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2010 DIGILAW 42 (GAU)

Bijni Truck Malik Sanstha v. State of Assam

2010-01-27

AMITAVA ROY

body2010
JUDGMENT Amitava Roy, J. 1. The notice inviting tender ('the NIT') dated 28.8.2009 of the Bijni Town Committee inviting tenders for a settlement for collection of entry tax from loaded commercial trucks referred to therein for the period 15.9.2009 to 31.3.2010 and the selection of the respondent No. 7 there for constitute the subject-matter of challenge essentially on the ground of lack of authority of the respondent Committee. 2. I have heard Mr. M. Singh, advocate assisted by Ms. G. Singh, advocate for the petitioners, Mr. D. Das, standing counsel, Bodoland Territorial Council ('the Council'), Mr. A. Dasgupta, advocate appearing for the Bijni Town Committee (also referred to as the Committee) and Mr. M.R. Das, advocate for the respondent No. 7. 3. The petitioners have introduced the Bijni Truck Malik Sanstha (petitioner No. 1) as a registered association of the owners of trucks/mini trucks plying within and beyond the Bijni Town located in the district of Chirang in the State of Assam. The petitioner Nos. 2 and 3 are the President and Secretary thereof. They have pleaded that in absence of any lawful authority, the Committee by the impugned NIT as above, had invited tenders and settled the process in favour of respondent No. 7. As in consequence thereof, the truck owners of the area within the territorial limits of the Committee are compelled to pay entry and exit tax to the settlement holder in spite of repeated representations on their behalf before the authorities of the Committee, the petitioners have espoused their common cause by the instant petition. According to them, no tax on the entry and exit of goods carrying commercial vehicle in and out of the Committee limits under the Assam Municipal Act, 1956 ('the Act') is permissible. Referring to section 68 of the Act in particular, the petitioners have contended that in any view of the matter, there being no sanction of the Government of Assam to exact this specie of levy, the realisation of the entry tax in the manner effected is ex facie illegal and without jurisdiction. Besides, there being no justification or valid cause for such impost, the same cannot be realised also in absence of any gazette notification to that effect. Want of the sanction of the council as well has been asserted in endorsement of the challenge. 4. Besides, there being no justification or valid cause for such impost, the same cannot be realised also in absence of any gazette notification to that effect. Want of the sanction of the council as well has been asserted in endorsement of the challenge. 4. The council in its affidavit affirmed by the Joint Secretary, In-charge of its Urban Development Department while admitting absence of any sanction from the Government vis-a-vis the levy has claimed such power in it on the basis of a tripartite memorandum of settlement embodied in the Memo No.TAD/BTC/222/03/51 dated 16.10.2004. Reference has also been made to the letter No.BTC/UD-26/2009-10/3 of the Joint Secretary, Urban Development Department of the Council, Kokrajhar, disclosing that in absence of its own legislations on Municipal Affairs, the Urban Development Department had been adhering to the existing Assam Municipal Act, 1956, in implementing its (Council) plan and non-plan matters. The answering respondent on the basis of the office memorandum dated 16.10.2004 has maintained that the council pursuant thereto and pending the framing of its own rules has been complying with the existing Act, Rules and instructions of the Government of Assam relating to the subjects/departments entrusted to it. On this premise, the respondent council has insisted that the power to grant sanction as envisaged in section 68(1)(n) of the Act vests in it which is extendable inter alia for imposition of entry and exit tax on mass vehicular movement in any urban area as defined by the said statute. 5. The Bijni Town Committee in its counter has contended that after having sought for the permission to collect entry tax on the vehicular traffic entering the Bijni Town from the Government of Assam, the council to this effect vide the letter No.KDO/AP/10/2008/111 dated 21.7.2009 of the council Head of Department, Urban Development Department, B.T.C., Kokrajhar communicated its approval therefor and, thus, it (Committee) in its meeting held on 1.9.2009 resolved to impose the said levy as per the provisions of the Act. Accordingly, tenders were invited by the impugned NIT dated 28.8.2009 and on the completion of the process, the respondent No. 7 being selected was allotted the work to collect the imposition from the vehicular traffic for the period 15.9.2009 to 31.3.2010. According to the Committee, the tax is valid having been levied on compliance of all legal prescriptions in that regard. 6. According to the Committee, the tax is valid having been levied on compliance of all legal prescriptions in that regard. 