Gopal Narain Vs. State of Uttar
Pradesh & ANR [1963] INSC 187 (3 September 1963)
03/09/1963 SUBBARAO, K.
SUBBARAO, K.
GAJENDRAGADKAR, P.B.
WANCHOO, K.N.
AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.
CITATION: 1964 AIR 370 1964 SCR (4) 869
CITATOR INFO:
RF 1990 SC 322 (10) R 1992 SC1848 (7)
ACT:
Constitution of India, Arts. 14,
19(1)(f)-MunicipalityArbitrary power to make classification-Policy and guidanceExpress
or implied-To be gathered from the statuteGeographical division of a
town-Special taxes in that partWhether discriminatory-Validity-Mention of wrong
clause in Notification Does not affect the power-Uttar Pradesh Municipalities
Act, 1916 (U.P. Act No. II of 1916), ss. 128(1), 131(1)(h).
HEADNOTE:
The city of Bareilly was originally composed
of two parts.
In 1870, the vacant area between these two
parts was developed into a new residential area by the Municipality at a
considerable cost Special amenities for the residents of this area were
provided and house tax was imposed. After the coming into force of Uttar Pradesh
Municipalities Act, 1916, the Municipality imposed, first, a latrine tax and
later a scavenging tax in this area from 1939. The petitioner who is a resident
and house owner in this area filed the present petition questioning the
validity of the taxes imposed by the Municipality.
The main contentions raised by the petitioner
were s. 128(1) of the U.P. Municipalities Act, in so far as it authorised the
Municipal Board to impose the taxes mentioned therein in part of the Municipality,
offended Art. 14 of the Constitution and, therefore, was void ; (ii) even if
the section did not violate the said article, the notification issued by the
Municipal Board imposing the two taxes namely, house tax and scavenging tax,
confining them only to the new area (civil lines) was void in as much as such
imposition could not be justified on the basis of the doctrine of
classification, (iii) the taxes were imposed in violation of the statutory
provisions of the Act and, therefore, the imposition on him in respect of his
building infringed his right under Art. 19(1)(f) of the Constitution ; and (iv)
s. 131(1)(b) of the Act also violated Art. 14 of the Constitution inasmuch as
it conferred an arbitrary power on the Municipal Board to impose taxes of any
amount on any person or class of persons without laying down any clear policy
for classification.
Held: (i) While a court should be on its
guard not to enter into the domain of speculation with a view to cover up an
obvious deficiency in a legislation, it may legitimately discover such a
policy, if it is clearly discernible on a fair reading of the relevant
provisions of the Act. But it is neither possible nor advisable to lay down
precisely how a court should cull out such a policy from an Act in the absence
of an express statutory 870 declaration of policyit would depend upon the
Provision' of each Act, including the preamble. But what can be posited is that
the policy must appear clear either expressly or by necessary implication from
the provisions of the. statute itself.
Ram Krishna Dalmia v. Shri justice S. R.
Tendolkar, [1959] S.C.R. 279, State of West Bengal v. Anwar Ali Sarkar, [1952]
S.C.R. 284, Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh, [1954] S.C.R.
803, Dhirendra Krishna Mondol v. Superintendent and Remembrancer of Legal
Affairs, [1955] 1 S.C.R. 244 Kathi Raning Rawat v. State of Saurashtra, [1952]
S.C.R. 435, P. Balakotaih v. Union of India, [1958] S.C.R. 1052 and M/s.
Pannalal Binjraj v. Union of India [1957] S.C.R. 233, referred to.
(ii)A fair reading of ss. 7, 8 and 128 of the
Act makes it clear that the amounts collected by the Municipal Board by way of
taxes are mainly intended to enable the Board to discharge its duties in the
Municipal area or part of the Municipal area, as the case may be. These duties
and functions need not necessarily be discharged or performed in the entire
area of the municipality at once. If different parts of a municipality may
require special treatment in the matter of provisions of amenities, it would be
reasonable to collate the power of taxation in a part of a municipality with
such separate treatment. This legislative guidance is apparent from the three
sections.
(iii)Looking at the policy disclosed by ss.
7,8 and 128 of the Act and applying the liberal view a law of taxation receives
in the application of the doctrine of classification, it is not possible to say
that the policy so disclosed infringes the rule of equality.
