TMI Blog1985 (9) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... limits of the Respondent-Municipality. Originally the Respondent-Municipality being a District Municipality was governed by the provisions of the Bombay District Municipal Act, 1901, as adapted and applied to the State of Saurashtra, (for short the Bombay Act) but with effect from 1.1.1965 it is governed by the Gujarat Municipalities Act, 1963 (for short the Gujarat Act). An Octroi Ordinance called the Saurashtra Terminal Tax and Octroi Ordinance No. 47 of 1949 was promulgated by the Rajpramukh and brought into force with effect from 31.8.1949. The object of the Ordinance was to enable the State Government to levy and collect octroi duty in specified cities and towns and other local areas of the State and to pass on the duty so collected by it to those cities and towns until Municipalities therein were constituted under the Bombay Act and those Municipalities made their own Rules and Bye-laws enabling them to levy and collect octroi and other Municipal taxes. To achieve this object s. 3 of the Ordinance empowered the State Government to impose octroi duty in towns and cities specified in Schedule I thereto, in which Schedule the town of Dharangadhra came to be included subsequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les and Bye-laws under the Bombay Act and after complying with all the procedural steps, such as publishing the draft Rules and Bye-laws, inviting and considering objections thereto, etc. the Respondent-Municipality passed a Resolution on 17.12.1963 approving the said draft Rules and Bye-laws whereafter these were forwarded through the Collector to the Divisional Commissioner, Rajkot; the Divisional Commissioner made some suggestions to the Respondent-Municipality which were accepted by it; ultimately by his order dated 22.4.1964 the Divisional Commissioner sanctioned the draft Rules and Bye-laws; however, on March 10, 1965 the State Government (as in the meantime the post of the Divisional Commissioner was abolished) issued a Corrigendum to the sanction that had already been accorded With a view to rectify certain printing or typographical errors that had come to the notice of the Respondent-Municipality and thereafter the Respondent-Municipality passed a General Board Resolution dated 29.3.1965 resolving to bring into force these Rules and Bye-laws called The Dharangadhra Municipality Octroi Rules and Octroi Bye Laws with effect from 1.5.1965. The requisite Notification bringing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ujarat Act with effect from 1.1.1965 and since these Octroi Rules and Bye-laws were not brought into force before the repeal of the Bombay Act they would have no force of law as sub-s. (2) of s. 279 of the Gujarat Act does not save them because under clause (vi) of sub-s.(2) of s. 279 only such Rules and Bye-laws framed under the Repealed Act which were immediately in force prior to 1.1.1965 would stand saved. (iii) That the Corrigendum to the Octroi Rules and Bye laws issued by the Gujarat Government on 10.3.1965 was not by way of purely correcting typographical or printing errors but virtually amounted to a modification (like inserting Sub-Rule (j) in Rule (5) or the Rules are Bye-laws without following the procedure de novo, and, therefore, the impugned Octroi Rules and Bye-Laws could not be said to be valid and could not be brought into force. In our view there is no substance in any of these contentions and we proceed to give our reasons for our view in regard to each presently. As regards the first contention raised by counsel for the appellant it will be necessary to see what Rule 3 and Bye-laws, of the Municipal Octroi Rules and Bye-laws, 1965 provide; both are in ide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of implied repealing the former. It is true that repeal by implication is not ordinarily favoured by the Courts but the principle on which the rule of implied repeal rests has been stated in Maxwell on Interpretation of Statutes (Twelfth Edition) at page 193 tuhs: If, however, the provisions of a later enactment are so inconsistent with or repugnant to the provisions of an earlier one that the two cannot stand together the earlier is abrogated by the later . (vide Kutner V. Phillips)[1891] 2 Q.B. 267 at 272. In Zverbhai Amaidas v. The State of Bombay [1955] 1 S.C.R. 799, this Court has approved, the above principle in the context of two pieces of legislation, namely, The Essential Supplies (Temporary Powers) Act, 1946 as amended by Act LII of 1950 ( a Central Act) and Bombay Act No. XXXVI of 1947 the provisions whereof in the context of enhanced punishment were repugnant to each other. The Court held that the question of punishment for contravention of orders under the Essential Supplies (Temporary Powers) Act both under the Bombay Act and the Central Act constituted a single subject matter and in view of Art. 254(1) of the Constitution Act LII of 1950 (Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which