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The Laxmi Vishnu Textile Mills Ltd. Vs. Municipal Corporation of the City of Sholapur - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 1564 of 1972
Judge
Reported in(1979)81BOMLR390
AppellantThe Laxmi Vishnu Textile Mills Ltd.
RespondentMunicipal Corporation of the City of Sholapur
DispositionPetition dismissed
Excerpt:
bombay municipal boroughs act, (bom. xviii of 1925), chap. viii, sections 203, 75, 76, 77, 99, 105 - bombay provincial municipal corporations act (bom. lix of 1949), section 128 (5) - sholapur municipality octroi rules, and bye-laws, rule 25 - addition of note no. 5 to the sholapur municipality octroi rules making value of goods for purpose of assessing octroi duty to be cost price of goods plus carriage and incidental charges - challenge to legality and enforceability of note no. 5 - recovery of octroi dues by recourse to provisions of chap. viii of bombay municipal boroughs act and not by way of suit - remedy by way of suit not an exclusive remedy - limitation act (xxxvi of 1963), article 113 - whether there is implied limitation of three years for recovering dues otherwise than by a.....naik, j.1. by this petition the petitioners challenge the notice of demand dated july 25, 1972, served upon them by the respondent no. 1 - municipal corporation. sholapur.2. the facts giving rise to this petition are briefly these : in the city of sholapur there are five mills viz. (1) the lakshmi cotton mills ltd., sholapur; (2) the vishnu cotton mills ltd., sholapur ; (3) the sholapur spinning and weaving company ltd. ; (4) the narsinggirji mills ltd., and (5) the jam shri ranjitsingji spg. & wvg. company ltd. all these five mills together formed what is called, 'the sholapur coal committee' several years back. we are told at the bar that that coal committee was formed in 1943. the said sholapur coal committee had come into existence with the directive of the central government to.....
Judgment:

Naik, J.

1. By this petition the petitioners challenge the notice of demand dated July 25, 1972, served upon them by the respondent No. 1 - Municipal Corporation. Sholapur.

2. The facts giving rise to this petition are briefly these : In the city of Sholapur there are five mills viz. (1) The Lakshmi Cotton Mills Ltd., Sholapur; (2) The Vishnu Cotton Mills Ltd., Sholapur ; (3) The Sholapur Spinning and Weaving Company Ltd. ; (4) The Narsinggirji Mills Ltd., and (5) The Jam Shri Ranjitsingji Spg. & Wvg. Company Ltd. All these five mills together formed what is called, 'The Sholapur Coal Committee' several years back. We are told at the Bar that that Coal Committee was formed in 1943. The said Sholapur Coal Committee had come into existence with the directive of the Central Government to facilitate the Government Coal authorities to book coal wagons in lots. The coal wagons were received in the name of the Coal Committee as per instructions of the various Mills. This Coal Committee was given the facility of maintaining a current account under Section 99 of the Bombay Municipal Boroughs Act, 1925 (hereinafter referred to as 'the Act of 1925') and it stood in the records of the Sholapur Borough Municipality in the name of the Secretary, Sholapur Coal Committee who was the Manager of the Lakshmi-Vishnu Cotton Mills Ltd., Sholapur.

3. For several years till April 1959, the octroi on coal which was being introduced by the Coal Committee in Sholapur city limits and the octroi on other goods was charged at the rate of 3-1/2% ad valorem as per the value disclosed by the invoice. With effect from April 20, 1959, however, with the previous sanction of the Government, by virtue of Note No. 5, added to the Sholapur Municipality Octroi Schedule, Rules and Byelaws, the value of the goods for octroi purposes was varied, inasmuch as whereas the rule till then was to levy the octroi on the value of the goods as per invoice, as per Note No. 5 the value of the goods for the purpose of assessing the octroi duty thereon shall be the value made up of the cost price of the goods plus carriage and other incidental charges such as shipping dues, insurance, customs and other duties, railway freight, motor hire charges etc. incurred till the arrival of the goods at the octroi cordon.

4. The said Note No. 5 of the Octroi Rules having come into force on April 20, 1959, the Chief Officer of the Sholapur Municipality by his letter dated July 14, 1960, informed the Manager, Lakshmi Cotton Mills, Sholapur, that as per Government Resolution L.S.G. & P.H.D. No. BMA-3358-A dated January 15, 1959, the value of the goods for the purpose of assessing the octroi duty thereon, shall be the value made up of the cost price of the goods, plus carriage and other incidental charges such as shipping dues, insurance customs and other duties, railway freight, motor hire charges etc. incurred till the arrival of the goods at the octroi cordon and that that procedure has been brought into force with effect from April 20, 1959, as per the resolution of the General Board dated March 16, 1959 and that the same had been published in Sholapur Samachar on March 19, 1959. The Chief Officer further informed the Manager of the Lakshmi Cotton Mills, Sholapur that inspite of that the resolution was not being followed in declaring the cost price of the goods. The Manager of the Lakshmi Cotton Mills was therefore requested to arrange to give the cost price of the imported goods inclusive of all expenses thereafter.

5. In reply, by their letter dated July 15, 1960, the petitioners requested the Chief Officer to inform the petitioners as to when the General Body of the Municipality passed the proposal and the date and paper in which the resolution was published calling for objections from the public. By the letter dated July 22, 1960 the Chief Officer informed the petitioners as under :.I have to inform you the General Board in their meeting held on August 7, 1952 made a provision to define the cost price of the goods and accordingly the same was published in Sholapur Samachar dated September 5, 1952 for inviting public objections. As no objections were received, the amendment was finally approved of by the General Board on November 8, 1952 and the matter was sent under No. 2152 dated December 6, 1952 to Government for according sanction.

Thereupon the Director, L.A.C.D. in his No. Sholapur 6/7-V dated January 2, 1953, asked the Municipality to clarify as to why motor charges has been excluded from the proposed definition in the value of the goods etc. and again in his No. Sholapur 6/7-V dated December 2, 1955 instructed the Municipality to re-draft the proposed Note No. 5 so as to include the motor hire charges etc. in the cost price of the articles for the purpose of charging octroi as has been done by the Ahmedabad and Surat Municipalities etc.

The revised draft was then approved of by the General Board in their meeting held on August 23, 1957. Public objections as required under the rules were called for by publishing the notice in Divyashakti dated September 12, 1957. Loose printed copies of this notification were also distributed in the city and pasted on the Municipal Notice Board, After the stipulated period, the only one objection petition which was received in time, was considered by the General Board on November 26, 1957 and they finally adopted the proposed rule and the Collector of Sholapur was required to move Government to sanction the proposed rule to be added as Note No. 5 etc.

Government accorded their sanction under No, BMA-3358-A dated January 15, 1959 and as intimated to you it has been brought into effect from April 20, 1959.

6. The petitioners thereupon by their advocate's letter dated September 6, 1960 served a notice of suit under Section 206-A of the Bombay Municipal Boroughs Act, 1925, for an intended suit for a declaration that the Explanatory Note No, 5 in the schedule of the Octroi Rules was illegal, unauthorised, ultra vires and brought into existence in violation of the mandatory provisions of Sections 75 to 77 of the Act of 1925 and the Constitution of India and as such was unenforceable in law and for permanent injunction against the Sholapur Municipality restraining it from enforcing the same and from recovering additional octroi on the strength of the same. It was particularly pointed out in the said notice that the condition precedent to the adoption of any new basis of taxation or changes therein or modification in the existing Rules was that a notice as required by 75(b) of the Act of 1925 should be published so as to give wide publicity regarding the proposed changes and enabling the inhabitants likely to be affected by the revision or modification to object to the same. It was pointed out by that notice that 'Divyashakti' in which the notice regarding revision of the basis of valuation was alleged to be published was so insignificant that it could hardly be called a newspaper. It was neither regular in publication although supposed to be a daily nor had it any circulation worth the name. Its circulation was about 300 to 400 copies whenever it was published, and in fact that paper was of the size of a handbill and its publication was stopped sometime in 1965. It was further contended that no advertisement or notification or public notice issued by the Government or Semi-Government institutions of any importance was ever published in the said paper. It was therefore contended that to publish an important notice like the one contemplated by Sections 75 to 77 of the Act of 1925 in a newspaper like Divyashakti was very negation of the provisions for publication of notice contemplated by Section 75(b) of the Act of 1925. It was contended that the persons affected by the revision of the basis of valuation could not submit their objections and in fact they were deprived of their opportunity of lodging their objections and that the revised basis of valuation was against the fundamental principles of taxation and Constitution.

