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IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BISHAMBHAR DAYAL AND S.P. BAHRGAVA, JJ.
Jagatram Daswani and others
Vs.
State of Madhya Pradesh and another
M.P. No. 431 of 1970
Decided On: 19.07.1971
Section 10 (b) of the M. P. General Clauses Act, 1957, indicates that the previous operation of section 36-A of the M. P. Municipalities Act, inasmuch as it dissolved the existing council and vested in the Government the power of appointing an administrator could not disappear on the repeal of section 36-A. Once the power to appoint an administrator had been vested in the Government it could not automatically be taken away and, consequently, the State Government had the power to appoint an administrator one after the other so long as the Government found it necessary. [Para 3]
(2) Municipalities Act, 1961 (MP)-Ss. 328, 129 & 36-A-administrator appointed under section 36-A-section 36-A omitted later on-administrator may make proposals for imposition of octroi tax-meeting of council not necessary to make the proposal valid.
Where the council was dissolved and an administrator was appointed under section 36-A, the administrator could validly make a proposal for imposition of a tax. Under section 328 an administrator has all the powers of a council, he can himself, without there being a meeting of the council, do the same thing for imposition of a tax as the council could do. [Paras 3 & 4]
(3) Municipalities Act, 1961 (MP)-S. 162-power of Government to ask a municipality to impose a tax may be exercised through an administrator when the municipality is highly indebted to the State Government. [Para 5]
(4) Municipalities Act, 1961 (MP)-S. 129-council passing a resolution that octroi tax should not be imposed-may review this resolution and decide to impose the tax. [Para 7]
(5) Municipalities Act, 1961 (MP)-Ss. 60-meeting held in camera-resolution valid.
(6) Law of meetings-meeting held in camera-resolution valid.
Section 60 of the Act provides that normally public is to be admitted to the meeting. But where the council resolved that in view of the opposition to the imposition of the octroi tax, the meeting may be held in camera, the resolution passed at such meeting is not invalid. [Para 8]
(7) Municipalities Act, 1961 (MP)-S. 129 (8)-defect in meeting imposing a tax-imposition published in the Gazette-defect gets cured.
Under section 129 (8) of the Act, when a tax has been imposed and such imposition has been published in the Gazette, such publication shall be conclusive evidence that the tax has been imposed in accordance with the provisions of the Act. Consequently, even if some defect be found in the procedure prescribed for imposition of a tax, it will stand condoned by this section. [Para 8]
(8) Constitution of India-Art. 277-tax coming under Union List-municipal council continuing to realise it after adoption of the Constitution-council has power to abolish such tax.
Article 277 of the Constitution is merely an enabling article. Normally on the enforcement of the Constitution all taxes which have come in the Union List ought to have been abolished automatically, if imposed by a State Legislature or its nominee. But this Article authorised the State or the local body to continue realization of such taxes so that the economic structure of the local body which was realizing the tax might not be affected. It created no bar to any council at any time to abolish a tax which it was realizing before. [Para 10]
(9) Municipalities Act, 1961 (MP)-S. 130-abolition of a tax-procedure.
On a reading of section 130 it is found that the procedure prescribed for abolition of a tax is that the council will make a proposal to the State Government to abolish a tax, and if the State Government gives its sanction it will fix a date from which the tax is to be abolished and will publish that date in the official Gazette. Under sub-section (5) of section 130 the publication of such notice shall be conclusive proof of the fact of such abolition. [Para 12]
Bishambhar Dayal, C.J.
This is a petition under Article 226 of the Constitution by a number of merchants doing business within the limits of Municipal Council, Murwara (Katni), challenging the validity of imposition of octroi duty on certain articles by that municipality. Many questions have been raised and we will deal with those questions giving the relevant facts in respect thereof separately.
Murwara municipality was first established under the C.P. and Berar Municipalities Act (hereinafter referred to as the old Act), and the last elections to that municipality took place in 1958. With effect from 1st February 1962 the M. P. Municipalities Act came into force (hereinafter referred to as the new Act). Section 2 (2) of the new Act continued all the municipalities which had been constituted and elected under the old Act. Fresh elections were held under the new Act in 1964, but they were set aside by the High Court and the body elected under the old Act continued to hold office. In view of the fact that in a large number of towns old bodies elected long back were holding office, the State Government issued an ordinance whereby a new Section 36-A was added to the M. P. Municipalities Act. The effect of adding this section was, and there is no dispute about it, that the municipal council which was then in power stood dissolved. The relevant part of this section is as follows:
....then such deemed council shall on the date of commencement of the said Ordinance stand dissolved and the provision of Section 328 shall apply in respect thereof.
By this addition of Section 36-A two effects were created-(1) that the Municipal Council, Murwara stood dissolved; and (2) that Section 328 of the M. P. Municipalities Act became applicable to this municipal Council. This section 328 gives power to the State Government either (1) to dissolve a council; or (2) to suspend a council; or (3) to supersede a council for a period. By Sub-section (6) of this section, in all these cases, the State Government has been given the power to appoint an administrator. Therefore, the effect of the ordinance adding Section 36-A to the new Act and thereby applying Section 328 of that Act to this council was that this council stood dissolved and the powers given to the State Government under Section 328 became applicable to this council. Clause (b) of the said Sub-section (6) authorises the State Government as follows:
all powers and duties of the council under this Act may, until the council is reconstituted, be exercised and performed by such person or a committee of persons as the State Government may appoint in that behalf;
After the aforesaid effects had taken place and an administrator had been appointed by the State Government for this municipal council this ordinance inserting Section 36-A to the Act was repealed and Section 36 also was deleted
On this part of the case the contention of learned Counsel for the Petitioners is that after the deletion of Section 36-A the power of the State Government to appoint an administrator came to an end; the old council revived; and, in any case, the State Government could not appoint an administrator after the date of deletion of Section 36-A. We are unable to accept this contention of the learned Counsel. Section 10 (b) of the M. P. General Clauses Act provides as follows:
Where any Madhya Pradesh Act repeals any enactment, then, unless a different intention appears, the repeal shall not-
(a) xxx xxx xxx xxx
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder;
This would indicate that the previous operation of Section 36-A, inasmuch as it dissolved the existing council and vested in the Government the power of appointing an administrator, could not disappear after the repeal. Once the power to appoint an administrator had been vested in the Government it could not automatically be taken away and, consequently, the State Government had the power to appoint an administr
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