Skip to content


Municipal Board, Vanechand Sagarmal and 24 ors. Vs. State of Rajasthan and Three ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Other Taxes
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Special Appeal Nos. 66 and 120 of 1975
Judge
Reported in1975(8)WLN530
AppellantMunicipal Board, Vanechand Sagarmal and 24 ors.
RespondentState of Rajasthan and Three ors.
DispositionAppeal dismissed
Cases ReferredNorth Arcot District v. Deputy Commercial Tax Officer Gudyatharn
Excerpt:
.....power of rescinding the levy of octroi on the other hand, the section casts a duty on the board to levy octroi at the rate and from the date directed by the government, and that duty can be avoided only if a representation is made by the board to the state government, along with a request, and the state government is satisfied that circumstances exist which sufficiently provide the justification for the board (1) not to levy or (ii) to stop the levy of that tax and the government issue a special order, along with the reasons for making it, permitting the board not to levy or to stop the levy of the tax. -where, by any rajasthan law, a power to make or issue orders, rules, regulations, schemes, forms, bye laws or notifications is conferred, then that power includes a power exercisable in..........and its concerned officers have been restrained from interfering with the board's right to levy octroi in accordance with law and in pursuance of notification ex. 1 dated april 5, 1973. while appeal no. 66 of 1975 has been filed by the interveners, appeal no. 130 of 1975 has been filed by the state government, is department and officer.2. it is not in dispute that the state government issued notification ex. 1 dated april 5, 1973 under section 104 of the rajasthan municipalities act, 1959, hereinafter referred to as 'as act', which was published in the state gazette of may 31, 1973. it was directed thereby that the board shall, after the expiry of a period of seven days from its publication, levy octroi on goods and animals brought within the limits of the municipality for.....
Judgment:

P.N. Shinghal, C.J.

1. These two special appeals are directed against the judgment of a learned Single Judge dated April 21, 1976 by which the writ petitions filed by the ret pendent Municipal Board of Sheoganj, hereinafter referred to as 'the Board', has been allowed, notification Ex. 19 of the State Government dated February 22, 1975, its telegram Ex. 2 dated January 15, 1974 and its letter Ex. 5 dated January 6, 1975 have been quashed, and the State Government and its concerned Officers have been restrained from interfering with the Board's right to levy octroi in accordance with law and in pursuance of notification Ex. 1 dated April 5, 1973. While appeal No. 66 of 1975 has been filed by the interveners, appeal No. 130 of 1975 has been filed by the State Government, is department and Officer.

2. It is not in dispute that the State Government issued notification Ex. 1 dated April 5, 1973 under Section 104 of the Rajasthan Municipalities Act, 1959, hereinafter referred to as 'as Act', which was published in the State Gazette of May 31, 1973. It was directed thereby that the Board shall, after the expiry of a period of seven days from its publication, levy octroi on goods and animals brought within the limits of the municipality for consumption, use or sale therein. The State Government however sent a telegram (Ex 2) to the Administrator of the Board to stop the realisation of the octroi until further orders. The Administrator made various representations to the State Government against that telegraphic order. Fresh elections were held and the Chairman of the new Board (which bad a non-congress majority) pressed for the levy of octroi, in view of the deteriorating financial condition of the Board, and forwarded a copy of the resolution of the Board dated November 5, 1974 in support of his request. The State Government thereupon sent letter Ex. 3 dated November 22, 1974 canceling its telegraphic direction of January 15, 1974 and ordering the relevy of octroi. The Executive Officer therefore if sued notification Ex. 4 dated December 2,1274 for the relevy of octroi which effect from December 3, 1974. But letter Ex 5 dated January 6, 1975 was received by the Board on January 9, 1975 by which compliance with the earlier order Ex. 3 was stayed until further orders. The Board then filed the aforesaid writ petition challenging the order of the State Government.