7. By its reply dated September 19, 1960, the Municipality repelled all the contentions in the notice sent by the petitioners' advocate dated September 6, 1960.

8. It may be mentioned that Lakshmi Cotton Mills and Vishnu Cotton Mills which were two of the five mills which constituted the Coal Committee, were amalgamated into one unit by the name 'The Lakshmi-Vishnu Cotton Mills Ltd., Sholapur', with effect from December 8, 1961, and it was the Manager of the Lakshmi-Vishnu Cotton Mills Ltd., Sholapur, who was the secretary of the Coal Committee.

9. With effect from May 1, 1964, the Sholapur Borough Municipality was converted into a provincial Municipal Corporation under the Bombay Provincial Municipal Corporation Act, 1.949 (hereinafter referred to as 'the Act of 1949'). On June 15, 1964, the Commissioner of the Municipal Corporation of the City of Sholapur, sent in a notice to the Manager, Lakshmi-Vishnu Cotton Mills Ltd., Sholapur and the members of the Coal Committee and its joint secretary whereby the petitioners were called upon to pay the octroi duties on the revised basis for period from 1959-60 to 1963-64 within a week of the receipt of the notice failing which they were informed that the Municipal Corporation would file a suit for the recovery of the said amount. The petitioners, however, did not make amends. The Corporation also did not file any suit or take any prompt action to recover the dues on the altered basis.

10. On the May 5, 1966, however, the Corporation filed forty-five complaints under Section 398 of the Act of 1949 against the secretary, Coal Committee. The cases were dismissed and the acquittal was confirmed by the High Court in Criminal Appeal No. 171 of 1968 decided on April 21, 1969. It appears that the Coal Committee was dissolved on December 1, 1970.

11. On April 28, 1972, the Corporation called upon the petitioners to pay an amount of Rs. 4,49,862.31 due from the Coal Committee towards octroi duty on account of the price of the goods with the addition of railway freight from April 20, 1959 to December 31, 1966, which was due under Note No. 5 of the Octroi Rules. The petitioners' advocate by his reply dated April 30, 1972 challenged that demand by relying on the provisions of Section 128 (5) and Rule 13 of the Act of 1949 and contending that in the case of non-payment of octroi on goods on which octroi was chargeable, they could be seized and not the other movable properties of the petitioners. The Corporation thereafter sent the impugned notice of demand dated July 25, 1972 with the covering letter of the same date claiming an amount of Rs. 4,49,862.31 being the arrears of octroi due from April 20, 1959 to December 31, 1966 under Section 128(5) of the Act of 1949 and Rule 25(3) read with Rule 15 of the Octroi Rules framed by the Sholapur Municipal Corporation. It was mentioned in this covering letter that as per the arrangement arrived at between all the cotton mills on the one hand and the Municipal Corporation on the other the General Manager of the mills has taken on himself the responsibility and the liability to pay the octroi on coal on behalf of all the mills.

12. It is as against this background that the petitioners have filed this petition challenging the notice of demand mainly on the ground that Note No. 5 on which the demand notice is based is not valid as it was not published as required by the Act and the Rules. The other ground on which it is challenged is that there is considerable delay in issuing the notice of demand and lastly it is submitted that the Coal Committee being dissolved on December 1, 1970, the petitioners are not liable for the dues of other mills who were members of the Coal Committee.

13. All the allegations on which the relief is sought are traversed by the affidavit-in-reply filed on behalf of the Corporation. The Corporation has pointed out in detail how Note No. 5 is valid and enforceable by setting out the various details leading to its publication. It is also contended that although the Coal Committee might have been dissolved, the petitioners have in fact recovered the amount of impugned taxes from the concerned members of the Coal Committee. It is further contended that since inspite of having given a notice of suit way back in 1960, the petitioners not having filed a suit within the period of limitation, this Court should not exercise its extra-ordinary jurisdiction in favour of the petitioners.

14. Mr. Paranjpe, learned counsel for the petitioners has assailed the notice of demand on four grounds, viz., (1) firstly, he submits that the amount claimed in the notice of demand, if any, was due to the Sholapur Borough Municipality under the Act of 1925 for the recovery of which there is a specific provision contained in the Act of 1949 and, therefore, it is that procedure which ought to have been followed and not the procedure under the Act of 1949. The two procedures, he submits, are substantially different, and prejudice has been caused to the petitioners by not following the procedure for recovery under the Act of 1925; (2) secondly, he submits that the Coal Committee having been dissolved on December 1, 1970, no notice of demand can be given to the petitioner company and in any event the goods of the petitioner company cannot be seized for the dues of the companies or mills other than the petitioner company; (3) thirdly, he submits that the demand notice not being issued within a reasonable time, looking to the scheme of the Act and the fact that a suit would be barred by time, the notice of demand is bad in law; and (4) lastly, the fourth contention of Mr. Paranjpe is that the publication of the draft of the amendment of the rules, being a condition precedent and the same not being fulfilled, the rules contained in Note No. 5 cannot be said to have come into force, inasmuch as the procedure required to be followed under Section 75 of the Act of 1925 has not been followed.

15. We shall deal with these contentions in that order together with the submissions of Mr. Kotwal, learned counsel for the Corporation.

16. With regard to the first contention as rightly pointed out by Mr. Kotwal, that contention is not at all raised in the petition. That being the position Mr. Kotwal urges that to allow Mr. Paranjpe to agitate that contention for the first time at this late stage would cause prejudice to the Corporation, inasmuch as had that contention been raised either by way of reply to the impugned demand notice or at any rate in the petition, the Corporation would have considered taking appropriate steps in good time in the light of such a contention.

17. Mr. Kotwal urges that in effect the procedure for recovery of octroi cess under both the Acts viz. Act of 1925 and the Act of 1949, is identical. Lastly, he submits that even if it is held that the two procedures are different since no prejudice has been caused to the petitioners, the impugned demand notice should not be struck down by this Court in exercise of its extraordinary writ jurisdiction. While we cannot agree with the submission of Mr. Kotwal that the procedure for recovery of octroi cess under both the Acts is identical, we are of opinion that there is considerable force in the other submissions made by him.

18. Section 99 of the Act of 1925 deals with the power to keep account current with person, firm or public body in lieu of levying octroi on introduction of goods. Such account, it is provided, shall be settled at intervals not exceeding one month, and such person, firm or public body shall give such information or details and make such deposit or furnish such security as the standing committee or any officer authorised by it in this behalf shall consider sufficient to cover the amount which may at any time be due from such person, firm or body in respect of such dues. The section provides that any amount so due at the expiry of any such interval shall, for the purposes of chap. VIII, be deemed to be, and shall be recoverable in the same manner as, an amount claimed on account of any tax recoverable under the said Chapter.

19. Section 104(7)(a) in chap. VIII, provides that:

104. (1) 'When any amount,

(a) which by or under any provisions of this Act, is declared to be recoverable in the manner provided by this Chapter,...

shall have become due, the Chief Officer shall, with the least practicable delay, cause to be presented to any person liable for the payment thereof, a bill for the sum claimed as due.

20. Sub-section (2) of Section 104 provides that

Every such bill shall specify the period of which, and the property, occupation or thing in respect of which the sum is claimed and shall also give notice of the liability incurred in default of payment and of the time within which an appeal may be preferred as hereinafter provided against such claim.

21. Sub-section (3) of Section 104 provides that

If the person to whom a bill has been presented as aforesaid does not, within fifteen days from the presentation thereof, either

(a) pay the sum claimed as due in the bill, or

(b) show cause to the satisfaction of the Chief Officer why he is not liable to pay the same, or

(c) prefer an appeal in accordance with the provisions of section 110 against the claim,

The Chief Officer may cause to be served upon the person liable for the payment of the said sum a notice of demand in the form of Schedule V or to the like effect.

21. Section 105 provides for the issue of a distress warrant.

22. Section 110 deals with appeals to Magistrates which provides that appeals against any claim included in a bill presented under Sub-section (1) of Section 104 may be made to any Judicial Magistrate by whom under the directions of the Sessions Judge such class of cases is to be tried.

23. Sub-section (2) of Section 110 provides among other things that no such appeal, shall be entertained unless the amount claimed from the appellant has been deposited by him in the municipal office.

24. Section 493 of the Act of 1949 which deals with transitory provisions provides that the provisions of appendix IV shall apply to the constitution of the Corporation and other matters specified therein.

