HARBANS LAL Vs. MUNICIPAL COUNCIL, JAMMU

JUDGEMENT

(1.) THE petitioners are the owners of Cinematographs in Jammu City. The Muncipal Council Jammu, purporting to act under Section 77 (1) of the J & K Municipal Act, 2008, (hereinafter called as "The Act") has levied a tax at the rate of Rs. 10/ - per show on every cinematograph owner. The petitioners dispute the validity of the tax, hence this petition under Article 226 of the Constitution of India read with Section 103 of the State Constitution for an appropriate writ.

(2.) THE notification dated 4 -4 -1974 issued by the Municipal Council reads as under : "The Municipal Council has resolved in its special meeting held on 13 -3 -1974 vide resolution No. 144 to impose the below rated taxes under Section 77 of the Municipal Act. Any inhabitant objecting to the proposed taxes may within 30 days from the date of publication of this notice in Govt. Gazette submit his objection in writing to the Municipal Council, Jammu. 8. Owners of Cinematographs Rs.10/ - per show The tax would be assessed on numbers of shows exhibited." This resulution was made absolute on the expiry of the period of 30 days and consequently the Executive officer of the Municipal Council issued orders to recover the amount. (2) The dispute initially was whether the levy is in the nature of a tax on profession falling within the purview of clause (ii) of sub section 1 of Section 77 of the Act or one in the nature of tax on entertainments falling within the ambit of sub Section

(3.) OF Section 77 of the Act. In the first case the tax can be levied without the prior sanction of the Government whereas in the second case the prior sanction is a condition precedent for its imposition. Admittedly no prior sanction has been obtained from the Government.