State of Assam v. Assam Tea Co. Ltd.

Judgment

11 STATE OF ~AM ASSAM TEA CO. LTD. August 21, 1970 [J. c. SHAH, K. s. HEGDE AND A. N. GROVER, JJ.] Assam General Cltlu.res Act (2 of 1915), s. 2~Notification UJJ4ed under Assam Municipal Act, 1923-1!n3...Act repealed and Auam Municipal Act, 1957, enacted-Whether notification under 192S·Act deemed to be in force under 1951-Act. Under ss. 4 and 5 of the Assam Municipal ACt, 1!123, the Provincial Government was authorised to signify its intention to include within a municipality any local area in its vicinit:t, and, after' considelring any objections to the proposed action to so mclude. tbe area. Section 328 provided for the constitution of notified areas. Sections 4 and 5 were not applicable to a notified area but the Provincial Government could extend to any notified area any section of the Act by virtue of s. 330(1}(d). Under s. 330(3), for the purpose of any section so extended, tbe town committee constituted for !IUCb notified area would be deemed to be a Municipal Board.

In 1957, the 1923-Act was repealed and was replaced by the Assam Municipal Act, 1957. The respondent owned tea gardens in the village of NazirJ. . In . 1909, a town committee was constituted at Nazira adjacent to the, tea ~arden. In 1951, by a notification issued by the GoYemment..pf Assam, s.4(1)(b) and (c) and s.5(1) and (2)(b) of the 1923-Act were ctended to the not&ied area committee including the Nazira Tovm Com- . mittee. On January 6, 1964, a notification was issued under th~ J9S7- Act to revise the boundaries of the notified area at Nazira, and after considering the objections of the respondent on September 30, 1964; .. by a final notification, a part of its tea estate was incorporated within the Nazira Town Committee. On the question whether notifications dated January 6 · 1964 and September 30, 1964 were unauthorised, because, ss. 4 and 5 ~f 19S7-Act, corresponding to ss. 4 and 5 of the 1923-Act, were not extended to the notified area on these dates, HELD:

There is no express provision i9 the 1957 Act which super~ oedes the notification issued in 1951 un¥r the 1923-Act nor is the continuance of the notification inconsistent with any provision in the 1957-Act. Therefore, under s. 26 of the Assam G~Mteral Qauses Act, 1915, the 1951 notification continues in : orce and must be deemed to have been issued under the 1957-Act. Hence the State Government was competent, in exercise of the power conferred upon it by the 1957-Act, to include within the area of the Town Committee any local area contiguous to it, [934 H; 935 A] CIVIL APPELLA1E JURISDICTION: Civil Appeal No. 435 of ·1970. Appeal by · ~pecial l~aye. from the judgmeJl~ and orde~ da!e~ ¥arch 28, 1969 of the Assam and Nagalaild H1gb Court m Civll :Rule No. 183 of 1965. · · [1971] 1 s~c.R.- Nattnit Lal,- for the appellant. M. C. Chagla~ P. K. Goswami and R. Gopalakrishnan, for the respondent. B. Datta,. for the intervener . . The Judgment of the Court was delivered by Shah, J. The Assam Tea Company Ltd owns tea gardens in the viUage of Nazira in the State of Assam.

By a notifica· tion dated June 16, 1909, the Government of Bengal (which then had territorial jurisdiction over the territory now within the . State of Assam) constituted a Town Committee at Naziru adjacent to the tea garden of the Company. In 1923 the Legislature enacted the Assam Municipal Act I of 1923. Section 328 of the Act provided for the constitution of notified areas .. By sub-s. ( 1) of s. 328 the Provincial Government was authorised by notification, to signify its intention to declare that with respect to some or all of the matters upon which a municipal fund may be expended1 improved arrangements are _required within a specified area. After issuing such a notification the Government was competent, after six weeks from the date of publication, and 1fter considering the objections, if any, to declare, by notification, the speCified area or any portion thereof to , be a notified area.

Section 4 of the Act authorised the Provincial Government by notification, inter (llia, to signify its intention to include within a municipality any local area in the vicinity of the same or exclude fr<_?m a municipality any local area comprised therein. Any inhabitant of any part of a local area defined in a notification published under s. 4. was entitled by virtue of s. 5 to raise objections to the proposed action. The Gowrnment would, after considering the objections, ;nter ana.. r include the local area or any part thereof within the munici~ pality or exclude it therefrom. The provisions of ss. 4 and 5 Wl~re not of their own force applicable to a notified area constituted under s .. ~28 but by virtue of c1. (d) of sub~s. (1) of s. 330 it was competent to the Provincial Government to extend to anv notified area the provisions of any section of the Act. By suh-s. 0) of s. 3 30, it was provided :

"For the purposes of any section of this Act which mav be extended to a notified area, the town committee cori"stituted for such area. under section 329. shall be deemed to be a Municipal Board under this Act and the area to he a municipality." Notifications"Were issued from time--to time applying certain provisions of the Assam Municipal Act, 1923. In 1951 the Government of the State of A!;sam issued a notification applying ss. 4(1) Jl ASSAM V. ASSAM TEA CO. (Shah J) 9J3 (b) & (c~ .and 5(1) & (2)(b) of the to the not1fied -a~ca committee includin Assam M~OlCipal Act, 1923 tee. But no notification under s · 328 g the Nama Town Commit- 1923 extending the boundaries of the ~f 1 1e Assam Municipal Act, was issued. In 1957 the Assam M . ~ztra Town Committee area cd and was replaced by the Assam ~fllc!p.al Act, 1923 was repeal- January 6, 1964 notification ~as issu~~rcrpa~ Act 15 of 1957.

