Indian Kanoon - Search engine for Indian Law

(B) Submissions with regard to Section 386(2) of the GPMC Act being ultra vires to Article 243X of the Constitution of India.

(i) It was submitted that Article 243X of the Constitution of India enables the legislature to make law for authorising Municipality to levy, collect and appropriate taxes and "fees", in accordance with such procedure and subject to such levy as specified in the law. It was submitted that no limits are prescribed in the law viz. GPMC Act for levy of license fees which is contrary to Article 243X of the Constitution of India. It was also pointed-out that "with the sanction of Corporation", as provided under Section 386(2) of the GPMC Act cannot be covered under "such procedure" or "such limits" under Article 243X of the Constitution of India.

(vii) It was therefore, submitted that prior to introduction of Chapter-IXA in the Constitution by 74th Amendment, the law was that the delegation by the Legislature cannot be excessive and unguided and without prescribing limits as held in case of Manek Chowk Spinning and Waiving (supra) and in case of Krishna Mohan (supra).

(viii) It was submitted that Article 243X of the Constitution, thus, recognises the principle of delegation by legislature, which cannot be excessive and unguided or not prescribing limits and obliges the legislature to specify the limits and procedure in the law itself if it makes such law and therefore, in absence of any limits and procedure prescribed in Section 386(2) of the GPMC Act, the same would be ultra vires to Article 243X of the Constitution of India. Reliance was placed on Article 243ZF of the Constitution of India which provides for continuance of existing laws and Municipalities in force in a State immediately before the commencement of the Constitution (seventy-fourth Amendment) Act, 1992 which is inconsistent until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier.

(B) Submissions with regard to the contention that Section 386(2) of the GPMC Act is ultra vires Article 243X of the Constitution of India :-

1. It was submitted that Article 243X of the Constitution of India merely provides for an enabling provision which means that there is no obligation o the part of the State legislature to provide for a statute/ legislative provision as contemplated in Article 243X of the Constitution. Therefore, it is entirely upon the discretion of the State legislature to consider the procedure and the limits and make the law accordingly and pertinently while undertaking the said exercise, it would also be upon to the State to eliminate or modify the levy. In other words, Article 243X of the Constitution merely provides an outline of the scheme for levy and imposition of taxes, fees, etc. to enable the local bodies, like the Municipal Corporation to levy and collect the same and that the said Article neither provides as to which procedure has to be laid down or what limits are to be specified nor does it prescribe any maximum limit.

"9.1 It is submitted by .... that Section 141B of the Gujarat Provincial Municipal Corporations Act, 1949 (GPMC Act) is ultra vires Article 243X of the Constitution of India. ... ... It is submitted that Article 243X provides that the legislature of a State may, by law, authorise the municipality collect and appropriate such taxes, duties, tolls and fees in accordance with such procedure and subject to such limits as per the specified in law. It is submitted that in the case at hand, Section 141B does not provide for such limit; nor does it provide for the rate of tax insofar as the land is concerned....."