Modi, J. - (1.) THESE are two writ applications under Art. 226 of the Constitution and raise identical questions relating to the validity of certain taxes in the Pokaran Municiality, Tehsil Phalodi. We, therefore, propose to decide both by this judgment.
(2.) THE petitioners are the residents of Pokaran and are traders and taxpayers in that town. THEre is a municipality a Pokaran which is said to have been in existence since 1935. It may be pointed out at once that there was no statutory law as such governing this or other municipalities in the district towns of what was the farmer state of Jodhpur within whose jurisdiction this municipality existed. THE present board was constituted on the 21st December, 1951, for a period of three years and therefore, the period of office of its members is said to have terminated on the 20th December, 1954. THE petitioners' objection relates to certain taxes one of which was the mapa tax (a tax on sale of goods) and it appears that this was realized from the petitioners in the past and was stopped when the octroi was sought to be introduced in 1954. THE second is the octroi tax which is said to have been lived in this municipality by notification No. 769 dated the 11th November, 1954, (Ex 4 ). It was said in this notification that the octroi rules and the schedule made by the municipal board has been sanctioned by the Government and, therefore, at a meeting held on the 5th November, 1954, the municipal board had decided that the new tax will be imposed with effect from the 1st January 1955. It was further stated therein that any body who wanted to see the rates could do so in the office of the municipality or in the municipal chungi outposts at the railway station or in the mandi (i. e. , the market)during office hours. A similar notice (Ex. 3) was issued with respect to the bye-laws framed by the municipal board and sanctioned by the Government in the same connection. It is necessary to mention here that before the Government's sanction was received, a notice (Ex. 2) had been issued on the 9th March, 1954, with respect to the rules under sec. 60 (b) of the Rajasthan Town Municipalities Act, 1951, 'act No. XXIII of 1951) hereinafter referred to as the Rajasthan Act), and with respect to the bye-laws, Ex. 1 under sec. 46 (2) of the Rajasthan Act by way of preliminary steps for the introduction of the tax in question and it was stated in those no ices that the rules and bye-laws had been kept in the office of the municipal board and the municipal tax on posts and in the vachnalay (public reading rooms) and these could be inspected during office hours and objections were invited to the introduction of the said tax, rules and by-laws to be filed within one month from the date of the respective notices. We may clear the ground by stating at once that so far as the mapa tax is concerned, it was stated before us by the learned Government Advocate (and this position was not controverted on behalf of the petitioners) that it was not being recovered at the date of the petitioners present applications THE petitioners have, however, claimed a refund of the amounts paid by them by way of mapa tax presumably from the 26th January, 1950. when the Constitution came into force As no mapa tax is being livied by the munci-pal board, the question whether this tax is legal or illegal is merely academic and we do not consider it necessary to pronounce any opinion on the question whether that tax is hit by any of the provisions of the Constitution. And so far as the prayer for refund is concerned, we are not prepared to consider this question in the present writ applications for obvious reasons, and we leave the petitioners free to seek such relief as they may consider the inselves entitled to by means of a suit in the civil court if so advised. We next turn to the octroi tax. The validity of this tax has been attacked before us on a number of grounds. The principal grounds urged before us are as follows: - (1) The boundaries of the Pokaran Municipality have not been defined and therefore, are uncertain, and no tax can be recovered from the petitioners in respect of goods brought within an uncertain area ; (2) The statutory procedure provided for the publication of the rules along with the requisite notice at the time of the proposed imposition under sec. 60 and after the rules were sanctioned by Government under sec. 62 of the Rajasthan Act has been disregarded, and, therefore, the tax in question is not valid Another submission in the same connection is that the bye-laws framed by the Municipality under sec. 46 of the Rajasthan Act were not passed with the previous sanction of the Government under sec. 46 (I) nor were they duly published under sub-sec. (2) thereof; and (3) The term of the present board expired on the 20th December, 1954, and, therefore, the members of the board whose term had expired cannot have any authority to collect the said tax subsequent to that date. The municipal board, Pokaran, and the State who are opposite parties Nos. 2andl respectively contend that the octroi had been validly imposed and that the statutory requirements for the imposition of the tax have been substantially fulfilled. So far as the question of the boundaries is concerned, their contention