Judgment Aftab Alam, J. 1. These two writ petitions/have been heard together mainly because in both cases reliefs are claimed against a common set of respondents, Ranchi Municipal Corporation and its Adminstrator. But the issues raised in the two cases are quite different; CWJC No. 2704/1995 (R) questions the Corporations authority to realise latrine tax and education cess whereas the petitioners in CWJC No. 586/96 (R) seek to challenge certain mode devised by the Corporation for determining the annual rental value of the holdings (hereinafter referred to as A.R.V.) on the basis of which municipal taxes payable in respect of a holding are to be fixed. It will be more convenient, therefore, to deal with the two cases separately, and I propose to do so in this judgment. 2. For the first time after its constitution in 1979 the Ranchi Municipal Corporation, in 1992, took up the work of revision of valuation and assessment lists. Title previous general assessment was made 30 years ago in 1961-62 by the municipality then in existence. For determining A.R.V. of the holdings the corporation formulated a certain scheme which is sought to be challenged in this writ petition as not being sanctioned by law. However, before setting forth the Corporations scheme and examining the petitioners challenge to it, it would be appropriate to briefly out line some relevant antecedent facts and circumstances leading to the filing of this case. 3. Ranchi Municipal Corporation was created by notification dated 15.9.1979 issued under Sec. 2 of the Bihar Municipal Corporation Act, 1978. By another notification. S.O. 1408, issued on the same day under Sec. 4 of the Bihar Municipal Corporation Act, the provisions contained in Chapter XI of the Patna Municipal Corporation Act, 1951 (hereinafter referred to as the Act) dealing with municipal taxation were extended to the newly constituted Corporation. After its constitution no steps were taken by the Corporation to revise the valuation and the assessment lists and it continued to realise municipal taxes on the basis of the general assessment made in the year 1961-62 by the former Municipality and the Notified Area Committee, the Corporations predecessors. It may be noted here that Sec. 138 of the Act provides for revision of the valuation list (Sec. 134) and the assessment list (Sec. 137) once in every five years. It may be noted here that Sec. 138 of the Act provides for revision of the valuation list (Sec. 134) and the assessment list (Sec. 137) once in every five years. The failure of the Corporation to re- determine A.R.V. of the holdings was brought to the notice of this Court in a public interest litigation being C.W.J.C. No. 1491/86 (R) when this Court by order dated 29.1.1991 directed the Deputy Commissioner, Ranchi and the Chief Executive Officer of the Corporation to take up the matter with the State Government earnestly so that the State Government should issue a notification, without any delay, authorising the required number of officers to function as assessors for revision of A.R.V. of the holdings. Following this Courts directions, the State Government issued notification, dated 31.7.1991, under Sec. 147 of the Act appointing seven officers named in the notification as Tax Revision Officers for revising A.R.V. of the holdings. Thereafter on 22.1.1992, notices were issued in daily news papers requiring the Owners/Occupiers of the holdings situated within the Corporation to submit returns furnishing the material details of their holdings as provided under Sec. 134 of the Act. According to the Corporation some of the Owners/Occupiers submitted returns in response to the public notice and in their case assessments were made on the basis of the returns filed by them. In cases where the Owners/Occupiers did not submit returns in response to the public notice, the Corporation sent individual notices. When returns were not filed by some of the Owners/Occupiers even after individual notices given to them, steps were taken to get those holdings inspected and their measurements taken in exercise of power under Sec. 134 of the Act after giving due notices to the Occupiers. 4. At this stage, the Corporation, in consultation with the representatives of the Chotanagpur Chambers of Commerce,the Ranchi Chamber of Commerce, the Jharkhand Chamber of Commerce and a tax payers delegation devised a scheme to determine A.R.V. on the basis of fixed rates per square foot of the constructed area, varying according to the nature of construction in the case of a residential holding and in the case of a commercial holding according to its nature of construction and location. The scheme so devised was published in a notice dated 6.6.1992 according to which A.R.V. of the holdings would be fixed in terms of the notified scheme and municipal taxes would be recoverable on that basis w.e.f. 1.4.1992. 5. This writ petition was filed challenging the aforesaid notice dated 6.6.1992 as contained in Annexure-3 to the writ petition. 6. During the pendency of the writ petition, the impugned notice was withdrawn. But by a letter dated 15.2.1993 issued by the Administrator of the Corporation, all the Assessment Officers were told that in fixing A.R.V. of the holdings it would be desirable to follow the scheme suggested in that letter which was substantially the same as contained in the withdrawn notice. A copy of this letter was brought on record as Annexure F to the counter- affidavit filed on behalf of the Corporation and thereafter the petitioners filed an amendment petition bringing it on record as Annexure-7 and making a prayer to be allowed to challenge it in place of the notice dated 6.6.1992. 7. In this letter, the Administrator made the suggestion (without in any manner trying to interfere with the work of the Assessment Officers) that it would be desirable to follow the recommended scheme in determining the A.R.V. of a holding. The scheme recommended in the aforesaid letter, coming under challenge in this writ petition, is as follows: "The holdings are first divided on the basis of their use into two groups (i) residential and (ii) commercial holdings. Residential holdings are then further divided into three categories depending upon their nature of construction and for each category rates per square foot are fixed A.R.V. is then determined by multiplying the total constructed area of the house by the rte fixed for the category to which it belongs. The rates are fixed in the following manner: Nature of Cpnstruction A.R.V. (i) House with R.C.C. roof @ Rs. 1.60 paise per sq. foot (ii) House with roof of asbestos/ @ 0.60 paise per sq. foot garvanised tin sheets (iii) House with tiled/thatched @ 0.40 paise per sq. foot roof 8. On the value so determined a rebate of 30% is allowed where the holding is in the occupation of the owner himself. 