N.V. Balasubramanian, J.
1. These two writ appeals, W.A. Nos. 1672 of 1999 and 1887 of 1999 are preferred against the common order dated 12.8.1999 made in W.P. Nos. 13236 and 13237 of 1999 respectively. The writ petitioner is the appellant and the respondents in the writ petitions are the respondents in the appeals.
2. The writ petition, W.P.No.13237 of 1999 was filed by the appellant/petitioner Association to quash the G.O.Ms.No.109, dated 31.3.1994 and the other writ petition W.P.No.13236 of 1999 was filed for the issue of writ of Mandamus directing the respondents not to recover any amount from the salary of employees of Golden Rock Workshop and other staff working in Railway Colony area towards profession tax from the month of August, 1999 onwards. The facts are common and the learned Judge also dealt with both the writ petitions together.
3. The writ petition, W.P.No.13237 of 1999 was filed challenging the Government Order, G.O.Ms.No.109, dated 31.3.1994 including the Golden Rock Municipality within the limits of Tiruchirappalli Municipality with a view to form Tiruchirappalli Corporation. It is stated that the G.O. has been passed without issuing a show-cause notice to the residents of the area. The main ground of challenge against the G.O. is that G.O. Press No.5131 dated 3.12.1926 was issued by the Government of Madras wherein under the provisions of sub-section (1) of section 5 of the Madras Local Boards Act, 1920 (now known as 'the Madras District Boards Act, 1020') the Golden Rock Colony and the Railway Workshop of the South Indian Railway Administration at Tiruchirappalli were excluded from the jurisdiction of District and Taluk Boards of Tiruchirappalli with the power given to the Railway Administration to administer the area subject to the condition that the local Government shall have the power to inspect the accounts and the Railway Administration shall pay annually a sum of Rs.22 and Rs.78 to the Tiruchirappalli District Board and the Tiruchirappalli Taluk Board respectively as compensation for the loss of the income derived by the Boards from the said area. It is the case of the appellant Association that the Government excluded the Golden Rock Colony and the Railway Workshop of the south Indian Railway Administration, Tiruchirappalli from the jurisdiction of District and Taluk Boards of Tiruchirappalli and the said notification has not been cancelled or repealed by any enactment and therefore it is not open to the Government to include the area, namely, Golden Rock Colony and the Railway workshop within the limits of Tiruchirappalli Municipality without cancelling the G.O. Press No.5131, dated 3.12.1926. It is stated that the Golden Rock Colony is a self-contained administrative unit managed by the Indian Railways and therefore Tiruchirappalli Municipality has no administrative control over the area. Hence, the writ petition was filed to quash the G.O.Ms. No.109, dated 31.3.1994. Consequently, the other writ petition, W.P.No.13236 of 1999 was filed to forbear the Tiruchirappalli Corporation from levying profession tax from the members of the petitioner Association.
4. Learned Judge considered and dismissed both the writ petitions. Though the learned Judge felt that there was some delay in approaching the Court, he went into the matter on merits of the case as well and held that only after giving opportunity to the residents, the Golden Rock Colony was brought within the limits of Tiruchirappalli Municipality. Learned Judge further held that once the area forms part of Tiruchirappalli Corporation, the Corporation is justified in levying profession tax. In this view of the matter, the learned Judge dismissed both the writ petitions.
5. The main submission of Mrs. Chitra Sampath, learned counsel for the appellant/petitioner is that the Golden Rock Colony and the Railway Workshop of South Indian Railway Administration, Tiruchirappalli are still under the control of Indian Railways Administration by virtue of the notification issued under sub-section(1) of section 5 of the Madras Local Boards Act, 1920. Learned counsel submitted that a Colony Committee has been constituted with an elected body and it functions under the control of Indian Railways to administer the area in question. Learned counsel submitted that the administration of the local area has not been handed over to the Tiruchirappalli Municipality and the area, namely, Golden Rock Colony and the Railway Workshop cannot form part of the area falling within the limits of Tiruchirappalli Municipality and under the guise of notification dated 31.3.1994 it is not open to the Tiruchirappalli Municipality, which later became a Corporation, to include the Golden Rock Colony and the Railway Workshop within the limits of Tiruchirappalli Municipality and levy profession tax on the members of the appellant Association. Her main submission is that the notification dated 3.12.1926 issued under the Madras Local Boards Act, 1920 still remains in force and unless the notification is cancelled in a manner known to law, it is impermissible for the State Government to include the Golden Rock Colony and the Railway Workshop as part of Tiruchirappalli Municipality which later became Tiruchirappalli Corporation.
