SOBHAG MAL JAIN,J. - (1.) IN this group of writ petitions, the petitioners have challenged the tax known as 'trade tax' imposed by the Panchayat Samiti, Phalodi. The petitioners have also assailed the demand note served on them for the years 1975 -76 to 1983 -84.
(2.) THE question involved in all the petitions are common and the counsel for the petitioners have referred to only one petition, namely, S.B. Civil Writ Petition No. 333/84, and therefore, it is not necessary to refer to the facts of each of the petitions separately. I, therefore, propose to refer to the facts in Writ Petition No. 333 of 84, wherever necessary. The petitioners have not given the date of the resolution, which they want this court to quash. They have alleged that they requested the Panchayat Samiti for a copy of the resolution imposing tax and for that purpose also sent a Money Order of Rs. 15/ - but the money order was returned and their request for a copy was not acceded to. The petitioners by assuming that the tax was being collected on the strength of the resolution dated 7th September !962 have made the said resolution the subject of attack in the writ petitions. They have alleged that (his very resolution was challenged in this court in writ petition being 402/67, filed earlier, i. e. M/s Kashiram Badri Narain v. Panchayat Samiti, Phalodi and Ors. which was decided on January 23, 1970. The petitioners' have alleged that the present tax was imposed without inviting any objections; the resolution proposing the levy was not placed on the notice board of the Panchayat Samiti for general information; and the Panchayat Samiti completely failed to follow the procedure prescribed by Chapter II of the Rajasthan Panchayat Samitis (Taxation) Rules 1960 in short 'the Rules'. The demand for the periods 1975 -76 to 1983 -84 running over 9 years was illegal, without jurisdiction and much beyond the period or limitation. According to the petitioners the only resolution levying the tax to their knowledge was the one dated 7th September 1962 and which had already ever been quashed by this court, no fresh resolution having ever been passed the present demand was without the authority of law. The petitioners also urged that the procedure prescribed by rules 12 and 1.3 was not followed and the demand now being made by the respondents is illegal and unconstitutional. The writ petition was filed on January 28 1984 and the prayer in the writ petition reads as under: (i) That a writ of certiorari or any other writ in the nature thereof or direction or order against the non petitioners directing them to treat the resolution of the Panchayat Samiti and its demand as null and void and not to recover any amount from the petitioner as trade tax and if recovered, it be refunded to the petitioner; (ii) To issue any other writ or direction or order against the non petitioners which this Hon'ble court may deem fit to issue in the circumstances of this petition and to allow the costs of this petition from the non petitioners to the petitioner. In reply to the Writ petition the Panchayat Samiti has submitted that the trade tax now being collected from the petitioners was levied by the resolution dated 13th April, 1976. The tax is not founded on the resolution dated 7th September, 1962, challenged by the petitioners in the present group of writ petitions but source of the present levy is the resolution passed by the Panchayat Samiti on April 13 1976 They have submitted that the letter for the copy of the resolution sent by the petitioner did not bear any signatures and, therefore it had to be merely filed. They also denied having received any Money Order. It was stated that the resolution proposing to levy the trade tax was passed by the Panchayat Samiti on October 8 1975 Thereafter, objections were invited in accordance with Rule 4 of the Rules A notice for general information was published in local newspaper, namely Rajasthan Patrika, Sima Sapoot and Jwala and was also affixed on the notice board of the Panchayat Samiti. In the reply it is mentioned that the not if cation was published in the Rajpatra, but the counsel for the respondent No. 2 has frankly admitted that it was published in local newspapers and not in the Rajasthan Rajpatra. About 35 copies of this letter were Sent to various bodies including all the Panchayats falling within the jurisdiction of the Panchayat Samiti. The circular letter reveals that copies were endorsed to the Collector, the SDO, the Tehsidar, Phalodi all the Gram Sevaks, all Panchayats and also the office notice Board. The office circular is dated January 1, 1974 and mentions that objections could be filed within one month from the issuance of the notice. According to the respondent there had been a complete compliance of the Rules 4, 5 and 6 of the Rules. It was further stated that after the period of one month notice for receiving the objections was over the Panchayat Samiti, on April 13, 1976 passed an unanimous resolution levying the tax (ka) small Traders - Traders having the yearly income upto Rs. 50/ - per Rs. 25,000/ - annum (kha) Big Traders - Traders having the yearly income over Rs. 100/ - per Rs. 25,000/ - annum, The Vikas Adhikari, Panchayat Samiti on April 30, 1976 sent a letter to the Director of Panchayat -cum -Deputy Secretary, Panchayat and Development for formal approval. Thereafter a letter was received from the Panchayat Department of the Government that approval of the State Government to the imposition of the taxes by the Panchayat Samiti was not needed. Consequently, the Vikas Adhikari wrote to the Tehsildar, Phalodi for realising the tax for the period from 1975 -76 to 1983 -84. The respondent No. 2 has submitted that the provisions of Section 33(2) of the Act and the Rules 3 to 7 were fully complied with. It was urged that the tax levied by the Panchayat Samiti was not based on the resolution dated 7th September, 1962 but was founded on the resolution dated 13th April, 1976. Respondent No. 2 also took a plea that the petitioners had an alternative remedy by way of appeal before the competent authority in accordance with Rule 36 of the Rules. The petitioners did not avail the same and therefore the present writ petition was liable to be dismissed on this ground.
(3.) AS a rejoinder, the petitioners have urged that the resolution dated 8th October, 1975 proposing to impose the tax from April I, 1975 was illegal as the Panchayat Samiti could not impose the tax retrospectively. The petitioners have denied that the notice inviting objections was affixed on the notice board. They have urged that there was complete non -compliance of Rules 4, 5 and 6. As required by Rule 5, one month's period was not allowed for filing objections. They further alleged that the procedure provided in Rules 12, 13 and 14 was also act followed, in as much as, the Patwari did not prepare the demand after carrying out a census. Their case is that without first preparing a provisional demand final assessment could not be done. It was also urged in the rejoinder that the final resolution levying the tax was not published for general information in accordance with Rule 6.;