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Shaik Sheriff Vs. Mahado Seetha Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. Nos. 40 and 107 of 1964 and 163 of 1965 and C.R.P. No. 1661 of 1963
Judge
Reported inAIR1967AP363
ActsConstitution of India - Articles 301 and 304; Hyderabad District Municipalities Act, 1956 - Sections 2(20) and 96; Code of Civil Procedure (CPC), 1908
AppellantShaik Sheriff
RespondentMahado Seetha Ram and ors.
Appellant AdvocateP. Ramachandra Reddy, ;S. Ramachandra Reddy, ;K. Jagannadha Rao and ;N. Anjaneyulu, Advs.;Triambak Rao Deshmukh, Adv.
Respondent AdvocateS.M. Hasan, Adv.
Excerpt:
constitution - levy on food article - articles 301 and 304 of constitution of india, sections 2 (20) and 96 of hyderabad district municipalities act, 1956 and code of civil procedure, 1908 - various petitions disposed of by a common judgment - petitioner a businessman dealing in groundnut oil and other articles - city municipality passed an order that octroi to leviable on articles including groundnut oil - petitioner claimed that groundnut oil did not fall under food items so cannot be charged with octroi - according to section 2 (20) any item directly eaten or indirectly used in preparing eatable item will be considered as food - held, petitioner liable to pay tax on groundnut oil. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers.....order(1) these three writ petitions and the civil revision petition raise common questions of law. they can, therefore, be disposed of by a common judgment. since the facts of w. p. no. 163/65, if state, would cover all the points raised, i will briefly narrate the facts of that writ petition.(2) the petitioner is a businessman doing business at adilabad in groundnut oil and other commodities. the respondent, city municipality, adilabad, issued a letter no. 40, dated 31-7-1963 informing the petitioner that octroi is leviable on the articles, list of which was appended to it. of 52 items groundnut oil is one such item. the petitioner thereupon took objection that no octroi can be levied on groundnut oil. but the municipality maintained that octroi was legally leviable and started levying.....
Judgment:
ORDER

(1) These three Writ Petitions and the civil revision petition raise common questions of law. They can, therefore, be disposed of by a common judgment. Since the facts of W. P. No. 163/65, if state, would cover all the points raised, I will briefly narrate the facts of that Writ Petition.

(2) The petitioner is a businessman doing business at Adilabad in groundnut oil and other commodities. The respondent, City Municipality, Adilabad, issued a letter No. 40, dated 31-7-1963 informing the petitioner that octroi is leviable on the articles, list of which was appended to it. Of 52 items groundnut oil is one such item. The petitioner thereupon took objection that no octroi can be levied on groundnut oil. But the Municipality maintained that octroi was legally leviable and started levying it from 1-5-1963.

(3) The petitioner carried the matter in appeal to the District Judge, Adilabad. The learned District Judge allowed the appeal and held that groundnut oil and some other articles mentioned in the judgment are not subject to levy of octroi. He, however, held other articles to be chargeable in his judgment dated 7-10-1963. It is this judgment which is sought to be quashed in W. P. Nos. 107/64 and 40/64 by the City Municipality, Adilabad W. P. Nos. 163/65 and C. R. P. No. 1661 of 1963 dispute the very levy of octroi as that was held against the petitioners by the learned District Judge.

(4) The principal contentions raised by Mr. K. Jagannadha Rao, the learned Counsel for the Writ petitioner in W. P. No. 163/65 are that the levy of octroi offends article 301 of the Constitution of India and that since the Municipality failed to prove that octroi, which puts restriction on the freedom of trade, is reasonable and that it is in the interest of public, the relevant provisions authorising the Municipality to levy octroi ought to be struck down as unconstitutional. In the alternative, it was contended that the groundnut oil is not 'food' within the meaning of the Act and that no octroi can be levied.

(5) Although the term 'octroi' is not used in the Constitution, the tax itself, which goes by that name, is covered by entry 52 of the State List, which mentions 'Taxes on the entry of goods into a local area for consumption, use or sale therein.' The peculiar requirement of levy of octroi is that the goods must not only enter the local area, but must be for the purpose of consumption, use or sale therein.

