1. By this petition under Articles 226 and 227 of the Constitution of India, three inhabitants of the Akola town challenge the validity of the imposition of the octroi tax. Petitioners Nos. 1 and 2 are cloth merchants and petitioner No. 3 is an ordinary resident of Akola.
2. Section 66 of the C.P. and Berar Municipalities Act, 1922, Act No. II of 1922, hereinafter called the Act, empowers a municipal committee to impose certain taxes mentioned therein. The imposition, however, is to be subject to the provisions of other sections contained in Chapter IX which relates to the imposition, assessment and collection of taxes. We are here concerned with Clause (e) of Sub-section (1) of Section 66. Under that clause, a municipal committee is empowered to impose an octroi tax on animals or goods brought within the limits of the municipality for sale, consumption or use within those limits. Sub-section (1) of Section 67 provides that a committee may, at a special meeting, pass a resolution to propose the imposition of any tax under a. 66. Puporting to act under this sub-section, the municipal committee, Akola, passed a resolution on November 11, 1957, to the effect that in pursuance of the power vested in it tinder Section 66(i)(e), octroi tax should be imposed on animals and goods brought within the limits of the municipality of Akola for sale, consumption or use within those limits. It also by the said resolution passed-proposals for levying the said octroi tax and further resolved that the said proposals (referred to as rules in the resolution) be forwarded to the Government for preliminary publication as required by Section 67(2) of the Act, The committee also passed a further resolution that draft rules for the assessment, collection and refund of the octroi tax be also forwarded to the State Government for necessary action. The State Government published the said proposals of the municipal committee in the Government Gazette of January 16, 1958, under notification No. VMA(M) 5457-1-A. This notification is purported to have been issued under Sub-section (2) of Section 67 of the Act for the information of all persons likely to be affected thereby and it is mentioned therein that any person desiring to raise any objections to the proposed tax or desiring to make any suggestions should lodge his objections or suggestions with the municipal committee of Akola within 30 days of the publication of this notification in the Gazette. This notification is hereinafter referred to as notification I-A.
3. In the same Gazette, rules referred to as draft rules for assessment, collection and refund of octroi tax were also published under notification No. VMA(M) 5457-II-A. The notification purports to emanate from the Government; and it is stated therein that any person desirous of raising any objections or suggestions to the rules should lodge his objections or suggestions with the Secretary to the Government of Bombay, Local Self-Government and Public Health Department, within 30 days of the publication of the notice. This notification is hereinafter referred to as notification II-A.
4. It appears that to the proposals contained in notification I-A certain objections were lodged by the inhabitants of Akola, with the municipal committee, Akola. These objections were first considered by the President and then the report of the President as well as the objections were considered at a special meeting of the municipal committee convened and held on March 3, 1958. The municipal committee thereafter modified its original proposals in certain respects and sent the modified proposals along with its original proposals, objections received thereto from the inhabitants and its decisions on these objections to the Government as required by Sub-section (4) of Section 67. The date on which these papers Were forwarded to the State Government is not known. The three petitioners at this stage made an application under Articles 226 and 227 of the Constitution to this Court on April 14, 1958, praying therein that the entire proceeding of the municipal committee and the resolution passed by it on March 3, 1958, should be quashed; a mandate be issued against the State Government prohibiting it from sanctioning the proposals sent to it by the municipal committee for the imposition of octroi tax, and from notifying the imposition of octroi tax or taking action under Section 67(7) and 67(8) of the Act. They also by a separate application prayed for an interim injunction against the State Government prohibiting it from sanctioning the proposals of the municipal committee and issuing notification for the imposition of the tax, These petitions came up for hearing before this Court on April 18, 1958. This Court by its order dated April 18, 1958, ordered rule to issue on both these petitions. As summer holidays intervened rule issued on the application for interim injunction was made returnable on June 16, 1958. It appears that the case was not taken up on June 16, 1958, but was taken up on June 23, 1958. In between, on June 17, 1958, appearance was put in on behalf of the State by the learned Additional Special Government Pleader. We are informed that his instructions were to oppose the application for interim injunction. On June 23, 1958, when this application was heard, this Court granted interim injunction. It appears that the State Government had already on June 19, 1958, issued notification under Section 67 of the Act in exercise of the powers conferred on it by Sub-sections (5) and(7) of Section 67 sanctioning the imposition of octroi tax and published it in Gazette Extraordinary of June 19, 1958. It appears that the State Government had not instructed its counsel about the issue of the notification and therefore information about it was not given to this Court by the Government Pleader appearing for the State when the order was made on June 23, 1958. It was later brought to the notice of this Court on June 23, 1958, after the order was made.
