Nizam Ali v. Municipal Board, Fatehpur — 1961 DIGILAW 108 (ALL)

JUDGMENT D. S. Mathur, J. - In this petition under Article 226 of the Constitution of India the imposition of house and water taxes by the Municipal Board of Fatehpur has been challenged. The petition was moved by as many as 31 persons, out of whom 22 only had been separately assessed to these taxes. Nos. 1, 6, 10, 14, 16, 18, 22, 23 and 30 were not assessed to taxes, but on the objection raised by the respondent, namely, the Municipal Board of Fatehpur, the names of all other than Nizam Ali have been deleted and Nizam Ali is, now the sole petitioner. The difficulty with regard to the misjoinder of reliefs has been set right by the petitioner by paying an additional court-fee of Rs. 50 on the second relief which should ordinarily have been sought for in a separate proceeding. The petition is supported by an affidavit sworn by Abdul Wahab, who was originally petitioner No. 1. He himself was not assessed to any house or water tax, though his father was. The respondent has filed a counter-affidavit sworn by Madhur Behari Lal, Executive Officer. The respondent also raised a few preliminary objections in a memo accompanying the counter-affidavit. 2. The material facts of the case are not in controversy and no useful purpose shall be served by reproducing in this order facts which will not affect the decision of the case. 3. The Municipal Board of Fatehpur desired to impose house and water taxes and framed preliminary proposals by special resolutions and also draft rules which it desired the State Government to make in respect of the imposition and recovery of such taxes. The proposals and the draft rules were published in the manner prescribed in Section 94 of the U.P. Municipalities Act. An objection was made and it was taken into consideration before the Board passed orders by special resolutions as required under Section 132 (1) of the Act. Thereafter the proposals were submitted to the Commissioner of the Division, who was the prescribed authority under Section 133 of the Act. 4. It appears that the Commissioner provisionally sanctioned the proposal and the draft rules of house tax and in his letter dated 15-5-1956 directed the Board to fix a date by special resolution from which the house tax was to be imposed. 4. It appears that the Commissioner provisionally sanctioned the proposal and the draft rules of house tax and in his letter dated 15-5-1956 directed the Board to fix a date by special resolution from which the house tax was to be imposed. The letter of the Commissioner shall not in the eye of law, amount to formal sanction of the proposals and the rules as they could be finalised after previous publication. The Commissioner, however, published the draft rules for the imposition of house tax for objection under order dated 19-5-1946 and finalised them under order dated 27-6-1956, and the rules as finalised were published in the U.P. Gazette of July 7, 1956. It appears that the provisions of Sec. 134(2) were overlooked by the Commissioner and also by the Municipal Board with the result that the Commissioner gave an illegal direction and the Board complied with that direction. The Municipal Board of Fatehpur passed the special resolution under Sec. 134(2) of the Act on 21-5-1956 and decided that the house tax be imposed with effect from 1-7-1956. The special resolution was submitted to the State Government which notified it under Section 135 (2) on 16-6-1956. 5. The defect with regard to the imposition of house tax, therefore, is that the special resolution under Sec. 134(2) and the notification under Sec. 135(2) of the Act were passed or published before the rules were finalised by the Commissioner and communicated to the Board. 6. A similar mistake was committed while imposing water tax. The rules for the imposition of water tax were published for objection by the Commissioner under order dated 29-9-1956 and were finalised under order dated 24-10-1956. The rules as finalised were published in the U.P. Gazette of the 3rd November, 1956. The special resolution under Sec. 134(2) was, however, passed on 20-10-1956 and water tax was to be imposed with effect from 1-1-1957. The special resolution was thus passed a few days before the finalisation of the rules by the Commissioner. The notification under Sec. 135(2) was published on 24-11-1956 on the basis of the special resolution under Section 134 (2) though after the rules had been finalized. 7. It will be better to first of all dispose of the four preliminary objections raised by the respondent as to the maintainability of the petition. The notification under Sec. 135(2) was published on 24-11-1956 on the basis of the special resolution under Section 134 (2) though after the rules had been finalized. 7. It will be better to first of all dispose of the four preliminary objections raised by the respondent as to the maintainability of the petition. The first three no longer have any force as they have been removed by the petitioner on payment of additional court-fee, or after having the petition suitably amended. The petition now stands in the name of Nizam Ali only. The objection with regard to the affidavit of Abdul Wahab has no force. The Rules of the Court nowhere provide that the party or his pairokar must file an affidavit in support of the application moved by or on behalf of the party. Any one personally acquainted with the facts can file an affidavit. Consequently, the affidavit filed by Abdul Wahab can be taken into consideration. 