25. Appendix IV deals with transitory provisions. Clause 2 therein which deals with transfer of rights provides that

All rights of the municipality or any other local authority for the area which has been constituted to be a City shall on the appointed day vest in the Corporation constituted for the said area.

26. Clause 3 provides that

All sums due to the said municipality or local authority for the area which has been constituted a City, whether on account of any tax or any other account shall be recoverable by the Commissioner for the said City and for the purpose of such recovery he shall be competent to take any measure or institute any proceeding which it would have been open to the authority of the said municipality or local authority to take or institute, if this Act had not come into operation and the said area had not been constituted to be a City.

27. Clause 5 (a) provides that

Save as expressly provided by the provisions of this appendix or by a notification issued under para. 22 or order made under para. 23.(a) Any appointment, notification, notice, tax, order, scheme, licence, permission, rule, by-law, or form made, issued, imposed or granted under the Bombay District Municipal Act, 1901, or the Bombay Municipal Boroughs Act, 1925, or any other law in force in any local area constituted to be a City immediately before the appointed day shall, in so far as it is not inconsistent with the provisions of this Act, continue in force until it is superseded by any appointment, notification, notice, tax, order, scheme, licence, permission, rule, by-law, or form made, issued, imposed or granted under this Act or any other law as aforesaid as the case may be.

28. We might mention here that we are referring to Clause 5 because reliance was placed by Mr. Kotwal on that clause.

29. Reading therefore the provisions of Clause 3 in appen. IV and Section 493 of the Act of 1949, since the appointed day in case of Sholapur Municipal Corporation was May 1, 1964, the dues due to the municipal borough till April 30, 1964 could be certainly recovered by the Commissioner under the powers vested in him by Clause 2 of appen. IV by following the provisions under the Act of 1925 in view of the enabling provision of Clause 3 of the appen. IV. There is no doubt that as is submitted by Mr. Paranjpe, in view of the provisions of Section 104 of the Act of 1925 in the case of octroi dues to the borough till April 30, 1964 a bill could be issued under Sub-section (2) of Section 104 and if the person on whom the bill is served does not within fifteen days from the presentation of the bill, pay the same or show cause to the chief officer why he is not liable to pay the same or prefer an appeal in accordance with Section 110 against the said claim, the chief officer may cause to be served upon the person liable for the payment of the said sum a notice of demand in the form of Schedule V. Therefore before a notice of demand in the form of Schedule V is issued the borough is required to send a bill to the person liable to pay the tax and the person on whom the bill is served has an opportunity of either showing cause to the satisfaction of the chief officer why he is not liable to pay the same and he has also the opportunity of preferring an appeal under Section 110, by making the deposit as required by Section 110(c) of the Act of 1925.

30. Now, undoubtedly what has been done by the Commissioner is to send in straightway a notice of demand. Since under Clause 3 of appen. IV of the Act of 1949, the Commissioner could have recovered the dues as if the Act of 1949 had not come into operation i.e. by following the provisions of Sections 104 and 105 of the Act of 1925, the impugned notice of demand to the extent of the dues due till April 30, 1964 which was served by the Commissioner is technically bad in law, inasmuch as the petitioner has been deprived of the right to satisfy the Commissioner why he is not liable to pay the same or from filing an appeal to the Magistrate under Section 110 of the Act of 1925. Mr. Kotwal, however, by relying on Clause 5 of appen. IV submitted that it was open to the Commissioner to straightway send the notice of demand in view of the provisions of Clause 5 (a) of appen. IV. It is significant to note that Clause 5 (a) starts with the saving clause as 'save as expressly provided by the provisions of this Appendix', an appointment, notification, notice, tax, order, scheme, licence, permission, rule, by-law, or form made, issued, imposed or granted immediately before the appointed day shall, in so far as it is not inconsistent with the provisions of the Act, continue in force until it is superseded by any notification, notice, order, licence, permission, rule, by-law or form made, issued, imposed, or granted under this Act or any other law as aforesaid as the case may be. It would thus appear that Clause 5 has no application to the sums which have already become due to the borough upto the appointed day which in this case is May 1, 1964. The dues due to the borough will be clearly covered by Clause 3 appen. IV. It is only the rate of tax levied which could continue to be in force even after the appointed day till any variation is made under the Act of 1949. In other words it is only in respect of the dues accruing from May 1, 1964 onwards on the basis of the tax levied prior to that day, that the provisions of Clause 5(a) are applicable and could be invoked.

31. We shall now turn to the provisions about the octroi cess in the Corporation Act of 1949 in chap. VIII, dealing with Taxation Rules under the heading, 'Special provisions relating to Octroi and Tolls'. Rule 28 (1) and (2) which deal with the power to keep account-current with person, firm or public body in lieu of levying octroi on production of goods are identical with Section 99 of the Act of 1925, except with regard to the mode of recovery. Whereas Section 99 of the Boroughs Act of 1925 provides that any amount so due at the expiry of any such interval shall, for the purposes of chap. VIII, be deemed to be, and shall be recoverable in the same manner as an amount claimed on account of any tax recoverable under the said Chapter; Sub-rule (3) of Rule 28 of the Special Provisions of Octroi in the Corporation Act of 1949 provides:

any amount so due at the expiry of any such interval shall be recoverable by distress and sale of the moveable property or attachment and sale of the immoveable property of the defaulter as if such amount were a property tax due by the said defaulter.

32. In other words, it is significant to note that whereas under Section 99 of the Act of 1925 the dues could be recovered in the same manner as an amount claimed on account of any tax recoverable under chap. VIII, Rule 28 of the Act of 1949 does not provide that the dues shall be recoverable in the same manner as an amount claimed as property tax due from the defaulter.

33. In a bid to show that there is no difference in the procedure to recover the octroi dues between the Act of 1925 and the Act of 1949, Mr. Kotwal drew our attention to Rules 39, 41 and 42 of the Rules under the heading 'Collection of taxes', in chap. VIII of the Act of 1949 and submitted that these rules are identical with the provisions of Sections 104, 105 and 110 of the Act of 1925. It is true that Rule 39 which deals with the presentation of bills for certain taxes is similar to Sub-section (2) of Section 104 and Rules 41 and 42 which deal with the notice of demand and distress warrant are similar to Sub-section (3) of Section 104 and Section 105 of the Act of 1925. But in our opinion, having regard to the Special provisions to recover octroi dues due under an account current made in Rules 26 to 29 under the heading 'Special provisions relating to Octroi and Tolls', in chap. VIII, Rules 39, 40 and 41 made under the heading 'Collection of Taxes', in the same chapter could have no application to the recovery of octroi dues due on an account current which is permitted to be maintained under Rule 28. The reason is obvious, in the first place, the provisions in Rule 28, are special and, therefore, they prevail over the general provisions of recovery of taxes. Secondly, Rule 39 can apply only when any tax is declared by or under the Act to be recoverable in the manner provided for a property tax. All that is provided in Rule 28(3) is that any amount due at the expiry of any such interval provided in Rule 28 (2) shall be recoverable by distress and sale of moveable property or attachment and sale of immoveable property of the defaulter as if such amount were a property tax due by the said defaulter. It does not say that it shall be recoverable in the same manner as an amount claimed on account of property tax recoverable under the heading, 'Collection of Taxes' in chap. VIII under which Rules 39, 41 and 42 occur.

34. We have already referred to the provisions of Sections 104 and 110 occurring in chap. VIII of the Act of 1925, and, therefore, reading the provisions of Sections 99, 104 and 110 of the Act of 1925, in respect of the monies due on the current account in respect of octroi, the procedure is, to first of all present the bill and if no payment is made within fifteen days on receiving the bill and if the person has not shown cause to the satisfaction of the chief officer why he is not liable to pay the same or fails to prefer an appeal under Section 110, by making the deposit of the amount claimed, the chief officer has power to serve a notice of demand in the form of Schedule V and then to issue a distress warrant under Section 105. But under Sub-rule (3) of Rule 28, about special provisions relating to octroi and tolls, there is no provision of a bill being first served or as opportunity being given to satisfy a Commissioner as to why the person is not liable to pay and there is also no specific provision of a right of appeal which is provided by Section 110 read with Sections 99 and 104 of the Act of 1925. It would therefore appear that the procedure for recovering the octroi cess due on account current is not identical under both the Acts.

