Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 852 (RAJ)

STATE OF RAJASTHAN v. DADU DAYAL MARRIAGE GARDEN

2018-03-23

K.S.JHAVERI, VIJAY KUMAR VYAS

body2018
JUDGMENT AND ORDER : 1. In all these appeals common questions of law and facts are involved, hence, they are decided by this common judgment. 2. By way of these appeals, the appellants-State Government has challenged the judgment and order of the learned Single Judge whereby the learned Single Judge has quashed the notices issued by the respondent-appellant no. 1 herein. 3. Counsel for the appellants Mr. N.M. Lodha Advocate General has taken us to order of learned Single Judge wherein it has been observed as under:- "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(lxiv) 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. 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 bye-laws 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 byelaws 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 byelaws 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 byelaws 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." 4. Counsel for the appellants mainly contended that the learned Single Judge has seriously committed an error inasmuch as there is no prayer for setting aside the notification which was issued by the local authority and amendment of bye-laws or bye-laws framed under the Municipal Corporation Act and the prayers which are made reads as under:- "(i) by an appropriate writ order or direction thereof, thereby, impugned notice/order dated 16.06.2015 (Annexure-8) may kindly be quashed and set aside. (ii) by an appropriate writ order or direction thereof, thereby, respondents may kindly be directed to release the marriage palace of the petitioner from seizure and alleged penalty for the year 2011-12 to 2013-14 regarding delayed payment of license renewal fees. (ii) by an appropriate writ order or direction thereof, thereby, respondents may kindly be directed to release the marriage palace of the petitioner from seizure and alleged penalty for the year 2011-12 to 2013-14 regarding delayed payment of license renewal fees. (iii) any other appropriate order or direction which the Hon'ble Court may deem just, proper and expedient in the facts and circumstances of the case may kindly be passed in favour of the petitioner." 5. In that view of the matter, he contended that the judgment delivered by the learned Single Judge is contrary to decision of the Supreme Court which are as under:- The State of Andhra Pradesh and another, vs. K. Jayaraman & Ors, (1975) AIR(Supreme Court) 633 "9. We think that the High Court was wholly in error in declaring the rule invalid suo moto, against the common case of both sides, found in the petition and the returns filed before the High Court, that the A.T.A. rule was valid. No cogent reason could be advanced before us for holding, on merits, that the rule was really, invalid. We, however, refrain from deciding the question of its validity as that was not put in issue by the averments made by the parties to the case. It was not, we think, a pure question of law. The invalidity of the A.T.A. rule, could not, for the reasons given above, be urged on the Writ petition before the High Court without even amendment of the petition so as to give the respondents an opportunity to meet a case of alleged invalidity of the rule." West Bengal Electricity Regulatory Commission vs. CESC Ltd, (2002) 8 SCC 715 "44. Having held on merits that the Regulations are not arbitrary and are in conformity with the provisions of the Act, we will now consider whether the High Court could have gone into this issue at all in an appeal filed by the respondent Company. First of all, we notice that the High Court has proceeded to declare the regulations contrary to the Act in a proceeding which was initiated before it in its appellate power under Section 27 of the Act. The appellate power of the High Court in the instant case is derived from the 1998 Act. First of all, we notice that the High Court has proceeded to declare the regulations contrary to the Act in a proceeding which was initiated before it in its appellate power under Section 27 of the Act. The appellate power of the High Court in the instant case is derived from the 1998 Act. The Regulations framed by the Commission are under the authority of subordinate legislation conferred on the Commission in Section 58 of the 1998 Act. The Regulations so framed have been placed before the West Bengal Legislature, therefore it has become a part of the statute. That being so, in our opinion the High Court sitting as an appellate court under the 1998 Act could not have gone into the validity of the said Regulations in exercise of its appellate power. 46. From the above decision, we hold that the High Court while exercising its statutory appellate power under Section 27 of the 1998 Act could not have gone into the validity of the Regulations which are part of the statute itself." K. Vasudevan vs. Mohan N. Mali & Ors, (2002) 10 SCC 117 "5. It is clear that before the High Court there was no challenge to the relaxation as such. What was contended was that the appellant before us had not put in 18 years of service in the senior scale and, therefore, he would not be entitled to the benefit of the relaxation. But the High Court went on further to examine the validity of the circular itself. In our view, such a course was not permissible for the High Court particularly when there is no challenge to the circular relaxing conditions, as was stipulated in the circular dated 12.8.1987. The basis set forth in the circular itself is that those who have completed 18 years of service need not be insisted upon to possess postgraduate qualification for being considered to extend the selection scale. Such relaxation is a matter of policy with the Government and cannot be treated to be irrational inasmuch as in the view of the Government such teachers possess experience and need to be given due recognition. In the circumstances, we allow this appeal, set aside the order made by the High Court and restore that of the Director of Education, Government of Goa, Panaji, Goa dated 10-8-1993. In the circumstances, we allow this appeal, set aside the order made by the High Court and restore that of the Director of Education, Government of Goa, Panaji, Goa dated 10-8-1993. It is, however, made clear that if any extra payments have been made to the first respondent pursuant to the order made by the High Court, the same shall not be recovered. The appeal is allowed accordingly." 