TaxTMI 
TaxTMI 
2014 (10) TMI 986
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.... common judgment. 2 For properly appreciating the arguments of the parties, the facts in Writ Petition No.2720/2013 are referred to. 3 The challenge in this Writ Petition is to the legality and validity of Section 127(2)(aaa), Section 99 (partly) and Section 152T of the Bombay Provincial Municipal Corporations Act, 1949 and now the Maharashtra Municipal Corporations Act. The provisions as particularly indicated in the prayer clauses together with Notifications are impugned as being ultra vires Part IXA of the Constitution of India and particularly Articles 243W and 243X. The prayers read as under:- "(a) This Hon'ble Court may be pleased to invoke it's writ jurisdiction under Article 226 of the Constitution of India and be pleased to issue a writ of mandamus or a writ, direction or order in the nature of mandamus and be pleased to; (i) hold and declare that Sections 127(2)(aaa), 99(partly) and S.152-T of the Bombay Provincial Municipal Corporation Act, 1949 unconstitutional and ultra vires the provisions of Part IXA and Article 243W and Article 243X in particular of the Constitution of India and be struck down. (ii) hold and declare that Sect....
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....orporations. However, the State Government from time to time acted at the behest of such traders and their Associations so as to initiate action to do away with Octroi and to replace the same with a system more beneficial to them. In furtherance of it's object to help the traders, the Respondent No.1 vide a Notification dated 21st October, 2008 sought to impose cess on the D-Class Municipal Corporations governed under the provisions of the said Act in place of Octroi. There are 16 such Municipal Corporations which fall under D-Class in the state of Maharashtra. The Respondent No.1, however, realized the mistake in implementation of cess as the same would be totally non feasible and against the interest of the Municipal Corporations. The Respondent No.1 vide a Notification dated 15 th November 2008 cancelled the levy of the Cess which was to replace Octroi. This was done on account of various representations by the D Class Municipal Corporations as also the adverse effect noticed on the financial stability of the said Municipal Corporations. 6 It is submitted that it is a matter of record that all the Municipal Corporations have raised protest against such an action of the Re....
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....42. Furthermore, Section 99B and 99C are incorporated pertaining to determination of categories of goods for Local Body Tax by the State Government. Section 99C dispenses with the application of Section 99B when the Local Body Tax is to be first levied. The impugned Act also amends Sub Section (2) of Section 127 to incorporate Section 127(2)(aaa) so as to include Local Body Tax to be levied by the Municipal Corporations on the entry of goods into the limits of the city for consumption, use or sale therein in lieu of Octroi or Cess if so directed by the State Government by Notification in Official Gazette. Furthermore by incorporation of Section 149A, an additional stamp duty of 1% on certain transfers of immoveable properties in Municipal areas has been incorporated so as to make a provision to purportedly compensate the loss of revenue which the Corporations may suffer on account of dispensation of Octroi. By incorporating Chapter XI-B to the said Act, provisions are made as regard 'levy' of Local Body Tax. Section 152T as introduced illegally confers power on the State Government to make Rules by Notification in the Official Gazette to carry out the purposes of the Act. T....
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....g the very existence of the Municipal Corporations are far reaching and will affect the public at large. In such circumstances the Respondent No.1 deciding that publication of draft rules in Government Gazette would suffice and was sufficient is, therefore, erroneous. Thus the impugned Notification of 2010 being conclusive proof of there being no previous publication as required under section 152T, therefore, cannot be accepted and/or presumed. Thus the impugned Notification of Rules 2010 is illegal and bad in law for there being no previous publication as provided by Section 24 of the Bombay General Clauses Act, 1904. That the Impugned Rules 2010 are, therefore, finalized without abiding with the legal requirement of previous publication. That the impugned Rules, therefore, are illegal and bad-in- law. The Petitioners stated that the whole procedure undertaken is per se illegal and bad-in-law. That the Respondent No.1 has not yet finalized the rates to be charged under the Rules and a letter dated 25.02.2013 has been issued belatedly to call upon the Corporations to come for a hearing upon the said issue on 02.03.2013. Annexure C is a copy of the said letter. It is, therefore, app....
