JUDGMENT
N.K. Sodhi, J.
1. The short question that arises for consideration in this petition filed under Article 226 of the Constitution is whether a Municipal Council which has been directed by a special or general order of the State Government to impose tax on professions, trades, callings and employments as mentioned in Section 70 of the Haryana Municipal Act, 1973 (hereinafter called the Act), is required to follow the procedure to impose taxes as prescribed in Section 74 thereof. Since the question is purely legal, it is not necessary to refer to the facts at all.
2. In exercise of the powers conferred by Clause (i) of Sub-section (1) of Section 70 read with Section 75(1) of the Act and all other powers enabling him in this behalf, the Governor of Haryana by order dated May 16, 2000 directed that all Municipal Councils/ Committees in the State of Haryana shall impose tax, within a period of 15 days from the date of publication of the order in the Official Gazette, on professions, trades, callings and employments at the rates specified against each in the schedule given in the order. In pursuance to these directions, the Municipal Council, Ambala City (for short the Council) has imposed tax, amongst others, on clinics and medical laboratories, hospitals and nursing home having up to five beds and also on those having more than five beds. This levy of tax has been challenged primarily on the ground that the Council has not followed the procedure to impose taxes as envisaged in Section 74 of the Act and, therefore, according to the petitioners, the levy is illegal and that the Council cannot recover any tax from the petitioners who are doctors by profession and are running their clinics and private nursing homes in Ambala City.
3. Chapter V of the Act deals with taxation. Section 69 of the Act prescribes those taxes which every Municipal Committee/ Council is required to impose and there is no option not to levy any of those taxes. Before levying any tax referred to in Section 69 of the Act, a Municipal Committee/Council is required to pass a resolution at a special meeting within thirty days from the date of publication of notification under Section 69 of the Act directing the imposition of tax with effect, from the date to be fixed in the resolution. Since the Municipal Committee/ Council has no option but to levy the taxes, it is not required to publish its proposal for inviting objections from the residents of the municipality. If the Committee/Council fails to pass a resolution within the aforesaid period, the resolution in this behalf shall be deemed to have been passed by the Committee/Council on the expiry of the period of the said thirty days. It is thereafter that the State Government, notifies in the Official Gazette the imposition of the tax from the appointed date. Section 70 of the Act then empowers the Committee or a Council to impose in the whole or any part of the municipality any of the taxes, tolls and fees referred to in Clauses (i) to (xv) of Sub-section (1) of Section 70 of the Act. The levy of these taxes is optional and it is open to a municipality to levy them or riot to levy them. If they are levied, they are subject to any general or special order of the State Government and to the Rules framed under the Act. If a Municipal Committee /Council decides to impose any of the taxes referred to in Section 70 of the Act it has to follow the procedure that is prescribed in Section 74 of the Act, Sections 70 and 74 of the Act which have a bearing on the issue raised before us, read as under :–
“70. Taxes that may be imposed — (1) Subject to any general or special orders of the State Government in this behalf and to the rules, a committee may, from time to time, for the purposes of this Act, impose in the whole or any part of the municipality any of the following taxes, tolls and fees, namely :–
(i) a tax on professions, trades, callings and employments;
(ii) a tax on vehicles, other than motor vehicles, plying for hire or kept within the municipality;
(iii) a tax on animals used for riding, draught or burden, kept for use within the municipality, whether they are actually kept within or outside the municipality;
(iv) a tax on dogs kept within the municipality :
(v) a show tax;
(vi) a toll on vehicles, other than motor vehicles, or any other conveyances entering the municipality;
(vii) a tax on boats moved within the municipality;
(viii) a tax on the consumption of electricity at the rate of not more than five paise for every unit of electricity consumed by any person within the limits of the municipality;
(ix) a fee with regard to pilgrimages;
(x) a fee with regard to drainage;
(xi) a fee with regard to lighting;
(xii) a fee with regard to scavenging;
(xiii) a fee for cleansing of latrines and privies;
(xiv) a fee in the nature of costs for providing internal services under the scheme framed under Section 203;
(xv) with the previous sanction of the State Government, any other tax, toll or fee which the State Legislature has power to impose in the State under the Constitution of India.
(2) The rates of any tax, toll or fee under Sub-section (1) except that under Clause (viii) thereof shall be determined by the committee;
Provided that such rates shall not exceed the maximum limits which the State Government may, from time to time, by notification, specify in this behalf.
“74. Procedure to impose taxes.– (1) A Committee may, at a special meeting, pass a resolution to propose the imposition of any tax under Section 70.
(2) When such a resolution has been passed, the committee, shall publish a notice, defining the class of persons or description of property proposed to be taxed, the amount or rate of the tax to be imposed, and the system of assessment to be adopted.
(3) Any inhabitant objecting to the proposed tax may, within thirty days from the publication of the said notice, submit his objection in writing to the committee; and the committee shall at a special meeting take his objection into consideration.
(4) If the committee decides to amend its proposals or any of them, it shall publish amended proposals, along with a notice indicating that they are in modification of those previously published for objection.
