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2002 DIGILAW 1150 (ALL)

PRAKASH TALKIES v. NAGAR PALIKA PARISHAD

2002-09-03

O.P.SRIVASTAVA, SUDHIR NARAIN

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SUDHIR NARAIN, J. ( 1 ) THE petitioners seek to quash the Gazette notification dated July 29, 1995, enhancing show tax from Rs. 20 to Rs. 50 and the demand notices issued in pursuance thereof. ( 2 ) THE petitioners are carrying on business of cinema. The Nagar Palika Parishad, Etawah (hereinafter referred to as the Parishad) had fixed Rs. 20 per show payable by the petitioners. The Parishad passed special resolution for enhancement of show tax from Rs. 20 to Rs. 50. A notice inviting objections was published in the newspaper "dainik Savera" dated 8. 10. 1-994. The Parishad passed resolution on 13. 10. 1994 that the show tax be enhanced from Rs. 20 to Rs. 50. They forwarded necessary papers to the Commissioner, Kanpur Division, Kanpur, for sanction of the proposal. A notification dated 10th July, 1995 under Section 300 (1) of the municipalities Act, 1960 (in short the Act) was published in the U. P. Gazette dated 6th May, 1995 by the Commissioner, Kanpur Division, Kanpur, inviting objections for the proposed enhancement of show tax. The Commissioner did not receive any objection and another notification dated 29th July, 1995, was published in the Gazette dated 12th August, 1995 declaring that show tax has been enhanced in the Municipality of Etawah from Rs. 20 to Rs. 50, ( 3 ) WE have heard Sri M. M. Das, learned counsel for the petitioners and Sri Pradeep Kumar, learned counsel for the respondents. ( 4 ) THE learned counsel for the petitioners submitted that for the purposes of enhancement of tax, the procedure prescribed for imposition of tax as provided under Sections 131 to 135 of the municipalities Act should be followed. Section 131 of the Act provides that when a Board desires to impose a tax, it shall, by special resolution, frame proposals specifying therein the matters enumerated in this section. Under Sub-section (2) of Section 135 of the Municipal Act, the Board is required to prepare a draft of the rules, which It desires the State Government to make in respect of the matters referred to in Section 153 of the Act. The Board is also required to publish under Sub-section (3), the proposals framed under Sub-section (1) and the draft rules framed under Sub-section (2) of Section 131 of the Act along with a notice in the form set forth in Schedule III. The Board is also required to publish under Sub-section (3), the proposals framed under Sub-section (1) and the draft rules framed under Sub-section (2) of Section 131 of the Act along with a notice in the form set forth in Schedule III. The Board is under obligation to take into consideration any objection filed by any person under Section 132 of the Act. The Board may notify its proposals. After the proposals are finalised, it shall submit them along with objection, if any, to the Prescribed Authority. When the prescribed authority or the State Government sanctions the proposals, the State Government, after taking into consideration the draft rules submitted by the Board, shall proceed to make rules in respect of tax. Section 135 of the Act provides for notification of imposition of tax. ( 5 ) IF tax has been imposed and the Board wants to make alteration in the tax by enhancement or reduction, it as far as may follow the procedure prescribed by Sections 131 to 135 for the imposition of tax. Section 136 of the Act reads as under : "136. Procedure for altering taxes.-- The procedure for abolishing a tax, or for altering a tax in respect of the matters specified in Clauses (b) and (c) of Sub-section (1) of Section 131, shall, so far as may be, be the procedure prescribed by Sections 131 to 135 for the Imposition of a tax. ". ( 6 ) THE learned counsel for the petitioners submitted that the procedure prescribed under Sections 131 to 135 of the Act was not followed for altering show tax imposed by the respondents. From the facets narrated above, it is clear that the Board has passed a resolution that the show tax be enhanced from Rs. 20 to Rs. 50 as provided under Section 131 of the Act. The petitioners or any other person did not file any objection. The papers were forwarded to the Commissioner, Kanpur division, Kanpur, who was the prescribed authority. The prescribed authority also Issued a notification dated 10th April, 1995 and it was duly notified in the Gazette dated 6th May, 1995, inviting objections from the members of the Etawah municipality but none filed objection. The notification dated 29th July, 1995, was published in the Gazette dated 12th August, 1995, enhancing the show tax as provided under Section 135 of the Act. The notification dated 29th July, 1995, was published in the Gazette dated 12th August, 1995, enhancing the show tax as provided under Section 135 of the Act. The procedure prescribed under the rules has been followed. Secondly, Section 136 provides that for alteration of tax, the procedure prescribed under Sections 131 to 135 of the Act as far as possible may be followed. The expression "so far as it may be" only means that the procedure should be substantially followed. ( 7 ) THE learned counsel for the petitioners emphasised that the Parishad published the notice in the newspaper dainik Savera which was not in wide circulation. The version of the respondent is that dainik Savera is a daily newspaper published in Etawah and has wide circulation. Even otherwise, the notice was published by the prescribed authority in the Gazette dated 6th May, 1995, inviting objections and the petitioners did not submit any objection. It is further contended that the petitioners should have been given personal notice as they are being affected. The provisions regarding proposal for Imposition of tax or alteration of tax in the Municipalities Act does not contemplate any personal notice to Vary one. In Amber Theatre, Modinagar v. Commissioner, Meerut Division. Meerut and Anr. , 1991 AWC 289, it was held that individual notices are not contemplated under the scheme of the Act for a proposal for Imposition of tax or alteration of tax. The learned counsel for the petitioners relied upon the decision rendered in raghunath Thakur v. State of Bihar and Ors. , AIR 1989 SC 620 , wherein the Apex Court held that if a person is blacklisted, he should be afforded an opportunity of hearing on the principle of natural justice. This decision is not applicable to the facts of the present case. ( 8 ) THE learned counsel for the petitioners has relied upon the decision rendered in Azimulla and ors. v. Suraj Kumar Singh and Anr. , AIR 1957 All 307 and Nizam Ali v. Municipal Board, fatehpur, 1962 ALJ 226, wherein the Court held that in absence of any proof of special resolution of the Board, as provided under Section 134 of the Act, the tax cannot be imposed. v. Suraj Kumar Singh and Anr. , AIR 1957 All 307 and Nizam Ali v. Municipal Board, fatehpur, 1962 ALJ 226, wherein the Court held that in absence of any proof of special resolution of the Board, as provided under Section 134 of the Act, the tax cannot be imposed. These cases have no application to the facts of the present case, as the petitioners have not stated in the writ petition that the Board had not passed resolution for enhancement of the tax. The prescribed Authority, taking into consideration the resolution of the Board, had issued a notification dated 10th April, 1995, which was published in the U. P. Gazette dated 6th May, 1995 and another notification dated 29th July, 1995, published in the U. P. Gazette, dated 12th august, 1995. ( 9 ) IN view of the above, we do not find any merit in the writ petition. It is accordingly dismissed. ( 10 ) THE parties shall bear their own costs. .