TMI Blog1972 (9) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... ts the 50 per cent increase. In the result, we quash the demand notice to the extent of the 50 per cent increase. The question whether the rest of the tax can be realised under the provisions of the Rules by issue of distress warrant does not arise for consideration in this proceeding. The appellant will be free to question the legality of any distress warrant if and when it is issued. The appeal is allowed to the extent indicated above and it is dismissed in other respects. - C.A. 1103 OF 1967 - - - Dated:- 20-9-1972 - A Ray, I.D.Dua And K Mathew, JJ. JUDGMENT K.K. Mathew, J. 1. The appellant filed a writ petition before the High Court of Gujarat at Ahmedahad, praying for issue of a writ or order quashing a notice dated September 15, 1962, issued by the second respondent, the Dhrangadhra Municipality demanding octroi to the tune of ₹ 58,000/-and for restraining the respondent from recovering the amount from the appellant in pursuance of the notice. The High Court dismissed the petition and this appeal, by certificate, is from that order. 2. The appellant is a Company registered under the Companies Act and carries on business of manufacturing soda ash at its f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been followed by the Municipality; and that the threat to issue distress warrants in the demand notice for recovery of octroi was illegal as there was no provision in the Rules for recovery of octroi by issue of distress warrant 4. The High Court considered these contentions and also the preliminary question raised by the respondents, namely, that since the appellant had suppressed material facts in the writ petition, the petition ought to be dismissed for that reason alone and it came to the conclusion that there was no merit in the writ petition and dismissed it In this Court, two broad contentions were raised on behalf of the appellant: (1) that the Rules did not authorise the municipality to impose octroi as the Rules only conferred that power upon the Government and (2) even if the municipality purported to act under the provisions of the Act as applied to Saurashtra, the procedure foe levy of octroi had not been followed. 5, To decide the first question, it is necessary to have an idea of the relevant provisions of the Ordinance. Clause 3 of the Ordinance provides that notwithstanding any thing contained in any law, enactment on rules made thereunder in force in any of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndicate that the Municipality purported to enhance the octroi under the Rules as octroi had already been levied raider the Rules. 8. The appellant contends that even If it be assumed that the levy of 150 per cent of octroi was under the provisions of the Act, the procedure prescribed for imposing octroi had not been followed and, there fore, the levy was bad. The respondent Municipality, on the other hand, submitted that the procedure prescribed by the Act for imposing octroi had been followed and, there fore, the levy was valid under the Act 9. Section 60 of the Act provides for the procedure to be followed for imposing a tax. Section 60(a)(i) states that every municipality, before imposing a tax shall select for the purpose one or other of the taxes specified in Section 59 and that section states that, subject to any special or general orders which the State Government may make in this behalf, any Municipality, after observing the preliminary procedure required by Section 60 and with the sanction of the appropriate authority may impose, for the purpose of the Act, .any of the taxes, namely: 59(1)(iv): an octroi on animals 09 goods, or both, brought within the octroi limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the rules to be passed by the Municipality. Framing of rules is a mandatory requirement enjoined by Section 60(a)(ii). 11. After the resolution is passed and the rules framed, Section 60(b) enjoins that the form of rules prepared with a notice in the form of Schedule A prefixed thereto shall be published. The form in Schedule A requires that objections to the rules should be invited. The publication in this case stated that Saurashtra municipal octroi rates and rules are shown at the municipal office and the octroi office. No objection was invited to the rules as required. Thereafter the proposal to impose octroi at the enhanced rate was finalized. According to Section 60(c) the rules have to be sent for the sanction of the Collector. Under Section 61, the Collector may, either sanction or refuse to sanction the rules, or sanction the same with or without modification. The order of sanction by the Collector set out below says that by laws have been sanctioned: RESOLUTION The following bye-laws of the Dhrangadhra Municipality are hereby sanctioned as per Sections 48-i and 61 of the Bombay District Municipality Act, 1901 which Act has been adopted by the Government of Saura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) and (3) of that section. No by-laws have been framed by the municipality as visualised by Section 48 (1)(j). It would appear from the order of sanction by the Collector that by-laws have been submitted to him. It is said by the respondent-municipality that though no bye-laws have been framed by it, ft had adopted the by-laws framed by the Government under Clause 4 of the Ordinance, namely, the Adesha Patrika . If the municipality adopted Adesha Patrika as its by-law under Section 48(1)(j), that should have been published in accordance with Section 48(2). It does not appear that the Adesha Patrika was published in accordance with that Sub-section. Sub-section (2) of Section 48 provides: 48 (2) Every Municipality shall, before making any by-law under this section, publish in such manner as shall in their opinion be sufficient for the information of the persons likely to be affected thereby, a draft of the proposed by-law, together with a notice specifying a date on or after which the draft will be taken into consideration and shall, before making the by-law receive and consider any objection or suggestion with respect to the draft which may be made in writing by any person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith respect to any class of persons in the municipality. 16. It was argued on behalf of the municipality that Section 167 of the Act has fixed a period of six months for a suit against the municipality and as the appellant bad not come within that period before the High Court, the High Court was justified in refusing to issue the writ. It was further submitted that even in the matter of enforcement of a fundamental right, acquiescence or delay would be a bar and, therefore, the Writ petition of the appellant challenging the validity of the tax on the ground that it violated its fundamental right was rightly dismissed by the High Court. The decisions in Nainsukh Das v. The State of Uttar Pradesh , The Moon Mills v. Industrial Court, Bombay AIR 1967 SC 1450 at p. 1454; Tilokchand Motichand v. H. B. Munshi and State of Assam v. Amalgamated Tea Estates Company Ltd. were referred to in this connection. All these rulings are of no assistance to the respondent for the simple reason that the appellant was challenging the demand notice dated September 15, 1962, by its writ petition filed on September 26, 1962. Merely because the municipality has passed the resolution in 1953 for imposing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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