(5) Any objections to the amended proposals which may be received within thirty days of their publication shall be dealt with in the manner prescribed in Sub-section (3).
(6) When the committee has finally settled its proposals, it shall, if the proposed tax falls under Clause (1) to Clause (xiv) of Sub-section (1) of Section 70, direct that the tax be imposed, and shall forward a copy of its order to that effect through the Deputy Commissioner, to the State Government and if the proposed tax falls under any other provision, it shall submit its proposals together with the objection, if any, made in connection therewith to the Deputy Commissioner.
(7) If the proposed tax falls under clause (xv) of Sub-section (1) of Section 70, the Deputy Commissioner shall submit the proposals and objections with his recommendation to the State Government.
(8) The State Government on receiving proposals for taxation under Sub-section (2) may sanction or refuse to sanction the same, or return them to the committee for further consideration.
(9) When –
(a) a copy of order under Sub-sections (6) and (7) has been received; or
(b) a proposal has been sanctioned under Sub-section (8), the State Government shall notify the imposition of the tax in accordance with such order or proposal and shall in the notification specify a date not less than one month from the date of the notification, on which the tax shall come into force.
(10) A tax leviable by the year shall come into force on the first day of January or on the first day of April or on the first day of July or on the first day of October in any year, and if it comes into force on any other day then the first day of the year by which it is leviable shall be leviable by the quarter till the first day of such year then next ensuing.
(11) A notification of the imposition of a tax under this Act shall be conclusive evidence that the tax has been imposed in accordance with the provisions of this Act.”
The State Government then has the power under Section 75 of the Act to direct a Municipal Committee/Council by special or general order to be notified in the Official Gazette to impose any tax mentioned in Section 70 of the Act, if not already imposed, at such rates and within such period as may be specified in the order and the Municipal Committee/Council shall thereupon act accordingly. Section 75 of the Act which is relevant for our purpose is reproduced here-under for facility of reference :–
“75. Power of Government in respect of taxation.– (1) The State Government may by special or general order notified in the Official Gazette, require a committee to impose any tax mentioned in Section 70 not already imposed at such rate and within such period as may be specified in the notification and the committee shall thereupon act accordingly.
(2) The State Government may require a committee to modify the rate of any tax already imposed and thereupon the committee shall modify the tax as required within such period as the State Government may direct.
(3) If the committee fails to carry out any order passed under Sub-section (1) or Sub-section (2), the State Government may, by a suitable order notified in the Official Gazette impose or modify the tax. The order so passed shall operate as if it were a resolution duly passed by the committee and as if the proposal was sanctioned in accordance with the procedure contained in Section 74.”
From a joint reading of Sections 70, 74 and 75 of the Act, it is clear that if a Municipal Committee or a Council chooses to impose on it’s own any of the taxes referred to in Section 70 of the Act it has to follow the procedure as prescribed in Section 74 of the Act. If, however, a Committee/Council does not impose any tax referred to in Section 70 of the Act the State Government can direct it to impose the same under Section 75 of the Act and such a direction shall be issued by special or general order to be notified in the Official Gazette. When such a direction is issued the Committee/Council has no option but to levy that tax and if it fails to carry out the order passed under Sub-section (1) of Section 75 of the Act, the State Government may impose the tax and in such an event the order so passed shall operate as if it is a resolution duly passed by the Committee/Council and as if the proposal was sanctioned in accordance with the procedure prescribed in Section 74 of the Act. It is, thus, clear that when a Municipal Committee or a Council imposes a tax under the directions of the State Government issued under Section 75(1) of the Act it is not required to follow the detailed procedure to impose taxes prescribed in Section 74 thereof. That procedure is required to be followed only when the Committee chooses to levy the tax on its own. In the instant case, the tax on professions, trades, callings and employments has been levied by the Council on the directions issued by the State Government under Section 75(1) of the Act and, therefore, it is not necessary for it to follow the procedure prescribed by Section 74 of the Act. Assuming for the sake of argument that the Council follows the procedure prescribed under Section 74 of the Act and invites objections in which when received it finds merit so as to warrant that the tax should not be imposed, still the Council will be helpless in view of the mandatory directions given by the State Government to impose such a tax. When such is the situation, the following of the procedure will just be an exercise in futility. It, therefore, follows that the Council is not required to follow the procedure prescribed under Section 74 of the Act for the levy of tax which is directed by the State Government to be imposed. The levy of tax by the Council cannot, thus, be said to be illegal. We have, therefore, no hesitation in rejecting the contention raised on behalf of the petitioners.
4. Petitioners have also challenged in the
writ petition the levy of tax on the ground
that it is discriminatory inasmuch as it has
not been levied on all professions and that
some of the professions like those of the
advocates, architects, chartered account
ants have been left out. It is not necessary
for us to deal with this contention because
the same was not pressed by the learned
counsel for the petitioners at the time of
arguments.
5. In the result, the writ petition fails and the same stands dismissed in limine.