- (1.) In all these appeals common questions of law and facts are involved, hence, they are decided by this common judgment.
(2.) By way of these appeals, the appellants-State Government has challenged the judgment and order of the learned Single Judge whereby the learned Single Judge has quashed the notices issued by the respondent-appellant no. 1 herein.
(3.) Counsel for the appellants Mr. N.M. Lodha Advocate General has taken us to order of learned Single Judge wherein it has been observed as under:- "8. After having considered the submissions made by the learned counsels for the parties, in the light of the provisions of the said Act, the court is of the opinion that the main question which is required to be considered is, whether the Municipal Corporation could have framed the bye-laws 2012, exercising the powers under Section 339(b) read with Section 105 of the said Act, for charging the penalties for regulating the marriage garden? 9. In order to appreciate the rival submissions made by the learned counsels for the parties, it would be relevant to deal with certain provisions of the said Act. As per the definition of "tax" contained in Section 2(lxiv) of the said Act, "tax" includes any toll, rate, cess, fee or other impost leviable under the said Act. Further, Section 104 empowers the Municipal Corporation to levy user charges and Section 105 empowers the Municipal Corporation to levy fees and fines, for the matters stated in the respective provisions. Section 339 empowers the Municipal Corporation to make the rules and Section 340 empowers the Municipal Corporation to make bye-laws for the matters enumerated in the respective provisions. It is pertinent to note that as per Section 339(b), the Corporation is empowered to make rules with regard to all the matters relating to imposition, levy and collection of fees and fines under Section 105, and that as per Section 340(b), the municipal Corporation is empowered to make bye-laws for prescribing all matters relating to the imposition, levy, assessment and collection of user charges under Section 104. Therefore, the Municipal Corporation could have framed the rules under Section 339 for the matters relating to the fees and fines under Section 105, but could not have framed the bye-laws under Section 340 for the said matters. The bye-laws could have been framed for the matters relating to the user charges under Section 104, amongst other matters, and not for the matters relating to Section 105 of the said Act." 10. Now it is significant to note that the bye-laws of 2011 were framed by the Corporation in exercise of the powers conferred under Section 340 read with Section 105 of the said Act, and that the amended bye-laws of 2012 have been framed exercising the powers under Section 339(b) read with Section 105 of the said Act. Though there does not appear to be any error in mentioning the provisions of the Act in the bye-laws of 2011 or 2012, however assuming that by printing mistake or otherwise, wrong sections have been mentioned in the said bye-laws, then also in the opinion of the court, the Corporation had no powers to make byelaws for the matters relating to the fees and fines under Section 105. It could have made the rules and not the bye-laws for the matters under Section 105. Since no powers are conferred upon the Corporation under Section 340 to frame the byelaws with regard to the matters relating to the levy of fees and fines under Section 105 of the said Act, the bye-laws, 2011 and the amended bye-laws of 2012 ex-facie appear to have been made without any authority of law. In any case, the Corporation having issued the public notice on 21.10.13 and the petitioners having deposited the entire outstanding amount towards the licence fees before the cut off date pursuant to the said notice, the respondentCorporation could not have asked the petitioners to pay the penalty and that too with retrospective effect, invoking the bye-laws of 2012, which had no sanctity of law. It is needless to say that no tax or fees or penalty could be recovered without the sanction of law and without following due process of law. In that view of the matter, the court is of the opinion that the Corporation could not have imposed the penalty invoking the amended byelaws of 2012, and the Corporation also could not have seized the marriage gardens on non-payment of such penalty amount by the petitioners. Even, as per bye law-23 of the bye-laws, 2012, the marriage garden could be seized only in case of breach of any of the conditions mentioned in bye law-17. Mr. Jain for the respondent-Corporation had failed to point out as to which of the conditions of bye law-17 was violated, entailing seizure of petitioners gardens. There cannot be any disagreement to the ratio laid down in the decisions cited by the learned counsel Mr. Jain, however they have no application to the facts of the present case. 11. It is not disputed that all the petitioners have deposited the licence fees till this date for the running their respective marriage gardens, and the dispute was only with regard to the demand notices issued by the Municipal Corporation for payment of the penalty amount. Since the court has held that the Corporation could not have imposed the penalty invoking the bye-laws, 2012 which have no authority of law, the consequent action of the Corporation in seizing the marriage gardens for non-payment of such penalty amount, also cannot be vindicated.";