9. In case of commercial holdings, houses in addition to their nature of construction are also classified on the basis of their location. foot roof 8. On the value so determined a rebate of 30% is allowed where the holding is in the occupation of the owner himself. 9. In case of commercial holdings, houses in addition to their nature of construction are also classified on the basis of their location. No attempt was made to identify the locations within the Municipal Area which were considered commercially more profitable. It was, however, pointed out to the Assessment Officers that some locations were more profitable then others for commercial purposes and taking that aspect into consideration. The Assessment Officers should classify the houses in commercial use as falling in Zone-I or Zone-II. Then taking into account, their nature of construction, A.R.V. of commercial holdings was to be determined at the following rates: RCC Roof Asbestos/Galvanised Tiled/ thatched sheet roof roof Zone I Rs. 5 per sq. ft Rs. 2.50 per sq. ft. 0.90 paise per sq. ft. Zone II Rs. 3.50 per sq. ft. Rs. 1.75 per sq. ft. 0.70 paise per sq. ft. At this stage, it may be noted that though in the scheme as contained in the letter dated 15.2.1993, the two zones within the municipal limits are left unidentified, in the notice dated 6.6.1992 the two were clearly identified and demarcated inasmuch as only the houses on either side of the main road starting from under the over-bridge and passing through the Kutchery road, Ratu Road, Kaparka More were said to belong to Zone I. 10. In course of submissions, Mr. N.K. Prasad, learned senior counsel submitted that though not specified in the letter dated 15.2.1993, in practice, that was the scheme followed and the houses in commercial use on either side of the Ranchi Main Road are only classified as falling in Zone I. 11. A rebate of 15% is allowed in case of a commercial holding in which the owner himself carried on the commercial activity. 12. A further rebate of 10% was allowed both on commercial and residential holdings in case the building was 25 years old. 13. On A.R.V. determined on the basis of the aforesaid scheme different Municipal taxes, Health Cess and Education Ceses are levied which together add up to 43.75% of the holdings A.R.V. 14. It is the aforesaid scheme for determining A.R.V. of the holdings which is sought to be challenged by the petitioners in this writ petition. 15. Mr. 13. On A.R.V. determined on the basis of the aforesaid scheme different Municipal taxes, Health Cess and Education Ceses are levied which together add up to 43.75% of the holdings A.R.V. 14. It is the aforesaid scheme for determining A.R.V. of the holdings which is sought to be challenged by the petitioners in this writ petition. 15. Mr. A.K.Sinha, learned Counsel appearing on behalf of the petitioners submitted that the Corporation had no jurisdiction to fix the rates of taxes and the power to fix the rates of taxes vested with the State Government, According to the counsel under Sec. 227 of the Act the Corporation was only authorised to collect the taxes. Mr.Sinha further sought to develop the point by submitting that the Corporation had power to make rules only on the subjects enumerated in Sec. 538 of the Act but none of the subjects listed in that Section related to tax or rates of tax and therefore it was not within the Corporations power to formulate any scheme fixing the rates of taxes. 16. The submission appears to be quite unfounded. By the impugned scheme the Corporation does not seek to fix or revise the rates of taxes. The scheme is devised to determine Annual Rental Value of the holdings on the basis of certain uniformly applicable principles. The rates at which taxes are to be levied on the basis of the holdings A.R.V. remain unmodified. Moreover, it is also quite incorrect to contend that the Corporation does not have any authority to fix the rates of taxes on holdings. Sec. 136 of the Act specifically confers upon the Corporation the authority to determine the rate of tax on holdings. Sec. 545 further authorises the administrator to exercise, perform or discharge the powers, duties and functions which are conferred or imposed by or under the Act or the Corporation. 17. Mr. Sinha next submitted that the rate of taxes could be fixed only by framing rules by the State Government as in the case of the Patna Municipal Corporation. In this connection, he further submitted that if the scheme contained in the letter dated 15.2.1993 (Annexure-7) was to be treated as statutory in nature it must be held to be bad and inoperative since it had not received confirmation by the State Government as required under Sec. 539 of the Act. This submission too is equally unacceptable. In this connection, he further submitted that if the scheme contained in the letter dated 15.2.1993 (Annexure-7) was to be treated as statutory in nature it must be held to be bad and inoperative since it had not received confirmation by the State Government as required under Sec. 539 of the Act. This submission too is equally unacceptable. It is quite misconceived to describe the modalities contained in the scheme as statutory rules and then to try to find statutory sanction for framing such rules. The scheme is no more then a set of common sense, principles which are intended to be uniformly applied for determining A.R.V. of the holdings within the Corporation. What is to be seen, therefore, is whether or not the scheme satisfies the test of reasonableness ? Seen from this point of view the whole controversy would simply boil down to whether the rates per square foot of constructed area for the different categories of residential and commercial holdings are fixed on a realistic basis or those rates are fanciful and arbitrary? One way to judge this question can be on an empirical basis, i.e., by the results given by those rates. If it is found that annual valuations of holdings fixed on the basis of the scheme are reasonable, realistic and on the moderate side then, in my opinion, no exception can be taken to the scheme. If, on the contrary, the results arrived at are inflated, unreal and fanciful then the scheme must be held to be bad, unreasonable and arbitrary. I will have the occasion to deal with this aspect of the matter in the later part of this judgment. 