Atlas Realtors and Etc. Vs. the Margao Municipal Council and anr. - Court Judgment

Excerpt:
civil - public notice - sections 37, 307, 307 (3), 308, 323 and 323 (2) of goa municipalities act, 1969 - petitioners sought permission from respondent no. 1 to construct building - licence was granted with one year validity but if renewal applied before expiry 25% more fees to be paid for renewal - extension of licence asked before expiry no orders passed on application - public notice passed under model building byelaws and regulations providing increase in fees of renewal - petitioners contended that they were liable to pay only 25 % more as scheduled fees - public notice came dated 09.11.1991 and byelaws came into force with effect from 16.09.1991 - since schedule of fees is a part of byelaws so schedule also came to force on 16.09.1991 - since these byelaws and regulations are model byelaws framed by government and published in official gazette so order of director of municipal administration is within powers - illegality is only regarding inclusion of schedule of fees by public notice - petition partly allowed and public notice is quashed as illegal and void but schedule of fees extended according to model byelaws. - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - 1. 10. so far as the powers of the director of municipal administration are concerned, there cannot be any dispute that sub-section (3) of section 308 of the said act gives him powers to act in a particular manner, that is on his being satisfied that the byelaws of the council on any matter are inadequate, if he comes to that conclusion and if model byelaws are made by the government on such matter, he can issue suitable directions to the municipal councils to adopt such byelaws and such direction has to be complied with within two months. 12. on the other hand, the contention of the municipal council is that even though the model byelaws framed by the government did not have a schedule of fees, the municipal council was bound to comply with the directions given by the director of municipal administration upon section 308 (3) of the said act, because failure of the council in that regard would have entitled the director to take action under sub-section (5) of section 308 of the said act, against the council. this position clearly shows that the schedule of fees or the rate of fees which the municipal council has charged has to be with respect to the provisions of the byelaws.deshpande, j.1. these two petitions raise a common question of -law and the advocates appearing in the petitions are also the same and made similar arguments in both the matters. therefore, we are deciding both these petitions by this common judgment.2. the reliefs sought for in writ petition no. 404/93 are for a declaration that the public notice dated 9th september, 1981 with the order of the director of municipal administration dated 5th april, 1990 and letter dated 5th september, 1991, (annexure p. 2 colly.) are ultra vires, without jurisdiction, illegal and void and consequently, reliefs in the form of prayers (b), (c) and (d), which are for the purpose of direction to respondent no. 1 for quashing the demand of licence fee of rs. 29,420/- and for refund of rs. 28,520/- along with interest, etc.3. so far as writ petition no. 203/95 is concerned, the relief is in respect of the said same public notice dated 9th september, 1981 with the order of the director of municipal administration dated 5th april, 1990 and letter dated 6th september, 1991. the other relief is for quashing the demand of rs. 73,723/- made by the respondent no. 1.4. since the main challenge in both the petitions is common, we are reproducing the facts in writ petition no. 404/93 for properly appreciating the submissions in both the petitions.5. it is the case of the petitioners in writ petition no. 404/93, that they sought permission of the respondent no. 1 to construct a building. the same was granted and licence dated 12th july, 1990, was issued to the petitioners and they were required to pay the requisite fee of rs. 3,678/-. the licence was valid for one year, but if renewal was applied for before the expiry, 25% more fees would have to be paid, otherwise renewal at 50%. petitioners sought extension of the licence as the construction was not completed. it was before the expiry of the period. however, for quite a long time, no orders were passed on this application for extension. in the meantime, a public notice dated 9th september, 1991, was published and people at large were informed that in compliance with the orders of the respondent no. 2 dated 5th april, 1990 and 6th september, 1991, the respondent no. 1 had adopted model building byelaws and regulations 1987, framed by the government of goa with modifications mentioned in the notice. the byelaws were to come into force from 16th september, 1991 and one of the modifications set out in the model building byelaws was addition of a schedule of fees for various works. after this notifications, the petitioners were informed by the chief officer of the respondent no. 1 that the renewal application of the petitioners was allowed, but the petitioners were directed to remit an amount of rs. 29,420/- towards renewal fees. this demand was opposed by the petitioners on the ground that they had applied for renewal of licence before the expiry and they were liable to pay 25% of the licence fees, i.e. rs. 920/- towards renewal charges. there was further correspondence between the petitioners and respondent no. 1, but no reply by the respondent no. 1 and, therefore this petition.6. the main contention of the petitioners is, as argued by their learned advocate that the model building byelaws of respondent no. 1 which were in existence since 1980 contain a schedule of fees which the director of municipal administration had no power to change, particularly when in the model byelaws published by the government on 15th april. 