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Emperor Vs. MohiddIn Bawasaheb Thakur - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision Nos. 311 and 312 of 1938
Judge
Reported inAIR1939Bom97; (1939)41BOMLR93
AppellantEmperor
RespondentMohiddIn Bawasaheb Thakur
Excerpt:
bombay local boards act (bom. vi of 1923), section 4(1)(3) - bombay district municipal act (bom. iii of 1901), sections 187, 188 and 189-notified area-district local board-octroi-kerosene-import of kerosene into notified area-power of district local board to levy octroi. - - vi of 1923) for breach of a by-law by which the failure to pay octroi has been made punishable by a fine. prima facie then it seems to be perfectly clear that when the bombay local boards act in section 4(3) refers to a municipal district it does not include a notified area. it would therefore be perfectly easy for the government, if so advised, to make a rule that the district local board is not to levy octroi in the case of goods imported into a notified area......cipal act. notified areas are only constituted in cases when it is not expedient to constitute the area a municipal district, and under section 189 a notified area may be deemed to be a municipal district, although it is not one, but only for the purposes of any section of the municipal act which may have been applied to it. rajapur used formerly to be a municipality. it was constituted a notified area with effect from january 1, 1917, and the government notification relating thereto said in so many words that from that date it was to cease to be a municipal district. prima facie then it seems to be perfectly clear that when the bombay local boards act in section 4(3) refers to a municipal district it does not include a notified area. there is nothing in the act so far as we are aware.....
Judgment:

Broomfield, J.

1. These are companion revision applications in which the facts are similar and common points of law arise. The accused in one case is the agent of the Burma Shell Co. and the accused in the other is the agent of the Standard Oil Co. They both reside in Rajapur, which is a port on a creek in the Ratnagiri District and is also a notified area under the Bombay-District Municipal Act. Consignments of a number of tins of kerosene oil were sent to the accused from Bombay in country craft. The goods were first taken to Jaitapur, which is a port at the mouth of the creek. They were there declared for customs and transhipped into smaller boats in which they were conveyed to Rajapur. The accused there took delivery. The District Local Board has made rules and by-laws for the levy of an octroi on certain goods including kerosene oil imported into the district. There is a local board octroi naka at Jaitapur and it is in evidence that the nakedar at that place demanded payment of the octroi on these goods, but could not recover it as the goods had apparently not been landed. In that connection reference may be made to Emperor v. Dema Mahadu : (1936)38BOMLR790 . After delivery of the goods had been taken at Rajapur a demand for payment of the octroi was sent to the accused and payment not having been made they have been prosecuted under Section 70 of the Bombay Local Boards Act (Bom. VI of 1923) for breach of a by-law by which the failure to pay octroi has been made punishable by a fine. Each of the accused has been convicted and fined Rs. 50 and in the case of one of them a sentence of a fortnight's imprisonment in default was imposed. The convictions have been upheld by the Sessions Judge.

2. Most of the pleas taken on behalf of the accused in the lower Courts have now been abandoned and only one point has been argued before us. The point is based upon the fact that Rajapur is a notified area under the Bombay District Municipal Act, and learned Counsel who appears for the accused contends that the District Local Board have no power to levy octroi on goods imported into a notified area. For this contention reliance is placed mainly on Section 187 of the Bombay District Municipal Act and the other sections in Chapter XIV of the Act dealing with notified areas. Section 187 provides for the constitution of specified areas as notified areas when it is not expedient to constitute them as municipal districts, as defined in the Act. Section 188 gives power to the Governor in Council to apply any section of the Act to a notified area, to impose any tax in the area which might be imposed under the Act if it were a municipal district and to appoint a person or a committee to recover and administer the taxes. In Clause (2) of Section 188 it is provided that the proceeds of any tax levied under this section shall be expended only in some manner in which the municipal fund might be expended if it were a municipal district. Section 189 provides that when any sections of the Municipal Act have been applied to a notified area, the area shall be deemed to be a municipal district for the purposes of those sections.

3. The interpretation which Mr. O'Gorman wishes to place upon these provisions is that no taxes can be levied in a notified area except those which are provided for in Section 186 and which are to be spent by the Notified Area Committee for the purposes of the notified area. He points out that as stated in Section 187(1) the object of constituting a notified area is that improved arrangements may be made within that area and on that he seeks to found an argument that no taxation for any other purpose is intended. We think, however, that no such inference can properly be drawn. Because the inhabitants of a notified area may be taxed by the Governor in Council for the improvement of the area, it does not follow that they may not also be taxed for the benefit of the district, and if powers of taxation are given by any other Act, for instance the Local Boards Act, these powers cannot be taken away except by express words, which are not to be found in Chapter XIV of the Municipal Act.

4. Section 4(3) of the Bombay Local Boards Act provides that a District Local Board shall have authority for the purposes of the Act over the area for which it has been established, except such portion thereof as is for the time being within the limits of a municipal district or cantonment. It is not now disputed that the District Local Board of Ratnagiri has power to levy this octroi duty on goods imported into the district in respect of the whole area of the district except such area as comes under the exception to the clause which I have just read. No taxes can be imposed in a municipal district or in a cantonment. Mr. O'Gorman's contention is that the words 'Municipal District' in this clause must be taken to include a notified area. We find ourselves unable to accept this view. The distinction between a municipal district and a notified area is made abundantly clear in the Muni' cipal Act. Notified areas are only constituted in cases when it is not expedient to constitute the area a municipal district, and under Section 189 a notified area may be deemed to be a municipal district, although it is not one, but only for the purposes of any section of the Municipal Act which may have been applied to it. Rajapur used formerly to be a Municipality. It was constituted a notified area with effect from January 1, 1917, and the Government notification relating thereto said in so many words that from that date it was to cease to be a municipal district. Prima facie then it seems to be perfectly clear that when the Bombay Local Boards Act in Section 4(3) refers to a municipal district it does not include a notified area. There is nothing in the Act so far as we are aware which lends any support to the argument that a notified area should be included, and on the contrary there is a provision recently introduced in Section 46(1-A) in which reference is made both to Municipalities and notified areas, showing that the distinction made in the District Municipal Act is recognised in the Local Boards Act also. Obviously we have to read the two Acts together, and when we do this, we think that there is no force in the argument that the District Local Board has no power to impose octroi in the case of goods imported in a notified area.

5. We are told that this involves double taxation since the notified area committee levies a terminal tax which has been paid in the case of these goods. That, however, is not a matter with which the Courts are concerned. If any hardship is caused in this way, it can very easily be dealt with by the legislature. All that would be necessary would be to add the words 'Notified Area' after 'Municipal District' in Section 4(3) of the Bombay Local Boards Act. Indeed it would seem that legislation is not really necessary. Section 99 of the same Act shows that the District Local Board's powers of imposing taxation are subject to any general or special orders which may be made by Government. It would therefore be perfectly easy for the Government, if so advised, to make a rule that the District Local Board is not to levy octroi in the case of goods imported into a notified area. As the law stands at present, however, we think the convictions of the accused are correct.

6. The rule must be discharged in both cases.


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