. This writ appeal is filed assailing the judgment of the learned single Judge dismissing W. P. No. 4565 of 1989 dated 27-4-1995.

2. The facts of the case are that the appellants herein are licensees of the coconut trees in a Gram Panchayat Poramboke situated in Relangi village. They used to pay Re. 1/- per tree per annum in the year 1964. Thereafter, the same was increased to Rs. 2/- in the year 1970 and Rs. 7/- in the year 1981 and Rs. 10/- in the year 1984 and again increased to Rs. 20/- in the year 1985 vide Gram Panchayat's Resolution No. 153 dated 29-11-l988. The same was questioned in the writ petition.

3. Ii was contended in the writ petition that the amount levied is 'fee' but not 'tax' and hence cannot be enhanced unless there is quid pro quo. If it is a tax, the Panchayat has no power to levy tax for grant of licence. There are no guidelines framed for the enhancement of the tax. Therefore, the same is arbitrary.

4. The learned single Judge held that theamount levied by the Gram Panehayat on the appellants is not a tax and only a fee. It was further held that where fee is collected for rendering any service, there is requirement of quid pro quo. But, where a fee is levied on the person (o derive sonic benefit from out of the permission or licence issued by ihe Local Authority, no quid pro quo is necessary. Therefore, the writ petition was dismissed. Against that, the present appeal if filed.

5. The learned counsel for the appellants contends that in Govt. of A. P. v. Hindustan Machine Tools, : AIR1975SC2037 , the Supreme Court has decided the., power of the Gram Panehayat to levy fee and held that where there is no quid pro quo, the levying of fee is not proper. The Supreme Court was dealing with the fee levied under A. P. Gram Panchayats Act and, therefore, Ihe said judgment squarely covers the present case.

6. On the other hand, the learned Government Pleader contended that there are 2 types of fee levied by the Gram Panchayat: one is for quid pro quo and the other is to derive some benefit. Further, in Upaj Mandi Samiti v. Orient Paper & Industries Ltd., : (1995)1SCC655 , the Supreme Court held that where the fee is levied on a man who gets benefits out of the transaction, the same cannot amount to quid pro quo.

7. In view of the above contentions, the important question of law that arises for our consideration is 'whether requirement of quid proquois essential or not, for levying or increasing the fee of licence granted to plant and enjoy the benefit of fruit hearing trees on the Gram Panchayat's land.'

8. To appreciate the above contentions, it is relevant to extract the different kinds of fee levied by the Gram Panchayat as per the provisions of the Andhra Pradesh Gram Panchayats Act. Chapter IV of the A. P. Gram Panchayats Act deals with 'Taxation and Finance'. Section 69 enumerates the power of the Gram Panchayats to levy tax, fee and other subjects. Section 69 (iv) empowers the Gram Panchayats for levying fees for the occupation of buildings including chavadis and sarais under the control of the Gram Panehayat Section 69 (4) empowers the Gram Panchayal for levying a duly in the form of a surcharge on the seigniorage fees collected by the Government onmaterials other than minerals and minor minerals quarried in the village. Similarly, there are a number of other provisions empowering the Gram Panchayat to levy duty, fees and tax. It is not relevant to refer to all of them for the purpose of this case. The above enumerated provisions show that the Gram Panchayat is empowered to levy fee on different kinds of transactions. In Hindustan Machine Tools Case (supra), the Supreme Court was considering the validity of levying fees for according permission to construct a building. The Supreme Court held that there is no provision in the Act for imposition of such fees. Further, there is no quid pro quo for such fees. It was further held that the public authority has to show what services are rendered or intended to be rendered individually to the particular person on whom the fee is imposed, for justifying the imposition of fees. In the said case, the Supreme Court was only considering the power of the Gram Panchayat to levy fee for according permission for construction of a building and the Supreme Court clearly held that there is no provision in the Act empowering the Gram Panchayat for levying such fee and further, there is no quid pro quo. In the present case, the Gram Panchayat is empowered to levy fee for the use of the poramboke land under the control of the Gram Panchayat. There is no dispute that the coconut trees on which fee is levied by the Gram Panchayat are situated in the poramboke land of the Grain Panchayat. Therefore, it has power to levy fee. Once it has power to levy fee, it has got power to increase the fee also. There is no dispute that the money value has gone down and the inflation rate is up. Further, as contended by the learned Government Pleader, the income from each coconut tree is more than Rs. 200/- per year. Therefore, the increase in fee from Rs. 10/- to Rs. 20/- cannot be said to be disproportionate.

