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Gauri Shanker Vs. Municipal Board, Jhunjhunu and anr. - Court Judgment

LegalCrystal Citation
SubjectOther Taxes;Constitution
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 142 of 1955
Judge
Reported inAIR1958Raj192
ActsRajasthan Town Municipalities Act, 1951 - Sections 44, 46, 59, 60, 62 and 99; Constitution of India - Articles 245, 255, 301 and 304
AppellantGauri Shanker
RespondentMunicipal Board, Jhunjhunu and anr.
Appellant Advocate J.P. Jain, Adv.
Respondent Advocate G.C. Kasliwal, Adv. General and; C.B. Bhargava, Dy. Govt. Adv.
DispositionPetition allowed
Cases ReferredChunnihil v. The Municipal Board
Excerpt:
- - it has been asserted that the levy and collection of octroi duty is perfectly legal and the notification published in the rajasthan gazette dated 6th june, 1953 is quite legal and operative. it has been admitted that no restrictions to freedom of trade, commerce and intercourse have been made by any legislation of the state it has been asserted that section 59 of the act is perfectly valid. the selection has been left to the chosen representatives of the inhabitants of the municipality who could be the best persons to determine as to duty on what animals or goods or both would bring sufficient amount for the discharging of the functions of the board and might not at the same time be oppressive to the inhabitants of the area. it is true that the legislature could, if it had so.....k.k. sharma, j.1. this is a petition by gaurishanker under article 226 of the constitution of india against the municipal board of jhunjhunu (hereinafter called the board) and the state of rajasthan.2. it has been stated in the petition that the petitioner is residing within the municipal limits of the town of jhunjhunu. he is a citizen of india and does his business in jhunjhunu under the name and style of messrs. chhanguram basantlat. he imports goods of general merchandise such as tea, biscuits, soap, oil and cigarettes etc., from outside and sells them in retail and mostly in wholesale to the merchants of jhunjhunu and of neighbouring villages. the board levied octroi duty on every import of goods within the municipal limits and has been collecting the said duty from 1st july, 1953......
Judgment:

K.K. Sharma, J.

1. This is a petition by Gaurishanker under Article 226 of the Constitution of India against the Municipal Board of Jhunjhunu (hereinafter called the Board) and the State of Rajasthan.

2. It has been stated in the petition that the petitioner is residing within the municipal limits of the town of Jhunjhunu. He is a citizen of India and does his business in Jhunjhunu under the name and style of Messrs. Chhanguram Basantlat. He imports goods of general merchandise such as tea, biscuits, soap, oil and cigarettes etc., from outside and sells them in retail and mostly in wholesale to the merchants of Jhunjhunu and of neighbouring villages. The Board levied octroi duty on every import of goods within the municipal limits and has been collecting the said duty from 1st July, 1953. The petitioner along with several other citizens of the town took objections before the Board and the Collector of the District on several occasions against the said levy of octroi duty and its collection, but all of them were disregarded and the Board continued to levy and collect octroi duty.

3. The petitioner assails the levying of the octroi duty by the Board on the following grounds:

1. The action of the Board in levying octroi duty contravenes the provisions of Article 301 regarding the freedom of trade, commerce and intercourse throughout the territory of India subject, of course, to certain restrictions to be imposed under Part XIII of the Constitution.

2. The State of Rajasthan has not imposed any restriction on the freedom of trade and intercourse as envisaged under Article 301 of the Constitution. The power to impose any tax or duty could not be delegated by the State to any town municipality and consequently Section 59 of the Rajasthan Town Municipalities Act, 1951 (hereinafter called the Act) which purports to confer power on the Municipal Board to impose tax or duty is ultra vires the Legislature.