Khandige Sham Bhat v. Agricultural Income-tax
Officer, Kasaragod, [1963] 3 S.C.R. 809, Purshottam Govindji V. B. M. Desai,
[1955] 2 S.C.R. 887, K. T. Moopol Nair v. State of Kerala, [1961] 3 S.C.R. 77
and Bareilly Municipality v. Kundan Lal Kundan lal A.I.R. 1959 All.562 (F.B),
referred to.
(iv)The difference between the old city and
the civil lines area is so pronounced in the matter of amenities that there is
a reasonable relation between the taxes imposed and the geographical
classification made for the purpose of taxation and, therefore, the
notification imposing the said taxes does not infringe Art. 14 of the
Constitution.
(v)It will be seen from ss. 131, 132 and 133
of the Act that the rate of tax to be levied and the persons or the class of
persons liable to pay the same have a reasonable relation to the subject taxable
under the Act. The said rate to be imposed and the persons or the class of
persons liable to pay the same are ascertained by a quasi-judicial procedure
after giving opportunity to the parties affected, subject to revision by the
State Government. Therefore, it cannot be said that the power conferred upon
the Municipal Board is an arbitrary power offending Art. 14 of the
Constitution.
(vi)'though no tax could be levied or
collected except in accordance with law, in the present cage, it has not been established
that the impugned taxes have been imposed in violation of any of the provisions
of s. 131 and other relevant sections of the Act.
The question of the validity of the tax
depends upon the existence of power to tax in respect of a subject. In the
present case, the Municipal Board had certainly power to impose scavenging tax.
The mention of cl. (xii) of s. 128 of the Act in the notification appears to be
a mistake for cl.
(xi) and that does not affect the power of
the Board to impose the tax.
ORIGINAL JURISDICTION : Petition No. 12 of
1962.
Petition under Art. 32 of the Constitution of
India for the enforcement of fundamental rights.
J. P. Goyal, for the petitioner.
C. B. Agarwala and C. P. Lal, for respondent
no. 1.
G. S. Pathak and C. P. Lal, for respondent no
2.
September 3, 1963. The judgment of the Court
was delivered by SUBBA RAO J.-This petition fined under Art. 32 of the
Constitution raises the, question of the constitutional validity of s. 128(1)
of the Uttar Pradesh Municipalities Act, 1916 (U.P. Act No. 11 of 1916),
hereinafter called the Act, insofar as it authorizes a Municipal Board to
impose all or any of the taxes mentioned therein in any part of the
municipality.
Bareilly is an old City in the State of Uttar
Pradesh. In the middle of the 19th century it consisted of small houses
situated in congested localities with narrow lanes. At some distance away from
the said City area there existed even then a cantonment area. Between the City
area and the Cantonment area there was a tract of uneven and undeveloped land.
The Municipal Board of Bareilly acquired a part of the said land and, together
with some nasal land, developed it at a considerable cost. The newly developed
area came to be known as the Civil Lines. The Municipal Board has provided
special amenities for the residents of that area.
The said facts and the particulars of the
amenities provided are given in the counter-affidavit filed on behalf of the
Municipal Board and 872 a map of the Bareilly City and the Cantonment area is
also annexed thereto. A glance at the map discloses that the City of Bareilly
is divided into three separate blocks the old City, the Cantonment and the
Civil Lines. The Civil Lines area is situated between the old City and the
Cantonment. We have no reason not to accept the said facts given in the
counter-affidavit as representing the division of the City of Bareilly based on
its geographical features and strata of development.
In the Civil Lines area, which the Municipal
Board acquired and developed, the said Board imposed house tax from January 31,
1870. In the year 1916 the Act was passed in order to consolidate and amend the
laws relating to municipalities in the State of Uttar Pradesh. The Act came
into force on July 1, 1916. After the Act came into force, the old tax was
abolished and a new house tax was imposed by the Municipal Board of Bareilly in
the Civil Lines area with effect from January 1, 1918. A latrine tax was also
imposed with effect from May 25, 1918, but it was replaced by scavenging tax
with effect from April 1, 1939. The petitioner, a resident of the Civil Lines
area, who owns a house bearing door No. 43 therein, filed this writ petition in
this Court for a declaration that s. 128(1) of the Act, insofar as it
authorizes the Municipal Board to impose a tax in any part of the municipal
area, is void and for the issue of a writ of mandamus against the Municipal
Board, Bareilly, directing it not to realize they said house tax and scavenging
tax from him. To the said petition, the State of Uttar Pradesh and the
Municipal Board, Bareilly, are made respondents 1 and 2 respectively.
