Ajay Prakash Misra, J. - (1.) THE present writ petition is directed for a writ of certiorari to quash the draft proposal (Annexure 1 to the petition) and further directing the respondent Nos. 1 to 3 not to realise the taxes on the basis of draft proposal. We have heard learned counsel for the parties. The challenge to the said imposition of tax of Tahbazari has been made by the petitioner on a number of grounds. The main ground has been that the State Government has not yet issued any gazette notification regarding the said imposition and in its absence such imposition is illegal.
(2.) THE impugned resolution has been passed by the Town Area Mauaima constituted under the U.P. Town Areas Act, 1914 (hereinafter referred to as the Act). Under Section 14 of the Act a Town Area Committee is empowered to impose a tax upon the rent received by the proprietor or under proprietor, taxes upon the trades, fees for licencing hackney carriages and other fees including Tahbazari, which is subject matter of question in the present case. In this petition, we are concerned with the imposition of Tahbazari leviable under Section 14(2)(b) of the Act. Section 14(2)(b) is reproduced below: 14(2)(b). Tahbazari leviable for the use of public land or public roads. In the present case, Tahbazari was levied by the Town Area Mauaima by means of notification dated 9th March, 1990 under which the taxes which were payable previously were enhanced, according to the petitioner, unreasonably and without any authority of law. The main contention on behalf of the petitioner is that the imposition of the said Tahbazari could only be made by complying with the procedure as laid down under Sections 15 -A and 15 -B of the Act. It is not in dispute that if that section is made applicable then such a tax would be effective only if there is approval by the State Government. Under Section 15 -A of the Act the Town Area Committee by means of resolution, subject to the rules made in this behalf by the State Government, specify the tax being -one of the taxes described in Section 14, which it desires to impose, and further, the amount or rate leviable from any person or class of persons liable or to be made liable for the tax. The committee prepares draft rules, which it desires the State Government to make in respect of the matters referred to in Section 39. After they are published in the manner prescribed, the inhabitants of the town may file objections and the committee thereafter taking into consideration the objections filed may finally settle the proposal. This draft rule is submitted to the prescribed authority and if there is none, the District Magistrate. Thereafter, under Section 15 -B the said authority may either reject the proposal or sanction them with or without modification and that draft rule is forwarded to the State Government. The State Government then frames rules in terms of the same and forwards it back to the District Magistrate and the committee, and the committee then through a resolution directs the imposition of tax with effect from the date to be specified. According to the petitioner, admittedly this procedure having not been followed, the imposition of Tahbazari under Section 14 of the Act by the respondent Town Area is not sustainable in the eye of law.
(3.) ON behalf of the respondent, it was contended that in view of the Notification Nos. 972/XI -871 -E and 974/XI -574 -E, published in the United Provinces of Agra and Oudh Gazette dated April 7, 1928. In exercise of the powers conferred by Section 38(1) of the Act, Sections 208(2)F(d), 298(2)H(h) to (1), 251, 299(1), 301(2) and 301(5) of the U.P. Municipalities Act, II of 1916 have been extended to all the town areas in U.P. in the modified forms set forth in the aforesaid notification. Reliance has been placed on Section 301(2) as modified by the notification, which is reproduced below: - - A copy of the bye -law, made by the panchayat shall be pasted in conspicuous place within the town area, and no bye -law shall take effect until it has been confirmed by the District Magistrate. The only difference is the word "panchayat" referred therein stands substituted by Act II of 1934. The argument on behalf of the respondent in view of this is that the procedure as prescribed under the amended U.P. Town Areas Act, which has been made applicable to the town areas has been followed in this case and in view of this the challenge by the petitioner to the said imposition of tat, if approved by the District Magistrate, is not sustainable.;