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Rajasthan High Court · body

2015 DIGILAW 1299 (RAJ)

Gautam Garden v. State of Raj.

2015-07-15

BELA M.TRIVEDI

body2015
Order : 1. With the consent of the learned counsels for the parties, all the petitions have been heard finally at the admission stage. 2. In all these petitions, the petitioners have challenged the action of the respondent- Corporation in issuing the notices calling upon them to deposit the amount of penalty as per the bye-law 16 of the Municipal Corporation, Jaipur (Registration of Marriage Gardens) amended bye-laws 2012(hereinafter referred to as 'the bye-laws, 2012'), and in threatening the petitioners to seize their marriage gardens if they failed to deposit the said amount. 3. For the sake of convenience, the facts of SBCWP No. 8650/15 are narrated. The said petition has been filed by the petitioner Vijay Kunj Marriage Garden, through its proprietor. 4. As per the case of the petitioner, the Jaipur Municipal Corporation had issued a public notice dated 21.10.13 (Annex.1) informing the marriage garden owners interalia that if they deposited the outstanding amount of registration fees on or before 31.12.13, they would be exempted from making payment of the penalty amount. According to the petitioner, the petitioner had deposited the entire outstanding amount on 29.10.13 as per the receipt (Annex.2), before the cut off date i.e. 31.12.14. However, the respondent- Corporation issued the impugned notice dated 15.6.15 (Annex.3) raising demand of Rs. 1,54,904/- towards penalty for the financial year 2011-12, 2012-13 and 2013-14 and threatened to seize the marriage garden if the said amount was not paid, invoking the provisions of the amended bye-laws of 2012. The said petition has been resisted by the respondent-Corporation by filing the reply raising the preliminary objection about the maintainability of the petition on the ground that alternative remedy of filing appeal was available to the petitioner under the bye-laws, 2012. It has also been contended that initially the Municipal Corporation, Jaipur (Registration of Marriage Gardens) bye-laws 2011 (hereinafter referred to as 'the bye-laws of 2011') were framed exercising the powers vested under Section 105 read with Section 340 of the Rajasthan Municipalities Act, 2009 (hereinafter referred to as 'the said Act'). The said byelaws were amended by the bye-laws of 2012, published in the Rajasthan Gazette dated 23.1.13. The said byelaws were amended by the bye-laws of 2012, published in the Rajasthan Gazette dated 23.1.13. According to the respondent- Corporation the said bye-laws were applicable with effect from 13.6.12 and therefore certain representations were made by the petitioner and others which were under consideration, however the Director of Local Self Bodies vide letter dated 7.9.13 had informed the respondent-Corporation that effective date of bye-laws 2012 should be 20.5.2012. It is further contended by the respondent-Corporation that the petitioner and others thereafter had also filed the undertakings to the effect that if the State Government did not exempt the petitioner and others from depositing the penalty amount, they shall deposit the entire amount of penalty for the years 2011-12, 2012-13 and 2013-14 upto 31.3.15 with the respondent- Corporation, failing which the respondent- Corporation shall be at liberty to take necessary action for the recovery of the said amount. According to the respondent- Corporation, since the State Government did not take any decision before 31.3.15 and since the petitioner did not pay the amount as undertaken by him, the marriage garden was seized as per the seizure memo dated 18.6.15 (Annex.R/1). 5. To avoid the duplication of facts, the facts of the other petitions are not narrated, but suffice is to say that undisputedly the petitioners of all the petitions had deposited the outstanding amount of licence fees with the respondent-Corporation pursuant to the public notice dated 21.10.13 (Annex.1), however had not deposited the amount of penalty and therefore their marriage gardens have been seized pending the present petitions, except the marriage garden of the petitioner Surya Mahal of SBCWP No. 8652/15. It is also required to be noted that the Jaipur Vivah Sthal Samiti, the petitioner of SBCWP No. 8544/15 has filed the separate petition seeking direction against the respondent-State Government to decide the representation of the petitioner-samiti dated 18.2.15 for granting exemption to its members from paying amount of penalty with effect from 2011. The said petition has been dealt with separately by separate order. 