3. The State did not file a reply, but an application was made by the appellants in appeal No, 66 of 1975, who are merchants and traders of Sheoganj, for being impleaded as respondents, and they were ordered to be heard as interveners by an order of the learned Single Judge, Meanwhile the State Government issued notification Ex. 19 dated February 22, 1975 by which the earlier notification Ex. 1 dated April 5, 1973 for the levy of octroi was rescinded with effect from the date of its publication in 'he official Gazette. The writ petition was accordingly amended so as to include a prayer for quashing notification Ex. 19 also.

4. These facts are not in dispute before us. The controversy is about validity of the aforesaid notification Ex. 19 dated February 22, 1975 The learned Single Judge has taken the view, inter alia, that after the issue of the State; Government's notification under Section 104 of the Act to levy octroi.' it is the Board which is seized of the matter and except by virtue of the power prescribed under the proviso to Section 104 and Sub-section (5) of Section 107, the Government has no jurisdiction to interferes with the realisation of the tax.' He has held that 'once the Government has issued a notification under Section 104, it is under obligation not to interfere with the right of the Board to realise the tax subject to the condition contained in the Ace itself'. The learned Single Judge has examined the power of rescission contained in Section 21 of the General Clauses Act and has held that 'to concede such a power to the Government under Section 21 of the G.C. Act would be inconsistent and repugnant to the scheme rd the relevant provisions of the Act.' He has accordingly allowed the writ petition as aforesaid.

5. It has been argued by the learned Counsel for the appellants that under Section 23 of the Rajasthan General Clauses Act the State Government had the right to rescind notification Ex. 1 dated April 5, 1973 and that the learned Single Judge has erred in holding otherwise.

6. The disputed notification Ex. 19 dated February 22, 1975 read as follow-

S.O. 274. In exercise of the powers conferred by Section 104 of the Rajasthan Municipalities (Act, 1959 Act No. 38 of 1959) read with Section 23 of the Rajasthan General Clauses Act, 1955 (Act No. 8 of 1955) the Sate Government hereby rescinds this Department Notification No. Tax/F. 3(12) LSG/73 dated the 5-4-1973 recording levy of octroi duly by the Municipal Board, Sheoganj, with effect from the date of its publication in the official Gazette.

The notification has thus been issued in exercise of the powers conferred by Section 104 of the Act read with Section 23 of the Rajasthan General Clauses Act. We have examined both these sections.

7. The relevant provisions of Section 104 of the Act are as follows,-

104. Obligatory taxes. - Every board shall levy, at such rate and from such date as the State Government may in each case direct by notification in the official Gazette and in such manner as is laid down in this Act and as may be provided in the rules made by the State Government in this behalf, the following taxes, namely:

(1) ...(2)an octroi on goods and animals brought within the limits of the municipality for consumption, use or sale therein: and

(3) ...Provided that -.Provided further that, upon a representation made to it by and at the request of a Board, the State Government, if it satisfied that circumstances exist which sufficiently provide the justification for a Board cot to levy, or to stop the levy of, any of the taxes mentioned in this section, made, by special order published in the official Gazette, along with the reasons for making such order, permit the Board not to levy, or to stop the levy of any such tax.

There is thus nothing in the section to confer the power of rescinding the levy of octroi On the other hand, the section casts a duty on the Board to levy octroi at the rate and from the date directed by the Government, and that duty can be avoided only if a representation is made by the Board to the State Government, along with a request, and the State Government is satisfied that circumstances exist which sufficiently provide the justification for the Board (1) not to levy or (ii) to stop the levy of that tax and the Government issue a special order, along with the reasons for making it, permitting the Board not to levy or to stop the levy of the tax. The section does rot thus, by itself, provide for rescission of the notification of the State Government directing the rate at which and the date from which the octroi is to be collected.

