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Kan Raj Vs. State of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectOther Taxes
CourtRajasthan High Court
Decided On
Case NumberCivil Special Appeal No. 189 of 1976
Judge
Reported inAIR1979Raj164; 1979()WLN127
ActsRajasthan Municipalities Act, 1959 - Sections 4 and 6; Rajasthan Lands and Buildings Tax Act, 1964 - Sections 3
AppellantKan Raj
RespondentState of Rajasthan and anr.
Appellant Advocate H.M. Parekh, Adv.
Respondent Advocate H.N. Calla, Dy. Govt. Adv.
DispositionAppeal allowed
Cases Referred and Sahlot Brothers v. State of Rajasthan
Excerpt:
.....constituted and it cannot recover taxes--provisions of sections 4 & 6 are mandatory--held, ahore municipality is not validly constituted, and it cannot therefore recover land & building tax.;it is essential for properly constituted municipality to come into existence, that its limits must be clearly defined by or under competent authority and such limits must be duly published in accordance with law and in the absence of specification of its limits, it would not be possible, in law, to levy and recover the taxes, as in our opinion, the specification of the boundaries in the notifications under sections 4 and 6 is sine quanon for the constitution of a valid municipality. looking to the language of sections 4 and 6, we have been meticulously complied with.;the limits of the..........all the facilities for the development of the town are available, it was for that reason that the state government proposed to convert the gram panchayat, ahore, into municipality. that notification is ex. 1. the appellant, who is a permanent resident of village ahore, and which is included in the panchayat circle of gram panchayat, ahore along with other interested persons submitted their objections against the said proposal of the state government. according to the appellant, although no enquiry worth the name was made into the objections, nor were the inhabitants of the gram panchayat, ahore, were heard regarding the said objections, yet a final notification number f.1(3)lsg/74/6343 dated january 28, 1976 purporting to be under section 4 of the act of 1959, was published in the.....
Judgment:

M.L. Joshi, Actg. C.J.

1. This special appeal under Section 18 of the Rajasthan High Court Ordinance is directed against the judgment of the learned Single Judge, dated October, 12 1976, whereby he dismissed the writ petition challenging the conversion of the Gram Panchayat, Ahore, into Municipality, Ahore.

2. The appellant filed a writ petition wherein he challenged the validity of notification (Ex. 1) dated April 16, 1975, issued under Section 6 of the Rajas-than Municipalities Act, 1959 (hereinafter to be referred to as the Act of 1959) and the notification (Ex. 6) issued under Section 6 (1) of the Act of 1959 on January 28, 1976 (Ex. 6). He also prayed for quashing of the proceedings coming from the notification dated April 16, 1975 and culminating in the notification dated January 28, 1976. It was further prayed in the writ petition that the Municipal Board, Ahore, be directed to forebear from functioning as a Municipal Board under the provisions of the Act and that the Land and Building Tax Department, Rajas-than, Jaipur, be restrained from enforcing any of the provisions of the Lands and Buildings Tax Act, 1964 and the Rules made thereunder on the inhabitants of the Panchayat Circle Ahore, in general and the appellant in particular,

3. The material facts, which are relevant for the purposes of disposal of this appeal, stated in brief, are as under:--

On April 16, 1965, notification Number F.1(3)/LSG/74/24164-77, was issued under Section 6 (1) of the Act of 1959, By this notification, objections to the said proposal were invited from the affected persons who were required to submit their objections within 2 months from the date of the proclamation which was to be made by beat of drum in the area concerned. In the said notification, it was, inter alia, mentioned that as the population of the Gram Panchayat, Ahore, had gone up to 7,723 as per the census of 1971 and as the Gram Panchayat, Ahore, is an important business market and as all the facilities for the development of the town are available, it was for that reason that the State Government proposed to convert the Gram Panchayat, Ahore, into municipality. That notification is Ex. 1. The appellant, who is a permanent resident of village Ahore, and which is included in the Panchayat Circle of Gram Panchayat, Ahore along with other interested persons submitted their objections against the said proposal of the State Government. According to the appellant, although no enquiry worth the name was made into the objections, nor were the inhabitants of the Gram Panchayat, Ahore, were heard regarding the said objections, yet a final notification Number F.1(3)LSG/74/6343 dated January 28, 1976 purporting to be under Section 4 of the Act of 1959, was published in the Rajasthan Gazette wherein it was mentioned that all the objections received within the prescribed time were duly considered and were found without any substance and consequently, the State Government has directed that Gram Panchayat, Ahore, be converted into a municipality, which shall be called 'Nagarpalika, Ahore,'. The said notification is Ex. 6. The appellant's further prayer in, the writ petition was that under the provisions of the Rajasthan Land and Building Tax Act, as amended by Act No. 15 of 1973, the taxes on the land and buildings in all the areas covered by cantonement boards, municipal boards, including that of Ahore, or councils in the State of Rajasthan, be imposed and levied. Consequently, the Land and Building Tax was introduced in the area covered by the newly constituted Municipal Board of Ahore. It is in this background that the appellant felt aggrieved by the impugned notification of April 16, 1975 and January 26, 1976, and challenged the same under Article 226 of the Constitution of India.

