S. D. Agarwala, J. - (1.) THESE two writ petitions challenge the validity of the levy and demand of 'Education Cess' by the Municipal Board, Bisalpur.
(2.) IN the year 1 19, U. P. Primary Education Act, 1919 (hereinafter referred to as the Primary Education Act) was enacted. IN the said Act, it was provided that where a notification under Section 3 of the said Act is enforced, the Board, namely, the Municipal Board may impose a tax called the 'Education Cess', the proceeds of which shall devoted solely to primary education. The State Government by a notification dated 24-5-1949 in exercise of the powers conferred by Section 128 (1) (XIV) of the U. P. Municipalities Act, 1916 read with Section 15 of the Primary Education Act imposed education cess with effect from June 1, 1949 on all the commodities brought for sale or purposes of trade within the municipal limits of Bisalpur, district Pilibhit. INitially the rate of tax was 3 annas percent on the value of all the goods imported into the Bisalpur Municipality. This rate was revised by a notification dated 22nd May 1951 and the rate was increased from 3 annas percent to 5 annas percent. By notification dated 18-11-1958 the rate was further enhanced to 50 NP percent. A Civil Misc. Writ No. 7775 of 1975 was filed by Sohan Lal Om Prakash and others in this court challenging the levy of education cess. A Division Bench of this court by a judgment dated I2th February 1980 held that the amount realised by way of education cess was spent by the Board towards imparting education and not for any other purpose. In this petition, the sole challenge before this court was that the education cess had been levied solely for the purposes of primary education and the said amount was not being spent accordingly by the Board. After the above mentioned petition was filed in this court another petition being Civil Misc. Writ No. 2193 of 1976 was filed again by Ram Murti Lal and others challenging the levy of education cess. After the decision in writ No. 7775 of 1975, another writ petition was filed in this court being Civil Misc. Writ No. 1077 of 1983. This petition was filed by Vypar Mandal, Bisalpur and others against the Municipal Board again challenging the levy of education cess. The Writ Petitions filed by Ram Murti Lal and others and Vyapar Mandal and others came up for hearing before a Bench of this court consisting of Hon'ble R. M. Sahai and J. N. Dubey, JJ. By an order dated 30th June, 1985, the Bench was of the view that the decision in writ no. 7775 of 1975 Sohan Lal Om Prakash and others v. Municipal Board decided on 12th February 1980 required reconsiderration and directed that the papers of the case be laid before Hon'ble the Chief Justice for placing it before a larger Bench. It is because of the reference made on 30th June, 1985 that the present two petitions have come up before the Full Bench for decision. In the referring order it has been catagorically stated that the petitioners' argument is not that the tax could not have been levied but the argument is that its lavy was co-related with spending of the proceeds on the primary education and once primary education has been taken over by the State Government by enacting the U. P. Basic Education Act, 1972 (hereinafter referred to as the Basic Education Act) the entire purpose for which the levy could be made has become nonexistent. Since both these petitions raise the same question of law, we are deciding both of them by a common judgment. We have heard Sri S. P. Gupta, Senior Advocate on behalf of both the petitioners and Sri S. S. Bhatnagar, learned Advocate General on behalf of the respondents.
(3.) THE first submission of the learned counsel for the petitioners is that the Basic Education Act impliedly repealed the Primary Education Act and as such the levy of education cess after the promulgation of Basic Education Act is wholly illegal and no demand can be made in respect of the same. THE second submission of the learned counsel is that even if the Basic Education Act did not impliedly repeal the Primary Education Act, then too under section 15 of the Primary Education Act, it is clearly provided that the proceeds from 'education cess' shall be solely devoted to primary education and since education cess is not being devoted solely to primary education, the demand of the education cess by the Municipal Board is wholly arbitrary and illegal. In order to examine the first submission made by the learned counsel, it is necessary to state the principle on which it has to be tested as to whether the Basic Education Act has impliedly repealed the Primary Education Act. In Principles of Statutory Interpretation by Sri G. P. Singh Illrd Edition, page 435, it has been laid down as follows :- "There is a presumption against a repeal by implication; and the reason of this rule is based on the theory that the Legislature while enacting a law has a complete knowledge of the existing laws on the same subject-matter, and, therefore, when it does not provide a repealing provision, it gives out an intention not to repeal the existing legislation. When the new Act contains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other" law is further strengthened on the principle expressio unius est exclusio alterius. Further, the presumption will be comparatively strong in case of virtually contemporaneous Acts. The continuance of existing legislation, in the absence of an express provision of repeal, being presumed, the burden to show that there has been a repeal by implication lies on the party asserting the same. The presumption is, however, rebutted and a repeal is inferred by necessary implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act "that the two cannot stand together". But, if the two may be read together and some application may be made of the words in the earlier Act, a repeal will not be inferred." ;