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....sing objections and/or suggestions and being heard thereupon. 11 It is stated that the Petitioners have represented and opposed the Respondent No.1's impugned decision of discontinuing Octroi by *11* wp.2720.13.group.as.lbt substituting with Local Body Tax and have corresponded regarding the illegality of the same with the Respondent No.1. The Petitioners have pointed out how the same would bring about a situation of emergency due to financial break down of the Municipal Corporations. The Petitioners have immediately contacted their counterparts in other Municipal Corporations and Municipalities to gather information and have gathered all the information. The Petitioners have also immediately submitted their representation inter alia pointing out that it would be inappropriate, arbitrary and illegal for the Respondent No.1 to discontinue the levy of octroi and imposition of Local Body Tax upon the Municipal Corporations. It was, therefore, requested by the Petitioners to the Respondent No.1 that a hearing be accorded to them so that all the evils which would arise if the impugned act is implemented, can be demonstrated. Annexures D, E and F to the Petition are copies of t....
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....is per se ultra-vires and unconstitutional inasmuch as it violates the provisions of Part IX-A of the Constitution of India and is also against the basic objects and reasons of the 74th Amendment Act, 1992. That the same amends the Constitution of India and incorporates Part IX-A dealing with Municipalities in the Constitution of India. It is stated that the impugned Amendment Act 2009 is also in direct conflict with the existing provisions of Sections 99, 149, 455, 457 of the said Act as set out in detail in the body of this Writ Petition. By the impugned Act, the Respondent No.1 has taken away, *13* wp.2720.13.group.as.lbt deprived and/or abdicated the Municipal Corporations functioning under the said Act of its powers to choose and levy appropriate taxes as per the provisions of the said Act. In short, by the impugned Act the Respondent No.1 has foisted upon the Municipal Corporations the Local Body Tax which is wholly against the financial interest, financial viability and the stability and/or existence of the Municipal Corporations. The impugned legislation has been enacted disregarding the Constitutional mandate only to favour the demand of the traders to do away with Octroi.....
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....e Respondent No.2 to 6 Municipal Corporations into confidence and the same is at the instigation of the traders. That in doing so the Respondent has clearly transgressed the constitutional mandate as contained in Part IX-A of the Constitution. 15 It is, therefore, stated that the above Constitutional mandate is not being considered and the Respondent No.1 has gone ahead and issued impugned Notification dated 25.02.2013 directing the Respondent Nos.2 to 6 to impose the Local Body Tax from 01.04.2013 in their Corporation limits by discontinuing the Octroi collections. The Respondent No.1 appears to be hell-bent and adamant to impose the levy of Local Body Tax despite the legal position being that the impugned Act, Rule & Notification are ultra vires, illegal, unreasonable, null and void. That in fact almost all the Municipal Corporations wherein the Respondent No.1 has imposed Local Body Tax in lieu of Octroi by issuing identical *15* wp.2720.13.group.as.lbt Notifications previous to the presently impugned one have approached this Hon'ble Court by challenging the impugned Act and Rules as also the Notifications identical to the presently impugned one dated 25.02.2013. That ....
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....ion going to the root of the matter is, whether, the Octroi and which was the source of revenue was serving the object and purpose of the Legislation. It is at the instance of the Trader Community and who devised ways and means to circumvent and avoid the Octroi Post/Check Naka that the Government has stepped in. 19 Ms.Karnik has invited our attention to the then BPMC Act, 1949 and now styled as the Maharashtra Municipal Corporation Act. She submits that by Chapter-X what has been indicated is firstly the borrowing powers and thereafter, the provisions whereunder there are powers conferred in the Municipal Corporations to borrow the money. The provisions as are incorporated under Chapter-X of the said Act and now under the Maharashtra Municipal Corporation Act under the same heading, would indicate that the Municipal funds and other funds which have to be generated, augmented and maintained are not enough for the purpose of discharging the diverse functions and duties. In that regard, Ms.Karnik submits that by Section 109A of the said Act there are restrictions on utilisation of funds created by the Corporation and it states *17* wp.2720.13.group.as.lbt that notwithstanding anyt....