is that this municipality has been in existence since 1935 and that by a notification No. 3181 dated the 25th January, 1946 published on behalf of the Chief Minister (Local Bodies) of the former State of Jodhpur, the constitution of this municipality was sanctioned and published in the Jodhpur Government Gazette dated the 2nd February, 1946. This notification was obviously issued in pursuance of the orders of His Highness the Maharaja of Jodhpur in council embodied in council resolution No. 1 dated the 23rd July, 1945, and it was further provided there that Pokaran will be divided into ten wards and the election of the members shall be ward-wise as in Jodhpur City. It was contended that under such circumstances the limits or boundaries of the Pokaran municipality were defined and certain and that this case was distinguishable from Somnath Mal's cased), upon which reliance was placed on behalf of the petitioners. It was further urged that the Stated had fixed the limits of the Pokaran municipality, by notification No. 1 A 16 L. S. G. / 55 dated the 4th April, 19 5, and, therefore, any objection on this score is futile. We shall now proceed to deal with each of the objections mentioned above. Taking up the objection relating to the uncertainty of the boundaries of the Pokaran Municipality first; it appears to us that throughout the regime of the former State of Jodhpur and until the notification fixing the boundaries of the municipality was issued in April, 1955, the boundaries of this municipality were assumed or taking for granted rather than that they were defined by competent authority. There is no authoritative order which has been brought to our notice fixing the boundaries of this municipality. Even in the Chief Minister's notification which was issued in 1946 in pursuance of the orders of His Highness the Maharaja of Jodhpur, the boundaries of the Pokaran municipality were not defined and it might not have occurred to the authorities concerned that it was necessary to do so. To say that Pokaran was ordered to be divided for the purpose of election into ten wards amounted to defining the limits of the municipality would, in our opinion, be begging the question; for the question still remained what was to be divided within the number of wards prescribed. The importance of delimiting the boundaries of a muncipality arises from the fundamental consideration that a municipality operates within a given area by virtue of the authority delegated to it by the State and it can only tax persons or property within its own limits and not beyond them. It follows, therefore, that it is imperative that the territorial or geographical limits of the municipality within which it can effectively operate trust be certain and precisely known and authoritatively defined. Learned Govern-ment Advocate argued that there was no law in the former State of Jodhpur which made such a requirement essential. We are of opinion, however,that the necessity of prescribing the precise limits of a municipality in the absence of any statutory requirement still arose and must arise on considerations of common sense and common reason to which we have already referred above. We are, therefore, not prepared to hold that because there was no law in the former State of Jodhpur, which required the limits of a municipality to be defined, such definition was not necessary, and we fully agree which the principle laid down in Somnath Mal's case (1) referred to above, to which one of us was a party, and hold that the taxing power of a municipal board must be limited to its own territorial limits and that such limits must be defined by the State from which the municipality derives all authority to perform its functions. We next taken note of the fact that the boundaries of this municipality are stated to be defined in the Government notification No 1a 16/ls. G/55dated the 4tb April, 1955. We must make it clear, however that we cannot allow this resolution retrospective force (see Somnath Mal's case ). The notification was issued under sec 5 (1) of the Rajasthan Act on the 4th April, 1955, and it should hold good with effect from that date bat not earlier. Even so, it was argued by learned counsel that this notification would be ineffective from the 4th April, 1955, because it seeks to alter the boundaries of the Pokaran municipality,which boundaries never existed before, The argument is that you cannot alter a think which did not exist at all. We have given this argument our anxious and careful consideration, and have arrived at the conclusion that in substance the notification dated the 4th April, 1955 really prescribes the bound-ries of the Pokaran municipality although it says to have prescribed them by altering the pre-existing boundaries. No contention is raised before us that these boundaries by themselves are uncertain and not self-contained. They completely cover the limits of his municipality. It seems to us that in wording the aforesaid notification in the particular manner the Government may have considered the state of affairs' which might have existed before and also taken into consideration the supposed or the assumed limits of the Pokaran municipality; but that, in our opinion would not be a sufficient ground for holding that