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Gopabandhu Das Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberOriginal Jurisdiction Case No. 768 of 1970
Judge
Reported inAIR1972Ori35
ActsOrissa Municipal Act, 1950 - Sections 417A(1A) and 417B
AppellantGopabandhu Das
RespondentState of Orissa
Appellant AdvocateB.M. Patnaik and ;A.K. Padhi, Advs.
Respondent AdvocateGovernment Adv.
DispositionApplication allowed
Cases ReferredIn Giriwar Prasad Narain Singh v. Dukhu Lal Das.
Excerpt:
.....of the government to constitute an area into a notified area should be published at least in one news paper -a news paper circulating in the area concerned. by laving down that the publication must be in at least two issues of two' news papers, the legislature clearly indicated the importance that it attached to this publication in the news papers. ' their lordships accordingly held that the requirement regarding publication in the news paper was mandatory and not directory and non-compliance with this mandatory provision renders the notification bad. 5. we have already indicated that the mere publication of the intention of the government in the official gazette would not serve any useful purpose as the official gazette is not available to the majority of inhabitants and that..........the state government shall cause to be published in the official gazette and also at least in one newspaper circulating in the area a proclamation announcing the intention of government to issue such notification and inviting all persons residing within such area to submit their objections, if any, in writing to the district magistrate within one month from the date of publication of the proclamation in the official gazette. (1-b) the district magistrate shall, with all reasonable despatch forward all objections so submitted along with his views thereon to the state government who shall, before publication of the notification under sub-section (1). take into consideration the objections and views forwarded as above. (2) an area, in respect of which such a notification has issued, is.....
Judgment:

Patra, J.

1. On the coming into force of the Orissa Grama Panchayat Act. 1964, the Gram Panchayat of Anandnur within the jurisdiction of which is included the town of Anandpur, was constituted. Section 417-A of the Orissa Municipal Act. 1950 (hereinafter called the Act) empowers the State Government to constitute any area into a notified area. In exercise of this power, the Government of Orissa issued Notification No. Spl. Con.- 47-70-14956/ U. D. dated 17th July. 1970 constituting the Anandnur town into a notified area (Annexure 1). The notification runs thus:

'Government of Orissa

Urban Development Department

Notification.

Dated Bhubaneswar, the 17th July. 1970. No. SPL-Con 47-70-14956/UD. In exercise of the Dowers conferred by Sub-section (1) of Section 417-A of the Orissa Municipal Act. 1950 (Orissa Act 23 of 1950), the State Government do hereby declare that it is necessary to make administrative provision for all purposes of the said Act, in the local area of the district of Keonjhar as specified in the schedule below, with effect from the date of publication of this notification, the declaration of intention for such constitution having been previously published as required by Sub-section (1-A) of the said section.

Schedule

Anandapur town comprisine of villages of Anandapur. Fakirpur. Salapada. Janara Khaparkhai, Padampur. Ghasipur and Murabali and bounded on the

North: 1. Sading 2. Bankhidi 3. Belda 4. Janghar

South: 1. Barigaon 2. Bailo. 3. Bhatisira 4- River Baitarani.

East: 1. Belda 2. Salabani 3. Mechinda

West: 1. Sailong 2. Kainipura 3. Bholanuagaon

By order of the Governor

sd/- G. C. Patra

Deputy Secretary to Govt.'

On the very same day, that is. 17th July. 1970, two other notifications, one No. 14960/UD-Spl. Con-47/70 and the other No. 14966/UD, the first under clauses (a) and (c) /Annexure 2) and the second under Clause (c) (Annexure 3) of Section 417-B of the Act were issued, (sic) The petitioner who had been elected as the Sarpanch of the Anandpur Gram Panchayat before the impugned notifications had been issued, challenges the validity of the notifications at Annexures 1. 2 and 3 and prays that they may be quashed.

2. Section 417-A of the Act runs thus:

'417-A. Constitution of notified municipality: (1) The State Government may, by notification, declare that it is necessary to make administrative provision for all or any of the purpose of this Act in any area, specified in the notification, other than a municipality.