4. The case of the appellant in the writ petition was that the notification under Section 6 (1) of the Act of 1959 was invalid as that notification did not specify any local area proposed to be constituted/converted into municipality. Likewise, notification under Section 4 of the Act of 1959 also was not in accordance with the provisions of law as no local limits of the area sought to be converted into municipality was specified therein. Further case of the appellant was that there is specific provision in Section 5 of the Act of 1959 that no area, the population of which is less than 8000 shall be converted into municipality, except for exceptional reasons, which shall be clearly set forth in the proclamation under Sections 6 and 4 of the Act of 1959. However, the reasons given in the notification under Section 6 were wholly inadequate and no reasons were at all mentioned in the final notification under Section 4 of the Act of 1959. It was contended in the petition that the provisions of Sections 4, 5 and 6 were of mandatory character and they having not been complied with, the notification issued under Section 4 and Section 6 of the Act of 1959 were invalid and therefore, the Gram Panchayat, Ahore, could not be taken to be a municipality so as to authorise to levy the building tax.

5. The learned single Judge rejected the contentions raised in the writ petition and dismissed it by his judgment under appeal. It is in these circumstances that the appellant has come by way of special appeal.

6. In the appeal before us, the same contentions which were raised before the learned Judge have been reiterated. In reply, the learned Deputy Government Advocate has submitted that though the words used in the proclamation, and the notices are 'Gram Panchayat, Ahore' but that is sufficient expression of the intention of the State Government to convert village Ahore into a municipality. The limits of the aforesaid village Ahore stood defined in the revenue records and, therefore, it hardly matters if the limits were not specified in the impugned notifications. According to the learned Deputy Government Advocate, there is only one village Ahore in the aforesaid Panchayat Circle, Ahore, and therefore, omission to mention the limits or boundaries in the notifications will not render them invalid. The further contention of the learned Deputy Government Advocate is that the reasons for converting the area consisting of population less than 8000 into a municipality are mentioned in the notification Ex. 1 and omission to repeat the same in the final notification under Section 4 will not render the same invalid. It has been further contended by the learned Deputy Government Advocate that from the notification under Section 6, it is evident that the objections were considered and found to be groundless and untenable and that is sufficient for complying with the provisions of Section 5 of the Act of 1959, 7. We have given our earnest consideration to the rival contentions raised on both the sides. * In order to examine the validity of the rival contentions, it will be appropriate to notice the relevant provisions of Sections 4, 5 and 6 of the Act of 1959. Section 6 of the Act of 1959 deals with the procedure preliminary to notification, under Section 4 for constituting a local area to be a municipality. It contemplates issuance of proclamation by beat of drum in the area concerned announcing that it is proposed to constitute such local area to be a municipality etc. Section 5 may be reproduced as under:--

'6. Procedure preliminary to notification under Section 4. -- (1) Not less than two months before the issue of any notification under Section 4, the State Government shall cause to be published in the Official Gazette, - and to be posted in conspicuous spots or proclaimed by beat of drum in the area concerned, a proclamation announcing that it is proposed to constitute such local area to be municipality, or to include or exclude it in or from any municipality, or to alter the limits of any municipality in a specified manner or to declare that such local area shall cease to be a municipality, as the case may be, and requiring all persons who entertain any objection to the said proposal to submit the same, with reasons therefor in writing to the State Government within two months from the date of said proclamation.

(2) No notification under Section 4 shall be issued by the State Government, unless the objections, if any, so submitted are, in its opinion, insufficient or invalid.'

We may then read Section 4 of the Act of 1959. It reads as under,--

'4. Delimitation of Municipalities:-- (1) Subject to the provisions of Sections 5 and 6, the State Government may, from time to time, by notification in the official Gazztte--

(a) Declare any local area to be a municipality;

(b) define the limits of any municipality;

(c) include or exclude any area in or from any municipality;

(d) otherwise alter the limits of any municipality;

(e) declare that any local area shall, from a date to be specified in the notification, cease to be a municipality,

(2) Every notification constituting a new municipality or altering the limits of an existing municipality shall clearly set forth the local limits of the area to be included in or excluded from such municipality, as the case may be.

