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Orissa High Court · body

2005 DIGILAW 693 (ORI)

Tata Refractories Limited v. State of Orissa

2005-12-16

N.PRUSTY, P.K.MOHANTY

body2005
JUDGMENT P. K. MOHANTY, J. : All these writ petitions raise common question of law and as such, on the prayer and on consent of the learned counsel for the parties, they are taken up together and disposed of by this common judgment. 2. In order to appreciate the contention raised in all these writ petitions, it is appropriate to take note of the brief background of the case. The petitioner-company filed O.J.C. No. 9061 of 1995 praying inter alia for issuance of a writ in the nature of mandamus quashing the notification dated 3.12.1993 under which the Belpahar Notified Area Council was constituted on the ground that petitioner’s statutory objection Section 417(A) of Orissa Municipal Act and representation to the Governor for declaration of Industrial Township as provided under Article 243-Q of the Constitution of India were not considered. Prayer was made that till such time it’s objection/representation was not considered and disposed of by way of a reasoned and speaking order, no Octroi should be collected from it. On consideration, by order dated 23.4.96, a Bench of this Court, in the interim, directed that the petitioner-company shall deposit the octroi assessed by the Belpahar Notified Area Council and the same shall be kept in a separate account in the State Bank of India, Samada Branch, Belpahar. The writ petition was ultimately disposed of by order dated 19.2.2001 directing the State Government to take appropriate decision and pass final order on the representation of the petitioners by giving reasons and communicate their deci¬sion within two months from the date of receipt of the order. The petitioner-company appears to have filed an additional represen¬tation in continuation of its existing representations before the Secretary. Housing and Urban Development, Government of Orissa requesting therein to declare its Industrial Area as “Industrial Township” in terms of Article 243-Q of the Constitution of India. 3. The petitioner has filed O.J.C. No. 2505 of 2001 seek¬ing for a direction to the Belpahar Notified Area Council (here¬inafter called “Belpahar N.A.C.”) not to withdraw the amount deposited by the petitioner-company till the dispute between the petitioner and the opposite parties was finally resolved. 3. The petitioner has filed O.J.C. No. 2505 of 2001 seek¬ing for a direction to the Belpahar Notified Area Council (here¬inafter called “Belpahar N.A.C.”) not to withdraw the amount deposited by the petitioner-company till the dispute between the petitioner and the opposite parties was finally resolved. In the said writ petition, by order dated 7.3.2001, while issuing notice on admission, the Court directed the opposite parties not to withdraw and utilize the amount deposited by the petitioner-company in terms of the order dated 23.4.1996 passed in O.J.C. No. 9061 of 1995. 4. The Director, Municipal Administration and Ex-Officio, Additional Secretary, Government of Orissa in his order dated 22.5.2001 indicated that despite late submission of the objection by the petitioner, the Government duly considered the same before taking a decision for consideration of the N.A.C. which will be evident from the notification dated 3.12.1993. O.J.C. No. 3282 of 1996 has been filed challenging the constitution of Belpahar N.A.C. as in Annexure-3 by notification dated 3.12.1993 and a prayer has been made to quash the said constitution of NAC. A prayer was also made for declaration of the petitioner’s industrial area as an Industrial Township within the meaning of Article 243-Q of the Constitution and for refrain¬ing the opposite parties from collecting the octroi, holding tax and other taxes as prescribed in terms of Municipal Act. The valuation list as in Annexure-5 and the demand notices under-8 series to the aforesaid writ petition have been sought to be quashed. Writ petition No.11280 of 1997 has been filed by the peti¬tioners-company for quashing the levy of licence fee by the Belpahar N.A.C. as in Annexure-8, 9 and 10 thereto. O.J.C. No.10803 of 2001 has been filed by the petitioners-company assailing the order dated 22.5.2001 (Annexure-5) passed by the Director, Municipal Administrator-cum-Ex-Officio Addition¬al Secretary, Government of Orissa rejecting the representation of the petitioner for exclusion of Industrial Township of Tata Refractories Limited from Belpahar N.A.C. on the alleged ground that it suffers from gross non-application of mind and has been rendered without considering relevant factors such as size of the area and the municipal services provided or proposed to be pro¬vided by the petitioner as contemplated in Article 243-Q of the Constitution of India and Section 4 of the Orissa Municipal Act, 1950. 5. 5. Separate counter affidavits have been filed in all these cases by the opposite parties 1, 2 and 3 refuting the claim of the petitioners. 