18. Mr. Sinha next submitted that the Annual Rental Value has to be determined having regard to the fair rent of the building as provided under the Bihar Buildings (Lease, Control and Eviction) Act, 1982. According to him, therefore, the ARV of a holding could be determined only in the manner provided under Sec. 8 (1) (c) of the Bihar Buildings Control Act providing for" the determination of fair rent of a building. In support of his submission Mr. Sinha relied upon Supreme Court decisions in (i) Dewan Daulat Rai Kapoor and Ors. V/s. New Delhi Municipal Committee and Ors. -- , (ii) Morvi Municipality V/s. State of Gujarat -- and (iii) Bhagwant Rai V/s. State of Punjab -- . In support of his submission Mr. Sinha relied upon Supreme Court decisions in (i) Dewan Daulat Rai Kapoor and Ors. V/s. New Delhi Municipal Committee and Ors. -- , (ii) Morvi Municipality V/s. State of Gujarat -- and (iii) Bhagwant Rai V/s. State of Punjab -- . In this regard he further submitted that in terms of Sec. 8 (1) (c) of the Buildings Control Act the fair rent of a building could not be revised so as to enhance the existing rent by more than 25%. In support of this submission he relied upon a Single Judge decision of this Court in Ram Adhin Singh V/s. State of Bihar, 1993 PLJR 637. 19. It would be simpler to first dispose of the submission based on Ram Adhin Singhs case by pointing out that a later decision of a Division Bench of this Court in Sarswati Devi and Ors. V/s. Commissioner of Bhagalpur Division, 1996 (1) PLJR 924 , has taken a contrary view and therefore it can no longer be argued on the basis of Ram Adhin Singhs case that the revision of fair rent cannot be more than 25% of the existing rent. 20. Now coming back to the main submission that Annual Rental Value can only be fixed having regard to the fair rent of the building within the meaning of Bihar Buildings Control Act, it would be appropriate to have a look at Sec. 8 (1) (c) of the Buildings Control Act which contains the provisions for determining the fair rent of a building. Sec. 8 (1) (c) of the Buildings Control Act is as follows: 8(1) (c) " In determining the fair rent of any building under Sec. 5 or 6, the Controller shall have due regard to the prevailing rates of rent in the locality for the same or similar accommodation in similar circumstances at any time during the twelve months preceding the first December 1980, and to the increased cost of repairs, and in the case a building which has been constructed after that date, also to any general increase in the cost of site and building construction: Provided that where the Controller is satisfied, on an application made to him by the landlord under Sec. 5, that the rent of a building referred to in this clause is low, the Controller shall, in determining the fair rent of such building to be payable by a tenant, fix the rent of the building at a figure which shall not be less than the average monthly rent actually paid for the same or similar accommodation by any tenant over the period of twelve months preceding the first December, 1980, increased by not more than 25 per cent of the average monthly rent so received by the landlord during the aforesaid period in addition to the enhancement, if any, on account of the increased cost of repairs or the general increase in the cost of sites and building construction, where such enhancement is admissible under the forgoing provision of this clause." 21. With reference to the aforesaid provisions Mr.N.K. Sinha, learned Counsel appearing for the Corporation submitted that the provisions of Sec. 8 (1) (c) of the Buildings Control Act would be of no assistance in determining Annual Rental Value of holdings with reference to the year 1992 because in terms of the provisions of the Buildings Control Act fair rent was to be determined on the basis of the prevailing rates of rent in the locality during 12 months preceding the 1st day of December, 1980, that is to say, the rent in existence about 12 years before the Corporation took up the revision,of A.R.V. in 1992. 22. Mr. 22. Mr. N.K. Sinha also invited my attention to paragraph 28 of the counter-affidavit filed on behalf of respondents 2 and 3 wherein it is stated that A.R.V. of holdings fixed on the basis of the scheme as cont lined in the letter dated 15.2.1993 work out to be much lower than the fair rt nt generally fixed by the House Controller in respect of such and similar buildings. 23. learned Counsel submitted that in these circumstances the Corporations scheme cannot be held to be bad for deviating from the provisions of Sec. 8 (1) (c) of the Buildings Control Act. He also relied upon the following passage from a decision of the Supreme Court in Srikant Kashinath Jituri and Ors. V/s. Corporation of the City of Beiagwn -- . "Before parting with this appeal, we feel compelled to express our doubts as to the soundness and continuing relevance of the view taken by this Court in several earlier decisions that the property tax must be determined on the basis of fair rent alone regardless of the actual rent received. Fair rent very often means the rent prevailing prior to 1950 with some minor modification and additions. Property tax is the main source of revenue to the municipalities and municipal corporations. To compel these local bodies to levy and collect the property tax on the basis of fair rent alone, while asking them at the same time to perform all their obligatory and discretionary functions prescribed by the statute may be to ask for the impossible. The cost of maintaining and laying roads, drains and other amenities, the salaries of staff and wages of employees- in short, all types of expenditure has gone up steeply over the last more than forty years. In such a situation, insistence upon levy of property tax on the basis of fair rent alone- disregarding the actual rent received- is neither justified nor practicable. None of the enactments says so expressly. The said principle has been evolved by courts by a process of interpretation. Probably a time has come when the said principle may have to be reviewed. In this case, however, this question does not arise at this stage and, therefore, it is not necessary to express a final opinion on the said issue." 24. I find the submissions of Mr. Probably a time has come when the said principle may have to be reviewed. In this case, however, this question does not arise at this stage and, therefore, it is not necessary to express a final opinion on the said issue." 24. I find the submissions of Mr. N.K. Sinha well founded and I do not feel persuaded to strike down the Corporations scheme on the ground that in determining A.R.V. of the holdings it did not follow the provisions of the Buildings Control Act for fixing fair rent of buildings. 25. In this regard what impresses me most is the actual A.R.V. fixed of the holdings on the basis of the impugned scheme, instances of which are given in the counter-affidavit, belonging to the different petitioners. Paragraph 34 of the counter-affidavit gives details of A.R.V. fixed of the houses belonging to ten writ petitioners. Some of the cases are given below by way of illustration. 