( 1 ) THE petitioners Nos. 2 to 5 are the owners of Survey No. 425 (Part) and Survey No. 430 (Part) of Billimora in Bulsar District. Petitioner No. 1 is the lessee in respect of those lands. It is the petitioners case that on 20/12/1966 permission to use these lands for non-agricultural use was granted to them by the Collector.

( 2 ) FOR the financial years 1975-76 and 1976-77 assessment list were prepared by Billimora Municipality for imposing house tax on lands and buildings situated within the municipal limits Those lists were prepared under the House Tax Rules which have been continuing in force since 22/01/1956 when they were made under the provisions of the Bombay District Municipal Act 1901 fore-runner of the Gujarat Municipalities Act 1963 In terms of those rules assessment lists were prepared and the Municipality preferred bills for house-tax. Those hills are challenged by the petitioners in this petition the grounds with which we are now dealing.

( 3 ) THE first contention which Mrs. Mehta has raised on behalf of the petitioners is that Rule 1 is ultra vires sec. 99 (1) (i) read with sec. 2 (1) of the Gujarat Municipalities Act 1963 The challenge is based upon the argument that the rule casts a wider net that what is permitted by sec. 99 (1) (i) read with sec. 2 (1) In order to examine this contention it is necessary to turn firstly certain provision. of the Bombay District Municipal Act 1901 under which these rules were made

( 4 ) SEC. 59 (1) of the Bombay District Municipal Act 1901 inter alia provided as follows :subject to any general or special orders which the State Government may make in this behalf any Municipality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . MAY impose for the purposes of this Act any of the following taxes that is to say (i) a rate on buildings or. ands or both situate within the municipal district. . . . . . . . . . . . . . . . . . . . . . . . . . Now the rate on buildings or lands could be levied on the basis of annual letting value. Sec. 3 (11) defined the expression annual letting value in the following terms :annual letting value shall mean the annual rent for which any building or land exclusive of furniture or machinery contained or situated therein or thereon might reasonably be expected to let from year to year. Sec. 3 (6) defined land and see 3 (7) defined building. Therefore a rate on land and building could be levied on the annual rent which a land or building was reasonably expected to fetch. We may state that annual letting value on which a property could be assessed was made the basis for assessing the house tax payable on lands and buildings. With the enactment of the Gujarat Municipalities Act 1963 Bombay District Municipal Act 1901 was repealed. Sec. 279 while repealing the Bombay District Municipal Act 1901 provides for the effect of repeal. Sub-sec. (2) inter alia provides in that behalf as follows : notwithstanding the repeal of the said Acts- (VI) any appointment notification notice tax fee order scheme licence permission rule by-law or form made issued imposed or granted in respect of the said boroughs or districts and in force immediately before the date of the commencement of this Act shall in so far as they are not inconsistent with the provisions of this Act be deemed to have been made issued imposed or granted under this Act in respect of the borough and shall continue in force until it is superseded or modified by any appointment notification notice tax fee order scheme licence permission rule by-law or form made issued imposed or granted under this Act. The House Tax Rules framed by Billimora Municipality continue to be in force by virtue of the provisions of sec. 279 (2) (vi) of the Gujarat Municipalities Act 1963 Within the meaning of that provision we have to find out whether there is anything inconsistent between the House Tax Rules of Billimora Municipality and sec. 99 (1) (i) re