3. Under Section 59 (4) of the Act, octroi duty could be imposed only on goods brought within the octroi limits for consumption and use and not for sale. The imposition of octroi duty under the notification published in the Rajasthan Gazette dated 6th June, 1953 part II at page 263 by which the Municipal Board purports to impose octroi duty from 1st July 1953 is ultra vires, illegal and without jurisdiction:

4. The mandatory procedure prescribed for the subordinate legislation under the Act has not been followed as

(a) the resolution within the meaning of Section 60 (a) was not passed and the rules for the purposes of Clause (h) of Section 44 were not made;

(b) the Board did not publish the draft rules at all in prescribed form within the meaning of Section 60 (b) and as such no opportunity was given to the general public for taking objections against the proposed rules;

(c) on account of the omission to prepare the rules under Section 44 (b) the provisions of Section 60 (c) have been disregarded;

(d) the Board has made certain bye-laws for the purpose of Clause (k) of Sub-section (1) of Section 46 of the Act which are supposed to be under Section 81 of the Act. These bye-laws were not published within the meaning of Section 48 (2) of the Act;

(e) the bye-laws after they were sanctioned were not published and the mere factum of sanction was notified in the Rajasthan Gazette dated 6th June 1953.

5. The Board cannot legally and validly impose levy and recover octroi duty under the authority of the said bye-laws.

6. The aforesaid bye-laws are not rules and cannot be treated to have been made as such. In any event they were not published under Sections 60 (b) and 62 of the Act. They were never resolved by the Board as rules nor were they sanctioned by the Government as such, and

7. The imposition of the octroi duty could not have been legally enforced from 1st July 1953, the date being less than one month from the date of the publication of the notification.

4. It has been prayed that it be declared that the octroi duty imposed by the Board is illegal and without authority and that by a writ of mandamus or prohibition or any other appropriate order or direction, the Board be directed not to collect any octroi duty and it be directed to refund the amount of Rs. 1337 collected from the petitioner without the authority of law and any other appropriate order or direction that may be deemed fit under the circumstances of the case be issued.

5. Two separete replies have been filed, one on benalf of the State ot Rajasthan respondent No. 2 and the other on behalf of the Board respondent No. 1. They are both alike.

6. It has been denied that the petitioner made any objections before the Board. It has been asserted that the levy and collection of octroi duty is perfectly legal and the notification published in the Rajasthan Gazette dated 6th June, 1953 is quite legal and operative. It has been admitted that no restrictions to freedom of trade, commerce and intercourse have been made by any legislation of the State It has been asserted that Section 59 of the Act is perfectly valid. The Act fully lays down the policy principles and procedure to be followed for imposing tax and such a delegation of power is legal. It has been asserted that delegated legislation for the imposition of tax is permissible and that the Board has not exceeded its powers in imposing octroi duty. It has been stated that in the general meeting held on the 29th December 1952, of the Board, a resolution for imposing octroi duty was passed and draft rules and bye-laws were drafted in a meeting as reauired by Section 60 (a) of the Act. It has been averred That 29th rules and bye-laws prepared in the meeting of 29th December 1952, were published with the notice in the form prescribed in the 3rd Schedule to the Act and copies of these rules and bye-laws were placed in the office of the Board and the public library Jhunjhunu for inspection by the public as required by Section 60 (b) of the Act. It has not been admitted that provisions of Section 60 (c) had been disregarded. It has been stated that objections were received under Section 60 (c) of the Act regarding the proposed rules and bye-laws and they were considerd by the Board at its general meeting held on 19th February 1953 and thereafter the Board with its opinion submitted the Rules and bye-laws and the modification proposed together with the notice as required by Section 60 (c) of the Act to the Government. It has been stated that the Board made rules and bye-laws for the purpose of Clause (k) of Sub-section 1 of Section 46 and Section 44 (h) of the Act and the Rules and bye-laws prepared relate to both the matters described in Sections 44 (h) and Section 46 (1) (k) of the Act and the procedure laid down in Sections 60 (a), (b) & (c) and 61 and 62 of the Act has throughout been followed by the Board. It has finally been stated that the rules and bye-laws sanctioned by the Govern ment along with the notice reciting the sanction and the date and serial number thereof and the taxes as prescribed by the rules and bye-laws were published on the notice board outside the office of the Board on 29th May, 1953 specifying in the notice the date of 1st July, 1953 to be the date of imposition of the tax. It has been stated that the imposition of octroi duty is under the authority of law and is quite valid and is not hit by Article 301 of the Constitution and at any rate the Act is valid under Article 304(b) of the Constitution.

