KHURSHED JAHAN BEGUM Vs. GAON SABHA AND ORS

JUDGEMENT

(1.) This an application under Article 226 of the Constitution challenging the validity of a tax imposed on the applicant. The applicant and her predecessors had been holding a cattle-market and a bazar on a piece of land belonging to the applicant in village Qasimpur, pargana and district Badaun. This land over which this mela is held was a khudkasht and grove of the applicant and after the abolition of zamindari it has become her bhumidhari land. The applicant has been realising customary duties from all the sellers who have been coming to the market to sell their commodities in this bazar. The opposite party No. 1 is the Gaon Sabha of village Qasimpur. This has imposed a tax of Rs. 250 per annum on the income of the applicant. Tax is now being realised from years 1949-50 to 1953-54 i.e. for five years totalling to Rs. 1250. This tax is being challenged on two grounds. The first ground is that the Panchayat Raj Act does not permit an imposition of a tax on income and therefore this imposition is ultra vires, unconstitutional and illegal. The second ground on which this tax is challenged is that the formalities as required under Section 7 of the Panchayat Raj Act for the purpose of imposing this tax had not been complied with. There had been no resolution of the Gaon Sabha nor did the Gaon Sabha invite objections to the imposition of the said tax. No meeting was covered to consider the objections and no information was ever communicated to the applicant about the imposition of these taxes.

(2.) So far as the second ground is concerned there has been a denial in the counter affidavit filed on behalf of the opposite party No. 1 and it is not necessary for me to go in detail and find out whether those formalities had been observed or not because I think that the writ petition can be allowed on the first ground taken by the learned Counsel for the applicant. In the counter affidavit filed on behalf of Gaon Sabha it is alleged that this tax was imposed under Section 37(1)(d) but I fail to understand how this tax could be imposed under that clause. This tax is clearly a tax on income and Clause (d) of of Section 37 authorises a Gaon Sabha to levy:

(3.) These rules have been framed under Section 110 of the U.P. Panchayat Raj Act. Under Sub-clause (xix) rules may be framed by the State Government for the purposes and determination of the levy of taxes and licence fees, the authority, by which and the manner in which the taxes may be assessed and the authority to which the taxes may be assessed and the authority to which an appeal from an assessment order may be made. This sub-clause does not authorise creation of a new tax. It only permits the State Government to make rules prescribing the authority by which and the manner in which that tax may be assessed and the authority to which an appeal lies. It does not authorise the State Government to prescribe any Schedule of taxation as the opening portion of Section 110 states that the rules could only be made consistent with the Act and to carry out the purposes of the Act. So far as the question of taxation is concerned Section 37 has prescribed the taxes which can be imposed and the amount that can be imposed and if in making Rule 221 the State Government has exceeded the jurisdiction the Rule is ultra vires and without jurisdiction.