Narayana Vs. State of Karnataka

Narayana vs State of Karnataka

Disposition Petition dismissed Court Karnataka Decided Nov 07, 1995

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Citation: sooperkanoon.com/385196
Court: Karnataka High Court
Judge: G.P. Shivaprakash, J.
Decided On: Nov 07, 1995
Case Number: W.P. No. 36227 of 1995
Subject: Direct Taxation
Disposition: Petition dismissed

Case Summary

AI-generated summary - not the official court judgment text.

KARNATAKA TAX ON PROFESSIONS, TRADES, CALLINGS & EMPLOYMENTS ACT, 1976 - Section 29 : NOTIFICATION No. FD.12.CPI 94 (III) DATED 30.3.1994 - Exemption to person having single child & having undergone sterilization operation : not to spouse.; From a plain reading of the Notification, it is evident that the exe...

Key legal issue: Direct Taxation
Outcome / disposition: Petition dismissed
Acts & sections: Karnataka Tax On Professions, Trades, Callings and Employments Act, 1976 - Sections 29

Parties & Advocates

Appellant / Petitioner

Narayana

Advocate G. Krishna Murthy, Adv.

Respondent

State of Karnataka

Advocate Vidya, HCGP

Legal References

Acts: Karnataka Tax On Professions, Trades, Callings and Employments Act, 1976 - Sections 29
Reported In: ILR1995KAR3569

Excerpt

.....is contemplated under the notification is incapability of a person, having a single child, to procreate by subjecting himself/herself to sterilization. - section 69 & karnataka co-operative societies rules. 1960, rule 38(5) & civil p.c. (5 of 1908) order 21, rule 90 :[d.v.shylendra kumar,j] public auction sale held, an application for setting aside sale is distinct from application made under order 21, rule 90 of c.p.c., inasmuch as ground of mistake is also provided in rule 38(5)(a). proceeding under order .21, rule 90, c.p.c., take place before civil court while application under rule 38(5) is made before recovery officer and degree of examination is respect of such action i.e. scrutiny in respect of such orders, cannot be the same. extent of scrutiny even in exercise of power of judicial review of administrative action is inevitably of a greater degree and much deeper while examining an action and orders passed on an application under rule 38(5)(a). section 69 & karnataka co-operative societies rules, 1960, rule 38(5): [d.v.shylendra kumar,j] setting aside of public auction sale material irregularity in conduct of sale - held, it has to be examined if sale is tainted by material irregularity leading to substantial injury to applicant, and not from angle of what possible injury or affection it may result in favour of an auction purchaser. an examination of an application under rule 38(5) of rules has to be on the grounds urged in the application and not from the angle of the objections raised on behalf of the auction purchaser. section 69 & karnataka co-operative societies rules, 1960, rule 38(5): section 69: [d.v. shylendra kumar, j] setting aside of public auction sale - material irregularity in conduct of sale - notice to judgment-debtor was not addressed to place where he was residing but to an address where property was located held, it is no service and that deprived a proper opportunity to judgment-debtor to save property. while object of such..........as hereunder:'no. fd.12.cpi 94 (iii) bangalore, dated 30th march 1994. karnataka gazette (extraordinary), dated 31st march 1994.in exercise of the powers conferred by section 29 of the karnataka tax on professions, trades, callings and employments act, 1976 (karnataka act 35 of 1976), the government of karnataka, hereby exempts with effect from the first day of april 1994, the tax payable under the said act by a person having single child and who has undergone sterilization operation, subject to production of a certificate from the district surgeon, government civil hospital, for having undergone such operation.'3. from the correspondence between the petitioner and respondents 2 to 4, it appears the petitioner claimed exemption from payment of professional tax on the basis that he is a hindu by religion, and in law he could have only one wife and she has undergone sterilization operation after bearing a child; therefore there is no possibility of he having one more child and thus he becomes entitled to the benefit under the notification exempting him from payment of professional tax.4. from a plain reading of the notification, it is evident that the exemption from payment of professional tax is given to a person having a single child and who has undergone sterilization operation. there is nothing in the notification to imply that such exemption could be claimed by the spouse of the person who has undergone sterilization operation. there is no reference to marriage between two persons for the non-sterilized person to claim vicarious benefit of exemption upon the sterilization of the other. under the notification the exemption is only for the person who has a single child and who gets sterilized thus forgoing the power of procreation.5. it would be unrealistic to contend that men cannot have another child merely because their wives are sterilized and that they belong to a faith for whom monogamy is the rule of law.6. our marriages have become fragile and it is no.....

Full Judgment

ORDER

Shivaprakash, J.

1. The petitioner is an employee working in respondent-Bank. It seems the wife of the petitioner has 'undergone sterilization operation' in the year 1989.

2. In this Petition, the petitioner on the basis of the Notification dated 30.3.1994, published in the Karnataka Gazette dated 31.3.1994, claims exemption from payment of Professional Tax. Copy of the said Notification is produced and marked as Annexure-B. The text of the Notification reads as hereunder:

'No. FD.12.CPI 94 (III) Bangalore, dated 30th March 1994. KARNATAKA GAZETTE (EXTRAORDINARY), dated 31st March 1994.

In exercise of the powers conferred by Section 29 of the Karnataka Tax on Professions, Trades, Callings and Employments Act, 1976 (Karnataka Act 35 of 1976), the Government of Karnataka, hereby exempts with effect from the First day of April 1994, the tax payable under the said Act by a person having single child and who has undergone sterilization operation, subject to production of a certificate from the District Surgeon, Government Civil Hospital, for having undergone such operation.'

3. From the correspondence between the petitioner and respondents 2 to 4, it appears the petitioner claimed exemption from payment of Professional Tax on the basis that he is a Hindu by religion, and in law he could have only one wife and she has undergone sterilization operation after bearing a child; therefore there is no possibility of he having one more child and thus he becomes entitled to the benefit under the Notification exempting him from payment of Professional Tax.

4. From a plain reading of the Notification, it is evident that the exemption from payment of Professional Tax is given to a person having a single child and who has undergone sterilization operation. There is nothing in the Notification to imply that such exemption could be claimed by the spouse of the person who has undergone sterilization operation. There is no reference to marriage between two persons for the non-sterilized person to claim vicarious benefit of exemption upon the sterilization of the other. Under the Notification the exemption is only for the person who has a single child and who gets sterilized thus forgoing the power of procreation.

5. It would be unrealistic to contend that men cannot have another child merely because their wives are sterilized and that they belong to a faith for whom monogamy is the Rule of Law.

6. Our marriages have become fragile and it is no more just once in a life time event. Divorces and re-marriages are all common events now, Therefore, I do not see any substance in the submission made on behalf of the petitioner by the learned Counsel Sri G. Krishna Murthy that the petitioner cannot possibly have one more child under any circumstances. Possibility is one thing and incapability is another thing. What is contemplated under the Notification is incapability of a person, having a single child, to procreate by subjecting himself/herself to sterilization.

7. Hence, this Petition is rejected at the Preliminary Hearing stage after prolonged hearing of the learned Counsel for the petitioner and Smt. Vidya, learned HCGP who was directed to take notice for respondents 1 to 3.

8. The view I have taken accords with the view taken by another Bench of this Court in W.P.No. 30185/1995 which was dismissed on 22.8.1995 Md. Zabeer Saida v. Anjuman and Ors.

Same Court & Year Karnataka · 1995 Same Parties Narayana vs State of Karnataka Same Subject Direct Taxation Same Judge G.P. Shivaprakash, J. Acts & Sections Karnataka Tax On Professions, Trades, Callings and Employment...

Direct Taxation