the boundaries fixed by the said notification are invalid. We, therefore, hold that the notification dated the 4th April, 1955, prescribing the boundaries of the Pokaran municipality is good and must be given effect to from the date of the notification, that is the 4th April, 1955; but this notification cannot be given retrospective effect and the position, therefore, cannot but be that the Pokaran municipality had no boundaries fixed in law and by competent authority before that date. The next question is whether the statutory requirements relating to the publication of the rules and the making and publication of the bye-laws framed by the Pokaran Municipality as respects the octroi tax are substantially fulfilled. It has been strenuously debated before us on behalf of the petitioners that there was no valid publication of the rules and the bye-laws and that the present case is fully covered by the decision of this Court in Malchand vs. The State of Rajasthan (1955 R. L. W. 442 ). The want of due publication is urged before us in two respects; (1) before the sanction of the Government was obtained, that is, under sec. 60 (b) and (2) after such sanction had been obtained, this is, under sec. 62 of the Rajasthan Act. We would first take up the question of the publication of the rules before they were sanctioned, as we have no doubt that the valid passage of the rule is a condition precedent to their enforcement. Sec. 44 empowers a municipal board to make rules and to alter or rescind them. Clause (h) of the section is material for our present purpose and under this clause, a municipal board is required to prescribe the taxes to be levied in the municipality for municipal purposes, the circumstances in which exemptions therefore will be allowed and cognate matters mentioned therein. Then we cone to sec. 56 which empowers a municipal board to select any one Or more of the taxes which it can impose within the said municipality after observing a certain preliminary procedure and with the sanction of the Government. The preliminary procedure is prescribed in sec. 60, and that section lays down that a board shall by resolution passed at a general meeting select a tax or taxes mentioned in, sec. 59 and prepare rules for the purposes of clause (h) of sec. 44, and the rules shall specify the class of persons or of property or both; which the municipal board proposes to make liable and any exemptions which it proposes to make and the amount or rate of the proposed tax and all other matters which the Government may require to be specified in this connection. After these rules are prepared and adopted by a resolution, the board under sub-section (b) is required to publish the rules so prepared with a notice which has been prescribed in the third schedule of the Act. The object of this notice is to enable the inhabitants of the municipality to raise their objections, if any, to the imposition of the said tax as regards the class of persons or property or the amount of rate proposed within a certain time. After such objections have been made, the board must submit them with its opinion thereon together with the notice and rules to the Government, and under sec. 60, the Government may sanction the rules as submitted or modify them or send them back to the municipal board for further consideration. The argument before us is that the publication of the rules in the present case was not in order in so far as it relates to sec. 60 We have carefully considered the decision in Malchand's case and it seems to us that that case is distinguishable from the present one We fully appreciate and recognise that sub sec. (b) of sec. 60 requires that the municipal board shall publish the rules with a notice in the form of the third schedule prefixed there to. Now the publication in Malchand's case merely was that the rules were placed in the office of the municipal board and it was notified that any inhabitant of the municipality in that case could see them any day in the office of the municipality during office hours except on close holidays. "it was held that a notice to the effect that rules Or draft bye-laws could be seen at the office of the municipality during working hours on work days was no publication as required by the rules and that the manner of publication adopted by the municipality was liable to be abused and, therefore, the taxes imposed were invalid. The present case, to our mind, is distinguishable on facts. Here the Pokaran Municipal Board in publishing its notice under sec 60 (b) clearly appears to us to have kept the rules not only in the municipal office but also in the municipal chungi out posts and the vachnalaya or public reading room although admittedly it was said that they could be seen there during office hours, and objections raised if thought necessary. It is remarkable that one chungi outpost appears to be situated at the railway station and the other in the mandi or the market. Normally, the said outposts should be working during all hours in the day and the night for collection of the pre-existing municipal taxes. Similarly, we think that a vachnalaya has different working hours from those in force in the offices of the Government department. Usually a public library is kept open for public