Decided on July 23,1979

STATE Respondents


G.T.NANAVATI, S.H.SHETH - (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. 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.). 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.;

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