M.M.Lal, J. - (1.) ALL these writ petitions are being disposed of by a common judgment because in all of them common question of law arises for determination.
(2.) THE only point involved in these writ petitions is whether after the enforcement of the U. P. Kshetra Simities and Zila Parishads Adhiniyam, 1961 (herein after to be referred as Act) Zila Parishad, Deoria can continue the imposition of Circumstances and Property tax within the limits of town areas. There is no manner of doubt that by virtue of section 121 of the said Act Zila Parishads cannot freshly impose a tax on Circumstances and Property in areas other than rural areas. The said section 121 provides that Zila Parishads may impose a tax on Circumstances and Property "on any person residing or carrying on business in the rural areas." "Rural Area" in turn has been defined in section 2 (10) of the said Act as follows : "Rural area" means the area of a district excluding every municipality, notified area, town area, cantonment and area of Nagar Mahapalika situated in the district." Thus, when a Zila Parishad can impose a tax on Circumstances and Property in the rural area and the rural area does not include an town area then it follows as a corollary that a Zila Parishad has no power and authority to impose a tax on Circumstances and Property within the limits of any town area. Conceding that by virtue of section 121 of the said Act the Zila Parishad cannot impose a tax on Circumstances and Property within the limits of Town Area, learned counsel for the respondents has referred to us section 120 of the sail Act and has urged that because prior to the coming in force of the aforesaid Act a tax on Circumstances and Property had already been imposed, the said tax could be continued to be levied by the Zila Parishad at the same rates and under the same conditions under which it was being levied under the United Provinces District Board Act 1922. It is not disputed that in all these cases the tax had been imposed under the United Provinces District Boards Act, 1922 and the same was being levied prior to the coming in force of the said Act. It is true that had there been no provision in the said Act by which operation of section 120 may have been restricted, then the Zila Parishad could continue to levy the tax on Circumstances and Property even within the limits of Town Area. However, section 37 of the said Act is the provision which debars a Zila Parishad to exercise any authority within the limits of town area. Section 37 of the said Act provides as under :- Sec. 37. Saving in respect of jurisdiction of Zila Parishad and Kshettra Samitis :- Nothing in this Act shall- (1) confer on any Kshettra Samiti or Zila Parishad any right in respect of any work or institution carried out and maintained by any agency not under the control of such Kshettra Samiti or Zila Parishad; or (2) entitle a Kshettra Samiti or Zila Parishad to exercise within the limits of any Nagar Mahapalika, municipality, notified area, cantonment or town area any authority which is vested in the Nagar Mahapalika, municipal board, notified area committee, cantonment board, district magistrate, any other magistrate or town area committee, as the case may be, provided that the Kshettra Samiti or Zila Parishad may nevertheless- (a) ************** (b) construct, maintain and control within the aforesaid limits any school, library, hospital, dispensary, po?r house, asylum, or phange, inspection house or other building or institution which is not maintained exclusively for the benefit of persons residing within the aforesaid limits, and (c) do anything within the aforesaid, limits the doing of which is necessary for the efficient discharge of its functions under the Act."
(3.) IT is thus clear that by virtue of section 37 (1) of the said Act nothing in the said Act shall entitle a Zila Parishad to exercise within the limits of any town area any authority which is vested in the town are a committee. In our view when the said section 37 specifically provides that nothing in the said Act shall entitle a Zila Parishad to exercise any authority within the limits of any town area then the Zila Parishad cannot continue to levy Circumstances and Property tax within the limits of town area. Both section 37 and section 120 of the said Act can be reconciled. Section 128 empowers Zila Parishad to continue to levy Circumstances and Property tax at the same rates and under the same conditions under which it was being levied under the United Provinces District Board Act, 1922. Section 37 (2) on the other hand provides that nothing in the said Act shall entitle a Zila Parishad to exercise within the limits of any Nagar Mahapalika, municipality, notified area, cantonment or town area any authority which is vested in the Nagar Mahapalika, municipal board, notified area committee, cantonment board, district magistrate, any other magistrate or town area committee, as the case may be. IT will, therefore, follow from the same that the Zila Parishad can continue to levy Circumstances and Property tax in whole of the district except the limits of Nagar Mahapalika, municipality, notified area, cantonment and town area. IT is undisputed that under the provisions of Town Areas Act a Town Area Committee has got the authority to impose and levy Circumstances and Property tax within the limits of a Town Area. That being the position the respondents cannot continue to levy and realise Circumstances and Property tax from the petitioners, who are residing and carrying on business in the town areas. In the result, therefore, these writ petitions are allowed and the respondents are restrained from levying and realising Circumstances and Property tax from the petitioners under the provisions of U. P. Kshettra Samits and Zila Parishads Adhiniyam, 1961 from the date Town Areas respondents have come into existence. In case Zila Parishad Deoria has already realized any Circumstances and Property tax for the said period from the petitioners or any of them then the same may be refunded to them by the said Parishad on their filing an application to that effect within six months of the passing of this order. No order as to costs. Petitions allowed.;