CIVIL APPELLATE JURISDICTION: Civil Appeal No. 596 of 1966. Appeal by special leave from the judgment and order dated January 27, 1964 of the Allahabad High Court in Special Appeal No. 270 of 1958. S. T. Desai and C. P. Lal, for the appellant. C. B. Agarwala and J. P. Agarwal, for the respondent. The Judgment of the Court was delivered by Sikri, J.--This appeal by special leave is directed against the judgment of the High Court of Allahabad accepting a petition under Art. 226 of the Constitution and directing the District Board, Moradabad, not to levy upon M/s Nundan Sugar Mills,, Amroha, respondent before us, circumstances and property tax for any one year exceeding the sum of Rs. 200. The High Court held that no special resolution of the Board had been passed, nor had a notification been made imposing the tax, under S. 119 and s. 120, respectively, of the United Provinces District Boards Act, 1922 (U. P. Act of 1922)-hereinafter referred to as the Act. The relevant facts out of which this appeal arises are these On July 28, 1925, it was notified under sub-s. (2) of s. 120 of the Act that the District Board of Moradabad, in exercise of the powers conferred by s. 108, sub-s. (2), of the Act has imposed the following tax, with effect from September 1, 1925:
"A tax on. all persons ordinarily residing or
carrying on business in the rural area of the
Moradabad District according to their
circumstances and property, at the rate of
four pies per rupee on the total taxable
income; provided that the total amount of
tax imposed on any person shall not exceed Rs.
200. Provided also that no income once
assessed shall be reassessed". On May 28, 1927, the District Board took action upon a memorandum prepared by the Chairman of the District Board. The memorandum of the Chairman pointed out:
"......... the maximum amount of tax
recoverable from an assessee should be raised
from Rs. 200/- to Rs. 500/- P.A. Hence
proposal (c) framed under section 115
sanctioned by G. 0. No dated 28-7-25 so be
modified as to read as under:
"That there shall be a rate of tax 4 pies in
the rupee... provided that the total amount of
tax imposed on any person shall not exceed Rs.
The resolution of the Board was in these
terms:
"The bye-laws be modified accordingly after
necessary publication and sanction. The
assessing officer to assess them at 2 pies
(sic) in anticipation of final sanction". On January 11, 1928, the Government of United Provinces issued a, notification amending the rules for the assessment and collection of a tax on circumstances and property in the rural areas of the Moradabad District. The following rule 16 was added:
"16. The total amount of tax imposed on any
person shall not in any year exceed the sum of
Rs. 5001-." On August 31, 1931, the Board passed another resolution approving the following memorandum:
"........ The words and figures ’Rs. 500’ be
substituted by ’Rs. 2,000’ in rule 16 of the
rules for the assessment and collection of a
tax on circumstances and property in the rural
area of the Moradabad district published with
Government Notification No.........dated 11-1-
1928". The exact terms of the resolution were:
"Resolved unanimously that thememo. be
approved and necessary action be taken on
it.If publication is required, it be done and
Government be moved to accord sanction for the
same". On March 18, 1932, the Government of United Provinces issued a notification amending rule 16. The amendment it was in the following terms:
"In Rule 16 published with notification No.
33/IX185(14-24) dated January 19, 1928 ’Rs.
2,000’ shall be substituted for ’Rs. 500". It appears that no further action was taken by the District Board to enforce this amendment in rule 16 or the amendment dated January 11, 1928. Further action is contemplated by ss. 119 and 120, read with s. 12 1, of the Act. These sections may be reproduced in full.
" 119. Resolution of board directing
imposition of tax--
Upon receipt of the copy of the rules sent
under the preceding section, the board shall
by special resolution direct the imposition of
the tax with effect from a date (to be
specified in the resolution) not less than six
weeks from the date of such resolution".