35. Mr. Paranjpe therefore submits that the impugned notice of demand is bad in law and must be struck down. We are not impressed with that submission. It is not disputed that in respect of the dues becoming due from May 1, 1964, the Commissioner had the power to make the demand under the Act of 1949. So also as regards the dues due till end of April 1964 in view of the enabling transitory provisions of Clause 3 in appen. IV, the Commissioner had certainly the power to recover the same from the petitioners by following the provisions of Sections 104 and 105 of the Act of 1925. Simply because the Commissioner has quoted a wrong provision in the impugned notice of demand the right of the petitioners to prefer an appeal to the Magistrate under Section 110 of the Act of 1925 in respect of the said dues cannot be taken away. In any event since this contention is not raised by the petitioner, and since the Commissioner had the power to demand payment of the dues mentioned in the impugned demand notice, unless Mr. Paranjpe satisfied us that prejudice is caused to the petitioners, we will not be justified in striking it down, simply because the Commissioner has mentioned a wrong provision of the law in the impugned notice. It is not shown to us by Mr. Paranjpe how any prejudice is caused to the petitioners. As we shall presently show while dealing with his second contention, since the petitioners had already recovered these dues from the other members of the Coal Committee, no prejudice is caused to the petitioners by reason of the Commissioner mentioning a wrong provision of the statute in respect of his powers.

36. Mr. Paranjpe then submits that the claim in the demand notice is for a period from April 20, 1959 to December 31, 1966 which amounts to Rs. 4,49,862.31, whereas the dues if legally due after the Corporation came into force, would amount to only Rs. 89,458.36. Mr. Paranjpe submits that in the event of the petitioners being required to file two appeals viz. one to the Magistrate under Section 110 of the Act of 1925 and another to the Judge under Section 406 of the Act of 1949, the petitioners would have been required to make a double deposit of the amount of Rs. 4,49,862.31. We are not impressed with this submission of Mr. Paranjpe for the simple reason that the amount to be disputed in the two forums would be distinct and different and it is those amounts which are required to be deposited either under Section 110 of the Act of 1925 or Section 406 of the Act of 1949, as the case may be.

37. In fact we asked Mr. Paranjpe what exactly is the prejudice which is caused to him, even assuming that a right of appeal to the Magistrate was denied to him by the impugned demand notice. Mr. Paranjpe conceded as he must that the petitioners could not have challenged before the Magistrate the legality of Note No. 5 or much less could they have urged about the implied limitation to the demand notice which are the two among other grounds which are urged before us. He submitted that the only point which the petitioners could have possibly urged before the Magistrate was to show that the petitioner mill is not alone liable for the entire dues claimed in the demand notice, inasmuch as those dues are the combined dues of five mills, and since that opportunity is denied to the petitioners by issuing a defective notice of demand the petitioners are prejudiced. While we will presently deal with the question of prejudice while dealing with the second contention of Mr. Paranjpe, it is enough to state at this stage that there is no substance in this submission of Mr. Paranjpe, in as much as such a contention was never taken till the petition came to be filed, although the demand is being made ever since 1960.

38. That takes us to the second point of attack. As we have pointed out it is contended that since the Coal Committee was dissolved in December 1970, the notice cannot be given to the petitioner company alone in respect of the dues due from the Coal Committee and that in any event goods of the petitioner company cannot be seized for the dues of the Corporation, other than the dues of the petitioner. We find that there is absolutely no substance in this submission. Undoubtedly the Coal Committee was formed several years back and we are told that that was sometime in 1943. We are further told that the Coal Committee consisted of representatives of five mills at Sholapur. The manager of the petitioner company was a secretary of the Coal Committee. It was this Coal Committee which was undoubtedly given the facility of current account under the provisions of Section 99 of the Act of 1925. The account in the municipal borough stood in the name of the secretary and the manager of the petitioner company. All the dues due from time to time concerning this account have been settled and paid by the petitioner company from time to time. The earliest letter drawing the attention of the petitioners to the revised valuation of the goods for the purpose of octroi which has come into force from April 20, 1959 was written by the chief officer to the Manager of the petitioner mills on July 14, 1960. All that was done by him was to call for the clarification as to the date and paper in which the proposal was published and the objections were called for. The chief officer having given a reply, the petitioners sent an advocate's notice of suit under Section 206A of the Act of 1925 challenging the legality of Explanatory Note No. 5 and for an injunction restraining the borough municipality from recovering the octroi taxes on the basis of revised valuation. Even at that stage it was nowhere stated that the petitioner is not liable for the dues due to the municipal borough from the Coal Committee. At no point of time the petitioner has taken the stand that he is not liable for the dues due from the other members of the Coal Committee by reason of the Coal Committee having been dissolved on December 1, 1970.

39. In the affidavit-in-reply filed for the Corporation it is alleged in para. 6 that the amount which the Municipality is demanding is in respect of the period during which the Coal Committee was functioning, and that though the Coal Committee ceased functioning from December 1, 1970, it is learnt that the petitioner has already recovered the amount of the octroi duty on freight charges of coal from the constituent members of the Coal Committee.

40. Again in para. 18 of that affidavit, it is alleged that the deponent learnt that the petitioners have already collected the amount of the octroi duty according to the amended rule from the constituent members of the Coal Committee.

41. Now, what is the reply of the petitioner? He filed an affidavit-in-rejoinder. In para. 4 of the same, he states:

I say that the amounts previously collected by the Coal Committee from the member Mills of the coal pool towards octroi on freight charges have long been squared off. The petitioners do not have with them any such amounts as alleged or at all.

It would thus appear that the allegation on behalf of the Corporation that the petitioner company has in fact collected the amounts in question from the concerned members of the Coal Committee has not only not been disputed but has been in terms admitted in para. 4 of the affidavit in rejoinder. It would thus appear that it is not possible to contend on these facts that if he had a chance of preferring an appeal to the Magistrate, he could have shown to Magistrate that he is not liable to pay the dues due from the other members of the Coal Committee. It would thus appear that there is no prejudice either in fact or in law and, therefore, there is no substance in the second contention of Mr. Paranjpe.

42. That leads us to the third contention of Mr. Paranjpe. Mr. Paranjpe has drawn our attention to Section 203 of the Act of 1925. Section 203 provides that

In lieu of any process of recovery allowed by or under this Act or in case of failure to realise by such process the whole or any part of any amount recoverable under the provisions of chap. VIII, or of any compensation, expenses, charges or damages payable under this Act, it shall be lawful for a municipality to sue in any Court of competent jurisdiction the person liable to pay the same.

43. Mr. Paranjpe has then relied upon the fact that in the demand notice dated June 15, 1964, served on the petitioners and other members of the Coal Committee after making the demand, the Commissioner of the Corporation had held out a threat of filing a civil suit against the petitioners and other members of the Coal Committee holding them; personality liable to pay in the event of their failure to make amends. Notwithstanding that notice of June 15, 1964, since no suit was filed by the Commissioner and the belated notice of demand, being the impugned notice of demand, is served in 1972, although there is no limitation as such for recovering the dues due under Section 99 read with Section 105 of that Act, the Court must hold that there is an implied period of limitation for recovering the dues, otherwise than by a civil suit and that limitation period would be a reasonable period and that what is reasonable period is to be determined by the period required for filing such a suit. Since such a suit could be filed within a period of three years under Article 113 of the Limitation Act, Mr. Paranjpe submits that the Court must hold that even for recovering the dues otherwise than by a civil suit, there is an implied limitation of period, which is equivalent to the period required for filing such a suit.

44. In support of his submission Mr. Paranjpe relied upon a decision of the Supreme Court in State of Gujarat v. P. Raghav : [1970]1SCR335 .

45. Mr. Kotwal on the other hand has relied upon a division Bench decision of this Court reported in Surat Borough Municipality v. Sarifa : AIR1941Bom53 where a contention similar to that raised by Mr. Paranjpe was turned down by holding inter alia, that Section 105 of the Act of 1925 is not subject to any period of limitation as regards the issue of a distress warrant for the recovery of arrears of taxes due to a Municipality and that the provisions of that section are applicable even if the period for bringing a suit under Section 203 of the Act has expired.

46. Mr. Paranjpe, however, submits that the decision of this Court in Surat Borough Municipality's case (supra) must be held to have been impliedly overruled by decision of the Supreme Court in the case of State of Gujarat v. P. Raghav (supra).

