S. H. SHETH, S. L. TALATI, J. ( 1 ) P G Textile Mills Ltd. a company is the petitioner. It runs a textile mill at Baroda. The company had been discharging trade effluents in the drains maintained by Baroda Municipal Corporation and was paying the Corporation a certain amount fixed in pursuance of the bye laws made under the Gujarat Municipalities Act 1963 On 13th December 1978 Baroda Municipal Corporation passed Resolution enhancing the surcharge payable by the petitioner on the discharge of its trade affluents in the municipal drains. It is the petitioners case that the payments charged by the Corporation under different heads connected with the discharge of its trade effluents in the municipal drains have in some cases been doubled and in some other cases they have been more than doubled. ( 2 ) IT is this increase in the surcharge effected by Baroda Municipal Corporation by its Resolution dated 13th December 1978 which is challenged in this petition. ( 3 ) MR. Nanavaty who appears on behalf of the petitioner has raised before us the following contentions:- (1) Bye laws framed by Baroda Municipal Borough under the Gujarat Municipalities Act 1963 were ultra vires sec. 275 of that Act. (2) In any case those bye laws ceased to be operative with the constitution of Baroda Municipal Corporation and the application of the provisions of the Bombay Provincial Municipal Corporations Act 1949 (3) The Resolution dated 13th December 1978 passed by Baroda Municipal Corporation is without authority and is illegal because procedure required to be followed in a matter of such a type was not followed by Baroda Municipal Corporation. (4) The surcharge which the petitioner is required to pay to Baroda Municipal Corporation is in the nature of fees and it is invalid because there is no quid pro quo. (5) While revising the surcharge by the Resolution dated 13th December 1978 Baroda Municipal Corporation has fixed permissible limits of trade effluents arbitrarily. . . . . . . . . . . . . . . . ( 4 ) WHAT are challenged as ultra vires sec. 275 of the Gujarat Municipalities Act 1963 are bye laws 9 (9) 9 (10) 11 and 12. . . . . . . . . . . . . . . . ( 4 ) WHAT are challenged as ultra vires sec. 275 of the Gujarat Municipalities Act 1963 are bye laws 9 (9) 9 (10) 11 and 12. Bye laws 9 (9) and 9 provides as under:-9 No person shall discharge or cause to be discharged any of the following described kinds of sewage industrial or factory wastes; into any sewer or body of water within or entering the Municipal area. . . . . . . . . (9) Any waters or waste containing toxic or poisonous solids liquid or gases in sufficient quantity either singly or by interaction with other wastes likely to injure or interfere with any sewage treatment. . . process constitute a hazard to humans or animals create a public nuisance or create any hazard in the receiving waters of the sewage treatment plant including but not limited to; (A ). . (B ). . (C ). . . (10) Any waters or wastes containing constituents such as but not limited to the following in objectionable concentration which in the opinion of the Hydraulic Engineer are likely to interfere with sewage treatment or exceed limits after treatment of the sewage to meet the requirements of the State or other public or local authorities for discharge to the receiving water:-BYE law 11 provides as follows:- 11 At such time as the municipal sewage works are not over loaded the Hydraulic Engineer may at his discretion permit great degree of pollution than set out in bye law 9 (16) and (17) but in no case exceeding the following: -. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BYE law 12 which is material for the purpose of the present case provides as follows:- 12 The permission mentioned in bye law 11 will be given only upon payment of surcharge in addition to the usual sewer charges and it will be liable to be withdrawn on 3 months notice. The rates for surcharge will be decided by the Municipality from time to time. The rates for surcharge will be decided by the Municipality from time to time. It is under bye law 12 made under the Gujarat Municipal ties Act 1963 that the municipality collects from the petitioner sewer charges and is now seeking to impose a surcharge. ( 5 ) THE question which has been raised before us is whether these bye laws were ultra vires sec. 275 of the Gujarat Municipalities Act 1963 Sec. 275 (1) (w) provides as follows:-A municipality may from time to time make alter or rescind by laws not inconsistent with this Act. . . . . . (w) regulating in any other particular not specifically provided for in this Act the construction maintenance and control of drains sewers