26. It is stated in paragraph 34 (i) that petitioner No. 2 is the owner of House bearing Holding No. 452/1 with in ward No. 13. He has constructed a residential house with asbestos sheets roof measuring 1413.37 sq. feet and an additional Khapra Posh portion measuring 787.85 sq. ft. On the basis of the rates formulated in the scheme and after allowing him a 30% rebate for self occupation the Annual Rental Value of the holding is fixed at Rs. 1012 on which the Annual tax payable is Rs. 442.00 . 27. Petitioner No. 3 has a single storeyed building (holding No. 555/A within ward No. 7) measuring 2078 sq. feet and an additional constructed area measuring 2146 sq. feet with asbestos sheets roof a portion of which is being used for commercial purpose. On the basis of the impugned scheme the annual value of the holding is fixed at Rs. 551 on the basis of which the annual tax payable is Rs. 2411. He filed an application for review under Sec. 150 of the Act which was rejected. He did not file an appeal as provided under Sec. 152 of the Act but filed this writ petition. 28. Petitioner No. 5 ownes holding No. 546/D 10 within Ward No. 6. A portion of the holding measuring 1000 Sq.ft. is occupied by her personally. The remaining portion, is 1916 sq.ft. in area, has been led out of rent. He did not file an appeal as provided under Sec. 152 of the Act but filed this writ petition. 28. Petitioner No. 5 ownes holding No. 546/D 10 within Ward No. 6. A portion of the holding measuring 1000 Sq.ft. is occupied by her personally. The remaining portion, is 1916 sq.ft. in area, has been led out of rent. The Annual Rental Value is determined at Rs. 4185 and the annual tax payable is Rs. 895. 32. 29. Similar details are given in respect of the houses owned by the other petitioners and from those details. It appears to me that the scheme has actually worked out very reasonably in determining the Annual Rental Value of holdings and the annual valuations of holdings determined on that basis cannot be said to be inflated, arbitrary or unreasonable ; if anything the valuations appear to me to be on the moderate side. It is also stated in the counter-affidavit that most of the petitioners did not file any objections, appeals etc. against the A.R.V. determined in respect of their holdings. 30. Having regard to the A.R.V. of holdings actually determined on the basis of the scheme I as firmly of the view that on empirical basis the scheme fully satisfies the test of reasonableness. 31. Mr. Sinha lastly submitted that A.R.V. of the holdings determined on the basis of the impugned scheme formulated by the Ranchi Municipal Corporation appeared to be on a much higher side in comparision with A.R.V. of the holdings in Patna determined on the basis of the 1993, Rules. On behalf of the Municipal Corporation a chart has been produced in which A.R.V. of comparable houses at Ranchi and Patna have been worked out under the impugned scheme and under the 1993 Rules. It shows the A.R.V. of the Ranchi houses fixed at lower rates than those for the houses at Patna. 32. Having heard counsel for the parties and having given my careful consideration to the materials brought on record I find that the impugned scheme does not suffer from any informity and no case has been made out for any interference by this Court in this matter. It thus find no merit in this application. It is, accordingly, dismissed. C.W.J.C. No. 586 196 (R.) 33. The petitioners in this application question the Corporations authority to realise Education Cess and Latrine Tax. 34. It thus find no merit in this application. It is, accordingly, dismissed. C.W.J.C. No. 586 196 (R.) 33. The petitioners in this application question the Corporations authority to realise Education Cess and Latrine Tax. 34. So far as the Education Cess is concerned the admitted position is that it is levied under Secs. 12 and 13 of the Bihar Primary Education Act, 1919. The relevant portions of the aforesaid two Sections are reproduced below: 12. "From Primary Education Cess.--The State Government may, by notification-- (a) declare that from a date specified therein the primary education of child ordinarily residing in any area shall be free ; and (b) impose in such area with effect from the same date a cess to be called free primary education cess. 13. "Rato of free primary education cess-- (1) The free primary education cess shall (a) * * ** ** (b) in the area to which the Patna Municipal Corporation Act, 1951 (Bihar Act XIII of 1952), applies, be forty per cent of the tax on a holding under clause (a) of Sec. 123 of the Act and shall be recoverable in the same manner as if it were tax, and (c) * * * * + * (2) The proceeds of the free primary education cess realised under clauses (a) or (b) of Sub-sec. (1) shall, after deducting ten per cent, thereof as collection charges, be deposit in the Government Treasury and shall form part of the Consolidated Fund of State. (3) * * * * * * (4) The net proceeds of the primary eduction cess shall be applied wholly to the provisions of free primary education and purposes connected therewith (including the provision of school accommodation) in the State." 35. From the provisions quoted above it is evident that the levy of Education Cess is not made by the Corporation but by the State Government ; the Corporation is simply required to realise it as an agent of the State Government and to deposit the proceeds in the Government treasury as provided under Sub-section(2) of Sec. 13. It is also evident that Education Cess is nothing more than an addition to existing taxes on Municipal holdings. 36. Mr. It is also evident that Education Cess is nothing more than an addition to existing taxes on Municipal holdings. 