47. In our opinion there is no force in the submission of Mr. Paranjpe. It is true that Section 203 of the Act of 1925 lays down that in lieu of any process of recovery allowed by or under this Act or in case of failure to realise by such process the whole or any part of any amount recoverable under the provisions of chap. VIII, or of any compensation, expenses, charges or damages payable under this Act, it shall be lawful for a Municipality to sue in any Court of competent jurisdiction the person liable to pay the same. It would thus appear that Section 203 could be either availed of in lieu of any process of recovery allowed by or under the Act and it could be also availed of in addition to that remedy in case of failure to realise by such process the whole or any part of any amount recoverable under the provisions of chap. VIII. In other words, it is open to the borough municipality to avail of the remedy by way of suit provided in Section 203 without recourse to the procedure laid down in chap. VIII, or to avail of the same as an additional remedy in case of failure to realise the monies due either wholly or partly under the provisions of chap. VIII. In any event it is needless to say that a suit is subject to limitation and such limitation would be a period of three years under Article 113 of the Limitation Act, 1963.

48. But then what is to happen, when the borough municipality decides to recover its dues not by way of suit under the provisions of Section 203 but only by recourse to the provisions under chap. VIII. It is important to bear in mind that the remedy by way of suit is not an exclusive remedy. It is only an alternative remedy. There is nothing in the provisions of chap. VIII of the Act to show that the remedy to recover by way of distress warrant under the provisions of Section 105 of the Act of 1925 is subject to any limitation. To accept Mr. Faranjpe's contention that even a remedy under Section 105, to recover by way of distress warrant in chap. VIII of the Act of 1925 is subject to a reasonable period of limitation, would in effect amount to rewriting the provisions of chap. VIII and in particular the provisions of Section 105 by stating a period of limitation, which in our opinion, is not permissible.

49. It is true that there may be cases, where having regard to the prejudice which is likely to be caused to a party by reason of an inordinate delay in taking action against him a case may be made out for inference that the Legislature intended that such actions which are likely to result in prejudice if delayed, should and ought to be subject to a reasonable period of limitation. Surely such is not the case in respect of arrears of octroi dues due by a party to a borough municipality. Actually in the normal course under Section 98, the octroi is to be paid at the very time when the goods are introduced within the limits of the borough and the octroi has to be paid on demand at that time and in case of failure to pay the octroi the vehicle or concerned goods could be seized on the spot and could be disposed of for realising the octroi dues. Concession however is given to mercantile firms or public bodies to avail of the provisions of keeping current account with the Municipal Borough under Section 99 of the Act. Such account under Section 99 has got to be settled at intervals not exceeding one month and such person, firm or public body shall give such information or details and make such deposit or furnish such security as the standing committee or any officer authorised by it in this behalf shall consider sufficient to cover the amount which may at any time be due from such person, firm Or body in respect of such dues. If, however, any amount is due at the expiry of any such interval that amount shall be recoverable under the provisions of chap. VIII. Chapter VIII as we have pointed out provides for bill being presented and thereafter the aggrieved party may either convince the chief officer about his not being liable to pay the sarnie, or prefer an appeal to the Magistrate under Section 110, failing which a notice of demand in the form of Schedule V could be sent.

50. Section 105 provides that if the person on whom a notice of demand has been served under Section 104, Sub-section (3), does not, within fifteen days from the service of such notice pay the sum demanded in the notice, such sum with all costs of the recovery may be levied under a warrant signed by the chief officer in consultation with the President in the form of Schedule VI or to the like effect. In such a case it would appear that no prejudice whatsoever could be caused to the person liable to pay the dues due under Section 99 of the Act. In fact in such cases the delay in taking action if at all is against the interest of the Corporation, and evidently would be of advantage to the person liable to pay the dues, inasmuch as he could utilise the monies to his own advantage till the delayed action is taken. Therefore in case of arrears due for octroi dues which are recoverable under chap. VIII, in our opinion, there is no justification on the ground of prejudice or otherwise to read by necessary implication a reasonable period of limitation for taking action under the said provisions.

51. Having given our reasons for repelling the contention of Mr. Paranjpe, we shall now refer to the authorities cited at the Bar.

52. In the case of Surat Borough Municipality v. Sarifa, this Court observed (p. 963):.It may be that the Legislature may have contemplated that the distress procedure should be taken promptly and within a reasonable time, but it has not said so. It is not open to the Courts, in our opinion, to infer that Section 105 is subject to any period of limitation or to say that the provisions of this section are inapplicable if the period for bringing a suit under Section 203 has expired.... If there are two methods of procedure open to the Municipality, one by distress under Section 105 and the other by suit under Section 203, it is, in our opinion, impossible to say that because one of these alternative methods is subject to limitation, the other must also be So subject. We think that if it had been intended that the procedure under Section 105 should be subject to any limitation, the legislature would have said so. In any case, it is not for the Courts to give effect to an intention which has not been expressed.

53. With respect, these observations are in consonance with the view we are taking. But the only point which we have to consider is as to whether the ratio of this case has been overruled by the decision of the Supreme Court in State of Gujarat v. P. Raghav (supra). Mr. Paranjpe pointed out that whereas this Court had observed in the Surat Borough Municipalities case (supra) that,.It may be that the Legislature may have contemplated that the distress procedure should be taken promptly and within a reasonable time, but it has not said so. It is not open to the Courts, in our opinion, to infer that Section 105 is subject to any period of limitation or to say that the provisions of this section are inapplicable if the period for bringing a suit under Section 203 has expired. (p. 963).

that reasoning or ratio has been overruled by necessary implication by the Supreme Court in State of Gujarat v. P. Raghav, (supra) as appears from the observations of the Supreme Court in para. 11 which are as under (p. 1301):

The question arises whether the Commissioner can revise an order made under Section 65 at any time. It is true that there is no period of limitation prescribed under Section 21 ls but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised.

54. We are unable to agree with the submission of Mr. Paranjpe that the ratio of the division Bench decision of this Court in Surat Borough Municipality's case (supra) has been overruled by necessary implication by the decision of the Supreme Court in the State of Gujarat v. P. Raghav (supra). After all judgments are not to be read as statutes. The observations in a judgment must be taken and understood in the context in which they are made. They cannot be read as propositions of law which are applicable irrespective of the facts and circumstances of a given case.

55. Now, let us examine the facts as against which the Supreme Court made the observations in State of Gujarat v. P. Raghav (supra). In that case, the facts were these: On October 20, 1958, the petitioner applied to the Collector for permission to convert his land to non-agricultural use, under Section 65 of the Bombay Land Revenue Code, 1879. That petition was first rejected by the Collector but the Divisional Commissioner remanded the matter to the Collector. On remand, the then Collector or Rajkot, after holding an enquiry, granted permission to the petitioner to use the land for non-agricultural use by his order dated July 2, 1960. Pursuant to that order, a sanad was issued by the Collector to the petitioner on July 27, 1960. It appears that the Municipal Committee of Rajkot had objected to the grant of permission before the Collector when a sketch of the land was sent to the Municipality. The Collector overruled those objections. It was thereafter that the Municipal Committee approached the Commissioner to exercise powers under Section 211 of the Code. The Commissioner set aside the order of the Collector granting N. A, permission on October 12, 1961. That order was quashed by the High Court and the matter was taken to the Supreme Court. The Supreme Court took note of the fact that Section 65 of the Bombay Land Revenue Code, provides that when an application is made by an occupant of the land to the Collector for permission to use the land for non-agricultural purpose and the Collector fails to inform the applicant of his decision on the application within a period of three months, the permission applied for shall be deemed to have been granted and that such period shall if the Collector sends a written acknowledgment within seven days from the date of receipt of the application be reckoned from the date of the acknowledgment, but in any other case, it shall be reckoned from the date of the receipt of the application.

56. Section 211 of the Bombay Land Revenue Code, 1878, invests the State Government and any revenue officer not inferior in rank to an Assistant or Deputy Collector or a Superintendent of Survey, the power to revise the orders of the subordinate revenue officers. No period of limitation is however provided for the exercise of revisional powers under Section 211. Even then the Supreme Court observed in para. 11 that it seems to them plain that the powers under Section 211, must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised. In para. 12, the Supreme Court observed (p. 1301):

It seems to us that Section 65 itself indicates the length of the reasonable time within which the Commissioner must act under Section 211. Under Section 65 of the Code if the Collector does not inform the applicant of his decision on the application within a period of three months the permission applied for shall be deemed to have been granted. This section shows that a period of three months is considered ample for the Collector to make up his mind and beyond that the legislature thinks that the matter is so urgent that permission shall be deemed to have been granted. Reading Section 211 and 65 together it seems to us that the Commissioner must exercise his revisional powers within a few months of the order of the Collector. This is reasonable time because after the grant of the permission for building purposes the occupant is likely to spend money on starting building operations at least within a few months from the date of the permission. In this case the Commissioner set aside the order of the Collector on October 12, 1961, i.e., more than a year after the order, and it seems to us that this order was passed too late.

