SOMATH MAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) These are two writ petitions under Article 226 of the Constitution, and arise out of the same facts.

(2.) The petitioners are residents of Bhinmal and. describe themselves as citizens, voters and taxpayers in that town. The case of the petitioners is that opposite parties Nos. 2 to 9, who are members of the Municipal Board of Bhinmal and who will hereinafter be referred to as the Board, have been realising from the petitioners and others certain taxes which are mentioned in the schedule appended to their petition and which may briefly be described as (1) octroi on certain articles e. g., cloth, grain, ghee, sugar and some others, if and when brought into the town of Bhinmal, and (2) a Kharda lag which is a sort of house- tax, without any authority of law, and that such action on the part of the Board is unauthorised and illegal. The petitioners further alleged that the boundary limits of the Bhinmal Municipality had not been denned under any law at all. The petitioners therefore prayed that the opposite parties be restrained by the issue of a writ of prohibition or mandamus or any other writ or order from levying and collecting the taxes in question and that the money already collected from the petitioners in lieu thereof be directed to be refunded. It is stated on behalf of the opposite party No. 1, the State of Rajasthan, and the Municipal Board of Bhinmal that a Municipality was established in the town of Bhinmal by His Highness the Maharaja of the former State of Jodhpur under Council Resolution No. 5 dated 3-11-32, and that a terminal tax on all goods and parcels booked to Bhinmal by rail at the rate of 6 pies per maund was levied by that order. (Annexure 1). Later, by Council Resolution No. 14 dated 22-11-48, His Highness the Maharaja ordered that the proposal of levying octroi on goods imported into the Municipal limits of Bhinmal be sanctioned with effect from 1-12-1948, according to the proposed schedule (Annexure 4). So far as the Kharda lag was concerned, learned Assistant Government Advocate frankly conceded that he was unable to point to any authority under which this tax was being realised. It is claimed, however, that the levy of octroi, which is now being questioned by the petitioners, was being made tnder due authority of law. It was further stated that the boundary limits of the Bhinmal Municipality had been defined by the Municipality under its resolution dated 7-12-48. Certain additional pleas were also put forward on behalf of the opposite parties, viz., (1) that the petitioners had an alternative remedy by way of a civil suit which was equally convenient and effective, (2) chat they had never made any demand for justice, and (3) that the present applications had been made after great delay and, therefore, the petitioners were not entitled to apply for a writ of any kind and thereby invoke the extraordinary jurisdiction of this Court.

(3.) The first and the most important question for determination before us is whether, leaving aside the Kharda lag for the recovery of which there is admittedly no legal sanction, there exists any legal foundation for the recovery of the impugned taxes inasmuch as Article 265 of the Constitution lays down that no tax shall be levied or collected except by authority of law. It has been strenuously contended on behalf of the opposite parties that the Council Resolutions of 1932 and 1948 of the former State of Jodhpur are law, or, at any rate, have the force of law. We may point out at the very outset that authenticated copies of the Council Resolutions under reference have not been brought on the record, and, therefore, we have not had the opportunity of seeing them ourselves as we should have wished to do. In the case of Council Resolution of 1932, what we have before us is a copy of letter No. 3944 dated 16-1-33 from the Judicial Member, State Council, Jodhpur to the Hakim, Jaswantpura, in which it is stated that His Highness the Maharaja of Jodhpur was pleased (vide C. R. No. 5 dated 3-11-32) to sanction the establishment of a Municipality at Bhinmal, and then the letter proceeds to say that certain proposals relating to the constitution and the working of the Board had been sanctioned. It was stated, for example, that the Board would consist of eight members, that the Hakim of Jaswantpura was to be its President, and the Sub-Assistant Surgeon was to be an ex-officio member and Vice President and Executive Officer of the Board. A provision was further made for the funds of the Municipality, and it was directed that a terminal tax would be levied on all goods and parcels booked to Bhinmal by rail at the rate of 6 pies per maund with certain exceptions. Coming now to the resolution of 1948, which is the principal authority relied on by the opposite parties, we gave special opportunity to the learned Assistant Government Advocate to produce an authenticated copy of this Resolution and we also granted him an adjournment for the purpose. This, however, proved to be of no avail, and it was submitted that although the original Resolution was not traceable, a copy of the said resolution was available and was produced for our perusal.