- (1.) This second appeal has been preferred against the judgment and decree dated 8th August, 1977 passed by II Additional District and Sessions Judge, Bijnor dismissing Civil Appeal No. 136 of 1973 and confirming judgment and decree dated 2nd June, 1973 of trial Court in Original Suit No. 92 of 1969.
(2.) Plaintiff filed suit for prohibitory injunction restraining defendants from charging show tax from plaintiff as proposed by them with the allegation that plaintiff is doing cinema business within the limits of Municipal Board, District Bijnor. Plaintiff was served with a notice by which demand of tax from cinema show at the rate of Rs. 1.50 paise per show was claimed from him which is wholly unjustified, and it is in fact a fee which cannot be imposed unless there is an element of quid pro quo between the plaintiff and the defendants, show tax was imposed without following mandatory requirement of Sections 131 to 135 of the U.P. Municipalities Act (hereinafter referred to as the Act), the suit has been filed without giving notice under Section 326 of the Act as the object of the suit would have been defeated by giving the notice because Defendants were in haste to realize said tax.
(3.) Defendants contested suit and filed its written statement making a specific averment that they were realizing this show tax on amusement and entertainment as prescribed under Section 128(iii-a) of the Act and it is a tax not a fee. In paragraph 9 of the written statement they have raised the question of maintainability of Suit as no notice under Section 326 of the Act was given.;