Back
In the High Court of Bombay at Aurangabad
B.R. GAVAI & S.V. GANGAPURWALA
Ashok Bansilal Mutha & Others
Versus
The State of Maharashtra & Others
WRIT PETITION NO. 2450 OF 1994 WITH WRIT PETITION NO. 2626 OF 1994
Decided on : 29-07-2010
Maharashtra Zilla Parishads and Panchayat Samities Act, 1961 - Sections 144 and 155-Levy of cess-Enhancement of-Retrospectively-Notification for enhancement of cess issued in March 1994-Made effective from August 1993-Same permissible-Cess payable at end of financial year-Cess not increased with retrospective effect-Even if cess levied retrospectively, same cannot be termed as illegal-Statutes nowhere puts any embargo on powers of authorities from levying cess with retrospective effect.-The cess is being increased with effect from 1.8.1993, vide resolution dated 6.11.1993 and notification dated 1.3.1994. In Court’s opinion, the notification specifically states that it would be levying the cess with effect from 1.8.1993 and the Statute nowhere prohibits them from doing so, the same would be permissible. Moreover the cess would be payable at the end of the year so it cannot be said that cess is increased with retrospective effect. Even if it is assumed that cess is levied retrospectively, still the same cannot be termed as illegal. The Statute no where puts any embargo on the powers of the respondents from levying cess with retrospective effect.
Maharashtra Zilla Parishads and Panchayat Samities Act, 1961 - Sections 144 and 155-General Clauses Act, 1897, Section 21-Levy of cess-Enhancement of-Power of authorities-Rates of cess enhanced on basis of a new notification-While earlier notification imposing lesser cess not expired-Authorities have power to cancel earlier notification and pass fresh one-Act 1961 not imposed any restriction on right of authorities to enhance cess nor puts any embargo on their right to levy cess from any period.-On perusal of the scheme of the Maharashtra Zilla Parishad and Panchayat Samiti Act, 1961, it is manifest that the said Act no where imposes any restriction on the right of the authorities to enhance the cess nor puts any embargo, on the right of the authority to levy the cess from any period.
In view of Section 21 of the General Clauses Act, it cannot be a matter to debate that the authorities who have power to enact or promulgate a notification also have a power to rescind the same. The Statute does not lay down any embargo on the authorities from rescinding earlier resolution. The authorities have power to cancel the earlier resolution and pass fresh one.
S.V. Gangapurwala, J.
These petitions take exception to the Resolution dated 06/11/1993 passed by the respondent No. 3 and the notification dated 01/03/1994 issued by the respondent No. 1, thereby increasing the cess and the additional cess leviable Under Section 144 & 155 of the Zilla Parishad and Panchayat Samiti Act, 1961.
2. The petitioners are the residents of Ahmednagar District and owners of agricultural lands. It is the case of the petitioners that respondent Nos. 1 to 3 have unlawfully increased additional cess on land revenue under the provisions of Section 144 and 155 of the Zilla Parishad and Panchayat Samiti Act, 1961 (Here-in-after referred to as “Act,1961). According to them a cess is collected on the land revenue under Section 144 of the Act of 1961, to augment the said income and to meet the additional expenditure and machinery was created Under Section 155 of the said Act, 1961 for raising additional cess. According to the petitioners by Maharashtra Act I of 1993 which came into force on 01-04-1993, the cess Under Section 144 of the said Act of 1961 has been increased to 200 paise from 20 paise while the maximum limit of additional cess was increased up to 700 paise as determined by the procedure adopted Under Section 155(1) of the said Act, 1961. The petitioners have challenged the notifications increasing the said cess and the additional cess.
3. The contour of the arguments of Shri R.R. Mantri, learned counsel for the petitioner can be detailed as under.
A. To determine the cess, its quantum and the period is prerogative of the Commissioner, but the decision has been taken at the behest of the Government.
B. Proper procedure as contemplated under the relevant Statute, Rules and the Code has not been followed.
C. The quantum of the tariff is too exorbitant and it also does not specify special purpose for which the proceeds of the increase in the rate are to be utilised.
D. The cess could not have been levied with the retrospective effect.
4. Shri Shelke learnedcounsel for the respondent submitted that
1. When the respondents have the power to pass a resolution, they also posses power to cancel the same. He relied on Section 21 of the General Clauses Act. While passing resolution dated 06/11/1993 it has cancelled the earlier resolution, and as such there was no impediment for them to pass a fresh resolution, increasing the cess.
2. There is no bar in the Statute prohibiting them to pass the resolution from enhancing the cess for the said period. According to him, the agriculture year is from 1st August to 31st July and as such it is to be charged during the said period and same is not retrospective.
3. The cess is increased after a period of 20 years. Pursuant to increase in the cess, the Government also increased the local cess matching grant vide its notification in the Gazette dated 22-06-1994. The reference to Section 21 of the General Causes Act would be relevant.
5. Before adverting to the rival submissions of respective counsel it would be appropriate to reproduce the relevant provisions of Section 144, 147, and Sec. 155 (1) (2) (3) (4) of the Maharashtra Zilla Parishad & Panchayat Samiti Act & Section 21 of the General Clauses Act.
“Section :-144 The State Government shall levy, on the conditions and in the manner hereinafter described [a cess within a District at the rate of [two hundred paise] or at such increased rate not exceeding [seven hundred paise] as may be [determined by the concerned Divisional Commissioner] under Section 155, on every purpose of -
(a) every sum payable to the State Government as ordinary land revenue, except sums payable on account of any of the charges mentioned in the Forth Schedule, and except sums payable on account of any charge which may be notified by the State Government in this behalf; and
(b) every sum which would have been assessable on any land as land revenue had there been no alienation of land revenue:
Provided that, no cess be levied under t
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