6. In its additional affidavit, the committee has clarified the levy to be in the form of fee as the same is to be applied to repair the roads under its area, which are worn out and in a deplorable condition due to heavy traffic thereon. That the Bijni Town Committee is located within the boundaries of the council to which, under the Sixth Schedule to the Constitution of India, the power relating to the administration of the municipal affairs thereof has been delegated has been underlined as well. 7. Mr. Singh has argued that there being no provision whatsoever in the Act for imposition of tax on the entry or exit of goods carrying vehicles, such a levy as well as the settlement process pertaining thereto are per se without any authority of law and are liable to be adjudged null and void. Referring to the definition of "carriage" made in section 3(3) of the Act which excludes from its purview, any motor vehicle as defined in the Assam Motor Vehicles Taxation Act, 1936, the learned counsel has insisted that no tax under the Act is leviable on a goods carrying commercial vehicle and, thus, the realisation being incompatible with the unassailable mandate of article 265 of the Constitution of India is ab initio void. He has further urged without prejudice to the above that neither any sanction of the State Government as mandatorily required under section 68(1)(n) is available in the case in hand nor any of the contingencies comprehended under the proviso exists thus rendering the impost wholly illegal. According to Mr. Singh, the letter dated 21.7.2009 of the Council Head of Department, Urban Development Department, Kokrajhar, does not convey the sanction as contemplated under section 68(1)(n) of the Act, thus, rendering the realisation ex facie unauthorised. In support of his submissions, Mr. Singh has placed reliance on the decision of the Apex Court in District Council of United Khasi and Jaintia Hills, etc. v. Sitimon Sawain, etc., AIR 1972 SC 787 and of this court in Kolongvelly Bus Santha and Ors. v. State of Assam and Ors., 1996 (1) GLT 393 (1996) 1 GLR 209. 8. In support of his submissions, Mr. Singh has placed reliance on the decision of the Apex Court in District Council of United Khasi and Jaintia Hills, etc. v. Sitimon Sawain, etc., AIR 1972 SC 787 and of this court in Kolongvelly Bus Santha and Ors. v. State of Assam and Ors., 1996 (1) GLT 393 (1996) 1 GLR 209. 8. The learned Standing counsel for the council while insisting that pending appropriate legislations by it (Council), the existing Rules, instructions, norms, guidelines, etc., of the Government of India and of the Government of Assam governing the implementation of plan schemes relating to the entrusted subjects/departments and other matters including non-plan matters relating thereto are being observed in terms of the Office Memorandum dated 16.10.2004 has pleaded that the council is thus empowered to grant sanction for the levy as required under section 68(1)(n) of the Act. Referring to, two Office Memoranda No.BTC/IBA-105/2004/405 dated 22.10.2004 and BTC/IBA-105/2004/ 406 dated 25.10.2004 of the Secretary of the B.T.C., evidencing adoption of all existing Acts/Rules/norms/guidelines, etc., of the Government of Assam till it (Council) framed its own laws in respect of the transferred departments, Mr. Das however has argued that the letter dated 21.7.2009 is not by the Principal Secretary of the council who in terms of clause (f) of the Office Memorandum dated 16.10.2004 is empowered to exercise its executive functions and is also vested with the sanctioning powers of the Government of Assam. He has further apprised this court that the council though meanwhile has framed its rules, the same await the assent of the Governor of the State as required under the Sixth Schedule to the Constitution of India. 9. Mr. Dasgupta in his endeavour to sustain the validity of the settlement impugned has while reiterating that the impost is in the nature of a fee against the services proposed has insisted that the approval conveyed by the letter dated 21.7.2009 (Annexure II to the writ petition) of the concerned authority of the council constitutes a valid sanction as contemplated under section 68(1)(n) of the Act. Relying heavily on paragraph 3B and 8 of the Sixth Schedule to the Constitution of India, the learned Counsel has urged that the impost is valid in all respects when viewed in the perspective of the area involved, the constitutional scheme of governance thereof and the avowed object of its utilisation. Relying heavily on paragraph 3B and 8 of the Sixth Schedule to the Constitution of India, the learned Counsel has urged that the impost is valid in all respects when viewed in the perspective of the area involved, the constitutional scheme of governance thereof and the avowed object of its utilisation. According to him, as admittedly, as on date no legislation by the council is in force, the Act qua the levy holds the sway and the conditions precedent as envisaged in section68(1)(n) having been duly complied with, the impugnment laid against the same is apparently untenable and thus ought to be negated. In endorsement of this contentions the decision of the Apex Court in District Council of the Jowai Autonomous District Jowai v. Dwet Singh Rymbai, etc., AIR 1986 SC 1930 has been pressed into service. 10. I have extended my anxious consideration to the competing pleadings and the contentious arguments based thereon. To start with, noticeably, there is no wrangle at the Bar that the territorial limits of the Town Committee are within the area under the council. There is no dissension that the provisions of the Sixth Schedule to the Constitution of India are applicable for the administration of the affairs of the Council. 