Bijoy Singh Dugar (Jain) vs Gauhati Municipal Corporation The Commissioner Gauhati Municipal Corporation, The State of Assam

S.K. Homchaudhuri, J.—In this petition question arises as to whether the cow kept for milking in Guwahati city by the Petitioner is subject to tax under the provision of Gauhati Municipal Corporation Act, 1971, hereinafter referred to as ''the act''.

I have heard Mr. O.P. Bhati, learned Counsel for the Petitioner and Mr. A.B. Choudhury, learned Counsel for Gauhati Municipal Corporation.

Mr. Bhati, learned Counsel for the Petitioner has submitted that Section 144 of the Act enumerates the subject matter on which the Gauhati Municipal Corporation (in short'' the Corporation) may levy taxes. Section 167 of the Act provides for levy of taxes on vehicles, boats and animals of the description specified in the Scheduled, when kept for use in the city for the conveyance of the passengers or goods in the case of vehicles and boats and for riding, racing, draught or burden in case of animal and, as such, cows kept for milking in the city by any individual, are not liable to be taxed under the provisions of the Act. However, in the First Schedule of the Act, while laying down the rates of taxes leviable on vehicles, animals boats etc. as provided u/s 167 of the Act, cow kept for milking in the city has wrongly been included in the list of animals to levy taxes at the rate specified in the Schedule.

Mr. A.B. Choudhury, learned Standing Counsel for G.M.C. on the other hand has submitted that it is well settled that Schedules to the Act are part of the Act and, as such, although the cow kept for milking in the city has not been specifically mentioned in Section 167 of the Act, Schedule 1 being part and parcel of Section 167 of the Act, it can be construed that legislature intended to levy tax on cow kept in the city for milking. Mr. Choudhury has further submitted that cow kept for milking has been included among the animals for levy of taxes in Rule 18 of the Gauhati Municipal Corporation Bye-laws.

I have considered the submissions made on behalf of the Petitioner as well as on behalf of the Respondents. To appreciate the rival contentions iv is appropriate to quote the provisions of Section 167 of the Act, and Schedule I framed u/s 167 of the Act.

167 Tax on certain vehicles, boats and animals - (1) Except as hereinafter provided, a tax rates not exceeding those specified in the First Schedule shall be levied on vehicles, boats and animals of the description specified in the Schedule, when kept for use in the city for the conveyance of passengers or goods in the case of vehicles and boats and for riding, racing, draught or burden, in case of animals.

(2) The Corporation may, by notification in the official Gazette, from time to time, increase the rates of tax specified in the schedule, in relation to any animal, class of vehicle or boat.

Explanation: A vehicle, boat or animal kept outside the limits of the city but regularly used within such limits shall be deemed to be kept in the city.

The First Schedule (See Section 167)

Rates of Taxes leviable on Vehicles, Animals and Boats

Maximum amount of tax per annum

For Vehicle with pneumatic tyres. Rs.

For Vehicle without pneumatic tyres Rs.

Each four-wheeled vehicle drawn by horses, ponies, mules, donkeys, bullocks or buffaloes:

(a) labour carts 12 24/-

(b) Other vehicles in this class 32 48

..... ...... ......

Maximum amount of tax per annum

13 Each cow kept for milking 24

..... ...... ......

On a plain reading of Section 167 it becomes apparent that tax at the rate specified in the First Schedule shall be levied on such vehicles, boats and animals as described in the Schedule when such vehicles, boats and animals are kept in the city for (i) conveyance of passengers or goods in case of vehicles and boats, (ii) riding, racing, draught or burden in case of animals. As such, as per provisions of Section 167 of the Act, the condition precedent for levying taxes on animals is when animals are kept for use in the city for riding, racing, draught or burden which follows that if any animal is kept for use in the city for none of the purposes, namely, riding, racing, draught or burden, no tax can be levied on such animals. However, in Schedule 1 of the Act, cow kept for milking has been included in the list of animals to be taxed under the provisions of the Act at the rate specified therein. As per ''Maxwell on the Interpretation of Statutes'', 12th Edition, "Schedules to statutes are as much part of an Act as any other Act and may be used in construing provisions in the body of the Act. Similarly provisions in a Schedule will be construed in the light of what is enacted in the Sections. In the instant case, provisions of Section 167 of the Act is clear and unambiguous and does not require at all any aid of the provision of the Schedule 1 for construing thereof. On the other hand, provisions of Schedule -1 read to be construed in the light of the provision of Section 167 of the Act. Although Schedules to statutes are as much part of the Act and Schedule 1 is a part of Section 167 of the Act, but what is clearly excluded from the purview of levying taxes as per provisions of Section 167 of the Act, in my opinion, cannot be added to the Schedule for the purpose of levying taxes as contemplated u/s 167 of the Act. Here, in the instant case, it is apparent from Section 167 of the Act that taxes can be levied on such animals which are kept for use in the city for riding, racing, draught or burden only. As such, inclusion of (sic) for milking'' in the Schedule 1 of the Act for the purpose of levying taxes is unwarranted and inconsistant with the provisions of Section 167 of the Act. A cow if kept in the city for milking only and not for any of the purposes enumerated in Section 167 of the, Act no tax can be levied on the cow. The harmonious construction of provision of Section 167 of the Act with the Schedule I thereof would be that the tax may be levied on cow if the cow is used for any of the purposes, namely, riding, racing, draught or burden, otherwise not. In the instant case Petitioner''s specific averment is that the cows kept by him in the city were never used for any of the purposes, enumerated in Section 167 of the Act, has not been denied or disputed by the Respondents. As such, levying of tax on the cows kept by the Petitioner for milking is illegal and without jurisdiction and consequently the impugned notice of demand dated 1st July, 1987 (Annexure 1 to the petition) is equally illegal and without jursdiction.

The petition is allowed and the impugned notice and demand is set aside. I make no order to costs.