ORDER V.D. Bhargava, J.
1. This is a petition under Article 226 of the Constitution filed by one Maheshwari prasad who is the owner of a bus No. U. S. K. 330 which plies between Phariah and Mainpuri. As circumstances and property tax, it is alleged, he has to pay Rs. 31/4/-to the Town Area Committee Phariah and the same amount in the Town Area Committee, Jasrana and a sum of Rs. 407- to the Municipal Board, Mainpuri.
In addition to this a sum of Rs. 168/4/- quarterly is paid by him as tax under the Motor Vehicles Act. The petitioner during his journey passes through Mustafabad, where there is a stand for motor buses. The petitioner drops passengers at and takes passengers from that place. The road, according to the petitioner, belongs to the District Board og Mainpuri on which this business is carried on. The Gaon Bamaj of Mustafabad imposed a tax of Rs. 250/- on the petitioner as income tax on the above with respect to the year 1951-52 and another sum of Rs. 2507- for the year 1952-53 and they want to recover the sum.
They have assessed the income of the petitioner at Rs. 6000/- and have levied the tax at one anna per rupee. The Petitioner aggrieved with this assessment went before the District Magistrate in revision on the ground inter alia that the provisions of Section 37 of the U. P. Panchayat Raj Act and Rule 220 made thereunder had not been complied with and no prior sanction of the prescribed authority had been obtained by the Gaon Samaj as required by Rule 221 Sub-clause (2) of the rules made under the said Act. The District Magistrate by his order dated 19-7-1955 remitted the tax imposed with respect to the year 1951-52 and held that there were no valid rates. But maintained the tax for the year 1952-53 and dismissed the revision. He also held that the income assessed by the Gaon Samaj at Rs. 6000/- was not excessive.
2. The petitioner has alleged that so far as he is aware no sanction was obtained by the Gaon Samaj from the prescribed authority for imposing these taxes and a general sanction obtained should, not be deemed to be a sanction under the law and, therefore, the tax imposed by the Gaon Samaj is illegal and unconstitutional.
3. A counter affidavit has been filed by one Mr. Dalendra Sharma who is Panchayat Raj Inspector, Jasrana. The main allegations are based on the record, and on the previous occasion time was taken by learned counsel for the State to get the records of the case. So far no records have been produced. I cannot accept the allegations made therein as correct.
4. The allegations contained in the counter affidavit are that apart from the above business the petitioner also carried on cloth business at Mustafabad. A meeting of the Gaon Samaj was held on 12-5-1953 which resolved such tax under Rule 221 of the Panchayat Raj Act for the year 1952-53 and the rate fixed therein was one anna per rupee.
After the passing of the resolution objections were invited and considered and the rate was thereafter confirmed on 7-7-53. The prescribed authority under the Act was the District Panchayat Officer, who approved the rates. After the assessment, the assessment list was fixed in Gaon Samaj and was published by beat of drums. Opportunity was given to everyone to take objection and these objections were invited between the 14th July and 2lst July. No objection having been raised by the petitioner the list was approved by the District Panchayat Officer on 7th August 1953.
On these grounds it was alleged that it was not open to the petitioner now to challenge the assessment. In any event, it was argued that the proper authority in this matter was the District Magistrate, who had dismissed the revision and this Court should not interfere.
5. The main question that arises in the case is whether the Gaon Samaj had at all any right to impose the tax. Even, for the sake of argument, admitting the statement contained in the counter affidavit that all the provisions of Rule 221 of the Panchayat Raj Act had been complied with, was it open to the prescribed authority to accord permission to the Gaon Samaj to levy the tax, as has been done?
So far as the tax levying power of the Gaon Samaj is concerned it is confined to Section 37 of the U. P. Panchayat Raj Act. That section does not give any power to levy taxes on incomes. Clause (a) prescribes a minimum tax of one anna per rupee on the amount of land revenue payable therefor. Clause (b) prescribes a maximum of one anna per rupee on the rent payable by a tenant by whatever name it may be called. Admittedly this tax will not be deemed to be a tax either on the land revenue or on rent.
Clause (c) prescribes a maximum tax of Rs. 67- per annum on persons carrying on any trade, calling or profession within the jurisdiction of the gaon samaj. Possibly this tax could be levied under Clause (c). But as a separate tax has been provided for under Clause (d) on the owners of animals, vehicles other than mechanically propelled vehicles, it appears that the words 'trade, calling or profession' do not include any tax on vehicles. Clause (d) prescribes a tax on animals and vehicles other than mechanically propelled vehicles;
Clauses (e), (f) and (g) do not relate to tax at all. They are in the nature of fees. Similarly
(i) and (j) will also not apply because they are taxes on private latrines and drains and on buildings. Thus it is clear that there is no provision in the Panchayat Raj Act for imposing a tax on a trade of motor vehicles or in the nature of income tax at the rate of one anna per rupee. The maximum tax that can be imposed on any trade or calling is Rs. 6/- per annum.
6. Counsel for the State supports the tax under Rule 221. Rule 221 only refers to prescribing fees under Clauses (e) and (f) of Sub-section (1) of Section 37, And Clauses (e) and (f), as I have already said, will not apply, because they are not taxes. Moreover these fees are for the registration of animals sold in any market or for the use of slaughter houses and camping grounds.
Even if Rule 220 or 221 had permitted imposition of such tax and the prescribed authority had approved of it that tax would be ultra vires the Panchayat Raj' Act, because a tax can only be imposed under the Constitution by some enactment.
By Article 265 of the Constitution no tax is to be levied or collected except by authority of law. There has been no authority of law as is clear from the details given by me about section 37 Which is the only authorising section. The rules could not create any tax.
7. In the circumstances I hold that the tax imposed by the Gaon Samaj on the petitioner was ultra vires and unconstitutional and I hereby quash the assessment made on the petitioner and the order of the District Magistrate dated 19th July 1955. The petitioner shall be entitled to his costs from the opposite parties.