V.M Kanade, J.:— The petitioner has filed this petition under Article 226 of the Constitution of India. The petitioner claimed to be the citizen of village Deulgaon Raja, Taluqa Deulgaon Raja, District Buldana. The petitioner is claiming the following reliefs in the said petition.

“1. It is, therefore, prayed that this Hon'ble Court be pleased to allow the petition with costs by quashing the Resolutions dated 28-2-1988 and 20-2-1988 passed by the respondent No. 2 and circular dated 25-1-1988 issued by the respondent No. 1.

(1-A) That section 11 of the Amending Act of XLV of 1975 may kindly be declared ultra vires to the Article 288 of the Constitution of India.

2. During the pendency of this petition the effect and operation of Government Circular dated 25-1-1988 and the increase taxes as per Resolution dated 28-2-1988 and 20-2-1988 be stayed.

3. Any other relief to which these petitioners are found entitled to be kindly granted to these petitioners.”

2. The petitioner, in brief, is challenging the levy of water tax which was increased by Resolution No. 6 dated 28-2-1988, whereby the Municipal Council started levying Rs. 18/- per month for pipe size ½”, Rs. 40/- in respect of 3/4” and Rs. 785/- for pipe of 1” and for construction and commercial use Rs. 80/-, Rs. 120/- and Rs. 240/- respectively. The petitioner is also challenging the increase in special latrine tax which is levied under section 108 sub-clause (d) of the Act by Resolution dated 20-2-1988. The petitioner has also challenged the constitutional liability of section 11 of the Amending Act of XLV of 1975, as being unconstitutional and ultra vires of the Constitution of India.

3. We have heard learned counsel appearing on behalf of the petitioner and respondents at length. We have perused the copy of the petition and annexures thereto. It is an admitted position that thereafter the tax structure has been changed and a consolidated tax is now being levied by the Municipal Council. The challenge, therefore, in the petition is restricted to a limited period of few years, which strictly, in our view, does not survives. The challenge to the Resolution dated 28-2-1988 and 20-2-1988 by which the Municipal Council had increased water tax and special latrine tax has, in fact, become infructuous. However, we would still like to consider the submissions made by the learned counsel appearing on behalf of the petitioner and respondents, as Rule was initially granted in this matter and in W.P No. 1186 of 1988 and the vires of the Amending Act XLV of 1975 is also challenged in this case.

4. So far as the question of validity of section 11 of the Amending Act of XLV of 1975 is concerned, in our view, the said Amending Act is valid. It is the contention of the petitioner that the said Amending Act is ultra vires of Article 288 of the Constitution of India. Article 288 of the Constitution of India, reads as follows:

“Article 288. Exemption from taxation by States in respect of water or electricity in certain cases.— (1) Save insofar as the President may by order otherwise provide, no law of a State in force immediately before the commencement of this Constitution shall impose, or authorise the imposition of, a tax in respect of any water or electricity stored, generated, consumed, distributed or sold by any authority established by any existing law or any law made by parliament for regulating or developing any inter State river or river valley.

Explanation — The expression “law of a State in force” in this clause shall include a law of a State passed or made before the commencement of this Constitution and not previously repealed, notwithstanding that it or parts of it may not be then in operation either at all or in particular areas.

(2) The Legislature of a State may by law impose, or authorise the imposition of, any tax as is mentioned in Clause (1), but no such law shall have any effect unless it has, after having been reserved for the consideration of the President, received his assent; and if any such law provides for the fixation of the rates and other incidents of such tax by means of rules or orders to be made under the law by any authority, the law shall provide for the previous consent of the President being obtained to the making of any such rule or order.”

5. The perusal of the provisions of the said Article 288(1) clearly shows that the provision of the said Article 288(1) is not applicable to the domestic or commercial use of water in respect of a village. The said Article is, therefore, restricted to an imposition of tax for inter state development regarding distribution of water in respect of inter state river of river valley. The said submission made by the learned counsel appearing on behalf of the petitioner, therefore, does not survive.

