Wanchoo, C. J. - (1.) THIS is an application under Art. 226 of the Constitution by Malchand for issue of a writ, direction or order against the Rajasthan State and the Municipal Board, Sardarshar.
(2.) THE applicant is a resident of Sardar-shahar and a voter and a businessman. THEre is a municipal board in Sardarshahar, and that Board had imposed certain new taxes and has also enhanced the rate of certain old taxes. THE applicant's contention is that these taxes are invalid and cannot be realized from him. THE basis of the contention is two fold. In the first place, it is urged that certain areas, namely Ramnagar and Chandaliya Ice Factories were not included in the municipal limits of Sardarshahar by any order of Government. But in the election that took place in 1943 residents of this area also voted, and consequently the entire municipal board was illegally constituted, and therefore no taxes could be imposed by it. In the second place, it is urged that the mandatory provisions of sec. 60 (b) and sec. 46 (2) of the Rajasthan Town Municipalities Act (No. XXIII) of 1951 (hereinafter called the Act) were not complied with, and there-force the taxes sanctioned in the order of the Government, dated 27th May, 1954, were not valid. The application has been opposed on behalf of the State as well as by the municipal board. Their contention is that Ramnagar and Chandaliya Ice Factory areas are included in the. municipal limits of Sardarshahar, and, in any case, this point cannot be agitated this Court under Art. 226, but should have been made the basis of an election petition under sec. 19 of the Act. It has also been contended that the mandatory provisions of secs. 60 b) and 46 (2 have been complied with in connection with the farming of the Rules and bye-laws imposing these taxes. So far as the first point is concerned, we are of opinion that there is no force in it. In the first place, it is not the applicant's case that Ramnagar and Chandaliya Ice Factory areas return separate elected members to the municipal board. What appears is that these areas have been tacked on to other areas with are within the municipal board, so that what must have happened is that some persons have voted in the election, who should not have voted. This is a grievance which the applicant could have taken before an Election Tribunal under sec. 19 of the Act. As that was not done, we are not prepared to allow to raise this question under Art. 226. In the second place the opposite parties have denied that the areas are not included within municipal limits. This raises a dispute of fact which also we are not prepared to decide under Art. 226. There is no force, therefore, in the first point raised on behalf of the applicant. The second point raises the question of publication before the adoption of the rules and bye-laws imposing various taxes. Sec. 59 of the Act provides what taxes may be imposed by a municipal board Then comes sec. 6o which provides procedure preliminary to the imposition of a tax. Sec. 60 (a) lays down that the municipal board shall by resolution passed at a general meeting select one or other of the taxes specified in sec. 59, and prepare rules for purposes of clause (b) of sec. 44 prescribing the tax. It then goes on to mention what should be specified in the rules. Then comes clause (b) of sec. 60 which says that when such resolution has been passed, the municipal board shall publish the rules so prepared with a notice in the form of the third schedule prefixed thereto. The reason why publication is required is that under clause (c) the inhabitants of the municipality have been given the right to object to the imposition of the tax or to the rate proposed and so on. These objections have to be made within one month of the publication of the notice mentioned in clause (b ). The municipal board has thereafter to take all such objections into consideration and unless it decides to abandon the proposed tax has to submit such objections with its opinion thereon and any modifications proposed thereupon together with the notice and the rules aforesaid to the Government for sanction. It is obvious from this procedure that the provision contained in clause (b) is a mandatory provision, for without the publication envisaged therein it would not be possible for the inhabitants to exercise their right of objection given to them under clause (c ). It has not been contended on behalf of the opposite parties that the provision of publication in clause (b) is not mandatory. What they contend is that it has been complied with, and we shall deal with this later. As sec. 60 (b) deals with publication of rules, sec. 46 (2) deals with publication of bye-laws, and provides that every municipal board shall, before making any bye-law, publish, in such manner as shall in its opinion be sufficient for the information of the persons likely to be affected thereby, a draft of the proposed bye-law together with a notice specifying a date on or after which the draft will be taken into consideration, and shall before making the bye-law, receive and consider any objection or suggestion with respect to the draft, which may be made in writing by any person before the date so specified. Here again it is obvious that publication is provided in order that the inhabitants of that area may be able to object. Further, there is a slight difference between sec. 60 and sec. 46. Sec. 60 says that the municipal board shall by resolution select a tax and prepare rules and thereafter publish them with a notice. In the case of rules therefore the municipal board adopts the rules and then publishes them, and if there are any objections it considers them and then forwards the objections with its opinion to the Government. Under sec. 46, however, a draft of the proposed bye-law is to be published. Therefore, the bye-law is not adopted till it is published The municipal board then considers objections to the draft, and then adopts the bye-laws after