11. As alluded hereinabove, the Committee has sought to sustain the settlement on the plea of having acted under section 68(1)(n) of the Act with the sanction of the council. According to the petitioner, neither this power is available to the Committee under the said provision of the Act, the necessary pre-conditions therefor not having been complied with nor the levy is chargeable on the goods carrying trucks being not within the purview of definition of carriage under section 3(3) of the said enactment. The parties are, however one on the proposition that as on date, no law made by the council is in force relatable to the issue in hand. 12. Article 244(2) of the Constitution mandates the conduct of the administration of the tribal areas' referred to therein as per the provisions of the Sixth Schedule thereto. As referred to hereinabove, the application of the provisions of the Sixth Schedule to the area involved in the present proceeding is not in debate. 12. Article 244(2) of the Constitution mandates the conduct of the administration of the tribal areas' referred to therein as per the provisions of the Sixth Schedule thereto. As referred to hereinabove, the application of the provisions of the Sixth Schedule to the area involved in the present proceeding is not in debate. The emergence of the council, i.e., the Bodoland Territorial Council is traceable to the Bodo Accord dated 20.2.1993 followed by a tripartite accord on 10.2.2003 as a measure to create an autonomous self-governing body within the State of Assam and to amongst others provide constitutional protection to it to fulfil economic, educational and linguistic aspirations, as well as the socio-cultural and ethnic identity of the Bodos and to speed up the infrastructure development in the area concerned. The same, inter alia endowed the council which in terms of the 2003 Accord replaced the erstwhile Bodoland Autonomous Council ('B.A.C.') with legislative powers in respect of subjects transferred to it and as enumerated therein. The council was also vested with executive, administrative and financial powers in connection therewith. The subjects entrusted to the council by the State of Assam included, Panchayat and Rural Development, Urban Development Town and Country Planning, Planning and Development and Municipal Corporation. 13. The executive functions of the council in terms of clause 5.10 of the 2003 Act was enjoined to be exercised through its Principal Secretary who would have to be an Officer of the rank not below that of the Commissioner/Secretary to the Government of Assam. The sanctioning powers of the Government of Assam thereby stood vested in the Principal Secretary. 14. The 2003 Act ushered in the Sixth Schedule to the Constitution (Amendment) Act, 2003, which, while creating the autonomous self-governing body christened as Bodoland Territorial Council outlined the tribal area as contemplated under paragraph 1 to the Sixth Schedule to the Constitution of India to be administered thereby. The council in deference to the 2003 Act was vested with legislative, administrative and financial powers in respect of the specified subjects as enumerated in paragraph 3B of the said Schedule. Additional powers to the council to make laws in respect of those subjects were also conferred by the said Paragraph. The essentiality of submission of the laws made by the council to the Governor of Assam qua the matters referred to in paragraphs 3 and 3B was also obligated. Additional powers to the council to make laws in respect of those subjects were also conferred by the said Paragraph. The essentiality of submission of the laws made by the council to the Governor of Assam qua the matters referred to in paragraphs 3 and 3B was also obligated. Subjects on which the council was empowered to legislate, included Municipal Corporation, Panchayat and Rural Development, Planning and Development, Improvement Trusts, District Boards and other local authorities. 15. The power to assess and collect land revenue and to impose taxes conferred on the regional as well as District Councils by paragraph 8 of the Sixth Schedule to the Constitution of India was retained vis-a-vis the Council. By the paragraph 12 of the said Schedule, no Act of the Legislature of the State of Assam in respect of any of the matters specified in paragraphs 3, 3A and 3B as well as those prohibiting or restricting the consumption of any non-distilled alcoholic liquor was to applied to any autonomous district or autonomous region in the State, unless the District Council for such district or having jurisdiction over such region by public notification so direct retaining to it the power to decide the extent of the enforcement of the legislation, as well as the area of its applicability. 16. Following the notification of the aforementioned amendment Act of 2003 in the Gazette of India on 8.9.2003, the Government of Assam by the notification No. TAD/BTC/161/2003/6, dated 31.10.2003 extended the executive powers of the council to 40 subjects as enumerated in paragraph 3B of the Sixth Schedule to the Constitution of India. Having regard to the transitional state and the statutory prescripts relating amongst others to the framing of rules by it on various aspects of the conduct of its affairs as well as laws in connection therewith, the State Government in consultation with it, formulated the working administrative procedure and modalities for the purpose of day-to-day administration in respect of 39 subjects/departments, excluding relief and rehabilitation. 17. The Office Memorandum TAD/BTC/222/03/51, dated 16.10.2004 of the Welfare and Plain Tribes and Backward Classes Department of the State, under the hand of the Principal Secretary to the Government of Assam, WPT and B.C. Department was thus issued engrafting the said norms. 