Appeal No 435 of 1970
Appeal by special leave from the judgment and order dated March 28 1969 of the Assam and Nagaland High Court in Civil Rule No 183 of 1965
932 Naunit Lal for the appellant
M C Chagla P K Goswami and R Gopalakrishnanfor the respondent
B Datta for the intervener
The Judgment of the Court was delivered by Shah J
The Assam Tea Company Ltd ownsteagardens in the village of Nazira in the State of Assam
By a notification dated June 16 1909 the Government of Bengal which then had territorial jurisdiction over the territory now within the State of Assam constituted a Town Committee at Nazira adjacent to the tea garden of the Company
In 1923 the Legislature enacted the Assam Municipal Act 1 of 1923
Section 328 of the Act provided for the constitution of notified areas
By sub section
1 of section 328 the Provincial Government was authorised by notification to signify its intention to declare that with respect to some or all of the matters upon which a municipal fund may be expended improved arrangements are required within a specified area
After issuing such a notification the Government was competent after six weeks from the date of Publication and after considering the objections if any to declare by notification
 the specified area or any portion thereof to be a notified area
Section 4 of the Act authorised the Provincial Government by notification inter alia to signify its intention to include within a municipality any local area in the vicinity of the same or exclude from a municipality any local area comprised therein
Any inhabitant of any part of a local area defined in a notification published under section 4 was entitled by virtue of section 5 to raise objections to the proposed action
The Government would after considering the objections inter alia include the local area or any part thereof within the municipality or exclude it therefrom
The provisions of sections 4 and 5 were not of their own force applicable to a notified area constituted under section 328 but by virtue of cl
d of sub section
1 of section 330 it was competent to the Provincial Government to extend to any notified area the provisions of any section of the Act
By sub section
3 of section 330 it was provided  For the purposes of any section of this Act which may be extended to a notified area the town committee constituted for such area under section 329
shall be deemed to be a Municipal Board under this Act and the area to be a municipality
 Notifications were issued from time to time applying certain provisions of the Assam Municipal Act 1923
In 1951 the Government of the State of Assam issued a notification applying sections 41 933 b c and 51 _2 b of the Assam Municipal Act 1923 to the notified area committee including the Nazira Town Committee
But no notification under section 328 of the Assam Municipal Act 1923 extending the boundaries of the Nazira Town Committee area was issued
In 1957 the Assam Municipal Act 1923 was repealed and was replaced by the Assam Municipal Act 15 of 1957
On January 6 1964 notification was issued under section 4 1 b of Act 15 of 1957 to revise the boundaries of the notified area at Nazira and thereby included a part of the tea estate belonging to the Assam Tea Co Ltd in the Nazira Town Committee area
Objections submitted by the Assam Tea Company Ltd were considered and overruled and the Government of Assam by notification dated September 30 1964 incorporated within the Nazira Town Committee area a part of the area of the tea garden belonging to the Company
The Company then filed a petition in the High Court of Assam challenging the validity of the notification
The High Court was of the view that the Company had provided all amenities and facilities which a municipality may provide and since it did not appear that any improved arrangements could be provided by the Town Committee the notification issued by the Government was colourable legislation and was liable to be struck down insofar as it related to the area of the tea estate belonging to the Company
We have considered in appeal No 2052 of 1969 State of Assam vs The Amalgamated Tea Estates Co Ltd  Orsthe correctness of this decision and we have rejected it
But Mr Chagla appearing on behalf of the Company contended that the notification dated January 6 1964 signifying the intention of the State Government to include the area belonging to the Company with in the Nazira Town Committee and the final notification dated September 30 1964 were unauthorised because the provisions of sections 4 and 5 of the Assam Municipal Act 15 of 1957 were not extended to the Nazira Town Committee by notification issued under sub section
3 of section 336 of the Assam Municipal Act
Counsel invited our attention to section 2 of the Assam Municipal Act 15 of 1957 as originally enacted
By section 2 of that Act the Assam Municipal Act 1923 was repealed and by cl
b of the proviso to that section it was provided  all municipalities constituted limits defined
regulations and divisions made licenses an notices issued taxes tolls rates and fees imposed or assessed budgets passed assessments made plans approved permissions or sanctions granted under the Assam Municipal Act 1923 shall so far as they are in force at the commencement of this Act be deemed to have been respectively constituted defined issued imposed assessed passed made approved or granted under this Act and shall 934 remain in force for the period if any for which they were so constituted defined issued imposed assessed passed made approved or granted