7. We have heard Shri J. P. Jain on behalf of the petitioner and Shri G. C. Kasliwal, Advocate General and Shri C. B. Bhargava Dy. Govt. Advocate on behalf of the Board and the State of Rajasthan.

8. Mr. Jain has attacked the levying of the octroi duty on the following grounds:--

(1) The imposition of octroi duty having the effect of interfering with the trade, commerce and intercourse throughout the territory of India should have been made by the Legislature of the State itself and a bill for the purpose of imposing such duty ought to have been introduced or moved in the Legislature of the State with the previous sanction of the President, but it was not done.

(2) The Legislature of the State ought not to have delegated the power of imposition of the octroi duty to the Board and consequently Section 59 of the Act, which gives such power to the Board is ultra vires the Legislature.

(3) Under Section 59 of the Act power has been given to Board to impose octroi duty on animals or goods or both brought within octroi limit for consumption or use therein and not for sale. The octroi duty on goods brought for sale is therefore not authorised by the provisions of Section 59 (b) (iv) of the Act.

(4) No rules as required by Clause (h) of Section 44 of the Act were made, nor were any such rules published along with the notice as required by Section 60 (b) of the Act.

(5) No publication was made of the rules with the notice as required by Section 62 of the Act, and

(6) Bye-laws were not made in accordance with Section 46 of the Act. We shall deal with these points seriatim.

9. Point No. 1. The imposition of octroi duty having the effect of interfering with the trade, commerce and intercourse throughout the territory of India should have been made by the Legislature of the State itself and a bill for the purpose of imposing such, duty ought to have been introduced or moved in the Legislature of the State with the previous sanction of the President, but it was not done.

10. On this point it was argued by Shri Jain that under Article 301 of the Constitution subject to the other provisions of Part XIII, trade, commerce and intercourse throughout the territory of India shall be free. It was argued that under Article 302 restrictions could be imposed by Parliament on the freedom of trade, commence or intercourse between one State and another or within any part of the territory of India, as may be required in the public interest. Parliament had not made any law imposing such restrictions as authorised by Article 302. Under Article 304 reasonable restrictions could be imposed on the freedom of trade, commerce or intercourse with or within a State as might be required in the public interest provided that a bill for amendment for the purpose of imposing such restriction shall be introduced or moved in the Legislature of a State with the previous sanction of the President. In the present case neither such a bill nor amendment was introduced or moved in the Legislature of the State nor was any previous sanction of the President for the enactment of Section 59 which authorised octroi duty obtained.

11. On behalf of the State it was argued by the learned Advocate General that the Act of which Section 59 is a part, received the assent of the President and therefore under Article 255 neither the Act nor Section 59 could be held to be invalid by reason only that previous sanction of the President as required by the proviso to Article 304 was not obtained.

