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High Court Of Rajasthan
Judgename : M.C.JAIN,J.R.CHOPRA
J.K.SYNTHETICS LTD - Appellant
Versus
MUNICIPAL BOARD OF NIMBAHERA - Respondent
Special Appeal 84 Of 1987
Decided On : 09/13/1989
MUNICIPALITIES ACT - NOTIFICATION - EXTENSION OF MUNICIPAL AREA - OBJECTIONS - CONSIDERATION - SUFFICIENCY OR INVALIDITY - OPINION - FORMATION - LEGISLATIVE CHARACTER - PRINCIPLES OF NATURAL JUSTICE - APPLICABILITY - CONDITIONAL LEGISLATION - SUB-SECTION (2) OF SECTION 6 - COMPLIANCE - SUB-SECTION (7) AND (8) OF SECTION 4 - INTERPRETATION - LEVY OF OCTROI - APPLICABILITY TO NEWLY INCLUDED AREA - VALIDITY.
Fact of the Case:
The appellant company challenged the notification dated 13-2-84 (Annx. 8) published in the Rajasthan Gazette dated 15-3-84 issued under S. 4 (1) (b), (c) and (d) of the Rajasthan Municipalities Act, 1950, whereby, the Municipal Area of the Nimbahera Municipality was extended. The petitioner sought a declaration that the said notification is illegal and without authority of law and be quashed and octroi realised by the Municipal Board, Nimbahera be ordered to be refunded and the Municipal Board be restrained from realising any octroi duty from the petitioner company.
Finding of the Court:
1. The notification under S. 4 is a conditional legislation and the principle of audi alteram partem will not be applicable to it but when the statute itself makes a provision, how the conditional legislation is to be made, then the statutory provision laying down the procedure for issuance of conditional legislation i. e. notification, has to be observed and observance of that procedure provided in the statute, if it is in conformity with the principles of natural justice is not made, then the notification is liable to be struck down on account of non-observance of the statutory provision itself. 2. The action of the State Government with regard to the exercise of power under S. 4 of the Act was of legislative character and principles of natural juistice would not be attracted. However, the power is required to be exercised in accordance with statutory provisions. 3. The State Government is only required to form its opinion about the insufficiency or invalidity of the objections. It is to be seen as to whether such an opinion has been formed or not. 4. The compliance of sub-section (2) of S. 6 has been made and notification under S. 4 has been issued after formation of the opinion that the objection have no merit. Thus notification under S. 4 is not liable to be struck down as contended by the learned Counsel for the appellant. 5. The old notification of 1972 Anx. 9, imposing the levy of octroi would not be applicable to the newly included local area. The Municipal Board, Nimbahera has no authority to levy octroi over the newly included local area.
Issues: 1. Whether the notification under S. 4 is a conditional legislation and the principle of audi alteram partem will not be applicable to it? 2. Whether the action of the State Government with regard to the exercise of power under S. 4 of the Act was of legislative character and principles of natural juistice would not be attracted? 3. Whether the State Government is only required to form its opinion about the insufficiency or invalidity of the objections? 4. Whether the compliance of sub-section (2) of S. 6 has been made and notification under S. 4 has been issued after formation of the opinion that the objection have no merit? 5. Whether the old notification of 1972 Anx. 9, imposing the levy of octroi would not be applicable to the newly included local area?
Ratio Decidendi: 1. The notification under S. 4 is a conditional legislation and the principle of audi alteram partem will not be applicable to it but when the statute itself makes a provision, how the conditional legislation is to be made, then the statutory provision laying down the procedure for issuance of conditional legislation i. e. notification, has to be observed and observance of that procedure provided in the statute, if it is in conformity with the principles of natural justice is not made, then the notification is liable to be struck down on account of non-observance of the statutory provision itself. 2. The action of the State Government with regard to the exercise of power under S. 4 of the Act was of legislative character and principles of natural juistice would not be attracted. However, the power is required to be exercised in accordance with statutory provisions. 3. The State Government is only required to form its opinion about the insufficiency or invalidity of the objections. It is to be seen as to whether such an opinion has been formed or not. 4. The compliance of sub-section (2) of S. 6 has been made and notification under S. 4 has been issued after formation of the opinion that the objection have no merit. Thus notification under S. 4 is not liable to be struck down as contended by the learned Counsel for the appellant. 5. The old notification of 1972 Anx. 9, imposing the levy of octroi would not be applicable to the newly included local area. The Municipal Board, Nimbahera has no authority to levy octroi over the newly included local area.
Final Decision: Appeal partly allowed.
( 1 ) THIS appeal is directed against the order of the learned single Judge dated 9-1-87 whereby, the writ petition was dismissed.
( 2 ) THE appellant M/s. J. K. Synthetics Limited challenged the notification dated 13-2-84 (Annx. 8) published in the Rajasthan Gazette dated 15-3-84 issued under S. 4 (1) (b), (c) and (d) of the Rajasthan Municipalities Act, 1950, whereby, the Municipal Area of the Nimbahera Municipality was extended. The petitioner sought a declaration that the said notification is illegal and without authority of law and be quashed and octroi realised by the Municipal Board, Nimbahera be ordered to be refunded and the Municipal Board be restrained from realising any octroi duty from the petitioner company. The petitioner challenged the aforesaid notification on the ground that the objections filed by the petitioner-company were not considered properly and were disposed of without application of mind in utter disregard of the principles of natural justice inasmuch as no speaking order was passed by the State Government whether in its opinion the objections are insufficient or invalid, as required under sub-sec. (2) of S. 6 of the Act. The learned single Judge found no substance in this contention. It was also contended before the learned single Judge that even if the notification extending the Municipal Board is found to be valid, still over the extended area, the old notification imposing octroi duty would not be applicable. The notification dated 10-2-72 (Annx. 9) will have no application to the extended area and on the strength of that notification, the octroi is not leviable over the area included in the Municipality. The learned single Judge has wrongly applied sub-sec. (8) of S. 4 of the Act. According to the petitioner-company, sub-sec. (7) of Section 4 would apply and, so the old notification is not applicable to the extended area and the octroi can only be imposed and levied by fresh notification to the area included in the Municipality. The learned single Judge, according to the appellant erred in holding that the area sought to be included is not local area but it is a part of the Panchayat Samiti.
( 3 ) WE have heard Mr. L. R. Mehta, learned counsel for the appellant company and Mr. M. Mridul, learned counsel for the Municipal Board and Dr. S. S. Bhandawat, learned Addl. Government Advocate.
( 4 ) FOR proper appreciation of the rival contentions raised in the present appeal, it is essential to read S. 6 and the relevant provisions of S. 4 of the Act. The relevant provisions of Ss. 4 and 6 of the Act reads as under: -SEC. 4. Delimitation of Municipalities :- (1) Subject to the provisions of Sections 5 and 6, the State Government may, from time to to to time, by notification in the official Gazette - (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. Provided that for including in any municipality the whole or a part of a Panchayat Circle or for declaring the whole or part of a Panchayat Circle as a municipality, it shall not be necessary to observe and follow the procedure laid down in the Rajasthan Panchayat Act, 1953 (Rajasthan Act XXI of 1953), for excluding the whole or part of any Panchayat Circle from any Panchayat or for declaring that any such Panchayat Circle has ceased to be a Panchayat, notwithstanding anything contained in any judgment or order of any court. (7) When any local area is included in a municipality all rules and bye-law is 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. (8) Upon the exclusion of any
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