 Counsel said that under the proviso notifications issued under the Act of 1923 were not saved and it was for the first time by the Amending Act of 1958 that the notifications issued under the Act of 1923 were sought to be saved notwithstanding the repeal of the Assam Municipal Act of 1923
But no retrospective operation was given to the Amending Act of 1958
Counsel submitted that this attempt on the part of the Legislature to save notifications issued under the Act of 1923 was ineffective
It is true that for the existing cl
b of the proviso to section 2 by the new clause substituted all municipalities constituted limits defined regulations and divisions made all rules and bye laws notifications orders appointments and assessments made licences and notices issued taxes tolls rates and fees imposed or assessed budgets passed plans approved permissions or sanctions granted contracts entered into suits instituted and proceedings taken under the Assam Municipal Act 1923 are saved from the repeal
But the Amending Act of 1958 came into force on June 13 1958 when it was published in the Assam Gazette
The attempt to save notifications issued under the Act of 1923 by the Assam Municipal Amendment Act 17 of 1958 is therefore ineffective
It is unnecessary to consider whether as suggested by counsel for the State of Assam by virtue of section 3 3 6 3  once a notification under section 4 of the Act of 1923 was issued for all purposes a Town Committee became a municipality and on that account the notification continued to remain in operation
In our judgment under the provisions of the Assam General Clauses Act 1915 section 26 saves the notification in question
Section 26 provides inter alia  Where any enactment is repealed and re enacted with or without modification then unless it is otherwise expressly provided any appointment notification order scheme rule form or by law made or issued under the repealed enactment shall so far as it is not inconsistent with the provisions re enacted continue in force and be deemed to have been made or issued under the provisions so reenacted 
There is no express provision in the Act 15 of 1957 which supersedes the notification issued in 1995 under the Act of 1923 nor is the continuance of the notification inconsistent with any provision in the new Act
The notification must therefore be deemed to have remained in force and the State Government was competent in exercise of the power conferred upon it by section 4 of Act 15 of 1957 935 to include within the area of Town Committee any local area contiguous to the same
We are here dealing only with the validity of the notification issued by the State Government and not with the validity of the demand for licence fee or other taxes levied by the notified Town Committee
Nothing in this judgment will affect the right of the Company to challenge the validity of the demand for such taxes in appropriate proceedings
The appeal is allowed and the order passed by the High Court is set aside
The petition is dismissed with costs throughout
In all these three appeals there will be one hearing fee


Summary:
Under ss4 and 5 of the Assam Municipal Act 1923 the Provincial Government was authorised to signify its intention to include within a municipality any local area in its vicinity and after considering
any objections to the proposed action to so include the area
Section 328 provided for the constitution of notified areas
Sections 4 and 5 were not applicable to a notified area but the Provincial Government could extend to any notified area any section of the Act by virtue of section 3301d
Under section 3303 for the purpose of any section so extended the town committee constituted for such notified area would be deemed to be a Municipal Board
In 1957 the 1923 Act was repealed and was replaced by the Assam Municipal Act 1957
The respondent owned tea gardens in the village of Nazira
In 1909 a town committee was constituted at Nazira adjacent to the tea garden
In 1951 by a notification issued by the Government of Assam s41b and c and s51 and 2b of the 1923 Act were extended to the notified area committee including the Nazira Town Committee
On January 6 1964 a notification was issued under the 1957Act to revise the boundaries of the notified area at Nazira and after considering the objections of the respondent on September 30 1964 by a final notification a part of its tea estate was incorporated within the Nazira Town Committee
On the question whether notifications dated January 6 1964 and September 30 1964 were unauthorised because sections 4 and 5 of 1957 Act corresponding to sections 4 and 5 of the 1923 Act were not extended to the notified area on these dates HELD  There is no express provision in the 1957 Act which supersedes the notification issued in 1951 under the 1923 Act nor is the continuance of the notification inconsistent with any provision in the 1957 Act
Therefore under section 26 of the Assam General Clauses Art 1915 the 1951 notification continues in force and must be deemed to have been issued under the 1957 Act
Hence the State Government was competent in exercise of the power conferred upon it by the 1957 Act to include within the area of the Town Committee any local area contiguous to it
934 H 935 A