12. We have considered the arguments of both the learned counsel. It has been held by a Division Bench of this Court in the case oi 'Surajmal Baj v. The State of Rajasthan,' ILR (1954) 4 Raj 317 : (AIR 1954 Raj 260) (A), that levying of octroi duty on entry of goods inside municipal limits would certainly restrict freedom of trade inasmuch as there will be impediment to the movement of goods into municipal limits unless the duty was paid and such duty, therefore, would amount to restriction on the freedom of trade granted under Article 301, of the Constitution. Thus, there has been restriction on the freedom of trade by the imposition of octroi duty in question. Any law, therefore, which authorised the imposition of octroi duty could be enacted after a bill for that purpose had been introduced or moved in the Legislature of the State with the previous sanction of the President as required by the proviso to Article 304. It is to be noted, however, that in this case the Act of which Section 59 is a part received the assent of the President on 16th August, 1951. Section 59 authorises the levying of certain taxes by a Municipal Board after observing certain preliminary procedure and with the sanction of the Government. Among the taxes is the octroi on animals or goods or both brought within the octroi limits for consumption or use therein. This Act was submitted to the President for his assent and the said assent was given on 18th August, 1951. By Article 255 of the Constitution, no Act of Parliament or of the Legislature of a State specified in Part A or B of the First Schedule and no provision in any such Act shall be invalid by reason only that some recommendation or previous sanction required by the Constitution was not given, if assent to that Act was given (a) where the recommendation required was that of the Governor either by the Governor or by the President (b) where the recommendation required was that of the Rajpramukh either by the Rafpra-mukh or by the President (c) where the recommendation or previous sanction required was that ol the President, by the President. Now Section 59 (b) (iv) which authorises an octroi on animals or goods or both brought within the octroi limits for consumption or use therein required the previous sanction of the President. Although it was not obtained, yet the Act as a whole received the assent of the President before it came into force. Section 59 (b) (iv) cannot, therefore, be held to be invalid after the assent of the President on the ground that previous sanction was not obtained. The point raised by the learned counsel for the petitioner has therefore no force and mast be rejected.

13. Point No. 2.--The legislature of the State ought not to have delegated the power of imposition of the octroi duty to the Board and consequently Section 59 of the Act, which gives such power to the Board, is ultra vires the Legislature.

14. On this point it was argued by Shri Jain that the Constitution gives the power of imposing taxes on the entry of goods into the local area for consumption, use or sale therein to the State Legislature under Schedule seventh, List II, Entry 52. Therefore, the State Legislature ought to have imposed the octroi duty itself and ought not to have left it to the Board. It was argued that although the Legislature has got power to delegate the authority of making rules or regulations lor the purpose of carrying into effect the provisions of an Act, it has got no power to delegate to a subordinate authority the power of enacting the law itself. Reliance was placed upon certain observations of their Lordships of the Supreme Court in 'In re, Article 143, Constitution of India, and Delhi Laws Act (1912), etc., AIR 1951 S C 332 (B). It was argued that although the seven learned Judges composing the Bench gave separate judgments, yet according to the majority, the Legislature empowered to legislate on certain subjects could not delegate the power of legislation on those subjects to a subordinate authority. It is further argued on the basis of the judgment of their Lordships of the Supreme Court in Harishankar Bagla v. The State of Madhya Pradesh, AIR 1954 S C 465 (C) that the Legislature cannot delegate its function of laying down legislative policy in respect of a measure and its formulation as a rule of conduct, and that it must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law. It is argued that in the present case the Legislature has not declared the policy of the law and has not provided a standard to guide the Board or the Government to execute the law. It has left it to the sweet will of the Board and the Government as to on what goods or animal octroi duty could be imposed and what should be the rate of octroi duty. It is argued that the Legislature, as it were has abdicated or effaced itself by conferring the powers of imposing the octroi duty on the Board. It is argued that it is only the Government whose sanction to the imposition of a tax under Section 59 of the Act is necessary and the Legislature does not come into the picture at all, right from the moment the resolution for the imposition of the tax is passed till the tax is actually levied. The Legislature has therefore no control at any stage on the levying of a tax by a Municipal Board.

