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Merta Oil Mills Co. Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 3089 of 1974
Judge
Reported in1982WLN(UC)188
AppellantMerta Oil Mills Co.
RespondentState of Rajasthan and ors.
DispositionPetition allowed
Cases ReferredAbdul Gani v. The Administrator Municipal Board
Excerpt:
rajasthan municipalities act, 1959, - section 90--bye-laws-publication of draft--notice pasted but draft of proposed byelaws not pasted--held, it is not sufficient publication--bye laws are null & void being in violation of mandatory provisions.;the endorsement in the said notice (annex. 3) only speaks about pasting of the notice but the endorsement does no show that the draft bye-laws was also pasted along with the notice. in these circumstances it is not possible to hold that the proposed bye-laws were pasted along with the notice as the notice board outside the office of the municipal board and at two conspicuous public places and it must be held that there was no publication of the proposed bye-laws. the mere publication of the notice with regard to the proposed bye-laws cannot be..........to show that any order has been passed by the municipal board under section 235 of the act and the only question which arises for consideration is with regard to the validity of the bye-laws.11. in the result, the writ petition is allowed and the bye-laws of the municipal board published under notification dated december, 30, 1973 in the rajasthan raj patra dated july 4, 1974 are quashed. taking into consideration the facts and circumstances of the case, the parties are left to bear their own costs in this writ petition.
Judgment:

S.C. Agrawal, J.

1. This writ petition involves the question as to the validity of the bye-laws known as Nagarpalika Merta (Laghu Yantralaya Niyantran) Up Niyam, 1973 (hereinafter referred to as 'the Bye-laws') framed by the Municipal Board, Merta City.

2. The Municipal Board Merta City (hereinafter referred to as 'the Muncipal Board') is a Municipality governed by the provisions of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as 'the Act'). Section 90 of the Act empowers the Municipality to make bye-laws. Sub-section (1) enumerates the matters in respect of which bye-laws may be made. Sub-section (2) requires that every Municipal board before making any bye-laws under Section 90 shall publish in such manner as shall in its opinion be sufficient for the information of persons likely to be effected thereby, a draft of the proposed bye-laws together with a notice specifying a date on or after which the draft will be taken into consideration and shall before making the bye-laws, receive and consider any objections or suggestions with respect to the draft which may be made in writing by any person before the date so specified. Sub-section (3) lays down that no bye-law made by a Municipal Board shall take effect unless it is sanctioned by the State Government. In Sub-section (4) it is provided that when any bye-law made by a Municipal Board is submitted to the State Government for sanction, a copy of the notice published under Section (2) and a copy of every objection of suggestion made there-to, has also to be submitted for the information of the State Government alongwith the said bye-law. The Administrative Sub Committee of the Municipal Board, at its meeting held on September 30, 1972 framed the bye laws for the purpose of regulating small industries. The bye-laws as framed by the Administrative Sub-Committee were considered by the Municipal Board at its meeting held on October 28, 1972 and the municipal board passed a resolution whereby it was directed that the bye-laws framed by the Administrative Sub Committee should be sent to the State Government for its approval. The case of the Municipal Board is that after the aforesaid resolution dated October 28, 1972 had been passed the Chairman of the Municipal Board directed that a notice be issued inviting objections from the general public against the bye-laws and there upon a notice was issued on November 4, 1972 inviting objections and suggestions from the general public and that the said notice was pasted on the notice board at the office of the Municipal Board and two other conspicuous public places, i.e. at Gandhi Chowk and at the Chowk of main Bazar of Merta city market On December 25, J 972 the Chairman of the Municipal Board sent the bye-laws to the Director of Local Bodies, Rajasthan, Jaipur for obtaining the sanction of the Government. The Director of Local Bodies addressed a communication to the Chairman of the Municipal Board whereby he pointed out certain deficiencies and asked the Chairman to make good the said deficiencies. One of the deficiencies pointed out in the said communication was that the copy of the notice had been not sent. By his letter dated August 11, 1973, the Chairman of the Municipal Board sent copies of the documents which were asked for in the letter of the Director of Local bodies, including the copy of the notice dated November 4, 1972. Thereafter the State Government gave its sanction to the bye-laws and the same were published in the Rajasthan Gazette dated July 4, 1974. Being aggrieved by the aforesaid bye-laws, the petitioner, who carries on the business of manufacturing edible oils in Merta City, has filed this writ petition wherein he has prayed that a writ of mandamus, certiorari or any other writ or direction be issued to quash the bye-law.

