S.R.Nayak, J.:-
(1) A short but an important question of law which arises for our consideration and decision in this writ petition is whether the govern merit has the power to cancel i any resolution passed by a municipality acting under section 88 (4) of a. P. Municipalities act, 1965. For short 'the act', graining exemption from payment of scavenging lax.
(2) Few facts leading to the filing of the present writ petiton he slated briefly as under : the petitioner is a private limited company which is registered under the companies act. According to the petitioner company, it has made all arrangements on its own for removal of rubbish, filth and carcasses of animals from the factory premises and precincts. So claiming it made an applications the municipality seeking exemption from the payment of scavenging tax as provided under section 88 (4) of the act. The council of the municipality acting on the said representation of the petitioner company passed resolution no. 255 dated 30 - 6 - 1980 exempting the petitioner from pay mem of scavenging tux. When the matter stood thus the government vide g. O. Rt. No. 1445 dated 24 - 11 - 1980 cancelled the aforementioned resolution of the council of the municipality. That led to the filing of the w. P. No. 6460 of 1980 by the petitioner in this court. This court disposed of that writ petition directing the government to consider the claim of the petitioner afresh after notifying the petitioner and the second respondent municipality. In pursuance of the direction of the court, the government notified both the petitioner and the municipality and by its order g. O. Ms. No. 304, m. A. And u. D. (tc) department dt, 24 - 6 - 1991 rejected the claim of the petitioner company from payment of scavenging tax. Hence this writ petition again by the petitioner assalling the validity of the government order.
(3) Sri m. V. Suryanarayana murthy. The learned counsel for the petitioner would contend (i) that the order made by the government is one without jurisdiction; and (ii) that since the company itself has made all necessary arrangements and provisions for removal of rubbish. Fifth or careasses of the animals from the factory premises and precincts, it is totally impermissible for the municipality to levy scavenging tax as a component of properly tax. On the other hand, the learned standing counsel for the corporation would support the impugned order of the government placing reliance on the stand taken by the munisipality in its counter.
(4) Adverting to the first contention of sri n. V. Suryanarayanu murthy it is necessary to advert to the provisions of sections 59 (1) , 85 ( 1) (d) and 88 (4). They read :
"59. Government's power to cancel or suspend resolutions etc. (1) the government may, either sup motu or on representation of any member, the chairperson or the commissioner by order in writing - (i) cancel any resolution passed, order issued, or licence or permission granted; 85. Lavy of properly tax : - - (1) where the council by resolution determines that a property tax shall be levied, such tax shall be levied on all buildings and lands within the municipal limits save those exempted by or under this act or any other law. The property tax may comprise - (a) xxx xxx xxx xxx (b) xxx xxx xxx xxx (c) xxx xxx xxx xxx (d) a scavenging tax to provide for expenses connected with the removal of rubbish, fifth or the carcasses of animals from private premises. 88. General exemptions: (1) xxx xxx xxx xxx (2) xxx xxx xxx xxx (3) xxx xxx xxx xxx (4) the council may exempt any building or land from the whole or any portion of the scavenging tax if it is satisfied that the owner or occupier has made efficient arrangements for the daily removal there from of rubbish, filth and carcasses of animals."
The language employed in sub - section (1) of section 59 of the act is quite clear, unambiguous and it does not admit more than one meaning. The only meaning flowing from the said provisions is that the government is armed with necessary power to cancell any resolution passed by any municipality. We do not find, either explicitly or by necessary implication, any limitation or restriction imposed on the said power of the government to annul or cancel any resolution passed by any municipality. Sri suryanarayana murthy would strenuously contend that having regard to the fact that the legislature having subjected the power of the municipality under sub - section (3) of section 88 to exempt any natural person or legal person from payment of water and drainage lax only after obtaining previous sanction of the government, it has deliberately omitted to impose such limitation or restriction under sub - section (4) of section 88 of (he act while grantign the power to exempt in so far as the scavenging tax is concerned, and from this deliberate ommission it should reasonably be construed that the government has nothing to do with the decision that may be taken by the municipality while the latter exercises the power under sub - section (4) of section 88 of the act exempting a person from payment of scavenging tax. This submission of the learned counsel is not well - founded. It is not a strange instance where the power granted to a statutory authority is subjected to prior sanction of the government, and such instances are many in public law. The crux of the matter is that when a particular municipality under sub - section (4) of section 88 of the act grants exemption from payment of scavenging tax by passing a resolution then such resolution can be annulled or cancelled by the government if there is warrant or justification to do so. The power conferred under section 59 (1) of the act is a discretionary power. That power is required to be exercised only in a fit and appropriate case on merits, therefore. We hold that the government has the power to cancell or annul even a resolution passed by a municipality under section 88 (4) of the act by virtue of the specific power granted to it under sub - section (1) of section 59 of the act.
(5) The second contention of sri m. V. Suryanarayana murthy is well - founded. The municipality in its original resolution itself clearly stated that the factory management itself has made all arragements to remove the rubbish, filth and carccsses of the animals. The impugned order of the government discloses this position quite clearly. Even in the counter filed by the municipality this facts is not contested. The specific case of the municipality in these proceedings is that the petitioner has no! made any arrangements to remove rubbish, filth etc. Outside the factory premises and these rubbish, filth etc. Is being removed by the municipality. If this is the admitted factual position, what is required to be considered is whether scavenging tax could be a component of properly tax within the meaning of that term as provided under section 85 of the act. Section 85 of the act provides that the property tax may comprise among other things' a scavenging lax to provide for expenses connected with the removal of rubbish, fifth, or the carcasses of animals from private premises (emphasis is supplied by the court). The essence of the matter is that even accepting the case of the municipality in toto that it has been removing all rubbish, filth or the carcasses of animals outside the factory premises, even then, scavenging tax cannot be leviedon the factory obviously because the municipality has been removing this rubbish, fifth etc. Not from private premises but from public premises. It is trite that under the act the municipality is charged with public duty to maintain the public streets clean and in performance of that duty certainly it is required to remove rubbish or the like from the public premises. Only in the event that the municipality has undertaken to remove or removes rubbish, fifth or carcasses of animals from any private premises, men only, scavenging tax can be levied as a component of property tax and not otherwise. That is not the situation obtaining in this case. Therefore the petitioner is entitled to succeed on the second point.
(6) In the result we allow the writ petition and quash the impugned order of the government, no costs. Fee of sri e. Sambasn a pratap is fixed at rs. 1200/ - which shall be payable by the second respondent within two months from the dale of presentation of the bill.
(7) Petition allowed.