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Malchand v. State Of Rajasthan

Rajasthan High Court

Nov 30, 1954

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Case Summary: Malchand v. Rajasthan State & Municipal Board, Sardarshahar

Factual and Procedural Background

This is an application under Article 226 of the Constitution by Malchand (the applicant), a resident, voter and businessman of Sardarshahar, seeking a writ, direction or order against the Rajasthan State and the Municipal Board, Sardarshahar. The municipal board passed a resolution on 19th November 1953 which imposed certain new taxes and enhanced rates of certain existing taxes; the Government sanctioned those taxes by an order dated 27th May 1954. The applicant challenged the validity of those taxes on two principal grounds: (1) that certain areas named Ramnagar and Chandaliya Ice Factory were not lawfully included within the municipal limits and yet their residents voted in the 1953 municipal election, rendering the municipal board illegally constituted and incapable of imposing taxes; and (2) that mandatory publication requirements in sec. 60(b) and sec. 46(2) of the Rajasthan Town Municipalities Act (No. XXIII of 1951) were not complied with before framing and sanctioning the rules and bye-laws which imposed the taxes. The State and the municipal board opposed the application, asserting (a) that those areas were included within municipal limits (and, in any event, that the challenge to the election should have been raised by an election petition under sec. 19 of the Act rather than by Art. 226), and (b) that the mandatory publication requirements had been satisfied.

Legal Issues Presented

Whether the inclusion (or alleged improper inclusion) of Ramnagar and Chandaliya Ice Factory areas within the municipal limits of Sardarshahar — and consequent participation of their residents in the 1953 municipal election — rendered the municipal board and its tax-imposing measures invalid, and whether this challenge can be entertained under Article 226 instead of by an election petition under section 19 of the Act.
Whether the municipal board complied with the mandatory publication procedures mandated by section 60(b) (publication of rules) and section 46(2) (publication of draft bye-laws) of the Rajasthan Town Municipalities Act, 1951, before adopting rules/bye-laws imposing new taxes or enhancing rates of existing taxes, and if not, whether the taxes so imposed are invalid.

Arguments of the Parties

Applicant's Arguments

The municipal board was illegally constituted because Ramnagar and Chandaliya Ice Factory areas were not included within the municipal limits by government order, yet residents of those areas voted in the 1953 election; as a result, the municipal board's tax resolutions are invalid and cannot be realized from him.
The municipal board failed to comply with mandatory publication requirements under sec. 60(b) and sec. 46(2) of the Rajasthan Town Municipalities Act, 1951 — specifically, the rules and draft bye-laws were not published in the manner required — rendering the rules/bye-laws imposing taxes invalid.

Opposite Parties' (State and Municipal Board) Arguments

The areas in question (Ramnagar and Chandaliya Ice Factory) are included within the municipal limits; in any event the question of voters and election validity should have been raised by an election petition under section 19 of the Act rather than by Article 226.
The mandatory publication requirements of sections 60(b) and 46(2) were complied with in connection with framing the rules and bye-laws — the municipal notice stated that the rules and bye-laws were available for public inspection at the municipal office during working hours; several objections were received, which indicates public knowledge of the proposals.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court divided its analysis into two parts corresponding to the applicant's two grounds.

First ground — challenge to validity of municipal board composition/election

The court observed that the applicant did not assert that Ramnagar and Chandaliya Ice Factory returned separate elected members; rather, those areas appeared to have been "tacked on" to other areas so that some persons who should not have voted may have voted.
The court held that this grievance was properly a matter for an Election Tribunal under section 19 of the Act. Because no election petition under section 19 had been filed, the court would not entertain the challenge under Article 226. Further, the opposite parties denied the factual claim that the areas were excluded from municipal limits, and this produced a dispute of fact which the court was not prepared to decide under Article 226.
Conclusion on this point: the court found "no force" in the applicant's first point and declined to decide the factual dispute on certiorari/mandamus grounds.

Second ground — mandatory publication under sec. 60(b) and sec. 46(2)

The court examined the statutory scheme:

Section 59 specifies which taxes a municipal board may impose.
Section 60 provides the preliminary procedure for imposition of a tax: under sec. 60(a) the municipal board must by resolution select a tax and prepare rules; sec. 60(b) then requires the municipal board to publish the rules with a notice in the form of the third schedule so that, under sec. 60(c), inhabitants may object within one month.
Section 46(2) requires that "every municipal board shall, before making any bye-law, publish ... a draft of the proposed bye-law together with a notice specifying a date on or after which the draft will be taken into consideration" and receive and consider written objections before that date. Thus publication is essential to enable objections.

