COMMISSIONER Vs. MURLIDHAR GUNDAYLAL DARZI

JUDGEMENT

(1.) THIS is an appeal against the order of the Additional District Judge, Raipur, setting aside the order of the Commissioner Chhattisgarh Division, made under Section 10, Central Provinces Local Fund Audit Act. On 1st June 1984 certain by-laws were published in the Central Provinces Gazette providing for inspecting and regulating the tea, coffee and milk shops within the limits of the Raipur Municipality. The 1st by-law provides that no person shall sell milk or certain other articles without a licence, and the 3rd by-law provides that Rs. 10 shall be charged for each licence. At a meeting of the municipal committee held on 17th June 1984 it was decided that these by-laws should be brought into force with effect from 1st July 1934. The secretary, who, as the chief executive officer of the municipality, was responsible for seeing these by-laws brought Into force, did nothing until the following May. As a result of this, no licence fees were recovered in the year ending on 31st March 1935 and an audit objection was taken to this. Eventually the Commissioner under Section 10, Central Provinces Local Fund Audit Act, held that this loss was caused by the gross negligence of the secretary and certified that Rs. 115 was due from him. The Additional District Judge set aside that order and the Commissioner of the Chhattisgarh Division has preferred this appeal.

(2.) THE learned Additional District Judge considered that it was open to the municipal committee to fix the time from which these by-laws should be enforced and that it was competent to waive the licence fee for a particular period. The by laws admittedly same into force on 1st June 1934, and they provided that no person should sell milk etc. without a licence for which a fee of Rs. 10 was to be charged. These by-laws could only be varied or rescinded in the same way, and subject to the same conditions, as they were originally made: see Section 20, Central Provinces General Clauses Act. In the absence of by-laws, the power of levying a licence fee may be discretionary, but once by-laws some into force they must be obeyed and these by-laws left no discretion to the municipal committee. On 9th April 1989 the municipal committee passed a resolution that the secretary's explanation that the by-laws could only be enforced from 1935-36 was satisfactory and that no recovery therefore need be made from the secretary on this account. The by-laws however had come into force on 1st June 1934 and it was the' duty of the secretary to carry them out and the subsequent resolution of the committee cannot absolve the secretary from his responsibility for failing to carry them out.