ventilation shafts receptacles for dung and manures cesspools water closets privies latrines urinals and drainage or sewerage works of every description whether the property of the municipality or not. MR. Nanavaty has argued that sec. 275 (1) (w) did not empower Baroda Borough Municipality to make bye laws 9 (9) 9 11 and 12. The argument advanced by Mr. Nanavaty cannot be upheld because under sec. 275 (1) (w) the municipality was empowered not only to construct and maintain th3 drains and sewers but to control them as well. The control or drains and sewers clearly envisages what should be allowed to pass through the drains and sewers and what should not be allowed. That is the only aspect of control which is material so far as the drains and sewers are concerned. It is wrong to say that control of drains and sewers would not embrace within their fold regulation of inflow of trade effluents. If control does not envisage the regulation of inflow of trade effluents it would mean that whereas the Municipality would be on spending public moneys on construction of drains and sewers the people would go on using them in any manner they liked even by discharging into it highly poisonous matters and endangering the drainage system and the health of the people there. Therefore the power to control drains and sewers conferred upon the municipality under sec. 275 (1) (w) clearly shows that what the municipality did by framing bye laws 9 (9) 9 (10) 11 and 12 was very much within its power. The first contention raised by Mr. Nanavaty therefore fails and is rejected. Therefore the power to control drains and sewers conferred upon the municipality under sec. 275 (1) (w) clearly shows that what the municipality did by framing bye laws 9 (9) 9 (10) 11 and 12 was very much within its power. The first contention raised by Mr. Nanavaty therefore fails and is rejected. ( 6 ) THE second contention which he has raised is that the bye laws framed under the Gujarat Municipalities Act 1963 do not survive after the Bombay Provincial Municipal Corporations Act 1949 was applied to Baroda and the corporation was constituted for the city. In order to examine this contention it is necessary to turn to some of the provisions of the Bombay Provincial Municipal Corporations Act 1949 Sec. 490 provides as follows;the Gujarat Municipalities Act 1963 and the Gujarat Panchayat Act 1961 shall cease to apply except as hereinafter provided to any area included in the City. Sec. 493 provides as follows :- the provisions of Appendix IV shall apply to the constitution of the Corporation and other matter specified therein. ( 7 ) WE now turn to Appendix IV. Paragraph 5 in Appendix IV contains a saving clause. It enter alia provides as follows:-SAVE as expressly provided by the provisions of this Appendix or by a notification issued under paragraph 22 or order made under paragraph 23 (a) any appointment notification notice tax order scheme licence permission rule by law. or form made issued imposed or granted under the Bombay District Municipal Act 1901 or the Bombay Municipal Boroughs Act 1925 or any other law in force in any local area constituted to be a City immediately before the appointed day shall in so far as it is not inconsistent with the provisions of this Act continue in force under it is superseded by any appointment notification notice tax. order scheme licence permission rule by law or form made issued imposed or granted under this Act or any other law as aforesaid as the case may be. . . . . order scheme licence permission rule by law or form made issued imposed or granted under this Act or any other law as aforesaid as the case may be. . . . . This provision makes it quite clear that bye laws made under any other law in force in any local area constituted to be a City immediately before the appointed day continue to be in force unless they are inconsistent with the Provisions of the Bombay Provincial Municipal Corporations Act 1949 The Gujarat Municipalities Act 1963 was the law in force in the local area which came to be constituted into Baroda Municipal Corporation. Therefore bye laws made under that law continue to remain in force in so far as they are not inconsistent with the provisions of the Bombay Provincial Municipal Corporations Act 1949 ( 8 ) MR. Nanavaty has invited our attention to certain provisions in this Act in order to show the inconsistency between the impugned byelaws and some of the provisions of the said Act. Sec. 153 is the first provision to which he has invited our attention. It falls under chapter XII which deals with drains and drainage. It provides as follows:-153 (1) The Commissioner shall maintain