57. It would thus appear that although no period of limitation as such is prescribed under Section 211, having regard to the provisions of Section 65, the Supreme Court inferred that the Legislature thought that the matter was so urgent that permission shall be deemed to have been granted, to use the land for non-agricultural purpose under the provisions of Section 65 of the Code, if no intimation is received from the Collector on the application made by the owner of a land. The Supreme Court has given adequate reasons to hold that unless the revisional powers are exercised promptly and within a reasonable time, prejudice is likely to be caused to the occupant who is deemed to have got N. A. permission or in fact secured N. A. permission from the Collector and gone ahead with preparation to have constructions on the land in question. It is precisely because of the combined operation of the provisions of Sections 211 and 65 and the likelihood that the persons applying for permission and securing permission, or deemed to have secured permission, are likely to spend monies on starting building operations and the prejudice would be caused if the revisional powers under Section 211 are unreasonably delayed that the Supreme Court observed that depending on the facts of the case and the nature of the order, a revisional power under Section 211, must be exercised in reasonable time and that the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised.

58. In the instant case, it would appear that these observations have absolutely no application to a distress warrant which could be issued under Section 105 in chap. VIII of the Borough Act of 1925. We are therefore of the view that the observations of the Supreme Court in State of Gujarat v. P. Raghav (supra) have no application to a case of a distress warrant being issued beyond the period of limitation required for filing a suit under Section 203 of the Act of 1925. That being the position we see no force in the submission of Mr. Paranjpe, that an implied period of limitation should be inferred in the matter of taking action to recover the dues or that if that is done the action of the borough municipality to recover the dues by sending the demand notice is impliedly barred by time.

59. That leads us to the last and the fourth contention of Mr. Paranjpe, that Note No. 5 of the Octroi Rules which is the basis of the impugned demand notice, had not legally come into force for want of due publication as required by law. Mr. Kotwal, however, submits that this contention of the petitioners is hopelessly belated and since no reasonable explanation is given for the inordinate laches, the petitioners should not be allowed to raise that contention. We find considerable force in this contention of Mr. Kotwal,

60. We have already stated that by letter dated July 14, 1960, the petitioners were apprised of the revised rates of octroi and about the same having come into force from April 20, 1959, and they were called upon to include in the cost price of the goods the railway freight as well. Immediately on July 15, 1960, the petitioners called upon the borough municipality to let them know when the General body first passed the proposal and the date and paper in which the borough had published that resolution calling for objections from the public. A detailed information was supplied by the borough municipality by its letter dated July 22, 1960 about the background as against which Note No. 5 altering the mode of taxation had come into force with effect from April 20, 1959. The petitioners promptly challenged the legality of the said Note No. 5 to the Octroi Rules and they sent in a detailed notice of the proposed suit under Section 206A of the Act of 1925 on September 6, 1960, setting out several reasons in support of their contention that Note No. 5 in the schedule of Octroi Rules has not validly come into force for want of due publication. They therefore informed the borough, that they would file a suit for a declaration that the new Explanatory Note No. 5 in the schedule of the Octroi Rules regarding 'all inclusive definition of the word 'cost price' is illegal, unauthorised, ultra vires and brought into existence in violation of the mandatory provisions of Sections 75 to 77 of the Bombay Municipal Boroughs Act and of the Constitution, and as such is unenforceable in law and facts and also for a permanent injunction against the Sholapur Municipality restraining it from enforcing the same and from recovering additional octroi on the strength of the same.

61. It is significant to note that the allegations in the petition about the legality of Note No. 5 of the Octroi Rules are taken verbatim from this notice of the proposed suit dated September 6, 1960 sent by the advocate of the petitioners to the borough municipality. Since the petition is filed in 1972 i.e. twelve years after that challenge and the impugned demand notice is being challenged on the ground that it is founded on an illegal and unenforceable Note No. 5, which was challenged by the notice of September 6, 1960 and no reasonable explanation is forthcoming for this inordinate delay, it would appear that any challenge to the legality or enforceability of Note No. 5 would be hopelessly barred by time.

62. Mr. Paranjpe has however submitted that since no demand notice was sent for recovering the arrears at that time, it was not necessary for the petitioners to file the proposed suit, which was intended to be filed, as per the petitioners' notice dated September 6, 1960. We are not impressed with this submission. In fact on June 15, 1964 again the petitioners were called upon by a notice of demand to pay octroi dues on the revised basis for the period from April 20, 1959 to March 31, 1964, within a week from the receipt of the notice failing which the borough municipality threatened to file a suit for the recovery of the same. It may be mentioned that this demand notice is in respect of the identical sums which are claimed in the impugned notice of demand for the period from 1959-60 to 1963-64, although the impugned notice of demand contains two other items for the subsequent years 1964-65 and 1965-66. Inspite of that no action was taken by the petitioners challenging the legality of Note No. 5.

63. Here again Mr. Paranjpe submits that since by the demand notice dated June 15, 1964, the Commissioner had informed the petitioners that in the event of their failing to make the payment within a week after the notice, a suit would be filed to recover the same, the petitioners were justified in waiting to put forward their contentions toy way of defences in the event of such a suit being filed. We are not at all impressed with this submission.

64. As we pointed out earlier, the allegations on which the legality and enforceability of Note No. 5 of Octroi Rules is challenged in the petition are the identical grounds which were made in the notice of suit under Section 206A of the Act of 1925, which was served by them on the borough municipality, on September 6, 1960. Since the present petition is filed agitating those very contentions nearly twelve years thereafter and the delay has not been reasonably explained, we are of the view that the contention about the legality of Note No. 5 being hopelessly barred by time and laches, the petitioners cannot be allowed to agitate that ground. However even on merits, we find that there is no force in the fourth contention of Mr. Paranjpe.

65. We shall first deal with the legal provisions on this point and then go to the facts of the case.

66. Section 75 of the Act of 1925, lays down the procedure preliminary to imposing tax, which provides that a municipality before imposing a tax shall observe the preliminary procedure mentioned therein. Sub-section (b) of Section 75 provides that when such resolution of the General Body as is mentioned in Sub-section (a) has been passed, the municipality shall publish the rules so approved with a notice in the form of Schedule II. Notice in Schedule II is to this effect:

Notice is hereby given to the inhabitants of the municipal borough of that the municipality desire to impose the tax, rate, toll, octroi or cess (as the case may be) defined in the rules appended (in lieu of the tax known as the which is published at page of the sanctioned rules).

Any inhabitant of the municipal borough objecting to the proposed tax may, within one month from the date of this notice, send his objection in writing to the municipality.

RULES.

[The rules approved by the Municipality under clause (a) of Section 75 are to be appended here.]

67. Sub-section (c) of Section 75 provides for an opportunity being given to the concerned inhabitants to file their objections within a month from the publication of the said notice, the Municipality has then to take such objections into consideration and unless it decides to abandon the proposed tax, it is required to submit such objections with its opinion thereon and any modifications proposed in accordance therewith, together with the notice and rules aforesaid to the State Government.

68. Section 192 of the Act of 1925 provides in Sub-section (7) for the service of notice etc. against individuals. Sub-section (2) provides for service of notices on owners or occupiers of buildings and lands. Sub-section (3) provides for the public and general notices. That sub-section reads as under:

Every notice which this Act requires or empowers a municipality or any municipal authority or officer to give or to serve either as a public notice or generally or by provisions which do not expressly require notice to be given to individuals therein specified shall be deemed to have been sufficiently given or served if a copy thereof is put up in such conspicuous part of the municipal office during such period and in such other public buildings and places, or is published in such local papers or in such other manner, as the municipality in by-laws in this behalf prescribes.

69. We shall presently proceed to the bye-laws, but it would be convenient to dispose of a submission made by Mr. Paranjpe at this very stage.