5. On learning about the publication of this notification an application was made on behalf of the petitioners to amend their petition. It was granted and the additional relief now claimed by the petitioners is for quashing the aforesaid notification of the Government dated June 19, 1958, also.
6. The contentions raised by Mr. M.N. Phadke, learned Counsel for the petitioners, in brief, are: (i) that the imposition of octroi tax is bad on account of non-observance or contravention of the mandatory provisions of Sub-sections (2), (3), (4) and (6) of Section 67 of the Act; (ii) that as two of the members of the municipal committee viz. G.M. Savarkar and H.P. Gole, were not served with notice convening the special meeting on March 3, 1958, the resolution passed on March 3, 1958, by the municipal committee was, therefore, bad in law and (iii) the conduct of the Government in issuing the notification dated June 19, 1958, during the pendency of the petition was not bona fide and the notification is, therefore, liable to be quashed.
7. Turning now to the contention raised as regards non-compliance with the provisions of Sub-section (2) of Section 67, Mr. Phadke contends that even though the proposals of the municipal committee for the imposition of octroi tax and the draft rules for assessment, collection and refund of octroi tax were published in the Official Gazette the draft rules were not published within the municipal limits of the town of Akola as was required under Rule 1 of the Rules framed under Section 67(2). The draft rules formed an integral part of the proposals of the municipal committee within the meaning of Section 67(2) of the Act, and failure to publish these draft rules within the limits of the town of Akola amounts to a breach of a mandatory provision of that section vitiating the imposition of octroi tax. It is indeed true that draft rules for assessment, collection and refund of octroi tax published in Notification II-A were not published in any of the local papers at Akola. In fact, there had been no other publication of it save and except that in the Gazette. The proposals contained in Notification I-A were published in the form of pamphlets distributed throughout the town of Akola. They were also published in a local fortnightly paper called 'Jana Sewak'.
8. If the aforesaid contention of Mr. Phadke is correct, then certainly the imposition of octroi tax is bad in law. The petitioners and other inhabitants of Akola had been denied the statutory right of an opportunity to lodge their objections to these draft rules with the municipal committee. It is, therefore, necessary to consider whether it was incumbent on the municipal committee to include these draft rules in the proposals made by it under Sub-section (2) of Section 67 and publish them for inviting objections thereto from the inhabitants of the Akola municipal committee. Sub-section (2) of Section 67 reads as follows:
When such a resolution has been passed, the committee shall publish in accordance with rules made under this Act, a notice defining the class of persons or description of property proposed to be taxed, the amount or rate of the tax to be imposed and the system of assessment to be adopted.
It is the argument of Mr. Phadke that in the instant case the municipal committee has published the description of property proposed to be taxed, the amount or rate of the tax proposed to be imposed thereon, but has not published the system of assessment it proposed to adopt in the imposition of the tax. According to Mr. Phadke the system of assessment is contained in the draft, rules and, therefore, it was incumbent on the municipal committee to publish them for inviting objections thereto.
9. Now, the word 'assessment' is understood in various senses. In its comprehensive sense it means the method prescribed for making an assessment of a tax, including the steps taken for ascertainment of the basis upon which the tax is to be computed; ascertainment of the amount of tax payable by a tax-payer; and the actual demand of the tax from that tax-payer or the procedure followed for imposing the liability of the tax on the tax-payer. Any one of the aforesaid three steps by itself is also termed as assessment. If the term 'assessment' occurring in Sub-section (2) of Section 67 is understood in its comprehensive sense then certainly the rules published in Notification II-A would fall within the meaning of 'system of assessment'. In our opinion, however, the word 'assessment' is not used in its comprehensive sense in Sub-section (2) but is used only in the sense of ascertainment of the basis upon which the tax is to be computed.