1988, there was no schedule of fees. therefore, according to the learned counsel for the petitioners, firstly, since the model building byelaws regarding schedule of fees were in existence in 1988, there was no need or necessity to change them. secondly, the director of municipal administration had no power to direct the council to adopt the model building byelaws and regulations in supersession of the earlier byelaws in force. thirdly, even if it is accepted for the sake of argument, that the director of municipal administration had such a power, since the model building bye-laws published by the state did not contain a schedule of fees, the municipal council could not have prescribed a schedule of fees without following the procedure provided by law.7. learned counsel for the petitioners contended that section 323 of the goa municipalities act, 1968 (hereinafter refered to as 'the said act'), had specifically provided that for every such licence, fees shall be charged at such rates as shall, from time-to-time, be specified in the respective provisions of the byelaws relating to the grant of such licence. this is in sub-section (2)(a) of section 323 of the said act. therefore, according to the learned counsel for the petitioners, the licence fee is a subject matter to be covered by the byelaws of the municipality. section 307 of the said act was pressed into service in this connection by the learned counsel for the petitioners and it was contended that this section gives power to the council to make byelaws and it also lays down a specific procedure which requires:--(a) there shall be a resolution passed at a special meeting to approve draft of such byelaws;(b) after the draft is approved, the same shall be put on us notice board and published in the local newspapers as soon as may be possible after the resolution is passed inviting objections and suggestions from the inhabitants within a reasonable period to be specified in such notice;(c) the council shall at a special meeting, consider the objections and suggestions and shall, by resolution, approve the final draft of the byelaws;(d) thereafter, within seven days, the final draft shall be sent to the director; and(e) the director shall examine the draft and may refuse to sanction them, for reasons specified in sub-section (3) of section 307, or sanction them with or without modification. thereafter, the director of municipal administration' shall publish the byelaws in the official gazette and the byelaws so published shall take effect from the date of publication in the official gazette, or from such other subsequent date, as may be mentioned therein.8. learned counsel for the petitioners in support of his contention also relied upon section 308 of the said act, which gives the government power to make and enforce acceptance of model byelaws. this section provides, as per sub-section (1) :(1) the government may make model byelaws on all, or any of the matters in respect of which the council is empowered to make the byelaws and publish them in the official gazette for the guidance of the council;(2) if a council has not made byelaws onany matter for which model byelaws are made by the government, the council may adopt the model byelaws with such minimum changes as the circumstances require;(3) if at any time it appears to the director that the byelaws made by the council on any matter are inadequate, to regulate such matters and the model byelaws have been made by the government for such matters, the director may, by an order in this behalf, require the council to adopt such model byelaws modified to suit local conditions; and(4) the council shall comply with the orders of the director under sub-section (3) within two months from the date of such order.9. in the instant case, it was pointed out by the learned counsel for the respondents that though model byelaws of 1980 were in force insofar as respondent no. 1 is concerned, the director. in exercise of his powers under sub-section (3) of section 308 of the said act, found that the byelaws of respondent no. 1, municipal council were inadequate to regulate the matters relating to licences and fees and, therefore, under these powers the director gave directions to the municipal council to adopt the model byelaws framed by the government and since this was done by the director pursuant to the statutory powers conferred upon him, there was no illegality on the part of the director in passing such an order and seeking its compliance from the respondent no. 1.10. so far as the powers of the director of municipal administration are concerned, there cannot be any dispute that sub-section (3) of section 308 of the said act gives him powers to act in a particular manner, that is on his being satisfied that the byelaws of the council on any matter are inadequate, if he comes to that conclusion and if model byelaws are made by the government on such matter, he can issue suitable directions to the municipal councils to adopt such byelaws and such direction has to be complied with within two months.11. however, the crucial question that is raised before us by the counsel for