G. T. NANAVATI, S. H. SHETH, J. ( 1 ) PETITIONER is the managing trustee of Atmanand Jain Punjabi Dharmashala trust at Palitana in Bhavnagar District. There is a Jain temple and a Dharamshala which the trust has been running. The Chief Officer of the Palitana Municipality issued to the petitioner the impugned notice on 17th September 1975 calling upon him to pay a sum of Rs. 6 834. 36 P. on account of education cess payable under the Gujarat Education Cess Act 1962 and a further sum of Rs. 1 708. 75 P. on account of penalty for non-payment in time of the amount of education cess. The petitioner was therefore called upon to pay in all a sum of Rs. 8 545. 11 P. It is that notice of demand which is challenged by the petitioner in this petition. ( 2 ) IT may be stated that the Chief Officer of Palitana Municipality had earlier on 4th September 1975 sent notice of demand to the petitioner which the petitioner had failed to comply with. ( 3 ) MR. R. N. Shah who appears on behalf of the petitioner has raised before us three contentions. The first contention which he has raised relates to the vires of sec. 3 of the Gujarat Education Cess (Validation) Act 1977 According to him this section ultra wires Arts. 13 14 19 (1) (f) and 265 of the Constitution. In order to appreciate the challenge which Mr. R. N. Shah has raised it is necessary to note a few facts which constitute the background. In Special Civil Application No. 45 of 1972 decided on 7 February 1974 by Mr. Justice J. B. Mehta and me levy of education cess by Bagasara Municipality was struck down on the ground that Rules 3 and 4 of Bagasara Municipal Rules which provided the machinery for assessment and levy of education cess were earlier struck down and that therefore there was no machinery to assess it. That decision was followed by Mr. Justice P. D. Desai in Special Civil Application No. 228+of 1974 decided on 14th February 1975. It was a case of Jetpur Municipality. In Special Civil Application No. 1239 of 1975 in which a similar controversy arose Mr. That decision was followed by Mr. Justice P. D. Desai in Special Civil Application No. 228+of 1974 decided on 14th February 1975. It was a case of Jetpur Municipality. In Special Civil Application No. 1239 of 1975 in which a similar controversy arose Mr. Justice A. D. Desai followed the Division Bench judgment above referred to and upheld the contention raised by the petitioner therein He decided it on 21st June 1977. Thereafter in order to validate the collection of education cess which would otherwise be hit by the decision of this Court in Special Civil Application No. 45 of 1972 the Gujarat Legislature passed the Gujarat Education Cess (Validation) Act 1977 hereinafter referred to as the validating Act for the sake of brevity. In the case of Palitana Municipality rules laying down machinery for assessment and collection of house tax were challenged by some one else in a civil suit. Against the decree passed in that suit an appeal was carried to the District Court. Against the appellate decree Second Appeal was preferred in this Court. This Court has held the relevant rules of Palitana Municipality valid and intra vires. (See PALITANA NAGARPALIKA V. ARISA BHUWAN JAIN DHARAMSHALA 20 GLR 24 ). The matter is now pending before the Supreme Court because the Supreme Court has granted special leave to appeal against that decision. So far as this Court is concerned the controversy regarding the validity of the relevant rules of Palitana Municipality has been set at rest. ( 4 ) NOW sec. 3 of the Validating Act provides as under:" (1 ). Notwithstanding anything contained in any judgment decree or order of any court the collection of any tax under sec 15 and the recovery of any penalty under sec. 16 made before the commencement of this Act by the Collector in any urban area in pursuance of a direction issued to him by the State Government under the proviso to clause (b) of sub-sec (1) of sec. 15 shall for all purposes be deemed to be and to have always been validly made by the Collector as if at all material times when such collection or recovery was made clause (b) of sub-sec. (2) of sec. IS had provided that where a direction under the proviso to clause (b) of sub-sec. (j) of sec. 15 shall for all purposes be deemed to be and to have always been validly made by the Collector as if at all material times when such collection or recovery was made clause (b) of sub-sec. (2) of sec. IS had provided that where a direction under the proviso to clause (b) of sub-sec. (j) of sec. 15 has been issued the collection of the tax (including any penalty) shall be made in such manner as the Collector may having regard as far as possible to the provisions relating to the assessment and collection of property tax in the relevant local authority law consider reasonably proper and appropriate in the circumstances of the case; and accordingly (A) the validity of the collection of such tax (including any penalty) or of any proceeding or action taken or thing done or purported to have been taken or done for the purpose of such collection before the commencement of this Act shall not be called in question merely on the ground (i) that no valid or effective rules were made or prescribed for the purpose of collection of such tax or (ii) that the Collector had collected the tax or penalty in such manner as he deemed reasonably proper or appropriate or in accordance with the provisions of or the principles underlying the provisions of the relevant local authority law relating to the assessment or collection of property tax; (B) no suit or other proceeding shall be maintained or continued in any Court against the State Government or any officer or authority whatsoever for the refund of tax or penalty the collection or recovery of which is validated by this Act; and (C) no Court shall enforce any decree or order directing the refund of any such tax or