10. We find it difficult to give a comprehensive meaning to the word 'assessment' used in this sub-section because in Section 71 of the Act we find that the State Government is empowered to make rules regulating the asesssment of taxes and for preventing evasion of assessment. It is difficult to assume that the Legislature had intended to confer concurrent powers both on the municipal committee and the Government and thereby create a conflict between the two authorities, Obviously, therefore, the Legislature intended to confer certain powers on the municipal committee relating to the assessment of tax and it intended to confer certain other powers on the State Government relating to it.
11. It is no doubt true that normally the presumption is that the same word used in the Act has to be given the same meaning but that presumption is a very weak presumption. Craies at page 159 (Craies on Statute Law, 5th edn.) observed:
The presumption that the same words are used in the same meaning is however very slight and it is proper, if sufficient reason can be assigned, to construe a word in one part of an Act in a different sense from that which it bears in another part of an Act.
Similar are also the observations in Maxwell at page 322 (Maxwell on Interpretation of Statutes, 10th edn.):
But the presumption is not of much weight. The same word may be used in different senses in the same statute and even in the same section.
12. This Chapter, i.e. Chapter IX which relates to imposition, assessment and collection of taxes is sub-divided into four parts; first part relates to the imposition of taxes, Section 67 falls within that part. Second part relates to assessment of taxes, Section 71 falls within this part. Third part relates to collection of taxes and Section 76 falls within this part and the fourth part relates to appeals and also refund of taxes, Section 85 falls under this part. As already stated, Section 71 empowers the State Government to make rules regulating assessment of taxes and for preventing evasion of assessment. Section 76 empowers the State Government to make rules regulating the collection of taxes, and preventing evasion of payment etc. and Section 85 empowers the State Government to make rules regulating the refund of taxes. The sub-division of this Chapter into these parts and the powers conferred on the State Government by the aforesaid sections clearly indicate that the intention of the Legislature was to confer on the municipal committee only the power of imposition of a tax and to confer other powers relating thereto on the State Government. It necessarily follows that the expression 'system of assessment' used by the Legislature in Sub-section (2) of Section 67 connotes only to the stage of imposition of the tax and not the other stages of assessment as a whole.
13. Second reason why we feel that a restricted meaning has to be given to the word 'assessment' used in Sub-section (2) is the use of the word 'defining' in the sub-section which governs the clause 'system of assessment to be adopted'. Sub-section (2), does not require the municipal committee to publish all the procedure in details regarding the imposition of a tax, What it requires the municipal committee to do, is to define the class of persons or description of property proposed to be taxed, the amount or rate of the tax to be imposed and the system of assessment to be adopted. Now, the word 'define' means to describe accurately. This would not normally mean stating elaborately the entire system of assessment in all its details.
14. The scheme of Section 67 appears to be that when a municipal committee resolves to impose a tax, it should publish its proposals for imposition of that tax, so that the inhabitants of the municipal committee should have an opportunity to place their objections to the imposition of the proposed tax before the municipal committee for its consideration. The municipal committee has to consider these objections. If, thereafter the municipal committee does not consider it necessary to alter its original proposals in substance it has to send its proposals with the objections received, its decision thereon and the modifications, if any, made by it in its original proposals for the consideration of the State Government. In the event the municipal committee decides to alter its original proposals in substance it has to go over the procedure once again by republishing its altered proposals for inviting objections thereto. 'When the proposals in their final form are received by the State Government it may on consideration of the matter sanction them or refuse to sanction them or sanction them with modifications affecting the substance, Here again if the State Government desires to modify the proposals of the municipal committee so as to affect their substance it has to send them back to the municipal committee for its acceptance. Thus, the right which is conferred on the inhabitants of the municipal committee by Section 67 is only the right to submit their objections to the proposed tax. Now, to afford an adequate opportunity to the inhabitants of the municipal committee for raising objections to the proposed tax the whole procedure of assessment of the tax need not be made known to them. It is sufficient if the inhabitants know the basic principles underlying the imposition of the proposed tax. And they, in our opinion, are that the inhabitants must know what is going to be taxed, the rate at which it is going to be taxed and the basis on which the proposed rate is going to be computed on a tax-payer.