Application of those principles to the facts:

The municipal board published a notice on 25th January 1954 stating that rules and bye-laws were passed on 19th November 1953 and would come into force on 1st April 1954; the notice added that "The aforesaid rules are available in the office of the municipality, and the members of the public are entitled to see them any day between 10 A.M to 4-30 P.M except on close holidays."
The notice was pasted on the municipal notice board and at one cross-road, but the rules and bye-laws themselves were not pasted or displayed in the same manner as the notice.
The opposite parties argued substance over form: that publication in effect occurred because any member of the public could inspect the rules at the municipal office during working hours and that several objections had in fact been received.
The court rejected that argument. It reasoned (consistent with the statutory scheme) that sec. 60(b)'s schedule contemplates that the rules themselves be appended to the public notice so that the same publicity attaches to rules as to the notice. For sec. 46(2) the statute does not specify a schedule, but the provision that publication be "in such manner as shall in its opinion be sufficient for the information of the persons likely to be affected" still implies publication of the draft in the same manner as the notice so that those who see the notice can immediately consult the draft.
The court explained practical deficiencies of the municipal approach: requiring persons to visit the municipal office between 10 A.M. and 4:30 P.M. puts an onerous burden on ordinarily employed persons, inspectors or clerks may be busy, and the facility for inspection at the office is not equivalent to public posting where any person can read the rules at leisure without seeking assistance. Public posting (e.g., on the notice board or at a cross-road) allows wide, immediate and independent access.
On this basis the court concluded that the municipal board's practice of publishing only a notice that the rules were available at the office — while not appending or pasting the rules/drafts with the notice — was "liable to abuse and is no publication at all." Thus the mandatory provisions of sec. 60(b) and sec. 46(2) were not complied with.

Remedial analysis and limits:

Because the mandatory procedural steps were not followed, the court held that the taxes imposed by the municipal resolution dated 19th November 1953 and sanctioned by Government on 27th May 1954 — specifically the new taxes and the enhancements of old taxes adopted on that occasion — were invalid.
The court explicitly limited its order: taxes which existed prior to 19th November 1953 were unaffected; the municipal board remained free to realize taxes that were in existence before that date at the rates prevailing before 19th November 1953.

Holding and Implications

Holding: The court allowed the application. It held that the municipal board did not comply with the mandatory publication requirements of section 60(b) and section 46(2) of the Rajasthan Town Municipalities Act, 1951, and accordingly prohibited the Municipal Board from realizing the new taxes imposed by the resolution of 19th November 1953 and sanctioned by Government on 27th May 1954, and from realizing the old taxes at the enhanced rates imposed on 19th November 1953 and so sanctioned.

Implications and practical consequences:

Direct effect on the parties: The municipal board is restrained from collecting the challenged new taxes and the challenged rate enhancements. The applicant (Malchand) is awarded costs of Rs. 50 to be paid by the Municipal Board of Sardarshahar; other parties were ordered to bear their own costs.
Scope and limitation: The decision does not disturb taxes that existed before 19th November 1953; the municipal board may continue to collect pre-existing taxes at the pre-19th-November-1953 rates. The court did not decide the factual dispute about municipal limits or the constitutionality of the municipal election — that issue was left to the appropriate forum (an Election Tribunal under section 19 of the Act) or to further factual inquiry outside Article 226 relief.
Precedential note: The opinion rests on statutory interpretation of the publication provisions in secs. 60(b) and 46(2) and on procedural fairness (the right to be able to inspect rules/drafts easily to enable objections). The court emphasized that where the statute requires publication, the manner of publication must be such that the public can reasonably exercise the right to inspect and object; a mere office-availability notice in working hours is inadequate where the statute or schedule contemplates appended/public display.

This summary is based exclusively on the content of the provided opinion and does not include any information or inference not present in that text.

Show all summary ...

Wanchoo, C.J:— This is an application under Art. 226 of the Constitution by Malchand for issue of a writ, direction or order against the Rajasthan State and the Municipal Board, Sardarshahar.