6. The main thrust of the argument of the learned counsel for the petitioners is that, the petitioners filed their objec¬tion before the District Magistrate on 29.10.1993 to the procla¬mation notification of the State Government published in Orissa Gazette vide Annexure-1 dated 30.9.2000, but that has not been considered inasmuch as the plea taken by the State Government in its counter that it has considered the same even though received beyond time, is false and an after thought to cover up the in¬firmity and as such, non-consideration of the objection vitiates the constitution of the NAC. Further the petitioners’ objection for exclusion of their industrial area from the proposed Belpahar NAC has not been considered in accordance with the mandate of Article 243-Q of the Constitution of India introduced by the 74th amendment to the Constitution. Contention are raised that the order dated 22.5.2001 (Annexure-12) of the Government purportedly passed in compliance to the order of this Court dt.19.2.2001 on the face of it shows that the Government did not consider all the points of objection raised by the petitioners in their objection as well as further representation submitted in compliance to the order dated 19.2.2001 of the Court. It is further contended that in view of the fact that the Belpahar Notified Area Council has not been constituted in accordance with law, the levy of any tax, fee or Octroi is illegal and arbitrary. 7. In the contra, the State Government in its counter has taken the plea that the objection for exclusion of the area from the notified area as an industrial area in terms of Article 243-Q of the Constitution could not have been conceived in response to the proclamation/preliminary Gazette Notification dated 28.9.1993 vide Annexure-1 to the writ petition made under Section 417-(A)(1) of the Orissa Municipal Act because this was the prelimi¬nary stage of the process commenced under Section 417-(A)(1) of the Act for constitution of a municipal area. According to the State, though Part-IX-A containing Article 243 P to 243-ZG were introduced in the Constitution by virtue of 74th amendment, with effect from 1.6.1993, but in view of Article 243-ZF until neces¬sary amendments are brought to the Municipal Law giving effect to the purport of the provision of various Articles under the said Chapter within a period of one year i.e. till 1.6.1994, the existing provisions as were available under the Municipal Act in operation, would govern the field. The existing provisions of the Municipal Act is to remain operative either for a period of one year or until the corresponding amendment in the light of the 74th Constitutional amendment is brought into statute of the respective municipalities/NACs by virtue of the said amendment. It is, therefore, contended that the mandate of Article 243-Q had not been brought by way of amendment to the Orissa Municipal Act and consequently the existing provisions of Section 417-(A) and other Sub-sections thereunder were obviously in force by the time the proclamation vide Annexure-1 was made on 30.9.1993 or even by the time, a final Gazette Notification dated 3.12.1993 in consti¬tuting the Belpahar NAC in question in full-fledged manner was made. 8. It is submitted that the necessary amendments in the light of the constitutional amendments including that of the mandate of Article 243-Q were brought into the Orissa Municipal Act, 1950 by Orissa Act 11 of 1994 with effect from 31.5.1994, Section 417-(A) and all Sub-sections thereunder were repealed and thus deleted from the Orissa Municipal Act, Particularly, Sec¬tion-4 introduced the mandate of Article 243-Q for the first time by introducing the concept of keeping apart an industrial town¬ship only at the time of constitution of any future and new municipal area. It is, therefore, contended that having regard to the aforesaid sequence of events, objection for keeping the petitioners industrial area outside the purview of the proposed municipal area and the duly constituted municipal area right from the stage of filing of such objections in response to the procla¬mation vide Annexure-1 became redundant, misconceived and also premature. The final notification (Annexure-5) explicitly ex¬presses that the petitioners' objection from the District Magis¬trate even though was received after expiry of time, the same was considered before final decision was taken. The decision of the State Government in this matter is one of the Legislative process and not an administrative order. The final notification (Annexure-5) explicitly ex¬presses that the petitioners' objection from the District Magis¬trate even though was received after expiry of time, the same was considered before final decision was taken. The decision of the State Government in this matter is one of the Legislative process and not an administrative order. The learned counsel has referred to the decision in case of Bhaskar Textiles Mills Limited Versus Jharsuguda Municipality & others : AIR 1984 SC 583 , in support of his contention. 9. It is further contended that though the petitioners challenged the notification in OJC No.9061/1995, this Court, by order dated 19.2.2001, disposed of the said writ petition by directing the State Government to consider the matter for exclu¬sion of the area from the NAC which impliedly means that at the stage subsequent to the stage of final notification vide Annex¬ure-5 and then to take into consideration whether in terms of Article 243-Q of the Constitution, an industrial area belonging to the petitioner could have been excluded from the municipal area which was already constituted. Direction of the Court obvi¬ously is not to be construed to take any affirmative decision in this regard overriding the statutory provisions, rather in ac¬cordance with the provisions of law. The direction of the Court, according to the learned counsel, has been complied with the decision of the Government is the subject matter of challenge in one of the writ petitions. 