Civil Writ Appln. No.16 of 1960. Case: Oinam Apabi Singh Vs Imphal Municipal Board.

Case NumberCivil Writ Appln. No.16 of 1960
CounselFor Petitioner: R. K. Manisana Singh, Adv. and For Respondent: N. Budhachandra Singh and R. K. Jhalajit Singh, Advs.
JudgesT. N. R. Tirumalpad, J. C.
IssueConstitution of India - Article 226; Assam Municipal Act (15 of 1957) - Sections 68(1)(a), 80
CitationAIR 1962 Manipur 28
Judgement DateFebruary 09, 1961

Order:

  1. The petitioner who is a land-holder within the Imphal Municipal Area prays for a writ of mandamus against the Imphal Municipal Board (Respondent) to quash the two resolutions - Annexures-A and D passed by the said Municipal Board on 5-8-1960 and 20-12-1960 respectively.

  2. Imphal Municipal Board was constituted in 1956 under the Assam Municipal Act 1923, which was extended to Manipur after it became a Union Territory. Subsequently the Assam Municipal Act 1956 (Assam Act XV of 1957 hereinafter to be referred to as the Act) was enacted in Assam and it was extended to Manipur by the Notification Annexure-I dated 12-2-1960. On 17-3-1960, the Chief Commissioner by another order Annexure-II extended the boundaries of the Imphal Municipality by including an area of 5 and odd sq. miles lying contiguous to the existing area within its limits. The term of office of the members of the existing Municipal Board was also extended by another notification Annexure-III upto 31-3-1961, so that the Electoral rolls for the newly extended area may be prepared and the election of the new Municipal Board may be held on the basis of the extended area to allow the inhabitants of that area to participate in the election.

  3. On 19-7-1960, notice was issued by the Chairman for a meeting of the Municipal Board to take place on 5-8-1960 to consider certain subjects. We are only concerned with the 3rd subject which was "3. To consider the mode of assessment and census of the newly extended Municipal area" (Annexure-IV). Accordingly, the meeting took place and the following resolution on the subject was adopted unanimously as seen from Annexure-V (which is the same as Annexure-A):

    "In order to give privilege to the people living inside the extended Municipal area for being a voter in the next Municipal election under Assam Municipal Act, 1956, it is resolved that Municipal tax on holding at the flat rate of Rs.10/- per year per holding will be levied from the people of such area with effect from the October, 1960. Immediate action may be taken up for assessment of the said tax."

    Then notice was published in the local papers on 14-12-1960 signed by the Area Officer cum Inspector of Taxes, Imphal Municipality calling upon all the pattadars resident within the newly extended Municipal Area to pay the tax of Rs.10/- per holding in 4 quarterly instalments of Rs.2.50 each, the first instalment to be paid on or before 31st December, 1960 (Annexure-B). Personal notices were also served on the proposed assessees stating that the Imphal Municipal Board had resolved to levy a sum of Rs.10/- per annum as holding tax in respect of the assessee's land under section 80 of the Act and calling upon him to pay the tax of Rs.2.50 for the first quarter beginning from 1st October, 1960 on or before the 31st December, 1960 (Annexure-C).

  4. Then notice was given on 14-12-1960 by the Chairman for another meeting of the Municipal Board to be held on 20-12-1960 to consider certain subjects of which we are only concerned with the 5th subject namely "To consider the matter for taxation of shop sites in Singjamei Bazar" - (Annexure-7). This subject was subsequently amended by Annexure 8 to read "To consider the matter for taxation of Singjamei Bazar and others". At the meeting held on 20-12-1960 the following resolution was passed as seen from Annexure-IX which is the same as (Annexure-D):

    "(a) In partial modification of resolution No.3 dated 5-8-1960 and in exercise of the powers conferred upon the Board by section 80 of the Assam Municipal Act, 1956 as extended to Manipur the Board resolve to determine the percentage on the valuation of holdings payable by the owners of such holdings as follows:

    One percent on the annual value of holdings".

  5. Thereafter a notice Annexure-F was published on 21-12-1960 by the Assessor of the Municipality calling upon all owners and occupiers of holdings to furnish returns of the annual value thereof. Similar individual notices were also sent. They were in supersession of the earlier notices Annexure-B and C.

