TMI Blog1989 (12) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... and S.S. Khanduja, Advocates, for the respondents. -------------------------------------------------- The judgment of the Court was delivered by M. FATHIMA BEEVI, J.- These two appeals by special leave are filed by the Municipal Board, Bareilly, against the judgment of the Allahabad High Court quashing the Gazette Notification dated 27th August, 1969, amending the octroi Schedule of the Bareilly Municipality so as to impose octroi on "mineral oil". 2.. The respondents, Bharat Oil Company and others filed writ petitions under article 226 of the Constitution of India challenging the notification on the ground, inter alia, that the appellant, the Municipal Board, Bareilly (hereinafter referred to as "the Board") had no authority to impose octroi on mineral oil in view of the proviso to rule 131 of the Octroi Rules contained in the U.P. Municipal Account Code, 1925. This was countered by the appellant stating that the rule 131 was superseded by the 1963 rules which govern the imposition of octroi by the appellant-Board. The single Judge in allowing the writ petitions took the view that rule 131 restricted the power of the Board to impose the octroi and the subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stituted. 8.. Separate rules for the assessment and collection of octroi in the Bareilly Municipality were framed by the Government of Uttar Pradesh in exercise of the powers conferred by section 296 of the Act. The draft rules were notified vide Notification dated the 16th February, 1963 and published in the U.P. Gazette dated the 23rd February, 1963. The said notification reads as under "No. 89-B/XI-C-129-60-The following draft of the rules for the assessment and collection of octroi in the Bareilly Municipality, in supersession of the existing octroi Rules contained in the Municipal Account Code in so far as they apply to the said municipality, which the Governor of Uttar Pradesh proposes to make, in exercise of the powers conferred by section 296 of the U.P. Municipalities Act, 1916 (U.P. Act No. II of 1916), is published as required by sub-section (1) of section 300 of the said Act, for the information of all concerned with a view to invite objections and suggestions in respect thereof ". 9.. Final rules were notified vide Notification dated the 7th May, 1963 and published by the Government in the U.P. Gazette dated the 11th May, 1963, as required under section 300 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel relied on the Full Bench decision and maintained that the rules framed by the Board prevail over the rules contained in the Municipal Account Code and the notification is, therefore, valid. In our view the approach made by the Full Bench of the High Court in Central Distillery Chemicals Works Ltd. v. State of U.P. 1980 All. U 62, is correct and has to be approved. 13.. As pointed out by this Court in Municipal Board, Hapur v. Raghuvendra Kripal [1966] 1 SCR 950, taxes raised by a local authority are not imposed by it as a legislature but as a delegate of the legislature. The tax is a valid one if it is one of the taxes the local authority can raise and the delegate imposes it in accordance with the conditions laid down by the legislature. The taxes that can be raised in exercise of delegated power are predetermined and procedure is prescribed by the Municipal Act. Thus section 128 of the U.P. Municipalities Act confers on the municipalities in the State the power to levy taxes enumerated thereunder. The power conferred is not absolute but is subject to any general rules or special orders of the State Government in this behalf. Section 128(1) does not confer any in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... except where otherwise stated, are applicable to all municipalities. The notifications in which they were published are referred to on the margins of the pages." Part II contains the model rules, bye-laws and regulations. Section A deals with rules with reference to section 153 of the Act thus: "The following model rules have been framed by the Government for the assessment and collection of taxes other than octroi under sections 153 and 296 of the Act. It is anticipated that they will be found generally applicable to the circumstances of the municipalities of these provinces, and it is desirable that the model forms should be adhered to unless there are special reasons justifying any divergence from them. In forwarding proposals for the imposition of additional taxation, Boards are reminded that the necessary rules for the assessment and collection of the taxes to be imposed should be forwarded at the same time as the tax proposals, and it will facilitate the disposal of such cases if any deviations from the model forms printed below are specifically referred to in the proposals submitted." Vol. II contains the Municipal Account Code. Chapter X deals with octroi and provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eneral or special orders of the Government. The opening words of section 128 are capable of similar construction and the imposition has to be understood as the actual levy subject to the general rules and special orders contemplated under the other provisions of the Act. 15.. The rule-making power under section 296 read with section 300(2) of the Act enables the State Government to except any one municipality from the operation of the general rule by express provision in that behalf. When the identical authority in exercise of its rule-making power duly frames the rules in respect of the same matter expressly providing that the new rules shall apply to a particular municipality in supersession of the existing rules, it must be deemed that existing rules are repealed to that extent. The 1963 rules had been framed under section 296 of the Act in supersession of the existing rules after publication by the State Government, in the Gazette as provided under section 300 and therefore rule 131 in the 1925 rules ceased to have any operation in respect of the matters dealt with therein so far as the Bareilly Municipality is concerned. 16.. In this view of the matter, we hold that the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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