Appeal No 596 of 1966
Appeal by special leave from the judgment and order dated January 27 1964 of the Allahabad High Court in Special Appeal No 270 of 1958
section T Desai and C P Lal for the appellant
C B Agarwala and J P Agarwal for the respondent
The Judgment of the Court was delivered by Sikri J
This appeal by special leave is directed against the judgment of the High Court of Allahabad accepting a petition under article 226 of the Constitution and directing the District Board Moradabad not to levy upon Ms Nundan Sugar Mills Amroha respondent before us circumstances and property tax for any one year exceeding the sum of Rs 200
The High Court held that no special resolution of the Board had been passed nor had a notification been made imposing the tax under section 119 and section 120 respectively of the United Provinces District Boards Act 1922 U P Act of 1922 hereinafter referred to as the Act
The relevant facts out of which this appeal arises are these On July 28 1925 it was notified under sub section
2 of section 120 of the Act that the District Board of Moradabad in exercise of the powers conferred by section 108 sub section
2 of the Act has imposed the following tax with effect from September 1 1925 A tax on
all persons ordinarily residing or carrying on business in the rural area of the Moradabad District according to their circumstances and property at the rate of four pies per rupee on the total taxable income provided that the total amount of tax imposed on any person shall not exceed Rs 200
Provided also that no income once assessed shall be reassessed
On May 28 1927 the District Board took action upon a memo randum prepared by the Chairman of the District Board
The memorandum of the Chairman pointed out   the maximum amount of tax recoverable from an assessee should be raised from Rs 200 to Rs 500 PA Hence proposal c framed under section 115 sanctioned by G 0
No dated 28 7 25 so be modified as to read as under That there shall be a rate of tax 4 pies in the rupee provided that the total amount of tax imposed on any person shall not exceed Rs 5001 The resolution of the Board was in these terms The bye laws be modified accordingly after necessary publication and sanction
The assessing officer to assess them at 2 pies sic in anticipation of final sanction
3 On January 11 1928 the Government of United Provinces issued a notification amending the rules for the assessment and collection of a tax on circumstances and property in the rural areas of the Moradabad District
The following rule 16 was added 16
The total amount of tax imposed on any person shall not in any year exceed the sum of Rs 5001 
 On August 31 1931 the Board passed another resolution approving the following memorandum  
The words and figures Rs 500  be substituted by Rs 2000  in rule 16 of the rules for the assessment and collection of a tax on circumstances and property in the rural area of the Moradabad district published with Government Notification No  dated 11 1 1928
The exact terms of the resolution were Resolved unanimously that thememo
be approved and necessary action be taken on it
If publication is required it be done and Government be moved to accord sanction for the same
On March 18 1932 the Government of United Provinces issued a notification amending rule 16
The amendment it was in the following terms In Rule 16 published with notification No 33IX18514 24 dated January 19 1928 Rs 2000  shall be substituted for Rs 500
It appears that no further action was taken by the District Board to enforce this amendment in rule 16 or the amendment dated January 11 1928
Further action is contemplated by sections 119 and 120 read with section 12 1 of the Act
These sections may be reproduced in full
 119
Resolution of board directing imposition of tax Upon receipt of the copy of the rules sent under the preceding section the board shall by special resolution direct the imposition of the tax with effect from a date to be specified in the resolution not less than six weeks from the date of such resolution
 120
Imposition of tax 1 A copy of the resolution passed by the board under Section 119 shall be submitted to the State Government
2 Upon receipt of the copy of the resolution the State Government shall notify in the official Gazette the imposition of the tax from the appointed date and the imposition of a tax shall in all cases be sub ject to the condition that it has been so notified
3 A notification of the imposition of a tax Linder sub section 2 shall be conclusive proof that the tax has been imposed in accordance with the provisions of this Act
4 121
Procedure for altering taxes The procedure for abolishing or suspending a tax or for altering a tax in respect of the matters specified in clauses b and c of sub section 1 of Section 115 shall so far as may be be the procedure prescribed by Sections 115 to 120 for the imposition of a tax
Clauses b and c of sub section 1 of section 115 referred to in section 121 read b the persons or class of persons to be made liable and the description of the property or other taxable thing or circumstances in respect of which they are to be made liable except where and in so far as any such class or description is already sufficiently defined under clause a or by this Act  c the amount or rate leviable from each such person or class of persons It is common ground that the procedure laid down in sections II 5 to 118 has been followed by the Board
The only dispute between the parties is whether it is necessary that a resolution should be passed under section 119 and a notification issued under section 120 before effect can be given to a notification made under section 118 altering the rules