70. Mr. Paranjpe submitted that Section 192 of the Bombay Municipal Boroughs Act, 1925 has no application to the public notices which are required to be published and that it only deals with the notices which are required to be served on individuals. He, therefore, submitted that the relevant provision would be Section 24 of the Bombay General Clauses Act, 1904. We cannot agree with this submission of Mr. Paranjpe.

71. As we pointed out Section 192 deals with several kinds of notices. Sub-section (7) provides for service of notice etc. against individuals, Sub-section (2) deals with service of notices on owners or occupiers of buildings and lands. Sub-section (3) which we have quoted above for ready reference deals with the procedure of publication of general notices which are required to be issued or published by a Municipality or any municipal authority or officer under the Act. Clearly therefore the Municipality had the power to make the bye-laws in Sub-section (3) of Section 192 for providing for the method of publication as provided in Sub-section (3) of Section 192.

72. That leads us to the bye-laws made by the municipal borough in that connection. The Sholapur Municipality has framed bye-laws as follows :

No. 1: A notice such as the one referred to in Sub-section (3) of Section 192 of the Bombay Municipal Boroughs Act shall be deemed to have been sufficiently given or served, provided) -

(a) a copy of it is affixed on the Notice Board of the Municipality hung in the municipal office during office hours, and

(b) it is published in one of the local newspapers or copies of it are distributed as hand-bills;

(c) it is published in the Municipal Gazette, if started hereafter.

73. We shall therefore proceed to examine whether the borough municipality has followed the procedure laid down by Section 75 (b) read with Section 192(5) of the Bombay Municipal Boroughs Act, 1925 and the bye-laws made by the borough municipality in exercise of the powers under Section 192(5) which are set out above. The factual details are set out at great length in the affidavit-in-reply filed by the Corporation. Briefly stated it is to this effect. The Chief Officer by his report dated October 14, 1950 proposed an amendment to the Octroi Rules on the lines of rules applicable to Poona and Ahmedabad Municipality. But the Standing Committee did not approve the same. The subject again came up before the Standing Committee and the Standing Committee by its resolution dated August 31, 1951 sanctioned the draft rules, and it was then sent to the General Body. The General Body by its resolution dated April 29, 1952 appointed a sub-committee of three members. That sub-committee considered the matter and made a report on July 2, 1952 that the railway freight and motor carriage be excluded from the proposed amended rule. The General Body under its resolution dated August 7, 1952 sanctioned the amendment as proposed by the sub-committee. The proposed amended rule was published in local newspaper daily 'Samachar' on September 5, 1952 inviting objections from the public. The said notice was given according to the bye-laws framed by the Municipality. No objections were received and therefore the General Body by its resolution dated November 8, 1952 accorded its final sanction. The proposed amendment was forwarded to the Government through the Collector of Sholapur on December 6, 1952 for according its sanction. Under the instructions from the Director of Local Authority, the Collector of Sholapur on January 9, 1953 asked the president of Sholapur Municipality to give reasons for exclusion of addition of motor charges from the value of the goods and also asked to send the copies of Octroi Rules of Ahmedabad and Surat Municipalities. The matter was again placed before the General Body of the Municipality which by its resolution dated August 7, 1955 confirmed the original resolution dated November 8, 1952. The reasons were forwarded to the Collector on August 20, 1955. The Collector by his letter dated September 30, 1955 called the copies of similar rules of Ahmedabad and Surat Municipalities. The said copies were supplied on October 18, 1955.

74. The Director of local authorities on December 2, 1955 returned the rules through the Collector with an advice to the Sholapur Municipality to re-draft the proposed rule so as to include the motor charges. The Chief Officer by his report dated December 29, 1955 proposed the necessary amendment. The subject-matter came up before the Standing Committee on January 6, 1956, January 28, 1956, July 24, 1956, and August 22, 1956. In the meeting of August 22, 1956, the Standing Committee sanctioned the amendment as proposed by the Chief Officer in his report dated December 29, 1955 and the General Body in its resolution dated August 23, 1957 sanctioned the amendment as proposed. The proposed amendment was again published in the newspaper 'Divyashakti' on September 12, 1957 inviting objections from the public. The loose copies of this publication were distributed in the city and affixed to important places and on the notice board of the Municipality. In response to this, a joint application from machinery dealers was received on October 1, 1957 which was signed by eleven dealers.

75. After taking into consideration this objection the General Board in its meeting dated November 26, 1957 finally sanctioned the amendment. The proposed amendment was forwarded to the Collector on December 11, 1957 for obtaining sanction of the Government, The Government of Bombay was pleased to sanction the proposed rule by its G.R. No. BMA. 3358-A dated January 15, 1959. The amendment was again published in daily 'Samachar' on March 19, 1959. The copies of this publication were distributed in the city and affixed to important places and on the notice board of the Municipality. The effect of this amendment was given from April 20, 1959.

76. It is however contended for the petitioners that 'Divyashakti' in which the notice was alleged to have been published was so insignificant that it could hardly be called a newspaper. It is alleged that it was neither regular in publication nor had it any circulation worth the name inasmuch as its circulation was about 300 to 400 copies whenever it was published and that in fact it was of the size of a handbill. It is further contended by the petitioners that no advertisement or notification or public notice issued by the Government or semi-Government institutions of any importance was ever published in the said paper. It is, therefore, contended that to publish an important notice like the one contemplated by Sections 75 to 77 of the Boroughs Act in a newspaper like Divyashakti was very negation of the provisions for publication of notice contemplated by Section 75 (b) of the Boroughs Act. It is therefore contended that consequently persons affected by the revision of the basis of valuation could not submit their objections and that in fact they were deprived of their opportunity of lodging their objections and pointing out that the revised basis of valuation was against the fundamental principles of taxation and Constitution,

77. But then in the affidavit-in-reply filed by the Corporation it is contended that during the year 1957-58 there were only two local newspapers viz. (1) Samachar and (2) Divyashakti. It was further contended that in the year 1957-1958 public notices, tenders, agenda, audit reports etc. were all published in the local newspaper 'Divyashakti' which used to be regularly published having good circulation. Therefore it is alleged that the proposed amendment was published in the newspaper 'Divyashakti' on September 12, 1957 inviting objections from the public. Besides, it is alleged that copies of the publication were affixed on the notice board of the Municipality hung in the Municipal office and other important places, and the copies of the said publication were also distributed in the city through municipal staff and, therefore, the Municipality had strictly followed the provisions of Sections 75 (b), 192 (3) and the relevant bye-laws.

78. It was further contended in this affidavit-in-reply that the petitioners were in fact aware that municipal notices etc. were being published in the newspaper 'Divyashakti' inasmuch as during the year 1955-56 when a proposal of levying octroi duty on new prime movers and complete machinery was published in the local newspaper 'Divyashakti' on February 13, 1956, the petitioners had filed objections by their letter dated April 21, 1956, and, therefore, it is contended that the contention of the petitioners that they were deprived of the opportunity of lodging objections is not correct.

79. However in sur-rejoinder filed by the petitioners it is contended that the publication in Divyashakti on February 13, 1956 about the proposed levy of octroi duty of new prime movers and complete machinery had escaped notice of the petitioners and was brought to the notice of the petitioners after the statutory period of one month for raising objections was over, and that while raising objections it was specifically pointed out that not-withstanding their objections to the levy of octroi duty on new prime movers and complete machinery was submitted beyond a period of one month of the publication of the notice, the petitioners wanted to mention that it was published in a paper with a very small circulation and as such it escaped their notice.

80. In other words the factual aspect is that the question of the basis of the variation of Octroi Rules was discussed and debated upon first in the General Body of the borough municipality which is open to the members of the public. The relevant resolution about Note No. 5 was adopted by resolution of the General Body on August 23, 1957. Therefore, the provisions of Section 75 (a) were complied with. The only other question is whether there was publication of that resolution inviting objections as required by the provisions of Section 75(b) read with Section 192(5) and the bye-laws framed by the municipal borough in this connection. While it is not disputed that this Note No. 5 was published in 'Divyashakti', a daily newspaper, what is submitted is that that publication is not sufficient inasmuch as that paper could hardly be called a newspaper inasmuch as it had a circulation of 300 to 400 copies. This factual contention was denied by the affidavit-in-reply filed by the Corporation. The Corporation has in fact pointed out that the public notices, tenders, agenda, audit reports etc. were being published in Divyashakti, a daily newspaper. It is also not disputed that earlier on February 13, 1956, also a very important resolution of the Municipality about the proposal of levying octroi duty on new prime movers and complete machinery was also published in the self same local newspaper Divyashakti. In fact the petitioners did file an objection to that public notice albeit the explanation of the petitioners was that the publication had escaped their notice. It is significant to note that even in respect of the impugned Note No. 5 which was published in Divyashakti on September 12, 1957, as many as eleven dealers in machinery did make a joint application raising their objections in time and these were in fact forwarded by the General Body to the Government through the appropriate authority as is required by Section 75.

