M.M. Lal, J. - (1.) IN this writ petition under Article 226 of the Constitution of India the petitioner, who has described itself to be a Society looking after the interest and welfare of the community carrying on trade within the limits of Municipal Board, Afzalgarh (hereinafter referred to as Municipal Board) is seeking to prevent the Municipal Board from realising octroi in accordance with the rates published in the U.P. Gazette dated 24.4.89. Vide the aforesaid Gazette the Municipal Board has enhanced the rate of octroi duty on a number of articles. On some of the articles octroi duty has been imposed for the first time. The petitioner has challenged the enhancement as also the imposition of the octroi duty on various goods.
(2.) THE first and foremost point urged by the learned counsel for the petitioner is that the objections filed by the inhabitants of the aforesaid Municipal Board against the proposals framed for imposing and enhancing the rates of octroi duty under Section 132 of the Municipalities Act, were not considered and decided by the competent authority. Section 132 provides that any inhabitant of the Municipality may submit to the Board an objection in writing to all or any of the proposals framed. In order to appreciate the controversy involved in this case it shall be proper to note that in U.P. the Municipal Boards stood superseded as a result of promulgation of U.P. Ordinance entitled as U.P. Mahapalika, Notified Area and Town Area (Alpkalik Vyawastha) Adhyadesh, 1977 and all the powers, functions and duties as also that of its President and various authorities were vested in the District Magistrate. The Ordinance was subsequently replaced by the U.P. Act No. 13 of 1977, published in the Gazette dated 1.10.77. Section 2 of the said Act provides that until the reconstitution of the Municipal Board etc. the provisions of the said Act shall have effect in relation to the each of the municipalities subject to the provisions contained therein. Clause (b) of sub -section 1 of Section 2 of the said Act, being relevant, is re -produced below for ready reference: All powers, functions and duties of the Municipal Board, its President and Committee shall be vested in and be exercised, performed and discharged by the District Magistrate, and the District Magistrate (including the person or authority to whom the District Magistrate delegates his powers under sub -section (2) of section (4) shall be deemed to be the Municipal Board, its President or the Committee concerned, as the occasion may require.
(3.) THUS according to said section (2)(1)(b) all powers, functions and duties of the Municipal Board, its President and Committees stood vested in the District Magistrate. The District Magistrate was further empowered to delegate his powers to any person or authority and if the said powers was so delegated, then person or authority to whom the said powers were delegated was to be deemed to be Municipal Board, its president or the committee concerned as the occasion required.;