(3) It shall be the duty of the municipal board in every municipality already existing and of every board newly established under this Act and of every board, whose local limits are altered as aforesaid to cause, at its own cost, to be erected or set up, and thereafter to maintain at its own costs, substantial boundary marks of such description and in such position as shall be approved by the Collector or any officer authorised by him in this behalf, defining the limits of the municipality subject to its authority, as set forth in the notification.

(4) When any local area ceases to be a municipality, the board established therein shall cease to exist and the balance of the municipal fund and other property and rights vesting in such board shall, subject to all charges and liabilities affecting the same, vest in the State Govt. and the proceeds thereof, if any, shall be expended under the orders of the State Government for the benefit of the local area in which such board had jurisdiction.

(5) Notwithstanding anything contained in Sub-section (4) when any local area ceases to be a municipality and is included within the local limits of the jurisdiction of some other local authority, the municipal fund and other property and rights vesting in the board shall vest in such other local authority and the liabilities of the board shall be the liabilities of such other local authority.

(6) When any local area is excluded from a municipality and included in another municipality such portion of the municipal fund and other property vested in the board of the first mentioned municipality shall vest in, and such portion of the liabilities thereof shall be the liabilities of, the board of the other municipality as the State Government may, after consulting the boards of both municipalities, declare by notification in the official Gazette; provided that the provisions of this sub-section shall not apply in any case where the circumstances, in the opinion of the State Government, render undesirable the transfer of any portion of the municipal fund and properties or liabilities.

(7) When any local area is included in a municipality, all rules and bye-laws made, orders, directions and notices issued and powers conferred and in force throughout such municipality at the time when the said area is so included, shall apply thereto, unless the State Government otherwise directs, from the date of such inclusion.' From a reading of Section 4 (2), it is evident that the notification under Section 4 shall clearly set forth the local limits of the area to be included in or excluded from such municipality.

8. Section 5 of the Act of 1959, reads as under:--

'5. What local area may be declared to be a municipality.-- (1) Any local area which comprises---

(a) a city or a town or two or more neighbouring towns with or without any village, suburb or land adjoining thereto, or

(b) a village or suburb or two or more neighbouring villages and suburbs,

may be declared a municipality:

Provided that except for exceptional reasons, which shall be clearly set fourth in the proclamation under Section 6 and in the notification issued under Section 4, it shall not be lawful-- (i) to include any town or suburb in a municipality with any other town or suburb from which it is separated by more than one mile of land unoccupied by houses; or

(ii) to constitute any area, of which the population is less than, eight thousand inhabitants, to be a municipality.

(2) When two or more places bearing different names are constituted to be one municipality, the name of the municipality shall be determined by the State Government......'.

9. The first and foremost question, which emerges for our decision in the facts and circumstances set forth above, is whether Ahore Municipality was properly constituted body in law when it levied the building tax within the so-called area of the Municipality, Ahore? Learned counsel for the petitioner-appellant invited our attention to Somath Mal v. State of Rajasthan, 1954 Raj LW 43: (AIR 1954 Raj 162); Jainarain v. State of Rajasthan 1955 Raj LW 454 and Sahlot Brothers v. State of Rajasthan, 1956 Raj LW 402. In Somath Mal's case (supra), there is one passage on which strong reliance has been laid by the learned counsel for the petitioner-appellant. It is to the following effect:--

'It is indeed elementary that before the schedule of taxes sanctioned under the resolution of 1948 could receive legal recognition or operation the limits of Bhinmal Municipality must have been denned by or under competent authority. As this was not done, we have no hesitation in holding that the levy or collection of taxes mentioned in the schedule was impossible, and, therefore, the realisation of taxes in question was and is illegal.'

The principal point which arose and was considered in that case was whether the Council Resolution passed by His Highness the Maharaja in Council was merely an executive order or was law within, the meaning of Article 265 of the Constitution. But while deciding that question, the Division Bench of this Court observed that as the boundary limits of Bhinmal Municipality were not fixed by the former Jodhpur Government and were, therefore, not certain, it was impossible to realise the taxes sought to be imposed. These observations were, of course, obiter, but cannot be lightly brushed aside.

