MUNICIPAL BOARD, SITAPUR versus PRAYAG NARAIN SAIGAL & FIRM MOOSARAM BHAGWANDAS

MUNICIPAL BOARD, SITAPUR

PRAYAG NARAIN SAIGAL & FIRM MOOSARAM'. BHAGWANDAS

January 16, 1969

[S. M. SIKRI. R. S. BACHAWAT AND K. S. lIEGDE, JJ.]

U.P. Municip~lities Act, 1916 (U.P. Act 2 of 1916)-Levy of water rax-Non-comp/iance with provisions of SJ. 131(3), 132(2) and 94-Whether makes levy involid-E[Ject of·'· 135(3).

The Municipal Board Sitapur took various steps to levy water tax a~ authorised by s. 126(1)(x) of the U.P. Municipalities Act, 1916, and the special resolution imposing the tax with effect from October l, 1957 wa~ passed on April 23, 1957. The High Omrt held the levy to be invalid. In appeal filed by the Municipal Board this O>urt had to consider the effect of (i) the omission to publish the preliminary p\'opooal separately in the manner prescribed by s. 131(3) read with s. 94, (ii) the non· publication of the modified proposal in accordance with s. 132(2) and (iii) the non-publication of the special resolution directing the impooition of the tax in accordance with s. 94.

HELD : The High Court was in error in quashing the imposition ol the water~tax.

(i) Procedural defects in the imposition of the tax are cured by s. 135(3). Snch defects cannot be regarded as fundamental or as invalida-ting the imposition, if no substantial prejudice is caused thereby to thl.".' inhabitants of the municipality. The issue of the notification under s. 135(2) ts conclusive proof that all necessary steps for the imposition ol the tax. have been taken in accordance \Vith the provisions of the Act. [J89E-F]

Municipal Board v. Raghuvendra, [19661 I S.C.R. 950. Buland Sugar v. Municipal Board, [1965) I S.C.R. 97(} and Berar Swade.ihi Vana.rpcthi v. Municipal Committee, Shegaon, [1962] 1 S.C.R. 596, applied.

(ii) In the present case there was substanti::ll compliance with s. 131 (3). The proposal was not separately published in the prescribed tonn but the 01nission to do so was mere irregularity. The object of the publication under s. 131(3) is to inform the inhabitants of !he pro-posal so that they can file their objeclions to it. Thal object was fully achie.ved by the publication in the local newspaper. [39(} B-D]

(ii!) The inh.abitants submitted all objections which they could possi-G bly raise both with regard to the rate of tax and the exemption limit. No prejudice was caused by not inviting fresh objections to reduction of the rate of tax or !he exemption limit. Tbe non-publication of the modified proposal was mere irregularity and the defect was cured bys. 135(31. [390 E]

(iv) Section 134(2) does not provide for the publication of the special re.olut1on passed under it. Assuming that it had to be published under the general provisions of s. 94, the non-publication was mere irregularity cured by s. 135(3). [391 CJ CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 84 7 and 848 of 1966.

Appeals by special leave from the judgment and order dated January 20, 1965 of the Allahabad High Court, Lucknow Bench in Writ Petitions Nos. 108 and 109 of 1962.

S. C. Manchantla· and S. S. Shukla, for the appellant (in both the appeals).

C. B. Agarwala and K. P. Gupta, for the respondents (in both the appeals).

The Judgment of the Court was delivered by

Bacbawat, J. These appeals are directed against orders of the Allahabad High Court (Lucknow Bench), quashing the im-position of water rate imposed by the Municipal Board, Sita-pur. Section 126(l){x) of the "(J.P. Municipalities Act, 1916 ( U.P Act No. 2 of 1916) empowers the Board to impose water tax on the annual value of buildings or lands or of both. Sections 131 to 135 lay down the procedure for imposing the tax. The High Court held that the levy was invalid as the Bollfd did not comply with this procedure. municipal board desiring to impose the tax is required by s. 131 sub-s. (1) to pass ~ecial reso!\1tion framing the pre-liminary proposal for the tax. The Municipal Board, Sitapur. passed special resolution on January 24, 1956 framing the proposal for the levy of water tax at the rate of 12 % per annum on the annual value of buildings and lands and exempting buildings and lands whose annual value was Rs. 24 or below. Section 131 sub.-s. (2) requires the Board to prepare draft ·Of the rules in respect of the proposed tax. The Board duly prepared the necessary draft rules. Section 131 sub-s. (3) re-quires the Board to publish in the manner prescribed in s. 94 the proposal and the draft rules along with notice in the form setforth in Schedule III. The draft rules along with the notice was published in the Rashtra Sandesh, local paper published in Hindi. The proposal was not separately published. But the proposal was to be found in the: draft rules published in the local paper. Objections against the proposal were filed by the inhabi-tants of the municipality. The Board duly considered the ob-.iections and passed orders thereon under s. 132 sub-s. (1). After considering the objections and the recommendations of the prescribed authority under s. 133 sub-s. (1) the Board decided to modify the original proposal by reducing the tax to !0% on the annual value and by exempting all lands and build-ings whose annual value was Rs. 36 or below. Section 132 sub-s. (2) requires the Board to publish the modified proposal along with notice indicating that it is iri modification of the ·original proposal. ands. 132 sub-s. (3) provides that the objec-

tions to the modified proposal shall be dealt with in the manner prescribed by sub-s. ( 1). The modified proposal was not pub-lished as required by s. 132 sub-s. (2). The prescribed authority acting under s. 132 sub-s. (2) duly sanctioned the final proposal and mad~ the necessary rules in respect of the tax. It may be noted that the Commissioner, Lucknow Division, was the pres-cribed authority. On receipt of the order of sanction and the copy of the rules, the Board acting under s. 134 sub-s. (2) pas-sed special resolution on April 23, 1957 directing the im-position of the tax with effect from October 1, 1957. This spe-cial resolution was not published in the manner prescribed by s. 94. On receipt of the special resolution the prescribed au-thority acting under s. 135 sub-s. (2) notified in the official gazette dated August 3, 1957 the imposition of the tax from the appointed date. Section 135 sub-s. (3) provides that "a notificatioa of the imposition of tax under sub-section (2) shall be conclusive proof that the tax has been imposed in accordance with the provisions of this Act."