Mr. Goyal, learned counsel for the
petitioner, raised before us six contentions, but they may be broadly
classified, under the following four heads: (1) Section 128(1) of the Act,
insofar as it authorizes the Municipal Board to impose the taxes mentioned
therein in any part of the municipality, offends Art. 14 of the Constitution
and, therefore, is void.
(2) Even if the section does not violate the
said article, the notification issued by the Municipal Board imposing the said
two taxes, namely, house tax and scavenging tax, confining them only to the
Civil Lines area was void inasmuch as the taxes could not 873 be justified on
the basis of the doctrine of classification.
(3) The said taxes were imposed in violation
of the statutory provisions of the Act and, therefore, the said imposition on
him in respect of his building infringes his fundamental right under Art. 19
(1) (f ) of the Constitution. And (4) section 131(1)(b) of the Act also
violates Art. 14 of the Constitution in as much as it confers an arbitrary
power on the Municipal Board to impose taxes of any amount on any person or
class of persons without laying down any clear policy for classification.
Mr. Pathak, learned counsel for the Municipal
Board, controverts the said arguments of the petitioner. We shall deal with his
contentions in appropriate places.
To appreciate the first contention it would
be convenient to read at the outset the relevant part of s. 128 of the Act.
It reads :
Section 128. (1) Subject to any general rules
or special orders of the State Government in this behalf, the taxes which a
board may impose in the whole or any part of a municipality are(i) a tax on the
annual value of buildings or lands or both;
* * * * * (xi) a scavenging tax * * * * * *
No general rules were made or special orders issued by the State Government in
the matter of imposition of a tax in any part of a municipality. It is argued
that the power conferred on the Municipal Board to impose a tax on any part of
the municipality is a naked and arbitrary power, that the Act does not disclose
any policy or give any guidance for making a valid classification and that,
therefore, the section, to the said extent, violates the provisions of Art.
14 of the Constitution. The law on the
subject is well settled. Das C.J., in Ram Krishna Dalmia v. Shri justice S. R.
Tendolkar(1), after a consideration of the earlier decisions, pointed out that
a statute which may come up for consideration on a question of validity under
Art. 14 of the Constitution might be placed in one of the five classes
mentioned therein. Classes (iii) and (iv), which are relevant to the present
enquiry, reads,:
(1) [1959] S.C.R. 279.
56-2 S. C. India/64 874 "(iii) A statute
may not make any classification of the persons or things for the purpose of
applying it-provisions but may leave it to the discretion of the Government to
select and classify persons or things to whom its provisions are to apply. In determining
the question of the validity or otherwise of such a statute the court will not
strike down the law out of hand only because no classification appears on its
face or because a discretion is given to the Government to make the selection
or classification but will go on to examine and ascertain if the statute has
1aid down any principle or policy for the guidance of the exercise of
discretion by the Government in the matter of selection or classification, on
the ground that the statute provides for the delegation of arbitrary and
uncontrolled power to the Government so as to enable it to discriminate between
persons or things similarly situate and that, therefore, the discrimination is
inherent in the statute itself. In such a case the court will strike down both
the law as well as the executive action taken under such law, as it did in
State of West Bengal v. AnwarAli Sarkar(1), Dwarka Prasad Laxmi Narain v. The State
of Uttar Pradesh(2) and Dhirendra KrishnaMandal v. The Superintendent and Remembrance
of Legal Affairs(3) "(iv) A statute may not make a classification of the
persons or things for the purpose of applying its provisions and may leave it
to the discretion of the Government to select and classify the persons or
things to whom its provisions are to apply but may at the same time lay down a
policy or principle for the guidance of the exercise of discretion by the
Government in the matter of such selection or classification, the court will
uphold the law as constitutional as it did in Kathy Raning Rawat v. The State
of Saurashtra (4)." The question, therefore, to be considered is whether
the Act has laid down a policy for the guidance of the Municipal Board in the
matter of selection of any part of the (1) [1952] S.C.R. 284.