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.... as an independent unit of Local Self Government. This status is in jeopardy and danger of being interfered with. She submits that such interference is apparent from the language of Section 127(2)(aaa) by which it is imperative for the Corporation to shift to levy, assess and recover the Local Body Tax. Thus, earlier provision of Section 127(2) with it's language in comparison did not amount to such an interference with independence and autonomy of the Corporation. There, the Corporation had discretion to levy Octroi or in lieu of Octroi a Cess on the goods brought within the limits of the city for consumption, use or sale thereof. This could have been levied in lieu of Octroi with the previous sanction of the State Government. In juxtaposition the language of clause (aaa) of Section 127(2) is peculiar and leaving no discretion or option at all. If there is direction by the Government which is published in the Official Gazette to impose Local Body Tax on the entry of goods for consumption, use or sale in the city, then, it means that Octroi or Cess has to be replaced necessarily by such Local Body Tax. Thereafter, no Octroi or Cess can be imposed. By such drastic measure the....
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....ll also be determined by the Government. The Government will also determine the goods on which Local Body Tax has to be levied and in that regard *20* wp.2720.13.group.as.lbt Ms.Karnik invites our attention to Sections 99B, 99C and 99D which have been brought in by the amendment. She submits that this would show that the entire regime of Local Body Tax is controlled and regulated by the State Government. The Corporation cannot, even if the tax is named as Local Body Tax, do anything in relation to levy and imposition of this tax. Such being the mandate of law, now there is no alternative but to hold that the impugned provisions contravene the Constitutional mandate as emphasized above. 22 Our attention is then invited by Ms.Karnik to Section 152P of the said Act. She submits that apart from inherent contradiction and irreconciliation as between Section 127(2) and Section 127(2)(aaa), additionally Chapter XI-B has been brought in the statute book. "Provisions relating to Local Body Tax" is the title of this Chapter. All the provisions from Sections 152P to 152T appearing therein would indicate as to how the authority and power of the Corporation is taken over by the State Governm....
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....ate Government cannot place reliance upon the very same recommendations which when acted upon have failed. That the State Government has set up Committees as per the Government Resolution dated 28.12.2011 for finding any better taxation policy other than Local Body Tax and this fact is not denied by the Respondents in their reply. However, the conclusions of the said study *22* wp.2720.13.group.as.lbt Group are not placed before this Court. It is, therefore, submitted that the decision to impose Local Body Tax is arbitrary. That the Schedule D Rule 288 of the Octroi Rules provides for an account-based system and the said power ought to have been better regulated so that the objections by small traders regarding paper work could have been ameliorated by checking at entry point & alleged harassment of medium and big traders could have been taken care of under Rule 288. This double filtered checking system would have benefited the Corporation, whereas impugned decision now puts this crucial Muncipal tax at the mercy of self-declaration of the traders. Ms.Karnik has further submitted that the reasons for introducing Local Body Tax are set out in the statement & object and it is stat....
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....he other hand, Mr.Shinde, learned Additional Government Pleader appearing on behalf of the State, submitted that in the Affidavit in Reply there is point-wise answer given to the objections raised to the levy of Local Body Tax. It is pointed out as to how these objections can be said to be frivolous and without any basis. Mr.Shinde has invited our attention to the affidavit of Mr.Govind Appasaheb Lokhande, Deputy Secretary, Urban Development Department, Mantralaya, Mumbai dated 28.07.2014. Mr.Shinde submits that this Writ Petition has been filed only by the representatives of employees in Thane, *24* wp.2720.13.group.as.lbt Pune, Pimpri Chinchwad, Nagpur and Navi Mumbai Municipal Corporations. The direction of the State is issued to several Municipal Corporations. Pertinently none of the Municipal Corporations are aggrieved and have come forward to challenge imposition of levy far from it's legality and constitutionality. The Corporations have a distinct legal identity and independent of their employees. It is capable of suing and being sued in it's own name. It has not come forward to assail the legal provisions. Therefore, the employees and Unions who have a vested intere....