6. Mr. P. Srinivas, learned counsel for the second respondent herein submitted that the Government Order has been issued under the provisions of the Tamil Nadu District Municipalities Act, 1920 after hearing objections of the residents and the Government has the power to include the area in question within the limits of Tiruchirappalli Municipality. Learned counsel also submitted that section 5 of the Madras Local Boards Act, 1920 has been repealed and hence, the notification issued under section 5 of the said Act ceases to have the effect. Learned counsel further submitted that it is always open to the Government to include an area as a part of Municipality and it has been done legally under the G.O.Ms.No.109, dated 31.3.1994. Learned counsel therefore submitted that it is a part of Tiruchirappalli Municipality and hence, the Tiruchirappalli Municipality was justified in levying profession tax on the members of the appellant Association. Learned counsel appearing for the first respondent also supported the stand of the second respondent.
7. Mr. Sureshkumar, learned counsel appearing for the third respondent referred to the counter affidavit filed on behalf of the third respondent and submitted that in the Golden Rock Colony, the Railway Department is maintaining the civil amenities such as water supply and drainage, electricity, education, road maintenance, hospital facilities, etc. with the revenue of the Railway Ministry and the Golden Rock Colony is being administered by the President, Colony Committee with an elected body of colony Committee members as that of a local body and the basic amenities have been provided by the Railway Administration itself. He therefore submitted that without cancelling the G.O. Press No.5131, dated 3.12.1926, the Golden Rock Colony and the Railway Workshop cannot be included as part of Tiruchirappalli Municipality by way of G.O.Ms.No.109 dated 31.3.1994.
8. We have carefully considered the submissions of Mrs. Chitra Sampath, learned counsel for the appellant, Mr. P. Srinivas, learned counsel appearing for the second respondent, learned Government Pleader appearing for the first respondent and Mr. Sureshkumar, learned counsel appearing for the third respondent.
9. The Madras District Boards Act, 1920 was enacted to consolidate and amend the law relating to district boards and the word 'district' has been defined in section 3(7) of the said Act to mean the revenue district referred to in sub section (1) of section 3-A or the local area constituted into a district under sub-section (2) of that section as altered by the notifications, if any, issued under sub-section (3) of the same section. The expression, 'district board' is defined in section 3(7-A) of the Madras District Boards Act to mean the body constituted for the local administration of a district under sub-section(1) of section 6. The expression, 'local authority' is defined in section 3(10-B) to include a cantonment authority. The notification under G.O. Press No. 5131, dated 3.12.1926 was issued under sub-section (1) of section 5 of the Madras Local Boards Act, 1920 and there is no dispute that the areas, Golden Rock Colony and the Railway Workshop were excluded from the jurisdiction of Tiruchirappalli District Board and Tiruchirappalli Taluk Board for administrative purposes subject to the conditions that the local Government shall have the right of inspection of the accounts kept and the services provided in the said area by the South Indian Railway Administration and that the local Government retained the power to cancel the notification. In the notification there is an obligation cast on the Railway Administration to pay annually a sum of Rs. 22/- and Rs.78 to the Tiruchirappalli District Board and the Tiruchirappalli Taluk Board respectively as compensation for the loss of income derived by the Boards from the said area.
10. Section 5 of the Madras Local Boards Act, 1920 was amended by the Madras Village Panchayats Act, 1950 (Act X of 1950). Section 136 of the Act X of 1950 provides that the Madras Local Boards Act, 1920 shall be amended in the manner setforth in Schedule IV to the said Act, and under the schedule-IV to the said Act, section 5 of the Madras Local Boards Act was omitted. It is not a case of repeal, but it is a case of omission of section 5 of the Madras Local Boards Act, 1920 by the Act X of 1950. Schedule III to the Act X of 1950 deals with the transitional provisions and it provides that any action under the old Act shall remain unless and until it is superseded by the action by such authority whether it be the same as the authority competent to take such action under the old Act or not. Even assuming that the notification issued under section 5 of the Madras Local Boards Act continues even after the omission of section 5 of the said Act by the Act X of 1950, schedule III to the Act X of 1950 clearly provides that it is permissible to supersede the action taken under the said Act by such an authority competent to take such an action.
11. We are now concerned with the provisions of the Tamil Nadu District Municipalities Act, 1920 and section 4 of the said Act provides for the creation and abolition of municipalities and the Governor is empowered, having regard to the population, density, revenue and the economic importance of the area, to issue notification including within a municipality any local area in the vicinity thereof as defined in the notification issued for that purpose. The power of the Governor to include within the municipality any local area in the vicinity of the municipality is derived from section 4 of the Tamil Nadu District Municipalities Act, 1920 and the only exception is the cantonment area as the proviso to section 4 provides that no cantonment shall be included within a municipality. Even assuming for argument sake that the notification issued under section 5 of the Local Boards Act is still in force, the Governor under section 4 of the District Municipalities Act has the power to include the Golden Rock Colony and the Railway Workshop within the Tiruchirappalli Municipality notwithstanding the exclusion granted in the notification issued earlier. Sub-section (5) of section 4 of the Tamil Nadu District Municipalities Act, 1920 also provides that if any local area in which the madras Local Boards Act, 1920 is in force is constituted or identified in a municipality, the State Government is empowered to pass such orders to transfer the said local area to the council of such municipality or disposal of the assets or institutions of any local board in the said local area.
