P.P. Naolekar, J.
1. On the bank of Chambal river, near Rawatbhata (District Chittorgarh), Rajasthan Atomic Power Project has been established after acquisition of the land by the Government. Units Nos. I and 2 of the said Rajasthan Atomic Power Project were commissioned few years back. Thereafter, the work of Units Nos. 3 and 4 was taken up by the Rajasthan Atomic Power Project. A notification was issued on 23-10-69 in exercise of the powers conferred by Clause (d) of Section 3 of the Atomic Energy Act, 1962 (Act No. 33 of 1962) declaring the area within the limit of 1 1/2 miles' radius from the reactor-site, situated on the right side of the Rana Pratap Sagar Lake, comprising land bearing Khasra Nos. 13/1. 14/1, 15, 16/1, 17/1 and 37/11 of village Kharil under Patwar Circle Matasar. Panchayat Bhainsrodgarh (Tehsil Begun, District Chittorgarh) to be prohibited area. The petitioners have undertaken contracts for construction of the various projects of the Rajasthan Atomic Power Station and, to fulfil their contractual obligations, they were required to bring indifferent materials for carrying out the various construction projects. The Gram Panchayat, Badoliya had informed the petitioner-companies that the Gram Panchayat is entitled to charge octroi on the goods brought within the Panchayat Circle for consumption or use therein under Section 64 (1)(f) of the Rajasthan Panchayat Act, 1953 and Rule 102 of the Rajasthan Panchayat (General) Rules. Aggrieved by the communication made and the charge of octroi duty by the Gram Panchayat, Badoliya, the petitioners have approached this Court by way of writ petitions under Article 226 of the Constitution of India challenging the action and jurisdiction of the Gram Panchayat, Badoliya to charge octroi duty.
2. The only submission made by learned counsel for the petitioners is, that the area where the Rajasthan Atomic Power Project is being established does not fall within the Panchayat Circle of the Gram Panchayat, Badoliya, having been declared as prohibited area and, therefore, Gram Panchayat, Badoliya has no jurisdiction or authority to charge octroi duty. The contention of learned counsel for the petitioners has been countered by learned counsel appearing for the respondent and they have submitted that simply because the area being declared prohibited area, the area does not cease to be an area of the Panchayat and, therefore, the moment any goods are brought within the Panchayat Circle for consumption or use therein the incidence of tax accrues, and the persons bringing the material within the Panchayat Circle for consumption or use therein are liable for payment of octroi duty.
3. The submission of learned counsel for the petitioners is based on the provisions of Sections 2 (5), 24 and 64 (1)(f) read with Schedule-Ill of the Rajasthan Panchayat Act. 1953 and Section 3(d) of the Atomic Energy Act, 1962. Section 64(1)(f) of the Acl of 1953 enables the Gram Panchayat to charge octroi duty if the goods are brought within the Panchayat Circle for consumption or use therein. The Panchayal Circle is defined in Sub-section (5) of Section 2 of the Act, which means the local area over which the Panchayat exercises jurisdiction. Section 3(d) of the Atomic Energy Act, 1962 authorises the Central Government to declare any area or premises where work including research, design or development is carried on in respect of the production, treatment, use, application or disposal of atomic energy or of any prescribed substance to be a prohibited area. Section 24 of the Act of 1953 imposes duty on the Panchayat, so far as the panchayat-fund at its disposal allows, to make reasonable provision, within the Panchayat Circle in regard to matters specified in third Schedule. Schedule-Ill appended to the Acl of 1953 provides for variuous fields regarding supply of water, cleaning of public streets, sanitation, preservation and improvement of public health, regulation by licensing of the shops, maintenance and regulation of burning and burial grounds, layout and maintenance of play-grounds and public gardens, disposal of unclaimed corpses and unclaimed cattle, construction and maintenance of public latrines, providing medical relief, establishment and maintenance of market, spread of education, establishment and maintenance of theatres for promotion of art and culture, establishment and maintenance of libraries and reading rooms, etc. wherein the panchayat is expected to provide for the money.
4. It has been argued strenuously by Shri Govind Mathur, learned counsel for the petitioner, that after declaration of the prohibited area, the Gram Panchayat is being prohibited from undertaking matters which have been enumerated in the third-Schedule of the Acl of 1953 and, therefore, the area where the prohibition has been imposed cannot be treated a panchayat-circle because panchayat-circlc could only be an area where the Panchayat could exercise its jurisdiction.
5. There is nothing in the Atomic Energy Act, 1962 to indicate that once the area is declared prohibited area, it shall cease to be an area falling within the Gram Panchayat. There is a difference between non-exercise of jurisdiction although jurisdiction vests in the authority and complete lack of jurisdiction. It is not a case where the Panchayat Samiti cannot perform its duties as required under Section 24 of the Act of 1953 but it has chosen not to do so because it was agreed to be performed by the Atomic Power Project. That docs not mean that the Gram Panchayat loses its jurisdiction over the area. The expression "so far as the Panchayat funds at its disposal will allow" is significant. Under Section 24 of the Act of 1953 the Panchayat is not bound to undertake all the works enumerated in Schedule-Ill but to make provision of funds so far as the financial position of the Panchayat permits. It is so specified in Section 24 of the Act of 1953. The Gram Panchayat would naturally be happy if somebody undertakes to discharge the functions which would require spending of funds and spend the saved amount on different projects in other areas of the Panchayat. Simply because the Gram Panchayat had not undertaken the works specified under Schedule-Ill, because the same is being undertaken by the Atomic Power Project, the area in question does not cease to be an area of the Panchayat Circle. Section 3 of the Act of 1953 authorises the State Government to establish a Panchayat by issuing notification for a village or part of village or a group of villages, not included within the limits of a Municipality, or for the whole or part of any area which is included within the limits of a Municipality, or by inclusion either of whole or part of any area included within the limits of the municipality. On establishment of the Panchayat for a particular area or inclusion of the area, the area comes under the domain of the Panchayat. The Panchayat would then exercise all powers and perform all duties, provision for which is made under the Act of 1953. Admittedly, the area of village Kherli or village Tinduwali falls within the Panchayat Circle of the Gram Panchayat, Badoliya and thus is an area of the Panchayat Circle. Gram Panchayat, Badoliya has jurisdiction and authority to charge the octroi duty on the goods brought within the limits of the Panchayat Circle, Badoliya for consumption or use therein. 6. In one of the petitions, viz., S. B. Civil Writ Petition No. 1781/89, Hindustan Construction Co. Ltd. v. Gram Panchayat, Badoliya, it has been submitted by the counsel that the entire village Khedali falls within the Panchayat Circle of the Gram Panchayat only with effect from 14-9-92. Before that, the area within the Panchayat Circle was village Khedali Phase No. 1 and, therefore, no octroi duly could have been charged by the Grum Panchayat, Badoliya from the petitioner prior to 14-9-92. It is submitted by learned counsel for the respondent that the entire area, previously also, fell within the Panchayat Circle. Badoliya and, in any case, Phase No. 3 and Phase No. 4 of the Atomic Thermal Power Station are situated in village Thambli, which fell in the Panchayat Circle of the Gram Panchayat, Badoliya before 1992 and still continues to be so after 1992 notification.
7. On the basis of the material placed before this Court it is not possible for this Court to arrive at any definite finding impeding the area falling in the Panchayat Circle of Gram Panchayat, Badoliya prior to 1992 and, therefore, it is left open for the parties to agitate the question before the appropriate authority in regard to charge of octroi prior to 14-9-92.
8. For the reasons stated above, the petitions are dismissed. In the circumstances of the case, there shall be no order as to costs.