3. I have heard Shri Rajendra Mehta, learned Counsel for the petitioner and Shri H. N. Calla, learned Additional Government Advocate.

4. Shri Mehta has urged the following contentions in support of the writ petition:

(1) Under Sub-section (2) of section 90 of the Act it was obligatory for the Municipal Board to publish the draft of the proposed bye-laws for the information of the persons likely to be affected thereby and that in the present case the draft of the bye-laws was never published by the Municipal Board before the same was sent to the State Government for its sanction.

(2) Even if it be found that the draft of the bye-laws had been published by the Municipal Board before the same was sent for sanction of the State Government, the said publication was only after the said bye-laws had been adopted by the Municipal Board by its resolution dated October 28, 1972 and that there was no consideration of the bye-laws by the Municipal Board after the same had been published.

(3) The provisions with regard to imposition of licence fee Rs. @ 5/- per horse power per year contained in bye-law No. 5 amounts to a tax and not a fee and is ultra vires the power conferred on the Municipal Board under the Act.(4) Clauses (8) (9) and (11) of the bye-laws No. 7 read with bye-law No. 10 are ultra vires the powers conferred on the Municipal Board under Sub-section (1) of section 90 of the Act.

5. In support of his first contention Shri Mehta has pointed out that under Sub-section (1) of Section 90 a mandatory duty has been cast on the Municipal Board to publish a draft of the proposed bye-laws for the information of the persons likely to be affected thereby and the Board is required to take into consideration the objections or suggestions that are received by it with respect of the said draft of the proposed bye-laws. According to Shri Mehta the a foresaid obligation to publish the draft of the the proposed bye-laws must be discharged before the Municipal Board considers proposed bye-laws. In support of his contention Shri Mehta has placed reliance on the decision of this Court in Mai Chand v. State of Rajasthan 1955 RLW 442 and Gaurishankar v. The Municipal Board, Jhunjhnu .

6. In Mai Chand v. State of Rajasthan (supra) a Division Bench of this Court was dealing with the provisions contained in Section 46 (2) of the Rajasthan Town Municipalities Act, 1951 with regard to making of bye-laws. The provisions contained in section 46 (2) of the Rajasthan Town Municipalities Act were in para materia with those contained in Sub-section (2) of Section 90 of the Act. In the aforesaid case the learned judges pointed out the distinction between the procedure which was prescribed in section 60 (B) of the Rajasthan Town Municipalities Act, 1951 for the framing of rules and the procedure that was prescribed in section 46 (2) of the Act for framing bye-laws and have observed:

Further, there is a slight difference between Section 60 and Section 46, Section 60 says that the Municipal Board shall by resolution select a tax and prepare rules and thereafter publish them with a notice. In the case of rules therefore the Municipal Board adopts the rules & then publishes them, and if there are any objections it considers them and then forwards the objections with its opinion to the Government. Under Section 46, however, a draft of the proposed bye laws is to be published. Therefore, the bye-law is not adopted till it is published. The Municipal Board then considers objections to the draft, and then adopts the bye-laws after considering such objections. But in both the cases publication is essential.