(3) [1955] 1 S.C.R. 224.
(2) [1954] S.C.R. 803.
(4) [1952] S.C.R. 435.
875 municipality for the purpose of
imposition of any of the taxes mentioned in s. 128 of the Act.
In this context, because of a Legislature's
reluctance or inadvertence to express itself clearly of its policy, a heavy and
difficult burden is often placed on courts to discover it, if possible, on a
fair reading of the provisions of the Act. Some Acts expressly lay down the
policy to guide the exercise of discretion of an authority on whom a power to
classify is conferred. Some Acts, though they do not expressly say so, through
their provisions may indicate clearly, by necessary implication, their policy
affording a real guidance for the exercise of discretion conferred on an
authority there under. While a ,court should be on its guard not to enter into
the domain of speculation with a view to cover up an obvious deficiency in 2
legislation, it may legitimately discover such a policy, if it is clearly
discernible on a fair reading of the relevant provisions of the Act. This
Court, in Kathi Raning Rawat v. The State of Saurashtra(1), found the clear
policy of the Legislature on the basis of the preamble of the Act taken along
with the surrounding circumstances. in P.Balakotaish v. Union of India(2), on an
examination of the Act read as a whole ;
and in M/s. Pannalal Binjraj v. Union of
India(3), from the preamble itself. This view was accepted in later decisions.
But it is neither possible nor advisable to lay down precisely how a court
should cull out such a policy from an Act in the absence of an express
statutory declaration of policy. It would depend upon the provisions of each
Act, including the preamble. But what can be posited is that the policy must
appear clearly either expressly or by necessary implication from the provisions
of the statute itself.
Now, does the Act provide any real guide to
the Municipal Board to exercise its discretion under s. 128(1) of the Act? The
Act is a consolidating and amending Act Relating to municipalities in the State
of Uttar Pradesh. Section 7 of the Act narrates the duties of a municipal
board. It directs the municipal board to discharge duties connected, inter alia
with sanitation, drainage, laying of roads, schools, health, water supply,
hospitals, maternity (1) [1952] S.C.R. 435. (2) [1958] S.C.R. 1052.
(3) [1957] S.C.R. 233.
876 centers and similar others. Section.8
enables a municipal board to provide, in its discretion special amenities and
undertake other duties mentioned therein, which involve heavy expenditure.
The duties cannot be discharged and the
discretionary functions cannot be performed unless the municipality has power
to collect money by way of taxes. Section 128 of the Act confers such a power
on the Municipal. Board. It says that the Municipal Board may impose in the
whole or any part of the municipality the taxes mentioned therein. A fair
reading of these three provisions makes it clear that the amounts collected by
the Municipal Board by way of taxes arc mainly intended to enable the Board to discharge
its duties in the municipal area or a part of the municipal area, as the case
may be. It is contended that while no doubt a combined reading of the said
provisions may indicate the purpose of taxation,, it does not disclose any
policy how and under what circumstances the Municipal Board can select a part
of the municipal area for the imposition of a tax 'or taxes. We do not agree.
Sections 7 and 8 enumerate the obligatory duties and discretionary functions of
a municipality. These duties and functions need not necessarily be discharged
or performed in the entire area of the municipality at once. They may have to
be introduced gradually, starting from one part of the area in the municipality
with a view to cover the entire area in due course. It may also be that the
amenities required in one part of the municipal area may be different from
those required in another part of the municipality. It may also be that a part
of the area, because of the nature of the soil, distance from the well-developed
part of the city or for historical reasons, calls for a larger investment for
development compared to other parts of the municipality. If so much is
conceded, that is, different parts of a municipality may require special
treatment in the matter of provisions of amenities, it would be reasonable to
collate the power of taxation in a part of a municipality with such separate
treatment. While the former two sections, by necessary implication, enable a
municipality to provide special amenities in a part of the municipality, the
latter section empowers it to impose tax877 es in that part. If so understood
the legislative guidance is apparent from the said three provisions ; that is
to say, a municipality can impose a tax in a part of a city, if that part, because
of its peculiar situation or otherwise, has to be provided with special
amenities throwing a heavy financial burden on the municipality.
The next question is, whether the said policy
offends 'Art.