and keep in repair all municipal drains and shall with the approval of the Corporation construct such new drains as shall from time to time be necessary for affectually draining the City. (2) The Commissioner shall also in the case of any street in which there is a municipal drain construct at the charge of the Municipal Fund such portion of the drain of any Premises to be connected with such municipal drain as it shall be necessary to lay under part of such street and the portion of any connecting drains so laid under the street shall vest in the Corporation and be maintained and kept in repair by the Commissioner as a municipal drain. We find nothing inconsistent in the impugned bye law with sec. 153. Collection of sewer charges and surcharge under impugned bye law 12 does not conflict with any of the provisions of sec. 153. The fact that sec. 153 is silent in so far as collection of sewer charge and surcharge is concerned does not mean that no sewer charge or surcharges can be collected from those who are permitted to discharge trade effluents in municipal drains. ( 9 ) SEC. 153. The fact that sec. 153 is silent in so far as collection of sewer charge and surcharge is concerned does not mean that no sewer charge or surcharges can be collected from those who are permitted to discharge trade effluents in municipal drains. ( 9 ) SEC. 162 which occurs in the same Chapter in another provision to which Mr. Nanavaty has invited our attention sub-sec. (1) of sec. 162 provides as follows:-IF it shall appear to the Commissioner that the only means or the most convenient means by which the owner or occupier of any premises can cause his drain to empty into a municipal drain or other place legally set apart for the discharge of drainage is by carrying the same into through or under any land belonging to some person other than the said owner or occupier the Commissioner after giving to the owner of the land a reasonable opportunity of stating any objection may if no objection is raised or if any objection which is raised appears to him invalid or insufficient by an order in writing authorise the said owner or occupier to carry his drain into through or under the said land in such manner as he shall think fit to allow. It is not necessary to reproduce sub-secs. (2) (3) (4) and (5) of sec. 162 because they deal with procedural matters. There is nothing in sub-sec. (1) of sec. 162 which is in conflict with the impugned bye law 12. In fact sec. 162 does not operate into the field of collection of sewer charge and surcharge. It is difficult to understand how there can be a conflict between the impugned bye law 12 and sec. 162. ( 10 ) SEC. 165 and sec. 16ga are the other provisions to which our attention has been invited. Sec. 166 provides as follows:-SUBJECT to the Provisions of this Act rules and by laws the occupier of any trade premises may with the consent of the Commissioner or so far as may be permitted by any such rules or by laws without such consent discharge into the municipal drains any trade effluent proceeding from those premises. Sec. 166 provides as follows:-SUBJECT to the Provisions of this Act rules and by laws the occupier of any trade premises may with the consent of the Commissioner or so far as may be permitted by any such rules or by laws without such consent discharge into the municipal drains any trade effluent proceeding from those premises. It only enables an occupier of a trade premises to discharge its trade effluent with the consent of the Commissioner subject to the provisions of the Act rules and by laws tn the instant case the petitioner is permitted to discharge into the municipal drains its trade effluents under the bye laws on payment of sewer charges and surcharge. There is therefore no inconsistency between the impugned bye law 12 and sec. 166. ( 11 ) SEC. 166a (1) (a) provides as follows:-NOTWITHSTANDING anything contained in this Act or the rules or by laws or any usage custom or agreement. where in the opinion of the Commissioner any trade premises are without sufficient means of effectual drainage of trade effluent or the drains thereof though otherwise unobjectionable are not adapted to the general drainage system of the City the Commissioner may by written notice require the owner or occupier of such premises. (A) to discharge the trade effluent from the premises in such manner at such times through such drains and subject to such conditions as may be specified in the notice and to cease to discharge the trade effluent otherwise than in accordance with the notice. CLAUSES (b) (c) and (d) deal with purification of trade effluents construction of a drain at a particular