RAMCHAND MAROTI MANDWALE Vs. MALKAPUR MUNICIPAL COUNCIL MALKAPUR

JUDGEMENT

(1.) BY this petition under Articles 226 and 227 of the Constitution, the petitioner seeks to challenge the demand notice dated 21st January 1967 as being illegal and prays for a writ of prohibition to the respondents from making the recovery of the education tax on the basis of the said demand notice dated 21st January 1967. The petitioner also seeks a direction that the respondent No. 2, the State oi Mahara-shtra, bo ordered to restore and repay the amount of Rs. 775. 50 to the petitioner which has been collected by the respondent No. 1 for respondent No. 2 towards the education tax for the period from 1962-63 to 1964-65. The petitioner further wants a prohibition against the respondents prohibiting them from further recovering any amount under the Maharashtra Education (Cess) Act, 1962 and the Rules thereunder. A relief is also claimed for a declaration that the Maharashtra Education (Cess) Act 1962 be declared as ultra vires of the Constitution.

(2.) THE petitioner is a resident of Malkapur, taluq Malkapur, District Buldana and owns several lands and buildings in the town of Malkapur. Most of these buildings are let out to tenants and the petitioner gets rent for those buildings. Besides, the petitioner is also a cultivator and carries on business of moneylendiug. The petitioner has set out in paragraph 1 of his petition the several houses in different wards of the town of Malkapur. Education cess is being demanded by the Malkapur Municipal Council from the petitioner since October 1962 at the rate of two per cent of the annual letting value of lands and buildings owned by the petitioner within the limits of the Malkapur Municipal Council. By a notice dated 16-2-1965 an amount of Rs. 775. 00 was demanded by the Municipal Council towards the education cess tor the period 1962-63 to 1964-65 along with other municipal taxes. The petitioner protested against the said demand contending that it was illegal and ultra vires and requested the Municipal Council to withdraw the demand or education tax. The petitioner, however, was further served with other demand bills dated 2-12-1966 for Rs. 190 and Rs. 174 for the years 1965-66 and 1966-67 respectively on account of the education tax and the petitioner was further pressed to pay the education tax for the period 1962-63 to 1964-65, in order to avoid any coercive process, the petitioner is alleged to have paid under protest on 3-12-1966 an amount of Rs. 775. 50 towards the education cess for the years 1962-63 to 1964-65. The petitioner again received another demand bill on 19th December 1966 for Rs. 82 towards the education tax for the period 1965-66 and 1966-67. The representation by the petitioner to the Chief Officer of the Municipal Council was rejected on or about 5th January 1967. The petitioner again received another demand bill dated 21st of January 1967 for Rs. 364-50 towards the education tax with a threat that in case of failure to pay the amount, the amount would be recovered by issuing a warrant under the provisions o-E the Maharashtra Municipalities Act, 1965. The petitioner has given a schedule in paragraph 7 of his petition showing the amount of education cess or tax paid by him or demanded of him during each of the years 1962-63 to 1966-67. The education cess demanded for 1962-63 for the second half was Rs. 153. 50, for 1963-64 was Rs. 307, for 1964-65 Rs, 295, for 1965-66 Rs. 223 and for 1966-67, it was Rs. 223. In view of the demand made by the Municipal Council for tho unpaid education cess, coupled with the threat by the Municipal Council to recover the amount by coercive process, the petitioner is led to file this writ petition for the reliefs claimed by him as stated above.

(3.) THE petitioner's contentions are: (1) The Maharashtra Education (Cess) Act, 1962, Act No. XXVII of 1982, is ultra vires the powers of the State Legislature of Mahara-shara because the State List prescribed under the Seventh Schedule of the Constitution of India does not empower the State to impose education tax; (2) The imposition of education ta,x by the State- of Maharashtra offends the directive principles laid down under Article 45 of tho Constitution of India. it was urged that the Constitution directs that education should be free and this implies that no direct impost could be levied by the State and the expenditure has necessarily to be met from the general revenue raised by the State. As a part of the same contention, it has been urged that it is the duty of the respondent No. 1 under the Constilution to impart education and that the direct taxes could not be imposed for carrying out the said duty when the general revenue was provided for meeting the same. (3) The imposition of education tax exempting lands and buildings having annual letting value less than Rs. 75 and without any maximum per annum and in direct proportion to the annual letting value of the lands and buildings irrespective of any services rendered or not to the assessee is ultra vires of the Constitution of India. it was stated that the impost was strictly in the nature of tax and not fee, (4) The education tax is a tax on houses and lands in direct relation to the annual letting value of the same and such levy being exclusively reserved for the publie authorities or local bodies for their pur-poses, the State had no jurisdiction for the same. These are, in substance, the contentions which are advanced on behalf of the petitioner. It is also urged that the Act does not provide for giving any opportunity at any stage to the assessee to raise objections to the assessment or to dispose of any such objection, if raised, and therefore, the Act offends against the accepted principles of natural justice and the assessment lists prepared have no legal force so far as the education cess is concerned, as there are no guiding principles prescribed under the Act for the levy of the assessment of these taxes.