1. The petitioner Greater Gauhati United Motor Transport Association is a society of Mini City Bus Owners of Greater Guwahati registered as such under the Societies Registration Act (hereinafter referred to as Association). The Association represents the interest of mini city bus owners of the city.

2. By this petition under Article 226 of the Constitution the petitioner Association prays for quashing the tender notices dated 20.3.95 Annexure 5, 27.6.95 Annexure 6 and 4.8.95 Annexure 7 issued by the Commissioner, Municipal Corporation Guwahati respondent No.2 inviting tender for parking places within the Corporation Area for the year 1995-96. The petitioner Association has dubbed and denounced these notices as arbitrary, illegal and without authority of law (see para 12 of the petition) which surprisingly enough the respondent Corporation has not chosen to controvert in its affidavit-in-opposition filed on 23.7.96.

3. When this petition came up for hearing on 16.8.95 it appeared at the first blush that the petition has become redundant, inasmuch as, the impugned tender notices Annexure 5, 6 and 7 had outlived their life, but unphased by the suggestion, learned counsel Mr. Sarma appearing for the Association maintained that the petition still survives, as it is not only the notices Annexure 5, 6 and 7 that have been challenged, but also the very authority of the respondent Corporation to levy parking fee/tax has been under challenge as according to him, no bye-laws have been framed by the Corporation for levying parking-fee.

4. Mr. A.H. Saikia, learned Standing Counsel for the Corporation on the other hand maintained that Bye-laws as contemplated by section 416 and 418 of the Gauhati Municipal Corporation Act (for short GMC Act) have in fact been framed and duly published. He, however, prayed for some time to produce the same. The hearing of the petition had to be adjourned at his instance.

5. At the resumed hearing a photostat copy of the draft bye-laws was produced. It was contended by the petitioner Association that the said bye-laws had not so far been published in the Official Gazette as required by law, therefore, lack in enforceability. Learned Standing Counsel for the Corporation was specifically asked either to produce the Gazette or to give the date of publication so that the Official Gazette could be sent for from the library, but neither the Gazette was produced nor date of publication given despite time granted for the purpose. The draft bye-laws is on record but for want of its publication in the Official Gazette, its enforceability is questioned. Learned counsel for the petitioner even complained that despite having applied for a certified copy of the bye-laws the Corporation failed to supply the same. Thus the fate of this petition now hinges on the question of publication of the bye-laws in the Official Gazette. It was made clear to the learned Standing Counsel for the Corporation, that he was free to produce the Gazette or give the date of publication, till the last moment the pronouncement of the judgment, but nothing of the sort has been done so far although there has been a time-gap of more than a week. If must be noted that the learned Standing Counsel has produced the record pertaining to framing of bye-laws, but the Official Gazette, or its date of publication is still missing and eluding search.

6. Bye-laws No.2 of the draft bye-laws relied upon by the Corporation for levying parking fee reads as follows:

"2. Definitions : In these bye-laws, unless the context otherwise requires :

(a) Act means the GMC Act, 1969 (Assam Act 1 of 1973),

(b) City means city of Guwahati as defined in clause (g) of section 3 of the Act.

(c) Place of parking means the place as notified by the Corporation demarcating and specifying within the city on any portion of roads, footpath and open spaces etc. for the purpose of parking of vehicles;

(d) Vehicle means any mechanically propelled vehicle adopted for use upon roads whether the power of propulsion is transmitted thereto form an external or internal source and includes a bicycle, rickshaw, thela, horse draw cart, handcart etc.

(e) The words and expression used and not defined in these bye-laws, but defined in the Act shall have the same meaning respectively assigned to them in the Act."

They shall come into force on the date of their publication in the Official Gazette. Naturally, therefore coming into force of the draft bye-laws depends their publication in the Official Gazette. Until they are so published, they are nothing but dead letters, it is the publication in the Official Gazette which infutes life in the draft bye-laws.

7. It was urged by both the learned Standing Counsel as well as the learned counsel appearing for the intervenor (a lessee who has entered into an agreement with the respondent Corporation for collection of parking fee subject to terms of agreement) that mere non-publication of the draft bye-laws in the Official Gazette should not necessarily result in invalidating the imposition of parking fee, more so when every other requirements of law has been fully complied with by the Corporation.