9. The next contention is that there is no quid pro quo service provided by the Gram Panchayat. So, the levy is bad.

10. There are two types of fees: one is levied for services rendered for which quid pro quo is essential; and the other is levied for use of the property of the Local Authority. Where the fee is levied for the use of the property of the Local Authority, there is no requirement of quid pro quo and this principle has been considered by theSupreme Court in Upaj Mandi Samiti's Case (supra):--

'.....As indicated in Article 110(2)of the Constitution, ordinarily there are two classes, of cases where Government imposes fees upon persons. The first is of grant of permission or privilege and the second for services rendered. In the first class of cases, the cost incurred by the Government for granting of permission or privilege may be very small and the amount of imposition levied is based not necessarily upon the costs incurred by the Government but upon the benefit that individual receives. In such cases, the tax element is predominant. If the money paid by privilege-holders goes entirely for the expenses of matters of general public utility, the fee cannot but be regarded as a tax. In the other class of cases, the Government does some positive work for the benefit of persons, and the money is taken as the return for the work done or services rendered.

.....Theelement of quid pro quo in the strict sense is not always a sine qua non for a fee. The clement of quid pro quo is not necessarily absent in every tax. It is enough if there is a broad, reasonable and general correlationship between the levy and the resultant benefit to the class of people on which the fee is levied though no single payer of the fee receives direct or personal benefit from those services.....'

The said decision of the Supreme Court squarely applies to the facts of this case.

11. The learned counsel for the appellants contends that the judgment of the Supreme Court in Hindustan Machine Tools case (supra) was rendered by 3 Honourable Judges and that the Supreme Court held therein that the Gram Panchayat has no power to levy fee for granting permission for construction of a building and that the same is binding as per Art. 141 of the Constitution of India as a precedent and that, therefore, no fee can be levied on the coconut trees. For the proposition that once a point is decided by the Supreme Court, it is immaterial whether a particular argument is considered or not by the Supreme Court, the judgment is binding for the future cases, he relied on a decision of the Supreme Court in Abdul Shukoor v. Arji Papa Rao, : AIR1963SC1150 . The same was again followed in B.M. Lakhani v. MalkapurMunicipality, : AIR1970SC1002 , Shyamaraju v. U.V. Bhat, : [1988]1SCR340 and Indian Oil Corpn. Ltd. v. Municipal Corpn., : [1995]3SCR246 .

12. There is no dispute about the proposition laid down in the above judgments holding that once a particular point is decided, the judgment of the Supreme Court is binding, whether a particular contention is considered or not. As slated supra, in Hindustan Machine Tools Case (supra), the Supreme Court was considering a case wherein there was no provision for levying the fee on construction of the building. Interpreting the provisions and considering the factsof that case, it was held that a Gram Panchayat of A. P. has no power to levy fee for construction of a building. But, in the present case, Section 69 (i v) of the Act empowers the Gram Panchayat for levying fee for use of the poramboke land under the control of (he Gram Panchayat. Thus, there is a specific provision in the Act which empowers the Gram Panchayat for levying fee for use of the poramboke land under its control. The facts of the present case are different. Therefore, the decision of the Supreme Court in Hindustan machine Tools Case cannot be said to be one dealing with the point involved in the present case. So, the same is not applicable to the facts of the present case. Once it is not applicable to the facts of the present case, the question of it having the force of a binding precedent will not arise. In view of the above stated circumstances, we hold that the legal principle 'precedent is binding' is not violated.

13. In view of the above circumstances, wedo not see any ground to differ with the judgment of the learned single Judge. The writ appeal is dismissed.

14. No costs.

15. Appeal dismissed.