B. Upadhya, J. - (1.) This is an appeal from an order passed by Mr. Justice James under Article 226 of the Constitution directing the Municipal Board, Hapur, district Meerut, to refrain from realising water tax from the petitioners until the tax is imposed in accordance with law.
(2.) The petitioners alleged that the appellant Board served them with notices of demand in respect of water tax purporting to have been levied by it. The petitioners contended that the tax had not been levied in accordance with the provisions of the U.P. Municipalities Act. The proposals to impose the tax were not published and no opportunity was given to the applicants and other persons residing within the Municipality to raise objections to the proposals. The preliminary proposal and the draft rules in respect of the tax were not published in the manner prescribed under the Act, and the prescribed procedure not having been followed, the imposition was not valid. The petitioners based their objections on certain other similar grounds which it is unnecessary to mention. Notice was issued to the appellant Board and a counter-affidavit was filed. It is averred that the Water Works Committee and the Municipal Board, Hapur considered in the first instance the draft rules for the assessment and collection of water tax on lands and buildings within the municipality, and the draft rules as approved by the Committee were placed before the Board for its consideration along with a resolution which was passed by it. The Board adopted the draft rules by a special resolution no. 295 of the 23rd November 1955 and framed proposals as required by Sec. 13 of the U.P. Municipalities Act in the form of a special resolution. It was alleged that the proposals and the rules as drafted were published by posting a copy of the resolution on the notice board of the Municipal Board's office and were also announced in the town by beat of drum. It was contended that there being no 'suitable newspaper having wide circulation' in the town at that time the manner of publication adopted by the Board was sufficient compliance with the provisions of Sec. 94 (3) of the U.P. Municipalities Act, 1916. It was further contended that the Municipal Board gave an opportunity to the inhabitants of the Municipality to submit their objections to the draft rules and proposals within a period of 15 days of the notice published in the manner mentioned above in accordance with the provisions of Sec. 132 (1). No objection having been received by the Board a special resolution no. 338 of the 25th Jan. 1956, adopting the proposals and the draft rules, was passed. The proposals were sent to the Commissioner, Meerut Division as required under Sec. 132 (4) of the Act, and the Commissioner published the draft rules under Sec. 300 (1) of the Act in the U.P. Gazette dated the 10th March 1956 and invited objections to the rules. The Commissioner thereafter is said to have modified some of the draft rules and republished them in the U.P. Gazette dated the 28th April 1956 and he invited objections to the modified rules as well. Finally, the Commissioner confirmed these rules by a notification dated the 20th August 1956 under Sec. 134 (1) of the Act. The appellant Board further says that on confirmation of the rules as required by Sec. 134 (2) of the Act the Board passed the resolution no. 296 on September 8, 1956, resolving to levy water tax with effect from the 1st April 1957. This resolution was sent to the Commissioner again in compliance with the requirements, of Sec. 135 (2) of the Act. The Commissioner thereafter notified in the official Gazette the imposition of water tax in the Hapur Municipality with effect from the 1st. April 1957. This notification was published in the U.P. Gazette dated the 11th December, 1956. The petitioners were served with notices of assessment, objections were filed by some of them, which were disposed of, and the petitioners were served with bills for payment of the tax assessed finally in the months of January and February 1958 relating to the period 1st April 1957 to 31st March 1958. Lastly it was contended that the water tax in question had been levied according to law and the petitioners were not entitled to the relief claimed by them.
(3.) The learned Judge who heard the writ petition found that the special resolution passed by the Municipal Board was never published in any newspaper, though two Hindi weeklies entitled 'Janmat' and 'Bharatvarsh' and one Hindi daily entitled 'Vyapar' are published at Hapur. He took the view that the Board was not justified in not publishing the resolution in any newspaper on the ground that the papers published at Hapur did not have a 'wide circulation.' The learned Judge observed that all that the law requires is that the resolution should be published in a local paper published in Hindi. He held that the provisions of Sec. 131 (3) with regard to publication in the manner prescribed in Sec. 94 (3) are mandatory and the Board was guilty of contravening this provision of the statute in not publishing the resolution in the local newspaper 'Vyapar'. The learned Judge found that the statement contained in the affidavit relating to the publication by posting a copy of the resolution on the notice board and by beat of drum was not proved. The counter affidavit was not sworn on personal knowledge by the head clerk of the Board who gave it. The learned Judge felt that he could not accept the statement that publication was made in the manner alleged by the Board. This omission to publish was a contravention of Sec. 131 (3) of the Act.;