JUDGMENT

G.C. Mathur, J. - Before October, 1950, Ganjdundwara was a noticed area but from October, 1, 1950, it was converted into a municipal board. Under a notification dated August, 19, 1922, circumstances and property tax was imposed in the noticed area and this tax was continuously realised by the notified area committee and later by the municipal board. From the year 1954-55 the municipal board refused to realise this tax. Several reminders warrant by the Commissioner, Agra revision, asking the municipal board to assess and realise this tax ut it refused to do so. On January 27, 1961, the Commissioner passed an order under Sec. 35 of the U.P. Municipalities Act, stating that despite persistent reminders, the municipal board took no steps to realise the circumstances and property tax since the year 1954-55, that the arrears of tax were accumulating and the board was put to a yearly loss of Rs. 10,000/- and that the financial condition of the board was not ground and directed the municipal board to explain its omission and to show cause why action should not be taken against it for not preparing the assessment list of circumstances and property tax. In spite of this order, the board did not take any step to realise the tax and passed a resolution that it did not desire to realise this tax. Thereupon the Commissioner passed another order under Sec. 35 of the Act, directing the board to realise the tax within two months of the receipt of the order and report compliance by June 30, 1961, failing which an order under Sec. 35(2) would have to be passed, entrusting this work to the District Magistrate. Still the board took no steps to realise the tax. On September 5, 1961, the Commissioner passed an order under Sec. 35 (2), appointing the Sub-Divisional Magistrate, Aligan, to complete and finalise the assessment list and directed that the expenses of performing this duty be paid to the Sub-Divisional Magistrate by the board. In pursuance of this order, the Sub-Divisional Magistrate prepared an assessment list in which the petitioner was assessed to Rs. 40/- as circumstances and property tax.

2. In this petition, the petitioner has prayed for quashing the order of the Commissioner dated September 5, 1961, and for an order restraining the Sub-Divisional Magistrate from proceeding further with the assessment proceedings. These reliefs are prayed for on two grounds, namely,

1. that the circumstances and property tax was not initially levied in accordance with law in the notified area and as such it could not be continued by the municipal board; and

2. then there being no duty cast upon the municipal board to realise this tax, no order under Sec. 35 could be passed by the Commissioner.

3. It is necessary to examine the provisions under which the circumstances and property tax was originally levied in the notified area. Sub-Sec. (1) (a) of Sec. 338 of the U.P. Municipalities Act provides that the provincial Government may, by notification, apply or adapt to a notified area the provisions of any section of this Act, or of any Act, which may be applied to a municipality, or part of such section, or any rule, regulation or bye-law in force or which can be imposed in a municipality under the provisions of this Act or any other Act, subject to such restrictions and modifications, if any, as it may think lit. Under this power, the provincial Government, on July 6, 1917, issued Notification No. 2218/XI-70 H, extending certain provisions of the U.P. Municipalities Act to notified areas in U.P. Secs. 128 to 137 of the U.P. Municipalities Act were not extended to notified areas by this notification but Sec. 153 was extended. Cl. (b) of sub-Sec. (1) of Sec. 338 of the U.P. Municipalities Act empowered the provincial Government, by notification, to impose, in the whole or a part of such area, any tax which might be imposed therein under the provisions of the U.P. Municipalities Act or any other Act if the said area were a municipality, It, therefore,