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....onstitutional amendments made in the year 1992, Parts IX and IX-A have been inserted in the Constitution of India. Clause (aa) referred above has been on the statute book from 1996 i.e. after the constitutional amendment, but none has complained that it falls foul of the constitutional provisions referred by Ms.Karnik. In such circumstances there is no substance in the contentions of Ms.Karnik that absence of proviso as appearing below clause (aa) in the newly added and inserted clause (aaa) makes much difference. By sub-section (2) of Section 127 there is discretion in the Corporation to impose any additional taxes. However, the discretion ends the moment there is a direction from the State to levy the cess on entry of goods into the limits of the city for consumption, use or sale therein in lieu of octroi. Hence, what one finds by insertion of clause (aaa) is that the State has brought in the Local Body Tax on the entry of goods into the limits of the city for consumption, use or sale therein in lieu of octroi or cess if so directed by the State Government. This provision is similar to the proviso below clause (aa) of *26* wp.2720.13.group.as.lbt Section 127 of the said Act. ....
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....n to paragraphs 9 and 10 of the affidavit filed in reply. He has submitted that the traders and transporters, so also, general public have welcomed the introduction of Local Body Tax and replacement of octroi therewith. The number of traders who have registered themselves is increasing. The difference is that the Local Body Tax is collected on the basis of accounts maintained by the traders while the octroi was collected directly from the transporters at the time of entry in the Municipal Limits of the Corporations. The rates of octroi and Local Body Tax are same. The revenue collected in the Municipal limits goes to the Corporation itself. The tax is charged on the turnover and therefore, there is increasing trend in the revenue received from this tax and which was not possible earlier in octroi. Similarly, the expenditure on tax collection has also reduced as few employees/ man power is required for assessment of returns received from the Traders. Mr.Shinde submits that to generate additional revenue to the concerned Municipal Corporation, the State Government grants 1% of the total stamp duty collected within the jurisdiction of such Municipal Corporation. Thus, all efforts a....
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....ime to time by the various Municipal Corporations as alleged or at all. It is denied that the levy of Local Body Tax is totally non feasible in effective and wholly unreasonable, arbitrary and violative of Article 14 of the Constitution of India as alleged or at all. I say that the Petitioners have not provided the details of time to time representations. It is denied that the Respondent No.1 is forcing the respective Corporations to implement the provisions of the Act and Rules as alleged. ........ 26. With reference to para 14-A of the Writ Petition, I say that Article 243W of the Constitution of India, it is not obligatory for the State legislature to make a law to endow the municipal bodies the right to levy and collect municipal taxes, but it is an enabling provision. It is denied that the impugned Act is ultra vires of the provision of Part IX-A of the Constitution and in particular Article 243W of the Constitution of India as alleged or at all. I crave leave to refer to and rely upon Article 243W, 243X and 243Y of the Constitution of India for its true interpretation and legal effect thereof. It is denied that a reading of this Articles gives power and verdict to the cons....
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....the stand of the State, the Constitutional Scheme is wholly defeated and frustrated. She, therefore, submits that none of the judgments cited by Mr.Shinde and particularly the Full Bench judgment of the Madhya Pradesh High Court will assist the State in any manner. She submits that even other judgment of the Honourable Supreme Court of India in the case of Shanti G. Patel v/s State of Maharashtra reported in AIR 2006 SC 1104 will not assist the Respondents and therefore, the Writ Petition be allowed. 36 For properly appreciating the rival contentions we would first make reference to the position and status of the Municipalities under the Constitution of India. Part IXA of the Constitution of India contains the provisions regarding "the Municipalities". Article 243P contains the definitions and insofar as the term "Municipality", Article 243P(e) defines the term to mean an Institution of Self Government constituted under Article 243Q of the Constitution of India. Article 243Q deals with "Constitution of Municipalities" whereas Article 243R deals with it's composition. The constitution and composition of Ward Committees, etc. is dealt with by Article 243S and Article 243T prov....
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....s to make the necessary law. Even in terms of this Constitutional Scheme the law making power of the State is untouched. The power to impose tax by, and funds of, the Municipalities, is granted vide Article 243X. That reads *33* wp.2720.13.group.as.lbt as under:- "243X. Power to impose taxes by, and funds of, the Municipalities - The Legislature of a State may, by law - (a) authorise a Municipality to levy, collect and appropriate such taxes, duties, tolls and fees in accordance with such procedure and subject to such limits; (b) assign to a Municipality such taxes, duties, tolls and fees levied and collected by the State-Government for such purposes and subject to such conditions and limits; (c) provide for making, such grants-in-aid to the Municipalities from the Consolidated Fund of the State; and (d) provide for constitution of such Funds for crediting all moneys received respectively, by or on behalf of the Municipalities and also for the withdrawal of such moneys therefrom, as may be specified in the law." 38 Therefore, what we have held above gets further reinforced and supported by Article 243X of the Constitution of ....
