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Bhanwarlal Vs. Rajasthan State and ors. - Court Judgment

LegalCrystal Citation
SubjectOther Taxes;Constitution
CourtRajasthan High Court
Decided On
Case NumberCiv. Misc. Writ No. 31 of 1952
Judge
Reported inAIR1953Raj180
ActsConstitution of India - Articles 226 and 265
AppellantBhanwarlal
RespondentRajasthan State and ors.
Appellant Advocate Chandmal, Adv.; Thanchand, Adv.
Respondent Advocate Kan Singh, Asst. Govt. Adv.
DispositionApplication allowed
Cases ReferredIndian Sugar Mills Association v. Secy.
Excerpt:
- - as we have already mentioned, it is conceded on behalf of the state of rajasthan as well as the municipal board that the levy and collection of this tax since 26-1-1950, is not autho-raised by any law. in this particular case, he is the person who is being threatened with coercive processes, and, under these circumstances, he is clearly interested in the matter, and can come to us for the relief......days, the municipal board would be constrained to take action under section 89, rajasthan town municipalities act (no. 23) of 1951. that section provides for recovery of municipal claims, and if the bill presented under that section by the municipality is not paid within a certain time, certain coercive processes provided in subsequent sections of the act can be taken. as soon as the applicant came to know that the municipality was going to take coercive action against him, he came to this court on 10-5-1952.3. it is conceded by the opposite parties that there is no law in support of this tax which began to be realised from august, 1950. it appears that the municipal board of pali requested the government of rajasthan in august, 1949, to sanction the imposition of certain taxes.....
Judgment:

Wanchoo, C.J.

1. This is an application by Bhanwarlal under Article 226 of the Constitution of India, and arises in the following circumstances :

2. The applicant is the proprietor of a Cinema in Pali. This Cinema used to be known as Chitra Talkies, and is now known as Rajen-dra Talkies. The Municipal Board at Pali started collecting a tax known as entertainment tax from the cinema goers from August 1950 at the rate of two annas per rupee on the value of the admission ticket. The procedure for collection seems to have been that the applicant used to collect from the cinema goers and pay to the Municipal Board. The applicant continued to do so up to June 1951. Thereafter, it appears that he was advised that the tax was illegal. He, therefore addressed a letter to the Municipal Board, Pali, in July 1951. In it he said that the tax was illegal under Article 265 of the Constitution of India. He therefore wanted the Municipal Board to refund the amount which had already been realised from him, & also said that he would not pay the tax anymore, and added that in case any coercive methods were used against him, he would be constrained to go to the law Courts. Correspondence seems to have passed between the applicant and the Municipal Board of Pali, and the latter told him that if he stopped paying the tax legal action would have to be taken against him. Eventually, on 28-4-1952, the Executive Officer of the Municipal Board, Pali, informed the applicant that if he did not pay the tax within seven days, the Municipal Board would be constrained to take action under Section 89, Rajasthan Town Municipalities Act (No. 23) of 1951. That section provides for recovery of Municipal claims, and if the bill presented under that section by the Municipality is not paid within a certain time, certain coercive processes provided in subsequent sections of the Act can be taken. As soon as the applicant came to know that the Municipality was going to take coercive action against him, he came to this Court on 10-5-1952.

3. It is conceded by the opposite parties that there is no law in support of this tax which began to be realised from August, 1950. It appears that the Municipal Board of Pali requested the Government of Rajasthan in August, 1949, to sanction the imposition of certain taxes including this tax within the Municipal limits of Pali. The Government conveyed this sanction in December, 1949, and thereafter the tax began to be levied. Whatever may have been the position before the Constitution came into force on 26-1-1950, it is not open to any public body to impose a tax without the authority of law. Article 265 is quite clear on the point, and reads as follows:

'No tax shall be levied or collected except by authority of law.'

If therefore there was any tax in existence before the Constitution came into force, its continued collection depended upon the authority showing that it was levied by authority of some law.

As we have already mentioned, it is conceded on behalf of the State of Rajasthan as well as the Municipal Board that the levy and collection of this tax since 26-1-1950, is not autho-raised by any law. We are told that steps are now being taken under Section 60 and subsequent sections of the Rajashtan Town Municipalities Act (No. 23) of 1951 to levy certain taxes including this tax by the Municipal Board of Pali. If and when the procedure prescribed by Section 60 and subsequent sections is carried out, the taxes so levied thereafter may be according to law, and may not be illegal under Article 265 of the Constitution. But as matters stand today, it is not denied that this entertainment tax is being levied and collected by the Municipal Board of Pali without the authority of law.