10. In O.J.C. No.9061 of 1995, the petitioners had chal¬lenged the Government Notification dated 29.9.1993 inviting objections to constitution of “Belpahar Notified Area Council” and the Notification dated 3.12.1993 constituting the Belpahar NAC mainly on the ground that their objection filed within time was not considered, before the State Government took the decision for constituting the Notified Area Council. The petitioners filed their objections on the following grounds. (a) It’s area is a compact one with boundary walls surrounding the area and is completely separate from other areas of the proposed Notified Area, and as such, there is no justification to amalgamate the petitioners’ area with the rest of the area of the proposed Notified Area; (b) Except towards the West in all other directions in petition¬ers’ area, there is no township and there were only bushy waste lands and paddy fields. Hence, it would not be proper to amalga¬mate petitioners’ area with the other proposed area; (c) The petitioners maintain their own buildings, roads, supply electricity and water to their township and factory. They also effectively look-after sanitation, health by spending large amount for the purpose. The existing standard of maintenance of these facilities in the township of the petitioners will be affected if those services are handled by the proposed Notified Area; (d) Neither the petitioners nor their employees would derive any benefit from the proposed Notified Area. On the contrary, octroi and holding tax would be imposed on it which would be an addi¬tional burden which would affect the profitability. This would adversely affect the State’s revenue; and (e) The proposal to include the petitioners area will not be in the interest of the State. However, the Division Bench on consideration of the matter did not concede to the prayer for declaring the Notification dated 3.12.1993 as illegal and invalid, but disposed of the writ petition by order dated 19.2.2001 directing the State Government to take appropriate decision and pass final orders on considera¬tion of the representations of the petitioners by giving reasons. The representations of the petitioners were obviously for exclu¬sion of their industrial area from the N.A.C. and to declare the same an “Industrial Township” in terms of the proviso to Article 243 Q of the Constitution. 11. Article 243-Q was inserted in Chapter-IX(A) of the Constitution by 74th Amendment Act, 1992 which came into force with effect from 1.6.1993. Article 243-Q is quoted hereunder for ready reference: “243-Q. Constitution of Municipalities (1) There shall be constituted in every State- (a) a Nagar Panchayat (by whatever name called) for a transi¬tional area, that is to say, an area in transition from a rural area to an urban area; (b) a Municipal Council for a smaller urban area; and (c) a Municipal Corporation for a larger urban area, in accord¬ance with the provisions of this Part: Provided that a Municipality under this clause may not be constituted such urban area or part thereof as the Governor may, having regard to the size of the area and the municipal services being provided or proposed to be provided by an industrial estab¬lishment in that area and such other factors as he may deem fit, by public notification, specify to be an industrial township”. (2) In this Article, “a transitional area”, “a smaller urban area” or “a larger urban area” means such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local adminis¬tration, the percentage of employment in non-agricultural activi¬ties, the economic importance or such other factors as he may deem fit, specify by public notification for the purpose of this Part.” Article 243-ZF speaks of continuance of existing laws and municipalities. It provides as follows:- “243-ZF. Continuance of existing laws and Municipalities-Notwithstanding anything in this Part, any provision of any law relating to Municipalities in force in a State immediately before the commence of the Constitution (Seventy-fourth Amendment) Act, 1992, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier. Provided that all the Municipalities existing immediately before such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State or, in the case of a State having a Legislative Council, by each House of the Legislature of that State.” Thus in view of Article 243-ZF of the Constitution, any provision of any law relating to Municipalities in force in a State immediately before the commencement of the Constitution (Seventy-fourth Amendment) Act, 1992, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commence¬ment, whichever is earlier. The Orissa Municipal Act, as it stood on 1.6.1993, was thus to continue in force till it was amended by the Orissa State Legislature or until the expiration of one year from such commencement whichever is earlier. Section 4 of the Orissa Municipal Act, 1950 was substituted by Orissa Act 11 of 1994 which came into effect from 31.5.1994. Section 4 as amended by Act 11 reads thus : “4. Constitution of Municipalities-(1) There shall be con¬stituted by the State Government. Section 4 of the Orissa Municipal Act, 1950 was substituted by Orissa Act 11 of 1994 which came into effect from 31.5.1994. Section 4 as amended by Act 11 reads thus : “4. Constitution of Municipalities-(1) There shall be con¬stituted by the State Government. (a) a Notified Area Council for every transitional area; (b) a Municipal Council for every smaller urban area; and (c) a Municipal Corporation for every larger urban area, in accordance with the provisions of this Act. Provided that no such Council or Corporation shall be con¬stituted in any urban area or part thereof which the Governor may, having regard to the size of the area and the municipal services being provided or proposed