Back
1965 Supreme(Ori) 28
HIGH COURT OF ORISSA
S. Barman And G. K. Misra, JJ.
GAURI PRASAD DEHURI - Appellant
Versus
STATE OF ORISSA - Respondent
O. J. C. 88 Of 1964
Decided On : April 09, 1965
R.C.Ram
The imposition of Panchayat Tax is subject to the rules, including Rule 121, which requires that imposition of a tax must be determined by a resolution as a condition precedent.
Headnote:
PANCHAYAT TAX - IMPOSITION - RESOLUTION BY GRAM PANCHAYAT - CONDITION PRECEDENT - SARPANCH - REMOVAL FROM OFFICE - JUSTIFICATION - ORISSA GRAM PANCHAYATS ACT, 1948 (ORISSA ACT 1 OF 1949), SECS. 17, 44 - ORISSA GRAM PANCHAYAT RULES, 1949, RULES 35(B), 38, 121.
Fact of the Case:
The petitioner, a Sarpanch of a Gram Panchayat, was removed from office and declared ineligible for such office for two years by the State Government for allegedly carrying out a campaign against the levy of Panchayat Tax, which is an obligatory tax under the law.
Finding of the Court:
The court held that the imposition of taxes by a Gram Panchayat is subject to the rules, including Rule 121, which requires that imposition of a tax must be determined by a resolution as a condition precedent. The court found that the Gram Panchayat had passed a resolution declining to impose the tax, and that the Sarpanch had acted in accordance with the decision of the Gram Panchayat.
Issues: 1. Whether the imposition of Panchayat Tax is obligatory and must be imposed without a resolution by the Gram Panchayat? 2. Whether the Sarpanch had wilfully omitted, refused to carry out or disobeyed any of the provisions of the Act or any rules issued thereunder or in any way abused the power vested in him?
Ratio Decidendi: 1. The court held that the imposition of taxes by a Gram Panchayat is subject to the rules, including Rule 121, which requires that imposition of a tax must be determined by a resolution as a condition precedent. 2. The court held that the Sarpanch had not wilfully omitted, refused to carry out or disobeyed any of the provisions of the Act or any rules issued thereunder or in any way abused the power vested in him. The court found that the Sarpanch had acted in accordance with the decision of the Gram Panchayat, which had passed a resolution declining to impose the tax.
Final Decision: The court allowed the writ petition and quashed the Government's order removing the petitioner from the office of Sarpanch and declaring him ineligible for the office of Sarpanch for two years.
BARMAN, J.
( 1 ) THE petitioner is a Sarpanch of Sarasara Gram Panchayat in the district of phulbani. In this writ application he challenges the order of the Government of orissa removing him from the office of Sarpanch and declaring him not eligible for such office for 2 years from the date of his removal. The alleged ground of his removal is that he had been vigorously carrying on campaign against levy of panchayet Tax which is an obligatory tax under the law.
( 2 ) THE Government notification removing the petitioner from the office of sarpanch, so far as material is this:
"whereas Sri Gouri Prasad Dehuri Sarpanch of Sarasara Gram Panchayat in the District of Phulbani had in the opinion of the State Government wilfully omitted, refused to carry out and disobeyed several provisions of the Orissa Gram Panchayat Act, 1948 and the Orissa Gram Panchayat rules, 1949, and lawful orders issued thereunder and abused the powers vested in him as will appear from the following instances: He has been vigorously carrying on a campaign against levy of Panchayat Tax, which is an obligatory tax under the Law. This tantamounts to a refusal to carry out the provisions of the Act. Now therefore in exercise of the powers conferred by Clause (b) of Rule 35 of the Orissa Gram Panchaval Rules, 1949, the State Government do hereby remove the said Sri Gouri Prasad Dehury from the office of the sarpanch of Sarasara Gram Panchayat. "
( 3 ) BY a separate notification the State Government declared that the petitioner shall not be eligible for such office for a period of 2 years from the date of his removal from the office of the Sarpanch of the said Sarasara Gram Panchayat.
( 4 ) THE question is Did the Sarpanch do any act tantamount to having wilfully omitted, refused to carry out and disobeyed several provisions of the Orissa Gram panchayat Act, 1948 and the Orissa Gram Panchayat Rules 1949?
( 5 ) RULE 35 (b) under which the Government removed the Sarpanch from his office is this:
"35. The Provincial Government may by notification remove any sarpanch or Naib-Sarpanch-XX XX XX XX (b) if he, in their opinion, wilfully omits or refuses to carry out or disobey the provisions of the Act or any Rules, by-laws, regulations or lawful orders issued thereunder or abuse the powers vested in him. " rule 38 under which the State Government declared the petitioner as not eligible for the office of Sarpanch for a period of two years is this: "38. Any person removed from the office of the Sarpanch or Naibsarpanch under Sub-rule (b) of Rule 35, Panch or President of an Adalati panchayat under Sub-rule (b) of Rule 37 and a member of the Gram panchayat removed under Sub-rule (b) of Rule 38-A shall not be eligible to any of the said offices for a period not exceeding three years as may be specified by Government. "
( 6 ) THE provisions of the Act which the sarpanch is said to have wilfully omitted, refused to carry out and disobeyed are as contained in Section 44 on taxes which may be imposed and Section 17 on powers of the Sarpanch. Section 44 so far as material provides-
"44 (1) Subject to the prescribed Gram Panchayat Rules, Panchayat shall impose upon the owner of immovable property and occupier of any building within its local area a tax (hereinafter referred to as the panchayat Tax) according to the circumstances and the property of such owner and occupier. xx xx xx xx (2) With the previous sanction of the Provincial Government and subject to such maximum and minimum rates as may be prescribed a Grama panchayat may impose the following tax, toll, fee or rates-xx xx xx xx (3) No tax, toll, fee or rate provided under Sub-sections (1) and (2) shall be imposed by a District Board in any local area of a Grama Panchayat. " then what is required of the Sarpanch to give effect to the decision of the Grama panchayat is laid down in Section 17 which says-"17. (1) The Sarpanch shall, in execution of his duties, give effect to the decisions of the Gram Panchayat. Provided that