On Act 15 of 1957 to revise the bo d . unfcr s. ~{i)(b) of Nazira and thereby included a un anes 0 the notified mea at the As~am Tea Co Ltd . tl pNart ?f the tea estate belonging to · m 1e aztra Town Co Objections submitted by th A T mnuttce area. ssam ea Company Ltd were con sa ere an overruled and the Government of A ifi - ssam y not JcatJOn ate ~ptem er 30, 1964, incorporated within the Nozir;1 :rown Committee area a part of the area of the tea garden belon<>- mg to the Company, The .Company ~~n filed a petition in the High Court of A~sa11! challen~mg the validtty of the notification.

The High Court was of the VIew that the Company had provided all amenities and facilities which a municipality may provide, and since it did not appear that any "improved arrangements" could be provided by the Town Committee the notification issued by the Government was "colourable legislation" and was liable to be stmck down insofar as it related to_ the area of the tea estate belonging to the Company. We have considered in appeal No. 2052 of. 1969--State of Assam v. The A malganwted Tnt Estates Co. Ltd. & Ors.-the ccrcctncs~ of this decision and we have rejected it. But Mr. Ch.agla .appeanng on behalf of the Company contended that _the nouficauon dated January 6, 1964 signifying the intention of the St.at~ Govcmmt;~t to include the area belonging to the Compnny w1hun the Nama Town Committee and the final notifu:ation dated September _30. 1964 were unauthorised because the provisions of ss. 4 and :> of the Assam M unicipa!

A~t 15 of 1957 were not deXtentd (t~ /~~ Nazira Town Committee by noti~ication issued. un. er su s. . . 1 A 1 Counsel 10vned our attenuon s. 336 of the Assam Mum~a~a · 15 f 1957 as originally ento s. 2 of the Assam Munactpal Act, Mo n'c'apal Act \9?3 was 2 f th 1 Act the Assam ac e . y s. o t that scctioi1 it was prorepealed; and by cl. (b) of the prov1so o vided : 1• ·1 d -fined rc:gul' . onstituted IIlli s "all mumc1pa JU~S c notices issued, d 1. · · 1ade hccnses :~n at IOns ttn c tVISIOns n oseJ or assessed, b~u~ets t:~xcs, tolls, rates and fee.~ 111:~n~ approved, pcrnHss1ons passed assessments mJde, P h A·s·tnl Municipal Act. t ·' tandcr t e or sanctions ~ran erJ, . force at the coal1llli!l1cC- 1923, shall so far as they ~~~~ 10 have been r~pectivdy ment of this Act, be .dceanc: . tonoscd asscss~d. pa."seJ, constituted. defined, tssued. lnld; titis Act. <llld slwll "'

(lr "ranted un cr made, :approwu (19711 r s.c.&. remain in force for the period. if any, for which they were so constituted, defined, issued, imposed, assessed, passed, made, approved or granted.'' Counsel said that under the proviso, notifications issued under th~ Act of 1923 were not saved and it was for the first time by the .Aruending Act of 1958 that the notifications issued under the Act of 1923 were sought to be saved, notwithstanding the repeal of the Assam Municipal Act of 1923. But no retrospective operation was given to the Amending Act of 1958. Counsel submitted that this attempt on the part of the Legislature to save tJ,otifications issued under the Act of 1923 ,.as ineffective. It is true that for the existing cl. (b) oi the proviSO ·to s.

2 by the new clause substituted "all municipalities constituted, limits defined, regulations and divisions made, all rules and bye-laws, notifications, orders, appointments and assessments made, licedces and notices i~sued, ~ taxes, tolls, rates and fees imposed or assessedj budgets passed,..._ .~ plans approved, permissions or sanctions granted,· contracts enter-· ed into, suits instituted and proceedings taken under the Assam· Municipal Act~ 1923" are saved from the repeal. But the Amend~ ing Act of 1958 came into force on June 13, 1958, when it was published in the Assam Gazette. The attempt to save notifications issued under the Act of ·1923 by the Assam Municipal (Amend·· ment) Ad 17 of 1958 is therefore ineffective. It is unnecessary to consider whether, as suggested by counsel for the State of Assam, by virtue of s. 336(3) once a notification under s.

4 of the Act of 1923 was issued, for all purposes a Town Com·· mittee became a municipality and on that account the notification continued to remain in operation. In our judgment, under the provisions of the Assam General Clauses Act, 1915, s. 26 saves the notification in question. S~ction 26 provides, ;nter alia : "Where any enactment is repe~led · and re-enacted with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, form, or by-law, made or issued under the repealed enactment, shall so far as it is not inconsistent with the provisions re-enacted, continue in force and be deemed to have been made or issued under the provisions so re-enacted, ...... ". There is no express provision in the Act 15 of 1957 which supersedes the notification issued in 1951 under the Act of 1923, nor is the continuance of the notification inconsistent with any provision ·in the new Act.

The notification must, therefore. be deemed to have remained in force and the State Government was competent in exercise of the power conferred upon it by s. 4 of Act 15 of 1957 p 8 ASSAM v. ASSAM TEA CO. (Shah, J.) ~35; to include within the area of Town Committee any local area contiguous to the same. We are here dealing only with the validity of the notification: issued by the State Government, and not with the validity of the demand for licence fee or other taxes levied by the notified Town· Committee. Nothing in this judgment will affect the right of the Company to challenge the validity of the demand for such taxes in appropriate proceedings. The appeal is allowed and the order passed by the High Court is set aside. The petition is dismissed with costs throughout. Ill! 1 an these three appeals there will be one hearing fee. V.P.S. rippeal nllowtd ..