to be provided by an indus¬trial establishment in that area and such other factors as he may deem fit, by notification, specify to be an industrial township. (2) In this Section, “a transitional area” “a smaller urban area” or “a larger urban area” means such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local adminis¬tration, the percentage of employment in non-agricultural activi¬ties, the economic importance or such other factors as he may deem fit, specify by notification under clause (2) of Article 243(Q) of the Constitution.” Proviso to Article 243-Q deals with all three types of municipalities constituted under clause-1. It provides that a municipality under Clause-1 may not be constituted in certain circumstances. Although the proviso refers to such urban area or part thereof, this urban area also covers a transitional area, in transition from rural to urban. In such circumstances, in respect of any of the areas set out in Clause-I of Article 243-Q, having regard to the size of the area, the municipal service being provided or proposed to be provided by an industrial establish¬ment in that area and taking into consideration such other fac¬tors as deemed necessary, the Governor may by notification speci¬fy such area to be an “Industrial Township” and exclude such area from a municipal area. 12. Undisputedly, the State Government published in the Orissa Gazette dated 30.9.1993 the proclamation notification under Section 417 A(1-a) of the Orissa Municipal Act announcing their intention to constitute a Notified Area styled as “Belpahar Notified Area” in the district of Sambalpur and invited objec¬tions in writing from persons residing within the area notified. 12. Undisputedly, the State Government published in the Orissa Gazette dated 30.9.1993 the proclamation notification under Section 417 A(1-a) of the Orissa Municipal Act announcing their intention to constitute a Notified Area styled as “Belpahar Notified Area” in the district of Sambalpur and invited objec¬tions in writing from persons residing within the area notified. The petitioners filed their objections through the District Magistrate, Sambalpur on 29.10.1993 requesting therein that the area of the Tata Refractories Limited (TRL) should be excluded fro the ambit of the proposed Belpahar Notified Area. The State Government issued notification under Section 417 A (1) of the Orissa Municipal Act in Official Gazette dated 3.12.1993 consti¬tuting the Belpahar Notified Area. It is to be noted that even though Article 243 Q was inserted in Chapter IX-A of the Consti¬tution, which came into force with effect from 1.6.1993, the State Legislature had not brought in any amendment to the Orissa Municipal Act in consonance with Article 243 Q of the Constitu¬tion till 31.5.1994 and, as such in view of Article 243-ZF of the Constitution, the existing provisions of law relating to Munici¬palities in force in the State of Orissa immediately before the commencement of the Constitution (74th Amendment) Act, 1992, which is inconsistent with the provision of that part, has to be continued to be in force until amended or repealed by the compe¬tent legislature or until expiration of one year from such com¬mencement, whichever is earlier. The State Legislature by Orissa Act 11 of 1994 substituted Section 4 of the Orissa Municipal Act, 1950 with effect from 31.5.1994, which was within one year period from 1.6.1993, the date, Article 243 Q came into force, incorpo¬rating the mandate of the Constitution in Article 243 Q and therefore the provisions of unamended Orissa Municipalities Act was in force and governed the field when the proclamation notifi¬cation was issued on 30.9.1993, the petitioner had filed its objection on 29.10.1993 and even when the final Notification was issued by the Government under Section 417-A(1) constituting the Belpahar Notified Area in the Official Gazette dated 3.12.1993. 13. 13. In view of what has been held earlier, notwithstanding the provision of Article 243 Q of the Constitution, the unamended provision of Orissa Municipal Act, as it existed prior to 31.5.1994 being in force and governing the field, the petition¬ers’ objection/representation dated 29th September, 1993 and their prayer for exclusion of the T.R.L. Area from the purview of the Belpahar Notified Area was thus misconceived in law. Since the provision under Article 243 Q of the Constitution read with Section 4 of the Municipal Act contemplating exclusion of an Industrial area from the purview of a Municipality as an indus¬trial township had not come into force by the time the petitions had filed their objection to the constitution of Belpahar Noti¬fied Area Council, the State Government or the Governor could not have entertained and allowed any such representation exclud¬ing the petitioners industrial area from the purview of the Belpahar Notified Area and declared such area as an “Industrial Township” as contemplated. It appears from the Notification under Section 417 A(1) of the Orissa Municipal Act dated 3.12.1993 that the objections received beyond time were considered while taking a final decision in constituting the Notified Area Council. In the counter affidavit, it has been specifically stated that the petitioners’ objection even though received beyond time was taken into consideration before the final decision for constituting the Notified Area Council was taken. In such view of the matter, the contention of the learned counsel for the petitioners that the petitioners’ objection having not been considered, the decision constituting the Notified Area Council was vitiated in law, has to be