LODHA, J - (1.) THIS is a petition under Article 226 of the Constitution of India by the Municipal Board, Sheoganj through its Chairman against the State of Rajasthan praying that the Rajasthan Government's Local Self Department Notification dated February 22, 1975 a (copy of which has been placed on the record and marked Exhibit-19 at page 60 of the Paper Book) be quashed and the respondents be restrained from interfering with the right of the Municipal Board to levy octroi duty in accordance with the Rajasthan Government's Notification dated April 5, 1973 published in Rajasthan Gazette dated May 31, 1973 (A copy of which has been annexed to the writ application and marked Exhibit-1 at page 17 of the Paper Book ).
(2.) THE short question which arises for decision is whether the State Government after having directed the Municipal Board, Sheoganj (hereinafter referred to as the Board) by notification in the Official Gazette to levy octroi, can rescind that notification and thereby deprive the Municipal Board of the right to levy the tax. THE question arises in this way. In exercise of its powers under section 104 of the Rajasthan Municipalities Act (No. 38), 1959 (which will hereinafter be referred to as the Act), the Government of Rajasthan issued a Notification dated April 5, 1973 published in Rajasthan Gazette dated May 31, 1973, whereby it directed the Board, to levy octroi on goods and animals brought within its limits for consumption, use or sale at the rates mentioned therein on the expiry of seven days from the publication of the Notification in the Gazette. THE Board, however, made a representation (Exhibit-A at page 77 of the Paper Book) to the State of Rajasthan that it would not be feasible to levy octroi and, therefore, the Board may be permitted not to levy it. A few months later, the Cloth Merchants Association of Sheoganj also made a representation to the Chief Minister, Rajasthan for not levying the octroi and the Government of Rajasthan sent the following telegram (Ex. 2 at page 23 of the paper book) to the Administrator, Municipal Board - "stop forthwith realisation octroi till further orders letter follows" THE Govt. also forwarded a copy of the representation of the Cloth Merchants Association to the Administrator, Municipal Board, vide its letter dated January 25, 1974 (Exhibit-15 at page 46 of the Paper Book) and asked the Administrator to send factual report of the case for perusal of the Chief Minister. THE Administrator, by his letter dated January 28, 1974 (Exhibit-6) at page 27 of the Paper Book) intimated to the Government that while all the arrangements for collection of the tax had been completed, the telegram (Exhibit-2 was received He further stated that the Board was passing through a financial crisis and its finances could not be put in order without realising the tax. He, therefore, sought the permission of the Government to realise the tax. THE Administrator again by his letter dated February 1, 1974 (Exhibit-7) wrote to the Government that the finances of the Municipal Board were so bad that it found it difficult even to pay the salary of the staff and arrange for road lights. While emphasizing the fact that levy of octroi was absolutely necessary, he tried to impress upon the Government that the representation by the Cloth Merchants Association of Sheoganj for not levying the tax was not at all justified and was motivated by purely selfish considerations. THE matter was pursued by the Administrator from time to time by his letters dated March 16, 1974, April 19, 1974, June 4, 1974 and August 13, 1974 marked Exhibits 8, 9, 10 and 11 respectively. Elections to the Board took place some time in September, 1974 THE Chairman of the elected Board by his letter dated October 21, 1974 (Exhi-bit 12) also requested the Government to withdraw the telegram (Exhibit-2) and permit the Board to commence recovery of the tax. THEreafter, he sent a reminder on November 7, 1974 (Exhibit-I3 ). THE Board in its meeting held on November 5, 1974 also passed a Resolution (Exhibit-14) that the Government should be pressed to withdraw the telegram (Exhibit-2) stopping the levy as the financial condition of the Board was consistently deteriorating. THEreupon the Government by its letter dated November 22, 1974 (Exhibit-3) withdrew its telegram dated January 15, 1974 (Exhibit-2) and thereby gave a green signal to the Board to recover the tax. A genera] notice was issued by the Board dated December 2, 1974 (Exhibit-4) whereby it was notified to the people residing within the limits of the Municipal Board that the octroi may be paid on goods and animals brought within the limits of the Municipality. THE Board's case is that it started realising octroi. However, again by a letter dated January 6, 1975 (Exhibit-5), the Government asked the Board that the letter dated November 22, 1974 (Ex. 3) whereby the Stay-telegram (Exhibit-2) was withdrawn be kept in abeyance, meaning thereby that the telegram stopping recovery of the tax be still deemed to be in force. It was on the receipt of the letter (Ex 5) that the Board filed the present writ petition in this Court on January 16, 1975 and inter alia, prayed that the telegraphic stay order dated January 15, 1974 (Ex. 2) and the letter dated January 6, 1975 (Ex. 5) reviving the telegraphic stay order