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Allahabad High Court · body

1978 DIGILAW 198 (ALL)

Sardar Gurbachan Singh v. Municipal Board, Amroha

1978-02-15

D.M.CHANDRASHEKHAR, J.M.L.SINHA, R.M.SAHAI

body1978
JUDGMENT A Division Bench of this Court (of which two of us were members) has referred to the Full Bench the following questions of law : (i) If a special resolution purporting to be under sub-section (2) of Section i34 of the Act directing the imposition of a tux with effect from a date specified in that resolution, is pissed by a Municipal Board before and not after it receives the order of the Prescribed Authority (as defined in the Act) or the State Government, sanctioning the proposal of the Municipal Board to levy that tax and a copy of the rules made by roe Prescribed Authority or the State Government under sun-section (1) of that Section, does such parsing of the special resolution before receiving such order and a copy of the rules affect the validity of the tax, in view of the provisions of sub-section (3) of Section la5 of the Act ? (ii) If the State Government or the Prescribed Authority (as defined in the Act) issues a notification {published in the official Gazette) making rules under sub-section (1) of Section 14 of the Act specifying the date from which these rules shall come into force and those rules contain a charging provision imposing tax, can such a notification be regarded a^ being, in substance, a notification under sub-section (2) of Section 135 of the Act?" 2. These questions were referred to the Full Bench bemuse the Division Bench was not inclined to agree with the view taken by another Division Bench of this Court in Swadeshi Cotton Mills Co. Ltd. v. The Municipal Board, Maunath Bhanjan, 1976 UPTC 417. Subsequent to the reference the Supreme Court has reversed the decision of this Court in Swadeshi Cotton Mill's case (supra) (vide The Municipal Board Maunath Bhanjan v. M/s. Swadeshi Cotton Mills Co. Ltd. and others, AIR 1977 SC 1055 . 3. In Swadeshi Cotton Mill's case the Municipal Board had passed on 20-6-1950, a special resolution under sub-section (2) of Section 134 of the U.P. Municipalities Act (hereinafter referred to as the Act providing for imposition of the tax with effect from 15-7-1950. But the Rules under sub-section (1) of Section 134 were published on 7-7-1950. In other words, the special resolution under Section 134 (2) was passed prior to the publication of the Rules under Sub-section (1) of that Section. But the Rules under sub-section (1) of Section 134 were published on 7-7-1950. In other words, the special resolution under Section 134 (2) was passed prior to the publication of the Rules under Sub-section (1) of that Section. Repelling that contention that the special resolution passed prior to the publication of the Rules under Section 134 (1), was invalid, the Supreme Court observed thus at page 1058 of the Report: "The notification shows that the authority concerned not only published the resolution by its notification dated July 7, 1950, but also stated that they shall take effect from July 15, 1950 which was the date fixed by the resolution dated June 20, 1950, for the imposition of the tax. There was therefore no justification for taking the view that the resolution dated June 20, 1950, could not authorise the imposition of the from July 15, 1950, merely because it was passed before the publication of the rules. At any rate any technical defect in the date of the resolution could not have the effect of making the' imposition void in the facts and circumstances of this case." 4. In view of the aforesaid pronouncement of the Supreme Court, the first question referred to us must be answered in favour of the Municipal Board. 5. The answer to question No. 2 is found in the observations of the Supreme Court in para. 8 of its judgment, which read : "Ground No. 3. As has been shown, the notification dated July 7, 1950, which was published under Section 300 of the Act, was, in tact and substance, issued under the authority of sub section (2) of Section 135 and it would not matter if it did not make a specific reference to that sub-section and made a reference to Section 300 instead. The High Court, therefore, erred in thinking that there was no notification under subjection (2) of Section 135 at all. It is the nature of the notification which is decisive of the Section under which it has been issued, and we have no doubt that the impugned notification was really issued under sub-section (2) of Section 135." 6. The High Court, therefore, erred in thinking that there was no notification under subjection (2) of Section 135 at all. It is the nature of the notification which is decisive of the Section under which it has been issued, and we have no doubt that the impugned notification was really issued under sub-section (2) of Section 135." 6. Our answer to the questions referred by the Division Bench are as follows :- "(1) If a special resolution purporting to be under sub section (2) of Section 134 of the U.P. Municipalities Act, 1916, directing the imposition of a tax with effect from a date specified in that resolution is passed by a Municipal Board even before it receives the sanction of the Prescribed Authority or the State Government, for levy of the tax and a copy of the rules made by the State Government under sub-sect on (1) of that Section, such levy of tax is not rendered invalid merely on the ground that such special resolution as passed before and net after the Municipal Board received such sanct on and a copy of such rules. (2) If a notification issued by the Government or the Prescribed Authority states the date from which the rules contemplated in sub-section (1) of Section 134 shall come into force and chose rules contain the charging provision imposing the tax, such notification can be regarded as being, in substance, a notification under subsection (2) of Section 135, provided a special resolution has been passed by the Municipal Board under Section 134(2) prior to that notification." 7. Let our opinion be transmitted to the Division Bench.