8. The above point as raised, necessarily takes me to the law of interpretation, how such laws should be interpreted It can not be disputed and indeed has not been disputed that imposition of parking fee is a taxing provision. The bye-laws sought to be enforced is a part of taxing statute and must therefore strictly construed. Lord Cairns has in his classic passage stated the underlying principle in the following words -

"If the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hand, if the Crown seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however apparently within the spirit of law the case might otherwise appear to be. In otherwords, if there be admissible in any statute, what is called an equitable, construction, certainly, such a construction is not admissible in a taxing statute where you can simply adhere to the words of the statute."

9. Lord Reid in WM Cory & Sons Ltd. v. IRC, (1965) 1 All ER 917 said :

"The words of a taxing Act must never be stretched against a tax payer. There is a very good reason for that rule. So long as one adheres to the natural meaning for the charging words as the law is certain, or at least as certain as it is possible to make it, but if Courts are to give to charging words what is sometimes called a liberal construction who can say just how far this will go. It is much better that evasion should be met by amending legislation."

The above principles have also been followed by the Supreme Court in several of its judgments, to mention only a few -

(i) AV Fernandez v. State of Kerala, AIR 1957 SC 657 ,

(ii) CIT v. M & G Stores, AIR 1968 SC 200 ,

(iii) JK Steel Ltd. v. Union of India, AIR 1970 SC 1173 .

The submission made by the counsel to liberally construe the requirements of law in imposing the parking fee, virtually ignoring the publication of bye-law in the Official Gazette, can not be accepted.

Apart from the bye-laws No. 2, as quoted above, Section 416, J Bye-laws Relating to Miscellaneous Matters, clause (3) clearly provides that no bye-law made by the Corporation under this Act shall have effect until it has been approved by the State Government and published in the Official Gazette. Section 144 empowers the Corporation to impose taxes in respect of matters enumerated thereunder and clause (j) provides for the residuary matters. Any other tax with the prior approval of the State Govt. Reading section 144 (j) and clause (3) of section 416, J bye-laws relating miscellaneous matters together, it would be clear whether tax or fee can be imposed under clause (j) of section 144 (2) of the GMC Act, unless the following two conditions are fulfilled :

(i) prior approval of the State Govt, and

(ii) publication of the rule of bye-laws in the Official Gazette.

The Privy Council in the well known case of Nazir Ahmed, AIR 1936 PC 253 has held that when a law requires a particular thing to be done in a particular manner, it must be done in that manner or not at all. In the instant case, although the respondents in their affidavit-in-opposition have averred :

"It is pertinent to mention herein that the bye-laws have been approved and notified in the Official Gazette and accordingly the provisions of section 144 has been duly complied with."

The Official Gazette is not forthcoming. The factum of publication still remains in dark. No date of publication in the Official Gazette is given. What the law requires, going by the respondents pleaded case, it is significant to note that the respondents had not averred prior approval, all that is stated is merely approval. The intent and requirement of law is not mere approval but prior approval of the State Government. The Supreme Court in Tahir Hussain v. District Board, Muzaffarnagar, AIR 1954 SC 630 , had occasion to deal with a similar situation. Arising out of section 174 of the U.P. District Boards Act, 1922 which deals with the powers of Board to make bye-laws, the Supreme Court observed as follows :

"These provisions show that the power of the Board to make bye-laws is to be exercised for the purpose of promoting or maintaining the health, safety and convenience of the inhabitants of the area within its jurisdiction and that this power includes the power to regulate markets as mentioned in sub-section 2(1). The bye-laws as well as the order under it interferes with the fundamental right of the petitioner under Article 19 (1) (g) and prevents him from carrying on the business of holding the market."

A bye-law framed by the Town Area Committee of Jalalabad under section 293 (I) and 298 (2) of the U.P. Municipality Act. 1916. came up for examination before the Supreme Court in Mohammed Yasin v. Town Area Committee, Jalalabad, AIR 1952 SC 115 , and the Supreme Court observed as follows :

"In our opinion, the bye-laws which impose a charge on the wholesale dealer in the shape of the prescribed fee, irrespective of any use or occupation by him of immovable property vested in or entrusted to the management of the Town Area Committee including any public street, are obviously ultra vires the powers of the respondent Committee, and therefore, the bye-laws cannot be said to constitute a valid law which alone may, under Article 19 (6) of the Constitution, impose a restriction on the right conferred by Article 19(1) (g). In the absence of any valid law authorising it, such illegal imposition must undoubtedly operate as an illegal restraint and must infringe the unfettered right of the wholesale dealer to carry on his occupation, trade or business which is guaranteed to him by Article 19 (1) (g) of our Constitution."