use cither in the morning or in the evening or both There is no allegation made before us that the rules were not placed in the chungi outposts or the reading room for public inspection. It may be that the rules may not have been pasted over the notice board of the municipality although even so far as that is concerned, an affidavit was subsequently filed on behalf of the then Secretary, Shri Mohanraj, that the -rules etc. had been put up on the notice board of the municipality. But, that apart, we wish to point out that sec. 60 b) does not prescribe the manner of publication. Such publication may certainly be by putting up the notice with the rules on the notice board of the municipality whether outside its office or elsewhere. But we are unable to agree with the contention on behalf of the petitioners that that is or can be the only method contemplated by law for the due publication of the rules etc. and no other. If, therefore, in any particular case, it may be satisfactory shown that the rules (which of course include the schedule) were published so that any inhabitant of the municipality could have easy access thereto, if he so chose, we are disposed to think that such publication would still substantially fall within the four coiners of sec. 60 b) and would not be open to any serious objection. In Malchand's case, the publication was confined to the office of the municipal board and there was on question of the rules having been placed in the municipal chungi outpost or the public library or reading room, and we are, therefore, of the opinion that that case is not on all fours with the present case We may also point out in this connection that certain petitions, numbering five, were filed by the inhabitants of the Pokaran Municipality (signed by a fairly-large number of persons) from the 25th of March, 1954 to the 29th of March, 1954, raising objections to the levy of the octroi in Pokaran and some of the petitioners before us are admittedly signatories there to, and these objections were obviously filed within one month of the notice dated the 9th March. 1954 (Ex. 2 ). We cannot help thinking under the circumstances that these objections were raised because (he municipal board had published the notice and the rules at conspicuous places within the municipality although we may concede that the mere fact that the objections were raised would not by itself be enough where the rules are not published in a substantial manner within the meaning of sec. 60 (b ). Having given our careful consideration to the manner of publication of the rules in the present case, we, therefore, hold that the requirements of sec. 60 (b) were substantially fulfilled in the present case and they are not open to objection on that score. Coming next to the publication of these rules subsequent to Govt. sanction under notice No. 769 dated the 11th November, 1954 (Ex. 4), we find that the said notice mentioned that the rules had been sanctioned by Government by its order dated the 30th September, 1954, and that thereafter the Board at its general meeting dated the 5th November, 1954, had resolved that the octroi as sanctioned do come in force on the 1st of January, 1955, and that the rules were available for inspection by any member of the public in the office of the municipality and at the chungi outposts at the railway station and in the mandi during office hours. What is important to bear in mind in this connection is that the rules were stated to be brought into force after one month of the date of the publication of the notice as required by sec. 62 and further that the rules had been placed not only in the office of the municipality but also at the municipal tax outposts both at the railway station and in the market. We have, therefore, no hesitation in holding that the requirements of sec. 62 as to publication after sanction were substantially met and there was sufficient publication of the rules after the sanction We next taken up the question of the making of the bye-laws and their publication. What we have said above with respect to the publication of the rules more or less applies to the publication of the bye-law; but the matter does not rest there. So far as the bye laws are concerned, a further attack is levelled in this connection that the bye-laws were not made with the previous sanction of the Government as required by sub-sec. (1) of sec. 46 of the Rajasthan Act. The material portion of sec. 46 reads as follows: - "46 (1) Every municipal board may from time to time, with the previous sanction of the Government, make, alter or rescind bye-laws, not inconsistent with this Act, - (a) to (j ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (k) fixing octroi limits and stations; providing for the exhibition of tables of octroi; requiring a licence to be obtained for the sale of any article liable to octroi and prescribing the conditions on or subject to which such licence may be granted, refused suspended or withdrawn, regulating, subject to any general or special orders which the Government may make in this behalf, the system under which refunds are to be made on account thereof when the an ma!s or goods on which the octroi had been paid, or articles manufactured wholly or in part from such animals or