High Court
Case Details
WP(C) 2607/2013 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA Heard Mr. S. Chetia, learned counsel for the petitioner. Also heard Mr. H.R. Choudhury, learned Senior Counsel, assisted by Mr. J. Abedin, lerned counse l representing the respondent No.4. I have also heard Mr. M. Bhagabati, learned State Counsel. The petitioner is aggrieved by the action on the part of the respondent No.4 in levying Entry Fees and Parking Fees from the heavy and commercial vehicl es and Khajana on agricultural products. Referring to the provisions of Section 68 and 148 of the Assam Municipal Act, 1956, it is the case of the petitioner th at such levy of tax by the respondent No.4 is violative of the said provisions. In the counter affidavit filed by the respondent No.4, it has been state d that the entry fees, parking fees and Khajana are being imposed and levied as per the imposed rate in the interest of management of various roads used by the public under Kharupetia Town Committee. Referring to the decision of the Committ ee in its meeting held on 16.03.2010, the respondent No.4 has also indicated the rates of entry fees.
Legal Reasoning
Mr. Choudhury, learned counsel for the Town Committee, has also placed r eliance on two decisions of this Court reported in 2006 (4) GLT 394 (Bus Paricha lana Samity -vs- State of Assam and ors) and 2006 (SUPPL) 1 GLT 167 (Jayanta Kal ita -vs- State of Assam and ors). He submits that such levy of tax by the respon dent No.4 is within the permissible ambit and scope of the provisions of the sai d act. Mr. Chetia, learned counsel representing the petitioner on the other han d submits that in absence of any provisions empowering the Town Committee to imp ose such tax, it is totally impermissible for the respondent No.4 to levy entry fees. He further submits that in the name of parking fees, the Town Committee is using receipts for entry fees. I have given my anxious consideration to the submission made by the lear ned counsel for the parties and have also considered entire materials on record. Section 68 of the Assam Municipal Act, 1956 dealing with tax provides that subj ect to the provisions of the Act and the Rules made hereunder, the board may fro m time to time, had a meeting conveyed expressly for the purpose, of which due n otice shall have been given impose within the limits of the municipality the fol lowing taxes, fees and tolls, or any of them:- (cid:28)(a) a tax on holdings situated within the municipality assessed on thei r annual value, payable by the owner; (b) a water-tax, payable by the owner or occupier, on the annual value o f holdings; (c) a lighting-tax, payable by the owner or occupier, on the annual valu e of holdings; (d) a latrine-tax, payable by the owner or occupier, on the annual value of holdings; (e) a drainage-tax, payable by the owner, where a system of drainage has been introduced; (f) a tax on private markets payable by the owner; (g) licence fees on carts, carriages and animals used for riding, or bur den; (h) a fee on the registration of dogs and cattle; (i) a fee on boats mooring within the Municipality; (j) tolls on bridges; (k) a betterment fee on holdings in any area of which value has increase d due to improvement schemes completed at Board’s cost; (l) fees for setting up and maintenance of fire brigade; (m) fees for conducting at the cost of the Board, any scheme of social s ervice for the improvement of public health; (n) with the sanction of the State Government any other tax, toll, rate or fee; Provided,- (i) that both the taxes mentioned in clauses (a) and (f) shall not be imposed in respect of the same premises; (ii) that when the Board has taken a loan form or guaranteed by the State Govern ment, the Board shall not, without the previous sanction of the State Government , make any alteration in respect of any tax which may have the effect of reducin g the income of the Board; and (iii) the State Government may, by order, exempt from the payment of any rate, t ax, toll or fee payable under the provisions of this Act, any diplomatic or cons ular mission of a foreign State and the diplomatic and consular officer of such mission. (o) licence fee on boats. (cid:29) Section 148 of the Act reads as follows:- (cid:28)148. Rents, tools and fees. - (1) the Board, if decided in a meeting ma y use their own land or land with building or land purchased, taken on lease or otherwise acquired with or without building for the purpose of establishment of a Municipal Market, Bus Stand, Truck Stand, Taxi Stand, Auto Stand and Parking y ard for improving any existing Municipal Market, Bus Stand, Taxi Stand, Auto Ric kshaw or Rickshaw Stand and Parking Yard. (2) The Board, if decided at a Meeting may levy rent, tolls and fees at such rates as it may think proper for the right to expose goods for sale in a Mu nicipal market and for the use of shops, Stalls and Standings therein and also i n respect of parking lots and may also regulate such rates in respect of private markets or places used for declared by the Board as a market place, parking lot by public notice in the locality. (3) The Board may grant a lease according to rules under this section fo r a period not exceeding three years for the collection of rents, tolls and fees in municipal markets parking lots at the rates prescribed by the Board under su b-section(2). (4) A lessee of a municipal market appointed under sub-section (3) may r efuse to allow any person to expose goods for sale in the market or to use shops , stalls and standings therein until the proper rents, tolls and fees have been paid. (5) Whoever, having rendered himself liable to the payment of rents, tol ls or fees refuses to pay the same shall be liable to a fine which may extend to two thousand rupees and shall also be liable to be evicted from the place, shop , stall or standing in the market used by him. (6) When resistance is offered to any person authorized to collect rents , tolls or fees, any police officer whom he may call to his aid, shall be bound to assist him, not such police officer shall, for that purpose have the same pow ers as he has in the exercise of his ordinary police duties. (7) Whoever realizes rents, tolls or fees at rates higher than the rates fixed under sub-section (2) shall be liable to a fine not exceeding two hundred rupees. From the above provisions, it is seen that the board and for that matter the respondent Town Committee is empowered to impose within its limits the tax, fee and tolls, or any of them as indicated in the said section. Section 68(1) ( a) to (m) does not provide for levy of entry fee. However, as per the provisions of section 68(1) (n), with the sanction of the State Government the Town Commit tee may impose tax, toll, rate or fee (any other tax). Admittedly in the instant case, the Town Committee has not obtained any sanction and/or has been granted sanction by the State Government. In absence of any such sanction, it would be t otally impermissible for the Town Committee to levy the entry fee questioned in this writ petition. Section 148 of the Act permits the Board as per its decision to use thei r own land or land with building or land purchased, taken on lease or otherwise acquired for the purpose of establishment of a Municipal Market, Bus Stand, Truc k Stand, Taxi Stand etc. It is in respect of the said Municipal Market, the Boar d, may levy rent, tolls and fee. The said provision do not provide for levy of e ntry fee on the vehicles and also parking fee by issuing receipts of entry fee. The decisions on which the learned counsel for the respondent No.4 has p laced reliance i.e Bus Parichalana Samity and Jayanta Kalita (Supra) are not app licable to the instant case. While in Bus Parichalana Samity case, the Municipal Authority collected parking fee on the parking place maintained by the PWD, in Jayanta Kalita, the land was being used as parking place. It was emphasized that the land being used as parking place, must belong to or owned by the Municipal Board or Town Committee.
Decision
In view of the above, the impugned action on the part of the respondent Town Committee is not sustainable in law and accordingly set aside and quashed a nd the writ petition is allowed debarring the respondent Town Committee from lev ying the entry fee.