time and alteration or renovation of any purification plant existing drains and other things with which we are not concerned in this petition Sub-sec (1) of sec. 166a specifies nothing which is in conflict with the impugned bye law 12 in so far as the collection of sewer charges and surcharges are concerned. However Mr. Nanavaty has emphasised the expression Notwithstanding anything contained in this Act or the rules or by laws and invited our attention to Rule 7 in Chapter IX of the Rules made under the Act. However Mr. Nanavaty has emphasised the expression Notwithstanding anything contained in this Act or the rules or by laws and invited our attention to Rule 7 in Chapter IX of the Rules made under the Act. Chapter IX deals with drainage and drainage works Rule 7 (2) upon which reliance has been placed inter alia provides as follows:- where a trade effluent notice in respect of any premises is served on the Commissioner he may at any time within the initial period give to the owner or occupied as the case may be of those premises a direction that no trade effluent shall be discharged in pursuance of the notice until a specified date after the end of the initial period; and in so far as the discharge of any trade effluent in accordance with the trade effluent notice requires the consent of the Commissioner in order to be lawful the Commissioner may give that consent either unconditionally or subject to such conditions as he thinks fit to impose in respect to. . . . . . . . . . . . . FAR from there being any conflict between Rule 7 (2) and impugned byelaw 12 we find consistency between the two. Rule 7 (2) empowers the Commissioner to subject a person who is permitted to discharge trade effluents in the municipal drains to such conditions as he thinks fit. Indeed those conditions must relate to five matters which have been specified in clauses (a) to (e ). Clause (e) provides for a residuary matter in the following terms:- any other matter with respect to which by laws may be made under this Act; but any such condition as aforesaid shall be of no effect if and so far as it is inconsistent with any by laws so made which are for the time being in force. Scheme of sub-rule (2) of Rule 7 clearly confers upon the Municipal Commissioner power to lay down conditions subject to which a person may be permitted to discharge his trade effluents in municipal drains and also empowers him to specify conditions in respect of any other matter with respect to which by laws may be made under this Act. Scheme of sub-rule (2) of Rule 7 clearly confers upon the Municipal Commissioner power to lay down conditions subject to which a person may be permitted to discharge his trade effluents in municipal drains and also empowers him to specify conditions in respect of any other matter with respect to which by laws may be made under this Act. However it further provides that if there are bye laws which have been made and which are for the time being in force then they shall operate and even if any of the conditions specified in sub-rule (2) are made they shall be of no effect if they are inconsistent with the bye laws. In the instant case impugned bye law 12 covers the field and it not only does not run into conflict with Rule 7 (2) but Rule 7 (2) saves the operation of that bye law. The second contention raised by Mr. Nanavaty therefore cannot be upheld ( 12 ) WE are of the opinion that the bye laws framed under the Gujarat Municipalities Act 1963 continue to be in force and hold the field. ( 13 ) THE next contention which Mr. Nanavaty has raised relates to the validity of the surcharge imposed by the Corporation by its Resolution dated 13th December 1978. On behalf of the Corporation it has been stated in the affidavit in reply that that Resolution has been passed under bye law 92 made under the Gujarat Municipalities Act 1963 The Gujarat Municipalities Act 1963 is no more applicable to Baroda city. The Bombay Provincial Municipal Corporations Act )949 applies to it. However the bye laws made under the earlier law continue to be in force to the extent to which they are not inconsistent with the provisions of the Act now applicable to Baroda city. It cannot be gainsaid that if anything is required to be done to amend those bye laws it must be done in accordance with the procedure laid down by the Bombay Provincial Municipal Corporations Act 1949 in case it provides for a different procedure. It is in that context that we turn to certain provisions of the Bombay Provincial Municipal Corporations Act 1949 15 Sec. 453 provides as follows:-THE rules in the Schedule A as amended from time to time shall be deemed to be part