9911796707
TMI Blog2010 (1) TMI 1110X X X X Extracts X X X X X X X X Extracts X X X X ..... , Mr. D. Das, standing counsel, Bodoland Territorial Council (for short hereafter referred to as, the Council ), Mr. A. Dasgupta, advocate appearing for the Bijni Town Committee (also referred to as the Committee ) and Mr. M. R. Das, advocate for respondent No. 7. The petitioners have introduced the Bijni Truck Malik Sanstha (petitioner No. 1) as a registered association of the owners of trucks/mini trucks plying within and beyond the Bijni Town located in the district of Chirang in the State of Assam. Petitioner Nos. 2 and 3 are the President and Secretary thereof. They have pleaded that in absence of any lawful authority, the committee by the impugned NIT as above, had invited tenders and settled the process in favour of respondent No. 7. As in consequence thereof, the truck owners of the area within the territorial limits of the committee are compelled to pay entry and exit tax to the settlement holder inspite of repeated representations on their behalf before the authorities of the committee. The petitioners have espoused their common cause by the instant petition. According to them, no tax on the entry and exit of goods carrying commercial vehicle in and out of the commit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tee) in its meeting held on September 1, 2009 resolved to impose the said levy as per the provisions of the Act. Accordingly, tenders were invited by the impugned NIT dated August 28, 2009 and on the completion of the process, respondent No. 7 being selected was allotted the work to collect the imposition from the vehicular traffic for the period September 15, 2009 to March 31, 2010. According to the committee, the tax is valid having been levied in compliance with all legal prescriptions in that regard. In its additional affidavit, the committee has clarified the levy to be in the form of fee as the same is to be applied to repair the roads under its area, which are worn out and in a deplorable condition due to heavy traffic thereon. That the Bijni Town Committee is located within the boundaries of the council to which, under the Sixth Schedule to the Constitution of India, the power relating to the administration of the municipal affairs thereof has been delegated has been underlined as well. Mr. Singh has argued that there being no provision whatsoever in the Act for imposition of tax on the entry or exit of goods carrying vehicles, such a levy as well as the settlement pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o in terms of clause (f) of the office memorandum dated October 16, 2004 is empowered to exercise its executive functions and is also vested with the sanctioning powers of the Government of Assam. He has further apprised this court that the council though meanwhile has framed its rules, the same await the assent of the Governor of the State as required under the Sixth Schedule to the Constitution of India. Mr. Dasgupta in his endeavour to sustain the validity of the settlement impugned has while reiterating that the impost is in the nature of a fee against the services proposed has insisted that the approval conveyed by the letter dated July 21, 2009 (annexure II to the writ petition) of the concerned authority of the council constitutes a valid sanction as contemplated under section 68(1)(n) of the Act. Relying heavily on paragraphs 3B and 8 of the Sixth Schedule to the Constitution of India, the learned counsel has urged that the impost is valid in all respects when viewed in the perspective of the area involved, the constitutional scheme of governance thereof and the avowed object of its utilisation. According to him, as admittedly, as on date no legislation by the council is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 2003 Accord replaced the erstwhile Bodoland Autonomous Council (for short, hereinafter referred to as, the B.A.C. ) with legislative powers in respect of subjects transferred to it and as enumerated therein. The council was also vested with executive, administrative and financial powers in connection therewith. The subjects entrusted to the council by the State of Assam included, panchayat and rural development, urban development-town and country planning, planning and development and municipal corporation. The executive functions of the council in terms of clause 5.10 of the 2003 Act was enjoined to be exercised through its Principal Secretary who would have to be an officer of the rank not below that of the Commissioner/ Secretary to the Government of Assam. The sanctioning powers of the Government of Assam thereby stood vested in the Principal Secretary. The 2003 Act ushered in the Sixth Schedule to the Constitution (Amendment) Act, 2003, which, while creating the autonomous selfgoverning body christened as Bodoland Territorial Council outlined the tribal area as contemplated under paragraph 1 to the Sixth Schedule to the Constitution of India to be administered thereb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kward Classes Department of the State, under the hand of the Principal Secretary to the Government of Assam, W.P.T. and B.C. Department was thus issued engrafting the said norms. These, precepts amongst others reiterated that the executive functions of the council would be exercised through its Principal Secretary and the sanctioning powers of the Government of Assam would stand vested in him. Thereby the council was obligated to ensure that the existing rules, instructions, norms, guidelines, etc., of the Government of India and the State Government governing the implementation of the plan schemes relating to the entrusted subjects/Departments and other matters including non-plan matters relating to those were followed strictly till it (council) framed its own rules for these purposes, in terms of the provisions of the Sixth Schedule to the Constitution of India. Pursuant thereto, by the Office Memorandum BTC/IBA-105/04/405 dated October 22, 2004 issued by the Secretary of the council, it was declared that pending the adoption and adoption of the existing laws and rules of the transferred Departments, the council would implement and pursue the existing Acts/Rules/norms/guidelin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such sanction by it (council), the power, therefor having been unequivocally conferred on its Principal Secretary and no other executive functionary. In view of the determinations as above, the challenge projected against the impugned settlement on the ground of lack of authority has to be upheld. It is, in this premise inessential to dwell on the decisions of the apex court pertaining to the scope and ambit of the power of legislation of the council under the Sixth Schedule to the Constitution of India. The decision of this court in Kolongvelly Bus Santha [1996] 1 GLT 393 also does not call for a dilation amongst others for the reason that the same is without reference to section 68 of the Act. Incidentally, though the power to levy and collect tax as observed hereinabove, has been vested under paragraph 8 of the Sub-Schedule in the District Council for an autonomous District within the area thereof, inter alia, for the maintenance of schools, dispensaries or roads as comprehended in sub-paragraph 4 thereof proclaims in patent terms, the indispensability of some regulations by the District Council in that regard to be compulsorily submitted with the Governor of the State. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
