MUNICIPAL BOARD SHEOGANJ Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution of India by the Municipal Board, Sheoganj through its Chairman against the State of Rajasthan praying that the Rajasthan Government's Local Self Department Notification dated February 22, 1975 a (copy of which has been placed on the record and marked Exhibit-19 at page 60 of the Paper Book) be quashed and the respondents be restrained from interfering with the right of the Municipal Board to levy octroi duty in accordance with the Rajasthan Government's Notification dated April 5, 1973 published in Rajasthan Gazette dated May 31, 1973 (A copy of which has been annexed to the writ application and marked Exhibit-1 at page 17 of the Paper Book ).

(2.) THE short question which arises for decision is whether the State Government after having directed the Municipal Board, Sheoganj (hereinafter referred to as the Board) by notification in the Official Gazette to levy octroi, can rescind that notification and thereby deprive the Municipal Board of the right to levy the tax. THE question arises in this way. In exercise of its powers under section 104 of the Rajasthan Municipalities Act (No. 38), 1959 (which will hereinafter be referred to as the Act), the Government of Rajasthan issued a Notification dated April 5, 1973 published in Rajasthan Gazette dated May 31, 1973, whereby it directed the Board, to levy octroi on goods and animals brought within its limits for consumption, use or sale at the rates mentioned therein on the expiry of seven days from the publication of the Notification in the Gazette. THE Board, however, made a representation (Exhibit-A at page 77 of the Paper Book) to the State of Rajasthan that it would not be feasible to levy octroi and, therefore, the Board may be permitted not to levy it. A few months later, the Cloth Merchants Association of Sheoganj also made a representation to the Chief Minister, Rajasthan for not levying the octroi and the Government of Rajasthan sent the following telegram (Ex. 2 at page 23 of the paper book) to the Administrator, Municipal Board - "stop forthwith realisation octroi till further orders letter follows" THE Govt. also forwarded a copy of the representation of the Cloth Merchants Association to the Administrator, Municipal Board, vide its letter dated January 25, 1974 (Exhibit-15 at page 46 of the Paper Book) and asked the Administrator to send factual report of the case for perusal of the Chief Minister. THE Administrator, by his letter dated January 28, 1974 (Exhibit-6) at page 27 of the Paper Book) intimated to the Government that while all the arrangements for collection of the tax had been completed, the telegram (Exhibit-2 was received He further stated that the Board was passing through a financial crisis and its finances could not be put in order without realising the tax. He, therefore, sought the permission of the Government to realise the tax. THE Administrator again by his letter dated February 1, 1974 (Exhibit-7) wrote to the Government that the finances of the Municipal Board were so bad that it found it difficult even to pay the salary of the staff and arrange for road lights. While emphasizing the fact that levy of octroi was absolutely necessary, he tried to impress upon the Government that the representation by the Cloth Merchants Association of Sheoganj for not levying the tax was not at all justified and was motivated by purely selfish considerations. THE matter was pursued by the Administrator from time to time by his letters dated March 16, 1974, April 19, 1974, June 4, 1974 and August 13, 1974 marked Exhibits 8, 9, 10 and 11 respectively. Elections to the Board took place some time in September, 1974 THE Chairman of the elected Board by his letter dated October 21, 1974 (Exhi-bit 12) also requested the Government to withdraw the telegram (Exhibit-2) and permit the Board to commence recovery of the tax. THEreafter, he sent a reminder on November 7, 1974 (Exhibit-I3 ). THE Board in its meeting held on November 5, 1974 also passed a Resolution (Exhibit-14) that the Government should be pressed to withdraw the telegram (Exhibit-2) stopping the levy as the financial condition of the Board was consistently deteriorating. THEreupon the Government by its letter dated November 22, 1974 (Exhibit-3) withdrew its telegram dated January 15, 1974 (Exhibit-2) and thereby gave a green signal to the Board to recover the tax. A genera] notice was issued by the Board dated December 2, 1974 (Exhibit-4) whereby it was notified to the people residing within the limits of the Municipal Board that the octroi may be paid on goods and animals brought within the limits of the Municipality. THE Board's case is that it started realising octroi. However, again by a letter dated January 6, 1975 (Exhibit-5), the Government asked the Board that the letter dated November 22, 1974 (Ex. 3) whereby the Stay-telegram (Exhibit-2) was withdrawn be kept in abeyance, meaning thereby that the telegram stopping recovery of the tax be still deemed to be in force. It was on the receipt of the letter (Ex 5) that the Board filed the present writ petition in this Court on January 16, 1975 and inter alia, prayed that the telegraphic stay order dated January 15, 1974 (Ex. 2) and the letter dated January 6, 1975 (Ex. 5) reviving the telegraphic stay order may be quashed.

(3.) ANOTHER preliminary objection regarding non-joinder of necessary parties has also no substance. The petitioner has challenged the impugned order and notification by the Government and the Government and their officers concerned have been impleaded as respondents in the case. The persons who may be liable to pay octroi may not be impleaded as parties to the writ petition merely on the ground that they would be the persons affected. That is an undefined body of persons. Moreover, 25 merchants residing in the town of Sheoganj have been allowed to oppose the writ petition as intervenors. They have also been allowed to file reply to the writ petition. Learned counsel for the petitioner has referred to Mongibai Hariram vs. The State of Maha-rashtra (1 ). This ruling. , in my opinion, is completely distinguishable on facts and has no application to the facts and circumstances of the present case. I, therefore, over-rule this objection also.