2014 Supreme(Bom) 2274

IN THE HIGH COURT OF BOMBAY AT NAGPUR BENCH
A.B. Chaudhari and P.R. Bora, JJ.
Sandeep Inderchand Gandhi – Appellant
Vs.
The State of Maharashtra – Respondent
Writ Petition No. 2585 of 2013
Decided On: 12.12.2014

Headnote:Constitution of India - Articles 14 and 226 Maharashtra Municipal Councils, Nagar Panchayats & Industrial Township Act, 1965, Section 169 Writ petition. - Availability of efficacious alternate remedy of appeal under Section 169 of Act is not a bar for entertaining writ petition raising issues of violation of Act and violation of Article 14 of Constitution. Article 265 of the Constitution reads thus :

       "265. Taxes not to be imposed save by authority of law. No tax shall be levied or collected except by authority of law."

       As held, in the case of Municipal Council, Khurai and another v. Kamal Kumar and another, 1965 Mh LJ 225, Court found that the procedure for imposing the liability to pay a tax has to be strictly complied with. Where it is not so complied with, the liability to pay the tax cannot be said to be according to law. That apart, reading of the appellate provision under Section 169 of the Act does not at all encompass the legal challenges raised in the instant writ petition, on the ground that the action impugned is contrary to the various provisions of the Act and that the same is also in violation of Article 14 of the Constitution.

       Constitution of India - Article 226 Maharashtra Municipal Councils, Nagar Panchayats & Industrial Township Act, 1965, Section 119 Writ petition. Writ petition filed in May 2013 alleging infraction of provisions of Act in Municipal Council happened in October 2012, not suffers from any delay and laches.

       Maharashtra Municipal Councils, Nagar Panchayats and Industrial Township Act, 1965 - Sections 49-A (as amended in 1994), 77, 105 and 115 Imposition of compulsory taxes. - For taking a decision to impose compulsory taxes contemporated by Section 105 of Act, appointment of any ’private agency’ would be illegal. - Constitution of India, Articles 226 and 265 there is a fine distinction which must be analyzed while reading these provisions for construing the provisions of Section 49-A and Section 105 of the Act. It is true that a Council has to impose as a part of its duty or obligation under Section 105 of the Act, compulsory taxes. The Council decided so and passed a resolution to impose compulsory taxes. Thereafter, chief Officer comes into picture, who is required to implement the resolution of the Council for imposition of compulsory taxes. Day-today responsibility to implement the resolutions of the Council is that of Chief Officer, namely the resolution passed by the Council as a part of its duty to decide to impose compulsory taxes. That is what is contemplated by Section 77(1)(b) of the Act. There is no power, duty or function of the Chief Officer anywhere in the Act to impose compulsory taxes contemplated by Section 105 of the Act, but that duty is imposed on the Council and not on the Chief Officer. In the instant case, really concerned with the power, function and duty of the Chief Officer for implementation of the resolution of the Municipal Council that was passed by virtue of Section 105 of the Act deciding to impose compulsory taxes. At any rate, it is plain that for taking a decision to impose compulsory taxes contemplated by Section 105 of the Act, no way, appointment of any agency would be required. Thus, we cannot accept the submission that Section 105 providing for a duty to impose compulsory taxes should be read with Section 49-A of the Act for appointing an agency.

       Perusal of sub-section (1) of Section 115 shows that even a tax on building or land, or both, is ’imposed’ [’imposed’ means imposed under Section 105 of the Act], the Chief Officer shall cause an assessment of list of all lands and buildings. Subsection (2) states that the Chief Officer or any other person acting under his authority may inspect buildings or lands. The assessment list thus, can be prepared by the Chief Officer or any person acting under his authority by making inspection. The question is who are the persons acting under his authority? Reading of Section 49-A permitting appointment of agency shows that the said provision does not empower, permit or allow the Chief Officer to outsource the said job by appointing any agency, because the said provision permits only a Council to do so and not the Chief Officer. To repeat, the words "Chief Officer" are not to be found in Section 49-A. Sub-section (2) of Section 77 also does not provide for or enable the Chief Officer to delegate the duties or functions to any other person than the Municipal officer or servant and the officers or servicemen contemplated by Section 76 of the Act. It is, thus, clear that the job of Preparation of Assessment List commences from Section 115 and the Chief Officer does not have an authority or power under the Act to appoint any agency to commence the process. Sections 118 and 119 of the Act then provide for publication of notice of assessment list and public notice of time fixed for lodging objections. Sections 120, 121 and 122 thereafter provide for a process to authenticate the list of assessment. To sum up, under the provisions of the Municipal Act, no agency could be appointed to undertake methodology and process for implementation of the decision to impose compulsory taxes.[1965 Mh LJ 225 Relied on].