may be quashed. The State did not file any reply inspite of taking several adjournments. However, Mr. Hastimal, Advocate, made an application on February 10, 1975 on be-half of certain merchants and traders of the city of Sheoganj that since they were vitally interested in the result of the writ petition, they may be ordered to be impleaded as respondents to the writ petition. Meanwhile, as already stated above, the Government issued Notification dated February, 22, 1975 (Ex. 19) whereby the earlier notification dated April 5, 1973 (Ex. 1) was rescinded with effect from the date of its publication in the official gazette. Consequently, the petitioner prayed for amending the writ petition so as to include a prayer for quashing the notification (Ex. 19) also and the petitioner was allowed to do so by order dated February 25, 1975 By the same order, the application dated February 10, 1975 filed by Mr. Hastimal, Advocate was also allowed to this extent that his clients may be heard as intervenors and they may also file reply to the writ petition. The contention of the petitioner is that the telegram (Ex. 2) stopping recovery of the tax as well as the notification (Ex. 19) are ultra vires, illegal and void and should be struck down. On the other hand, Mr. Hastimal, learned counsel for the intervenors has urged that the Government was competent to rescind the earlier notification imposing the levy by virtue of the general powers provided in section 21 of the General Clauses Act (which will hereinafter be referred to as 'the G. C. Act' ). He has also raised four preliminary objections viz.- (1) That the petitioner is guilty of suppression of material facts and, therefore, is not entitled to invoke the extra-ordinary jurisdiction of this court. (2) Thar the petitioner cannot claim any right to levy the tax and, therefore, it has no locus standi to maintain the writ petition. (3) That the petition suffers from the defect of non-joinder of necessary parties, and (4) That the petition involves disputed questions of fact, which cannot be properly decided in writ jurisdiction. He has also urged that the petitioner is, by its act, conduct and acquiescence, estopped from asking the reliefs contained in the writ petition. First, I propose to dispose of the preliminary objections. The argument regarding suppression of material facts pertains to the omission on the part of the petitioner to make mention of the Resolution of the Municipal Board dated July 19, 1973 Exhi-bit-A ). It is stated that it was on the basis of the aforesaid Resolution by the Municipal Board that the State Govt. had stopped the levy by the telegram (Ex. 2)and, therefore, it was the bounden duty of the petitioner to have made mention of the aforesaid Resolution in his writ petition. It is argued that there has been a deliberate concealment of material facts and, therefore, this court should decline to consider the merits of this case and reject the application. The petitioner's reply is that it was not necessary to refer to the Board's Resolution (Ex. A), inasmuch as the telegram (Ex. 2) stopping the levy was sent by the Government on the representation made by the Cloth Merchants Association of Sheoganj. After having carefully examined the facts of the case, I have come to the conclusion that the petitioner cannot be held to be guilty of a deliberate concealment of material facts and in the circumstances of the case it would not be proper to reject the application on this ground. It may be noticed that the decision of the case centres round the validity of the notification dated February 22, 1975 (Ex. 19) whereby the Government rescinded the earlier notification by which octroi was imposed This notification was issued during the pendency of this writ petition and from the side of the opposite party reliance has been placed mainly on this notification to negative the right of the petitioner to realise octroi. I am also of opinion that the petitioner might have bona fide believed that mention of the Resolution of the Board (Ex. A) was not necessary, inasmuch as it appears that no action was taken by the Government on the Resolution (Ex. A) for a considerable time and it was only after the Cloth Merchants Association has submitted its representation dated January 14,1974 for not levying the tax that the telegram (Ex. 2) was immediately despatched by the Government. Reliance is being placed by the learned counsel for the petitioner in support of this position on letter (Ex. 15) dated January 25, 1974 addressed by the Deputy Director of Local Bodies, Rajasthan to the Administrator, Municipal Board, Sheoganj whereby a copy of the representation dated January 14, 1974 by the Cloth Merchants Associa-tion addressed to the Chief Minister was forwarded to the Administrator, who was directed to submit a factual report of the case immediately for perusal of the Chief Minister. It may be observed, here, that on January 10, 1974 the Establishment Officer of the Municipal Board had made a report to the Administrator that all arrangements had been made for realisation of octroi. In these circumstances it cannot be said that the telegram (Ex. 2) was issued on the Resolution by the Municipal Board (Ex. A ). At any rate, this telegram was withdrawn by the Government by its letter Ex. 3 on the representations made