Decided on October 06,1953



Mohapatra, J. - (1.) This petition under Article 226 of the India Constitution has been filed on behalf of the villagers of village Gandarpur with a prayer for issue of a writ of mandamus or any other suitable writ or direction under the following circumstances: That the village Gandarpur by Notification dated 7-2-1945, along with other villages was included within the Municipality of Cuttack that thereafter in the year 1946 house- taxes were imposed on the villagers at the rate of 74 per cent, of the valuation of the holdings and the villagers have been paying the house-taxes on the above rate since 1-4-1347; that by an Amending Act of Orissa the maximum rate of assessment or house-taxes was raised from 71/2 per cent, to 121/2 per cent. The petitioners' further case is that since April, 1950 the villagers were paying house- taxes at the rate of 121/2 per cent, of the valuation of the holdings; that thereafter the Orissa Municipal Act having come into force from 16-4-1951, the maximum rate of house-tax was brought down from 121/2 per cent, to 101/2 per cent, of the valuation of the holdings; and that the villagers are paying house- taxes at the aforesaid rate in accordance with the provisions of the Orissa Municipal Act from 1-7-1951.
(2.) The other part of the case of the petitioners is that latrine taxes in respect of the area in question, that is, village Gandarpur, having been imposed Since May, 1950, the petitioners are paying latrine taxes from the next 'Kist' following the assessment of latrine-tax.
(3.) Mr. G. C. Das, appearing on behalf of the petnrs., takes up the first point that inasmuch as no arrangement for cleansing of private latrines, urinals and cesspools of the village area has been made the imposition of latrine tax is illegal as contravening the provisions of Section 134, Orissa Municipal Act which is practically the same as the provisions of Section 86, Bihar and Orissa Municipal Act. Mr. Das particularly relies upon Clause (d) of the said section. The section runs thus: "The imposition of the latrine tax shall be subject to the following restrictions, namely: X X X X (d) that the tax shall not be leviable in area until the Municipal Council have 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." His contention is that the provisions are mandatory to the effect that unless provisions for cleansing of private latrines, urinals and cesspools are made, no tax shall be leviable, and if, as in the present case, the tax is imposed without the said conservancy arrangements the taxation is bound to be declared as illegal.;

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