6. It is submitted by the learned counsels Mr. Prahlad Sharma, Mr. Sanchit Tamra and Mr. B.L. Sharma for the petitioners that the action of levying penalty on the petitioners by the respondent-Corporation under the amended bye-laws of 2012 with retrospective effect of 2011 is not only arbitrary, illegal but dehors the provisions contained in the said Act. 6. It is submitted by the learned counsels Mr. Prahlad Sharma, Mr. Sanchit Tamra and Mr. B.L. Sharma for the petitioners that the action of levying penalty on the petitioners by the respondent-Corporation under the amended bye-laws of 2012 with retrospective effect of 2011 is not only arbitrary, illegal but dehors the provisions contained in the said Act. According to them the petitioners having deposited the entire amount of outstanding licence fees as per the public notice dated 21.10.13 before the prescribed date of 31.12.13, the respondent-Corporation was not entitled to compel the petitioners to pay the penalty amount under the guise of the amended bye-laws, 2012. They also submitted that since the respondent-Corporation had threatened to seize marriage gardens of the petitioners, they were compelled to give the undertakings, however, during the pendency of the present petitions the marriage gardens of all petitioners have been seized on the ground of non-payment of penalty amount. The learned counsel Mr. Sanchit Tamra for the petitioner has further submitted relying upon the decision of the Apex Court in the case of Union of India Vs. Hindalco Industries (2003) 5 SCC 194 and in the case of Union of India & Ors. Vs. Tantia Construction Pvt. Ltd. (2011) 5 SCC 697 , that alternative remedy is not an absolute bar for filing the writ petition, more particularly when the respondent-Corporation has issued the impugned notices and seized the marriage gardens without any authority of law. 7. However, the learned counsel Dr. P.C. Jain for the respondent-Corporation has vehemently submitted that the present petitions are not maintainable in view of the alternative remedy being available to the petitioners in the amended bye-laws of 2012. He also submitted that the petitioners were also estopped from challenging the action of the Corporation in issuing notices for payment of penalty amount in view of the undertakings given by them which permitted the Corporation to take action against them. Mr. Jain has also pressed into service the provisions contained in Section 340 read with Section 105 of the said Act to submit that the Corporation was entitled to frame bye-laws for collecting the licence fees which were of regulatory nature. He has relied upon the decisions of the Apex Court in case of Secunderabad Hyderabad Hotel Owner's Association & Ors. Vs. Hyderabad Municipal Corporation, Hyderabad & Anr. He has relied upon the decisions of the Apex Court in case of Secunderabad Hyderabad Hotel Owner's Association & Ors. Vs. Hyderabad Municipal Corporation, Hyderabad & Anr. (1999) 2 SCC 274 and in the case of Shyam Kishore & Ors. Vs. Municipal Corporation of Delhi & Anr. AIR 1992 SC 2279 and submitted that the licence fees could be regulatory or compensatory and in the instant case the licence fees for running the marriage gardens having been imposed to regulate the marriage gardens, as per the bye-laws framed by the Corporation, and the petitioners having failed to pay the penalty amount demanded by the Corporation under the said bye-laws, their marriage gardens were liable to be seized. 8. After having considered the submissions made by the learned counsels for the parties, in the light of the provisions of the said Act, the court is of the opinion that the main question which is required to be considered is, whether the Municipal Corporation could have framed the bye-laws 2012, exercising the powers under Section 339(b) read with Section 105 of the said Act, for charging the penalties for regulating the marriage garden? 9. In order to appreciate the rival submissions made by the learned counsels for the parties, it would be relevant to deal with certain provisions of the said Act. As per the definition of "tax" contained in Section 2 (ixiv) of the said Act, "tax" includes any toll, rate, cess, fee or other impost leviable under the said Act. Further, Section 104 empowers the Municipal Corporation to levy user charges and Section 105 empowers the Municipal Corporation to levy fees and fines, for the matters stated in the respective provisions. Section 339 empowers the Municipal Corporation to make the rules and Section 340 empowers the Municipal Corporation to make bye-laws for the matters enumerated in the respective provisions. It is pertinent to note that as per Section 339 (b), the Corporation is empowered to make rules with regard to all the matters relating to imposition, levy and collection of fees and fines under Section 105, and that as per Section 340(b), the municipal Corporation is empowered to make bye-laws for prescribing all matters relating to the imposition, levy, assessment and collection of user charges under Section 104. Therefore, the Municipal