S.C.AGRAWAL, J. - (1.) THIS writ petition involves the question as to the validity of the bye -laws known as Nagarpalika Merta (Laghu Yantralaya Niyantran) Up Niyam, 1973 (hereinafter referred to as 'the Bye -laws') framed by the Municipal Board, Merta City.
(2.) THE Municipal Board Merta City (hereinafter referred to as 'the Muncipal Board') is a Municipality governed by the provisions of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as 'the Act'). Section 90 of the Act empowers the Municipality to make bye -laws. Sub -section (1) enumerates the matters in respect of which bye -laws may be made. Sub -section (2) requires that every Municipal board before making any bye -laws under Section 90 shall publish in such manner as shall in its opinion be sufficient for the information of persons likely to be effected thereby, a draft of the proposed bye -laws together with a notice specifying a date on or after which the draft will be taken into consideration and shall before making the bye -laws, receive and consider any objections or suggestions with respect to the draft which may be made in writing by any person before the date so specified. Sub -section (3) lays down that no bye -law made by a Municipal Board shall take effect unless it is sanctioned by the State Government. In Sub -section (4) it is provided that when any bye -law made by a Municipal Board is submitted to the State Government for sanction, a copy of the notice published under Section (2) and a copy of every objection of suggestion made there -to, has also to be submitted for the information of the State Government alongwith the said bye -law. The Administrative Sub Committee of the Municipal Board, at its meeting held on September 30, 1972 framed the bye laws for the purpose of regulating small industries. The bye -laws as framed by the Administrative Sub -Committee were considered by the Municipal Board at its meeting held on October 28, 1972 and the municipal board passed a resolution whereby it was directed that the bye -laws framed by the Administrative Sub Committee should be sent to the State Government for its approval. The case of the Municipal Board is that after the aforesaid resolution dated October 28, 1972 had been passed the Chairman of the Municipal Board directed that a notice be issued inviting objections from the general public against the bye -laws and there upon a notice was issued on November 4, 1972 inviting objections and suggestions from the general public and that the said notice was pasted on the notice board at the office of the Municipal Board and two other conspicuous public places, i.e. at Gandhi Chowk and at the Chowk of main Bazar of Merta city market On December 25, J 972 the Chairman of the Municipal Board sent the bye -laws to the Director of Local Bodies, Rajasthan, Jaipur for obtaining the sanction of the Government. The Director of Local Bodies addressed a communication to the Chairman of the Municipal Board whereby he pointed out certain deficiencies and asked the Chairman to make good the said deficiencies. One of the deficiencies pointed out in the said communication was that the copy of the notice had been not sent. By his letter dated August 11, 1973, the Chairman of the Municipal Board sent copies of the documents which were asked for in the letter of the Director of Local bodies, including the copy of the notice dated November 4, 1972. Thereafter the State Government gave its sanction to the bye -laws and the same were published in the Rajasthan Gazette dated July 4, 1974. Being aggrieved by the aforesaid bye -laws, the petitioner, who carries on the business of manufacturing edible oils in Merta City, has filed this writ petition wherein he has prayed that a writ of mandamus, certiorari or any other writ or direction be issued to quash the bye -law.
(3.) I have heard Shri Rajendra Mehta, learned Counsel for the petitioner and Shri H. N. Calla, learned Additional Government Advocate. Shri Mehta has urged the following contentions in support of the writ petition: (1) Under Sub -section (2) of section 90 of the Act it was obligatory for the Municipal Board to publish the draft of the proposed bye -laws for the information of the persons likely to be affected thereby and that in the present case the draft of the bye -laws was never published by the Municipal Board before the same was sent to the State Government for its sanction. (2) Even if it be found that the draft of the bye -laws had been published by the Municipal Board before the same was sent for sanction of the State Government, the said publication was only after the said bye -laws had been adopted by the Municipal Board by its resolution dated October 28, 1972 and that there was no consideration of the bye -laws by the Municipal Board after the same had been published. (3) The provisions with regard to imposition of licence fee Rs. @ 5/ - per horse power per year contained in bye -law No. 5 amounts to a tax and not a fee and is ultra vires the power conferred on the Municipal Board under the Act.(4) Clauses (8) (9) and (11) of the bye -laws No. 7 read with bye -law No. 10 are ultra vires the powers conferred on the Municipal Board under Sub -section (1) of section 90 of the Act. ;