12. The notification issued in G.O.Ms.No.109, dated 31.3.1994 shows that the Government after hearing the objections and suggestions of the inhabitants of the local area against the inclusion of the local area within the limits of Tiruchirappalli Municipality has included the Golden Rock Colony and the Railway Workshop as part of the Tiruchirappalli Municipality with a view to form Tiruchirappalli Corporation and a separate Ward No.32 was also given to the Golden Rock Colony. Clause-6 of the said notification also provides for the transfer of assets and liabilities of the local body in favour of the Commissioner of Tiruchirappalli Municipality. The submission of Mrs. Chitra Sampath is that the assets and liabilities of the Railway jurisdiction have not been transferred and they continued to be with the Railway administration and therefore the notification in G.O.Ms.No.109 dated 31.3.11994 has not come into force. We are unable to accept the submission of learned counsel for the appellant for the reason that once the notification has been issued under section 4 of the Tamil Nadu District Municipalities Act, then that particular local area within the vicinity of the Municipality shall form part of the Municipality and clause-6 of the notification empowers the State Government to pass orders for the transfer of assets and liabilities of the local body to the Municipality. Further, we are also of the view that notwithstanding the fact that the administration of Railway Colony in Golden Rock area is with the Railway Administration, there is nothing in the District Municipalities Act which precludes the Governor from not including any such area as part of the Municipality or to exclude any such area from not forming part of the municipal area as the Railway Authorities have the limited administrative control over the Railway Colony in Golden Rock area for the purposes of District Boards Act. In other words, he has the wide power to include a local area in the vicinity of a Municipality as part of the Municipality and his powers are not curtailed by the notification issued earlier under the District Boards Act.
13. Mrs. Chitra Sampath, learned counsel for the appellant submitted that the Railway Administration has not transferred the properties pertaining to the Golden Rock Colony and the Railway Workshop to the Municipality. In so far the properties belonging to the Railway Administration are concerned, we are of the view that it is not necessary to consider the question whether the assets and other properties belonging to the Railway Administration in the Golden Rock Railway Workshop area have been transferred to the Tiruchirappalli Corporation or not as the Corporation has recognised that there are properties of the Railway Administration exempt from the levy of property-tax in view of Article 285 of the Constitution of India as they are the properties belonging to the Union Government. We therefore hold that the G.O.Ms.No.109 was issued validly notwithstanding the exemption earlier granted which is also limited only to the administration of the Golden Rock Colony and the Railway Workshop area. We hold that once the Golden Rock Colony and the Railway Workshop area form part of Tiruchirappalli Municipality, the second respondent is well within its power to levy profession tax under the provisions of the Tamil Nadu Tax on Professions, Trades, Callings and Employments Act, 1992 (hereinafter referred to as 'the Profession Tax Act'). We hold that the members of the appellant Association are employees within the meaning of section 2(2) of the Profession Tax Act. Section 3 of the Profession Tax Act provides for the levy and collection of profession tax by every local authority.
14. Mrs. Chitra Sampath, learned counsel for the appellants referred to sub-section (4) of section 3 of the Profession Tax Act, but the sub-section has no application to the facts of the case as there is nothing to show that the Railway Administration has levied profession tax and the members of the appellant Association are liable to pay only the difference amount between the sum levied by the Railway Administration and the tax to be paid under the Profession Tax Act. Hence, the sub-section (4) of section 3 of the Profession Tax Act has no application to the facts of the case as well.
15. Mr. P. Srinivas, learned counsel for the second respondent referred to the provisions of the Profession Tax Act and the Rules framed thereunder. He also referred to the returns and the payment of tax by the employees. We are of the view that once the Golden Rock colony and the Railway Workshop form part of Tiruchirappalli Municipality which later became Tiruchirappalli Corporation, the members of the appellant Association are liable to be assessed to profession tax under the provisions of Profession Tax Act and the Rules framed thereunder. Though the learned Judge referred to the question of delay and laches on the part of the appellant in approaching the Court challenging the notification, we are not going into the question of delay as we have decided the matter on merits of the case. We find that there is no error in the view entertained by the learned Judge in holding that the area, namely, Golden Rock colony and Railway Workshop is part of Tiruchirappalli Municipality as the said area was validly brought within the limits of Tiruchirappalli Municipality which later became the Tiruchirappalli Corporation and the second respondent was justified in levying profession tax on the members of the appellant Association. We do not find any justifiable reason to interfere with the view entertained by the learned Judge. Accordingly, both the appeals stand dismissed. However, in the circumstances, there will be no order as to costs. Connected C.M.P.No.16253 of 1999 is closed.