JAMMU CANTONMENT RESIDENTS ASSON Vs. UNION OF INDIA

JUDGEMENT

(1.) Notification and order imposing building tax by the respondent No. 2 has been challenged and is sought to be quashed being without jurisdiction and in contravention with the provisions of Ss.60 to 63 and 91 of the Cantonment Act 'hereinafter referred to as the Act' and the provisions of the Constitution of India as made applicable to the State of Jammu and Kashmir. It is submitted by the residents of the Cantonment Area of Jammu that no tax can be levied or collected except by the authority of law as ordained by Sec. 114 of the Constitution of J and K. It is submitted that within the territory of J and K State, the only taxation that can be imposed are under the legislation as adopted by the Legislative Assembly of the State. By virtue of Art. 370 of the Constitution only those enactments are applicable to the State of J and K which have been made so applicable by virtue of Constitution application order of 1954. It is submitted that entry No. 3 Schedule VII of List I of the Constitution of India is not applicable in the same form in the State of J and K as it is applied in the rest of the Country. The powers of the Cantonments within the State of J and K are limited only to their administration and not taxation. It is further alleged that respondent No. 2 without compliance of provisions of Ss.60, 61 and 62 of the Act and without notifying the proposed imposition of tax has arbitrarily issued one notice to the petitioners and all other persons residing in the Cantonment Area for payment of taxes of buildings for a period of more than two years. It is submitted that the notification imposing the tax was issued by the respondents without previous sanction of the Central Government which renders it liable to be quashed. It is further alleged that no notice under S.55 of the Act was published specifying the tax which was proposed to be imposed and the persons or class of persons who were to be made liable were not afforded an opportunity to file objections. Demand notices have been issued to the petitioners and other owners of the buildings in the Cantonment Areas without the authority of law which are required to be quashed.

(2.) In the objections filed on behalf of the respondents it is submitted that the petitioner No. 1 was not registered association and disentitled to file the present writ petition for the enforcement of alleged fundamental rights. It is further submitted that no legal or fundamental right has been violated. The Cantonment Act 1924 was validly extended to the State of J and K by virtue of the Constitution Application Order to J and K in 1954. The preamble of the Act refers to the administration of the Cantonments which is a union subject and the legislative powers only are vested with Union of India by virtue of the Constitution. The tax impugned is claimed to have been imposed after compliance of the provisions of Ss.60, 61 and 62 of the Act. Tax notification was issued under SRO 61 dated 17-3-1959. Such a power is also conferred upon the Municipalities under S.77 of the Municipal Act. Notice under Section 255 of the Act was published specifying the tax which was proposed to be amended and the persons who were liable to pay the same after affording them an opportunity of filing the objections. It was only when the Central Government was satisfied about the compliance of provisions of Ss.61 and 62 of the Act that it gave its assent to the proposed tax. The tax imposed is legal, valid and according to law.

(3.) We have heard the learned counsel for the parties and have perused the record. The Act was extended to the State of J and K by omitting the words, "except the State of J and K" vide Central Act (53 of 1950). The preamble of the Act shows that it was enacted to consolidate and amend the laws relating to the administration of Cantonments in the country. Under Part XI Articles 245 and 246 of the Constitution of India, the Union Legislature has the power to enact the laws with respect to specified entries in Lists I, of Schedule VII of the Constitution of India. Entry No. 3 of List I of the Schedule VII of the Constitution of India deals with the legislative powers of the Parliament pertaining to Cantonments. This entry in its application to the State of J and K provides the enactment of laws with respect to, "administration of Cantonments". The said entry has applicable to the rest of the country reads, "de-limitation of Cantonment Areas, Local self-Government in such areas, the constitution and powers which such area of cantonment authorities and the regulation of house accommodation (including the control of rents) in such areas". Taking the advantage of the distinction in the application of this entry to the state of J and K it is urged that the cantonments in the State of J and K have no power to impose tax and their powers are limited only for the purposes of administration of the Cantonments. A comparison of entry as it is applicable in the State of J and K and the rest of the country clearly shows that specific power of taxation is not conferred by the entry. Administration of Cantonment is a wider term to include within its ambit all legislative powers of the cantonments conferred by the Act for the purposes of administration of Cantonments. The word "administration" according to the dictionary meaning includes," an act of administering, a furnishing or tendering according to prescribed formula, performance of a service in any capacity, performance of executive duty, Management, direction, superintendence, management and disposal under legal authority of the estate and inter-state, the management of public affairs as distinguished from the executive or political function. The phase of business management that plans, organises and controls the activities of an organisation for the accomplishment of its objectives in the long run." Thus the true interpretation regarding the applicability of the provisions of the Act in the State of J and K would mean that for its administration the Cantonments in the State can make laws under the Act, can impose taxes authorised and in accordance with the provisions of law. This court in Yogra v. Assessing Authority 1972 Tax Law R 1672, upheld the authority of the Cantonment to impose tax with respect to the property within its jurisdiction despite the fact that the said property was always subject to similar tax under a State enactment. It was held in that case that the Act was a special Act and was enacted by the Parliament under which the provisions had been made for the administration of Cantonments which implied the imposition of tax on properties within the Cantonment areas. It was further held in that case,