17. The Office Memorandum TAD/BTC/222/03/51, dated 16.10.2004 of the Welfare and Plain Tribes and Backward Classes Department of the State, under the hand of the Principal Secretary to the Government of Assam, WPT and B.C. Department was thus issued engrafting the said norms. These, precepts amongst others reiterated that the executive functions of the council would be exercised through its Principal Secretary and the sanctioning powers of the Government of Assam would stand vested in him. Thereby the council was obligated to ensure that the existing rules, instructions, norms, guidelines, etc., of the Government of India and the State Government governing the implementation of the plan schemes relating to the entrusted subjects/departments and other matters including non-plan matters relating to those were followed strictly till it (Council) framed its own rules for these purposes, in terms of the provisions of the Sixth Schedule to the Constitution of India. 18. Pursuant thereto, by the Office Memorandum BTC/IBA-105/04/ 405 dated 22.10.2004 issued by the Secretary of the council, it was declared that pending the adoption of the existing laws and rules of the transferred departments, the council would implement and pursue the existing Acts/Rules/norms/guidelines etc. of the Government of India and the State Government. This was followed by the notification BTC/IBA/105/2004/406 dated 25.10.2004 also by the same authority conveying thereby the adoption by the council of all the existing Acts/ Rules/norms/guidelines of the Government of Assam till it framed its own laws/Acts/Rules in respect of the transferred departments. 19. As would be apparent on the face of the notification dated 16.10.2004, the contents, thereof model a framework to facilitate a smooth conduct of the affairs of the council pending its own legislations in terms of the Sixth Schedule to the Constitution of India. However, having regard to the unequivocal constitutional enjoinment as engraved in paragraph 12 of such Schedule requiring a public notification by the District Council of its decision regarding applicability of any Act of the Legislature of the State of Assam, the Office Memoranda dated 22.10.2004 and 25.10.2004 fall short of such edict. No material has been brought on record to establish the public notification of these official declarations. No material has been brought on record to establish the public notification of these official declarations. There being a constitutional embargo in clear terms against the applicability of any Act of Legislature of the State of Assam, otherwise than in conformance with the prescriptions contained in paragraph 12 to the Sixth Schedule to the Constitution of India, in absence of any averment or proof of such public notification of the aforementioned Office Memoranda, the plea of applicability of the Act to the area involved in the instant proceeding cannot be sustained. The office memorandum dated 16.10.2004, per se does not save the situation as well. To this effect the assertion on behalf of the petitioner questioning the enforceability of the said office memoranda being in departure from the mandate of paragraph 12 of the Sixth Schedule has to be necessarily endorsed. 20. Even otherwise, the tax, toll, road or fee under section 68(1)(n) of the Act being leviable only with the sanction of the State Government, even if the administrative procedure and modalities embodied in the office memorandum dated 16.10.2004 are considered to have a binding force vis-a-vis the parties thereto, the letter dated 21.7.2009 issued by the Council Head, Urban Development Department, BTC, Kokrajhar permitting the Town Committee to impose the levy in question cannot be construed to be such sanction by it (Council), the power therefor, having been unequivocally conferred on its Principal Secretary and no other executive functionary. 21. In view of the determinations as above, the challenge projected against the impugned settlement on the ground of lack of authority has to be upheld. 22. It is, in this premise inessential to dwell on the decisions of the Apex Court pertaining to the scope and ambit of the power of legislation of the council under the Sixth Schedule to the Constitution of India. The decision of this court in Kolongvelly Bus Santha and Ors. (supra) also does not call for a dilation amongst others for the reason that the same is without reference to section 68 of the Act. 23. The decision of this court in Kolongvelly Bus Santha and Ors. (supra) also does not call for a dilation amongst others for the reason that the same is without reference to section 68 of the Act. 23. Incidentally, though the power to levy and collect tax as observed hereinabove, has been vested under paragraph 8 of the Sub-Schedule in the District Council for an autonomous District within the area thereof, inter alia, for the maintenance of Schools, dispensaries or roads as comprehended in sub-paragraph (4) thereof proclaims in patent terms, the indispensability of some regulations by the District Council in that regard to be compulsorily submitted with the Governor of the State. As in terms thereof, such regulations could have no effect unless assented to by the Governor in absence of any such consummate legal instrument, in the contextual facts, the impugned settlement cannot be sustained even on the measure of such taxing power of the council. 24. On a totality of the considerations as above, the petition deserves to succeed. Ordered accordingly. The impugned settlement is hereby interfered with and is set aside. The parties, however, are left to bear their own costs. Petition allowed.