8. The notification (Ex. 19) however refers to the authority of Section 23 or the Rajasthan General Clauses Act, 1955 also, which has been read along with the aforesaid Section 104 of the Act to rescind the earlier notification Ex. 1 dated April 5, 1973 fixing the rate and the date for the levy of octroi. Section 23 reads as follows:

23 - Power to make or issue to include power to add to, amend, vary or rescind orders, etc. - Where, by any Rajasthan law, a power to make or issue orders, rules, regulations, schemes, forms, bye laws or notifications is conferred, then that power includes a power exercisable in the like manner and subject to the like sanction and conditions, (it any), to add to, amend, vary or rescind, any orders, rules, regulations, schemes, forms, bye laws or notification so made or issued.

The question is how far the above Section 23 could be applicable to the prevision 104 of the Act? A cross-reference to Section 4 of the Rajasthan General Clauses Act, 1955, shows that the provisions of that Act shall apply, inter alia, to all Rajasthan laws and to rules, regulations and bye laws thereunder made on or after the first day of November, 1956, 'unless otherwise requires.' The application of Section 23 of the Rajasthan General Clauses Act is thus dependent on two conditions : (i) the absence of any express provision to the contrary in the Rajasthan law concerned, and (ii) the absence of any contrary requirement of the context.

9 It may also be mentioned that while considering the applicability of Section 21 of the General Clauses Act, 1897, which is similar to Section 23 of the Rajasthan General Clauses Act, 1955, their Lordships of the Supreme Court have laid down the law as follows in State of Bihar v D.N. Ganguly and Ors. AIR 1958 SC 1018 with reference to the provisions of Section 10(1) of the Industrial Disputes Act, 1947,-

It is well settled that this section embodies a rule of construction and the question whether or not it applies to the provisions of a particular statute would depend on the subject-matter, context, and the effect, of the relevant at revisions of the said statute. In other words it would be necessary to examine carefully the scheme of the Act, its object and all its relevant and material provisions before deciding whether by the application of the rule of construction enunciated by sec 21, the appellant's contention is justified that the power to cancel the reference made under Section 10(1) can be said to vest in appropriate Government by necessary implication. If we come to the conclusion that the context and effect of the relevant provisions is repugnant to the application of the said rule of construction, the appellant would not be entitled to invoke the assistance of the said section.

10. We shall therefore proceed to examine the object of the Act, its scheme and ell its relevant and material provisions for the purpose of examining the controversy before us.

11. As examination of the various provisions of the Act shows that the object of the Act is the Act is the establishment of local self-Government, in the form of Municipalities, in the Slate of Rajasthan, and to crate and establish these self governing bodies with the necessary machinery, administrative set up and the financial resources to vital to their existence. It cannot be the object of the Act to stifle or destroy the Municipalities by stripping them of the financial and other resources and the power to raise and constitute their funds by the levy of the taxes within their legal competence. It is for the purpose of fulfil ling this object that the Act has made provision for an otori in the elaborate and integrated scheme of local self Government within Municipal limits.

12. This Chapter II of the Act deals with the constitution and Government of Municipalities, Chapter V with the Municipal property and fund Chapter VI with the primary and secondary functions of Boards, while Chapters VII deals with the imposition of taxes, and Chapter VIII deals with the recovery of Municipal claims Section 104 finds a place in Chapter VII which provides for the imposition of certain obligatory taxes which have necessarily to be levied by a municipality. Section 105 deals with the other taxes which a Municipality may impose but the imposition and levy of which is cot obligatory. It will be recalled that it is the State Government which fixes the rate and the date for obligatory taxes like octroi and this so because the levy of the tax has been considered to be the life blood of the Municipality, without which it might starve and perish.

