MUNICIPAL BOARD VANECHAND Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THESE two special appeals are directed against the judgment of a learned Single Judge dated April 21, 1976 by which the writ petitions filed by the ret pendent Municipal Board of Sheoganj, hereinafter referred to as 'the Board', has been allowed, notification Ex. 19 of the State Government dated February 22, 1975, its telegram Ex. 2 dated January 15, 1974 and its letter Ex. 5 dated January 6, 1975 have been quashed, and the State Government and its concerned Officers have been restrained from interfering with the Board's right to levy octroi in accordance with law and in pursuance of notification Ex. 1 dated April 5, 1973. While appeal No. 66 of 1975 has been filed by the interveners, appeal No. 130 of 1975 has been filed by the State Government, is department and Officer.

(2.) IT is not in dispute that the State Government issued notification Ex. 1 dated April 5, 1973 under Section 104 of the Rajasthan Municipalities Act, 1959, hereinafter referred to as 'as Act', which was published in the State Gazette of May 31, 1973. It was directed thereby that the Board shall, after the expiry of a period of seven days from its publication, levy octroi on goods and animals brought within the limits of the municipality for consumption, use or sale therein. The State Government however sent a telegram (Ex 2) to the Administrator of the Board to stop the realisation of the octroi until further orders. The Administrator made various representations to the State Government against that telegraphic order. Fresh elections were held and the Chairman of the new Board (which bad a non -congress majority) pressed for the levy of octroi, in view of the deteriorating financial condition of the Board, and forwarded a copy of the resolution of the Board dated November 5, 1974 in support of his request. The State Government thereupon sent letter Ex. 3 dated November 22, 1974 canceling its telegraphic direction of January 15, 1974 and ordering the relevy of octroi. The Executive Officer therefore if sued notification Ex. 4 dated December 2,1274 for the relevy of octroi which effect from December 3, 1974. But letter Ex 5 dated January 6, 1975 was received by the Board on January 9, 1975 by which compliance with the earlier order Ex. 3 was stayed until further orders. The Board then filed the aforesaid writ petition challenging the order of the State Government.

(3.) THESE facts are not in dispute before us. The controversy is about validity of the aforesaid notification Ex. 19 dated February 22, 1975 The learned Single Judge has taken the view, inter alia, that after the issue of the State; Government's notification under Section 104 of the Act to levy octroi.' it is the Board which is seized of the matter and except by virtue of the power prescribed under the proviso to Section 104 and Sub -section (5) of Section 107, the Government has no jurisdiction to interferes with the realisation of the tax.' He has held that 'once the Government has issued a notification under Section 104, it is under obligation not to interfere with the right of the Board to realise the tax subject to the condition contained in the Ace itself'. The learned Single Judge has examined the power of rescission contained in Section 21 of the General Clauses Act and has held that 'to concede such a power to the Government under Section 21 of the G.C. Act would be inconsistent and repugnant to the scheme rd the relevant provisions of the Act.' He has accordingly allowed the writ petition as aforesaid.