Vishnu Dutt v. State of U. P. — 1975 DIGILAW 544 (ALL)

JUDGMENT R.L. Gulati, J. - The petitioners 48 in number have in this petition under Article 226 of the Constitution challenged the validity of levy of circumstances and property tax by the Town Area Committee, Charthawal, Muzaffarnagar, the fifth respondent. The only point argued before me is that the impugned tax is a post constitutional levy and since the procedure prescribed in Sections 15-A and 15-B of the Town Area Act (hereinafter referred to as the ' Act") has not been followed, the same is ultra vires. 2. After having heard learned counsel for the parties at length and after going through the record, I am satisfied that the impugned tax is being levied since long before the coming into force of the constitution and is not a post constitutional impost. The Tow Area Committee Charthawal was created by notification No. 1297-A, dated June 5, 1960 issued under Section 3 of Act XX of 1865 (Bengal Chaukidari Act). The said notification, copy were of is annexure A-1 to the counter affidavit after reciting that the provisions of Act XX of 1956 will apply to certain places mentioned therein provided at the end as under : "Under Section 10 of the Act, it is further declared that in the specified places within the districts of Saharanpur, Muzaffarnagar, Meerut, Buandshahr and Aligarh the tax will be levied by an assessment, according to the circumstances and property to be protected of the persons liable to the same." 3. One of the towns mentioned at the foot of the notification is Charthawal. It has been stated on behalf of the respondents that the circumstances and property tax is being levied since then The Bengal Chaukidari Act, 1865 was repealed by Section 41 of the U.P. Town Areas Act, 1914. But the tax on circumstances and property of a person was continued by Section 14. It has been stated on behalf of the respondents that the circumstances and property tax is being levied since then The Bengal Chaukidari Act, 1865 was repealed by Section 41 of the U.P. Town Areas Act, 1914. But the tax on circumstances and property of a person was continued by Section 14. That provision reads : "The panchayat shall annually determine the amount required to be raised in any town area for the purpose of this Act, and the amount so determined shall be raised by the imposition of a tax to be assessed on the occupiers of houses or lands within the limits of the town area according either to their circumstances or to the annual value of the houses and land occupied by them, as the panchayat may determine: Provided that in the case of a tax assessed according to circumstances as aforesaid the amount assessed in respect of any ope person shall not exceed seven rupees eight annas per month, and in the case of a tax assessed according to the annual value of the houses and land, the amount assessed in respect of any house or land shall not exceed 6 per cent of the annual value of the house or land." 4. In 1948 the U.P. Town Areas Act was amended. By Section 14 the powers of Town Area Committee were defined and the kinds of taxes that could be imposed were enumerated. It appears that accidental the power to levy tax on the circumstances and property was left out. This omission was made good by U.P. Act No. XXIII of 1950 Section 3 whether of amended Section 14 by introducing clause (f) therein. Clause (f) reads : - "(f) a tax on persons assessed according to their circumstances and property net exceeding such rate and subject to such limitations and restrictions as may be prescribed : Provided that such a person is not already assessed under clauses (a) to (e) above." 5. Section 1 (2) of the amending Act provides that it shall be deemed to have come into force with effect' from the date of commencement of the U.P. Town Areas (Amendment) Act, 1948. The effect of this retrospective operation was that clauses (f) of Section 14 became operative as if it had been in existence in the 1948 Act. Section 1 (2) of the amending Act provides that it shall be deemed to have come into force with effect' from the date of commencement of the U.P. Town Areas (Amendment) Act, 1948. The effect of this retrospective operation was that clauses (f) of Section 14 became operative as if it had been in existence in the 1948 Act. Section 6 of the amending Act specifically validated the imposition of tax after the commencement of the amendment Act, 1948, in the following words :- "6. Validation of imposition and realisation of tax on circumstances and property after the commencement of U.P. Act XI of 1948. Notwithstanding anything in the principal Act :- (i) where any tax of the nature described in Section 14 as it stood prior to its amendment by the U. P. Town Areas (Amendment (Ameadment) Act, 1948, (hereinafter called the amending Act) has notwithstanding the amendment continues to be imposed, levied or assessessed by any town area committee, the same shall be and is hereby declared to be good and valid in law as if the said amendment had