(6) Bearing in mind the above special feature of octroi, its effect on the freedom of trade, commerce and intercourse, conferred by Art, 301 of the Constitution of India, required to be considered. Two questions arise for determination in this respect. The first is whether the levy of octroi per se is an infringement of freedom of trade and commerce conferred by Article 301 and secondly, if it is an infringement of such freedom of trade and commerce, is the tax reasonable and required in public interest as required by Article 304(b) of the Constitution.

(7) Considering the first question, the larger problem, which has to be necessarily answered is whether the freedom provided in Art. 301 for trade commerce and intercourse is merely freedom from restrictions, pratical or total, on the free-flow of commodities or does it include freedom from taxation also, which may indirectly or incidentally affect the freedom of trade and commerce by reason of the financial burden, it necessarily imposes. It is clear that, if a tax is not regarded as amounting to infringement of the freedom of trade, commerce and intercourse at all, there would be no question of the tax having to be justified as reasonable or is in the public interest as is visualised by Article 304(b)).

(8) It must also be remembered in this connection that both Articles 301 and 304(b) contemplate the freedom not only of inter-State trade, but also of intra-State trade. No decision was brought to my notice, which determines as to what will amount to infringement of the freedom conferred by Article 301 and what will not amount to such an infringement in cases where taxation is concerned. It is very difficult to lay down precisely as to when and in what circumstances taxation as such will amount to infringement of freedom of trade and commerce guaranteed by Article 301. It however seems to me to be plain that every form of taxation per se would not be an infringement of freedom of trade and commerce. It is difficult to take a view that taxation per se under authorised heads of the State List would amount to abridgment or curtailment of the freedom of trade and commerce even if such taxation imposes some incidental burden, however slight, on trade commerce and intercourse. Unless taxation operates as a direct and not remote or indirect restriction on such freedom, I am afraid, Article 301 may not be attracted, I am, therefore, of the view that, where taxation is resorted to for the purpose of restricting the resorted to for the purpose of restricting the free-flow of trade and commerce, it would contravene Article 301 and in order to justify such taxation, the requirements of Article 304(b) will have to be satisfied. On the other hand, taxation per se under authorised heads of the State list would not amount to violation of Article 301, if it does not directly affect free-flow or movement of goods, but is meant for the bona fide purpose of collecting revenue although such taxation may indirectly or incidentally place burden on tade, commerce or inter-course. It is true that taxation in some cases even when made for the purpose of collection of revenue and not with a view to affect the free-flow of goods in view of its heavy impact, may result in abridging the freedom of trade, commerce and intercourse appreciably and in such a case, the Legislation being a colourable exercise of the powers, the taxation would offend Article 301. It is however plain that Article 301 does not curtail the taxing power of the State exercised bona fide for the purpose of collecting revenue to run the administration. Whether, in any particular case, the tax acts as a letter on the freedom of trade and commerce or not must obviously depend upon the nature of the tax and whether it actually operates as a direct and not remote or indirect restriction on such freedom. In Atma Ram v. State of Bihar, : AIR1952Pat359 a special Bench of the Patna High Court considered a similar question Sarjoo Prasad, J. Held:

'I have already held that the impugned Act is a legislation directly dealing with the imposition of tax on goods and passengers and it does not profess to impose any restrictions whatsoever either on inter State trade or on trade with or within the State. I would, therefore, hold that on this short ground the contentions of the learned Counsel based on part XIII of the Constitution do not at all arise in the present case.'

The same view is expressed in the decision in H. P. Barua v. State of Assam, AIR 1955 Assam, 249.

(9) Let me then examine the present case in the light of what is stated above. The provisions relating to octroi clearly indicate that they do not profess to regulate or control 'trade or commerce.' The said provisions and the transactions on which they operate are not actually commercial dealings or the trade dealings because they do not prevent or restrict the free-flow of goods for commercial or trade purposes. No one is prevented from carrying on trade or commerce in the commodities taxed. The provisions have come into force for the purpose of levying a tax on goods, which are brought in local areas for use, consumption or sale therein. Instances are not wanting where persons bringing commodities for their own consumption or use are also taxed without involving any trade or commerce in such cases. The said provisions therefore, provide a machinery for the realisation of some revenue by way of this tax to the local bodies. No suggestion was made that these provisions materially affect the business relating to the goods taxed. In this connection, the system of refund, which the rules recognise cannot be ignored. I am, therefore, satisfied that the impugned provision relating to octroi is a legislation which directly deals with the impositions of tax on goods for the bona fide purpose of collecting revenue and they do not profess or tend to impose any restrictions whatsoever either on inter-State. In that view of the matter, the irresistible conclusion is that the octroi would not infringe Article 301. It is levied at the rates which, by no stretch of imagination, can be said to be heavy affecting the trade. The rates vary, but are not so heavy as to curtail the freedom of trade in those commodities. The rates at which different commodities are taxed and the scheme of refund make the octroi a tax tolerable for the trade and in no way it can be argued that it puts heavy burden on the freedom of trade. I am therefore, satisfied that the tax is meant for the bona fide purpose of collecting revenue and that it does not put heavy burden on the trade so as to call it an infringement of the freedom of trade, and that it does not offend Article 301.

(10) Assuming that the impugned tax is regarded as a restriction on the freedom of trade, even then I think, the requirements of Article 301 of the Constitution are satisfied in this case. Under Art. 304(b), three requirements are to be satisfied: (!) the restriction must be required in the public interest (2) it must be reasonable; and (3) the law imposing it must have received the previous sanction of the President of India. That the third requirement is satisfied in this case is conceded. It is only in regard to the other two requirements that there was some argument. It is clear, that if the tax is viewed as a restriction on the freedom of trade, then the question would be whether such restriction is required in the public interest. The object of raising public revenue although cannot be completely dissociated from the restriction, but it will have to be kept distinct from the object of imposing a restriction on such freedom and ultimately it is the restriction that has to be justified as being required in public interest. Raising of revenue for public purpose may not per se amount to a requirement in the public interest so as to justify the restriction. The fact that octori fetches considerable revenue to the local bodies, which is utilised for providing civic amenities to the public of local area cannot in doubt. These amenities naturally include amenities of roads and other allied amenities the benefits of which go even to those who bring the goods in the local area for use, consumption or sale therein. Thus, the local body for the purpose of providing these amenities to those who pay the tax along with others and for the purpose of running the local administration and providing other amenities to the people of local are can certainly put a reasonable restriction on the freedom of trade by levying octroi. Such a reasonable restriction, therefore, would necessarily be called for in the public interest. That this is so is supported by the decision of the Rajasthan High Court in Surajmal Baj v. State of Rajasthan, Wherein it was held that the levy of octroi would be a reasonable restriction imposed in the public interest within the meaning of Art. 304(b). The same view, was taken in Arjun Singh v. Teekchand, and Automobile Transport (Raj) Ltd. V. State of Rajasthan, (FB).

(11) In this connection, it was argued that the onus to prove that the tax is reasonable and is in the public interest lay on the respondent and that since the respondent has not discharged that burden by producing the relevant material before the Court, I should declare the tax as unreasonable and not in the public interest and therefore, the tax offends Article. 301.

(12) It is now well settled that the general presumption of constitutionality requires the Court to assume the validity of a statute untill clear and convincing 'evidence' of its invalidity is established, likewise, the Court will presume that the facts found by the Legislature as the basis for the legislative action existed. These presumptions, if they may be so called, usually are not conclusive and do not more than impose on the proponent the burden of going forward and establishing his position to the satisfaction of the Court.

(13) It is however unfortunate that the cases have used the language of pleading evidence and presumption. In these situations, the field is and should be one of legal argument only unfettered by formalities of procedure. The appeal, in such cases, is to the Judge and the argument is for determination of the law. The result is arrived at only through Judicial judgment tempered perhaps by rules of stare decisions.

(14) It must be remembered, that, if an Act of the Legislature would be valid only in the event that certain circumstances existed, it will be presumed that all such circumstances did exist and that it acted on a full knowledge of the fact. In consequence of this general presumption in favour of the validity of the Act of the Legislature, it has been declared that, in no doubtful case, should the Courts pronounce legislation to be contrary to the Constitution and in case there is any doubt regarding the constitutionality of a law in the absence of any compelling circumstances, the Court should lean to resolve such doubt in favour of its validity. Thus it is only when its invalidity, is made to appeal clearly and plainly and in such manner as to have no reasonable doubt, that the Courts will declare it as unconstitutional.

(15) It is true that where 'reasonableness' and the 'Public interest' form the basis of a restriction on the freedom of trade and when the existence of those basic facts is attacked, the Courts generally have insisted that this is a proper subject for judicial review. But as I stated earlier, it will have to be presumed that the Legislature has proceeded upon adequate facts and this presumption will not be overcome unless the proof to the contrary is clear. If the Courts are asked to make separate investigation of the facts or attempt to decide whether the Legislature has reached the correct conclusion in regard to these basic facts it is likely to create astounding results. Since the enquiry into these facts may be different in different cases and by different Courts, there would be involved an absurdity of declaring the law constitutional on one day and unconstitutional the next. It must be remembered that, under our system of Government by the people through their chosen representatives practical legislation admits of no other standard of action than the one that the Legislature must be presumed to have settled the basic facts before they took the action of legislating a particular enactment. It may be that the Legislature may hold one view in regard to the existence of these facts and there may be room for difference of opinion. But in such circumstances, the constitutionality of a law cannot be determined on a question of fact ascertained by the Court. In applying the constitutional limitation of reasonableness in the exercise of the power to enact a taxation law for the purpose of Article 304(b) the Court may determine the question of reasonableness from an inspection of the provisions of the statute under consideration and find out whether it properly relates to matter within the limits of the power. But, in the exercise of the revisory power, the Courts, in my view, are limited to a consideration of the language of the statute itself and to such facts as may be noticed judicially and, normally, I say, they should not consider evidence aliened to show the invalidity of the statute. The general rule is that in determining the validity of a statute, the Court will treat the question as one of law, resort being had to extrinsic consideration only to the extent that the facts are or may become a matter of judicial knowledge. If this rule is not followed and enquiry with the assistance of extrinsic evidence is insisted upon, the extreme argument such as advanced before me that, since no material or evidence is produced by the respondent-Municipality on whom the onus lay, I should hold the tax ultra vires, will continue to be advanced.

(16) Keeping in view the above discussion, in view of the language of the provisions relating to octroi and the rates at which octroi is levied and in view of the presumptions referred to above, I have no doubt that the restriction which the octroi puts on the freedom of trade is not only reasonable, but is in the public, interest. It cannot be brushed aside that the President has given his consent under Article 304(b), which lends considerable support to the octroi being reasonable and in the public interest. No particular allegations are made by the petitioner in his affidavit, which would outweigh all the factors mentioned above and indicate the unreasonableness of the octroi or that it was not levied in the public interest. On the relevant material as stated above. I am satisfied that the octroi is reasonable and is levied in the public interest.

(17) Reliance was placed upon the decision in Khyerbari Tea Co. Ltd, v. State of Assam : [1964]5SCR975 , in support of the contention that the onus lay upon the respondent to prove the reasonableness of the tax. Gajendragadkar, J. (As he then was) speaking for the majority observed that the question in regard to onus is concluded in view of the decision in Saghir Ahmad v. State of U. P. : [1955]1SCR707 . Their Lordships however agreed with the contention that the President's consent to Article 304(b) would show the reasonableness of the tax. At page 940 of the report, it is observed:-

'Similarly, the fact that the President has given previous sanction to the introduction of the Bill may conceivably be relevant, because the Constitution seems to contemplate that the sanction of the President would indicate that the Central Government had applied its mind to the problem and had come to the conclusion that the proposed tax is reasonable and in the public interest. But we must hasten to add that the significance of this consideration cannot also be exaggerated.'

In regard to the argument that it is in the public interest, it was expressly held that, since the tax was realised for the purpose of public revenue, it was reasonable. That decision, therefore, in my view, does not go contrary to what I have stated earlier.

(18) The next question, which survives for consideration is whether the groundnut oil is 'food' within the meaning of the Hyderabad District Municipalities Act, 1956. It is true that the term 'food' is defined in the earlier enacted Corporation Act i.e., the Hyderabad Municipal Corporation Act; but it is not so defined in the later Act i.e., the Hyderabd District Municipalities Act with which I am now concerned. It cannot be however in doubt that the words of a statute, when there is doubt about their meaning, are to be understood in the sense in which they best harmonies with the subject of the enactment and the object which the Legislature has in view. Now, the subject of the relevant provision is levy of octroi and the object which the Legislature had in view is to make the revenue available to the Municipalities through the source of octroi, Octroi was the subject of legislation not only in the District Municipalities Act, but also of two other Acts enacted by the Hyderabad State Legislative Assembly in the same year, one being the Hyderabad Municipal Corporation Act and the other Village Panchayats Act.

