JUDGMENT
Mohapatra, J.
1. This petition under Article 226 of the India Constitution has been filed on behalf of the villagers of village Gandarpur with a prayer for issue of a writ of mandamus or any other suitable
writ or direction under the following circumstances: That the village Gandarpur by Notification dated 7-2-1945, along with other villages was included within the Municipality of Cuttack that thereafter in the year 1946 house-taxes were imposed on the villagers at the rate of 74 per cent, of the valuation of the holdings and the villagers have been paying the house-taxes on the above rate since 1-4-1347; that by an Amending Act of Orissa the maximum rate of assessment or house-taxes was raised from 71/2 per cent, to 121/2 per cent. The petitioners’ further case is that since April, 1950 the villagers were paying house-taxes at the rate of 121/2 per cent, of the valuation of the holdings; that thereafter the Orissa Municipal Act having come into force from 16-4-1951, the maximum rate of house-tax was brought down from 121/2 per cent, to 101/2 per cent, of the valuation of the holdings; and that the villagers are paying house-taxes at the aforesaid rate in accordance with the provisions of the Orissa Municipal Act from 1-7-1951.
2. The other part of the case of the petitioners is that latrine taxes in respect of the area in question, that is, village Gandarpur, having been imposed Since May, 1950, the petitioners are paying latrine taxes from the next ‘Kist’ following the assessment of latrine-tax.
3. Mr. G. C. Das, appearing on behalf of the petnrs., takes up the first point that inasmuch as no arrangement for cleansing of private latrines, urinals and cesspools of the village area has been made the imposition of latrine tax is illegal as contravening the provisions of Section 134, Orissa Municipal Act which is practically the same as the provisions of Section 86, Bihar and Orissa Municipal Act. Mr. Das particularly relies upon Clause (d) of the said section. The section runs thus:
“The imposition of the latrine tax shall be
subject to the following restrictions, namely:
X X X X
(d) that the tax shall not be leviable in area until the Municipal Council have made provision for the cleansing of private latrines, urinals, and cesspools within such area, nor shall the tax be leviable for any quarter or portion of a quarter antecedent to the making of such provision.”
His contention is that the provisions are mandatory to the effect that unless provisions for cleansing of private latrines, urinals and cesspools are made, no tax shall be leviable, and if, as in the present case, the tax is imposed without the said conservancy arrangements the taxation is bound to be declared as illegal.
4. Mr. Misra, appearing on behalf of the Cuttack Municipality, has drawn our attention to the records kept in the Municipal Office showing that on 28-5-1950, the Tax Daroga submitted a report to the Executive Officer to the effect that in the new area, that is, the areas which had been newly included within the Cuttack Municipality (including village Gandarpur) arrangements have been made for cleansing private latrines, urinals, and cesspools, etc. He had submitted also a list of holdings containing private latrines. The Executive Officer having moved the District Magistrate on this basis, the District Magistrate on 30-5-1950 passed a resolution imposing latrine taxes at the maximum rate of 7t per cent, on the valuation of the holding having found that arrangements had been made in the area for cleansing private latrines, urinals, and cesspools.
This resolution was passed by the District Magistrate during the period of supersession of the Cuttack Municipality. In the face of these
records of the Municipality we are definitely of the view that the imposition of latrine taxes cannot be deemed to have contravened the provisions of Section 134 (d), Orissa Municipal Act or the provisions of Section 86 (d), Bihar and Orissa Municipal Act. We may note here that if in spit of these records of the Cuttack Municipality the petitioners will dispute the fact that the arrangements contemplated under Section 134 (d) have not been made, they may seek their remedy, if they are so advised, in appropriate proceedings wherein they may agitate the matter more elaborately and effectively by adducing evidence disproving the records of the Municipality. But in view of the position arising out of the records of the Municipality it is not a fit case where our jurisdiction under Art. 226 can be invoked.
5. Regarding the house-tax, Mr. Das Mainly relies upon the provisions of Section 106, Bihar and Orissa Municipal Act contending that when the valuation and assessment lists were prepared in the year 1946 imposing house taxes at the maximum rate of 71/2 per cent, a further increas of the rate to 121/2 per cent, from April, 1959, is illegal. Section 106 runs as follows:
“106. (1) New valuation and assessment lists shall ordinarily be prepared, in the same manner as the originals lists, once in every five years.
(2) Subject to any alteration or amendment made under Section 107 and to the result of any application under Section 116, every valuation and assessment entered in a valuation or assessment list shall be valid from the date on which the list takes effect in the municipality and until the first day of the April next following the completion of a new list.”
The provisions of Section 106 are manifestly subject to the provisions of Section 107 which provides that the Commissioners may from time to time alter, or amend the assessment list in the case of buildings which have undergone additions, improvements etc. Mr. Misra contends that the Municipality has revalued the holdings which have undergone improvements which fact is denied by Mr. Das. Here again we are confronted with a disputed fact which cannot be effectively determined in this proceeding.
6. Mr. Das further contends that once the rate was fixed in the year 1946, it cannot be increased within a period of five years. On account of the improvements the Municipality may increase the tax, but cannot increase the maximum rate and reassess accordingly. As we have indicated above, by an Amending Act of Orissa the maximum rate of 71/2 per cent, was raised to 121/2 per cent, to be given effect from 1-4-1950. In our view, what Section 106, Bihar and Orissa Municipal Act contemplates is that the valuation and assessment lists once prepared will ‘ordinarily’ be in force for five years, but if on account of some extraordinary circumstances, such as, abnormal rises in the essential articles, costs of living, etc. the Legislature thought it necessary to increase the maximum rate, we do not think the municipality acted in excess of jurisdiction or illegally in increasing the maximum rate in accordance with law in force at the time even though five years had not expired from the date of the preparation of the original valuation and assessment lists.
It has got to be observed here that in the new Act, that is, the Orissa Municipal Act which has taken effect from 16-4-1951, the prescribed Maximum rate is 10 per cent, and the Municipality has taken proper and adequate steps to bring down the rate of the taxes accordingly and the
taxes that are being now realised do not contravene the maximum prescribed by law now in force. In this view of the matter, therefore, as the present taxes are in conformity with the legal maximum, there is no case for interference under Article 226. If on any previous occasion the petitioners had paid any amount in excess of the legal dues, they may seek their remedy in an appropriate Court if they are so advised. In the above circumstances, therefore, the petition is dismissed with costs. Hearing fee is assessed at Rs. 100/- (One hundred rupees).
Panigrahi, C.J.
7. I agree.