" 120. Imposition of tax-(1) A copy of the
resolution passed by the board under Section
119 shall be submitted to the State
Government. (2) Upon receipt of the copy of
the resolution the State Government shall
notify in the official Gazette the imposition
of the tax from the appointed date, and the
imposition of a tax shall in all cases be sub-
ject to the condition that it has been so
notified. (3) A notification of the imposition
of a tax Linder sub-section (2) shall be
conclusive proof that the tax has been imposed
in accordance with the provisions of this
Act".
"121. Procedure for altering taxes-The
procedure for abolishing or suspending a tax,
or for altering a tax in respect of the
matters specified in clauses (b) and (c) of
sub-section (1) of Section 115 shall, so far
as may be, be the procedure prescribed by
Sections 115 to 120 for the imposition of a
tax".
Clauses (b) and (c) of sub-section (1) of s.
115, referred to in s. 121, read:
"(b) the persons or class of persons to be
made liable and the description of the
property or other taxable thing or
circumstances in respect of which they are to
be made liable, except where and in so far as
any such class ,or description is already
sufficiently defined under clause
(a) or by this Act-,
(c) the amount or rate leviable from each
such person or
class of persons;" It is common ground that the procedure laid down in ss. II 5 to 118 has been followed by the Board. The only dispute between the parties is whether it is necessary that a resolution should be passed under s. 119 and a notification issued under s. 120 before effect can be given to a notification made under s. 118 altering the rules. In other words, was it necessary to pass a resolution under s. 119 after the issue of the notification dated March 18, 1932, or the notification dated January 11, 1928, referred to above? Both the learned Single Judge, and the Division Bench who heard the appeal from the learned Single Judge, have come to the conclusion that without a resolution under s. 119 and a notification under s. 120, no tax can be levied in pursuance of the notification dated March 18, 1932, or notification dated January 11, 1928. It may be mentioned that the High Court directed the District Board not to-levy upon the petitioner circumstances and property tax for any year exceeding the sum of Rs. 200/-. There is no dispute that the Board could levy upon the petitioner tax up to the sum of Rs. 200/-. The learned counsel for the appellant contends that if the procedure laid down in ss. 115 to 118 has been followed, it is not necessary that there should be a resolution under s. 119 and a notification under s. 120. He says that rules can be made under s. 172, read with s. 1.76, of the Act, and once rules are made there is nothing more to be done. But there is one fallacy underlying the argument of the learned counsel, and that is that it misses the object of ss. 119 and 120 which is to fix the date from which the tax can be imposed. If no date is fixed, no tax can be imposed. Once the Board passes a special resolution under s. 119, it has to go to the Government under s. 120, and then the Government notifies the imposition of tax from the appointed date. It is then that the notification becomes conclusive proof of the fact that the tax has been imposed in accordance with the provisions of this Act. Sub-clause (3) of S. 120 clearly proceeds on the basis that the imposition of tax takes place on a notification issued under s. 120 and not on the issue of a notification under S. 118. The learned counsel invited our attention to Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur(1) but we are unable to see how that case assists him. No question of ss. 119 and 120 being directory arises in this case because, in our view, without a resolution under s. 119 and a notification under s. 120, no tax can be imposed. The learned counsel also urges that:-
(a) no writ petition is maintainable
challenging a preConstitution matter, and
(b) the respondent not having appealed under
S. 128 of the Act, the petition was not
maintainable. In our view, there is no merit in these contentions. The respondent is being charged tax now. He is entitled not to be taxed except under the authority of law, vide Art. 265 of the Constitution. There is no question of challenging any pre-Constitution matter. The respondent is challenging a post-Constitution action on the ground that there is no authority of law for the action. Regarding the second point, the High Court held that an appeal to the District Magistrate under s. 128 was not likely to be of much assistance to the petitioner and rejected the contention. It is well-settled that a, provision like s. 128 does not oust the jurisdiction of the High Court to entertain a petition under Art. 226 and it is for the High Court to exercise its discretion whether to entertain the petition or not. The learned counsel has not pointed out anything to us to show that the discretion has not been properly exercised. In the result the appeal fails and is dismissed with costs. R.K.P.S. Appeal dismissed (1) [1905] 1 S.C.R. 970,