In that case the Municipal Board Sardarshahar had published a notice in which it was said that Municipal Board Sardarshar has passed certain rules and bye-laws and the said rules and bye-laws would come into force on 1st April, 1954 and that if anybody had any objection to make he should do within one month of the notice. The said notice contained a note to the effect that the rules were available in the office of the Muncipality and the members of the public were entitled to see them on any date between 10 a.m. to 4.30 p.m. except on closed holidays and the said notice was pasted on the notice board of not Municipal Board Sardarshahar and one notice was also displayed at some cross road, but the rules and bye-laws were not displayed either at the notice board or at the cross road. This Court held that the aforesaid publication was not a publication of the draft bye-laws as required by law and have observed:

We feel that a notice to the effect that the rules or draft bye-laws can be seen at the office of the Municipality during working hours on working days is no publication as required by law. In the place, the working hours being 10 A.M. to 4.30 P.M. at which most persons are themselves busy, it will require a special effort on the part of anybody to leave his own business and go to the municipal office between these hours to see the rules. In the second place there cannot be the same facility for looking at the rules if one has to go the Municipal office and ask some clerk in charge of the rules to show them, ft is not impossible that the clerk may be busy, and may keep the person who wants to see the rules waiting so much so that he might go away in disgust. On the other hand, if the rules and draft bye-laws were published in the same manner in which the notice has been published in this case, namely by being put up at some crossroad, anybody could go at any time and read the rules on draft bye-laws without having to ask any clerk and no body would be put to the inconvenience of leaving his own work from 10. A.M. to 4.30 P.M. in order to see the rules or draft bye-laws. Anybody could go at his own leisure and see the Municipal notice board which we believe must be kept outside in the verandah or the place at the cross- road where the notice was pasted.

In Gauri Shankar v. Municipal Board, Jhunjhunu (supra) the rules and bye-laws were prepared at the meeting of Municipal Board Jhunjhunu held on 29th December, 1952 and the same were published with a notice in the form prescribed in the third schedule to the Rajasthan Town Municipalities Act, 1951. In response to the said notice, objections were received regarding the proposed rules and bye-laws and they were considered by the Municipal Board Jhunjhunu at its general meeting held on 19th February, 1953 and thereafter the Board submitted the rules and bye laws and the modifications proposed together with the notice to the Government. The rules and bye-laws were sanctioned by the Government and thereafter the same were published along with a notice on the notice board out side the office of the Board on 29th May, 1953 and in the notice the date 1st July, 1953 was specified to be the date of imposition of the tax. This Court held that the impugned notification contained rules framed under Section 44 of the Rajasthan Town Municipalities Act, 1951 as well as the bye-laws framed under Section 46 of the said Act. While dealing with the validity of the bye-laws contained in the impugned rules a Division Beach of this Court held as under;

It is also necessary that a draft of the bye-laws should be published in the manner required by Section 46 (2) and objections are to be taken into consideration after the publication and before the making of the bye-laws. In the present case Ex. 1 was published under Section 60 (b) after it had been prepared and its draft was never published before the making of the bye-laws as required by Section 46(2). That portion of Ex. 1 therefore, which amounts to bye-laws cannot be enforced.

