N.C.JAIN, J. - (1.) This application under Article 226 of the Constitution of India has been filed for quashing the Notice (Annexure-I) dated 16.12.93 which has been issued under Section 146 of the Gauhati Municipal Corporation Act, 1969 (hereinafter referred to as 'the Act'). By virtue of the said notice the daily toll of various stalls has been enhanced to Rs.5/- per stall per day.
(2.) The legality and validity of the notice issued under Section 146 of the Act has been challenged primarily on the ground that under the proviso to Section 146 of the Act, the sanction of the Government was necessary and that the same has not been obtained. Section 146 of the Act as has been extracted by me reads as under: " 146. Before the Corporation passes any resolution imposing a tax or duty or fee for the first time, it shall direct the Commissioner to publish a notice in the Gazette or in the local newspapers clearly indicating the nature and amount of the tax or duty or fee and the date from which it is proposed to impose such tax, duty or fees : Provided that any resolution abolishing an existing tax or duty or fees or reducing or increasing the rates at which any tax or duty or fee is levied shall not be carried into effect without the sanction of the Government." It has been argued by the counsel for the petitioner that the proviso to Section 146 lays down that if the duty or fee is to be increased, the same cannot be done without the sanction of the Government. No affidavit-in-opposition has been filed. However, the counsel for the Respondent Nos. 1 and 2 in support of Notification dated 16.12.93 has drawn pointed attention of this Bench to the provisions of Section 152 of the Act which reads as under : "152(1) The Commissioner may whenever he thinks fit fix the scavenging charge to be paid in respect of any hotel or club or any other large premises at such special rate in this behalf either generally or in any particular cases, whether the service in respect of which such charge is leviable is performed by scavengers or by substituted means or appliances. (2) In the cases referred to in sub-section (1), the amount of the scavenging charge shall be fixed with reference to the cost or the 'probable cost of the collection, removal and disposal by municipal agency of filth and polluted and obnoxious matter from the hotels, clubs and other large premises referred to in that sub-section."
(3.) Having given my thoughtful consideration to the arguments of the counsel for the parties, I am of the considered view that the writ petition deserves to succeed. Section 146 clearly envisages the increase of duty only after the sanction of the Government. The intention of the Legislature can very well be manifested by the use of the word 'shall' which clearly indicates that compliance of the proviso is mandatory. If the Legislature intended to leave the choice to the Municipal Corporation to enhance the fee as and when it likes, there was no need to add a proviso to Sanction 146 of the Act. It appears to me that the Legislature intended to keep in control the Municipal Corporation as regards enhancement of fee is concerned. Section 152 of the Act, as far as I can see, deals with entirely a different situation. In my considered view, Section 152 clearly envisages the imposition of scavenging charges in respect of any hotel or club or any other large premises at such special rate as the Commissioner may think fit. The present case can, by no stretch of imagination, be said to be covered by the provisions of Section 152 of the Act. The argument of the counsel for the respondent is, therefore, found to be devoid of any merit.;