  6. The petitioner herein filed a writ petition on receipt of the notice annexure-C calling on him to pay the tax as per, resolution Annexure-V. He withdrew that application when the second resolution Annexure-IX (Annexure-D) in modification of the earlier resolution was passed and came forward with the present application. His case is that when the resolution Annexure-V was passed, persons affected by it demanded its withdrawal pointing out its illegality and that thereupon the Board modified the said resolution by Annexure-I. He contends that the Commissioners of the Municipal Board were not elected from the newly extended Municipal area and that the resolutions were passed by the Board to defeat the voting right of the petitioner and the other citizens of the Municipality. His contention is that the said resolutions are in violation of Article 265 of the Constitution and opposed to the provisions of the Assam Municipal Act. He further contends that as section 68 of the Act does not place any limit on the rate of taxation, it will amount to an unconstitutional delegation of the power of taxation which is vested in the State. He therefore prays that the resolutions Annexures-V and IX (Annexures-A and D) may be quashed.

  7. The respondent contends that the resolutions Annexures-V and IX (A and D) were passed, in accordance with the provisions of the Act, and that in any case there has been substantial compliance with the provisions of section 68 and section 80 of the Act and that the petitioner has no right to challenge the Board's Resolutions, but can only raise objection to the assessment as provided under sections 92 to 99 of the Act and not in any other proceedings. He also points out that the petition was not maintainable as no notice was served on the Board as required under section 326 of the Act and that the respondent was not given any opportunity to reconsider the matter before the writ petition was brought. He also contends that section 68 of the Act is not ultra vires the Constitution.

  8. I shall first take up the contention whether the petition is not maintainable in view of the provisions of section 326 of the Act on account of the failure on the part of the petitioner to give a notice in writing to the respondent. Section 326 provides that no suit or other legal proceeding shall be brought against the Board for anything done under the Act, until the expiration of one month after a notice in writing has been delivered to it.The argument was that a writ under Article 226 is a legal proceeding and that when section 326 expressly provided that no such legal proceeding can be brought until after the expiration of one month from the date of notice, this writ is not maintainable, as the petitioner has failed to give the notice.It cannot be denied that a writ application brought under Article 226 of the Constitution is a legal proceeding. But at the same time, the power of the High Court under Article 226 to issue prerogative writs is an unqualified power which is not even subject to any other provision of the Constitution. Hence it cannot be made subject to the provisions of any Act of Parliament or of any State legislature. Hence, a person who applies for such a writ cannot be non-suited by a provision like section 326 which seeks to qualify this power of the High Court.We have to take it therefore that legal proceedings referred to in S.326, refer to legal proceedings other than a proceeding under Art.226.

  9. I may in this connection refer to the decision Soorajmull Nagarmull v. Assistant Collector of Customs, reported in AIR 1952 Cal 103 in which with respect to a similar provision in S.198 of the Sea Customs Act, Bose J. held that in so far as section 198 purports to impose any fetter or restriction on the exercise of the absolute and unqualified power of the High Court as contained in Article 226, it must be held to be void to the extent of the inconsistency or repugnancy, and that S.198 must be held to impose a bar or disability on a person who seeks to commence proceedings in a Court of law, but not to fetter or restrict the power of the High Court or affect the jurisdiction of the High Court in any way.

    Another decision on the same point is Mehar Singh v. Chairman, Municipality of Bally, reported in AIR 1954 Cal 131, wherein Sinha J. has held that S.535 of the Bengal Municipal Act which provides that no suit or legal proceedings shall be brought against the Commissioners of the Municipality without giving them one month's prior notice did not abrogate the powers of the High Court under Art.226 of the Constitution.

  10. In this particular case, the election to the Imphal Municipality has to be held before 61-3-1961 as the term of the present Commissioners would expire on that date and the resolutions passed by the Board will affect the franchise of the petitioner and others residing within the Municipality and he had therefore to take the necessary steps without any delay and therefore it cannot be said that he has any other equally efficacious remedy except to file this writ and this too without any delay.I have no doubt therefore that S.326 of the Act will not bar this application. The preliminary objection raised by the respondent has no force.

  11. Next we come to the question whether S.68 of the Act is ultra vires the Constitution. Section 68 gives the power to Municipal Board to convene a meeting expressly for the purpose after giving due notice and to impose...

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