H.N.Seth,J. - (1.) COMMISSIONER Jhansi Division, vide notification dated 24th December, 1975 issued under Section 135 (2) of the U. P. Municipalities Act, notified imposition of theatre tax by the Municipal Board, Konch, at the rate of Rs. 10/- per show in cinema halls with effect from 1st January, 1976. In due course, the State Government, as required by Section 134 (1) of the Act had also framed rules under Section 296 of the U. P. Municipalities Act in respect of the aforementioned tax. These rules inter alia provided that the owner/manager of the cinema hall was to pay the theatre tax before each show in advance (Rule 2) and that in case the same was not paid, penalty at the rate of Rs. 2/- per show per day would continue to be levied till such time as the tax was paid (Rule 3). It was also mentioned at the foot of the rules that the Board had, in exercise of its powers under Section 299 (1) of the U. P. Municipalities Act, directed that any person contravening any provision in the Rules would be liable to pay a fine which may extend to Rs. 1000/- and in case of continuing breach to an additional fine at the rate of Rs. 25/-. per day.
(2.) PETITIONER Prabhu Dayal Kukreja claims that there is only one cinema hall in the city of Konch known as Mohan Talkies which had been exhibiting film shows with effect from 24th January, 1977 and that he is one of its proprietors. As one Sri Hari Krishna, Manager of Kanhaiya Touring Talkies, had filed a suit against the Municipal Board, Konch challenging the levy of the theatre tax and the Municipal Board did not take any step to realise the same, the petitioner was under the impression that the tax was not being levied and he accordingly did not pay the same. Suddenly, on 30th November, 1977 the Municipal Board published a notice in the newspaper 'Chowdhari Darshan' that the petitioner was being called upon to pay a sum of Rs. 9,960/- as theatre tax for the period 24th January, 1977 to 30th September 1977 together with penalty at the rate of Rs. 2/- per show per day amounting to Rs. 2,49,144/- total Rs.2,59,104/-within fifteen days. As the Municipal Board was pressing the petitioner to pay the aforementioned amount which demand according to him was illegal and unauthorised he has, by means of this petition, approached this Court for relief under Article 226 of the Constitution. Learned counsel for the petitioner invited our attention to the provisions contained in Sections 131 to 135 of the U. P. Municipalities Act which lay down the procedure for imposition of taxes by Municipal Board. The scheme underlying these sections is that the Municipal Board desiring to impose a tax has to pass a special resolution and frame proposal specifying the nature of tax, persons or class of persons to be made liable, the amount or rate leviable from each person etc. and thereafter to publish the same (Section 131). Persons affected are enabled to file their objections and the Board is then required to, after considering those objections finalise the proposal and to submit the same along with the objections received by it to the Prescribed Authority (Section 132). After the Prescribed Authority sanctions the proposal (Section 133) the matter is referred to the State Government for framing of the Rules in respect of the tax proposed to be imposed (draft rules having already been framed by the Municipal Board under Section 131(2)). After the Municipal Board receives the order sanctioning the imposition of tax and the copy of the Rules framed by the State Government, it passes a special resolution under Section 134 (2) of the Act directing imposition of the tax with effect from the date specified therein and the tax stands imposed with effect from that date as soon as the State Government/Prescribed Authority makes the publication in the official gazette as required by Section 135 (2) of the Act, notifying the imposition of the tax. The case of the petitioner, as set out in paragraphs 20 to 28 of the petition, is that to the best of his knowledge the theatre tax levied by the Municipal Board, Konch, is sought to be enforced against him without its having been imposed after strictly complying with the provisions contained in any of the Sections 132 to 135 of the U. P. Municipalties Act. The impost being without authority of law, the Municipal Board is not entitled to press the impugned demand against the petitioner.
(3.) SRI Ram Din, Executive Officer of the Board has, in paragraphs 19 to 27 of the counter affidavit, asserted that the impugned theatre tax has been imposed after strictly complying with all the provisions contained in Sections 132 to 135 of the U. P. Municipalities Act. He has also mentioned the full particulars of various steps that have been taken with a view to comply with the provisions contained in the aforementioned sections of the Act. We have absolutely no reason to disbelieve the statement made by SRI Ram Din in his counter-affidavit and to think that there has, in this case, been any non-compliance of the provisions contained in Sections 132 to 135 of the Act. The petitioner has, in our opinion, failed to substantiate his case that the impugned theatre tax has been imposed by the Municipal Board without there being compliance of the provisions contained in Sections 132 to 135 of the U. P. Municipalities Act and he is not entitled to object to the demand raised against him on this account. Learned counsel for the petitioner next contended that Rule 3 of the Rules regarding theatre tax as framed by the State Government which lays down that the owner/manager of the cinema will, in case he does not pay the theatre tax, be liable to pay a fine at the rate of Rs. 2/- per show per day till such time as he pays up the tax, is ultra vires the rule making power of the State Government and is, as such, invalid. The demand to the extent of Rs. 2,49,144/-raised by the Municipal Board on this account can, therefore, not be sustained and is liable to be quashed.;