13. As has been stated, Section 104 of the Act provides, inter alia, for the levy of octroi and, as has been urged by the learned Counsel for the parties, it appears to be a self-contained section. Its second proviso no doubt provides, inter alia, for the non-levy of octroi at the inception, or for its stoppage thereafter, but that is permissible only under a special order of the State Government upon a representation and request of the Board, and not otherwise. It is significant that there is no express provision in Section 104, or elsewhere in the Act, authorising die State government to rescind its notification fixing the rate and the dare for the levy of octroi or any other obligatory tax. In view of this scheme of the Act we have no doubt that it would not be permissible for the State Government to invoke Section 23 of the Rajasthan General Clauses Act and to rescind the notification fixing the rate and the date for the levy of octroi, for that would run counter to the object and the scheme of the Act and all its relevant and material provisions. We have therefore no doubt that as there is express provision to the contrary in Section 104 of the Act, and as the context otherwise requires the general power of rescission provided in Section 23 of the Rajasthan General Clauses Act, 1955, cannot be invoked by the State Government to caned or wipe off the notification issued by it under Section 104(1) of the Act directing the rate and the date for the levy of octroi.

14. It is true that the aforesaid Section 23 gives also the power to add to amend and vary any order, rule or notification etc. which may have been made or issued, and it may become necessary invoke one or the other of these powers, as occasion may arise, in respect of the State Government's notification under Section 104(1) of the Act, and it is also true that no such power of adding to, amending or varying the notification can be found in the Act so that recourse to Section 23 may become inevitable, but that would be permissible as it would be consistent with the provisions of the Act. It would not, however, be permissible to invoke the power given by Section 23 of the Rajasthan General Clauses Act to 'rescind' the notification which has been issued under Section 104(1) of the Act for, as has been shown, that would be against the very object and the scheme of the Act and its relevant and material provisions.

15. It would thus appear that it was not permissible for the State Government to invoke Section 23 of the Rajasthan General Causes Act, 1955 and to read Section 104 of the Act with reference to it for the purpose of rescinding notification Ex. 1 dated April 5, 1973. And the learned Counsel for the app Hants bas not found it possible to refer to any other provision of law under which the notification could have been rescinded. There is therefore no reason for us to interfere with the view of the learned Single Judge that notification Ex. 19 is invalid and should be set aside.

16. Mr. Parekh, learned Counsel for the appellants in special appeal No 66 of 1975, has however argued, on the authority of Kutoor Vengayil Rayarappan Nayanar v. Kutoor Vengayil Valia Madhvi Amma and Ors AIR 1950 FC 140, that it is a well understood rule of general law that the power to terminate flows naturally and as a necessary sequence from the power to create, and that Section 16 of the General Clauses Act, 1897, (of which Section 18 is the counter part in the Rajasthan General Clauses Act) merely codifies that rule. The argument is however futile because, contrary to the facts of that case, there is no question of removing or dismissing any person in the case before us. So also, State of Madhya Pradesh and Ors. v Vishnu Prasad Sharma and Ors. : [1966]3SCR557 , on which reliance has been placed by he learned Counsel for his argument that notification Ex. 1 dated April 6, 1973 could be cancelled by notification Ex 19 dated February 22, 1975 under Section 23 of the General Clauses Act, cannot avail the appellants because that was quite a different case. In fact it came up for consideration before their Lordships of the Supreme Court in Lt. Governor of Himachal Pardesh and Anr. v. Sri Avinash Sharma : [1971]1SCR413 and it was clarified by then Lordships that it was implicit in the observation in Vishnu Prased Sharma's case AIR 1966 SC 1593 that after possession had been taken pursuant to a notification under Section 17(1) of the Land Acquisition Act, 1894, the land vested in the Government, and the notification under Section 4 could not be cancelled Under Section 21 of the General Causes Act, nor could the notification be withdrawn in exercise of the powers under Section 48 of the Land Acquisition Act. It was specifically observed that 'any other view would enable the State Government to circumvent the specific provision by relying upon a general power.'