the petitioners is that the power conferred on the director of municipal administration under sub-section (3) of section 308 of the said act. is extraordinary in nature, because the municipal council has already been given power under section 307 to make necessary byelaws or to make amendment to the existing byelaws.12. on the other hand, the contention of the municipal council is that even though the model byelaws framed by the government did not have a schedule of fees, the municipal council was bound to comply with the directions given by the director of municipal administration upon section 308 (3) of the said act, because failure of the council in that regard would have entitled the director to take action under sub-section (5) of section 308 of the said act, against the council. secondly, it was contended that since the impugned order superseded the existing byelaws, then the byelaws of 1980 automatically came to an end or that they were no more in existence and, therefore. it was within the competence of the municipal council to adopt the model byelaws and add thereto the schedule of fees, which was within the power of the municipal council under section 323 of the said act.13. so far as the powers of the director of municipal administration are concerned under section 308 of the said act, there can be no dispute that the government is competent and empowered to make model byelaws on all or any of the matters in respect of a council and, in addition, if the director of municipal administration finds that the byelaws made by the council on any matter are inadequate to regulate that matter and model byelaws of the government do make provisions, then the director can ask or call the municipal council to adopt such model byelaws.14. however, the crucial question is of the schedule of fees which the municipal council has tried to impose and enforce. admittedly, the model byelaws framed by the government and which were sought to be implemented by the director of municipal administration by asking the council to adopt the same did not provide for schedule of fees. section 323 of the said act lays down that there shall be charged a fee for every licence at such rate as shall, from time-to-time, be specified in the respective provision of the byelaws relating to the grant of such licence, as per section 323(2) of the said act. this position clearly shows that the schedule of fees or the rate of fees which the municipal council has charged has to be with respect to the provisions of the byelaws. in other words, there has to be a direct connection between the byelaws and the schedule of fees, or that there has to be a provision in the byelaws for a schedule of fees and schedule of fees are required to be part and parcel of the byelaws.15. no doubt that the model byelaws framed by the government were published in the official gazette, but so far as the schedule of fees is concerned, the same did not form part of the model byelaws and. therefore. if the municipal council wanted to add the schedule of fees to the model byelaws, then it was obligatory on the municipal council to adopt the procedure laid down in section 307 of the said act.16. the object of laying down the procedure under section 307 of the said act is to give an opportunity to the persons affected or likely to be affected by the said byelaws and the schedule of fees, to make a representation and raise their objections and/or give suggestions to the council. levying of fees is no doubt a right of the council, but the procedure prescribed under section 307 of the said act cannot be given a go-by by the municipal council because imposition of fee is likely and bound to affect those who want certain licences from the municipal council. they may have objection about the competence of the municipal council to charge a particular fee or they may have objection to the quantum of fees that is sought to be enforced by the municipal council and, therefore, so far as the schedule of fees which is now sought to be implemented by the municipal council is concerned, no opportunity was given to the members of the public to raise objections or give suggestions as prescribed under section 307 of the said act.17. therefore, eventhough it is accepted for the sake of argument, that the municipal was under legal obligation to adopt the model byelaws as provided in section 308 of the said act. it should have followed the procedure as required under section 308 of the said act, so far as the schedule of fees is concerned. admittedly, the same has not been done in the instant case.18. it is true that the earlier byelaws came to be superseded by the model byelaws, but the schedule of fees or the feesto be charged by the municipal council are required to be prescribed with reference to the respective provisions of the byelaws, as per section 323 sub-section (2)(a) and, therefore, adoption of the model dyelaws by the municipal council did not exonerate the municipal council from following, the procedure under section 307 of the said act and since there is nothing on record to show that the schedule of fees is in respect of the provisions of the byelaws. the contention of the petitioners in that regard has to be accepted and the submissions on behalf of the council are required to be rejected.19. the public notice dated 9th september, 1991, is a part of annexure p. 2 colly., which on record at page 19 of writ petition no. 404/93. it is to the following effect, namely :--'notice is hereby given that in compliance with the order no. 10/89-80 -dma/51 dated 5-4-1990 and no. 10/89/83-dma/2317 dated 6-9-1991 issued by the director of municipal administration, government of goa, the margao municipal council has adopted the model building bye-laws and regulations, 1987 framed by the government of goa vide notification no. 3-12-82--lawd (part) dated 27-1-1988 duly published in the official gazette, series i, no. 2, dated 15-4-89, with the following modifications. the byelaws shall come into force with effect from 16th september, 1991.'20. it will be clear from the above that the public notice dated 9th september, 1991, and the byelaws were to come into force with effect from 16th september, 1991 and since the schedule of fees is a part of the byelaws, the schedule has also to come into force with effect from 16th september, 1991. that is within seven days of the said public notice, the schedule of fees was to be made applicable. section 307 sub-section (3)(b) of the said act requires the municipal council to give reasonable period in their public notice or notice published in the local newspaper, for the purpose of inviting objections and suggestions and by no stretch of imagination it can be said that the period of seven days granted in the public notice, particularly for the schedule of fees to come into force, is a reasonable period. further, there is no call given to the public at large to file their objections or suggestions to the byelaws or the schedule of fees. admittedly and obviously therefore, there is no opportunity to the public to raise their objections pursuant to the right conferred upon them under section 307 (3)(b) of the said act. though, therefore, the model byelaws of the state government were published in the official gazette, the schedule of fees was not so published at any time earlier and it was directly included and enforced or sought to be enforced by public notice dated 9th september, 1991, from 16th september, 1991.21. it is true that the municipal council was bound to adopt the model byelaws as per the direction of the director of municipal administration, but so far as the schedule of fees is concerned, since it was going to affect the public at large and make them liable to pay more than what they were paying earlier under the old byelaws, it was all the more necessary for the municipal council to follow the procedure under section 307 (3)(b) of the said act. supersession of the earlier byelaws or the opinion of the director of municipal administration that the byelaws already framed were not adequate to suit the present local condition may, pave way for the new model byelaws to come into force, as per the order of the director of municipal administration, but the schedule of fees being a separate subject coming in the provisions of section 323 read with section 307 of the said act, inclusion of the same in the byelaws without following the procedure under section 307 of the said act cannot be said to be legal.22. as a result, these petitions are required to be partly allowed. the public notice dated 9th september, 1991, has to be set aside and the order of the director of municipal administration dated 5th april, 1990 and letter dated 6th september. 1991 are not required to be quashed or set aside, because what is ordered by the order dated 5th april, 1990 by the director of municipal administration is that the municipal councils, including respondent no. 1, have been ordered to adopt the said byelaws and regulations in supersession of the byelaws, if any, in force. these byelaws and regulations are the model byelaws framed by the government and published in the official gazette. series 1 no. 2 dated 15th april, 1988. this order of the director of municipal administration is within his powers, so also the letter dated 6th september, 1991. we do not find any illegality in this direction, or in the order, or the letter. however, what is illegal is the inclusion of the schedule of fees by public notice dated 9th september, 1991 and to clarify, we hold that the illegality in that regard is in not following the procedure laid down in section 307 of the said act, insofar as the schedule of fees is concerned. i.e. inviting public objections, etc. therefore, looking to the circumstances of the case, we pass the following order:--writ petition no. 494/93 : the writ petition is partly allowed so far as prayer (a) is concerned. the public notice dated 9th september, 1991. is quashed as illegal and void. consequently, prayer (b) is also required to be allowed fully. the demand for rupees 29,420/- for the renewal of the licence is quashed. the municipal council is directed to accept the renewal fee of rs. 920/- of the petitioners and to renew the petitioners' licence accordingly. the prayer (bb) also allowed. the municipal council is further directed to refund the amount of rupees 28,520/- and also further sum of rs. 41,371/-, within six weeks from the dte of this order. we are, however, not inclined to grant any interest. in the circumstances, there shall be no order as to costs.writ petition no. 203/95 : the writ petition is partly allowed so far as prayer (a) is concerned. the public notice dated 9th september, 1991, is quashed as illegal and void. consequently, prayer (b) is also required to be allowed fully. the demand for rs. 73,723/ - for renewal of the licence is quashed. the margao municipal council is directed to charge renewal fees in accordance with the margao municipal council (building byelaws and regulations) 1979. in the circumstances, there shall be, no order as to costs.