The power of taxation in a notified area can be vested concurrently with the Local Government and the Notified Area Committee under the Bihar and Orissa Municipal Act, 1922.

1. In this case the petitioners have obtained a rule calling upon the opposite parties to show cause why a writ in the nature of mandamus should not be issued restraining them from imposing or collecting a holding tax levied by a resolution of the Mihijam Notified Area Committee. Cause has been shown by the learned Government Advocate on behalf of the opposite parties.

2. The petitioners are residents of three villages, Mihijam, Kanungui and Anui which have been formed into a Notified Area Committee known as the "Mihijam Notified Area Committee set up by a notification issued by the Government of Bihar. The draft notification was issued on 4-7-1950 inviting objections or suggestions from the persons likely to be affected. On 5-1-1951 the Government of Bihar acting in exercise of the powers under Sections 383 and 389 of the Bihar & Orissa Municipal Act applied to the Notified Area of Mihijam various provisions of the Act mentioned in the schedule to the notification. There was another notification dated 7-9-1951 wherein the Government sanctioned the imposition of holding tax by the Mihijam Notified Area Committee. This notification was issued under Section 82 of the Bihar and Orissa Municipal Act. The case of the petitioners is that the imposition of the tax is illegal, firstly, on the ground that the provisions of Sections 388, 389 and 390 are beyond the legislative competence of the State Legislature, and, secondly, because the power of taxation is vested in Sec.389(b) with Local Government and the Notified Area Committee has no authority to impose the tax. The petitioners therefore pray that a writ in the nature of mandamus should be issued prohibiting the opposite parties from imposing or realising any tax within the Notified Area,

3. In support of this rule Mr. Baldeva Sahay presented the argument that Section 389 empowered the Local Government to appoint a committee for the notified area for the purpose of carrying out the purpose of the Act in the said notified area. Counsel stressed the point that all the members of the Committee in the present case are nominated and no provision has been made for election of the members of the committee. Counsel referred to Item 5 of the State List (Seventh Schedule) of the Constitution. Item 5 states:

"Local Government, that is to say, the constitution, and powers of municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local sell-government or village administration".

The argument of the counsel is that Item 5 relates to matters of Local Self Government and a legislation which authorises the formation of a committee, all the members of which are nominees of the Government, would not be constitutional. The contention of the counsel is that such a legislation would fall beyond the legislative competence of the State Legislature. It is not necessary for the purposes of this case to express a concluded opinion whether such a legislation would fall within the ambit of Item 5 of the State List, for it would be a wrong approach to decide the validity of the law in the present case with reference to the legislative competence conferred by different items of the State List. It should be noticed that the impugned Act was passed in 1922, even before the coming into force of the Government of India Act. Section 292 of the Government of India Act states:

"Notwithstanding the repeal by this Act of the Government of India Act, but subject to the other provisions of this Act, all the laws in force in British India immediately before the commencement of Part III of this Act shall continue in force in British India until altered or repealed or amended by a competent Legislature or other competent authority."

The validity of the Act is also continued under the provisions of Article 372 of the Constitution which runs as follows:

"Notwithstanding the repeal by this Constitution of the enactments referred to in Art