15. It has been argued by the learned counsel for the respondents that in the matter of levying a tax on the entry of the goods into a local area for consumption, use or sale therein under Entry 52 of List II of Schedule 7 of the Constitution the State Legislature was supreme, subject to the sanction of the President as required by Article 304. The State Legislature could validly delegate this power to this Municipal Board. Reliance was placed for this contention on the observations of some of their Lordships of the Surpreme Court in AIR 1951 S C 332 (B) referred to above and also on certain observations of their Lordships of the Privy Council in some of the cases referred to in the aforesaid ruling. It is further argued that in the present case the Legislature has laid down a policy that for the purposes of the Act, inter alia, an octroi duty on animals or goods or both brought within the octroi limits for consumption or use therein may be imposed after observing certain preliminary procedure provided by Section 60 of the Act and with the sanction of the Government. The Legislature has given out its policy that the octroi duty shall be imposed on animals or goods or both brought within the octroi limits for consumption or use therein. Only it has been left to the Board to decide as to what animals or goods or both brought within the octroi limits of the Municipality for consumption or use therein were suitable for the levying of the tax, and further it has been left to the Board to decide, considering the circumstances of the inhabitants of the Municipality, as to what would be the suitable rate of tax. It is argued that the Board was not given unrestrained powers in the matter and that the taxes could be levied only with the sanction of the Government and subject to such modifications or conditions as the Government deemed necessary under Section 61 of the Act and the tax could be levied only after observing certain preliminary procedure given in Section 60. Sufficient check has, therefore, been imposed upon the Board in the matter of levying of tax. It is argued that the Legislature has not altogether abdicated or effaced itself and it is quite up to it to amend the law and withdraw the powers which it has given to the Board under Section 59 if it is found that the power delegated to it is in this respect being abused or not properly exercised.

16. We have considered the arguments of the learned counsel in this respect. Mr. Jain on behalf of the petitioner has himself not argued that the State Legislature has absolutely no power of delegation to any of the subordinate authorities. Such an argument even if made would have been untenable.

17. The objection to the delegation of powers by the Legislature is based on two grounds :

(1) Separation of powers between the three principal departments of a State, viz., Legislative, Executive and Judiciary, and

(2) The maxim 'Delegata potestas non-potest delegari' (Delegation cannot be made by a delegate).

18. Even in the land of separation of powers, the United States of America and in the Commonwealth of Australia where the Constitution follows the American pattern and vests the three powers, viz., Executive, Legislative and Judicial separately in the three principal organs of the State, delegation by Legislature has been upheld, and the controversy is only about the extent the power may be delegated. In none of the countries governed by the British system has the maxim 'delegata potestas non-potest delegari' been relied upon for invalidating delegation by the Legislature to the executive or a subordinate authority. This will appear from a number of cases referred to in the judgment of their Lordships of the Supreme Court in Re Article 143, Constitution of India (B), referred to above. In that case seven learned Judges constituted the Bench and each of them delivered a separate judgment and there was difference of opinion with regard to the extent the legislature could delegate powers to the executive or subordinate authority, but none of their Lordships was of the view that delegation could not be made at all.

19. As regards the permissible extent, the essence of the majority opinion in the above mentioned case AIR 1951 S C 332 (B) has been given by their Lordships of the Supreme Court in their judgment in the case of Harishanker Bagla v. The State of Madhya Pradesh (C), referred to above. The Bench consisted of five learned Judges including Mahajan C. J., and the judgment of the Court was delivered by the learned Chief Justice. In that case the validity of Cotton Textiles (Control of Movement) Order (1948) came to be examined. This order was issued under the Essential Supplies (Temporary Powers) Act, 1946. It was contended that Sections 3, 4 and 6 were ultra vires the Parliament. The said three sections were as follows :

'Section 3 (1) The Central Government, so far as it appears to it to be necessary, or expedient for maintaining or increasing supplies of any essential commodity, or for securing their equitable distribution and availability at fair prices, may by order provide for regulating or prohibiting the production supply and distribution thereof and trade and commerce therein.....

(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide :

(a) for regulating by licences, permits or otherwise the production or manufacture of any essential commodity.....

(b) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity.....

Section 4. The Central Government may by notified order direct that the power to make orders under Section 3 shall, in relation to 'such matters' and subject to such conditions, if any, as may be specified in the direction, be exercisable also by :

(a) such officer or authority subordinate to the Central Government, or

(b) such State Government or such officer or authority subordinate to a State Government as may be specified in the direction.

