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Mohammad Yasin vs The Town Area Committee,Jalalabad And ... on 27 February, 1952 cites

Ramjilal vs Income-Tax Officer, Mohindargarh on 12 January, 1951

Learned counsel for the respondent in reply takes a preliminary objection to this line of argument. He points out that as the levying of a tax without authority of law is specifically prohibited under article 265 of the Constitu- tion, article 81(1) must be construed as referring to depri- vation of property otherwise than by levying of a tax and that levying of a tax in contravention of article 265 does not amount to a breach of a fundamental right. He contends, on the authority of the decision of this Court in Ramjilal v. Income-tax Officer, Mohindargarh(1), that while an ille- gal imposition of tax may be challenged in a properly con- stituted suit, it cannot be questioned by an application under article 32. This argument overlooks the difference between a tax like the income-tax and a licence fee for carrying on a business. A licence fee on a business not only takes away the property of the licensee but also operates as a restriction on his right to carry on his business, for without payment of such fee the business cannot be carried on at all. This aspect of the matter was not raised or considered in the case relied on by the learned counsel, and that case, therefore, has no application to the facts of this case. Under article 19(1) (g) the citizen has the right to carry on any occupation, trade or business which right under that clause is apparently to be unfettered. The only restriction to this unfettered right is the authority of the State to make a law relating to the carrying on of such occupation, trade or business as mentioned in clause (6) of that article as amended by the Constitution (First Amend- ment) Act, 1951. If therefore, the licence fee cannot be justified on the basis of any valid law no question of its reasonableness can arise, for an illegal impost must at all times be an unreasonable restriction and will necessarily infringe the right of the citizen to carry on his occupa- tion, trade or business under article 19 (1) (g) and such infringement can properly be made the subject-matter of a challenge under article 32 of the Constitution. (1) [1951] S.C.R.127.
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