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TMI Blog2010 (1) TMI 1110X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 committee limits under the Assam Municipal Act, 1956 (for short referred to as, "the Act") is permissible. Referring to section 68 of the Act in particular, the petitioners have contended that in any view of the matter, there being no sanction of the Government of Assam to exact this specie of levy, the realisation of the entry tax in the manner ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eptember 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 process pertaining thereto are per se without any authority of law and are liable to be adjudged null and void. Referring to the definition of "carriage" made in section 3(3) of the Act which excludes from its purview, any motor vehicle as defined in the Assam Motor Vehicles Taxation Act, 1936, the learned counsel has insisted that no tax under the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 in force, the Act qua the levy holds the sway and the conditions precedent as envisaged in section 68(1)(n) having been duly complied with, the impugnment laid against the same is apparently untenable and thus ought to be negated. In endorsement of this contentions the decision of the apex court in District Council of the Jowai Autonomous District, Jowai v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 thereby. The council in deference to the 2003 Act was vested with legislative, administrative and financial powers in respect of the specified subjects as enumerated in paragraph 3B of the said Schedule. Additional powers to the council to make laws in respect of those subjects were also conferred by the said paragraph. The essentiality of submission of the laws made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould 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/guidelines, etc., of the Government of India and the State Government. This was followed by the notification BTC/IBA/105/2004/406 dated October 25, 2004 also by the same authority conveying thereby the adoption by the council of all the existing Acts /Rules/norms/guidelines of the Government of Assam till it framed its own laws/Acts/Rules in respect of the transferred Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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. As in terms thereof, such regulations could have no effect unless assented to by the Governor in absence of any such consummate legal instrument, in the contextual facts, the impugned settlement cannot be sustained even on the measure of such taxing power of the council. On a totality of the considerations as above, the petition deserves to succeed. Ordered accordingly. The impu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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