36. Mr. Rajiv Kumar, learned Counsel appearing on behalf of the petitioners, however, contended that the imposition of Education Cess was bad because the State Government did not have the legislative competence to impose any such levy. learned Counsel made elaborate submissions in support of his contention. He submitted that though the Bihar Primary Eduction Act was a pre-constitutional Act having been enacted in 1919, Sec. 12 providing for free primary education and imposition of free primary education Cess was introduced in the Act in 1959 after the coming into force of the Constitution. According to him, therefore, the provisions of Sec. 12 and 13 of the Act must be declared as ultra vires the Constitution unless it could be shown that the imposition of education Cess was in accordance with the constitutional provisions and the State Government possessed the legislative competence for making such an imposition. learned Counsel further submitted that prior to the 42nd Constitutional Amendment, w.e.f. 3.1.1917, there was no Entry either in List II or III of the VIIth Schedule to the Constitution which could justify the imposition of Ccess on eduction by the State Legislature. Entry 25 which was substituted in List III of the VIIth Scheduled by the Constitution (42nd Amendment) Act, 1976 (w.e.f. 3,1977 empowered the State to legislate on education, including technical education, medical education and universities, subject to the provisions of Entries 63,, 64, 65 and 66 of List I; Vocational and Technical Training of Labour. learned Counsel further submitted that Entry 25 in List III of Vllth Schedule was not a taxing entry but only empowered the State to frame laws regarding education. In support of his submission learned Counsel relied upon a Supreme Court decision in State of Mysore and Ors. V/s. D. Cawasji & Co. and Ors. -- . 37. In my view the submissions made on behalf of the petitioners are quite misconceived inasmuch as they are founded on the premise that education Cess was a tax on education. In support of his submission learned Counsel relied upon a Supreme Court decision in State of Mysore and Ors. V/s. D. Cawasji & Co. and Ors. -- . 37. In my view the submissions made on behalf of the petitioners are quite misconceived inasmuch as they are founded on the premise that education Cess was a tax on education. Having first made this incorrect assumption learned Counsel proceeded to argue that there was no entry in either List II or List III to cover the Cess and in the same vein went on to submit that the Cess in question could not be justified even on the basis of Entry 25 in List III of the Vllth Schedule which was introduced w.e.f. 1. 1977. As noticed above, the education Cess is nothing more than an addition to existing taxes on Municipal holdings and it is unquestionable that the State is fully competent to levy such a tax under Entry 49 in List II of the Vllth Schedule. 38. Reliance placed by the learned Counsel in the case of D. Cawasji & Co is equally misplaced. In that case Sec. 9 read with the Schedule to the Mysore Elementary Education Act, 1941 provided for the levy of an Education Cess on various items of State Revenue including excise revenue. In exercise of that power the State Government imposed education Cess on shop rent treating it as forming part of excise revenue. The Mysore High Court struck down the levy on the ground that shop rent was not excise revenue. In appeal the Supreme Court, relying upon an earlier judgment by it, upheld the finding of the Mysore High Court and observed as follows: "The court further held that a payment for the exclusive privilege of selling toddy from certain shops was called shop rent. The licencee paid what he considered to be equivalent to the value of the right and it had no relation to the production or manufacture of of toddy, and that the shop rent was not excise duty withing the meaning of Entry- Si of List II of the Constitution. The licencee paid what he considered to be equivalent to the value of the right and it had no relation to the production or manufacture of of toddy, and that the shop rent was not excise duty withing the meaning of Entry- Si of List II of the Constitution. We are bound by this judgment, Shop rent is accordingly not excise revenue within in the meaning of the Schedule to the Mysore Elementary Education Act, 1941 and no Education Cess could be levied on shop rent The Supreme Court decision never said that the State did not have the competence to impose excise duty or to levy education Cess on excise revenue. 39 Moreover, this controversy now stands concluded by an earier Division Bench decision of this Court in C.W.J.C. Nos. 893/94 (R) and 2655/92(R). In those cases a challenge was raised regarding the legislative competence of the State legislature to enact laws relating to the levies of education Cess and health Cess. By judgment and order dated March 27, 1996 a Division Bench of this Court rejected the chalenge and held that there was no lack of legislative competence in the state to levy education cess on taxes on Municipal holdings. In paragraphs 13 to 16 of that judgment. It was held as follows: 13. "This Court is unable to accept the aforesaid submissions. The authority to impose a tax and the utilisation of the proceeds of the tax are two completely different things. If the court are finds, as it does find in the instant case that the State legislature is competent to impose both the levies in view of the provisions of Entry- 49 of List-2 of 7th Schedule, the utilisation of the proceeds of the said tax by the State in exercise of its soveriegn power is bound the ambit of the Courts scrutiny 14. The Court can strike down the levy if it is shown that the State Legislature is not empowered under any of the entries of the concerned List to impose the cess, but once it is fund that the State Legislature is empowered to impose the levy than the court cannot ; subject to the provisions of parts II and XIII of the Constitution, interfere and declare the levy as unconstitutional. 15. 15. It is also well known that the entries in the list under the 7th Schedule have to be very liberally and broadly construed, as the entries are virtually fields of legislation. 16. Going by the well known principle of construction of legislative entires in the 7th Schedule this Court is unable to hod that the impugned levies are not covered under Entry 9 List-2 of the 7th Schedule. 40. Before parting with the question of Education Cess I may also briefly not the submissions made by Mr. A.K. Sinha, who though mainly appearing in C.W.J.C. No. 2704/95 (R) also made some submissions on this question raised in this case. Mr. Sinha submitted that the realisation of Education Cess was bad because though the Corporation was collecting it as an agent of the State Government along with its municipal taxes the proceeds constituting education cess were not being deposited in the Government treasury as required under Sub-sec. (2) of Sec. 13 of the Bihar Primary Eduction Act. Even if the allegations be true, this may be a matter between the State Government and the Corporation but this can hardly be a ground for holding the realisation of education cess as bad and illegal. 