Since the provisions of Sub-section (2) of section 90 of the Act are in para materia with the provisions contained in Sub-section (2) of Section 56 of the Raj Town Municipalities Act, 1951, the aforesaid decisions in Malchand v. State of Rajasthan (supra) & Gaurishankar v. The Municipal Board, Jhunjhunu (supra) would be applicable to sub. section (2) of Section 90 of the Act and in view of the aforesaid decisions it must be held that (1; it is incumbent upon a Municipal Board to publish the draft of the proposed bye-laws for the information of persons likely to be affected there by, (ii) the aforesaid publication of the d aft of the proposed bye-laws should be done before a Municipal Board adopts the bye-laws and (iii) after the publication of the draft of the proposed bye-laws it is necessary for a Municipal Board to consider the said bye-laws in the light of the objections or suggestions which may be received in response to the publication of the draft of the bye-laws. In the present case the submission of Mr. Mehta was that the draft of the bye-laws was never published by the Municipal Board and, therefore, the petitioner and other persons who were adversely affected by the said bye-laws had no opportunity of submitting their objections. In this regard Sari Mehta has disputed the authenticity of the notice that it said to have been issued by the Municipal Board on 4th November 1972, which is said to have been published on 5th November, 1972. The submission of Shri Mehta was that no such notice had been issued and the said notice had been subsequently prepared to justify compliance with the provisions of Sub-section (2) of section 90 of the Act. In support of his aforesaid submission Shri Mehta has placed reliance on the letter (Ex. R. 1) dated 25th December, 82 addressed by the Chairman of the Municipal Board to the Director of Local Bodies, Rajasthan whereby the bye-laws, as approved by the Municipal Board at its meeting held on 28th Oct. 1972 was sent for obtaining the sanction of the State Government. Shri Mehta has submitted that in the aforesaid letter there is no mention of the fact that the bye-laws had been published by the Municipal Board and that objections against the same were invited but no objections were received inspite of publication. Shri Mehta submits that if the bye-laws has been published in accordance with notice dated 4th November 1972, a reference would have certainly been made to the said publication in the aforesaid letter dated 25th December, 1972 and a copy of the notice would also have been sent along with the bye-laws as is required under Sub-section (4) of section 90 of the Act. I am unable to accept the aforesaid contention of Mr. Mehta. In the reply that has been filed on behalf of the Municipal Board it has been asserted that after the Board had passed the resolution dated 28th October, 1972 the Executive Officer Municipal Board of Merta City under the orders of the Chairman of the Board had issued a notice on 4th November, 1972 inviting objections or suggestions from the public and the said notice along with the copies of the draft bye-laws was pasted on the notice board of the Municipal Board and also at two other conspicuous public places, viz., at Gandhi chowk and at the chowk of the main Bazar and in the office of the Municipal Board. This is borne out by the endorsement nude at the Bottom of the notice. In view of the aforesaid reply that has been filed on behalf of Municipal Board which finds corroboration from the endorsement contained in the copy of the notice (annex 3), I find no reason to doubt the correctness of the assertion made in the reply that a notice was issued on 4th November, 1972 with regard to publication of the bye-law* that had been adopted by the Municipal Board on 28th October, 1972 and the said notice was duly published on 5th November, 1972 and I am unable to accept the contention of Shri Mehta that the said notice was subsequenty prepared to justify compliance with the provisions of Sub-section (2) of Section 90.

7. Shri Mehta has next submitted that even if it be held that the notice dated 4th November 1972 was issued and was published, there is nothing to show that the proposed bye-laws were also published alongwith the notice and were pasted on the notice board of the Municipal Board office and two other conspicuous public places. In this regard Shri Mehta has pointed out that in the endorsement made by Chhoturam on the notice (annex. 1), all that has been stated is that the notice had been pasted at the places mentioned therein and the said endorsement does not show that the copies of the bye laws were also pasted alongwith the notice. It is true that in the reply that has been tiled on behalf of the Municipal Board it has been asserted in para 7 as well as in para 8 that the notice along with the copy of the draft bye-laws was pasted at the notice board of Municipal Board and also at two other conspicuous public places. The aforesaid averments contained in paras 7 and 8 of the reply have been verified in the affidavit of Shri Mishridutt Vyas on the basis of official record. Shri Calla was unable to produce the original record and has placed reliance on the copy of the notice (Annex. 3). As already noticed, the endorsement in the said notice (annex. 3) only speaks about pasting of the notice but the endorsement does no show that the draft bye-laws was also pasted along with the notice. In these circumstances it is not possible to hold that the proposed bye-laws were pasted along with the notice at the notice board outside the office of the Municipal Board and at two conspicuous public places and it must be held that there wis no publication of the proposed bye-laws, The mere publication of the notice with regard to the proposed bye-laws cannot be regarded as sufficient publication in view of the decision of this court in Malchand's case (supra). Once it is held that there has been no publication of the proposed bye-laws before the same were sent for sanction of the State Government, it necessarily follows that there has been non-compliance with the mandatory provisions of Sub-Section (2) of section 90 and the bye-laws that have been promulgated have been framed in breach of the mandatory provisions of Sub-section (2) of Section 90 and, are therefore, null and vaid.