Corporation could have framed the rules under Section 339 for the matters relating to the fees and fines under Section 105, but could not have framed the bye-laws under Section 340 for the said matters. The bye-laws could have been framed for the matters relating to the user charges under Section 104, amongst other matters, and not for the matters relating to Section 105 of the said Act. 10. Now it is significant to note that the byelaws of 2011 were framed by the Corporation in exercise of the powers conferred under Section 340 read with Section 105 of the said Act, and that the amended bye-laws of 2012 have been framed exercising the powers under Section 339(b) read with Section 105 of the said Act. Though there does not appear to be any error in mentioning the provisions of the Act in the bye-laws of 2011 or 2012, however assuming that by printing mistake or otherwise, wrong sections have been mentioned in the said bye-laws, then also in the opinion of the court, the Corporation had no powers to make bye-laws for the matters relating to the fees and fines under Section 105. It could have made the rules and not the bye-laws for the matters under Section 105. Since no powers are conferred upon the Corporation under Section 340 to frame the bye-laws with regard to the matters relating to the levy of fees and fines under Section 105 of the said Act, the bye-laws, 2011 and the amended bye-laws of 2012 ex-facie appear to have been made without any authority of law. In any case, the Corporation having issued the public notice on 21.10.13 and the petitioners having deposited the entire outstanding amount towards the licence fees before the cut off date pursuant to the said notice, the respondent-Corporation could not have asked the petitioners to pay the penalty and that too with retrospective effect, invoking the bye-laws of 2012, which had no sanctity of law. It is needless to say that no tax or fees or penalty could be recovered without the sanction of law and without following due process of law. It is needless to say that no tax or fees or penalty could be recovered without the sanction of law and without following due process of law. In that view of the matter, the court is of the opinion that the Corporation could not have imposed the penalty invoking the amended bye-laws of 2012, and the Corporation also could not have seized the marriage gardens on non-payment of such penalty amount by the petitioners. Even, as per bye law-23 of the bye-laws, 2012, the marriage garden could be seized only in case of breach of any of the conditions mentioned in bye law-17. Mr. Jain for the respondent- Corporation had failed to point out as to which of the conditions of bye law-17 was violated, entailing seizure of petitioners gardens. There cannot be any disagreement to the ratio laid down in the decisions cited by the learned counsel Mr. Jain, however they have no application to the facts of the present case. 11. It is not disputed that all the petitioners have deposited the licence fees till this date for the running their respective marriage gardens, and the dispute was only with regard to the demand notices issued by the Municipal Corporation for payment of the penalty amount. Since the court has held that the Corporation could not have imposed the penalty invoking the bye-laws, 2012 which have no authority of law, the consequent action of the Corporation in seizing the marriage gardens for non-payment of such penalty amount, also cannot be vindicated. 12. In that view of the matter, the impugned notices issued by the Corporation are quashed and set aside. Since in the connected writ petition being SBCWP No.8544/15 the court has directed the respondent-State Government to decide the representation of the petitioners made through their Samiti preferably within three months, it is directed that the seals affixed on the marriage gardens of the petitioners shall be removed forthwith and that no coersive action shall be taken against the petitioners for non-payment of the penalty amount till the said representation is decided by the State Government. However, it is clarified that the Corporation shall be at liberty to take action against the petitioners, if the petitioners are found to have committed any other irregularity or illegality in violation of the provisions of the said Act and Rules made thereunder, after following the due process of law. 13. However, it is clarified that the Corporation shall be at liberty to take action against the petitioners, if the petitioners are found to have committed any other irregularity or illegality in violation of the provisions of the said Act and Rules made thereunder, after following the due process of law. 13. The petitions stand allowed accordingly. By this order, the stay applications also stand disposed of. Copy of this order be placed in each of the connected petitions.