rejected. The petitioners in their objection did not chal¬lenge the constitution of Belpahar Notified Area Council in respect of the areas other than their industrial area, but prayed for exclusion of their area from the purview of the notified Area Council keeping in view the provision of Article 243 Q of the Constitution, which was yet to come into force in the State of Orissa in view of Article 243 ZF as discussed earlier. The ques¬tion as to whether the objection was filed within the time pre¬scribed or otherwise, is of no consequence and therefore need not be gone into since the objections received even beyond time including the one by the petitioners have been considered by the State Government. The ques¬tion as to whether the objection was filed within the time pre¬scribed or otherwise, is of no consequence and therefore need not be gone into since the objections received even beyond time including the one by the petitioners have been considered by the State Government. It is the settled principle of law that the function of the Government in establishing a Municipal area or a Notified area is neither executive nor administrative but it is a legislative process. No judicial duty is laid on the Government in discharge of such statutory duty and the only question to be examined is whether the statutory provision is complied with. A reference may be made to the judgment of the apex Court in Sundar¬jas Kanyalal Bhathija and others v. The Collector, Thane, Maha¬rashtra and others: AIR 1990 S.C. 261 . In view of the findings that the petitioners' objection was duly considered by the Govern¬ment before it took the final decision and issued the final Notification constituting the Notified Area, the Court cannot sit in judgment over such decision and substitute its own opinion on the opinion of the Government. However, it is apt to mention that the petitioners objection to formation or constitution of the Notified Area Council was solely on the ground that they had provided all necessary civic amenities to the residents of the enclosed industrial area (TRL Area) and, as such, in view of the 74th Constitutional Amendment and introduction of Article 243-Q in Part-IXA of the Constitution, the area should be excluded from the purview of the Belpahar Notified Area Council and declared as an “Industrial Township” within the ambit of the proviso to the Article. It may be reiterated that by the time the objection was filed and even the decision was finally taken for constitution of the Notified Area Council, the provision of the Orissa Municipal Act, 1950 prior to amendment dated 31.5.1994 was in vogue and the provisions of Article 243-Q of the Constitution was yet to oper¬ate in view of 243 ZF of the Constitution. This question other¬wise is not open to the judicial scrutiny in the present writ petition since in the earlier writ petition O.J.C. 9061 of 1995, this very question was raised by the petitioners, but the Court without interfering the matter, disposed of the writ petition by directing the State Government to consider the petitioners repre¬sentation for exclusion of the Industrial Area from the purview of the Belpahar Notified Area Council. Obviously, the considera¬tion was to be made in accordance with the amended provision of Section 4 of the Orissa Municipal Act as amended by Act 11 of 1984, which came into force with effect from 31.5.1994. 14. However, in view of the direction of this Court dated 19.2.2001 passed in O.J.C. No.9061 of 1995 that the petitioners’ representations which were yet to be considered along with fresh representations, if filed, should be considered by the State Government with regard to the exclusion of their industrial area from the area of Notified Area Council, it was incumbent on the State Government to consider the same in terms of the proviso to Article 243 Q of the constitution read with the proviso to Sec¬tion 4 of the Orissa Municipal Act as amended by Act 11 of 1994 which came into force with effect from 31.5.1994. The Director, Municipal Administration-cum-ex officio Additional Secretary to the Government in Housing and Urban Development Department appears to have communicated the Government decision as per this Courts direction dated 19.2.2001 in O.J.C. No.9061 of 1995 by letter dated 22.5.2001 (Annexure-12), which is the subject matter of challenge of O.J.C. No.10803 of 2001. The learned counsel for the petitioners submits that since the State Government consti¬tuted Belpahar Notified Area council without considering the representation of the petitioner being dated 29.10.1993 and other subsequent representation, this Court by order dated 19.2.2001 in O.J.C. No.9061 of 1995 directed the State Government to take final decision in the matter giving reasons and communicate its decision within two months. Obviously, the State Government was directed to hold a post-decisional hearing and, as such, if the petitioners-company had succeeded in satisfying the State Govern¬ment that the Industrial area was to be excluded from the Belpa¬har Notified Area, the constitution of the Belpahar Notified Area to the extent of the “Industrial Township” of the petitioners-Company is rendered invalid. Power to exclude the “Industrial Township” of the petitioners-Company is rendered invalid. Power to exclude the “Industrial Township” of the petitioners-Company is rendered invalid. Power to exclude the “Industrial Township” from the purview of the Municipality is vested with the Governor under Article 243-Q (1) of the Constitution. As such, it does not have any limitation relating to power save and except within the