15. Mr. Phadke placed reliance on Rule 1 framed under Section 67(2) of the Act in support of his contention that the expression 'system of assessment' is used in its comprehensive sense. The material part of the rule reads as follows:
A notice under Section 67(2) of the intention of the municipal committee to impose a tax...shall be forwarded to the State Government through the Deputy Commissioner for publication in the Madhya Pradesh Gazette. The notice under Section 67(2) shall be accompanied by draft rules for the assessment and collection of the tax. After its publication in the gazette, the notice shall be published by affixing copies thereof to a notice-board at the municipal office and at conspicuous places in the town, and shall also be published in the local papers, if any. As an alternative to its publication in local papers, the committee may circulate the notice in print in vernacular within the municipal limits. Proclamation shall also be made by beat of drum throughout the municipality notifying the intention of the committee and calling the attention of the inhabitants to the notice in question and to the term of thirty days laid down in the law as that within which objections to the proposed imposition or increase must be submitted to the committee.
Laying emphasis on the words 'shall publish in accordance with rules made under Sub-section (2) of Section 67' and 'the notice under Section 67(2) shall be accompanied by draft rules for the assessment and collection of the tax', Mr. Phadke contends that what is meant by the expression 'system of assessment' in Sub-section (2) of Section 67 is these rules for the assessment and collection of the tax. In our view, on the language of the rule itself it is clear that the draft rules for the assessment and collection of the tax is something distinct and separate from the proposals of the committee. It is true that this rule requires publication in Gazette of the draft rules for the assessment and collection of the tax along with the proposals of the municipal committee, but that does not mean that these draft rules form part of the proposals of the municipal committee for the imposition of the lax. It will be further noted that on the language of the rule these draft rules are required to be published only in the Gazette. They are not required to be published in any other manner, while the proposals of the municipal, committee have to be further published in other manner as stated in Rule 1. This also indicates that these draft rules for the assessment and collection of the tax do not form part of the proposals of the municipal committee.
16. For reasons stated above, in our opinion, the expression 'system of assessment' occurring in Sub-section (2) of Section 67 means the principles underlying the ascertainment of the basis upon which a tax is proposed to be computed.
17. Now, these principles are bound to vary in each case. For example, in the case of octroi tax imposed on animals all that is required to be stated is at what rate it, is to be taxed. There is no further principle involved as regards the ascertainment of the basis upon which the proposed tax is to be computed. The tax is to be imposed on an animal at the proposed rate and that is all. But such would not be the case for example in imposition of a house-tax. The municipal committee undoubtedly would then be required to publish the principles which it proposes to adopt for ascertaining the basis upon which a house-tax is to be computed.
18. It is next necessary to see whether in the instant case there has been any failure on the part of the municipal committee to publish principles which it proposed to adopt in ascertaining the basis upon which the octroi tax was to be computed on any article or any animal.
19. Turning to the Notification I-A, which is published in the Gazette as well as in the local newspapers and pamphlets, it indicates the articles which are proposed to be taxed. A list of articles exempt from the octroi tax is given in Clause (2). There is an elaborate schedule containing a list of articles proposed to be taxed. In the schedule against each item is given the rate at which it is proposed to be taxed and. it also gives the basis on which the tax would be computed. In certain cases the tax is computed per cart-load drawn by two animals ; in certain other cases the tax is proposed to be computed on head-load, per number, animal load, motor track-load, wagon load and in certain cases the tax is proposed to be computed at ad valorem rate. Then the municipal committee has given details as to what a maund is equal to and has also given details as to how in weighment a fraction of a maund would be computed for purposes of the tax. Looking to the notification and the details mentioned therein, in our opinion, there had been no failure on the part of the municipal committee to publish any detail which it was required to publish under Sub-section (2) of Section 67 of the Act. It has given the description of the property proposed to be taxed, rate of the proposed tax and the principles for ascertainment of the basis upon which the tax would be computed.
20. Mr. Phadke, however, contends that the details given in Notification I-A relating to the principles for ascertainment of the basis for the computation of tax are not full and complete. Rules 6(6), 8, 11, 26, 26A and 27 appearing in Notification II-A also relate to the same topic and should have been published in the Notification I-A. Failure on the part of the municipal committee has resulted in the denial of an opportunity to the inhabitants to raise objections to those rules. The imposition of tax is, therefore, bad in law.