17. It has however been further argued by Mr. Parekh that, as has been held in Johari Mal and Ors. v. State of Rajasthan and Anr. , octroi was a tax which was imposed by the S ate Government in its own right and not on behalf of the Board far the Board had according to the decision in Chhaganlal v State of Rajasthan 1964 RLW 494, only the right to collect the tax so that it bad no say in the matter of its imposition or withdrawal. The argument is, however, of no consequence because, as has been show the impugned notification Ex. 19 reminding the notification for the imposition of the tax is invalid. Reference has also been made by Mr. Parekh to Sampat Prakash v. State of Jammu and Kashmir and Anr. : [1969]2SCR365 for the proposition that when fee President can in exercise of the powers under Article 370(1) of the Constitution, make orders from time to time, and the power to modify in Clause (d) of Article 370(1) includes the power to subsequently vary, alter, add to or rescind such an order because Article 367 makes Section 21 of the General Clauses Act applicable for the purpose of interpreting the Constitution, there is no reason why it should not be permissible for the State Government to rescind notification Ex. 1 dated April 6, 1973 by inv king Section 23 of the Rajasthan General Clauses Act. We need nor, however, re-examine this contention of Mr. Parekh for, as has been shown, it was not permissible to exercise the power of rescission under Section 23 of the Rajasthan General Clause Act in the fact and circumstances of this case. So also, Mohd. Yunus Saleem v. Shivkumar Shastri and Ors. AIR 1974 SC 1218 was a different case because it was permissible in that case to alter the date of the notification by reading Section 21 of the General Clauses Act along with the appropriate provision of the special law. Much the same is the position in regard to Ranchhod Zina v. Patankar and Anr. : AIR1966Guj248 on which also reliance has been placed by Mr. Parekh. There is thus no force in the argument which Mr. Parekh has advanced against the view which has prevailed with us in regard to the invalidity of the impugn: d notification Ex. 19 dated February 22, 1975.

18. It may be mentioned that Mr. Parekh tried to raise the argument that as the Municipal board had no right to impose or collect octroi, no legal right has been infringed by the impugned notification Ex. 1 dated April 5, 1973, and it is not entitled to apply for a writ of the nature prayed for is the petition. Our attention has in this connection been invited to State of Orissa v. Ram Chandra Dev : AIR1964SC685 . It will be a sufficient answer to this argument for us to say that after the issue of the State Government's aforesaid notification (Ex.1; fixing the rate and the date for the levy of octroi, the Board was entitled to collect the tax, and could justifiably apply for a writ in its right to do so, was denied by an illegal order or notification. Ram Chandra Dev's case : AIR1964SC685 was a case of a grant which was resumable under its terms, and that was why it was held that that the grantee was not entitled to a writ to protect his mere right of possession. There is thus no force in this argument also

19. Faced with the prospect of the dismissal of his appeal on the merits, Mr. Parekh has argued, in the end, that as the Board did not state on the writ petition that it had itself passed resolution Ex. A on July 19, 1973 for not levying octroi, and in fact concealed that fact from the Court, its conduct has been such as to disentitle it to any relief in the exercise of this Court's extraordinary jurisdiction Reliance for this argument has been placed on M. Haji Mohammed Ismail Sahib and Co. Tanners, Pernambut, North Arcot District v. Deputy Commercial Tax Officer Gudyatharn, North Arcot District AIR 1970 Mad. 422. We find that the argument wan raised before the learned Single Judge, but was rejected We are also inclined to take the same view, although for somewhat different reasons. Firstly, resolution Ex. A was to the effect that octroi should not be levied. It was therefore quite meaningless, for the tax had already been levied under Section 104 of the Act by notification Ex, 1 dated April 5, 1973. Secondly, there is the further fact that the Board bad passed another resolution (Ex. 14) dated November P, 1974 for the continued levy of octroi and that resolution was before the Sate Government well before it passed the impugned notification Ex 19 dated February 22, 1975 rescinding its earlier notification Ex. 1 dated April 5, 1973 The alleged concealment is therefore quite immaterial.

20. There is thus no force in the appeals and we have no hesitation in dismissing them with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //