Somnath Iyer, J.
1. The Town Panchayat Committee of Kittur, in the district of Belgaum passed a resolution on November 6, 1960, deciding to levy octroi on petroleum and diesel products brought into the limits of the panchayat. Objections were invited to the proposed levy and on November 19, 1960, some of the inhabitants of the panchayat areaproduced their objections against the proposed levy. It is stated that the panchayat thereupon decided to levy octroi from November 1, 1961, as originally proposed by it.
2. Respondent 1 in this writ petition, who owns a petroleum pump in Kittur as the agent of the Burmah Shell, made a representation to the concerned Assistant Commissioner against the levy of octroi on petroleum and diesel products brought for his pump into the area of the panchayat. The Assistant Commissioner did not uphold that contention and so, the petitioner appealed to the Divisional Commissioner who declared the levy to be illegal, since, in his opinion, the necessary bye-laws had not been made or published by the panchayat.
3. The Town Panchayat Committee, which feels aggrieved by this order made by the Divisional Commissioner, asks us to quash it.
4. Mr. Moogi contends that the requirement that there should be bye-law for the levy of the octroi came into being only on December 7, 1961, when the Mysore Village Panchayats and Local Boards Act, 1959, was amended by the Mysore Village Panchayats and Local Boards (Amendment) Act, 1961 (Mysore Act No. 26 of 1961). He points out that Section 78 of the principal Act which was amended by the amending Act made it necessary, for the first time, for the panchayat to make a bye-law for the levy of octroi and that it was not necessary for the panchayat to make any such bye-law before the section was so amended. So Mr. Moogi contends that the impression in the mind of the Divisional Commissioner that no octroi could have been levied on November 1, 1961, when Section 73 had not yet been amended, overlooked the provisions of that section as they stood prior to its amendment
5. It is true that the Divisional Commissioner's view that a bye law should have preceded the levy in the case before us, is mistaken Section 73 of the Act, as it stood when the impugned levy was made by the panchayat, read:
(3) A Town Panchayat may in such manner and subject to such exemptions and at such rates as may be prescribed, not exceeding the maximum rate specified in Schedule 1, levy octroi:
Provided that no octroi shall be leviable in respect of agricultural produce grown in any area within the jurisdiction of the Town Panchayat This sub-section confers power on the panchayat to levy octroi in such manner as may be prescribed. The word 'prescribed' occurring in this sub-section, as defined by Section 2(28) means 'prescribed by rules made under this Act'
6. The relevant rules were made by Government under Section 210 of the Act on May 17, 1960, which are called the Mysore Panchayat Taxes and Fees Rules, 1960. Rules 4and 5 prescribe the procedure for the levy of octroi and those rules do not insist upon a bye-law preceding such levy.
7. It is, however, obvious that the Divisional Commissioner's view that such bye-law was necessary rested upon the amendment made to Section 73 of the principal Act on December 7, 1961. By that amendment, for the old Sub-section (3), a new sub-section was substituted which reads:
'A Town Panchayat may levy octroi at such rates as the Panchayat may by bye-laws determine not exceeding the maximum rate specified in Schedule I and in such manner and subject to such exemptions as may be pre-scribed. . .'
The amending Act saved by its provisions octroi levied or imposed under the principal Act before the commencement of the amending Act.
8. In the case before us, the levy was made by the panchayat on November 1, 1961: and so, if the levy is otherwise above reproach, that levy having been made under the principal Act before it was amended, was saved by Section 8 of the amending Act. If this was all that could be said about it, it should Follow the Divisional Commissioner was not right in thinking that the panchayat could not, without a bye-law, levy octroi. When the impugned levy was made, what was operating was the old Section 73 and not the new, and that old section did not require a bye-law for the levy of octroi
9. But Mr. Chouta, appearing for respondent 1, contends that what vitiates the levy is, not an omission to make a bye-law for that purpose, but non-adherence to rules 4 and 5 of the Mysore Panchayats Taxes and Fees Rules, 1960, which will be referred to as the Rules. We think that this criticism is unanswerable.
10. Rule 5 of these rules, which pre-scribes the procedure for the levy of octroi, directs the panchayat to pass a resolution, in the first instance, if the panchayat decided to levy octroi. It next requires the publication of the proposal and adherence to Sub-rules (1), (2) and (3) of Rule 4. Sub-rule (2) of Rule 4 entitles an inhabitant of the village objecting to the levy of the impost proposed by the panchayat to object to it. Sub-rule (3) of this rule requires the panchayat to consider such objection before according its approval to the proposal or before any modification is made to it.
11. The argument maintained by Mr. Chouta was that there was disobedience to Sub-rule (3) of this rule. He pointed out to us that although some of the inhabitants of the panchayat objected to the levy of octroi through their objections which they produced on November 19, 1960, their objections were not considered by the panchayat, although it was bound to do so Mr. Moogi appearing for the panchayat maintained that those objections were considered and in support of that assertion, depended on the averment madein the affidavit produced on behalf of the petitioner of which the Secretary of the panchayat is the deponent. In the course of that affidavit, the Secretary asserts that the objections were considered, and although the panchayat has produced before us extracts of the relevant proceedings concerning the levy no material has been produced before us in corroboration of the assertion made by the Secretary that there was a consideration of the objections to the proposed levy.
12. We take the view that those objections were not considered. That that is so is clear from the fact that in the proceedings which were conducted by the panchayat, on May 19, 1961, an extract from which has been produced before us, there is no illusion to the objections, and no discussion of their sustainability.
13. It is further seen from Rule 5(2) that after the adherence to the procedure prescribed by Sub-rules (2) and (3) of Rule 4, there shall be a publication of the decision of the panchayat to levy octroi. That publication should announce the date from which the levy shall take effect. We are not shown any material on the basis of which we could conclude that there was any such announcement
14. Since octroi becomes exigible only ifit is levied in obedience to the mandatoryrequirements of Rules 4 and 5 and there wasno such obedience, the impugned levy wasrightly denounced by the Divisional Commissioner as illegal, although he came to thatconclusion for reasons other than those statedby us. We, therefore, dismiss this writ petition.
15. No costs.
16. Petition dismissed.