of this Act. It is in that context that we turn to certain provisions of the Bombay Provincial Municipal Corporations Act 1949 15 Sec. 453 provides as follows:-THE rules in the Schedule A as amended from time to time shall be deemed to be part of this Act. Sec. 454 empowers the Corporation to add to Schedule A rules not inconsistent with the provisions of the Act to provide for any matter dealt with or for any of the purposes specified in the said Schedule; and may subject to the same limitations amend alter or annul any rule in the said Schedule A. Sec. 455 is material for the present purpose. It provides:- the power to make add to alter or rescind any rule under sec. 454 shall be subject to the sanction of the State Government and to the condition of the rules being made after previous publication. Sec. 457 provides for rule making power. Sub-sec. (8) of sec. 457 provides for matters relating to drainage. Clause (i) of sub-sec. (8) specifies the following matter in relation to drainage:- the conditions on which occupiers of trade premises may discharge any trade effluent into municipal drains. It is clear therefore that prescribing a condition relating to payment of sewer charges or surcharge by the occupiers of the trade premises for discharging their trade effluents into municipal drain has been made a subject matter of a statutory rule to be made under this section. Therefore surcharge could have been levied upon the petitioner by Baroda Municipal Corporation only by making a rule under sec. 457 (8) (d) which rule can be in the nature of amending bye law 12 as contemplated by secs. 453 and 454. ( 14 ) NOW making of a rule under sec. 457 (8) (d) is as provided by sec. 455 (1) subject to two conditions. It must receive the sanction of the State Government and it can be made only after previous publication It is not in dispute that the Baroda Municipal Corporation before passing the impugned Resolution on 13th December 1978 neither previously publisted it nor did it receive the sanction of the State Government. Therefore the impugned Resolution dated 13th December 1978 assuming that it was in the nature of a rule contemplated by sec. Therefore the impugned Resolution dated 13th December 1978 assuming that it was in the nature of a rule contemplated by sec. 457 (8) (d) was not validity passed because it was not previously published and also because the sanction of the State Government was not obtained. ( 15 ) RELIANCE has been placed on behalf of the Corporation on byelaw 12 made under the Gujarat Municipalities Act 1963 in which there is an enabling provision that the rates of surcharge may be decided by the Municipality from time to time. Indeed bye law 12 empowers the Corporation to fix the surcharge from time to rime which clearly implies that it can be enhanced or reduced from time to time as if by a simple resolution. However that part of bye law 12 is in conflict with the provisions of sec. 455 (1) and sec. 457 (8) (d) of the Bombay Provincial Municipal Corporations Act 1949 Therefore the power reserved under bye law 12 to fix the surcharge from time to time cannot be exercised in a manner inconsistent with one laid down by the statutory provisions. There is no doubt about the fact that the Corporation has the power under bye law 12 to fix from time to time the surcharge payable by occupiers of trade premises for discharging their trade effluents into municipal drains. But that power in our opinion can be exercised only by following procedure laid down in Chapter XXI of the Bombay Provincial Municipal Corporations Act 1949 and not by short circuiting it by simply relying upon bye law 12. The last part of bye law 12 made under the Gujarat Municipalities Act 1949 cannot be said to be in force because if it indicates any procedure it is in conflict with the aforesaid provisions of the Bombay Municipal Corporations Act 1949 The third contention raised by Mr. Nanavaty is therefore upheld. ( 16 ) IN view of the fact that we are upholding this contention it is not necessary for us to decide the last two contentions raised by Mr. Nanavaty. ( 17 ) IN the result the petition succeeds and it is declared that the Resolution passed by the Baroda Municipal Corporation on 13th December 1978 is ultra vires sec. 457 (8) (d) read with sec. Nanavaty. ( 17 ) IN the result the petition succeeds and it is declared that the Resolution passed by the Baroda Municipal Corporation on 13th December 1978 is ultra vires sec. 457 (8) (d) read with sec. 455 (1) of the Bombay Provincial Municipal Corporation Act 1949 and is therefore void and is unenforceable at law. Rule is made absolute with costs. Petition allowed. .