8. Sec. 135 (3) of the U.P. Municipalities Act lays down that a notification of the imposition of tax under Sub-Sec. (2) shall be conclusive proof that the tax has been imposed in accordance with the provisions of this Act, and it was consequently urged that after the publication of the notification the Courts of law could not go behind the notification, and must accept the notification as conclusive proof of the fact that the tax had been imposed in accordance with the law. This contention was not accepted by this Court in Kedar Nath v. The Municipal Board, Gorakhpur, 1956 ALJ 198 and Municipal Board Hapur v. Raghvendra Kripal, 1960 ALJ 185. Decisions of this court prior to the commencement of the Constitution of India cannot be of any help to the respondent as at that time this Court had not been conferred with the writ jurisdiction similar to that under Article 226 of the Constitution of India. Further, when the undisputed facts of the case make it clear that the tax had not been imposed in accordance with the provisions of the Act, the facts cannot be presumed to exist to the contrary simply because of the issue of a notification under Sec. 135(3) of the Act. The notification is conclusive evidence of a fact, but when the fact does not exist the notification cannot be conclusive evidence of that fact. The notification is conclusive evidence of a fact, but when the fact does not exist the notification cannot be conclusive evidence of that fact. In any case, the legislature cannot take away the jurisdiction which has been vested in the High Court under the Constitution of India, and consequently even if they make it a law that any notification issued by the State Government cannot be questioned before the Courts of law, that will not bind the High Court while exercising jurisdiction under Article 226 of the Constitution. 9. The point for consideration, therefore, is if the non-compliance of the provisions of Section 134 of the Act will invalidate the imposition of house and water taxes. It may, first of all, be observed that Sub-Sec. (2) thereof prescribes that after the rules have been made, the order of sanction and a copy of the rules shall be sent to the Board and thereupon the Board shall by special resolution direct that imposition of the tax with effect from a date to be specified in the resolution. The provision is mandatory not only because of the use of the word "shall," but also because the tax cannot be imposed unless the order of sanction and a copy of the rules are sent to the Board and the Board takes a decision with regard to the imposition of the tax with effect from a particular date. When the provision contained in sub-sec. (2) of Section 134 of the Act is mandatory, it will be wrong to hold that a part thereof is mandatory and the rest is directory. The use of the word "thereupon" in the above sub-section will corroborate this inference, namely, that the Board can pass a special resolution directing the imposition of the tax with effect from a particular time only after the receipt of the order of the sanction and a copy of the rules. Copy of the rules will not be sent to the Board till they have been finalised and consequently no special resolution under Sec. 134(2) can be passed before the finalisation of the rules. In the present case, however, special resolutions with regard to both house and water taxes were passed before the rules were finalised by the Commissioner. There was thus non-compliance of the provisions of sub-sec. (2) of Section 134 of the Act. 10. In the present case, however, special resolutions with regard to both house and water taxes were passed before the rules were finalised by the Commissioner. There was thus non-compliance of the provisions of sub-sec. (2) of Section 134 of the Act. 10. It was, however, contended that there had been substantial compliance of the rules and consequently the defect in procedure should not be held to vitiate the imposition of the two kinds of taxes. Such an argument did not find favour with the court in Kedar Nath and Khadim Husain v. Municipal Board, Gorakhpur, 1956 ALJ 198. Further, taxing enactments have to be strictly construed and conditions precedent to the imposition of any tax strictly complied with before the tax can be recovered from assessees. See M/s. Murli Sicka & Co. v. District Council, Bhandara, AIR 1945 Nagpur 171. Similarly, in Radha Kishan Jai Kishan v. Municipal Cormmittee, Khandwa, LR 64 IA 118 the non-mention of the amount or the rate of tax in the resolution was held to vitiate the imposition of tax. 11. During the hearing an additional ground was raised to challenge the maintainability of the petitioner namely, that the petition was moved more that 90 days after the imposition of the taxes, and it was urged that it should be summarily dismissed on the ground of limitation. The taxes were imposed not for one year but for an indefinite period. Consequently, the liability to pay the taxes was not restricted to any particular period but was imposed for all the times to come. In such matters High Courts have viewed the question of delay leniently. Further, the petitioner could rightly challenge the imposition of the taxes only after steps were taken to recover such taxes from him. There always remains a possibility that the Board may realise the mistake committed and may not recover a tax till it has been duly imposed in accordance with the law. If the matter is looked into from this aspect, it cannot be said that there was any unreasonable delay in invoking the jurisdiction of this court under Article 226 of the Constitution. 12. To sum up, the provisions of Sec. 134(2) of the U.P. Municipalities Act were not complied with before the imposition of the house and water taxes and consequently such taxes could not be recovered from the assessee. 13. 12. To sum up, the provisions of Sec. 134(2) of the U.P. Municipalities Act were not complied with before the imposition of the house and water taxes and consequently such taxes could not be recovered from the assessee. 13. The petition is hereby allowed with costs and the respondent, namely, the Municipal Board of Fatehpur, is directed by a writ of mandamus not to realise house and water taxes from the petitioner under the impugned notifications issued by the State Government under/Sec. 135 (2) of the Act.