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....taxes specified in sub-section (1) the Corporation may for the purposes of this Act and subject to the provisions thereof impose any of the following taxes, namely :- (a) octroi; (aa) a cess on entry of goods into the limits of the City for consumption, use or sale therein to be levied in lieu of Octroi with the previous sanction of the State Government: *35* wp.2720.13.group.as.lbt Provided that, the State Government may, by notification in the Official Gazette, direct the Corporation to levy the cess on the entry of the goods into the City for consumption, use or sale therein, in lieu of octroi; (aaa) Local Body Tax on the entry of the goods into the limits of the City for consumption, use or sale therein, in lieu of octroi or cess, if so directed by the State Government by Notification in the Official Gazette; (b) ......... (c) a tax on dogs; (d) a theatre tax; (e) a toll on animals and vehicles entering the City; (f) any other tax not being a tax on professions, trades, callings and employments which the State Legislature has power under the Constitution to impose in the State. (2A) Notwit....
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.... words, there is a contention raised that the proviso below clause (aa) confers discretion in the State Government to direct levy of cess on entry of the goods into the limits of the city for consumption, use or sale therein, in lieu of octroi whereas in comparison clause (aaa) does not contain any such proviso. That the absence of any proviso to clause (aaa) would show that once the State directs that Local Body Tax should be imposed, then, the Corporation has no choice or option, but to so impose it. 40 We do not see how the proviso to clause (aa) can be read in the manner suggested by Ms.Karnik. The Corporation has a discretion to impose and levy a cess on entry of the goods into the limits of the city in lieu of octroi, but even for that it requires previous sanction of the State Government. The Corporation can shift to such cess in lieu of octroi, but in doing away with the octroi in this manner it would require previous sanction of the State Government. Therefore, the option given to switch over to cess in lieu of octroi is also conditional upon previous sanction of the State Government. If there is no previous sanction the cess cannot be levied is clear from clause (aa). ....
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....tation within fifteen days as to why such instructions or directions shall not be issued. If the Corporation fails to represent within fifteen days or, after having represented the State Government, on considering the representation, is of the opinion that issuing of such instructions or directions is necessary, the State Government may issue the same." 42 Therefore, merely because a power is conferred in the State Government to issue instructions or directions, does not mean that the State would exercise it frequently and indiscriminately or as per it's whims and fancies. The power in the State is coupled with a duty. The State is expected to exercise this power bonafide and for the reasons indicated in the statute. That is an overall control and the State is in a position of a patriarch or parent. The State would ensure that the constitutional mandate is not in any way defeated and frustrated or frittered away by the *39* wp.2720.13.group.as.lbt Municipalities and that is why the law enacted by the Legislature contains such provisions. A check and balance system in the form of supervision and control by the State is devised so as not to waste the mandate of the Constitutio....
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....elegated the power to tax by the concerned State Legislature. In Union Territories which do not have Legislative Assemblies of their own, such a power would have to be delegated by Parliament. Of the rest, those which have Legislative Assemblies of their own would have to specifically empower Municipalities within them with the power to levy taxes. 94. We have already held that despite the fact that certain Union Territories have Legislative Assemblies of their own, they are very much under the supervision of the Union Government and cannot be said to have an independent status. Under our Constitutional scheme, all taxation must fall within either of two categories : State Taxation or Union Taxation. Since it is axiomatic that taxes levied by authorities within a State would amount to State taxation, it would appear that the words "or by any authority within a State" have been added in Article 285(1) by way of abundant caution. It could also be that these words owe their presence in the provision to historical reasons; it may be noted that Section 154 of the 1935 Act was similarly worded. The fact that Article 289(1), which in its phraseology is different from Section 155 ....