81. When the matter was being discussed in the General Body meeting of the borough and the matter was then published in one of the two local newspapers which were being published at the relevant time, it could not be said that there was anything hanky-panky or hush-hush about the publication of the impugned Note No. 5 in one of the papers. Under Sub-section (3) of Section 192, the publication shall be deemed to be sufficient if a copy is put up in such conspicuous part of the municipal office during such period and in such other public buildings and places. The affidavit-in-reply shows that the copies of the publication of Note No. 5 in Divyashakti were distributed in the city and affixed on the notice board of the Municipality and other important places. Therefore, it would appear that the publication shall be deemed to be sufficient in view of Sub-section (3) of Section 192.

82. The other mode of publication which could be deemed to be sufficient under Sub-section (3) of Section 192 is publication in such local newspaper. We have already pointed out that notice was in fact published in Divyashakti, a fact which is not disputed. The very fact that eleven machinery dealers did file their objections pursuant to that publication would show that factually that was sufficient notice.

83. Again, the very fact that even on earlier occasion a similar notification concerning machinery was published in the selfsame paper to which the petitioners have themselves objected would also show that those who cared to read could have read the publication in Divyashakti. Therefore even under the second part of Sub-section (3) of Section 192, it must be held that the publication was sufficient.

84. The third mode of publication which is provided for in the alternative is, as the Municipality in bye-laws in this behalf may prescribe. The Municipality as we have pointed out by its bye-laws has prescribed that a notice referred to in Sub-section (3) of Section 192 of the Boroughs Act of 1925 shall be deemed to have been sufficiently given or served when a copy of it is affixed on the notice board hung in the municipal office during office hours and is published in one of the local newspapers or copies of it are distributed in the city as handbills. The affidavit-in-return shows that these requirements were also complied with.

85. We have already pointed out that we do not agree with the submission of Mr. Paranjpe that Sub-section (3) of Section 192 of the Act of 1925 has no application to such publication and for that purpose the provisions of Section 24 of the Bombay General Clauses Act, shall have to be complied with. Even if we turn to the provisions of Section 24 of the Bombay General Clauses Act, Sub-section (b) of Section 24 provides that

Where, by any Bombay Act a power to make rules or bye-laws is expressed to be given subject to the condition of the rules or bye-laws being made after previous publication, then the following provisions shall apply, namely

(b) the publication shall be made in such manner as that authority deems to be sufficient or, if the condition with respect to previous publication so requires, in such manner as the Central Government, or as the case may be, the State Government prescribes;

86. It is nobody's case that there are any modes prescribed by the Central Government or the State Government so far as the publication of the type of Octroi Rules like Note No. 5 are concerned. The only provision of Sub-section (b) of Section 24 which is therefore attracted is that the publication shall be made in such manner as that authority deems to be sufficient. In our opinion, even if this provision applies, it would appear that there is sufficient publication of the notice, as mentioned in the bye-laws. Judged from any point of view, therefore, it would appear that there is sufficient publication and Note No. 5 which is the basis of the notice of demand cannot be said to suffer from the defect of insufficient publicity as is submitted by Mr. Paranjpe.

87. We shall now refer to the authorities cited by Mr. Paranjpe. In Harla v. The State of Rajasthan : [1952]1SCR110 , the question involved was whether a resolution passed by the council of ministers in Jaipur State enacting the Opium Act was valid and enforceable. In that case the facts were these: On December 11, 1923 the council of ministers who were looking after the Government during the minority of the Maharaja of Jaipur, passed a resolution which purported to enact the Jaipur Opium Act, and the question was whether the mere passing of the resolution without promulgation or publication in the Gazette or other means to make the Act known to the public was sufficient to make it law. The Supreme Court held that it was not. It was pointed out that in the absence of any law, rule, regulation or custom a law cannot come into being by merely passing a resolution without promulgation or publication in the Gazette or other means, and that promulgation or publication of some reasonable sort is essential. That case, therefore, is peculiar to itself and is of no assistance in deciding the point before us.

88. In R.B. Sugar Co. v. Rampur Municipality : [1965]1SCR970 the Supreme Court was dealing with the interpretation of the provisions of U.P. Municipalities Act. It was held by majority that Section 131(3) of the U.P. Municipalities Act, 1916 can be divided into two parts. The first part lays down that the Board shall publish proposals and draft rules along with a notice inviting objections to the proposals or the draft rules so published within a fortnight from the publications of the notice. The second part provides for the manner of publication and that manner is according to Section 94 (3). It was held by the Supreme Court that the first part of Section 131 (5) dealing with publication is mandatory and the second part dealing with the manner of publication is directory. That ruling also, therefore, has no application to the facts of our case.

89. The next case relied upon by Mr. Paranjpe is reported in Emperor v. Gwilt (1944) 47 Bom. LR. 431. In that case an order was made under Defence of India Rules, 1939, and published in the Government Gazette. It was contended before the High Court that there is no evidence as to the manner which in the opinion of the issuing authority was best adapted for informing the persons whom the notification concerned, and that being so, no presumption could arise under Section 119 CO that the accused was duly informed of the said notification. Sub-rule (1) of Rule 119 was then referred to and it is to this effect :

Save as otherwise expressly provided in these Rules, every authority, officer or person who makes any order in writing in pursuance of any of these Rules shall, in the case of an order of a general nature or affecting a class of persons, publish notice of such order in such manner as may, in the opinion of such authority, officer or person, be best adapted for informing persons whom the order concerns; ...and thereupon the persons, corporation firm or person concerned shall be deemed to have been duly informed of the order.

90. While interpreting that provision on the facts of the case, this Court held that there was no evidence showing that the authority issuing the notification had decided in what manner the notification should be published and if so what that manner was. It was pointed out that such authority should decide as to the manner of publication as is clearly indicated in Sub-rule (1) of Rule 119. There was no evidence that the notification in question was published anywhere except in the Bombay Government Gazette or that the accused subscribed to the Bombay Government Gazette, the accused having stated definitely that he is not a subscriber. The result mentioned at the end of Sub-rule (1) namely, that the persons concerned shall be deemed to have been duly informed of the order, is the consequence of the publication of the order in a particular manner, namely, such manner as may, in the opinion of the issuing authority, be best adapted for informing the person whom the order concerns, It was decided that unless the prosecution shows in what manner the publication was decided upon, it would not be entitled to the presumption regarding notice to the accused mentioned in the last part of Sub-rule (1). If it was shown that the issuing authority had in this instance decided that the notification in question was to be published only in the Bombay Government Gazette and that such publication was best adapted for informing the persons concerned by the notification, such publication, though obviously inadequate, would give rise to the presumption that the accused had been duly informed of the notification. The Court pointed out that there is however, an entire absence of evidence as to how, in the opinion of the authority issuing the notification, the notification was to be published. The Court observed,.We do not think that in a case of this nature recourse should be had to the provisions of Section 114 of the Indian Evidence Act and that the presumption arises that the issuing authority had decided that the notification was to be published in the Bombay Government Gazette alone.(p. 433).

91. That case again has no application to the facts of our case inasmuch as it was decided on the facts of that particular case and the relevant provisions of Rule 119 (1) of the Defence of Indian Rules.

92. In Emperor v. Raghunath Krishnan Ghanekar : AIR1947Bom239 , it was held that where an amendment made by the Government of India to an order passed under Section 81 of the Defence of Indian Rules, 1939, was published in the Official Gazette of the Government of India and the Provincial Government, but was not shown to have been brought to the knowledge of the accused nor was the accused a subscriber to the Official Gazette, the amendment cannot be brought home to the accused under Rule 119 of the Rules, especially where the amendment is made after the grant of a licence to the accused and in this case also the decision in Gwilt's case (supra) was followed.

93. It would appear that those cases relied upon by Mr. Paranjpe have no application to the facts of our case.

94. In the result, the petition fails and is dismissed. The rule is discharged with costs in favour of the respondents in one set.

95. The State Bank of India (Main Branch) Bombay, to make the payment of the monies under the Bank Guarantee together with interest to respondent No. 1 Corporation.


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