Case ID: 2857

Judgment:
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. Gopalakrishnan	for the respondent. B. Datta	 for the intervener. The Judgment of the Court was delivered by Shah J. The Assam Tea Company Ltd owns	teagardens 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 4(1) 933 (b)& (c) and 5(1) &_(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. & Ors.the	 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 ss.4 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 330(1)(d). Under section 330(3)	 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	 s.4(1)(b) and (c)	 and s.5(1) and (2)(b) 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]