41. Mr. Sinha then submitted that no notification under Sec. 12 of the Bihar Primary Education Act was issued in respect of Ranchi and hence no Education Cess could be realised at the rates prescribed under Sec. 13 of the Act. The submission is factually incorrect and the learned Advocate General produced before us notification No. VII/R8-02/59 E-5775 dated 17.11.1959 by which the Governor of Bihar made the necessary declaration under Sec. 12 (1) and imposed in the State (except within the jurisdiction of Jamshedpur and Jugsalai Notified Area Committee) w.e.f. 1.4.1959 a cess to be called free primary Education Cess. 42. Mr. Sinha next contended that the Bihar Primary Education Act, 1919 stands repealed, at least impliedly by Sec. 9 of the Bihar Non- Government Elementary School (Taking Over of Control) Act, 1976. I am unable to accept this submission. The relevant portion of Sec. 9 of the Take Over Act is as follows: 9. Repeal of Savings--(1) All provisions relating to non-Government elementary schools under the Bihar and Orissa Local self- Government Act of 1885 (Ben. Act III of 1885). The Bihar and Orissa Municipal Act, 1922 (Bihar and Orissa Act VII of 1992). The relevant portion of Sec. 9 of the Take Over Act is as follows: 9. Repeal of Savings--(1) All provisions relating to non-Government elementary schools under the Bihar and Orissa Local self- Government Act of 1885 (Ben. Act III of 1885). The Bihar and Orissa Municipal Act, 1922 (Bihar and Orissa Act VII of 1992). The Patna Municipal Corporation Act, 1951 (Bihar Act XIII of 1952) and the Bihar Panchayat Samities and Zila Parishads Act, 1961 (Bihar Act VI of 1962) any other enactment in force at the time of enforcement of this Act shall stand repealed: 43. The underlined portion in the aforequoted provision would clearly show that provisions what were repealed were provisions in different enactments relating to non-Government elementary schools. The repealing Section did not touch upon any provisions concerning free primary education and imposition of a cess for that purpose. 44. For the reasons stated above, I find no merit in the challenge to the imposition of education cess by the State Government and its realisation by the Corporation. 45. Coming now to Latrine tax it was contended on behalf of the petitioners that the Corporation had no authority to realise it in view of the restriction imposed under Sec. 126 (d) of the Act. 46. It may be noted here that Latrine tax is one of the several taxes which the Corporation is empowered to impose under Sec. 123, the relevant portion of which is as follows: 123. Power to impose taxes-- (1) For the purpose of this Act, the Corporation may, with the previous approval of the State Government, impose the following taxes, namely: (a) a tax on holdings * * * * * * (b) a water tax * * * * . * * (c) a latrine tax assessed on the annual letting value of holdings: Provided that the tax mentioned in this clause shall not be imposed in an area in which a sewerage system has been established in execution of a scheme sanctioned under Chapter XXI and a drainage tax has been imposed ; (d) a lighting tax ** ** ** (e) a drainage tax assessed on the annual letting value of holdings ; 47. Sec. 126 lays down the restrictions on the imposition of latrine tax and it is in the following terms: 126. Sec. 126 lays down the restrictions on the imposition of latrine tax and it is in the following terms: 126. Restriction on the imposition of the latrine tax--The imposition of the latrine tax shall be subject to the following restrictions, namely: (a) that the tax shall be imposed only on holdings containing dwelling houses, latrines, urinals or cesspools, and on holdings containing shops or places of business in which, in the opinion of the Corporation, a latrine, urinal or cesspool is required ; (b) that the Corporation may exempt from payment of the tax any jail, reformatory or lunatic asylum in which an establishment is maintained for the cleansing of latrines, urinals and Cesspools therein or may grant rebates at such rates as may be prescribed in respect of holdings provided with septic or water-flush latrines , (c) that in fixing the rate at which the tax is to levied regard shall be had to the principal that the total net proceeds of the tax shall not exceed the amount required for cleansing private and public latrines and urinals, together with the amount required to establish and maintain a depreciation fund for the purpose and to meet the proportionate share of the cost of supervision and collection as fixed under Sec. 91 and the repayment of interest on, any loan incurred in connection with this purposes ; (d) that the tax shall not be leviable in any area until the Corporation has made provision for the cleansing of private latrines, urinals and cesspools within such area, nor shall the tax be leviable for any quarter or portion of a quarter antecedent to the making of such provision ; (e) that the rate of the tax on any holding shall not be imposed at a rate higher than that of ten per centum on the annual value ; (f) the Corporation at a meeting may impose surcharge at such rates as may be prescribed by the State Government in respect of holdings containing service latrines, that is latrines which are not water flush latrines." 48. According to the petitioners the Corporation has not made any provisions for the cleansing of private latrines etc. and therefore its imposition and realisation of latrine tax is hit by Sec. 126 (d) of the Act. 49. According to the petitioners the Corporation has not made any provisions for the cleansing of private latrines etc. and therefore its imposition and realisation of latrine tax is hit by Sec. 126 (d) of the Act. 49. Before proceedings to examine the pleas advanced on behalf of the Corporation in order to justify the imposition of latrine tax, I would like to observe that I am inclined to agree with the petitioners contention that latrine tax though described as tax is nevertheless a service oriented tax in its nature. This wold be evident on a closer scrutiny of the nature of restrictions on imposition of this tax. Sec. 126 (a) provides that latrine tax can be imposed only on holdings which contained latrines, urinals or cesspools or wherein the opinion of the Corporation a latrine, urinal or cesspool was required. In other words, no latrine tax can be imposed on a holding which did not contain or did not, in the opinion of the Corporation, requires a latrine, urinal or cesspool. Sub-clause (b) exempts from payment of the tax in question certain institutions, which might have mentioned their own establishments for the cleansing of their latrines, urinals and cesspools from payment of the tax in question. Sub-sec. (c) provides that the rate at which the tax may be levied must not exceed the actual expenses incurred by the Corporation for cleansing private and public latrines and urinals and the amount required to maintain a depreciation fund and to repayment of interests etc. Sub-section (e) further imposes a maximum ceiling of 10% of the annual value of the holding. Sub-sec. (d) is more specific and prohibits the Corporation from levying the tax unless it has made provisions for the cleansing of public latrine, urinal and cesspool. It thus appears to me that latrine tax is clearly a service oriented tax and the rates at which it is to be realised must bear proportion to the expenses (in the wider sense) incurred by the Corporation in rendering the services. 