The question of duly notified stand under section 68 (2) of the Motor Vehicles Act, 1939, as has also been raised in the present case was considered by the Supreme Court in TB Ibrahim v. Regional Transport Authority, Tanjore AIR 1953 SC 79 . The Supreme Court held that a duly notified stand must be one which is notified by the Transport Authority and by no other. There is no warrant for the presumption, it must be notified by the Municipality. Following the same, in its subsequent judgment as reported in Municipal Board, Pushkar v. State Transport Authority, Rajasthan, AIR 1965 SC 458 , the Supreme Court in Municipal Council, Bhopal v. Sindhi Sahiti Multipurpose Transport, Co-op. Society Ltd & another, AIR 1973 SC 2420 , dealing with section 358 of the Madhya Pradesh Municipal Act empowering the Municipal Council to make bye-laws held as follows :

"While the Municipal Council has no power to compel person plying motor buses for hire to use only the Municipal bus stand for anybody who chooses to use it voluntarily and to such persons being required to pay for such use. In that sense proposition of 2 and 3 put forward by Mr. Chagla are unexceptionable. If for this permission the formality of the issue of a permit is followed and a fee is charged it cannot be said to be objectionable. In that case the charges may be such as may be agreed upon between the parties i.e. if the Municipality charges a certain rate only people who are prepared to pay at that rate would resort to that place. Nobody can be compelled to go to that place. Such a provision is permissible not under any provisions of the Madhya Pradesh Municipalities Act but arises out of the right which the Municipal Council, like the owner of any other property has, to permit people to use any property belonging to it only on certain conditions. The bye-laws compel persons in charge of motor buses to use the Municipal bus stand, which the Municipality has no power to do. Consequently we hold bye-law 2 as not valid and with it go the other bye-laws."

Learned Standing Counsel for the Corporation referring to Harla v. State of Rajasthan, AIR 1951 SC 467 , urged that the condition of publication in the Official Gazette should be waived in view of the fact that the draft bye-laws were given due publicity in the local press. Harlas case is not an authority for the proposition, as urged. It does not provide for waiver of an essential condition of enforcement of bye-laws, of course highlights importance and necessity of publication of laws. The case does not help the respondents. Official Gazette is itself defined under section 3 (39) of the General Clauses Act, 1897. Official (Gazette or Gazettes shall mean the Gazette of India or the Official Gazette or State. A news paper publication can by no stretch of law be covered within the definition of Official Gazette as defined under the General Clauses Act, and what was the purpose of publication to invite objections to the proposed bye-laws . the final draft as claimed to have been approved by the State Government, has never been published.

In view of the foregoing discussion, it must be held that there is no valid and enforceable bye-laws framed by the respondent Corporation so as to empower or authorise it to collect parking fee. The respondents action must therefore be struck down as ultra vires section 144 of the GMC Act. It is accordingly struck down. The petition deserves to be allowed, it is accordingly allowed with cost. Counsel fee Rs.5,000/-.

The impugned tender notices Annexures 5, 6 and 7 have already outlived their life. No order as such is necessary in respect of these notifications, but they are liable to be quashed and accordingly quashed. Respondents are restrained from realising any parking fee or tax and are further bound in law to refund taxes collected in pursuance to the draft bye-laws and must arrange for its refund at its earliest.

Before parting, there is yet another aspect of the matter which requires to be dealt with. It is the affidavit-in-opposition sworn by the deponent Commissioner, Gauhati Municipal Corporation. A palpably false statement regarding publication of the bye-laws in the Official Gazette as already quoted above, has been made in the affidavit sworn and filed on 23.7.96. Filing of affidavit is not an empty formality. The administration of justice depends on oath. It is the fountain head and its sanctity and serenity must be preserved. No one can be allowed to pollute the sanctity of oath lest it interferes with smooth administration of justice. The deponent Smti Indira Kalita is called upon to show cause as to why she should not be ordered to be prosecuted for having sworn a false affidavit during the course of judicial proceedings and thereby committing offence punishable under section 199 and 200 of the Indian Penal Code.

The cause must be shown within a week from today.