21. Rule 6(b) provides for preparation of a table of current prices of articles liable to duty ad valorem. It is to be prepared on the basis of local inquiries and the invoices received during the week, and is to be corrected every week according to the fluctuation in prices so ascertained. Under Rule 8, a tax-payer in anticipation of the arrival of dutiable articles exceeding Rs. 20 in value is permitted to approach the taxing authorities, and on the basis of the invoices satisfy them regarding the value of the articles and on that basis the officials charge the tax. If, however, there is any dispute between the two, then the matter is settled by the secretary. The difficulty would arise where the prices mentioned in the invoices are substantially at variance with the prices mentioned in the table. Rule 11 provides that in a case when an invoice of articles imported is produced by the importer of such article, the rates given in the invoice shall be compared with the rates shown in the table of current prices, or, in the absence of rates having been stated in the table, with the rates prevailing in the market situated within the limits of the municipality; if the invoice rate is found less by more than 12J per cent., duty shall be assessed and collected according to the market rate as stated in the table or as ascertained from, the condition in the market. These rules, in our opinion, only relate to the working out of the basic principle of computation of the tax on the value of the articles. No principle as such is laid down in Rules 6(i), 8 and 11. These rules also provide against evasion of the tax by an importer. It would be seen that under Section 71 of the Act the State Government is empowered to make rules not only for the assessment of tax, i.e. for ascertaining the tax payable by a tax-payer but also for preventing evasion of assessment, i.e. for preventing evasion of ascertaining the proper amount of tax payable by him.
22. Turning now to the provisions of Rules 26, 26A and 27, in our opinion, they hardly have any relevance to the principle underlying the ascertainment of the basis on which a tax is to be computed. Rules 26 and 26A relate to the procedure relating to articles which are imported within the limits of Akola town but which are intended to be immediately exported, and Rule 27 relate to the detention of goods in a bonded warehouse when they are intended to be kept within the municipal limits for a temporary period. In our opinion, therefore, in the rules published in Notification II-A, there is no rule which can be said to be forming part of the system of assessment within the meaning of Sub-section (2) of Section 67 of the Act. In our opinion, therefore, the petitioners have not been able to show that there had been any non-compliance with or contravention of the provisions of Sub-section (2) or Sub-section (3) of Section 67.
23. Turning now to the contention raised on behalf of the petitioners about the contravention of Sub-section (4) of Section 67, it provides:
The committee shall take the proposal and all objections received thereto into consideration at a special meeting, and may modify the proposals so as not to affect their substance, and may then forward them to the State Government along with all objections received, its decisions thereon and its reasons therefor. If the committee decides to modify the proposals so as to affect their substance, it shall publish them again in the manner prescribed in Sub-section (2).
It is the contention of Mr. Phadke that in the final proposals submitted to the State Government the municipal committee had made substantial changes in respect of items 23, 38 and 48 in the schedule appearing in Notification I-A. These changes amount to modification of the original proposals affecting their substance. The municipal committee, therefore, was bound to follow the entire procedure once over again, i.e. republish its modified proposals, invite objections of the inhabitants of the municipality before finally submitting them to the State Government. In our opinion, this contention is also without any substance. The modifications suggested in the final proposals only relate to the corrections of printing mistakes or omissions. We will illustrate this by one of the entries. Entry No. 23 relates to 'Tea, coffee, cocoa etc'. This entry occurs in the schedule of goods liable to octroi duty. In printing, however, the rate at which the tax was proposed to be had remained to be mentioned. It appears that the Brooke Bond Company, a well-known company dealing in tea, noticing this omission, made inquiries as regards the amount of tax proposed to be imposed on it and thereafter noting this mistake the municipal committee in its proposals of March 3, 1958, corrected it by stating that the proposed tax was at 75 nP. per maund. Now, anybody who would be reading this schedule in the Notification I-A could not be under any mistake that no tax was proposed to be imposed on tea, coffee etc. It is obvious that the omission to mention the rate of tax was due to some mistake. It is futile to contend that this mistake led the inhabitants to believe that no tax was proposed to be levied on this item. We are informed that this proposal of the municipal committee has not been accepted by the Government. The result is that tea and coffee have become taxable under a residuary clause. This also was the position under Notification I-A as it stood. In our opinion, the petitioners have not been able to establish that there was any non-compliance with the provisions of Sub-section (4) of Section 67 of the Act.