50. It is in this back ground that I propose to examine the pleas advanced by the Corporation to justify its imposition of latrine tax. 51. In paragraph 7 of the counter-affidavit reliance is first sought to be placed on Sub-sec. (c) of Sec. 126. 50. It is in this back ground that I propose to examine the pleas advanced by the Corporation to justify its imposition of latrine tax. 51. In paragraph 7 of the counter-affidavit reliance is first sought to be placed on Sub-sec. (c) of Sec. 126. This to my mind is clearly misplaced inasmuch as Sec. 126 (c) deals only with the question of rates of tax. Here the very imposition of tax is under challenge for non-compliance with Section 126 (d) and therefore what is required to be shown is that the Corporation is making compliance with the provisions of Sec. 126 (d). 52. What is further stated in paragraph 7 of the counter-affidavit is as follows: "It is relevant to state here that on coming into force of Sec. 303A of the Patna Municipal Corporation Act, there respondents gave notices to the respective owners to demolish/close the service latrines and convert the same into no water flush latrines. Thereafter steps were taken to convert the service latrines to Sulabh Shauchalaya. For this fifty per cent of the amount of expenditure was granted by way of subsidy and the balance fifty per cent was granted by way of loan by the Corporation. Such step was taken in more than twenty thousand cases and huge amount has been spent. It is stated that fifty per cent of the loan amount is subject to recovery but uptil now very meagre amount has been recovered. The aforequoted plea appears to be quite misconeived because recovery of loans given for conversion of service latrines into Sulabh Shauchalaya can be no ground for imposition of latrine tax as provided under Sec. 123 read with Sec. 126 of the Act. More so, as Sec. 303A, providing for the conversion of service latrines into water flush latrines itself empowers the Chief Executive Officer of the Corporation to recover the cost of conversion in the same manner as arrears of taxes. 53. In the same paragraph of the counter-affidavit it is then stated as follows: "Further these respondents have constructed several latrines, urinals etc. throughout of the Corporation area which is being regularly usedb, cleaned and maintained." 54. This obviously refers to construction and establishment of public latrines and urinals but the maintenance of public latrines, urinals etc. 53. In the same paragraph of the counter-affidavit it is then stated as follows: "Further these respondents have constructed several latrines, urinals etc. throughout of the Corporation area which is being regularly usedb, cleaned and maintained." 54. This obviously refers to construction and establishment of public latrines and urinals but the maintenance of public latrines, urinals etc. is not the same as the conditions stipulated in Sec. 126 (d) and therefore this plea is also of no avail to the Corporation. 55. It is further stated in paragraph 7 of the counter-affidavit as follows: "Besides this the Ranchi Municipal Corporation has a work force of around 800 sweepers and the amount spent on this work force on account of salaries and allowances together with the amount required for cleansing private and public latrines and urinals is mugh higher than the latrines tax collected." The deponent states that the latrine tax thus levied is much less than what is enjoied in Sec. 126." This again does not seem to satisfy the requirement of Sec. 126 (d) of the Act. Finally in paragraph 9 of the counter-affidavit it is stated as follows :- 9. "That the petitioners averments made in paragraph 9 of the writ application that the respondents Corporation has not made any provisions for cleansing of private latrines any where within their jurisdiction is totally incorrect and the same is denied. It is stated that the Corporation has arrangement of cleaning of private septic tank of latrines and sweepers are maintained for this purpose. The Corporation has also tanker for removing the soil form the septic tank of private latrines within its jurisdiction and the same is carried away, from the city for disposal." The second part of paragraph 9 may have some bearing on the question involved in this case but the petitioners in their rejoinder to the respondents coutner -affidavit have controverted the Corporations claim stating that the Corporation does not have any tanker for removal of (night) soil and such tanker is only available with M/s. Sulabh International, a voluntary body which on request being made provides its tanker for removal of soil from septic tank on charges. It is further asserted that the Corporations sweepers do not clean any private latrines but they are engaged for cleaning public urinals, drains, streets etc. 56. The Corporation has filed further affidavit in reply to the petitioners rejoinder affidavit. It is further asserted that the Corporations sweepers do not clean any private latrines but they are engaged for cleaning public urinals, drains, streets etc. 56. The Corporation has filed further affidavit in reply to the petitioners rejoinder affidavit. In paragraph 5 of this affidavit it is stated that the Corporation has not established any Sewerage system as provided under Chapter 21 of the Act and has not imposed any drainage tax. It was , therefore, entitled to impose latrine tax. This plea too does not seem to be quite relevant for the present controversy. The proviso to Sec. 123 (c) and Sec. 126 (d) contain two separate and different grounds prohibiting the imposition of latrine tax. The establishment of sewerage system and imposition of drainage tax refers to the proviso to Sec. 123 (c) but in this case the Corporations authority is in question on the basis of Sec. 126 (d). 57. Finally in paragraphs 7 and 8 of the Corporations further affidavit it is stated as follows: 7."That it is stated that the Corporation has employed serveral scavengers, who clean private latrine, urinal etc. as and when required. In cases, the pipes etc. get choked then the employees of the Corporation go to clean the same and remove the obstruction causing the blockage. Further in many houses out let of the latrine, flows into the Municipal drain, which is regularly cleaned and maintained. It is stated that the Municipal Corporation has employed arounds 800 persons which includes sweepers, scavengers (Mehtar) etc. and the salaries and allowances which area paid to them, is much higher than the latrine tax collected. 