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2003 Supreme(Bom) 86
IN THE HIGH COURT OF BOMBAY
Thakker C.K., C.J. Dr. Chandrachud D.Y., J.
Citizens Forum for Scientific. . Petitioner.
Development of Pimpri-Chinchwad
Versus
State of Maharashtra others.... Respondents.
Public Interest Litigation No. 31 of 2002, decided on 15/22-1-2003.
Advocates appeared :
Abhay S. Oka with Dilip Bodake, for petitioner.
P. Janardhanan, A.A.G. with V.P. Malvankar, A.G.P., for respondent No. 1.
D.R. More, for respondent Nos. 2 3.
Hitesh Jain i/b. Udwadia Udeshi Berjis, for respondent No. 4.
Headnote:Bombay Provincial Municipal Corporations Act, 1949 - Sections 36, 127, 149, 455 and 457 - Octroi Rules framed, sanctioned, ordered to be implemented - But had to be stayed due to declaration of election - After elections these were implemented once again - But again State Government stepped implementation - Validity of - Hence, once required procedure is followed then the State Government had no jurisdiction to suspend enforcement of rules - State Government s action was not valid as per law. - So far as the first period is concerned, it was stated by the State that there were elections to the Corporations and under the Code of Conduct the rules could not be implemented. No provision, however, was brought to notice by the Assistant Government Pleader as to how code of conduct would prevent enforcement of Rules which were framed in accordance with the provisions of the Act. once the rules were sanctioned by the State Government, a notification was issued and the time after which they were to come into force was over, the State government could not prevent or prohibit enforcement of rules on the ground that election was to take place and under the code of conduct, octroi rules could not be enforced. Hence, the said action was clearly illegal and outside the purview of the Act. Since it was not within the power of the State Government, octroi ought to have been imposed and collected by the corporation under the new rules. Regarding the second stage, no written order at all has been brought on record. The petitioner has stated that there was a telephonic message from the State Government directing the Commissioner of the respondent- Corporation not to collect octroi under the new rules. The said assertion has not been controverted by the State Government, though an affidavit in reply is filed. On the contrary, in the affidavit in reply, the action is sought to be justified on the ground that some representations were made. However, when the draft rules were approved by the State Government and one month after which they were to bring into force was over, no power had been left with the State and no direction could be issued to the Corporation not to enforce the rules. It is further stated in the affidavit that after the State Government was satisfied that the octroi rules were proper, legal and valid, vide a letter dated 7th May, 2002, the Commissioner of the respondent- Corporation
was permitted to collect octroi under the new rules. The fact, however, remains that from 17th February, 2002 to 7th May, 2002, octroi could not be collected under the new rules and it was only with effect from 8th May, 2002 that octroi could be recovered under the new rules. Thus, even for that period, the action on the part of the State Government could not be said to be legal and valid. No provision has been shown under which such power was exercised by the State Government. The petition deserves to be allowed and is accordingly allowed by declaring that the action of respondent No. 1 State in directing respondent Nos. 2 and 3, Municipal Corporation and Commissioner, not to collect octroi under the new rules after the new rules came into force from January 6, 2002, was illegal, ultra vires and without authority of law
2. In the facts and circumstances, matter was taken up for final hearing.
3. This petition is filed by the petitioner as a public interest litigation for an appropriate writ, direction or order to the State of Maharashtra, respondent No. 1, as also respondent No. 3, Pimpri-Chinchwad Municipal Corporation, to implement Pimpri-Chinchwad Municipal Corporation (Octroi) Rules, 2001, with effect from January 6, 2002, i.e. from the date they ought to have been implemented in accordance with law.
4. The petitioner is a trust registered under the Public Trusts Act, 1950. It is also registered under the Societies Registration Act, 1860. The aim and object of the trust is to make awareness of social justice and to solve problems in the society.
5. The case of the petitioner is that there is a Municipal Corporation known as Pimpri-Chinchwad Municipal Corporation, respondent No. 3, constituted and established under section 5 of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as "the Act"). The Commissioner, respondent No. 2, is administrative head of the Corporation appointed by the State of Maharashtra, respondent No. 1, under section 36 of the Act and is performing his functions, exercising his powers and discharging his duties in accordance with law. According to the petitioner, the Corporation is empowered to impose taxes under the Act. Section 127 of the Act enables the corporation to impose certain taxes which, inter alia, includes "octroi". Section 149 of the Act lays down procedure to be followed in levying such taxes. Section 457 of the Act allows Corporation to frame Rules. The respondent-Corporation, in pursuance of the above power conferred by the statute, framed Rules known as Pimpri-Chinchwad Corporation (Octroi) Rules, 2001 (hereinafter referred to as "the Rules"), in 1995 after following complete procedure. The draft Rules were then sent to the State Government for approval. The State Government in exercise of powers conferred by sub-section (1) of section 149 read with Clause (a) of sub-section (2) of section 127, sub-section (2) of section 455 and sub-clause (c) of Clause (7) of section 457 of the Act granted necessary sanction to the Rules. It, however, appears that those Rules were not published in the Government Gazette within the prescribed time limit and hence, they could not be brought into force. The Corporation, therefore, again submitted draft Rules for sanction to the respondent-State on January 29, 2001. The State Government granted necessary sanction/approval on 29th November, 2001. The Rules were published in the Official Gazette on 6th December, 2001, as provided by section 149 of the Act and they were ordered to be implemented with effect from 6th January, 2002 i.e. after one month of the publication in the Official Gazette.
6. The case of the petitioner before this Court is that though the Rules were framed by the respondent-Corporation in accordance with law and after following the procedure laid down in the Act and the draft Rules were duly sanctioned/approved by the State Government and a notification was issued in the name of the Governor of Maharashtra and was duly published in the Official Gazette on 6th December, 2001 stating therein that they will be implemented after one month of the publication in the Official Gazette i.e. from 6th January, 2002, the new Rules were not implemented and enforced. The petitioner has stated that the State Government had granted stay against implementation of the Rules on the ground that general elections of Municipal Corporation were to be held in February, 2002 and under the code of condu
