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KULWANT SINGH SAINI versus K.R. LAKHANPAL & ORS.

High Court of Punjab and Haryana, Chandigarh

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Kulwant Singh Saini v. K.R. Lakhanpal & Ors. - COCP-872-2006 [2006] RD-P&H 4563 (21 July 2006)

COCP No.872 of 2006 -: 1 :-

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH

COCP No.872 of 2006

Date of decision: July 21, 2006.

Kulwant Singh Saini

...Petitioner(s)

v.

K.R. Lakhanpal & Ors.

...Respondent(s)

Present: Shri K.S. Dadwal, Advocate for the petitioner.

Surya Kant, J. (Oral)

The petitioner, who claims himself to be Joint Secretary of the Punjab Nagar Palika Kararmchari Sangathan, has filed this contempt petition against the Chief Secretary to Government of Punjab and Principal Secretaries, Local Bodies and Finance Department, respectively, alleging that, by getting Agenda Item No.4 pertaining to "abolition of octroi" approved from the Council of Ministers in their meeting held on 26th June,

2006 (Annexure P-4), they have committed gross violation of the Division Bench judgment of this court dated 29th

April, 2002 passed in CWP

No.15265 of 2002 (Annexure P-1). It is averred that the State of Punjab preferred Special Leave to Appeal (Civil) No.2843-2850 of 2003 against the above mentioned judgment which is, though, pending in the Hon'ble Supreme Court, however, no interim stay has been granted and as such the judgment of this Court is operative.

[2]. In order to appreciate as to whether any prima-facie case of COCP No.872 of 2006 -: 2 :-

committing "civil contempt" of this Court at the hands of the respondents is made out or not, it may be mentioned that in CWP No.15265 of 2002, vires of Section 61(2A) of the Punjab Municipal Act, 1911, which came to be incorporated by the State Legislature vide Punjab Municipal (Amendment) Act No. 1 of 2002, were challenged. Vide the said provision, levy of octroi by the Municipalities throughout the State of Punjab was abolished with effect from 1st

December, 2001. After holding that the State was undoubtedly competent to levy or abolish any tax, and the legislature is competent to legislate on the subject, namely, 'entries of goods within the territory of the State', this Court held that the newly incorporated provision was directly in conflict with the Constitutional scheme and the same was accordingly struck down.

[3]. The decision taken by the Council of Ministers in their meeting held on 26th

June, 2006, which is alleged to be in derogation of the judgment, referred to above, reads as follows:- Agenda Item No.4.

Abolition of Octroi

The CMM in its meeting held on 26.06.06 has decided to abolish octroi w.e.f. 1st

September, 2006 except

on electricity, petrol & diesel and liquor (in the shape of additional excise duty). Simultaneously, it has also been decided that the State Government shall constitute a separate fund out of the VAT collections to compensate the loss of Octroi revenue of ULBs.

For implementation of the decision of the CMM, apart from amending the Punjab Municipal Corporation Act, 1976 COCP No.872 of 2006 -: 3 :-

and Punjab Municipal Act, 1911 to provide that octroi shall only be leviable on electricity, petrol & diesel for which two separate ordinances are required to be promulgated because the State Legislature is not in session, the Department of Finance is required to amend the relevant rules for apportionment of VAT revenue and establishment of Municipal fund. Further, as per decision of CMM, no employee of the Municipalities is to be retrenched, therefore, necessary steps are required to be taken for either transfer of services of these employees to the Excise and Taxation Department, as the Department has offered to absorb these employees or the services of these employees would be utilized in other branches of the Municipality concerned or in the Improvement Trusts existing vacant posts. (emphasis applied)

[4]. As can be noticed, the Council of Ministers have resolved to issue two Ordinances. It is well settled that an Ordinance, so long as it operates within the sphere of Constitutional permissibility, is a valid piece of legislation. The Division Bench, in CWP No.15265 of 2002, expressly upheld the power of the State Legislature to legislate on the subject which falls within List-II of the Constitution.

[5]. As per the petitioner's own case, the Ordinances have not been yet promulgated. It is, thus, too early to assume that the same shall run contrary to the conditions precedent summarized by this Court for a valid piece of Legislation on the subject.

[6]. The respondents are mere administrative officers of the State.

COCP No.872 of 2006 -: 4 :-

Neither they are members of the Council of Ministers nor of the State Legislature. There is nothing to infer that they are directly instrumental in the decision making process.

For the reasons afore-mentioned, this Contempt Petition is wholly misconceived.

Dismissed.

July 21, 2006. [ Surya Kant ]

kadyan Judge


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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