2. The applicant is a resident of Sardarshahar and a voter and a businessman. There is a municipal board in Sardarshahar, and that Board has imposed certain new taxes and has also enhanced the rate of certain old taxes. The applicant's contention is that these taxes are invalid and cannot be realized from him. The basis of the contention is two fold. In the first place, it is urged that certain areas, namely Ramnagar and Chandaliya Ice Factories were not included in the municipal limits of Sardarshahar by any order of Government. But in the election that took place in 1953 residents of this area also-voted, and consequently the entire municipal board was illegally constituted, and therefore no taxes could be imposed by it. In the second place, it is urged that the mandatory provisions of sec. 60(b) and sec. 46(2) of the Rajasthan Town Municipalities Act (No. XXIII) of 1951 (hereinafter called the Act) were not complied with, and therefore the taxes sanctioned in the order of the Government, dated 27th May, 1954, were not valid. The application has been opposed on behalf of the State as well as by the municipal board. Their contention is that Ramnagar and Chandaliya Ice Factory areas are included in the municipal limits of Sardarshahar, and, in any case, this point cannot be agitated in this Court under Art. 226, but should have been made the basis of an election petition under sec. 19 of the Act. It has also been contended that the mandatory provisions of secs. 60(b) and 46(2) have been complied with in connection with the framing of the Rules and bye-laws imposing these taxes.

3. So far as the first point is concerned, we are of opinion that there is no force in it. In the first place, it is not the applicant's case that Ramnagar and Chandaliya Ice Factory areas return separate elected members to the municipal board. What appears is that, these areas have been tacked on to other areas which are within the municipal board, so that what must have happened is that some persons have voted in the election, who should not have voted. This is a grievance which the applicant could have taken before an Election Tribunal under sec. 19 of the Act. As that was not done, we are not prepared to allow to raise this question under Art. 226. In the second place the opposite parties have denied that the areas are not included within municipal limits. This raises a dispute of fact which also we are not prepared to decide under. Art. 226. There is no force, therefore, in the first point raised on behalf of the applicant.

4. The second point raises the question of publication before the adoption of the rules and bye-laws imposing various taxes. Sec. 59 of the Act provides what taxes may be imposed by a municipal board. Then comes sec. 60 which provides procedure preliminary to the imposition of a tax. Sec. 60(a) lays down that the municipal board shall by resolution passed at a general meeting select one or other of the taxes specified in sec. 59, and prepare rules for purposes of clause (b) of sec. 44 prescribing the tax. It then goes on to mention what should be specified in the rules. Then comes clause (b) of sec. 60 which says that when such resolution has been passed, the municipal board shall publish the rules so prepared with a notice in the form of the third schedule prefixed thereto. The reason why publication is required is that under clause, (c) the inhabitants of the municipality have been given the right to object to the imposition of the tax or to the rate proposed and so on. These objections have to be made within one month of the publication of the notice mentioned in clause (b). The municipal board has thereafter to take all such objections into consideration and unless it decides to abandon the proposed tax has to submit such objections with its opinion thereon and any modifications proposed thereupon together with the notice and the rules aforesaid to the Government for sanction. It is obvious from this procedure that the provision contained in clause (b) is a mandatory provision, for without the publication envisaged therein it would not be possible for the inhabitants to exercise their right of objection given to them under clause (c). It has not been contended on behalf of the opposite parties that the provision of publication in clause (b) is not mandatory. What they contend is that it has been complied with, and we shall deal with this later.

5. As sec. 60(b) deals with publication of rules, sec. 46(2) deals with publication of bye-laws, and provides that every municipal board shall, before making any bye-law, publish, in such manner as shall in its opinion be sufficient for the information of the persons likely to be affected thereby, a draft of the proposed bye-law together with a notice specifying a date on or after which the draft will be taken into consideration, and shall, before making the bye-law, receive and consider any objection or suggestion with respect to the draft, which may be made in writing by any person before the date so specified. Here again it is obvious that publication is provided in order that the inhabitants of that area may be able to object. Further, there is a slight difference between sec. 60 and sec. 46. Sec. 60 says that the municipal board shall by resolution select a tax and prepare rules and thereafter publish them with a notice. In the case of rules therefore the municipal board adopts the rules and then publishes them, and if there are any objections it considers them and then forwards the objections with its opinion to the Government. Under sec. 46, however, a draft of the proposed bye-laws is to be published. Therefore, the bye-law is not adopted till it is published. The municipal board then considers objections to the draft, and then adopts the bye-laws after considering, such objections. But in both the cases publication is essential.