8. The submission of Shri Mehta is further that even if it be assumed that the proposed bye-laws were published along with the notice dated 4th November, 1972 the said publication is of no consequence in as much as the said publication was made after the Municipal Board had passed the resolution dated 28th October, 1972 adopting the said bye-laws. The submission of Shri Mehta was that under Sub-section (2) of section 90 it was necessary for the Municipal Board to have published the draft of the proposed bye-laws before the same were adopted by the Municipal Board and that was admittedly not done in the present case. Shri Calla has on the other hand, submitted that there has been substantial compliance of provisions of Sub-section (2) of section 90 in as much as the proposed bye-laws were published and objections were invited and if objections had been received the same would have been considered by the Municipal Board but since no objections were received against the proposed bye-laws there was no need for a fresh consideration of the proposed bye-laws by the Municipal Board before the same were sent to the State Government for its sanction. In my opinion the aforesaid contention of Shri Calla cannot be accepted in view of the decision of this Court in Malchand v. State (supra) and Gaurishankar v. Municipal Board Jhunjhunu (supra) which lay down that the publication of the draft of the proposed bye-laws should be done before the said bye-laws are adopted by a Municipal Board and that the scheme underlaying the provisions of Sub-section (2) of Section 90 of the Act is that draft of the proposed bye-laws should be considered after the same has been published and objections have been received. In this regard it may be pointed out that in Gaurishankar v. Municipal Board Jhunjhunu (supra) the bye-laws had been published after they had been adopted by the Municipal Board, Jhunjhunu and the objections that were submitted against the bye-laws were again considered by the Municipal Board Jhunjhunu and the said Municipal Board had forwarded the bye-laws along with the representations and the State Government had sanctioned the said bye-laws. This Court held that the bye-laws had not been prepared in accordance with the provisions of the Rajasthan Town Municipalities Act for the reason that the notice with regard to the proposed bye-laws was published after the bye-laws have been prepared and the draft had never been published before the making of the bye-laws as required under Section 46(2). The aforesaid decision of the Division Bench of this Court is binding on me and in view of the aforesaid decision it must be held that the procedure that was adopted by the Municipal Board in the present case was not in consonance with the requirements of Sub-section (2) of Section 90 of the Act and the bye-laws that have been framed by the Municipal Board cannot be upheld, and must be held to be null and void.

9. Since I am of the opinion that the second contention urged by Mr. Mehta must be accepted and the bye-laws are liable to be quashed on that ground, I do not consider it necessary to deal with the other contentions urged by Shri Mehta relating to validity of bye-law No. 5 and clause (8) (9) and (10) of bye-law No. 7 read with bye-law No. 10.

10. Shri Calla has referred to the decision of this Court in Abdul Gani v. The Administrator Municipal Board, Pali wherein it has been laid down that even in the absence of bye-laws framed under Section 90 the Municipality can exercise the powers conferred on it under Section 235 of the Act. Shri Calla has submitted that in view of the aforesaid decision even if the bye-laws framed by the Municipal Board are held to be void it would be open to the Municipal Board to pass appropriate orders under the Act. The aforesaid contention is of no relevance in the present case because there is nothing in record to show that any order has been passed by the Municipal Board under Section 235 of the Act and the only question which arises for consideration is with regard to the validity of the bye-laws.

11. In the result, the writ petition is allowed and the bye-laws of the Municipal Board published under notification dated December, 30, 1973 in the Rajasthan Raj Patra dated July 4, 1974 are quashed. Taking into consideration the facts and circumstances of the case, the parties are left to bear their own costs in this writ petition.


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