SHINGHAL, C. J. - (1.) THESE two special appeals are directed against the judgment of a learned Single Judge dated April 21, 1975 by which the writ petition filed by the respondent Municipal Board of Sheoganj, hereinafter referred to as "the Board", has been allowed, notification Ex. 19 of the State government dated February 22, 1975, its telegram Ex. 2 dated January 15, 1974 and its letter Ex. 5 dated January 6, 1975 have been quashed, and the State Government and its concerned officers have been restrained from interfering with the Bard's right to levy octroi in accordance with law and in pursuance of notification Ex. 1 dated April 5, 1973. While appeal No 66 of 1975 has been filed by the interveners, appeal No. 130 of 1975 has been filed by the State Government, its department and Officer.
(2.) IT is not in dispute that the State Government issued notification Ex. 1 dated April 5, 1973 under section 104 of the Rajasthan Municipalities Act, 1959, hereinafter referred to as "the act", which was published in the State Gazette of May 31, 1973. IT was directed thereby that the Board shall, after the expiry of a period of seven days from its publication, levy octroi on goods and animals brought within the limits of the municipality for consumption, use or sale therein. The State government however sent a telegram (Ex 2) to the Administrator of Board to stop the realisation of the octroi until further orders. The Administrator made various representations to the State Government against that telegraphic order. Fresh elections were held and the Chairman of the new Board (which had a non-congress majority) pressed for the levy of octroi, in view of the deteriorating financial condition of the Board, and forwarded a copy of the resolution of the Board dated November 5, 1974 in support of his request. The State Government thereupon sent letter Ex. 3 dated November 22, 1974 cancelling its telegraphic: direction of January 15, 1974 an ordering the relevy of octroi. The Executive Officer therefore issued notification Ex. 4 dated December 2, 1974 for the relevy of octroi with effect from December 3, 1974. But letter Ex. 5 dated January 6, 1975 was received by the Board on January 9, 1975 by which compliance with the earlier order Ex. 3 was stayed until further orders. The Board then filed the aforesaid writ petition challenging the order of the State Government. The State did not file a reply, but an application was made by the appellants in appeal No. 66 of 1975, who are merchants and traders of Sheoganj, for being impleaded as respondents, and they were ordered to be heard as interveners by an order of the learned Single Judge. Meanwhile the State Government issued notification Ex. 19 dated February 22, 1975 by which the earlier notification Ex. 1 dated April 5, 1973 for the levy of octroi was rescinded with effect from the date of its publication in the official Gazette. The writ petition was accordingly amended so as to include a prayer for quashing notification Ex. 19 also. These facts are not in dispute before us. The controversy is about the validity of aforesaid notification Ex. 19 dated February 22, 1975. The learned Single Judge has taken the view, inter alia, that after the issue of the State Government's notification under section 104 of the Act to levy octroi, "it is the Board which is seized of the matter and except by virtue of the power prescribed under the proviso to section 104 and sub-section (5) of section 107, the Government has no jurisdiction to interfere with the realisation of the tax " He has held that "once the Government has issued a notification under section 104, it is under obligation not to interfere with the right of the Board to realise the tax subject to the condition contained in the Act itself". The learned Single Judge has examined the power of rescission contained in section 21 of the General Clauses Act and has held that "to concede such a power to the Government under section 21 of the G. C. Act would be inconsistent and repugnant to the scheme and the relevant provisions of the Act. " He has accordingly allowed the writ petition as aforesaid. It has been argued by the learned counsel for the appellants that under section 23 of the Rajasthan General Clauses Act the State government had the right to rescind notification Ex. 1 dated April 5, 1973 and that the learned Single Judge has erred in holding otherwise. The disputed notification Ex. 19 dated February 22, 1975 reads as follows, - "s. O. 274. In exercise of the powers conferred by section 104 of the Rajasthan Municipalities Act, 1959 (Act No 38 of 1959) read with Sec. 23 of the Rajasthan General Clauses Act, 1955 (Act No. 8 of 19 5) the State government hereby rescinds this Department Notification No. Tax/f 3 (12) LSG/73 dated the 5 4 1973 regarding levy of octroi duty by the Municipal Board, Sheoganj, with effect from the date of its publication in the official gazette. The notification has thus been issued in exercise of the powers conferred by section 104 of the Act read with section 23 of the Rajasthan General Glauses Act. We have examined both these sections. The relevant provisions of section 104 of the Act, are as follows, - "104. Obligatary taxes - Every board shall levy, at such rate and from such date as the State Government may in each case direct by notification in the Official Gazette and in such manner as is 1aid down in this Act and as may be provided in the rules made by the State Government in this behalf, the following taxes, namely: - (1 ). . . . . . . . . . . . . . . (2) an octroi on goods and animals brought within the limits of the municipality for consumption, use or sale therein; and (3 ). . . . . . . . . . . . . . . Provided that - Provided further that, upon a representation made to it by and at the request of a board, the State Government, if it is satisfied that circumstances exist which sufficiently provide the justification for a board not to levy, or to stop the levy of, any of the taxes mentioned in this section, may, by special order published in the Official Gazette, along with the reasons for making such order, permit the board not to levy, or to stop the levy of any such tax". There is thus nothing in the section to confer the power of rescinding the levy of octroi. On the other hand, the section casts a duty on the board to levy octroi at the rate and from the date directed by the government, and that duty can be avoided only if a representation is made by the board to the State Government, along with a request, and the State Government is satisfied that circumstances exist which sufficiently provide the justification for the board (i) not to levy or (ii) to stop the levy of that tax and the Government issues a special order, alongwith the reasons for making it, permitting the board not to levy or to stop the levy of the tax. The section does not thus, by itself, provide for rescission of the notification of the State Government directing the rate at which and the date from which the octroi is to be collected. The notification (Ex. 19) however refers to the authority of section 23 of the Rajasthan Genaral Clauses Act, 1955 also, which has been read alongwith the aforesaid section 104 of the Act to rescind the earlier notification Ex. 1 dated 5, 1973 fixing the rate and the date for the levy of octroi. Section 23 reads as follows, - "23. Power to make or issue to include power to add to, emend, vary or resciend orders, etc.