not been made and any such tax may continue to be so imposed, levied or assessed till the 31st day of March, 1950;" 6. The effect of the amendment of Section 14 of the validating provision contained in Section 6 of the amending Act was that continuity of the imposition of tax was ensured and the omission to confer a power upon the town area Committee to levy tax on the circumstances and property after the amendment of the 1948 Act was made good. Any tax on the circumstances and property levied by the Town Area Committee after the coming into force of the amendment Act of 1948 was validated. After 1950 the Town Area Committee were given specific powers to levy tax of that kind by introducing clause (f) in Section 14 which was made to operate retrospectively from the commencement of the Amendment Act of 1948. 7. In the supplementary counter-affidavit of Shri Suresh Chandra it has been stated since the creation of the Town Area Charthawal in the year 1860 the tax was being enforced and ceded Income form or the other. In the past the tax was called Town Chaukidari. Later on it was called as "Town Tax". 7. In the supplementary counter-affidavit of Shri Suresh Chandra it has been stated since the creation of the Town Area Charthawal in the year 1860 the tax was being enforced and ceded Income form or the other. In the past the tax was called Town Chaukidari. Later on it was called as "Town Tax". The counterfoils of the receipts of the taxes realised from the inhabitants of the Town Area Committee for the years 1943 to 1949 have been annexed in original. It has also been stated that petitioner no. 24 Gopichand paid town tax even in the year 1946-47 and Puran Singh petitioner no 36 also paid town tax for the year 1947-48 Qabul Singh father of Chandrapal petitioner no. 37 paid the town tax for the year 1943-44. Relevant receipts have also been filed to support this averment. It is thus clear that the contention raised by the petitioners that the tax came to be levied after 1950 is not correct and it was, therefore, not necessary for the town area committee to follow the. procedure prescribed in Sections 15-A and 15-B of the Act. 8. In Ram Bharosey Lal v. Town Area Committee (1955 N.U.C. 1754) it has been held that Sections 15-A and 15-B apply only to a new tax and not to a tax which is being imposed prior to the introduction of these sections. Circumstances and property tax is clearly being imposed in the instant case since 1860 under the Bengal Chaukidari Act and thereafter under the provisions of the U.P. Town Areas Act, 1914 Section 42 of that Act specifically saves the tax imposed under the Bengal Chaukidari Act. 9. One of the contentions raised by the learned counsel for the petitioners is that Sec. 6 of Act XXIII of 1950 validated the levy of tax up to 31st March, 1950 only and thereafter it was necessary to impose the tax afresh in accordance with the provisions of Secs. 15-A and 15-B of the Act. This contention is not correct. There was no express power with the town ares to levy the tax on circumstances and property because of the accidental commission n in the Amending Act of 1948. It was, therefore, necessary to validate the tax levied in the interval 1948-50. 15-A and 15-B of the Act. This contention is not correct. There was no express power with the town ares to levy the tax on circumstances and property because of the accidental commission n in the Amending Act of 1948. It was, therefore, necessary to validate the tax levied in the interval 1948-50. As the tax is levied for each financial year, the levy for the financial years ending on 31st March, 1950 was validated. Thereafter no validation was necessary because each town area came to possess specific power to levy such a tax under clause (f) of Sec. 14. That is why Sec. 6 restricts the validation of the tax up to 31st March, 1950, 10. Another argument advanced on behalf of the petitioner was that after the repeal of the Bengal Chaukidari Act, 1865 by Sec. 41 of Act 1914, the not fiction issued for the in position of the tax under that Act become inoperative and tax had to be imposed in accordance with the provisions of Secs. 15-A and 15-B of the Act. This argument is fallacious. In the first place, after repeal of the Bengal Chaukidari Act the tax was leviable under the Act of 1914 and therefore, it cannot be said that the tax levied under the Bengal Chaukidari Act was sought to be continued and in the second place Sec 42 of the Act saves all notifications issued, taxes imposed and assessments made under the Bengal Chankidari Act so far as they are consignment with this Act as if they had been under under the present Act, The argument that after the introduction of Secs. 15-A and 15-B the tax being inconsistent with the new Act is not correct. The tax levied under the Bengal Chaukidari Act was also on the circumstances and property of a person and the tax levied under the Act. is also of the same kind. It is not a new tax. In the result the petition fails and is dismissed with costs.