goods, are again expo ted and the custody or storage of animals or goods declared not to be intended for use or consumption within the municipality; and prescribing a period of limitation after which no claim for refund of octroi shall be entertained, and the minimum amount for which any claim to refund may be made. " Then follows sub sec. (2) which provides that before a municipal board makes any bye laws it shall publish in such manner as shall in its opinion be sufficient 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 invite objections, and if any objections have been filed with regard to the draft, consider such objections and then adopt the by-laws and thereafter under sub-sec. (3), the board must submit such bye-laws together with a copy, of the notice and the objections for the sanction of the Government. A comparison of the procedure laid down with regard to the framing and enforcement of the rules with that laid down for the bye-laws, in the Act shows that in the case of bye-laws, the previous sanction of the Government must be obtained to the very introduction thereof as it were, before they are moved in and considered by the board; whereas no such previous sanction is required in the case of the rules. It seems to us that perhaps the machinery provided for carrying out the intention of the legislature in the levy and collection of taxes has been made needlessly cumbrous and complicated by the necessity of making rules as well as bye-laws for the imposition of a tax and providing for a different procedure for the making of the rules and the by-laws. The inevitable consequence is that the municipal board, more often than not, forgets this distinction and falls into error. This is, however, a matter for the legislature and not for us to consider; and so far as we are concerned, we can only administer the law as it stands and this brings us back to sub sec. (l)of sec. 46 which requires that the previous sanction of the Government must be obtained to the making, alteration or rescission of the bye-laws. It is admitted before us that no such previous sanction was obtained. It was, however, argued that such sanction was unnecessary because the sanction of the Government was obtained later after the bye-laws were made and forwarded to the Government for their sanction We are unable to agree with this submission because the obtaining of the previous sanction of the Government is a condition precedent to the passing of the by-laws in question, and the law is well established that such a condition must be strictly fulfilled before the bye-laws can be held to have been duly passed. We shall consider the effect of the situation after we have dealt with the last objection raised on behalf of the petitioners. That last objection is that the term of office of the numbers of the Pokaran municipal board ended on the 20th December, 1954, and therefore, they are utterly incompetent to collect any tax from the petitioners or other inhabitants of this municipality after that date. In the first place, it has been brought to our notice that the period of the existing members of the Pokaran Municipal Board has been extended up to the 31st July, 1955, by Government notification No. 2336/fl (b) (17) L. S. G. 54 dated 9th February, 1955. Any objection on this score is, therefore, utterly futile. In the second place, we may point out that where a tax has been im-posed by the membrs of a municipal board in accordance with law, and while they were competent to impose such a tax, as in this case they were, (the notice of imposition of the octroi from 1st January, 1955 having been issued on the 11th November, 1954, in pursuance of a resolution of the board at a meeting dated the 5th November, 1954) the subsequent recovery of the tax by the board does not at all depend upon whether the members imposing the tax remained in office after such imposition. It must be remembered in this connection that the board is a juristic person and a corporate body with a perpetual succession and is fully competent through its officers and staff to collect a tax which has been validly imposed, notwithstanding the circumstance that the members who imposed the tax are not in office when the tax is sought to be recovered. There is no substance in this contention and we over-rule it. The only question that remains to consider is what is the net effect of the findings we have arrived at above. We have held above that the rules are valid although the bye laws are not. Under the Rajasthan Act, the rules are the main thing and it is these which prescribe the classes of goods to be taxed and the rates therefore. The bye laws do not effect them. The octroi is, therefore, valid. We have also held that the boundaries of the Pokaran Municipality were not delimited upto the 4th April, 1953, and therefore, it is not possible to levy or collect the tax in question before that date. The result thus is that we hold and direct that the respondent Municipal Board shall not recover octroi from the petitioners before the 4th April, 1953. The mapa tax stood already stopped at all material times and so the question of its recovery does not arise. The rest of the applications stand dismissed. In the circumstances, both parties will bear their own costs. . ;