considering such objections. But in both the cases publication is essential. It appears that the municipal board in this case has not a very clear idea of the difference of procedure between rules and bye-laws, and it seems to have followed the procedure for rules also in the case of what it calls bye-laws. However, we do not think it necessary to pursue this matter further, because we have came to the conclusion that the municipal board did not follow the mandatory procedure of publishing the rules or the bye-laws or draft bye-law as required by secs. 60 (b) and 46 (3) of the Act. Let us see what the municipal board has done in this case. It published a notice on the 25th of January, 1954, in which it said that the municipal board had passed certain rules Niyam and bye-laws Up-niyam on the 19th of November, 1953. The notice said that these rules and bye-laws would come into force from the 1st of April, 1959, and that if anybody had any objection to make he should do so within one month of the notice. Then followed a note which is very important and is in these words - "the aforesaid rules are available in the offices of the municipality, and the members of the public are entitled to see them any day between 10 A. M. to 4-30 P. M. except on close holiday. " This notice was passed on the notice board of the municipal board, and notice was also di placed at some cross road. But the rules and bye-laws were not displayed either on the notice board or at the cross-roads. The contention of the applicant is that this is not publication within the meaning of sec. 60 (b) or sec. 46 (2), and therefore as the municipal board has not carried out the mandatory provision of these two section, the rules and bye-laws imposing these new taxes are illegal. It has been strenuously urged on behalf of the opposite parties that the intention of the legislature was carried out in substance, and that it was open to any member of the public to go to the municipal office and sec. the rules and bye-laws on any working day. It has also been urged that as a number of objections were received it is clear that people had come to know of the rules and the bye-laws. We have given our earnest consideration to the arguments on behalf of the opposite parties, and have come to the conclusion that this is not publication as required by sec. '60 (b) or sec. 46 (2) of the Act The Schedule mentioned in sec. 60 (b) itself gives the form in which the notice would be published, and then bears the following - "the rules prepared by the municipal board under clause (a) of -sec. 60 are to be appended here. " Obviously the intention is that rules should have the same publicity as the notice. Sec. 46 (2) is slightly different in as much as no schedule is mentioned therein, and it is also provided that the publication shall be made in such manner as shall, in the opinion of the municipal board, be sufficient for the information of the persons likely to be affected. But that sub-section also provides for a notice, and we are of opinion that there also the draft bye-laws should have the same publication as the notice. We feel that a notice to the effect that rules or draft bye-laws can be seen at the office of the municipality during working hours on working days is no publication as required by law. In the first place, the working hours being 10 A. M. to 4-30 P. M. at which most persons are themselves busy, it will require a special effort on the part of any body to leave his own business and go to the municipal office between these hours to see the rules. In the second place there cannot be the same facility for looking at the rules if one has to the municipal office and ask some clerk in charge of the rules to show them. It is not impossible that the clerk may be busy, and may keep the person who wants to see the rules waiting so much so that he might go away in disgust. On the other hand, if the rules and draft bye-laws were published in the same manner in which the notice has been published in this case, namely by being pasted on the notice board and by being put up at some cross-road, any body could go at any time and read the rules on draft bye-laws without having to ask any clerk, and nobody would be put to the inconvenience of leaving his own work from 10 A. M. to 4-30 P. M. in order to see the rules or draft bye-laws. Anybody could go at his own leisure and see the municipal notice board which we believe must be kept outside in the verandah or the place at the cross-roads where the notice was pasted. After giving our careful consideration therefore to the arguments on behalf of the opposite parties, we have came to the conclusion that the manner of publication adopted by the municipality is liable to abuse and is no publication at all. We are also of the view that the law contemplates that the notice and the rules and draft bye-laws should be published in the same manner so that any one who sees the notice can immediately see the rules and draft bye-laws also. As the mandatory provisions of sec. 60 (b) were not complied with, the taxes imposed whether new or by way of enhancement of rate by the resolution of the municipality, dated the 19th of November, 1953, and sanctioned by the Government on the 27th of May, 1954, are invalid We should like to make it clear that this order does not affect those taxes which were in existence from before November, 1953. It would be open to the municipal board to realize all taxes in existence before the 19th Nov. , 1953, at the rates prevalent before that date. We, therefore, allow the application, and prohibit the municipal board to realize the new taxes imposed on the 19th November, 1953, and sanctioned by the Government on the 27th of May 1954, and the old taxes at the enhanced rate imposed on the 19th of November, 1953, and sanctioned by Government on the 27th of May, 1954. The applicant will get Rs. 50/- as costs from the Municipal Board of Sardarshahar. Other parties will bear their own costs. . ;