JUDGMENT

KRISHNA IYER, J.:—A crudely drafted plaint, with little legal light to make out a good cause of action, somehow resulted in a decree as prayed for at the trial stage and in appeal. But the defendant who is the appellant before us, the Mahapalika of the City of Agra, pursued the matter in Second Appeal where, regardless of the scope of the suit or the precise ground alleged in the plaint, an adverse judgment was rendered affecting the Municipality in a general way. Naturally, the appellant Mahapalika has come to this Court by special leave under Art. 136 of the Constitution 1161 over stepping the limits of law a little, as will presently appear.

2. The brief facts necessary to appreciate the contentions on which the High Court has pronounced may now be stated, although, in so doing, we have to depart from the pleadings. Indeed, the questions are of general public importance and so, apart from technical bounds, we proceed to declare the law.

3. The Agra Municipal Board was governed by the U. P. Municipalities Act, 1916 (Act II of 1916). In 1947, the State Government issued a notification imposing a tax under Section 128 (1) (ii) of the said Act. The levy was on brick manufacturers carrying on that trade, at the rate of 14 annas per 1000 bricks. The brick-kiln owners who were affected, along with their Association, filed a suit for a declaration that the tax was void and not exigible. It may be stated that, whatever the reasons urged in the pleadings be, the arguments, purely legal, have turned on the validity of the tax in the light of Section 142-A of the Government of India Act, 1935 and on Art. 276 of the Constitution of India vis-a-vis the relevant provisions of the two Municipal laws and the notification already referred to. One circumstances which occurred after the trial Court had decreed the suit deserves to be stated for a comprehension of the High Court s decision. The U. P. Nagar Mahapalika Adhiniyam, 1959 (U. P. Act II of 1959), came into force on February 1, 1960 repealing and replacing the U. P. Municipalities Act. While the latter Act provided for levy of various types of taxes on professions, trades and callings under Section 128, the former Act which followed, contained a corresponding provision in Section 172 thereof. Thus, today, Section 128 of Act. II of 1916 is no longer in force and it is the later Act of 1960 which is extent.

4. To come to the point straight, there are two questions on which the High Court has decided against the Nagar Mahapalika. This can be understood fully only by a trifurcation by periodisation of the Municipal law s operation, viz., the pre-Constitution era and the post-Nagar Mahapalika Act era, with the intervening spell sandwitched in between these two. According to the High Court, the levy of tax at the rate of 14 annas per 1000 bricks by virtue of the notification Ex. H of September 18, 1947 cannot be sustained to the extent it exceeds Rupees 50/- per person, per annum. The ground given - and, we think, rightly - is that Section 142A (2) of the Government of India Act restricted the total amount payable in respect of any one person...to any one Municipality....by way of taxes on professions, trades, callings and employments, shall not....exceed Rs.50/- per annum. To the extent to which this ceiling was exceeded, the constitutional provision stood breached by the notification and was void. Therefore, without further argument, the conclusion was reached by the High Court that inevitably the Municipal Board, Agra, could not levy any amount by way of this tax in excess of Rs.50/- on any one person per annum .

5. The Government of India Act, 1935, certainly set a maximum on the tax on trades and callings and we agree that the High Court was right in holding that the Municipal Board s right to levy tax under the notification Ex. H. could be valid only up to Rs.50/- per year and, to the extent it went beyond that limit, was void. So, we affirm the High Court s holding for the peri