In other words was it necessary to pass a resolution under section 119 after the issue of the notification dated March 18 1932 or the notification dated January 11 1928 referred to above Both the learned Single Judge and the Division Bench who heard the appeal from the learned Single Judge have come to the conclusion that without a resolution under section 119 and a notification under section 120 no tax can be levied in pursuance of the notification dated March 18 1932 or notification dated January 11 1928
It may be mentioned that the High Court directed the District Board not to levy upon the petitioner circumstances and property tax for any year exceeding the sum of Rs 200 
There is no dispute that the Board could levy upon the petitioner tax up to the sum of Rs 200 
The learned counsel for the appellant contends that if the procedure laid down in sections 115 to 118 has been followed it is not necessary that there should be a resolution under section 119 and a notification under section 120
He says that rules can be made under section 172 read with section 176 of the Act and once rules are made there is nothing more to be done
But there is one fallacy underlying the argument of the learned counsel and that is that it misses the object of sections 119 and 120 which is to fix the date from which the tax can be imposed
If no date is fixed no tax can be imposed
Once the Board passes a special resolution under section 119 it has to go to the Government under section 120 and then the Government notifies the imposition of tax from the appointed date
It is then that the notification becomes conclusive proof of the fact that the 5 tax has been imposed in accordance with the provisions of this Act
Sub clause 3 of section 120 clearly proceeds on the basis that the imposition of tax takes place on a notification issued under section 120 and not on the issue of a notification under section 118
The learned counsel invited our attention to Raza Buland Sugar Co Ltd vs Municipal Board Rampur1 but we are unable to see how that case assists him
No question of sections 119 and 120 being directory arises in this case because in our view without a resolution under section 119 and a notification under section 120 no tax can be imposed
The learned counsel also urges that a no writ petition is maintainable challenging a preConstitution matter and b the respondent not having appealed under section 128 of the Act the petition was not maintainable
In our view there is no merit in these contentions
The respondent is being charged tax now
He is entitled not to be taxed except under the authority of law vide article 265 of the Constitution
There is no question of challenging any pre Constitution matter
The respondent is challenging a post Constitution action on the ground that there is no authority of law for the action
Regarding the second point the High Court held that an appeal to the District Magistrate under section 128 was not likely to be of much assistance to the petitioner and rejected the contention
It is well settled that a provision like section 128 does not oust the jurisdiction of the High Court to entertain a petition under article 226 and it is for the High Court to exercise its discretion whether to entertain the petition or not
The learned counsel has not pointed out anything to us to show that the discretion has not been properly exercised
In the result the appeal fails and is dismissed with costs


Summary:
In July 1925 it was notified under section 1202 of the U P District Boards Act 1922 that the District Board of Moradabad in exercise of powers conferred by section 1082 of the Act had imposed a tax with effect from September 1 1925 on the residents of the District according to their circumstances and property at the rate of 4 pice per rupee on the total taxable income subject to a maximum of Rs 200
In May 1927 the District Board passed a resolution increasing the maximum from Rs 200 to Rs 500 and thereafter the State Government issued a notification in January 1928 amending the rules for the assessment and collection of tax so as to increase the maximum to Rs 500
In August 1931 the Board passed another resolution in creasing the maximum further to Rs 2000 and the State Government issued a notification in March 1932 further amending the rules so as to incorporate the new maximum
No further action was taken by the District Board to enforce these amendments of the rules
Upon a writ filed by the respondents under Act 226 of the Constitution the High Court directed the District Board Moradabad not to levy upon the respondent a tax in excess of Rs 200 per year on the ground that no special resolution of the Board had been passed nor a notification issued by the State under sections 119 and 120 respectively of the Act imposing the tax with revised maximum limits
In appeal to the Supreme Court it was contended on behalf of the appellant that when the procedure laid down in sections 115 to 118 had been followed whereby the amendments had been approved by resolutions and notified it was not necessary that there should be a further resolution and notification under section 119 and section 120 respectively
Held The tax with the revised maximum limits introduced in 1928 and 1932 could not be imposed without a resolution under section 119 and a notification under section 120
5B The object of sections 119 and 120 is to fix the date from which the tax can be imposed
If no date is fixed no tax can be imposed
Once the Board passes a special resolution under section 119 it has to go to the Government under section 120 and then the Government notifies the imposition of tax from the appointed date
It is then that the notification becomes conclusive Proof of the fact that the tax has been imposed in accordance with the provisions of this Act Sub clause 3 of section 120 clearly proceeds on the basis that the imposition of tax takes place on a notification issued under section 120 and not on the issue of a notification under section 118
4G 5A Raza Buland Sugar Co Ltd vs Municipal Board Rampur   referred to
N1SCI 2