parameters defined within the said provision. It is contended that the State Govern¬ment had not passed the impugned order dated 22.5.2001 (Annexure-12) but the order was passed by the Director, Municipal Adminis¬tration being not the authority to pass the order under Article 243 Q of the Constitution nor under the provision of the Orissa Municipal Act, and therefore, the impugned order is without jurisdiction. According to the learned counsel, the order other¬wise is perverse and suffers from gross non-application of mind and has been rendered in not considering the relevant factors, such as, size of the area and the municipal service provided/proposed to be provided as mentioned in Article 243 Q of the Constitution and Section 4(1) of the Provisions of the Orissa Municipal Act and, therefore, the same cannot be sustained in law. The contention of the learned counsel that the impugned order has not been passed by the Government as directed by this Court but by the Director, Municipal Administration, has to be rejected. The impugned order itself clearly indicates that the Municipal Director, has communicated the decision of the Government and the order does not reveal that it was the order of the Director. 15. Now coming to the impugned order of the State Govern¬ment dated 22.5.2001, it appears that the State Government has rejected the petitioners’ prayer for exclusion of its industrial area from the purview of the Notified Area mainly on the follow¬ing grounds : (a) The powers available to the Government in terms of the provision of Article 243 Q and Section 4 of the Orissa Municipal Act cannot be exercised taking into consideration a broader view about public interest and amenities that are required to be provided to the general public. Industrial township alone cannot be a factor for exclusion from the limits of the N.A.C. (b) According to the fundamentals of local self Government, decentralization of power is imperative and needed in a democrat¬ic set up. Industrial township alone cannot be a factor for exclusion from the limits of the N.A.C. (b) According to the fundamentals of local self Government, decentralization of power is imperative and needed in a democrat¬ic set up. By 74th the Amendment to Constitution and the incorpo¬ration of Article 243 Q, it was never the intention of the Legis¬lature to dissolve the body corporate like N.A.C. for Constitu¬tion and/or establishment of an Industrial Township. Power of the Government can be exercised for the public purpose and the same is never invoked to benefit a single individual or an organiza¬tion. On the contrary, public at large are to be benefited by the provision of the Act for ends of socio-economic justice. (c) The area of the company is not far away from the main township, on the contrary, the same is situated within the terri¬tory of Belpahar N.A.C. Such central location is also another geographical factor which deter the Government from taking a decision to exclude the area. (d) Not a single individual of the area other than the employees of the said company from the seven villages have filed any objec¬tions nor have opposed to such a move of the Government for constitution of the N.A.C. from which it can be evident that the public were interested. It is also pertinent to mention here that with the exclusion, the N.A.C. would sustain the loss of crores which is very hefty amount and is essential for the administra¬tion of such organization. (e) The Notified Area Councils are body corporates which require to administer itself with revenue collected from the beneficiary citizens/Corporate bodies, who enjoy amenities, facilities, benefits provided by the N.A.C. (f) In order to raise revenue to run such tiny organization of the Government at the grass root level of the society, revenue is primary requirement without which such Organization cannot operate and keeping that in view, the Executive Officer, Belpahar N.A.C. issued a Notification on 10.12.1993 proposing to levy Octroi on different items. Objections were invited from public; the Tata Refractories Ltd. filed its objection on 28.1.1994. It also filed representation on 1.2.1994 and the N.A.C. in its official meeting on 30.4.1994 considered the objections of the petitioner and ultimately moved the Government to accord neces¬sary approval to the rate chart in respect of the items on which Octroi was proposed to be levied. It also filed representation on 1.2.1994 and the N.A.C. in its official meeting on 30.4.1994 considered the objections of the petitioner and ultimately moved the Government to accord neces¬sary approval to the rate chart in respect of the items on which Octroi was proposed to be levied. The Government vide order No.27826 dated 18.8.1999 granted sanction for imposition of Octroi on items that were to be brought within the limit of Belpahar N.A.C. The rates prevailing in the neighbouring N.A.C./Municipalities have been taken into account and compara¬tively the rates of Belpahar N.A.C. have been kept lower than them. (g) The employees of the company remaining within such area under the N.A.C. enjoy the facilities like road, street, light, sanitation, water supply and steps for eradication of the out break of epidemic and health programme. A sum of Rs.7,14,000/- out of the dues towards payment of Octroi has been adjusted for the cost of road repairing, which clearly indicates that the employees of the Tata Refractories Ltd. enjoy the aforesaid facilities. 