GAUHATI MUNICIPAL CORPORATION MARKET DEALERS CENTRAL ASSOCIATION Vs. COMMISSIONER G M C

JUDGEMENT

(1.) This application under Article 226 of the Constitution of India has been filed for quashing the Notice (Annexure-I) dated 16.12.93 which has been issued under Section 146 of the Gauhati Municipal Corporation Act, 1969 (hereinafter referred to as 'the Act'). By virtue of the said notice the daily toll of various stalls has been enhanced to Rs.5/- per stall per day.

(2.) The legality and validity of the notice issued under Section 146 of the Act has been challenged primarily on the ground that under the proviso to Section 146 of the Act, the sanction of the Government was necessary and that the same has not been obtained. Section 146 of the Act as has been extracted by me reads as under:

(3.) Having given my thoughtful consideration to the arguments of the counsel for the parties, I am of the considered view that the writ petition deserves to succeed. Section 146 clearly envisages the increase of duty only after the sanction of the Government. The intention of the Legislature can very well be manifested by the use of the word 'shall' which clearly indicates that compliance of the proviso is mandatory. If the Legislature intended to leave the choice to the Municipal Corporation to enhance the fee as and when it likes, there was no need to add a proviso to Sanction 146 of the Act. It appears to me that the Legislature intended to keep in control the Municipal Corporation as regards enhancement of fee is concerned. Section 152 of the Act, as far as I can see, deals with entirely a different situation. In my considered view, Section 152 clearly envisages the imposition of scavenging charges in respect of any hotel or club or any other large premises at such special rate as the Commissioner may think fit. The present case can, by no stretch of imagination, be said to be covered by the provisions of Section 152 of the Act. The argument of the counsel for the respondent is, therefore, found to be devoid of any merit.