(1-a) Before the publication of a notification under Sub-section (1) the State Government shall cause to be published in the Official Gazette and also at least in one newspaper circulating in the area a proclamation announcing the intention of Government to issue such notification and inviting all persons residing within such area to submit their objections, if any, in writing to the District Magistrate within one month from the date of publication of the proclamation in the Official Gazette.

(1-b) The District Magistrate shall, with all reasonable despatch forward all objections so submitted along with his views thereon to the State Government who shall, before publication of the notification under Sub-section (1). take into consideration the objections and views forwarded as above.

(2) An area, in respect of which such a notification has issued, is hereinafter. called a Notified Area.'

3. It is contended by the petitioner that the State Government had not caused the publication of a proclamation announcing the intention of the Government to issue a notification under section 417A of the Act in any news paper and much less in a news paper circulating within the Anandapur Gram Panchayat as required under Clause (a) of Sub-section (1) of Section 417-A of the Act. As according to him. the publication of the proclamation in the news paper is a condition precedent for the exercise of the Power under section 417-A, the impugned notifications are liable to be Quashed. That the proclamation referred to has not been published in any news paper is admitted in the counter 'affidavit filed on behalf of the State. But it is contended that as necessary publication has been made in the official Gazette, that is sufficient compliance of the requirements of clause (a) of Sub-section (1) of Section 417-A, and that inasmuch as objections, if any, to the constitution of the notified area have to be submitted to the District Magistrate within one month from the date of publication of the proclamation in the official Gazette, it is clear that the provision for publication in the local news Paper is only directory and non-compliance of it does not affect the validity of the impugned notifications. In support of this contention, reliance is placed on behalf of the State on a decision of the Supreme Court in Municipal Board. Sitapur v. Prayag Narain Saigal. (AIR 1970 SC 58). That case related to the U. P. Municipalities Act. 1916. Section 126 (1) (x) of that Act empowers the Municipal Board to impose water tax on the annual value of buildings or lands or of both. Sections 131 to 135 lay down the procedure for imposing the tax. A Municipal Board desiring to impose the tax is required by Section 131 Sub-section (1) to pass a special resolution framing the preliminary proposal for the tax. The Municipal Board. Sitapur, passed a special resolution framing the proposal for the lew of water tax at the rate of 12 per cent per annum on the annual value of buildings and lands and exempting buildings and lands whose annual value was Rs. 24/- or below. Section 131, Sub-section (2) requires the Board to prepare a draft of the rules in respect of the proposed tax. The Board duly prepared the necessary draft rules. Section 131 sub-section (3) requires the Board to publish in the manner prescribed in Section 94 the proposal and the draft rules along with a notice in the form set forth in Schedule III. The draft rules alone with notice were published in a local news paper but the proposal was not separately published. The proposal however, was to be found in the draft rules published in the local news paper. Objections against the proposal were filed by the inhabitants of the municipality and they were duly' considered by the Board. After considering the objections and recommendations, the Board decided to modify the original proposal by reducing the tax to 10 per cent and raising the exemption limit of buildings and the lands from Rs. 24/- which found place in the original proposal to Rs. 36/-. Section 132, sub-section (2) requires publication of the modified proposal and section 132 (3) provides that objections to the modified proposal shall be dealt with in the manner prescribed by Sub-section (1). The modified proposal was not published as required by section 132. Sub-section (2). The prescribed authority acting under Section 132 subsection (2) duly sanctioned the final proposal and thereafter the Board passed a special resolution directing imposition of the tax. This special resolution was also not published. The validity of the imposition of tax was challenged on the ground of non-publication at the various stages mentioned above. Their Lordships held that the procedural irregularity cannot be regarded as fundamental or as invalidating the imposition, in as much as no substantial prejudice was caused thereby to the inhabitants of the municipality. In arriving at this conclusion, their Lordships took note of the fact that the original proposal which was duly published was to lew water tax at the rate of 12 per cent per annum on the annual value. The inhabitants had full opportunity to raise objections to the rate of the tax. After considering the objections the rate was reduced to 10 per cent and as such no prejudice was caused by not inviting fresh objections to the modified proposals of levying the tax at the reduced rate. Similarly the original proposal exempted all buildings and lands whose annual value was Rs. 24/- and the modified proposal raised the limit to Rs. 36/-. No prejudice was caused by not inviting fresh objections to the modified proposal raising the exemption limit. Having regard therefore to these factual aspects of the case, it was considered that non-publication of the modified proposal was an irregularity and the defect was cured by section 135. Sub-section (3).

