Bapna J. - (1.) THIS is a petition under Art. 226 of the Constitution of India by Gajanand on behalf of himself and other Thela-Workers of Kotah.
(2.) THE Municipal Board of Kotah imposed a tax at the rate of Re. 1/- per month on every person plying a thela within the municipal limits with effect from 1st January, 1953. THE THElas refused to pay the tax, and have filed this petition challenging the validity of the imposition of the said tax. It is urged that the imposition of tax was not made in the manner provided by the Rajasthan Town Municipalities Act, 1951. (No. XXXIII of 1951), which came into force on the 22nd December, 1951. It is urged that the rules referred to in sec, 44 (h) were not framed and published |as required by secs. 60 and 62 of the Act. It was contended that the bye-laws in respect of thelas published by the Municipal Board were also unauthorised as they did not come within the purview of any of the purposes mentioned in sec, 46 of the Act. It was, therefore, prayed that the imposition of the thela tax by the Municipal Board be declared to be illegal and the Municipal Board be restrained by an injunction from recovering this tax. The Municipal Board by its written statement pleaded that the tax had been properly imposed and the procedure regarding imposition of the tax had been properly followed. Certain documents were filed by the parties, and it is common ground that the resolution by the Municipal Board imposing the aforesaid tax was passed on 21st July, 1951, and a public notice was given as required by sec. , 131 (3) of the U. P. Municipalities Act, which was then applicable by adaptation to the Municipal Board of Kotah, inviting objections. Certain objections were preferred by the Thela workers, and thereafter the matter was referred to the Government, and the Government accorded their sanction to the imposition of the tax by order No. F. I, (d) (40) L. S. G. 52 dated 13. 11. 1952. The rules printed in Hindi were published by the Municipal Board in respect of the imposition and the conditions thereof and the penalty to be imposed for disobedience. These rules were named as upniyam babat thela-gari. All this is conceded on behalf of the petitioners, but it is alleged that the rules required to be framed under sec. 45 (4) were not so framed or published, and that without such rules being framed, the resolution recommending the imposition of tax and the sanction thereto granted by the Government were of no effect. It may be pointed out that the Municipal Board of Kotah had been imposing a tax of Rs. l/8/-per year under certain rules sanctioned by the Government of Kotah on 4. 9. 39. By resolution dated 21. 7. 51 the Municipal Board decided to raise the tax to Re. 1/- per month besides a licence fee of Re. 1/ -. The rule making power given by sec. 44 (h) is an enabling power to be utilised, if necessary. The procedure for recovery of the tax is given in Chapter VII of the Rajasthan Act, and if the Municipal Board considered that no further rules were required, they were at liberty not to make any fresh rules. The omission to frame rules under sec. 44 (h), therefore does not vitiate the imposition of the tax, which was otherwise valid by due observance of the procedure required by Chapter VI of the Act. The other flaw pointed out was that the rules had not been published. There is the affidavit of Mr. Raghunandan Sahai that printed copies of the resolution and the rules marked Upniyam babat thela gari were duly distributed. A printed copy of such publication has been supplied and we have no reason to doubt the affidavit filed by Mr. Raghunandan Sahai. It was contended that this publication was in the nature of a publication of bye-laws, and such bye-laws were not authorised to be framed under the Act. We find from a copy supplied by the respondent that these bye-laws were in force from 2. 9. 59, except for the increase in tax. Such bye-laws were consistent with the provision of the Act, for under sec. 46 (j) the Board is authorised to frame bye-laws for the numbering and registration of any vehicle liable to taxation under the Act. Under clause (a) of sub-sec. (1) of sec. 46 the Board is also authorised to make bye-laws for the regulation of markets and all public places used for sale of articles, and for fixing rents or other charges to be levied for the use of public places which belong to the Municipal Board, The thelas, as contemplated under these bye-laws, included the thelas used by hawkers as also thelas used for transport of goods from one place to another. Thelas in which fruits are sold had particular mention, and bye-laws for the sale of fruits and vegetables are also permitted by the above clause. It cannot, therefore, be said that the bye-laws were inconsistent with the provisions of the Act or were unauthorised. Learned counsel finally urged that under sec. 62 the tax is leviable from a date not less than one month from the publication of notice. The notice published bears the date 1. 1. 53, and, therefore, the tax was not leviable before 1. 2. 53, The contention is correct. The tax is not leviable for a period prior to 1. 2. 53. As a result, barring the above clarification in respect of the date from which tax is leviable, this petition has no force, and is dismissed. In view of the circumstances of the case, we make no order as to costs. . ;