14 of the Constitution. It is said that all
the citizens of a city would directly or indirectly partake in the amenities
provided in any part of the city and, therefore, the classification underlying
the policy has no reasonable 'nexus with the object sought to be achieved. It
is argued that amenities, such as good roads, extensive parks, electrification,
water supply etc., provided in one part of the city could equally be taken
advantage of by residents of other parts of the city and, therefore, the
expenditure on such amenities should be met from the general revenues. It may
be so ; but the indirect benefit cannot be equated with the direct benefit
conferred upon a part of 'the city treated as a separate unit for the purpose
of taxation.
This Court, in Khandige Sham Bhat v.
Agricultural Income-tax Officer, Kasaragod(1), in dealing with a law of
taxation in the context of the doctrine of classification observed :
.lm15 "Taxation law is not an exception
to this doctrine : vide Purshottam Govindji v. B. M. Desai (2 ) and K. T.
Moopol Nairv. State of Kerala("). But in the application of the
principles, the courts, in view of the inherent complexity of fiscal adjustment
of diverse elements, permit a larger discretion to the Legislature in the
matter of classification, so long it adheres to the fundamental principles
underlying the said doctrine. The power of the Legislature to classify is of
"wide range and flexibility" so that it can adjust its system of
taxation in all proper and reasonable ways." Looking at the policy
disclosed by ss. 7 and 8 and s. 128 of the Act and applying the liberal view a
law of taxation receives in the application of the doctrine of (1) [1963] 3
S.C.R. 809. 2 ) [1955] 2 S.C.R. 887.
( 3) [1961] 3 S.C.R. 77.
878 classification, it is not possible to say
that the policy so disclosed infringes the rule of equality. This Court in more
than one decision held that equality clause does not forbid geographical
classification, provided the difference between the geographical units has a
reasonable relation to the object sought to be achieved. This principle has
been applied to a taxation law in Khandige Sham Bhat's Case In hat case, this
Court also accepted the principlethat the legislative power to classify is of
wide range and flexibility so that it can adjust its system of taxation in all proper
and reasonable ways. It is indicated in "Willis, Constitutiotial
Law". at p. 590, that a State can make a territory within a city a unit
for the purpose of taxation.
So, the impugned section in permitting in the
matter of taxation geographical classification which has reasonable relation to
the object of the statute, namely, for providing special amenities for a
particular unit the peculiar circumstances whereof demand them, does not in any
way impinge upon the equality clause.
The very question that we arc now called upon
to decide received the attention of a Full Bench of the Allahabad High Court in
Bareilly Municipality v. Kundan Lal(2). The Full Bench by a majority, held on a
construction of the provisions of the Act that the power vested in the Board to
select part of the municipality within which to levy a tax was not an arbitrary
power but one which is controlled by the purpose which was intended to be
achieved by the Act itself. We agree with this view.
The next question is whether the notification
issued by the Municipal Board imposing the said taxes in the area of the Civil
Lines offends Art. 14 of the Constitution. It is clear from the affidavit filed
on behalf of the Municipal Board and the map annexed thereto that the area
covered by the Civil Lines has been treated as a separate unit in the matter of
development from the year 1870. The Municipal Board acquired the land in that
area, laid out roads, carved out good sized building plots, and provided
special amenities for the residents by way of broad roads, open and bigger
plots for construction of (1) [1963] 3 S.C.R. 809 (2) A.I.R. 1959 All. 562.
879 houses parks and gardens, special
lighting arrangements, fott path with cement benches, water booths with
waterman for giving water to the public and special sanitary arguments whereas
the old city area of Bareilly consisted of small plots of land with small
houses thereon situated in congested localities with narrow lanes. The
Municipal Board imposed house tax in the Civil Lines area from as early as
January 31, 1:870 and, after the Act came into force, reimposed the impugned
tax in accordance with the provisions of the Act. In the case of scavenging
tax, there appears to be different methods adopted in the two areas. In the
Civil Lines area nightsoil and rubbish arc collected by the Municipal Board
from each bungalow, while in the City area they are collected from one common
place in each ward. The former certainly involves higher expenditure than the
latter. It will, therefore be seen that for about 90 years the Civil Lines area
has been treated as a separate geographical unit for the purpose of taxation,
having regard to historical reasons and die extra amenities provided for the
residents of that locality and the heavy expenditure incurred by the Municipal
Board in doing so. The differences between the old city and the Civil Lines
area arc so pronounced in the matter of amenities that there is a reasonable
relation between the taxes imposed and the geographical classification made for
the purpose of taxation. We, therefore, hold that the notification imposing the
said taxes does not infringe Art. 14 of the Constitution.