4. It is well known that the incident of taxation on the inhabitants of a Gram Panchayat area is very little and that once such area is constituted into a notified area, the inhabitants have to pay several kinds of taxes. That is the reason why provision was made in, Clause (1) (a) of section 417-A of the Act for the persons affected to submit objections to the District Magistrate whenever it is proposed to constitute an area into a notified area. It is equally well known that the ordinary inhabitants have no access, to the official Gazette, and that appears to be the reason why the Legislature provided that the intention of the Government to constitute an area into a notified area should be published at least in one news paper -- a news paper circulating in the area concerned. It cannot, therefore, be said that the requirement of the intention of the Government to be published in a news paper circulating in the, area is a mere idle formality and non-compliance with it does not materially affect the rights of the inhabitants. The use of the expression 'at least' in Clause 1 (a) is significant and equally significant is the fact that the sub-section provides not merely for publication in a news paper but insists on the publication to be made in a news paper circulating in the area.

In Giriwar Prasad Narain Singh v. Dukhu Lal Das. (AIR 1968 SC 90) their Lordships were dealing with section 3 of the Bihar Land Reforms Act. 1950. Sub-section (1) whereof provides that the State Government may by notification declare that the estates or tenures of a proprietor or tenure-holder, specified in the notification have passed to and become vested in the State. Sub-section (2) requires that the notification referred to in Sub-section (1) shall be published in the official Gazette and at least in two issues of two news papers having circulation in the State of Bihar. Sub-section (4) provides that on the publication of the notification under Sub-section (1) of Section 3, the estate or tenure would vest in the State. In the case which their Lordships were considering the notification issued by Government vesting certain estates in the State was published only in the Bihar Official Gazette, but not in two issues of two news papers. The question arose whether the direction for publication of the notifications in the two issues of two news papers was mandatory or only directory. Adverting to the importance of the publication of title notification, their Lordships Stated:

'The notification had a far-reaching effect. It deprived the owner of his vested rights as a proprietor of the estate and vested those rights in the State Government. This alteration in the rights was to be brought about by notifications issued in respect of individual estates of a proprietor and it appears that it was because of this importance of the notification that the legislature did not consider it sufficient that the notification should be published in the Official Gazette only. Subsection (2) of section 3 of the Act, therefore, contained the clause requiring the publication in at least two issues of two news, papers. In this provision, the use of the adjectival clause 'at least' is very significant. By laving down that the publication must be in at least two issues of two' news papers, the Legislature clearly indicated the importance that it attached to this publication in the news papers. A minimum of two issues of two news papers was mentioned for publication of the notification to emphasise that this requirement was necessary and had to be fulfilled before the notification could have the effect of divesting a proprietor of his rights in the estate and vesting them in the State Government.'

Their Lordships accordingly held that the requirement regarding publication in the news paper was mandatory and not directory and non-compliance with this mandatory provision renders the notification bad.

5. We have already indicated that the mere publication of the intention of the Government in the official Gazette would not serve any useful purpose as the official Gazette is not available to the majority of inhabitants and that consequently, the petitioner as well as the other inhabitants of the locality were deprived of an opportunity to submit their objections due to the fact that there was no publication, of the intention of Government in any news paper and much less in a news paper circulating in the locality. We would accordingly hold that the requirement in clause 1 (a) of section 417-A of the publication of the Government's intention in at least one news paper circulating in the locality is a mandatory provision and its non-compliance renders the impugned notifications at Annexures 1, 2 and 3 bad.

6. In view of our finding above, it is unnecessary to advert to the other grounds raised in the petition that Section 417-A of the Act violates Article 14 of the Constitution.

7. We would accordingly allow this writ application, and direct that a writ of certiorari be issued quashing the impugned notifications at Annexure 1, 2 and 3. Opposite party should pay the costs of this petition to the petitioner. Hearing fee Rs. 100/- (Rupees one hundred only).

R.N. Misra. C.J.

8. I agree.


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