6. Further, he contended that the learned Single Judge while concluding the findings held that the imposition of penalty is without any authority of law, in that view of the matter, in view of the prayers which are claimed, the notices could not have been set aside without declaring the bye-laws ultra-vires which were not challenged and if it is challenged the Single Judge has exceeded his jurisdiction. 7. Counsel for the respondents contended that the learned Single Judge has not committed any error setting aside the byelaws and he has only said that the penalty imposed by the State is not permissible under the law in view of the discussion under Section 339(b) read with 105 of the Act. 8. Counsel for the respondents have relied upon the judgment in case of State of Uttar Pradesh & Ors. vs. Dinesh Singh Chauhan, (2016) 9 SCC 749 wherein it has been held as under:- 19. "Having considered the rival submissions, the first question that needs to be answered is: whether the High Court exceeded its jurisdiction in setting aside the Government Order dated 28.02.2014 providing for reservation to in-service candidates, when the writ petition filed by the in-service candidates was limited to equate them with the inservice candidates who had the experience of working in remote or difficult areas. Indeed, the challenge before the High Court was limited. However, the High Court having held that the State Government could not have issued such order in violation of Regulation 9, quashed the same. The High Court had invited the parties to advance arguments on the validity of the said Government Order before passing the final order. The High Court relied on the decisions of the Supreme Court and opined that it was not permissible, in law, for the State Government to provide reservation for inservice candidates in Post-Graduate "Degree" courses in violation of Regulation 9. The High Court relied on the decisions of the Supreme Court and opined that it was not permissible, in law, for the State Government to provide reservation for inservice candidates in Post-Graduate "Degree" courses in violation of Regulation 9. Concededly, action taken on the basis of such a void Government Order would be nothing short of a nullity in law. As a result, the High Court proceeded to issue directions to follow the admission process for Post Graduate "Degree" Courses strictly in conformity with Regulation 9. The High Court thus moulded the relief on the basis of the settled legal position. That approach is unexceptionable, except that it may be necessary to mould the relief further as would be indicated hereinafter." 9. We have heard counsel for both the sides. 10. Taking into consideration the basic principle as pronounced by the Supreme Court in K. Vasudevan vs. Mohan N. Mali & Ors. even if there is a case in favour of the appellants but it will not be useful to direct the appellants to amend and take stand for passing appropriate order and mould the relief. The State Government has not filed reply before the learned Single Judge in view thereof since there is no prayer for challenging the validity of the bye-laws and everything. 11. In that view of the matter, one of the party who is likely to be affected with the order has rightly challenged in this appeal. 12. In view of the above, in the interest of all concerns, we are of the opinion that the order of learned Single Judge is prima facie without jurisdiction inasmuch as it is a power of Division Bench to declare the bye-laws to be contrary to law and the learned Single Judge could not opine on the validity of the bye-laws unless there is challenged to the same. 13. In that view of the matter, we are setting the order of the learned Single Judge and remitting the matter back to him to decide the same afresh. However, it will be open for the appellants to challenge the validity of the bye-laws within four weeks from today. If the validity of the same is not challenged, the matter will be placed before the learned Single Judge for further orders since there is no challenge to the bye-laws or notification in the relief clause. 14. However, it will be open for the appellants to challenge the validity of the bye-laws within four weeks from today. If the validity of the same is not challenged, the matter will be placed before the learned Single Judge for further orders since there is no challenge to the bye-laws or notification in the relief clause. 14. In that view of the matter, the appeals deserve to be allowed. However, we make it clear that no recovery of penalty will be made for six weeks from today so that after getting the prayer amended, the appellants can request for amendment of interim protection which is granted by the learned Single Judge while entertaining the writ petitions. If after the amendment is made, the learned Single Judge held that he has no jurisdiction, it will be open for the Single Judge to refer the matter to the Division Bench. 15. The appeals are accordingly allowed.