SPECIAL OFFICER, SASARAM MUNICIPALITY Vs. BHAGWAN PATWA

JUDGEMENT

(1.) This application in revision under Sec. 25 of the Provincial Small Cause Courts Act at the instance of the special Officer, Sasaram Municipality, has come before us for hearing on reference by a learned Single Judge of this Court. The petitioner's suit for realisation of a certain amount of professional tax from the defendant -opposite party has been dismissed by the learned Small Cause Court Judge on the basis of my decision given sitting singly in (1) Mahabir Singh and others V. Commissioner of Arrah Municipality and others ( : 1968 B.L.J.R. 73); the correctness of which has been doubted by the learned Single Judge in his order of reference. Since many points were raised by the defendant in the court below and almost all of them except one have been decided against him and since many of them have been raised in this Court, for the disposal of the points raised it is necessary first to state the relevant facts of the case. In the Bihar and Orissa Municipal Act, 1922 (Bihar and Orissa Act 7 of 1922), hereinafter called 'the Act', Clause (ff) was introduced in Sub -section (1) of Sec. 82 of the Act by Sec. 2 of the Bihar Municipal (Amendment) Act, 1953 (Bihar Act XXXII of 1953), whereby it was provided that the Commissioners may, from time to time, at a meeting convened expressly for the purpose and with the sanction of the State Government, impose within the limits of the Municipality a tax on the trades, professions, callings and employments specified in the Fourth Schedule at such rates not exceeding the rates specified therein as may from time to time be determined by the Commissioners at a meeting. Under the proviso to the said clause, the rates determined by the Commissioners at a meeting are subject to the approval of the State Government and subject to such modification, of the rates of taxes and exemptions of clauses of professions, trades and callings to be taxed as the State Government may direct. Chapter IVA was also introduced in the parent Act by Sec. 3 of the amending Act of 1953.

(2.) At the relevant time, Sasaram Municipality was under supersession and was functioning through the Special Officer exercising the powers of the Commissioners. In Paragraph 2 of the plaint, it was pleaded that professional tax on the professions, trades, callings and employments, specified in the Fourth Schedule of the Act at the maximum rate specified therein had been imposed in the Municipality after performing all the legal formalities, and sanctions of the State Government had been duly obtained. According to the case of the petitioner, the opposite party was engaged in the trade as he was running a box shop in the Municipality Market. He has been assessed to the professional tax for the period from the 1st of April 1962 up to the 31st of March, 1968, for a total sum of Rs. 100/ -, which he has not paid. An account has been given in Schedule 'A' appended to the plaint; according to which he was assessed to tax amounting to Rs. 7.50 paise for every half of the years 1962 -63, 1963 -64, 1964 -65 and 1965 -66. The amount of half -yearly tax assessed for the two halves of 1966 -67 and 1967 -68 was at the rate of Rs. 10/ - per half year. Thus, a claim of Rs. 100/ - for the total amount of tax due was made in the plaint. Every statement in the plaint was controverted by the defendant in his written statement. He asserted that the tax had not been validly imposed, nor could it be imposed. He also denied that he was running a business of box shop. He asserted that no notice of any proceeding of assessment of tax was served on him.

(3.) The learned S.C.C. Judge considered the objections raised by the defendant and held that tax was validly imposed by the Sasaram Municipality. The notices of the assessment proceeding were given to the defendant, but he failed to take out a licence as required by law, and, hence, in view of the decision of this Court in (1) Mahabir Singh's case ( : 1968 B.L.J.R. 73), no decree for realisation of professional tax can be passed in favour of the Municipality as the defendant had not taken but any licence for his business. The objection of the defendant's counsel that the tax ought to have been assessed half -yearly and not annually was overruled by relying upon a decision of mine reported in (2) Commissioner of Gaya Municipality V. Badri Narain and another (1964 B.L.J.R. 801), followed by G.N. Prasad, J. in (3) Municipal Commissioner of Arrah Municipality V. Ram Sakal Ram alias Ram Sakal Sah (1967 B.L.J.R. 176). A somewhat contrary observation of mine to the effect that the tax had to be assessed half yearly, made in the decision of (4) Commissioner of the Samastipur Municipality V. Randhir Kumar Singh ( : 1968 B.L.J.R. 168), in view of the other two decisions was not given effect to. The plea of limitation raised by the defendant was also decided against him; and, since the ultimate decision was one of dismissal of the suit, the Special Officer of the Municipality has preferred this revision under Sec. 25 of the Provincial Small Cause Courts Act.