6. So far as the challenge to the vires of section 11 of the amended act as being violative of Article 288 sub-clause (2) of the Constitution of India is concerned, in our view, there is no merit in the said challenge. It was contended on behalf of the petitioner that the Amending Act was brought into force without the previous assent of the President of India and was brought into force only by assent of the Governor of Maharashtra which was received on 16-9-1995. It was contended that, therefore, the amendment to the original section by the amending section was without assent of the President of India and, therefore, the provisions are ultra vires of the Constitution of India. The legal position is quite clear under clause 2 of Article 246 of the Constitution of India, the Parliament and the Legislature of any State Government is empowered to make laws with respect to any of the matters enumerated in List III i.e a concurrent list in VIIth Schedule of the Constitution. Similarly, under clause 3 of Article 246, the State Legislature has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in the List II i.e State List under VIIth Schedule of the Constitution. Thus, where the law made by the State Legislature is in respect of any of the matters enumerated in the concurrent list, then assent of the President is required to be taken as per Article 254(2) of the Constitution. It is, however, well settled that if the State Legislature passes any law with respect to any of the matter enumerated in List II in the Vllth Schedule of the Constitution then as per the provisions of Article 200 of the Constitution, the assent of the Governor of the State is sufficient.

7. In the present case so far as the Maharashtra Municipal Councils Nagar Panchayats and Industrial Townships Act, 1965 (hereinafter referred as “the Act”) is concerned, there are several matters which fall within the purview of the concurrent list of the Constitution and, therefore, the assent of the President of India was necessary. Hence, the Act was published in the Maharashtra Government Gazette Part IV on 16th September 1965 after receiving assent of the President of India on 7th September, 1965. However, so far as the Amendment Act is concerned i.e the Maharashtra Act XLV 1975, the provisions of the said Amendment Act fall under entries 5, 6 and 49 in the State List II in the 7th Schedule of the Constitution of India and hence it does not require the assent of the President of India. In our view, therefore, there is no violation to the provisions of Articles 288(1) and 288(2) of the Constitution of India.

8. Lastly section 112 of the said Act applies to compulsory and discretionary taxes including special sanitation taxes, special water taxes imposed by the Counsel under section 105 and 108 of the said Act. Coupled with this fact, section 323 of the main Act empowers the State Government to make Model Bye-laws for the Councils. The State Government in exercise of the powers under section 323(1) read with section 108 of the Maharashtra Municipalities Act, 1965 has framed Model Bye-laws for imposition of Special Sanitation Taxes. Further, section 112 of the Maharashtra Municipalities Act empowers the Council to increase or reduce the amount of rate at which taxes are leviable and to that extent Bye-laws already sanctioned by the State Government stands amended. In our view, therefore, the taxes covered under section 112 of the Maharashtra Municipalities Act do not fall within the ambit of Article 288(2) of the Constitution of India. We therefore, do not find any merit in the submissions made by the learned counsel appearing on behalf of the petitioner pertaining to the validity of the Amending Act No. XLV of 1975.

9. The learned counsel appearing on behalf of the petitioner has further submitted that though water tax is termed as special water tax, it is essentially a fee charged for the service rendered and the power to increase tax is subject to the provisions of the Act particularly the provisions of sections 321 and 323 of the Act and, therefore, it is submitted that the tax could be levied only as per the Bye-laws of the Municipal Council and could be increased to the extent of the Bye-laws already sanctioned by the Government. It is submitted that the new rates are not sanctioned by the Bye-laws of the respondent No. 1 under the provisions of sections 322 and 323 of the Act and further it is submitted that there is no correlation between the taxes and the services rendered. It is further submitted in respect of increase in special latrine tax which is leviable under section 108, sub-clause (d) of the Act, the same has been increased as per the directives of the respondent No. 1 as per the Circular dated 25-1-1988 and it has no correlation with the services rendered by the respondent No. 2 and it is arbitrary and excessive and, therefore, violative of Article 14 of the Constitution of India. In our view, both these submissions cannot be accepted. So far as first contention in respect of increase in water tax is concerned, the Municipal Council has a right to vary rate of tax as provided under section 112 of the said Act. Section 112 reads as follows:

“112. Council may vary rate of tax within prescribed limits.— (1) Notwithstanding any rule, bye-law or resolution specifying the amount of rate at which a tax is leviable, a Council may, by a resolution passed at a special meeting, decide to increase or reduce the amount or rate at which such tax is leviable and to that extent the bye-laws already sanctioned by the State Government shall be deemed to have been suitably amended with effect from the date specified in the notice referred to under subsection (2):

Provided that—

(a) such increase or reduction shall be within the maximum and minimum limits fixed in respect of such tax under the rules;

(2) When a Council has by a resolution decided to increase or reduce the amount or rate at which any tax is leviable, the Council shall publish in the municipal area the resolution together with notice specifying a date, which shall not be less than thirty days from the date of publication of such notice, from which the amount or rate at which any tax is leviable shall be increased or reduced. The tax at the amount or rate so increased or reduced shall be leviable from the date specified in such notice. When the rate at which any tax is leviable is increased by publication of the resolution under this section, it shall not be necessary to give any separate notice thereof to the owners or occupiers of the properties affected thereby.

