KHAMAR KAUSHIKBHAI CHOTALAL Vs. STATE OF GUAJRAT

JUDGEMENT

(1.) Present is a writ application against the order dated 21.12.2004 passed by the Director of Municipalities, Gujarat State, Gandhinagar, submitting inter alia that the order passed by the Director, confirming the order dated 11.10.2004 passed by the Collector, Sabarkantha in the appeal preferred by the State Government against the Talod Nagarpalika is bad and contrary to law. The facts giving rise to the present writ application are that the Municipality invited certain objections in relation to imposition of the property tax. After deciding the objections, the Municipality observed that education cess under the Gujarat Education Cess Act, 1962 would be recovered from the financial year 2000-01. The State Government being aggrieved by the said order preferred an appeal to the Collector against the resolution of the Municipality. The Collector, after hearing the parties, observed that as the Municipality came into existence with effect from 1994, the liability of the property tax payer to pay the education cess would be from the year 1994. The Municipality being aggrieved by the said order of the Collector, preferred further appeal to the Director of Municipalities, who by his impugned order, dismissed the appeal, therefore, the petitioners are before this Court.

(2.) Learned counsel for the petitioners vehemently submitted that if the Municipality had already resolved to recover the education cess from the financial year 2000-01, then, the Collector had no authority to direct its retrospective recovery from the year 1994, that is, from the year of constitution of the Municipality. Referring to Section 15 of the Act and Rule 3 of the Gujarat Education Cess Rules of 1962, it was submitted that before recovering the tax, objections are to be invited and therefore, the Collector was not justified in giving retrospective effect to the applicability/imposition of the education cess.

(3.) Section 12 of the Act of 1962 provides that subject to the provisions of the Act, there shall be levied and collected with effect from the 1st day of April, 1970 a tax on lands and buildings situated in a urban area at the rates as prescribed under sub-section (1) of Section 12. Imposition of the tax or the liability to pay the tax is automatic. It is not dependent upon a resolution passed by a cantonment or municipality or any local authority. The moment, the Act says that the tax shall be levied and collected with effect from a particular date or from the date of the constitution of the Municipality, then, the Municipality is not required to pass a resolution that the education cess would be recoverable from a particular date. If the liability is automatic and imposition is the result of the statutory provision, then, the Municipality would simply be a recovering agent, it would have no authority to say that from a particular date, tax would be levied and recovered.