V.K. Mehrotra, J. - (1.) Nehtaur in District Bijnor has a Municipal Board which was superseded by the State of U.P. in the year 1976. That supersession still continues District Magistate Bijnor was appointed Administrator of the Board under the provisions of the U.P. Municipalities Act. The Nehtaur Municipal Board was charging toll tax. In the year 1980 it was proposed that the toll tax be abolished and be replaced by Octori duty. The proposal along with the draft bye laws was published in a daily newspaper Rashtra Vedana on January 11, 1980 Vyapar Mandal society Nehtaur which claims to be looking after the interest of all the traders of Nehtaur town filed an objection on January 21, 1980 to the proposal. On March 10 notice was issued to it by the Executive Officer of the Municipal Board saying that the objection would be heard on March 12, 1980 According to the society which has approached this court as petitioner in the present petition under Article 226 of the Constitution the objection was not considered and without regard to the provisions of Ss. 131 to 133 of the Act proposed rules were published in the U.P. Gazette on June 18, 1983 This became known to the Society on July 16, 1983 which again filed an objection on July 30, 1983 Even these objections could not be considered and without following strictly the procedure contemplated by the provisions of Sec. 134 a final notification imposing octroi duty was published in the U.P. Gazette on October 8, 1983 Aggrieved the petitioner came to this Court and filed the petition on October 22, 1983 challenging the levy Accompanying the petition was an application for interim protection This application was directed to come up for orders on November 21, 1983 because the Municipal Board which the petitioner was required to serve put in appearance and filed a counter affidavit in pursuance of the notice served upon it. The prayer for stay was considered on November 23, 1983. This Court directed that the impugned notification published in the U.P. Gazette dated October 8, 1983 shall not be given effect to it however left it to the Municipal Board to impose octroi duty afresh in accordance with law Parties exchanged further affidavit thereafter. The petitioner says that the interim order of this Court was disregarded. It therefore moved on application for punishing the respondents for committing breach of the interim order. That application is Contempt Case No. 167 of 1984 Another application of the petitioner with the same prayer is Contempt Case No. 193 of 1984 According to the petitioner the breach of the order of this court by the respondents was deliberate and they deserved to be punished for having committed contempt of this Court. The petitioner says that the respondent board is not entitled to be heard in defence of the levy of octroi in the present petition as it has not purged itself of that contempt. The respondents say that they have not committed any contempt and had made realisation of octroi only during the period when no interim order was in operation. They say that the objection that they should not be heard is not sustainable. We shall advert to this a little later.
(2.) From the affidavit exchanged between the parties and the documents filed therewith it appears that on January 5, 1982 the district Magistrate Bijnor made an inspection of the Municipal Board. He felt that the imposition of octroi did not follow the pattern of model bye laws made by the State Government. He therefore directed that fresh proposals be prepared in accordance with the model bye laws. On March 26, 1982 fresh proposals were prepared and submitted to the Officer In charge/Administrator of the Board. The Officer In -charge signed it on March 27 and thereafter on March 31, 1982 the Administrator accepted the proposal under a special resolution All this is contained in annexure S.A. 5 to the supplementary affidavit sworn by Sri Nasim Iqbal executive officer of the Board on December 1, 1983. This was followed by publication of the proposals in the daily newspaper Rashtra Vedana of July 29, 1982. The publication so made is annexure SA 1 to the same affidavit. It recites that the earlier proposals framed on January 11, 1980 were turned down by the Administrator as they were inconsistent with the model bye laws and fresh proposals that were prepared were being published inviting objections within 15 days of the date of publication. No objections were filed within this period.
(3.) On August 31, 1982 a special resolution under Sec. 132(1) of the Act adopted in respect of these proposals was submitted to the Prescribed Authority namely the Divisional Commissioner Moradabad Division for directing its publication under Sec. 133(2) of the Act Annexure SA 6 to the same affidavit is that communication.;