(2) Assessment and liability to tax on buildings and lands.”

Section, thus, starts with a non-obstante clause and notwithstanding any rule, bye-law or resolution, a Council may by a resolution passed under the special meeting, increase or reduce the rate of tax and to that extent the bye-laws which are already sanctioned by the State Government shall be deemed to have been suitably amended with effect from the dates specified under the Notice referred to under sub-section (2). Since the validity of section 11 of the Amendment Act XLV 1975 has been upheld, it is open for the Municipal Council to increase or reduce the tax. The Municipal Council in its Resolution has stated that in view of the increase in the expenditure in the supply of water in the water project it was necessary to increase water tax. The Municipal Council also took into consideration the reports submitted by the Chief Officer in which he has stated that there was a loss incurred by the Municipal Council to the tune of lacs of rupees since the year 1984–85 and that intimation was received by the Government that the Project could not be continued if further losses were incurred. In the said Resolution, therefore, the Municipal Council had taken into consideration the fact that in order to develop the city and the existing water system it was necessary to increase the water rates from 1-4-1988 and, therefore, by exercising powers vested in the Municipal Council under section 112(2) of the Maharashtra Municipalities Act, water tax is increased. We do not find that there is any infirmity in increasing the said water tax and we are of the opinion that the Municipal Council had power and authority which was vested in it under section 112(2) of the said Act to increase the water tax. The submission of the learned counsel that increase in water tax is, therefore, excessive and arbitrary cannot be accepted. The submission of the learned counsel appearing on behalf of the petitioner that the said levy was not a tax but a fee also cannot be sustained.

10. So far as the challenge to the special latrine tax is concerned, the submission made by the learned counsel appearing on behalf of the petitioner cannot be accepted. The circular dated 25-1-1988 which is issued by the Director of Municipal Administration, Maharashtra State, has been addressed to all the Municipal Councils in the Maharashtra State. We have read the said circular which is annexed to the Return filed by the State of Maharashtra. It is very clear from the plain reading of the circular itself that the intention behind issuance of the circular is to enforce and give effect to the Government decision as contemplated in Government Circular No. BYE1087/801.CR-73/87 UD 14 dated 17-6-1987. The said circular was issued in order to eradicate the practice of scavenging and to liberate sweepers from scavenging work and, therefore, the Government had taken the decision to take up a time bound programme for converting dry latrine into that of water borne latrine. The Government in its affidavit has stated that it was brought to the notice of the Government that the owners, citizens did not want to convert their dry latrines and therefore, the Municipal council had adopted the rate i.e sanitation tax at the minimum rates prescribed under the Model Bye-laws framed by the Government under section 323(1) read with section 108(2)(d) and 322 of the said Act. The Government, therefore, decided to increase minimum rates prescribed under the aforesaid Model Bye-laws for cleaning their latrines so that the owners would also consider conversion of latrines. It is stated by the Government in its Return that the intention of the Government in increasing the special sanitation tax was not to collect the additional revenue from Municipal Council but to encourage the owners/citizens to convert their dry latrine into water borne latrine and, therefore, the special latrine tax was increased. The Government in its Return in para 3 of the affidavit has laid down the various details and factors to be taken into consideration for increasing the said special latrine tax. In our view, we do not find that the said tax has been increased arbitrarily or is excessive but there is a definite purpose for increase in the said tax and which is for the benefits of all the citizens and also in the interest of public hygiene and the Government in its return has given statics to show that the calculation of the petitioner about average salary of Rs. 500/- p.m per sweeper is baseless. In our view, the said reasonings given by the Government in its Return in para 3 dated 31-1-1989 cannot be faulted. The submission of the leaned counsel appearing on behalf of the petitioner in respect of the increase of special latrine tax being excessive and arbitrary, therefore, cannot be accepted.

11. In the result, there is no merit in the said petition and the petition is, therefore, liable to be dismissed. However, we would like to observe that the Municipal Council should endeavour to provide water supply to the residents of the village in summer season for a longer duration. We feel that if they are supplying water only for a short duration of 10 minutes, they should try to increase the said duration by a reasonable period by adjusting the water supply throughout the year, so that the residents of the village get water at least for half an hour in the morning and half an hour in the evening. We hope that this suggestion and recommendation made by us will be seriously considered by the Municipal Council.

12. In the result, writ petition is dismissed and rule is discharged. Under these circumstances, there shall be no order as to costs.

Writ petition dismissed.