IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 5980 of 2009 Shaukat Ali, son of late Abdus Shakur, resident of Momin Tola, Ward No 9, Post Office – Madhubani, Police Station – Madhubani Sadar, District – Madhubani - Petitioner Versus 1 The State of Bihar through Principal Secretary, Department of Urban Development and Housing, Government of Bihar, Patna 2 The Principal Secretary, Department of Urban Development and Housing, Government of Bihar, Patna 3 The District Magistrate, Madhubani 4 Municipal Council, Madhubani through Executive Officer, Madhubani, Bihar 5 The Executive Officer, Municipal Council, Madhubani, Bihar - Respondents *** For the petitioner : M/s Anand K Ojha & Ashok K Karna, Advocates For the respondents : M/s J P Karn, AAG IX, Ashok Kr Dubey, AC to AAG IX & Shabbir Ahmad, Advocate *** 2 13.05.2009 Nagar Parishad, Madhubani is represented. The petitioner had been settled the rights to collect entry tax by the Madhubani Nagar Parishad. For the said settlement, for the financial year 2008-2009, petitioner had deposited in advance the entire year’s liability amounting to Rs 19,27,000/-. He started collecting with effect from 01st April 2008 but then, pursuant to State Government’s directives, he was, by Memo No 327 dated 27.09.2008, directed by the Executive Officer, Nagar Parishad, Madhubani to stop collection forthwith. Petitioner then filed a representation for proportionate refund of money which he had deposited. While this was pending, the Nagar Parishad wrote to the State Government claiming its right to levy such a 2 tax and also expressing difficulty in refunding the money. The State Government then permitted the Nagar Parishad to reimpose the said tax and the petitioner was thereafter informed by Memo No 13 dated 15.01.2009 to resume collections but no sooner petitioner started the collection, again the Collector, Madhuani, at the instance of the State Government, directed the district authorities to see that no collection was permitted which is evident from the letter of the District Magistrate, Madhubani dated 05th February, 2009. Thereafter, petitioner stopped further collection till the end of the financial year. It may be noted that pursuant to the order of the District Magistrate, on the same day, the Executive Officer of Nagar Parishad also directed the petitioner to stop collection. Petitioner’s grievance is that he having deposited substantial amount for the entire year’s right to collect entry tax and undisputedly he was prevented from doing so from 29th September, 2008 to 15th January, 2009 and then from 05.02.2009 to 31.03.2009 by the competent authority that is the Executive Officer, Madhubani Nagar Parishad, he is entitled to a proportionate refund as relief in the matter. In the present case, we are not concerned with the legality of the imposition or the legality of the intervention of the State in the matter. All we are concerned is that petitioner had taken the right to collect tax under authority of the Nagar Parishad for the entire year and deposited in advance in one instalment the entire year’s settlement money which is Rs 19,27,000/- but subsequently the same very authority restrains the petitioner from exercising his right. In the opinion of this Court, the petitioner is in law entitled to a proportionate 3 refund. The calculation is simple. The refund is to be based in proportion to the number of days, petitioner was prevented from collection. I, therefore, direct the petitioner to make a representation, in view of the facts noted above, to the Nagar Parishad, Madhubani giving the calculation and quantifying the amount of refund due. On receipt of the said representation, the Executive Officer of the Nagar Parishad would ensure that the proportionate refund, as claimed, is given to the petitioner immediately within 15 days of filing of representation. Lack of funds or inability to make refund in one instalment will be no excuse for when it came to collecting the settlement amount, petitioner was required to deposit the entire year’s settlement amount in one instalment in advance. Thus, in matters of refund also, the same principle must apply. With the aforesaid observation and direction, the writ application stands allowed. M.E.H./ (Navaniti Prasad Singh)