16. On the contrary, the learned counsel for the petition¬ers submit that the Tata Refractories Limited’s area is a compact area enclosed with the boundary walls surrounding the area and is completely separate from the other areas of the Notified Area Council and there is no justification to amalgamate the area with the rest of the area of the Notified Area Council. The factory and township of Tata Refractories Limited is far away from Belpa¬har Town located at a distance of 21/2 Kms. and there is no contact between the two townships. It is submitted that excepting towards west, in all other directions of TRL, there is no town¬ship and there are busy waste lands and paddy fields. It adjoins other area of the Notified Area Council only on one side and it may be said that TRL area and the proposed area are completely separate. The Tata Refractories Ltd. maintains its own buildings, roads, supplies electricity to its own township and factory. It effectively looks after the sanitation and health by spending large amount for the purpose. Judging from the standard of main¬tenance of roads, sanitation etc. The Tata Refractories Ltd. maintains its own buildings, roads, supplies electricity to its own township and factory. It effectively looks after the sanitation and health by spending large amount for the purpose. Judging from the standard of main¬tenance of roads, sanitation etc. of municipal areas in other parts of the State, the existing standard of maintenance of these facilities in the township of TRL will be appreciably deteriorat¬ed if these services are handled by the N.A.C. Neither the Compa¬ny nor its employees would derive any benefit from the proposed N.A.C. On the contrary, the octroi and holding tax, which will be imposed on the company would be an additional burden on the company and the employees. It is submitted that even after the constitution of the Belpahar N.A.C., no municipal service of any kind including amenities and essential services was ever extended by the Belpahar N.A.C. within the industrial area, even on the request of the authorities both verbally and in writing to pro¬vide essential services like maintenance of road, providing water supply and other municipal services not only within the industri¬al area but also in the peripheral areas. The State Government in identical fact situation have already excluded Rourkela steel Plant and OCL India Limited from their respective municipal limits by declaring them as ‘industrial township’. The petition¬ers claim to have satisfied the pre-conditions and similarly situated with that of those two companies and therefore were entitled to be given to be the same treatment but they have been discriminated. The apex Court in Saij Gram Panchayat v. State of Gujarat and others, (1992) 2 S.C.C. 366, while considering the relation¬ship of the provisions of Part-IX and IX-A of the Constitution of India with any legislation pertaining to industrial development has observed that having regard to the power conferred upon the Gujarat Industrial Development Corporation in the matter of provision of amenities and common facilities in industrial es¬tates and industrial area, on levy of certain charges upon those who set up industries therein, an industrial area would ordinari¬ly be a self-sufficient township in itself which provides its own amenities and recovers charges therefor, but the local authority having jurisdiction over such area will have to perform very few of its statutory or discretionary duties in respect of such area. Yet it may levy and collect taxes from those who set up indus¬tries in the area. Yet it may levy and collect taxes from those who set up indus¬tries in the area. It is to avoid this virtual dual control and administration which might impede the growth and development of industries that provision has, presumably, been made in Section 16 of the Gujrat Industrial Development Act for constituting an industrial area into a notified area and thereby converting it into a separate administrative unit. The Hon’ble Supreme Court held that creation of such a separate administrative unit like an industrial township is not contrary to the scheme of Parts-IX and IX-A of the Constitution when Article 243-Q provides for the creation of such a separate administrative unit in the form of an industrial township. 17. The grounds on which the State Government rejected the petitioner’s prayer for declaring its industrial area as an industrial township cannot be sustained in law. The scope and power under Article 243 Q read with Section 4 of the Orissa Municipal Act has been misconceived by the State, since the State Government have taken the view that such power cannot be exer¬cised taking into consideration a broader view about the public interest and the amenities that are required to be provided to the general public. Providing amenities to the general public cannot be the sole ground for refusing the prayer of an industri¬al agency, if it provides all amenities which a municipality is required to provide and satisfies the relevant conditions. The authorities were required to consider as to whether the industri¬al establishment has provided the township with all amenities as claimed, that are required to be provided by a municipality. In other words, whether the industry concerned has provided or propose to provide the municipal and other civic amenities within its industrial area so as to be eligible to be excluded from the purview of the Notified Area Council. According to the petition¬ers, the area is surrounded by boundary walls on all its sides and is at a distance of 2 1/2 Kms.from the main N.A.C. area which has not been taken consideration in the impugned order while holding that it is within the Notified Area Council. There