R.R.Misra - (1.) -For the payment of the advertisement tax the petitioner, who is the proprietor of "Sajan Theatre, Varanasi" was served with a demand notice dated 13-2-76 by the Nagar Mahapalika, Varanasi, opposite party no. 2. It appears that the petitioner entered into some correspondence with the Nagar Mahapalika, who insisted that payment of original demand of tax dated 13-2- 1976 has to be made by the petitioner. Accordingly after making the aforesaid payment in the month of March, 1976 the petitioner filed a first appeal on 27-3- 76. Upon hearing of the first appeal, which came up for hearing before the Judge, Small Causes Court, Varanasi, the Nagar Mahapalika opposite party raised a plea that the appeal is barred by time. The said first appellate authority did not agree with the aforesaid preliminary objection raised on behalf of the Nagar Mahapalika-respondent and it by its order dated 31-8-77 held that the appeal of the petitioner-appellant was within time. Aggrieved against the same, the Nagar Mahapalika, Varanasi filed a second appeal before the District Judge, which has been disposed by him vide his impugned order dated 28-3-1980. Under the said order, the District Judge has taken the view that the first appeal filed by the petitioner was beyond time and the view taken to the contrary by the learned Judge, Small Causes Court was erroneous and, therefore, he set aside the said order dated 31-8-1977.
(2.) THE sole question for consideration in this writ petition is as to whether the appeal presented before the first appellate authority was within time. I have heard learned counsel for the petitioner. The first submission made by the learned counsel for the petitioner is that on the facts of this case, the case of the petitioner is governed by the provisions of section 473 (d) of the said Adhiniyam. To appreciate the said contention of the learned counsel for the petitioner it is necessary to have a view of the scheme of levy of advertisement tax under the U. P. Nagar Mahapalika Adhiniyam, 1959. In regard to the advertisement tax the charging section is Section 172 (2) (h) of the said Adhiniyam, which reads as follows : (2) In addition to the taxes specified in sub-section (1) the Mahapalika may for the purposes of this Act and subject to the provisions thereof impose any of the following taxes, namely,- (h) a tax on advertisements not being advertisements published in newspapers ; "
(3.) THEREAFTER section 192 of the said Adhiniyam sets out the mode of computation of the said tax. It reads as follows : " 192. Tax on advertisements.-Where a Mahapalika imposes a tax mentioned in clause (h) of sub-section (2) of Section 172, every person who erects, exhibits, fixes or retains upon or over any land, building, wall, hoarding or structure any advertisement or who displays any advertisement to public view in any manner whatsoever, in any place whether public or private, shall pay on every advertisement which is so erected, exhibited, fixed, retained or displayed to public view, a tax calculated at such rates and in such manner and subject to such exemptions as may be provided by the Act or rules made thereunder : " Section 472 of the said Adhiniyam makes provision regarding perferring of appeals setting out the authority to whom the appeal is to be preferred under sub-clause (1) of Section 472. Section 472 (2) (c) of the said Adhiniyam reads as follows : " (c) in the case of an appeal against any tax in respect of which provision exists under this Act for an objection to be made to the Mukhya Nagar Adhikari against the demand, such objection has previously been made and disposed of ; " ;