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....ling the Municipal Corporation to take *42* wp.2720.13.group.as.lbt care of these matters and also to frame the Rules in that regard. However, when it comes to Local Body Tax all such provisions are clearly absent and that is why we should take assistance of the provisions like clause (aa) or the proviso thereto and such other Sections in the said Act. 45 Ms.Karnik submits that such is the extent of control and regulation of the State in the matter of Local Body Tax that the Municipal Corporation is helpless. It cannot request the State that it should be given any exemption or it should be relieved from imposition or levy of Local Body Tax. The moment the notification is issued by the State Government in the official Gazette and which contains the direction to the Municipal Corporation concerned to impose and levy Local Body Tax in lieu of octroi or cess, the Municipal Corporation is obliged to do so. It must carry out and implement this direction of the State. Secondly, if one has a look at the other provisions and particularly Sections 99A, 99B, 99C and 99D in juxtaposition and in comparison with Section 99 of the said Act, then, this aspect becomes clear and unambiguous. She ....
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....nder section 99C. (2) Every notification issued under sub-section (1) shall be laid, as soon as may be, after it is issued, before each House of the State Legislature." 47 True it is that the determination of categories of goods for the Local Body Tax has to be done by the State Government, but that is by virtue of it's position as the patriarch and parent as noted above. The *44* wp.2720.13.group.as.lbt power is conferred in the highest executive functionary, namely, State Government. It is presumed that this power will be exercised bonafide, reasonably and for upholding the avowed object and purpose of the said Act. Further, there are inbuilt checks and safeguards in the scheme of Section 99B to Section 99D itself. When the State determines the categories of goods for Local Body Tax it is obliged to consider the proposals of the Commissioner. Further, that power is subject to the limitations and conditions prescribed in Chapter XIB which contains the provisions relating to Local Body Tax. There, the levy of Local Body Tax is by the Corporation. It levies and collects the Local Body Tax subject to the provisions of Chapter XIB and Rules. Similarly, there also the S....
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....s not necessarily work in tandem or in coordination with the Municipal Corporation. There is a tendency to override the Municipal Corporation and through the Commissioner. Therefore, the Commissioner may forward the proposals favourable to the State Government or party in power in the State or he may not forward any proposal for consideration at all, then, that would enable the State Government to impose it's decisions and directions on an elected body like the Municipal Corporation. That is how the constitutional scheme would be defeated and frustrated. 48 We do not find any basis for this apprehension. These submissions overlook the provisions of the said Act. The said Act firstly sets out the definition of "Corporation". The "Corporation" is defined in the Constitution itself. It is an entity which comes into being in a larger urban area. The constitution of the Corporation is set out in Section 3 of *46* wp.2720.13.group.as.lbt the said Act. The municipal authorities and charged with execution of the said Act are those set out in Section 4. One such municipal authority is the Municipal Commissioner. However, the Corporation by itself is understood as a body corporate hav....
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....the State Government by incorporating them in his proposal. In other words, the proposals of the Commissioner would contain the decisions taken by the General Body at its meetings, views and suggestions incorporated in the resolutions of the General Body passed from time to time and equally those of the Authorities who are put in charge of the matters and which are specified by the said Act. Once this is the scheme of the Municipal Law and it is understood in this manner, so also, in this perspective, then, there is no warrant or basis for the apprehension expressed by Ms.Karnik. 50 Eventually, if the Municipal governance vests in the Corporation and it is taken to be the representative body of the people residing within it's limits, then, it is the voice of the people themselves. They speak through their representatives. Ignoring the Municipal Corporation would mean ignoring the residents themselves. By no stretch of imagination any of the provisions and which are attacked by the Petitioners can be so read as taking away this position and status of the Municipal Corporation. It is a body corporate representing the people. It is a Government at the municipal level. Once i....
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....uld be in a position to sidetrack leave alone bypass the Municipal Councillors. Even if the Commissioner is appointed by the State Government and has to perform certain balancing acts, yet it is expected of him that he communicates to the State the desires and wishes of the local population. These wishes and desires may not be palatable or acceptable to those who are in power at the State Level. They may be of different political thought and idea, but so long as the area within the municipal limits or city forms a part of the State boundary and is within the State, then, the State Government also is expected to ask the Commissioner to incorporate in his proposals all such views and suggestions and which may not be in tune with the Commissioner's thought process. Therefore, not only the Commissioner is obliged to incorporate in his proposals all views and suggestions and with which he agrees or otherwise, but equally the State while considering the proposals forwarded or in the event no such proposals being forwarded by the Commissioner, must insist on the Resolution of the Municipal Corporation on the subject being forwarded to it. It can call upon the Commissioner to obtain th....