seems to have been no discussion as to the amenities and facilities that have been provided for by the industrial concern within the industrial area so that no further facilities are required to be provided by the municipality. There seems to have been no discussion as to the amenities and facilities that have been provided for by the industrial concern within the industrial area so that no further facilities are required to be provided by the municipality. The observation made in the im¬pugned order that the power of the Government is never invoked by a single individual or an organization and on the contrary the public at large are to be benefited by the provisions of the Act for ends of social and economic justice, in the present fact-situation of the case, is an out come of mis-reading of the provisions of Article 243 Q of the Constitution and Section 4 of the Orissa Municipal Act. It is not a question of dissolution of a Municipality or Notified Area Council as in the present case but excluding and carving out an industrial area from the area of the Notified Area Council as an Industrial Township. The scope of the provisions of law has been misconceived while rejecting the petitioner’s representation. The State Government’s view that none else other than the employees of TRL and TRL itself have objected to the constitution of the Notified Area indicates that the public were interested in formation of the NAC is irrelevant consideration since the employees and TRL (petitioners) are naturally the persons interested in the Township being the only inhabitants and beneficiaries of the industrial area and the general public out-side the Township necessarily would not be interested in such area. In any view of the matter it seems that the impugned order has been passed without taking all relevant factors into consideration and as such not sustainable. 18. It needs no emphasis that the State Government was required to consider the representation in accordance with the proviso to Article 243 Q (1) of the Constitution of India read with the proviso of Section 4(1) of the Orissa Municipal Act as amended. The aforesaid provisions clearly stipulates that a Municipality may to be constituted with a smaller urban area or a part thereof if the Governor having regard to the size of the area and the municipal service being provided or proposed to be provided by an industrial establishment in that area and such other factors as he may deem fit to be considered declare such area as an Industrial Township. The clause “such other factor” obviously would mean, factors which are relevant for the purpose of determining the question as to whether there is reason for declaring the industrial area as an Industrial Township. In absence of an consideration with regard to the amenities provided for by the industrial establishment, the petitioner and such other factors as are relevant for the determination of the issues like industrial development in the State, the impugned order rejecting the petitioner’s prayer has to be held as bad in law and liable to be quashed. The State Government thus is required to reconsider the representation of the petitioner for exclusion of the petitioner’s industrial area from the Belpahar Notified Area taking into consideration all relevant factors keeping in view the amenities and facilities provided by the industrial establishment of the petitioners and such other factors which are germen to the issue within three months from the date of receipt of the order. In view of our finding that the Notification Annexure-4 dated 3rd December, 1993 constituting the Belpahar Notified Area is a valid notification and is not vitiated due to alleged non-consideration of the petitioners representation, the constitution of Belpahar Notified Area was in accordance with law, the ques¬tion as to whether it had the competence to levy different fees and taxes becomes irrelevant and need not be gone into. The TRL, therefore, cannot avoid the liability to pay the octroi duties or other fees and taxes levied by the Municipality in accordance with law. It is well settled principle of law that whenever a challenge is made to the levy of tax, its validity may have to be mainly determined with reference to the legislative competence or power to levy the same and adjudging this issue, the nature and character of the tax has to be inevitably determined at the threshold. Once the authority concerned has been held to possess the power to levy the tax, the motive with which the tax is im¬posed becomes immaterial and irrelevant and the fact that a wrong reason for exercising the power has also been given would not in any manner derogate from the validity of the tax. A reference in this context has to be made to the decision in Municipal Council, Kota, Rajasthan v. Delhi Cloth and General Mills Co. Ltd.,Delhi and others, (2001) 3 S.C.C. 654 . A reference in this context has to be made to the decision in Municipal Council, Kota, Rajasthan v. Delhi Cloth and General Mills Co. Ltd.,Delhi and others, (2001) 3 S.C.C. 654 . In the cases at hand, the compe¬tence of the NAC to levy any fee, octroi or tax is under chal¬lenge only on the ground that the constitution of NAC itself by Government notification was bad and on no other grounds. In such view of the matter, the constitution of NAC having been held valid the petitioners case fails and has to be rejected. In the result, O.J.C. Nos. 3282 of 1996, 11280 of 1997 and 2505 of 2001 are dismissed and the writ petition in O.J.C. No.10803 of 2001 is allowed to the extent indicated. N. PRUSTY, J. I agree. Order accordingly.