The next question is whether s. 131 of the
Act violates Art.
14 of the Constitution. Section 131 of the
Act reads :
(1) When a board desires to impose a tax, it
shall by special resolution frame proposals specifying(a) the tax, being one of
the taxes described in subsection (1) of section 128, which it desires to
impose (b) the persons or class of persons to be made liable, and the
description of property or other tax thing or circumstances in respect of which
to be made liable, except where and in go for as any such class or description
is already sufficiently defined under clause (a) or by this Act ;
(c) the amount or rate leviable from each
such person or class of persons ;
(d) any other matter referred to in section
153, which the State Government requires by rule to be specified." The
argument is that this section enables the Board to impose a tax of any amount
and against any persons or class of persons without giving any guide in regard
to the fixation of rate of tax or the persons or class of persons liable to pay
the tax. It is said that the said power conferred upon the Municipal Board is
an unguided and naked power. Section 131 does not confer any power on the Board
to impose a tax. Section 128 confers such a power and that section with
meticulous care enumerates. the subjects of taxation. Section 131 provides a
machinery for imposing the said taxes. The said taxes cannot be imposed in
vacuum.
There should be some machinery for
ascertaining the rate of taxation and the persons or the class of persons
liable to pay the same. If s.. 131 stood alone, there may be some Justification
for the comment, but if it is read along with s. 128, it posits a reasonable
nexus between the tax in respect of a subject and the rate payable and the
person or class of persons liable to ,pay the same. To illustrate :
s. 128 empowers the Municipal Board to levy a
tax on the annual value of a building and to make a person, who, should
obviously be a person connected with the building, liable to pay the same. For
deciding those questions a quasi-judicial procedure is prescribed under s. 131
and the succeeding sections of the Act. Under s. 131 the Municipal Board makes
the proposals specifying the tax, the rate and the persons or the class of
persons liable to pay the tax and such other details prescribed there under.
The Board thereupon publishes in the manner prescribed the said details. Under
s. 132 :any inhabitant of the municipality may Within a fortnight from the
publication of the said notification, submit his objections thereto. Thereupon
the Board shall take .any objection so submitted into consideration and pass
orders thereon by special resolution. If the Board decisions to modify its
proposals, it shall publish the modified proposals and the modified proposals
may also be objected 881 to After the final orders are made by the Board, it
shall submit the proposals along with the objections, if any, to the prescribed
authority. Under s. 133 the prescribed authority shall then submit the
proposals and the objections to the State Government, which will make the final
orders.
When the proposals are sanctioned by the
prescribed authority, or the State Government, the State Government shall make
rules having regard to the draft rules submitted by the Board ; when the rules
are sanctioned by the State Government, they will be sent to the Board and
thereupon the Board by special resolution shall direct the imposition of the
tax with effect from a date specified in the resolution.
Thereafter the said resolution will be
notified by the State Government in the Gazette. It will be seen from the
aforesaid provisions that the rate of tax to be levied and the persons or the
class of persons liable to pay the same have a reasonable relation to the
subjects taxable under the Act. The said rate to be imposed and the persons or
the class of persons liable 'to pay the same are ascertained by a
quasi-judicial procedure after giving opportunity to the parties affected,
subject to revision by the State Government. We cannot there fore, say that the
power conferred upon the Municipal Board is an arbitrary power offending Art.
14 of the Constitution.
The next question of learned counsel is that
the said taxes were imposed in violation of the procedure prescribed by the
Act. At the outset it may be noticed that the house tax was imposed with effect
from January 31, 1870 and the latrine tax was imposed with effect from May 23,
1918 and the latter tax was replaced by scavenging tax with effect from April
1, 1939. Though decades have passed by, no one has questioned till now the
validity of those taxes on the ground that the procedure was not strictly followed.
