BALVANTRAI TULSIDAS Vs. STATE OF GUJARAT

JUDGEMENT

(1.) . The common question which arises in both these petition is whether the Gujarat Education Cess (Validation) Act, 1977, which came into force on 24/01/1978 is a valid piece of legislation. Therefore, at the request of the learned Advocates appearing in these petitions, they are heard together and they are now disposed of by this common judgment.

(2.) . Special Civil Application No. 2063 of 1978 is filed by owners of lands and buildings situated within the urban area of Junagadh Nagar Palika (now Municipality). Till 1/04/1975, Junagadh Municipality had not levied property tax on the lands and buildings situated within its area. It appears that pursuant to the direction given by the State Government under Sec. 15(1) of the Gujarat Education Cess Act, 1962 to the Collector of Junagadh, steps were taken by the Collector for collecting the education cess. Pursuant thereto the Mamlatdar, Junagadh issued demand notices in March and April 1978. Those notices were challenged by some of the present petitioners and others by filing a petition in this Court being Special Civil Application No. 768 of 1976. Other property owners who had received such notices had also filed Special Civil Application Nos. 707, 757 to 762.815 and 1541 of 1976. Those petitions were allowed by this Court on 22/06/1977 and it was held that the said demand notices were illegal and invalid, as the levy of education cess was not legal in absence of levy of property tax by the Junagadh Municipality and in absence of the machinery of assessment and collection of the education cess. That decision was followed in Special Civil Application No. 768 of 1976. In respect of other urban areas also, this Court had held the collection of tax on lands and buildings under Sec. 15(2)(b) of the Act by the Collector, where the local authorities had not imposed property tax as invalid, on the ground that Rules 3 of the Gujarat Education Cess Rules, 1962 prescribing the manner of preparing assessment list could not be invoked as no rules were made by the concerned authorities for the purpose of collection of property tax in such areas. In order to validate the collection of such tax, first an Ordinance was issued and then the Gujarat Education Cess (Validation) Act, 1977 came to be enacted. As the request of the petitioners, based upon the judgment of this Court, to refund the education cess recovered from them was rejected by the State on the ground that the said collection has to be regarded as valid in view of the Validating Act, they have filed these petitions. The petitioners are now challenging the validity of the Validating Act and seek a writ of Mandamus directing the respondents to refund the education cess recovered from them for the years 1962 to 1976.

(3.) . Petitioners in Special Civil Application No. 2636 of 1978 are owners of lands of buildings situated in Mangrol town of Junagadh District. Levy and collection of education cess from the owners of lands and buildings of that urban area was challenged by such property owners by filing Special Civil Application Nos. 1239 and 1812 of 1975, 266 of 1976, 610 of 1976, 838 of 1976, 704 and 739 of 1976. This Court followed those petitions for the same reasons, quashed the bills issued to the petitioners and directed the respondent-State to refund the cess, if it was already collected. The Mamlatdar of Mangrol has now issued fresh notices calling upon the petitioners to pay education cess. The petitioners have therefore filed these petitions in the representative capacity. They are also challenging the validity of the Validating Act and want this Court to direct the respondent-State not to enforce the demands made for recovering the education cess and to refund the same, if it has already been collected.