Birdhichand Bansilal vs The Municipal Committee, Ajmer

Nigam, J.C.

Birdhichand has moved this petition under Article 226 of the Constitution of India praying for an appropriate order or writ directing the restoration of the petitioner''s cycle.

The applicant came to Court with the allegation that on 6-12-1952 the Municipal Committee, Ajmer, took away his cycle valued at Rs. 200/-. The Municipal Committee has contested the application and it is urged that the cycle had been placed on municipal land and that the petitioner was liable to pay the ''teh bazari tax''. The cycle was removed and the normal procedure for removal of temporary encroachments was observed. Reliance is placed on S. 179, Ajmer-Merwara Municipalities Regulation (6 of 1925), and it is urged that this section empowers the Committee to summarily remove or cause to be removed any goods placed on municipal lands. It is also urged that the petitioner has not been deprived of any property inasmuch as he continues to be the owner and has only been deprived of possession. I have heard the learned counsel for the parties.

The learned counsel for the Municipal Committee has urged that the petitioner has not been deprived of any property as he continues to be the owner of the cycle in question. The argument of the learned counsel is that the petitioner has been deprived only of his right to possess and enjoy the cycle, but as he continues to be the owner of the property he has not been deprived of any property within the meaning of Art. 31 of the Constitution. I am unable to agree with the learned counsel. If the argument were pushed to its logical extreme any one could be permanently deprived of property by any person who took the precaution of continuing to acknowledge the owner''s rights.

The next point urged by the learned counsel is that Article 31 has not been offended as this matter relates to collection of taxes and fees. The learned counsel relies on -- Ramjilal Vs. Income Tax Officer, Mohindargarh, In my opinion, the facts are entirely different. That was a case in which income tax was attempted to be realized. In this particular case, there has been no attempt made to collect any taxes. Section 234 of Regulation 6 of 1925 prescribes the method for realization of taxes and does not permit the Municipal Committee to seize any goods.

The learned counsel for the opposite party has also referred me to the provisions of S. 179 (2). The learned counsel urges that the Committee is authorized to summarily remove any encroachment. In my opinion, what the Committee did was not only to summarily remove but to summarily seize the cycle. Seizure, that is refusal to restore on payment of expenses of restoration, cannot be justified by the provisions of S. 179 (2) of Regulation VI of 1925.

(6) No other point has been pressed before me.

I accordingly, direct the issue of a direction to the Municipal Committee, Ajmer and its officers, servants and agents through its Administrator to restore the cycle in question to the petitioner within a week of today. The applicant will be entitled to get his costs in these proceedings, which I assess at Rs. 30/- from the opposite party.