24. Turning to the non-compliance with Sub-section (6) of Section 67, it provides that no modification affecting the substance shall be made under Sub-section (5), (Sub-section (5) relates to granting of sanction by the Government to the final proposals of the municipal committee) unless and until the modification has been accepted by the committee at a special meeting. We had asked Mr. Phadke to show us modifications effected by the sanction of the State Government which had resulted in substantially affecting the proposals of the municipal committee. We, however, were not shown any items. This contention, therefore, must fail.
25. As regards the next contention relating to non-service of notice of the meeting of March 3, 1958, on two of the members of the committee, viz. G.M. Savarkar and H.P. Gole, controversy on facts is raised by the municipal committee. It is the contention of the municipal committee that G.M. Savarkar was out of the station. Notice was, therefore, handed over to his brother who had undertaken to give it to G.M. Savarkar on his return. An affidavit of G.M. Savarkar's brother to that effect is filed in this, Court by the municipal committee. As regards H.P. Gole, the case of the municipal committee is that though notice was tendered to him he had refused to accept it. In view of this controversy on facts we do not consider it proper to express ourselves on this question. The petitioners may agitate this question, if they so desire and are so advised, by a regular suit.
26. This brings us to the last contention raised by Mr. Phadke on behalf of the petitioners and that is as regards lack of bona fides of the State Government in issuing the notification of June 19, 1958. Mr. Phadke contends that the State Government full well knew that a petition had been filed in this Court. It was served with the notice of the petitioners' application for grant of interim injunction. It was the desire of the State Government to shut out an inquiry by this Court as regards the illegalities alleged to have been committed by the municipal committee and it is with this view that the notification had been issued. The case of the Government, as stated in the return, is that notice of stay was not served on the Secretary, Local Self-Government, at any time. A copy of the stay application was received only in the office of the Special Government Pleader on May 9, 1958, it was forwarded by the Special Government Pleader to the Collector, Akola, on May 16, 1958. He sent his report to the Special Government Pleader on May 24, 1958, and by a further letter dated June 7, 1958, instructed the Special Government Pleader to oppose the stay application. It is further averred by the State Government that it was not served with the copy of the application on merits and it did not know what the contentions of the petitioners were. The Government thus denied that it acted in any mala fide way in issuing the notification on June 19, 1958. In short, the case of the Government is that it did not know what the grievance of the petitioners was as the petition on merits was not served on it. The stay application also was not served on the Secretary of the Department concerned. The matter remained only between the Special Government Pleader and the Collector, Akola, and the Government acting in its usual course, after considering the objections of the inhabitants on June 13, 1958, issued the notification. Now, it is difficult to believe that the Secretary of the Department did not know of the application for interim injunction made by the petitioners in this Court or rule issued by this Court on April 18, 1958. Admittedly, the Special Government Pleader had written to the Collector, Akola, on May 9, 1958. He had instructed the Special Government Pleader on June 7, 1958, to oppose the application. It is difficult to assume that the Collector of Akola had instructed the Special Government Pleader to oppose the application without any instructions from the Government. There is also no substance in the contention raised on behalf of the Government that the Secretary, Local Self-Government, was not served with the notice. Provisions of law do not require service on the Secretary. On the other hand, provisions of Section XXVII, Rule 4, of the Civil Procedure Code clearly show that the Government Pleader in any Court is the agent of the Government for the purpose of receiving processes against the Government issued by such Court. The Special Government Pleader was duly served with notice. These facts, however, are not sufficient to hold that the Government in issuing the notification was acting mala fide or was actuated with the motive of shutting out an inquiry at the hands of this Court into the irregularities alleged to have been committed by the municipal committee.
27. The learned Special Government Pleader has not pressed before us the objection raised about the presumption of conclusiveness of the notification under Sub-section (8) of Section 67 of the Act.
28. We may, however, observe that in our experience, at any rate, in my experience, this is a first time when the State Government, departing from a healthy practice, has issued a notification likely to affect the merits of this case, after rule had been issued and served on the Government Pleader. We hope not to come across any such instance in future.
29. In the result, the petition fails and is dismissed, Only one set of costs is allowed.