(19) The rule that, when a statute is found to be ambiguous in respect of some provision, the intention of the Legislature can be gathered from statutes relating to the same subject-matter, statutes in part materia, is firmly settled. This principle is based upon an assumption that, whenever the Legislature enacts a provision, it has in mind the previous statute relating to the same subject-matter. In the absence of any express departure from the meaning given to an expression in an earlier enactment, it is presumed that the new provision is enacted in accord with the legislative policy embodied in the prior statute and that is why the enactments on the same subject-matter are permitted under this principle to be construed together.

(20) The rule in regard to construction of the statutes, which are in pari materia need not be confused with other allied rules of construction. In considering what light one statute may throw upon the meaning of another stature, there are three different modes to ascertain what assistance can be derived; firstly, from the statutes, which are in pari materia with the statute under consideration; secondly, from the statutes not precisely in pari materia, but which have similar scope on similar subject or which in some way relate to or affect the same subject-matter and thirdly, from subsequent statutes, which are called 'parliamentary expositions' of prior statutes. It is obvious that we are concerned with the first principle. What do we mean by the statutes in pari materia? Where Acts are so related as to form a system or code of legislation and when they relate to same persons or things or to the same class of persons or things or have the same purpose or object, the statutes are called in pari materia. They may be independent and amendatory in form they may be complete enactments dealing with a single limited subject-matter or sections of a code or provision or they may be combination of these. It must be remembered that in order to be in pari materia, the Acts need not have been enacted simultaneously or that they should refer to one another. However, application of the rule that statutes in pari materia should be construed together is most justified in the case of provisions of the Acts relating to the same subject-matter, that were passed at the same or successive sessions of the legislature in the same year. In such cases, the probability that Acts relating to the same subject-matter were actuated by the same policy is very high for the Acts were enacted by the same men at almost the same time. This, of course, is subject to one over-riding consideration that, unless the two enactments clearly indicate two different considerations although they may relate to the same subject.

(21) The word ''par' must not be confounded with the word 'similar'. It is used in fact in opposition to it, intimating not like nests merely, but identity. It would however be a mistake to expect identity in the language of the Acts. The principle obviously relates to the identity in regard to the person or thing or class of persons or things: in other words, the subject-matter of the statute called in pair mature. If the language of the two statues in all respects is identical, no question of construing one Act with the assistance of the other Act is ambiguous or some provision appears to be of doubtful meaning that the assistance is sought from another statute in pair mature to remove the doubt or ambiguity. It is only in such circumstances that assistance in ascertaining the meaning of an enactment is permitted under this rule to be obtained by comparing its language with the words given in an earlier statute relating to the same subject.

(22) It is profitable to quote a passage from Cries on Statute Law, 6th Edition page 134:

'As Knigh-Bruce L.J. said in Ex. P. Copeland, upon a question of construction arising 'upon a subsequent statute on the same branch of the law it is perfectly legitimate to use the former Act, though repealed.' For this, continued he `have the authority of Lord Mansfield who in R. V. Loxdale, thus lays down the rule where there are different statues in pari materia, though made at different times, or even expired and not referring to each other, they shall be taken and construed together as one system and as explanatory of each other'.

To the same effect is a passage in Maxwell on Interpretation of Statutes, at page 34:

'Not only may the later Act be construed by the light of the earlier, but it sometimes furnishes a legislative interpretation of the earlier if it is in pari materia and if (but only if) the provisions of the earlier Act are ambiguous.'

I do not think the decision in Ranga Rao v. Srinivasa Swamy, 1962-1 Andh LT 356 is in any manner contrary to principle enunciated above. In fact, at p. 360 of the judgment. Their lordships observed that the principle is incontrovertible. That principle was considered to be inapplicable to the facts of that case. That does not however mean that the principle was not accepted as correct by the Bench of this Court.

(23) That being the principle of interpretation of statutes in pari materia, as I comprehend it, there will be no difficulty in giving the same meaning to the expression `food' appearing in the Hyderabad District Municipalities Act as is given to it in the earlier Act i.e., the Hyderabad District Municipalities Act as is given that the result of Corporation Act. It is true that the result of such construction is to import the meaning bad Municipal Corporation Act. But that is permissible under the principle discussed above. It does not amount to usurping the legislative function by the Court. I am fortified in this respect by the following passage from Craies on Statute Law 6th Edition, page 141:

'Presumption from use of same language in later Act: It has been held that, where the legislature has given to words a statutory definition in one statute, and has used the same words in a similar connection in a later statute dealing with the same subject-matter, it may be presumed, in the absence of any context indicating a contrary intention, that the same meaning attaches to the words in the later as is given to them in the earlier statute'.