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....al Body Tax is directed to be imposed and levied so as to take care of interest of the traders alone, we do not find any basis or foundation for the further allegation that the Municipal Corporation's revenue collection would be necessarily reduced or decreased. Just as the municipal employees are expected to recover all taxes including octroi honestly and diligently, equally when they are expected to recover the Local Body Tax, they have to act accordingly. They cannot shirk their responsibility and avoid their duty. There are enough provisions and when some of the sections in relation to the cess and it's recovery have been mutatis mutandis made applicable to the levy, assessment and recovery of the Local Body Tax, then, all the more there is no force in the contentions of Ms.Karnik. The employees are also expected to uphold the interest of the Municipal Corporation and that of the public of which they are part of. They have enough powers and to enter upon the premises, effect searches, inspection, etc.. We have noted them exhaustively. In these circumstances we do not find any basis for the complaint that the revenue collection will be adversely affected and thereby caus....
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....3Y which provides that the Finance Commission constituted under Article 243I shall also review the financial position of the Municipalities and make recommendations to the Governor as to the principles which should govern the distribution between the State and the Municipalities of the net proceeds of the taxes, tolls and fees leviable by the State. The said provision also prescribes the determination of the taxes, duties, tolls and fees which may be assigned to, or appropriated by, the Municipalities. 20. It is submitted by the learned counsel for the petitioners that if the aforesaid Article is scanned and scrutinized in proper perspective, it is absolutely vivid that the Legislature of the State has been authorised by the Constitution only to authorise the Municipalities for the purpose of levy, collection and appropriation of certain taxes but there is no other power bestowed on the Legislature. The Legislation has to be in accordance with concept of institution of self-governance but the Legislature by ordaining the procedure has transgressed its limits. 21. On a bare reading of the aforesaid Article, it is perceptible that Article 243W clearly stipulates tha....
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....n the case of Indian Oil Corporation Ltd. (AIR 1995 SC 1480) (supra) have lost their effectiveness because of the base of the said pronouncements has been wiped out by amendment brought in the enactments which has fundamentally altered the situation. (vii) Sections 138 of the Municipal Corporation Act and Sections 126, 127 and 127A of the Municipalities Act are not defiant of Article 14 of the Constitution of India and do not suffer the frown of the equality clause or any kind of arbitrariness or irrationality. (viii) Though amendments in respect of other provisions in both the statutes have not been carried out, there is no inconsistency and a harmonious construction is possible and, therefore, on that score the aforesaid provisions cannot be declared as ultra vires. (ix) With regard to imposition on penalty as provided under Section 138(3) of the Corporation Act and 126(3) of the Municipalities Act, it is inappropriate to state that the authorities, have no discretion to reduce it or there is an unrebuttable presumption in that regard. If the property owner can satisfactorily show that there was bona fide error or mistake on his part, the competent asse....
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....oup.as.lbt classifications made under the principal enactment and the 1987 Rules." 57 The other decisions cited by Mr.Shinde need not be specifically referred. 58 Lastly, we do not find any basis for the complaint made by Ms.Karnik that the dispensation of previous publication and while enacting and framing the Rules falls foul of the provisions and particularly contained in the Bombay General Clauses Act, 1904. 59 In that regard it has been clarified by the Respondents in the affidavit filed in reply and particularly while dealing with the ground 14(J) of the Writ Petition. The Respondent No.1 has denied that wide publicity to the proposed Rules was not given. We find that the Draft Rules were published in the Government Gazette and that has not been denied. The argument is that in addition to this the Draft Rules ought to have been published in the local newspapers. However, reliance was placed on Section 24 of the Bombay General Clauses Act, 1904 by both sides. When the reliance was placed on this provision that itself belies the stand of the Petitioners that the draft was not published. In this case the draft was published in the Government Gazette. Ms.Karnik would ....