There is a presumption when a statutory authority makes an order, that it has
followed the prescribed procedure. The said presumption is not in any way
weakened by the long acquiescence in the Imposition by the residents of the
Civil Lines. Nonetheless no. tax shall be levied or collected except in
accordance with law. If it is not imposed in accordance with law, it would
infringe the fundamental rights guaranteed under Art. 19(1)(f) of the Custom.
While the long period of time that lapses between the imposition of the tax and
the attack on it may permit raising of certain presumptions where the evidence
is lost by afflux of time, it cannot exonerate the statutory authority if it
imposes a tax in derogation of the statutory provisions. We will therefore,
proceed with the specific objections raised by the petitioner.
Sections 131 to 136 give the procedural steps
to be followed for imposing a tax. We have already given a gist of those
sections in a different context. Learned counsel for the petitioner contends
that the Municipal Board violated the provisions of s. 131(1) of the Act
inasmuch as, (i) it did not give all the necessary details in the proposals
made under s. 131(1) of the Act, and (ii) the Government did not make the rules
after the Act came into force in accordance with the procedure prescribed under
s. 131 and the succeeding sections of the Act. In, regard to the first
objection, there is an allegation in the. affidavit filed by the petitioner,
but there is none in respect of the second objection. In a matter like this, we
are not prepared to permit the petitioner to question the validity of the tax
on the second ground in the absence of any specific allegation in regard to the
same in the affidavit. There is a specific allegation in regard to the first
ground, but it is denied in the counter-affidavit filed by the Municipal Board.
On April 5, 1917, the Municipal Board passed the following special resolutions
:
"Draft proposals under Section 128(1)
(i) for revising the Government Notification No. 135 dated 13-1-1870 levying
tax on the buildings and lands in the Civil Lines Station of the Bareilly
Municipality. Resolution : Resolved that Draft Proposals be notified." Ex
facie this resolution shows that there were draft proposals ; those draft
proposals are not before us and they, must have contained all the details
required by the section.
We reject this contention. We, therefore,
told that is has not been established that the impugned taxes have been imposed
in violation of any of the provisions of s. 131 and other relevant sections of
the Act.
883 The last argument relates to the
scavenging tax. Section 128(1)(xi) empowers the Municipal Board to impose a
scavenging tax. Clause (xii) of that section may also be noticed. It reads :
"a tax for the cleaning of latrines and privies". The relevant
notification imposing the tax reads:
"It is hereby notified under sub-section
(2) of Section 135 read with section 136 of the United Provinces Municipalities
Act, 1916 (11 of 1916) that the Municipal Board of Bareilly, in exercise of the
powers conferred by section 128(1) (xii) of the said Act, has imposed the
following scavenging tax in the Bareilly Municipality published with
notification No. 3298/XI-18 H, dated the 20th September 1933, in supersession
of notification No. 628/XI18H, dated the 24th January, 1923, with effect from
1st April 1939.
Description of the tax.
A tax for the removal of nights oil and
rubbish at the rate mentioned below to be realized from the occupier or the
owner of the buildings (bungalows) situated within the Civil Lines ward of the
municipality." * * * * In accordance with the said notification, nights oil
and rubbish are collected by the Municipal Board from each bungalow in the
Civil Lines area. The contention is that the Municipal Board had no power to
impose a scavenging tax under cl. (xii) of s. 128(1) of the Act and, therefore,
the imposition of the tax is illegal. The Municipal Board says in its
counter-affidavit that cl. (xii) mentioned in the notification is a mistake for
cl. (xi). The question is whether the Municipal Board has power to impose
scavenging tax. There must be some distinction between scavenging tax and a tax
for cleaning of latrines and privies. Presumably cl. (xi) is more comprehensive
than cl. (xii). In the counter-affidavit it is stated that nights oil and
rubbish are collected by the Municipal Board from the bungalows in the Civil
Lines. Though a part of that function is covered by cl. (xii), the combined
function is covered by cl. (xi) of s. 128 of the Act. The question of the
validity of the tax depends upon the existence of power to tax in respect of a
subject. The 884 Municipal Board had certainly power to impose the scavenging
tax. -The mention of cl. (xii) in the notification appears to be a mistake for
cl. (xi) and that does not affect the power of the Municipal Board to impose
the tax. There are no merits in this contention either.
In the result, the petition is dismissed with
costs.
Petition dismissed.
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