It is a rule of interpretation of a statute that it is permissible to call in aid for the construction of words or phrases used in one Act and meanings given to them in an earlier Act in pari materia. It is not denied nor can it be doubted that the provisions relating to octroi appearing in Hyderabad Municipal Corporations Act are substantially similar in the Hyderabad District Municipalities Act Not only that the relevant schedules in regard to octroi appearing in Hyderabad Municipal Corporations Act are substantially similar in the Hyderabad District Municipalities Act Not only that the relevant schedules in regard to octroi of the two Acts are similar, but they are almost identical. No provision of the Hyderabad District Municipalities Act was pointed out, which indicates that there was some departure from the earlier Act in so far as the definition of the word `food' is concerned. It will thus be seen that all the provisions including the schedule relating to the octroi are almost identical in the two Acts mentioned above and that the two acts were passed in the same year by the same Legislative Assembly, and the later Act does not show any intention contrary to the earlier enactment in this respect. In these circumstances, there can be no difficulty in trying to understand the meaning of the word `food' in the same manner in which it was defined in the earlier Act i.e., the Hyderabad Municipal Corporations Act. So, I must treat the word 'food' in the same way as is defined in the Hyderabad Municipal Corporations Act.

(24) It must be remembered that, as a part of its legislative function, a Legislature may enact law and define its meaning. Where the Legislature defines the meaning of the words used, it expresses most authoritatively its intent and its definition and construction is binding on the Court. Such internal legislative construction is of the highest value and must necessarily prevail over any other extrinsic aids to construction. In so far as the Hyderabad Municipal Corporation Act is concerned, the word `food' is defined in the following way in section 2(20)

'Food' includes every article other than drugs and water used by human beings for purposes of eating or drinking, any material or substance used or admixed in the composition, preparation, favouring or colouring of such article and all confectionery, spices and condiments.'

This definition makes it clear that all other materials which go to make the food eatable are also included in the definition of `food'. In other words, the definition of `food' includes not only the articles, which can be directly eaten but also those which are used or mixed in the preparation of such article for the purpose of eating. The same meaning therefore, will have to be given to the term `food' in the District Municipalities Act although there is no such definition appearing in the Act. The term used in the District Municipalities Act has also a wider connotation and must necessarily include not only the articles, which can be directly consumed, but also those which go in appearing the articles for the purpose of eating. Although the District Municipalities Act does not define the term also is of wider connotation. It is not, therefore, correct to argue that the term has been used in a restrictive or in the narrower manner. I am not impressed by the argument that the term `food' used in the District Municipalities Act should be confined only to those articles, which can directly be eaten by the human being. Anything, which goes to nourish the tissues of a human-being is considered to be food. If that dictionary meaning is correct, then I do not find any reason as to why the groundnut oil should not be included in the term `food' It is not directly eatable, but is frequently used in preparing the food. Therefore, the groundnut oil is food within the meaning of the District Municipalities Act and is taxable to octroi. The learned District Judge therefore, in my view, was wrong in deciding that the groundnut oil is not food within the meaning of the Act.

(25) In this view of the matter, the revision petition will have to be dismissed and W.P. No. 107/64 will have to be allowed with costs. Advocates fee Rs. 100. In regard to W.P. No. 10/64 in the view which I have taken, it will have to be considered whether the different items, which the learned District Judge considered not to be food within the meaning of the Act, fall within the term in view of above. The learned District Judge, keeping in view the judgment of this Court will consider whether the other items of the schedule question before him in the appeal come within the meaning of the `food' as laid down above. This Writ Petition is therefore partly allowed. There will be no order as to costs.

(26) In regard to W.P. No. 163/65, it merely challenged the validity of the octroi and does not question any specific article as not falling within the definition of `food'. It is true that a copy of the schedule is attached to the petition. A stray sentence appears in paragraph 4 of the affidavit in reference to other 20 items. But the affidavit read as a whole does not challenge any particular item of the schedule as not included within the definition of `food'. What was challenged was the levy of Octroi itself and since I have held that it is not ultra vires, this writ petition must be dismissed and it is accordingly dismissed. No costs. Advocate's fee Rs. 100.

(27) Orders accordingly.


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