by the Administrator from time to time and also on account of the pressing demand by the Board vide its Resolution (Ex. 14 ). The Municipal Board actually started realising octroi, as is evident from the general notice (Ex. 4) dated December 2, 1974, and the endorsement made on Exhibit-5, yet the Govt. by its letter dated January 6, 1975 (Ex. 5) revived the stay order communicated by the telegram (Ex. 2) and it is, in fact, this letter Exhibit-5 which originally led to the filation of the writ petition. The petitioner's contention was that without following the proper procedure prescribed by law, the Government had no jurisdiction to stop the levy in the manner it did. I am, therefore, of opinion that the petitioner is not guilty of concealment or suppression of material facts. Learned counsel for both the parties have cited a number of authorities on the question of suppression of material facts by a petitioner invoking the extraordinary jurisdiction of this Court. But I do not consider it necessary to refer to those authorities, as, in my opinion, it depends upon the facts and circumstances of each case whether the petitioner is guilty of deliberate suppression of concealment of material facts so as to forfeit his right to get the case considered on merits and no hard and fast rule can be laid down in such matters. Of course, it is a well-established principle of law that a person invoking extra ordinary jurisdiction under Article 226 of the Constitution of India must come with clean hands and if he practices deceit on the Court by misrepresentation or suppression of material facts the Court may refuse to consider his case on merits. But, as I have stated above, no such circumstances exist in the present case so as to throw out the petition on this ground.
(3.) ANOTHER preliminary objection regarding non-joinder of necessary parties has also no substance. The petitioner has challenged the impugned order and notification by the Government and the Government and their officers concerned have been impleaded as respondents in the case. The persons who may be liable to pay octroi may not be impleaded as parties to the writ petition merely on the ground that they would be the persons affected. That is an undefined body of persons. Moreover, 25 merchants residing in the town of Sheoganj have been allowed to oppose the writ petition as intervenors. They have also been allowed to file reply to the writ petition. Learned counsel for the petitioner has referred to Mongibai Hariram vs. The State of Maha-rashtra (1 ). This ruling. , in my opinion, is completely distinguishable on facts and has no application to the facts and circumstances of the present case. I, therefore, over-rule this objection also. The other two preliminary objections that the petitioner has no legal right to maintain this petition and there are disputed questions of fact which cannot be decided by a writ petition, also deserve to be over-ruled. In this connection, it may be pointed out that, as would be clear from what follows, there are no such disputed questions of fact in the case which cannot be decided in writ jurisdiction. The case has, in fact, been mainly argued on the legal position as to the power of the Government to rescind a notification issued by it under section 104 of the Act. The objection as to the petitioner's right to maintain the writ petition is also based on a slender ground. The Board has been constituted under the Act. It is a corporate body with perpetual succession and a common seal. The Act lays down the duties, obligatory as well as discretionary, of a Municipal Board. The duties cannot be discharged and the discretionary functions cannot be performed unless the Munici-pality has power to collect money by way of taxes. The Act provides a machinery for imposing and collecting the same. The Board, thus functions under statute and its powers, duties and liabilities are regulated by the Act. It is a juristic person and can sue and be sued in its name. As observed by their Lordships of the Supreme Court in Municipal Corporation of Delhi vs. Birla Cotton, Spinning and Weaving Mills, Delhi (2) local bodies are democratic institutions managed by the representatives of the people. They function for public purposes and take away a part of the Government affairs in local areas. As they are intended to carry on local self Government, the power of taxation is a necessary adjunct to their other powers, though they function under the supervision of the Government. I am, therefore, not prepared to accept the contention raised by Mr, Hastimal that the Board is merely an agent of the Government and it has no say in the imposition of the tax. Mr. Hastimal placed strong reliance on Bhagwan Das vs. State of Rajasthan (3) and invited my attention to the following observations therein - "in the context in which the word 'levy' has been used in sec. 104, it does not mean "impose" as imposition of a tax under this section is made by a notification of the State Government and when the Board is directed to levy, its function is to perform the duty of collection. It is in this sense that the word 'levy' has been used in sec. 104. . . . . . . . . Under sec. 105 it is clear that the word 'levy' has been used as distinct from 'impose' as in this section both these words have been used. " ;