penalty. " sub-sec. (2) of sec. 3 is not relevant for the purpose of present case. ( 5 ) THE first ground of challenge which Mr. R. N. Shah has raised is that sec. 3 does not specify the urban areas to which the Validating ACt applies. Turning to sec. 3 which we have quoted above we find the Legislature having used the expression in any urban area. Any urban area in our opinion means all urban areas. R. N. Shah has raised is that sec. 3 does not specify the urban areas to which the Validating ACt applies. Turning to sec. 3 which we have quoted above we find the Legislature having used the expression in any urban area. Any urban area in our opinion means all urban areas. Sec. 2 (xiv) of the Gujarat Education Cess Act 1962 hereinafter referred to as the principal Act for the sake of brevity defines urban area as follows:" "urban area" means an area which is for the time being included in the limits of a city municipal borough municipal district notified area nagar or cantonment under the relevant local authority law and the population of which is not less than 10000/. " it is clear therefore that by using the expression any urban area in sec. 3 of the Validating Act the Legislature has applied the Validating Act to all urban areas which satisfy the definition of urban area given in sec. 2 (xiv) of the principal Act. the first ground which Mr. Shah has raised therefore fails and is rejected. ( 6 ) THE second ground which he has raised is a corollary of his first ground. He has argued that there is no provision in the Validating Act for its uniform application to all urban areas in the matter of validation collection and refund of tax. On the plain language of sec. 3 of the Validating Ant we are unable to find that it contains any such vice of hostile discrimination between any two urban areas as Mr. P N. Shah has tried to make out. Again any urban area means all urban areas and therefore whatever sec. 3 of the Validating Act validates is validated for all urban areas. The second ground which Mr. Shah has raised against the constitutionality of sec. 3 of the Validating Act therefore fails and is rejected. ( 7 ) THE third ground which Mr. R. N. Shah has raised is that the Act does not contain any provision for collection of tax from those who had earlier paid the education cess and to whom it was refunded later in pursuance of the decision of this Court referred to above. ( 7 ) THE third ground which Mr. R. N. Shah has raised is that the Act does not contain any provision for collection of tax from those who had earlier paid the education cess and to whom it was refunded later in pursuance of the decision of this Court referred to above. There is no evidence before us to show that any municipality or the Government had refunded to any one the education cess which it had unlawfully collected in light of the decision of this court in Special Civil Application No. 45 of 1972. The third argument which Mr. Shah has raised therefore fails and is without any substance. ( 8 ) THE next argument which Mr. R. N. Shah has raised in that the Validating Act does not provide for the validation of the assessment lists and that therefore the unlawful collection of education cess made by the Collector cannot be straightaway validated. This argument suffers from two fallacies. Firstly the Validating Act came to be passed in order to validate the levy and collection of education cess by the Collectors in those areas in which the municipal rules did not provide machinery for assessment and collection. Therefore the question of striking down the assessment list which generally a municipality prepares does not arise. Secondly irrespective of whether the assessment lists are valid or not if any tax is levied unlawfully and collected by the State Government it is open to the State Legislature to pass a Validating Act and to validate it. If a tax can be imposed by a Legislature by enacting a law unlawful recovery of tax can also be validated by a Legislature because validation of the collection of unlawful tax which is always retrospective imparts to it the authority of law which it did not have earlier. Therefore the argument raised by Mr. R. N. Shah is without any substance and is rejected. ( 9 ) THE last argument which he has raised is that sec. 3 of the Validating Act confers uncontrolled discretion upon the Collector in the matter of assessment and collection of tax. The form in which Mr. R. N. Shah has raised this argument appears to concern it self with the collection of education cess by the Collectors. ( 9 ) THE last argument which he has raised is that sec. 3 of the Validating Act confers uncontrolled discretion upon the Collector in the matter of assessment and collection of tax. The form in which Mr. R. N. Shah has raised this argument appears to concern it self with the collection of education cess by the Collectors. Sec. 3 of the Validating Act does not so much provide for future collection of education cess and the manner in which it should he done as validating the unlawful collection made in the past. The question of conferring uncontrolled discretion upon the Collector in the matter of assessment and collection of the tax does not in light of the language of sec. 3 of the Validating Act arise. The last argument which Mr. R. N. Shah has raised therefore fails and is rejected. In the result the first contention raised by Mr. Shah fails and is rejected. ( 10 ) THE second contention which Mr. Shah has raised is that the petitioner is entitled to exemption from payment of education cess under the notification issued by the State Government. It was issued by the State Government under sub-sec. (3) of sec 13 of the principal Act in 1963. He has invited our attention to the following exemption clause:"lands and buildings or portions thereof solely used for public worship or for a public charitable purpose and held for a public trust registered