8.That these respondents state that, the Corporation, also carries the night soil from the septic tanks on requisition being made by the concerned owner. Therefore, it is totally incorrect to state that the Corporation has not made any provision of cleaning of private latrine." 58. It appears a little strange to me that the Corporation has not enclosed any documents on records with either of the two affidavits filed on its behalf in support of its claim of having privates latrines, urinals, septic tanks etc. cleaned by its employees. It appears a little strange to me that the Corporation has not enclosed any documents on records with either of the two affidavits filed on its behalf in support of its claim of having privates latrines, urinals, septic tanks etc. cleaned by its employees. It does not need much imagination to see that in case the Corporation was having private latrines, urinals and septic tanks cleaned through its employees as claimed by it such activities and deployment of its work force for that purpose must be reflected in the records maintained by it and it would have been the easiest thing for the Corporation to produce the relevant documents and records to falsify the petitioners allegations that no private latrines, urinals or cesspools were being cleansed by the Corporation. In this regard it may further be noticed that despite a number of opportunities afforded to the Corporation in course of the hearing of the case no documents or records were produced to show that any private latrines, urinals or cesspools were cleaned by the Corporations employees or soil from Septic tanks were removed by it. This fact being at the heart of the controversy and being so keenly disputed by the petitioners it was wholly insufficient on the part of the Corporation to merely make some bald and vague assertions when it could have easily clinched the issue by producing the relevant records which ought to have been maintained by it in the normal course of its business and should have been in its own possession. On the basis of some held and vague assertions. I am not inclined to accept the Corporations plea that it has made provisions for the cleansing of private latrines, urinals and cesspools and cleaning operations in private holdings where being carried out by its employee on regular basis. Having record to the pleadings made in this case, I am inclined to accept the petitioners claim that the Corporation had not made any such provisions and no cleaning of latrines etc. in private holdings were being carried out by its employee. 59. At this stage, one may also examine the provisions relating to latrines tax in a historical prospective. Clause (c) of Sub-sec. (1) of Sec. 123 and Sec. 126 are part of the Patna Municipal Corporation Act which was enacted in 1951. in private holdings were being carried out by its employee. 59. At this stage, one may also examine the provisions relating to latrines tax in a historical prospective. Clause (c) of Sub-sec. (1) of Sec. 123 and Sec. 126 are part of the Patna Municipal Corporation Act which was enacted in 1951. In those days most of the houses had service latrines which had to be cleaned on a daily basis by removal of night soil by scavengers and sweepers employed by the Corporation. With the passage of time there has been considerable improvement in sanitary hygiene and servcie latrines has been by any by replaced by water flush latrines. in 1982 Sec. 303A was intorduced in that Act providing for the conversion of service latrines into water flush latrines. Sec. 303A is also follows: 303A. "Conversion of service latrines into water flush latrines-- (1) notwitstanding anything contained in this Act and the rules or bye-laws framed thereunder the Chief Executive Officer shall subject to such rules, as the State Government may make in this behalf, may require by notice to the owner of any service latrines, within a period to be specified in the notice to demolish or clause such service latrines and convert into water-flush latrines and in case of failure to do so by the owner within the specified time the Chief Executive Officer shall himself cause to demolish or close and convert into water-flush latrines, and shall recover the cost thereof in the same manner as arear of taxes. (2) Contravention of the provision of this Section and the rules and bye-laws framed thereunder shall be an offence punishable with fine not exceeding one hundred rupees or with simple imprisonment not exceeding one month or with both or in the case of continuing offence after the first offence to a further fine not exceeding five rupees for each day during which the offence continues." 60. Following the introduction of Sec. 303A the Corporation admittedly gave notices to the owners of holdings to demolish/close the service latrines and to covert them into water flush latrines. Thereafter practically all the private latrines have been converted into water flush latrines and it will be difficult to find a functioning service latrine in any private holding any- longer. Following the introduction of Sec. 303A the Corporation admittedly gave notices to the owners of holdings to demolish/close the service latrines and to covert them into water flush latrines. Thereafter practically all the private latrines have been converted into water flush latrines and it will be difficult to find a functioning service latrine in any private holding any- longer. There is no averment in the Corporations affidavits that there is any longer any service latrine in any holding within the Corporation form where night soil is to remove mannually. The need to cleans private latrines by daily removal of night soil therefore no longer exists and, therefore, it is difficult to see the Corporations employees engaged in cleansing private latrines working on the water flush system. In the aforesaid facts and circumstances the imposition of latrine tax now seems to have become a bit of an anachronism. 61. On the basis of the above noted finding that the Corporation no longer carries out of the cleansing of private latrines, urinals and cesspools, it must be held that it is not authorised to impose and realise latrine tax as provided under Sec. 123 (1) (c) read with Sec. 126 (d) of the Act. Let necessary direction be issued accordingly. 62. This writ petition thus succeeds in part, in so far as imposition of latrine tax is concerned. 63. In the result, C.W.J.C. No. 586/96 (R) is dismissed and C.W.J.C. No. 2704/95 (R) is a partly allowed to the extend indicated above. There will be no order as to costs. N.N.Singh, J. 64 I agree.