Vijoy K. Rathor and Others vs Jharipara Grama Panchayat <BR> Hansraj K. Rathor and Another Vs Balugan Grama Panchayat

Mohapatra, J.—Both these O.J.Cs. were beard together as the question involved in both are substantially the same even though the opposite parties in the two cases are different. In O.J.C. 89/59 the opposite party is the Grama Panchayat of village Jharipara represented by the learned Counsel Mr. B.N. Das and in O.J.C. 90/59 the opposite party is Grama Panchayat of Balugan represented by the learned Counsel Mr. R.N. Misra. Both the O.J.Cs. will be governed by this judgment of ours.

The Petitioners are proprietors and partners of Ice Factories established in each of these two villages for the purpose of manufacturing ice. The opposite parties served notices on September 1957 calling upon the Petitioners to pay licence fee of Rs. 225/- for the year 1957-58. The Petitioners protested against these notices as being illegal and invalid as the mandatory provisions of the Orissa Grama Panchayat Act have been contravened. They sought redress by putting in petitions to this Court under Articles 221 and 227 of the Constitution.

The opposite parties have acted manifestly under the provisions of the Grama Panchayat Act, 1948. The relevant part of the Act on the basis of which the notices had been issued are the amending provisions contained in Chapter V-A. The Chapter consists of Sections 49-A to 49-H with the heading "Industries and Factories (including Dangerous and Offensive Trades, Occupation or processes)". Mr. Pal, appearing on behalf of the Petitioners, has taken up the point that the notices for levy of a fee of this nature are invalid and illegal being in contravention of the provisions of the Act, and as such, his clients are entitled to the issue of an appropriate writ under Article 226 of the Constitution. His contention is that the fundamental requisite which will empower the Gram Panchayat for issuing a license and demanding a fee has not been complied with; that is to say, the previous sanction of the Provincial Government has not been obtained by virtue of which alone the Gram Panchayat will be empowered to issue a notice demanding fee. It will be relevant to quote Section 49-A(1):

With the previous sanction of the Provincial Government and notwithstanding anything contained in any other law for the time being in force, a Grama Panchayat may notify that no place within the local area of the (Grama Sasan) shall be used without a license granted by it and except in accordance with the condition specified in such licence, for any or more of the following purposes, namely:

we are here concerned only with items contained in clauses (r) and (w)

x x x x

(r) manufacturing ice or aerated water;

(w) using for any industrial purpose any fuel or machinery;

x x x x.

The Grama Panchayats issued notices under Clause (w) intending levy a fee of Rs. 225/- according to the Horse-power (H.P.) used by the machinery established by the Petitioners for manufacturing ice for industrial purposes. It is clear from Section 49-A(1) that previous sanction of the Provincial Government is essential and mandatory before the Grama Panchayat could proceed to issue a notice demanding a fee and for granting a license for the purpose of using any land for industrial purpose by establishing a machinery. The position is manifest, that there had been no previous sanction obtained. We called upon the opposite parties to produce any record to show if any previous sanction was obtained as provided for in Section 49-A. Mr. B.N. Das was unable to produce and contended that the plea was not available to the Petitioners on the ground that such a plea was not taken in the grounds and in the affidavit. But Mr. Misra very fairly conceded that previous sanction had not been obtained. The plea taken by Mr. Das that such an assertion was not made in the petition filed before this Court is without any substance whatsoever. This is the main ground on the basis of which the Petitioners attack the levy of fee as illegal and this runs throughout the whole petition. In the absence of sanction, in our view, the levy must be regarded to be illegal. We may note, a notification has been produced before us which is dated 8th November 1949 and which runs to the effect:

Government of Orissa.

Local Self Government and Co-operation Department.

The 8th November, 1949.

No. 1263 L.S.G. In pursuance of Section 49-G of the Orissa Grama Panchayat Act, 1948 (Orissa Act XV of 1948), the Governor of Orissa is pleased to fix the amounts noted in column 3 of the Table below as the maximum licence fee leviable per annum by Grama Panchayats on trades and industries noted against each in column 2 of the said Table and to direct that the Grama Panchayats may vary the rates within the said maximum according to the local conditions and the nature and size of the trade and industry.

Table

x x x x

This notification clarifies that it is the reference to the provisions of Section 49-G for fixing the maximum of the fee. By no stretch of imagination it can be construed as granting a sanction to the Grama Panchayats for granting licence of a particular area as provided u/s 49-G. Mr. Das, however, contends that this levy is u/s 49-G. and we may safely ignore the sanction required u/s 49-A. Section 49-G runs as follows:

The Grama Panchayat may, subject to such maximum as may be determined by the Provincial Government by notification in that behalf, levy a fee in respect of any licence or permission under this chapter and the renewal thereof and may impose such conditions and restrictions on such licence as it may think necessary.

This appears to be only at a subsequent stage after the Gram a Panchayat has obtained power in accordance with the provisions of Section 49-A to issue a licence. Section 49-G. can in no event be read independent of Section 49-A, it must be read subject to the provisions of Section 49-A. In the absence of this essential requisite, in our view, the levy and the notices must be declared as invalid and illegal.

The O.J.C. petitions are, therefore, allowed. Writs to be issued quashing the demand notices dated 20th August 1957 and 9th September 1957 upon the Petitioners by the opposite parties. Be it declared that the levy imposed by the Grama Panchayats of villages Jharipara and Balugan is illegal, invalid and inoperative. As Mr. Misra in O.J.C. 90/59 very fairly conceded that there had been no sanction obtained previously, we are inclined to pass orders that the parties are to bear their own costs of these petitions.

Barman, J.

I agree.