6. It appears that the municipal board in this case has not a very clear idea of the difference of procedure between rules and bye-laws, and it seems to have followed the procedure for rules also in the case of what it calls bye-laws. However, we do not think it necessary to pursue this matter further, because we have come to the conclusion that the municipal board did not follow the mandatory procedure of publishing the rules or the bye-laws or draft bye-laws as required by secs. 60(b) and 46(2) of the Act.

7. Let us see what the municipal board has done in this case. It published a notice on the 25th of January, 1954, in which it said that the municipal board had passed certain rules Niyam and bye-laws Up-niyam on the 19th of November, 1953. The notice said that these rules and bye-laws would come into force from the 1st of April, 1954, and that if anybody had any objection to make he should do so within one month of the notice. Then followed a note which is very important and is in these words—

“The aforesaid rules are available in the office of the municipality, and the members of the public are entitled to see them any day between 10 A.M to 4-30 P.M except on close holidays.”

8. This notice was pasted on the notice board of the municipal board, and one notice was also displayed at some cross-road. But the rules and bye-laws were not displayed either on the notice board or at the cross-roads.

9. The contention of the applicant is that this is not publication within the meaning of sec. 60(b) or sec. 46(2), and therefore as the municipal board has not carried out the mandatory provisions of these two sections, the rules and bye-laws imposing these new taxes are illegal. It has been strenuously urged on behalf of the opposite parties that the intention of the legislature was carried out in substance, and that it was open to any member of the public to go to the municipal office and see the rules and bye-laws on any working day. It has also been urged that as a number of objections were received it is clear that people had come to know of the rules and the bye-laws.

10. We have given our earnest consideration to the arguments on behalf of the opposite parties, and have come to the conclusion that this is not publication as required by sec. 60(b) or sec. 46(2) of the Act. The Schedule mentioned in sec. 60(b) itself gives the form in which the notice would be published, and then bears the following—

“The rules prepared by the municipal board under clause (a) of sec. 60 are to be appended here.”

11. Obviously the intention is that rules should have the same publicity as the notice. Sec. 46(2) is slightly different in as much as no schedule is mentioned therein, and it is also provided that the publication shall be made in such manner as shall, in the opinion of the municipal board, be sufficient for the information of the persons likely to be affected. But that sub-section also provides for a notice, and we are of opinion that there also the draft bye-laws should have the same publication as the notice. We feel that a notice to the effect that rules or draft bye-laws can be seen at the office of the municipality during working hours on working days is no publication as required by law. In the first place, the working hours being 10 A.M to 4-30 P.M at which most persons are themselves busy, it will require a special effort on the part of anybody to leave his own business and go to the municipal office between these hours to see the rules. In the second place there cannot be the same facility for looking at the rules if one has to go to the municipal office and ask some clerk in charge of the rules to show them. It is not impossible that the clerk may be busy, and may keep the person who wants to see the rules waiting so much so that he might go away in disgust. On the other hand, if the rules and draft bye-laws were published in the same manner in which the notice has been published in this case, namely by being pasted on the notice board and by being put up at some cross-road, any body could go at any time and read the rules on draft bye-laws without having to ask any clerk, and nobody would be put to the inconvenience of leaving his own work from 10 A.M to 4-30 P.M in order to see the rules or draft bye-laws. Anybody could go at his own leisure and see the municipal notice board which we believe must be kept outside in the verandah or the place at the cross-roads where the notice was pasted. After giving our careful consideration therefore to the arguments on behalf of the opposite parties, we have come to the conclusion that the manner of publication adopted by the municipality is liable to abuse and is no publication at all. We are also of the view that the law contemplates that the notice and the rules and draft bye-laws should be published in the same manner so that any one who sees the notice can immediately see the rules and draft bye-laws also. As the mandatory provisions of sec. 60(b) were not complied with, the taxes imposed whether new or by way of enhancement of rate by the resolution of the municipality, dated the 19th of November, 1953, and sanctioned by the Government on the 27th of May, 1954, are invalid. We should like to make it clear that this order does not affect those taxes which were in existence from before November, 1953. It would be open to the municipal board to realize all taxes in existence before the 19th Nov., 1953, at the rates prevalent before that date.

12. We, therefore, allow the application, and prohibit the municipal board to realize the new taxes imposed on the 19th November, 1953, and sanctioned by the Government on the 27th of May, 1954, and the old taxes at the enhanced rate imposed on the 19th of November, 1953, and sanctioned by Government on the 27th of May, 1954. The applicant will get Rs. 50/- as costs from the Municipal Board of Sardarshahar. Other parties will bear their own costs.