10. In Jainarain's case (supra) question of the importance of the delimitation of the boundaries of the municipality again arose and the view taken in Somath Mal's case (supra) was approved and followed. In that case, it was held that the taxing power of the Municipal Board must be limited to its own territorial limits and such limits must be defined by the State by which the municipality derives all authority to perform its function. It was held in that case that the importance of delimiting the boundaries of a municipality arise from the fundamental consideration that a municipality operates within a given area by virtue of authority delegated to it by the State and it can only tax persons or property within its own limits and not beyond them. It is imperative that the territorial or geographical limits of the municipality within which it can effectively operate, must be certain and precisely known and authoritatively defined. The necessity of prescribing precise limits of the municipality is rather imperative. In Sahlot Brother's case (supra), the point relating to the defining of the boundaries for the purpose of constitution of a valid municipality, came to be considered. That case was under the Rajasthan Town Municipalities Act. Sections 5 and 7 of the Rajasthan Town Municipalities Act are pari materia with Sections 6 and 4 of the Act of 1959. On consideration of the effect of Sections 5 and 7 of the Rajasthan Town Municipalities Act, the Division Bench of this Court came to hold that what is declared as a municipality is a local area and it is, therefore, implicit that such local area must be defined as regards its geographical limits without which it would be impossible to know which area has been made the subject-matter of the notification. In fact, Sub-section (2) of Section 5 of the Rajasthan Town Municipalities Act, makes it abundantly clear that every notification constituting a new municipality (or altering the limits of existing town municipality) shall clearly set forth the local limits of the area to be included in the municipality. It is on the basis of the geographical limits that it is in due course divided into certain constituencies (wards) which are charged with the duty of electing members who then constitute a Municipal Board. Where, therefore, the territorial limits of the municipality are not defined according to law and in precise terms, it would be impossible to hold that a municipality or a particular Municipal Board governing it at any particular time, has been brought into existence, or that it can function effectually and compel submission without which all government is rendered futile. It has been further observed in that case that it is essential for a properly constituted municipality to come into existence that its limits must be clearly defined by or under competent authority and such limits must be published in accordance with law and in the absence of such delimitation it would not be possible for it, in law, to levy and recover any taxes and further the very existence of the governing body would become open to a vital defect and its ability to function legally and effectively and would stand impaired and destroyed (the underlining is ours). This case squarely concluded the contention raised before us, and it has been clearly laid down that it is imperative for functioning of a municipality to precisely define its limits under Sections 6 and 4 of the Act of 1959. These observations equally apply to the case before us as Sections 4 and 6 of the Act of 1959 are pari materia with Sections 5 and 7 of the Rajasthan Town Municipalities Act. Indeed, Section 4 itself enjoins upon the State Government to define the limits of any municipality before declaring any local area to be a municipality. Sub-sec. (3) of Section 4 of the Act of 1959 casts an obligation on the Municipal Board to cause at its own cost, substantial boundary marks of such description and in such position as shall be approved by the Collector or any officer authorised by him in this behalf, denning the limits of the municipality subject to its authority, as set-forth in the notification. Sub-section (3) of Section 4 of the Act of 1959, therefore, makes it abundantly clear that the boundaries of the municipality are to be precisely defined so that they can be ascertained on the spot without taking recourse to the help of the documents and the revenue records. The contention of the learned Deputy Government Advocate is that the requirements of Sub-section (4) stand substantially complied with as the boundaries of village Ahore could be ascertained from the revenue records. We find ourselves unable to concede to this contention. The boundaries should be defined in a manner which could be immediately ascertained on the spot and not by a circuitous way of finding out from the revenue records. In fact, from the overall reading of Section 4 of the Act of 1959, we have no manner of doubt in our mind that the limits of the municipality should be set-forth in the notification in a very precise and certain manner so that the inhabitants of the municipality could easily decipher the limits of the same.

11. In view of the aforesaid decisions, we are definitely of the view that it is essential for a properly constituted municipality to come into existence, that its limits must be clearly defined by or under competent authority and such limits must be duly published in accordance with law and in the absence of specification of its limits, it would not be possible, in law, to levy and recover the taxes, as in our opinion, the specification of the boundaries in the notifications under Sections 4 and 6 is sine qua non for the constitution of a valid; municipality. Looking to the language of Sections 4 and 6, we are of the view that they are of mandatory character and they should have been meticulously complied with. We may point out that on perusal of the notifications under Sections 4 and 6 of the Act, we find that the limits of the Municipality of Ahore have not been precisely specified in the aforesaid notifications and thus the mandatory provisions of Sections 4 and 6 of the Act of 1959, have not been complied with. Consequently, we are constrained to hold that the Municipality, Ahore, has not been validly constituted and therefore it has no right to recover the land and building tax as a municipality from the inhabitants of that area.

12. In view of our finding regarding the non-compliance with the mandatory provisions of Sections 4 and 6 of the Act of 1959, we need not go into the point whether in the facts and circumstances of this case, the municipality could be constituted for an area of population less than 8,000.

13. In view of our foregoing discussion, we accept the appeal, set aside the decision of the learned single Judge and further quash the notification Ex. 1 and Ex. 6 and direct the respondents to forebear from realising any building tax from the petitioner-appellant. In the facts and circumstances, of the case, we leave the parties to bear their own costs.


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