KALAVAD VEPARI MAHAMANDAL Vs. KALAVAD BOROUGH MUNICIPALITY

JUDGEMENT

(1.) The petitioners have prayed for a declaration that the action of the respondent No. 1 Municipality in deleting condition No. 18 from the Agreement of Ijara on 16-1-1995 and in not accepting the deposit of Rs. 2,500/ - and not allowing the petitioners the facility of deposit account is illegal and unconstitutional being violative of Art. 14 of the Constitution of India. In short, the petitioners have prayed for a direction on the Municipality to give them facility of opening a deposit account in which they can deposit the octroi as was envisaged by the deleted Clause (18) of the octroi Agreement.

(2.) The relevant clause (18) as was incorporated in the Octroi Agreement which was to operate for the period from 15-1-1995 to 31-3-1996 provided that deposit accounts would be opened as per the Octroi Rules in respect of the traders intending to get such accounts opened by taking deposit of Rs. 2,500.00 in the Municipality Borough and information would be given to the Ijardar in this regard. The Agreement was to become effective from 15-1-1995 (which was Sunday) and on 16-1-1995 below the Agreement an endorsement was made by the Ijardar, Administrator and the Chief Officer that clause (18) of the Agreement was being deleted from 16-1- 1995. Therefore, virtually clause (18) of the Ijara Contract never operated and no accounts were opened for making deposits which could be adjusted against octroi dues.

(3.) It was contended on behalf of the petitioners that it was incumbent upon the Municipality to keep an account in respect of the Octroi payable by the petitioners. Under S.128 of the Gujarat Municipalities Act, 1963, on which reliance was placed on behalf of the petitioners in respect of this contention, it has been, inter alia, provided that the Executive Committee if it thinks fit, instead of requiring payment of octroi due from any person to be made at the time when the goods are introduced within the octroi limits, may at any time direct that an accountcurrent shall be kept on behalf of the Municipality, of the octroi so due from such person and such accounts shall be settled at intervals not exceeding three months. On the strength of this provision it was contended that clause (18) as earlier envisaged, entitled the traders to get such "account-current" opened in which they could make deposits from time to time in respect of the octroi due from such traders. A bare reading of S.128 makes it clear that it is only an enabling provision by which the Municipality can make arrangement for keeping a current account in respect of the octroi payable by the traders. The provision regarding octroi ijara contained in S.129A was inserted in this Act by Act No. 34 of 1994 and that provision made it lawful for a Municipality to lease by public auction or private contract the collecting of octroi. Therefore, S.128 when originally enacted could not have envisaged a situation where octroi ijara was to be given. Even in absence of the provisions of S.129A it was only discretionary on the part of the Municipality to have provided for such current account. The Municipality has, in an affidavit filed by the Administrator, stated that as the octroi was to be collected by the Ijardar through its own staff there was no necessity to keep the accounts with the Municipality which had to receive only the amount which was fixed under the Ijara Contract. It is stated that it was not practicable in view of the Ijara Agreement to keep any current account as regards the octroi which was recoverable by the Ijardar under the Agreement. The Municipality was entitled only to receive instalments from Ijardar and therefore, there was no necessity for keeping the accounts in respect of the octroi which was recoverable by the Ijardar. It is also stated that such arrangement would have created complication and would have resulted undue burden on the Municipality to keep the accounts when the Ijardar alone was responsible for collection of the octroi. The reasons given by the Municipality for cancelling Clause (18), which was to be effective from 15-1-1995 and was cancelled on 16-1-1995, cannot be said to be arbitrary. The reasons given would indicate that the Municipality has validly exercised its powers of not opening the current account as was envisaged in Clause (18) which was cancelled on 16-1-1995. The petitioners have no right to enforce Clause (18) against the respondents and compel them to open such current account. Therefore, the relief prayed for by the petitioners cannot be granted.