The respondents raised three objections against the validity of the imposition of the water tax : ( 1) omission to publish the preliminary proposal separately in the manner prescribed by s. 131 sub-s. (3) read with s. 94; (2) non-publication of the modified proposal in accordance withs. 132 sub-s. (2); and (3) non-publication of the special resolution directing the imposition of the tax in accordance with s. 94. The procedure laid down by the Act was not strictly complied with before imposing the tax. But all the procedural defects in the imposition of the tax <ue cured by s. 135 sub-s. (3), where, as in this case, the Municipal Board has the power to levy the tax and has passed the special .resolution necessary for the imposition of the tax and the defects are not of fundamental character. The proce-F dural defects cannot be regarded as fundamental or as invalidat-ing the imposition, if no substantial prejujdice is caused thereby to ~he inhabitants of the municipality. The issue of the notifi-catton under s. 135 sub-s. (2) is conclusive proof that all neces-sary steps for the imposition of the tax have been taken in accor-dance with the provisions of the Act.

In Municipal B'>ard v. Raghuvendra([1 ]) the Court held that the def~t of non-publication of the special resolution proposing the tax m local Hindi paper and omission to publish the draft rules as required bys. 131 sub-s. (3) read withs. 94 sub-s. (3) wa~ .cured by .s. 135 sub-s. (3) and that the publication of the special resolution by affixing copy of it on the notice board and by beat of drum was sufficient. In Bland Sugar v. Muni· cipal Board(') the Court held that the publication of the pro-rn[l966J I~ S.C.R. 950-. --· 12) [!%5] I S.C.R. 970.

posals and the draft rules in Hindi in local Urdu paper was sufficient compliance with s. 131 sub-s. ( 3). In Berar Swadeshi Vanaspathi v. Municipal Committee, Shegaon,([1 ]) the Court held that in view of the similar provisions of s. 67 sub-s. (7) of the C.P. and Berar Municipal Act, 1922, the validity of imposition of the octroi tax could not be challenged on the ground that the objections were not considered on the merits.

As to the first objection we find that there was substantial compliance with s. 131 sub-s. ( 3). The draft rules were pub-lished in the Rashtra Sandesh. They incorporated the prelimi-nary proposal and mentioned the special resolution dated Jan-uary 24, 1956 by which the proposal was framed. There was thus sufficient publication of the proposal. The. proposal was not separately published in the prescribed form, but the omis-sion to do so was mere irregularity. The inhabitants of the municipality had due notice of the proposal. The object of the publication under s. 131 sub-s. ( 3) is to inform the inhabitants of the proposal so that they can file their objections to it. That object was fully achieved by the publication in the Rashtra Sandesh. As to the second objection, we find that the original pro-posal was to levy water tax at the rate of 12% per annum on the annual value. The inhabitants had full opportunity to raise objections to the rate of the tax and to submit whether the rate should be 12% or 10% or less. After considering their objec-tions, the Board proposed to levy the tax at the reduced rate of 10%· per annum on the annual value. No prejudice was caused by not inviting fresh objections to the modified proposal of levying the tax at the reduced rate. It is interesting to notice that the U.P. Municipalities (Amendment) Act, 1964 (U.P. Act No. XXVII of 1964) inserted in s. 132 sub-s. (2) the following proviso : "Provided that no such publication shall be necessary where the modification is confined to reduction in the amount or rate of the tax originally proposed.'' This proviso was not in force on January 24, 1956. But it does indicate that i.t is unnecessary to publish modified proposal reducing the rate of tax originally proposed. The original proposal exempted all buildings and land> whose annual value was Rs. 24 or below. The modified proposal raised the exemption limit and provided that all buildings and lands whose annual value was Rs. 36 or below would be exempted. The inhabitants of the municipali.ty had full opportunity to raise objections as to the exemption limits as originally proposed and to submit whether buildings and lands of the value of Rs. 24 or Rs. 36 or more should be exempted. No prejudice was caused by not inviting fresh objections to the (1)(190211 S.C.R. 596.--

modified proposal raising the exemption limit. The inhabitants submitted all objections which they could possibly raise bot,h with regard to the rate of tax and' the exemption limit. In our opinion, the non-publication of the modified proposal was mere irregularity, and the defect was cured by s. 135 sub-s. (3).

As to the third objection it is to be observed that s. 134 sub. s. ( 2) does not provide for the publication of the special resolution passed under it. Assuming that this special resolution had to be published under the general provisions of s. 94, we think that the non-publication was mere ir-regularity. The inhabitants had no right to file any objections against- the special resolution. They had clear notice of the im· position of the tax from the notification published in the official gazette on August 3, 1957. The defect of the non-publication of the special resolution in the manner prescribed by s. 94 was cured by s. 135 sub-s. ( 3). The High Court was in error in quashing the imposition of the water tax.

In the result, the appeals are allowed with costs in this Court and in the High Court, the order of the High Court is set aside and the writ petitions are dismissed. There will be one hearing fee.

Appeals allowed ..