under the Bombay Public Trusts Act 1950 or for a Society registered under the Societies Registration Act 1860. " the petitioner has been contending that the trust of which he is the managing trustee is a private trust and not a public trust. Obvious therefore the petitioners claim to exemption is not supported by Clause 2 in the exemption notification upon which he has relied. ( 11 ) MR. R. N. Shah has however stated to us that the Assistant Charity Commissioner in proceedings instituted under the Bombay Public Trusts Act 1950 has held that the trust of which the petitioner is the managing trustee is a public trust. The petitioner has appealed against that decision to the Joint Charity Commissioner which is still pending. ( 11 ) MR. R. N. Shah has however stated to us that the Assistant Charity Commissioner in proceedings instituted under the Bombay Public Trusts Act 1950 has held that the trust of which the petitioner is the managing trustee is a public trust. The petitioner has appealed against that decision to the Joint Charity Commissioner which is still pending. Under these circumstances all that we can say is that if ultimately the trust of which the petitioner is the managing trustee is held to be a public trust it shall be open to the petitioner to make an application for refund of the amount which he has paid or may pay now. It is also necessary to remember in this context that there is no averment to show that the proparties in question are used for public worship or for a public charitable purpose which attracts the exemption from the payment of education cess under the said notification. The Explanation to Clause 2 in the said notification clearly states that even if a building or a part thereof is solely occupied and used for public warship of for a public charitable purpose it shall not be deemed to be so if rent is charged in respect thereof. However this question is academic at the moment because the appeal before the Charity Commissioner is pending. When those proceedings are finally decided it will be open to the petitioner to seek appropriate relief if one is available to him. The second contention which Mr. R. N. Shah has raised therefore fails and is rejected. ( 12 ) THE last contention which he has raised is that the Chief Officer of the Palitana Municipality who issued the impugned notice dated 10 September 1975 had no authority to issue it in so far as by that notice the Chief Officer levied upon the petitioner penalty and demanded its recovery. In that behalf it is necessary to turn to sec. 16 of the principal Act which provides for levy of penalty for failure to pay tax. Subsec. (1) of sec. 16 provides as follows:"if any person on being served with a notice of demand for the collection of tax in pursuance of the provisions or sec. In that behalf it is necessary to turn to sec. 16 of the principal Act which provides for levy of penalty for failure to pay tax. Subsec. (1) of sec. 16 provides as follows:"if any person on being served with a notice of demand for the collection of tax in pursuance of the provisions or sec. 15 fails so pay within the period mentioned in the notice any amount due from him on account of tax the local authority collector or as the case may be. the Collector of Ahmedabad on being satisfied that such person has wilfully failed to pay the tax may subject to the general or special orders of the State Government recover from him as penalty a sum not exceeding one fourth of the amount of the tax so unpaid in addition to the amount of tax payable by him. " it is, therefore, clear that in the instant case penalty could have been imposed by Palitana Municipality and not by its Chief Officer because it is the Municipality which is the local authority and its Chief Officer is only the principal Executive Officer of the Municipality. The Chief Officer of the Palitana Municipality has filed an affidavit in reply in this case in which he has made the following averment which may be noted with interest:- I deny that the notice at Exhibit B is illegal ultra vires and inoperative at law. However if it is found that it is defective I submit that it should be ignored. Proceeding further he has made the following averment in his affidavit in reply:- I further deny that I have no authority to impose penalty for the taxes not paid and that the notice issued by me is illegal vague mala fide and premature. The Chief Officer has failed to show the authority of law or delegation of power if any from the Municipality on the strength of which he can justify levy of penalty by him on the petitioner. On the contrary he has merely denied that he has no such authority 2nd has asked us to ignore the impugned notice if it is found defective. Nothing has been produced before us to show that the Palitana Municipality has delegated to the Chief Officer the authority to levy penalty upon defaulters and that it has done so validly. On the contrary he has merely denied that he has no such authority 2nd has asked us to ignore the impugned notice if it is found defective. Nothing has been produced before us to show that the Palitana Municipality has delegated to the Chief Officer the authority to levy penalty upon defaulters and that it has done so validly. In our opinion therefore the impugned notice dated 10th September 1975 issued by the Chief Officer to the petitioner in so far as it relates to the levy of penalty is liable to be quashed. ( 13 ) IN the result the petition is partly allowed. A writ of mandamus shall issue directing respondent No. 2 Chief Officer Palitana Municipality not to enforce against the petitioner notice dated 10th September 1975 in so far as it relates to levy of penalty upon him. Rule is made absolute to the aforesaid extent with no order as to costs in the circumstances of the case. (Rest of the judgment is not material for reports.)Petition partly allowed: Leave to appeal granted. .