4. We are, therefore, of opinion that it is an illegal imposition, and the Municipal Board must be prevented from levying and collecting this' illegal exaction from the citizens of Pali.

5. Though learned counsel did not contest the fact that there was no law in support of this tax, it is contended on behalf of the Municipal Board of Pali that this Court should not intervene. It was urged that the applicant had continued to pay the tax for a period of about ten months. It was thereafter that he refused to do so, and even after that he came to this Court after about another ten months. It is also urged that there was another remedy open to the applicant, and in view of these circumstances this Court should not use its extraordinary jurisdiction under Article 226 in this case.

6. The fact that the applicant continued to pay the tax for about ten months does not mean that what was illegal became legal by his action. All that we can say is that probably the applicant did not know for sometime that the tax was not authorised by law as required by Article 265 of the Constitution. It seems that as soon as he came to know about the illegality of the imposition, he gave notice to the Board that he would not pay the tax any more. Thereafter, he came to this Court after about 10 months; but he has given reason as to why he did not come earlier. He told the Board that he would not pay the tax, anymore, and that if the Board used coercive process against him, he would go to Court. It was only in April, 1952, that the Board informed him that they were going to use their powers under Section 89 and subsequent sections of the Rajasthan Town Municipalities Act (No. 23) of 1951, and the applicant came to this Court immediately thereafter. There was thus no unnecessary delay in this case. Further in a case of this kind where an illegal imposition is being levied, we do not think that mere delay should deter us from passing an order under Article 226, if it is proved that the tax is being levied illegally without any authority of law.

7. The next point that is urged is that the applicant) in any case, is not personally concerned, because he is not the person who has to pay the tax. He is merely a collecting agent of the Municipal Board, and the tax-payer is the person who goes to see cinema shows. It may be that the applicant is not directly paying the tax; but he is certainly interested in the matter, because he is collecting the tax and paying it to the Municipal Board. In this particular case, he is the person who is being threatened with coercive processes, and, under these circumstances, he is clearly interested in the matter, and can come to us for the relief. Learned counsel relied on 'Indian Sugar Mills Association v. Secy. to Government, Uttar Pra-desh Labour Department', AIR 1951 All 1 (FB) (A). The facts of that case were, however, different. There the application was made by the Indian Sugar Mills Association with respect to an order under the Industrial Disputes Act, 1947. It was held that the order in question concerned not the Association, but various mills which were members of the Association, and as such the mills should have made the application and not the Association. In the case before us, however, the applicant is directly concerned in as much as though he is not subject to the tax, he actually collects it and is responsible for paying it. Coercive processes can legally be taken against him and his property. We are, therefore, of opinion that he can maintain this application.

8. Lastly, it has been urged that there was another remedy open to the applicant, and we should not use our extraordinary jurisdiction in his favour. Reliance in this connection was placed on 'Gokulchand. V. Govt. of Rajasthan', AIR 1952 Raj 112 (B). In that case, it was held that the remedy provided by Article 226 of the Constitution was not intended to be an alternative remedy to the normal process of a decision in an action brought in the Courts of law, and that some inconvenience or delay in getting redress by filing a regular suit in law Courts alone should not be considered sufficient to entitle a person to have recourse to the extraordinary remedy under Article 226, unless it can be shown that delay and inconvenience would be such as to make the relief nugatory. That, was however, a case based on contract. The Municipality had sold a certain plot of land to the applicant in that case and granted a Patta to him, and had permitted him to construct houses on that land. Thereafter the sale in favour of the applicant was cancelled, and the plot was sold to a third person. It was in those circumstances that the learned Judges observed that the proper remedy was to go to the regular civil Court. The present is however a case of a tax. Admittedly the tax is being illegally levied without the authority of law Under these circumstances, we feel that even though it might have been possible for the applicant to file a suit, we should not deny him relief under Article 226. It is of the utmost importance that this Court should intervene at the earliest stage to stop illegal exactions of this kind, which are not supported by authority of law.

9. We, therefore, allow this application, anddirect the Municipal Board of Pali net torealise the entertainment tax from the cinemagoers of the applicant's cinema till it can levythe tax by authority of law. We also direct theMunicipal Board of Pali not to take any stepsto realize entertainment tax from the applicantfor the period for which he has not paid thealready. The prayer for refund of the amountalready paid cannot be granted in these proceedings. The applicant will get his costs fromthe Municipal Board of Pali, which we fix atRs. 50/-


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