issued the Ordinance of 1949 will be amply clear if regard is had to the object with which the Ordinance came to be promulgated. The avowed object of the Ordinance was to enable the State Government to levy and collect octroi duty in towns and cities of the erstwhile State of Saurashtra and to pass on the duties so collected by it to those towns and cities until Municipalities therein were constituted under the appropriate Act and those Municipalities made their own Rules and Bye-laws enabling them to levy and collect octroi and other usual Municipal taxes; clause (9) of the Ordinance made express provision for making over such collections to concerned towns and cities. That such was the object of the Ordinance has been clearly stated by this Court in Mulchand Odhavji v. Rajkot Borough Municipality, A.I.R. 1970 S.C. 685. In other words the Ordinance and the Government Rules framed thereunder were a stop gap measure, being transitional in character which would automatically cease to operate no sooner the concerned Municipality (here Dharangadhra Municipality) made and published its own Octroi Rules and ye-laws under the appropriate Act. To counter Act the inference of impli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide that as soon as a final town planning scheme comes into force it shall be deemed to have been incorporated in the Act itself. The contention as formulated really misses the vital aspect that the effective charge and levy of the octroi is imposed by the rules and not by the parent legislation, be it an Ordinance or the appropriate Municipal Act. The parent legislation merely confers power on the specified body or authority to frame Rules for the purpose of levying and collecting octroi duty. Under the Ordinance of 1949 it was the State Government on whom such power had been conferred while under the appropriate Act such power has been conferred on the concerned Municipality; in either case the levy and collection of the duty is by means of subordinate legislation and if such subordinate legislation is validly enacted by following the prescribed procedure under the parent legislation there is no reason why such subordinate legislation should not have the effect of impliedly repealing the earlier subordinate legislation and no question of one named body or authority being lower than the other can arise; in other words the status or character of the Rule making body would be irrel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw separately and therefore, Rules and Bye-laws cannot be confused with the order of sanction passed herein by the Divisional Commissioner on 22.4.1964. It is not possible to accept this contention for more than one reason. In the first place admittedly the Municipal Octroi Rules and Bye-laws were validly made by the respondent Municipality on 17.12.1963 by following the procedure prescribed by the Bombay Act, whereafter these were forwarded to the Divisional Commissioner made some suggestions which were accepted by the respondent Municipality; and ultimately by his order dated 22.4.1964 the Divisional Commissioner sanctioned these Rules and Bye-laws. In other words up to this stage everything was validly done under the Bombay Act prior to its repeal on 1.1.1965. Under clause (vi) of sub-6. (2) any order made and which was in force immediately before the commencement of the Gujarat Act has been saved, inasmuch as it is provided that such order shall be deemed to have been made under the Gujarat Act and will continue to operate until modified or rescinded by another order passed under the Gujarat Act. If the Divisional Commissioner s order sanctioning the Rules and ye-laws is thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 Q.B.D. 220, where the notice was given by a Local Board of Health of intention to make a rate under the Public Health Act, 1848, A and the amending Acts but before the notice had expired thee Acts were repealed by the Public Health Act, 1875 which contained a saving of anything duly done under the repealed enactments, but the Local Board, in ignorance of the repeal, made a rate purporting to be under the repealed Act, and it was held that as the notice was given before the repealing Act the making of the rate was also saved by the words anything duly done under the repealed enactment. This Court pointed out that the English decision was illustrative of the point that it is not necessary that an impugned thing in itself should have been done before the Act was repealed but it would be enough if it was integrally connected with and was a legal consequence of a thing done before the said repeal. Therefore, it is not possible to accept the contention that merely the order of sanction was saved and not the Municipal Octroi Rules and Bye-laws, 1965. As regards the last contention it is difficult to accept that the Corrigendum dated 10.3.1965 amounts to modification of the Rules and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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