- Where, by any Rajasthan law, a power to make or issue orders, rules, regulations, schemes, forms, by-laws or notifications is conferred, then that power includes a power exercisable in the like manner and subject to the like sanction and conditions, (if any), to add to, amend, vary or rescind any orders, rules, regulations, schemes, forms, bylays or notifications so made or issued. " The question is how far the above section 23 could be applicable to the provisions of section 104 of the Act? A cross reference to section 4 of the Rajasthan General Glauses Act, 1955, shows that the provisions of that Act shall apply, inter alia, to all Rajasthan laws and to rules, regulations and by-laws thereunder made on or after the first day of November, 1956, "unless otherwise expressly provided or unless the context otherwise requires". The application of section 23 of the Rajasthan General Glauses Act is thus dependent on two conditions: (1) the absence of any express provision to the contrary in the Rajasthan law concerned, and (ii) the absence of any contrary requirement of the context. It may also be mentioned that while considering the applicability of section 21 of the General Glauses Act, 1897, which is similar to section 23 of the Rajasthan General Clauses Act, 1955, their Lordships of the Supreme Court have laid down the law as follows in Slate of Bihar vs. D. N. Ganguly and others (1) with reference to the provisions of section 10 (1) of the Industrial Disputes Act, 1947, - "it is well settled that this section embodies a rule of construction and the question whether or not it applies to the provisions of a particular statute would depend on the subject-matter, context, and the effect, of the relevant provisions of the said statute. In other words it would be necessary to examine carefully the scheme of the Act, its object and all its relevant and material provisions before deciding whether by the appli cation of the rule of construction enunciated by sec. 21, the appellant's contention is justified that the power to cancel the reference made under sec. 10 (1) can be said to vest in the appropriate Government by necessary implication. If we came to the conclusion that the context and effect of the relevant provisions is repugnant to the application of the said rule of construction, the appellant would not be entitled to invoke the assistance of the said section. "
(3.) WE shall therefore proceed to examine the object of the Act, its scheme and all its relevant and material provisions for the purpose of examining the controversy before us. An examination of the various provisions of the Act shows that the object of the Act is the establishment of local self-government, in the form of municipalities, in the State of Rajasthan, and to create and establish these self-governing bodies with the necessary machinery, administrative set up and the financial resources so vital to their existence. It cannot be the object of the Act to stifle or destroy the municipalities by stripping them of the financial and other resources and the power to raise and constitute their funds by the levy of the taxes within their legal competence. It is for the purpose of fulfilling this object that the Act has made provision for an elaborate and integrated scheme of local self-government within municipal limits. Thus Chapter II of the Act deals with the constitution and government of municipalities, Chapter V with the municipal property and fund, Chapter VI with the primary and secondary functions of boards, while Chapter VII deals with the imposition of taxes, and Chapter VIII deals with the recovery of municipal claims. Section 104 finds a place in Chapter VII which provides for the imposition of certain obligatory taxes which have necessarily to be levied by a municipality. Section 105 deals with the other taxes which a municipality may impose but the imposition and levy of which is not obligatory. It will be recalled that it is the State Government which fixes the rate and the date for obligatory taxes like octroi and this so because the levy of the tax has been considered to be the life blood of the municipality, without which it might starve and perish. As has been stated, section 104 of the Act provides, inter alia, for the levy of octroi and, as has been urged by the learned counsel for the parties, it appears to be a self contained section. Its second proviso no doubt provides, inter alia, for the non levy of octroi at the inception, or for its stoppage thereafter, but that is permissible only under a special order of the State Government upon a representation and request of the Board, and not otherwise. It is significant that there is no express provision in section 104, or elsewhere in the Act, authorising the State Government to rescind its notification fixing the rate and the date for the levy of octroi or any other obligatory tax In view of this scheme of the Act we have no doubt that it would not be permissible for the State Government to invoke section 23 of the Rajas-than General Clauses Act and to rescind the notification fixing the rate and the date for the levy of octroi, for that would run counter to the object and the scheme of the Act and all its relevant and material provisions. We have therefore no doubt that as there is express provision to the contrary in section 104 of the Act, and as the context other-wise requires, the general power of rescission provided in section 23 of the Rajasthan General Clauses Act, 1955, cannot be invoked by the State Government to cancel or wipe off the notification issued by it under section 104 (1) of the Act directing the rate and the date for the levy of octroi. ;