Section 6: Any order made under Section 3 shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act.'

20. The attention of the learned Judges was drawn to the decision in the case Re Article 143, Constitution of India, etc., (B) referred to above, and it was observed :

'It was settled by the majority judgment in AIR 1951 S C 332 (B) that essential powers of legislation cannot be delegated. In other words, the Legislature cannot delegate its function of laying down legislative policy in respect of a measure and its formulation as a rule of conduct' .....

(p. 466, para. 8)

'In the present case the Legislature has laid down such a principle and that principle is the maintenance or increase in supply of essential commodities and of securing equitable distribution and availability at fair prices. The principle is clear and offers sufficient guidance to the Central Government in exercising its powers under Section 3. Delegation of the kind mentioned in Section 3 was upheld before the Constitution in a number of decisions of their Lordships of the Privy Council, vide, Russell v. Reg., (1882) 7 A C 829 (D); Hodge v. Reg., (1884) 9 A C 117 (E) and Shannon v. Lower Mainland Dairy Products Board, 1938 A C 708 : (AIR 1938 P C 36) (F) and since the coming into force of the Constitution delegation of this character has been upheld in a number of decisions of this court on principles enunciated by the majority in AIR 1951 S C 332 (B). As already pointed out, the preamble and the body of the sections sufficiently formulate the legislative policy and the ambit and character of the Act is such that the details of that policy can only be worked out by delegating them to a subordinate authority within the framework of that policy.' (Ibid.)

21. This last mentioned case now sets all doubts at rest regarding delegation of powers to subordinate authorities so far as India is concerned. The principle has been laid down that the Legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law. It further lays down that the essential legislative function consists in the determination or choice of the legislative policy and of formally enacting that policy into a binding rule of conduct.

22. Let us apply this test to the present case. Here under Section 59 of the Act, the State Legislature has laid down the policy that certain taxes may be imposed by the Board for the purposes of the Act. Among the taxes has been mentioned octroi tax on animals or goods or both brought within the octroi limits of consumption or use therein. The Legislature has therefore laid down a rule that the tax shall be imposed only for the purposes of the Act and that the octroi tax shall be imposed on the goods or animals or both brought within the octroi limits for consumption or use therein. Thus, it is not left to the Board to impose octroi duty on animals or goods or both brought within the octroi limits for purposes other than consumption or use therein. The policy has also been laid down that the taxes imposed shall be only for the purposes of the Act. The duties of the Board have been laid down in Sections 53 and 54 of the Act. In Section 56 secondary powers of expenditure of the Board have been laid down. Thus, the Legislature has itself laid down another policy that the taxes imposed shall be only for the purposes which the Board is empowered to carry out under the Act. In fixing the rate of taxes the Board has therefore to determine as to how much amount is required for carrying out its duties. It has not been left uncontrolled to impose any of the taxes mentioned in Section 59 for any other purpose, e. g., to enrich the Board or to spend municipal fund on any other purpose not warranted by the provisions of the Act. Another restraint has been put upon the Board to impose a tax and it is that it will have to impose a tax only after observing the preliminary procedure required by Section 60 of the Act and an elaborate procedure has been provided in Section 60 and provision has been made for due publication of the rules prescribing tax and it has been specified what must those rules contain. Provision has also been made for objection by any inhabitant of the municipality and for considering those objections and for submission of such objections with the opinion of the Board thereon and any modifications proposed in accordance therewith together with notice and rules required by Section 60. After the resolution has been passed, the law requires that the Board shall publish the rules so prepared with a notice in a particular form. After this the Government has been authorised to refuse to sanction the rules submitted or return them to the Board for further consideration or to sanction the said rules either without modifications or subject to such modifications not involving an increase of the amount to be imposed or to such conditions as to the application within the municipality to any purpose or purposes of this Act specified in such conditions of the whole or any part of the proceeds of such tax as it deems fit. Then a provision has been made for the publication of sanctioned rules with notice under Section 62 of the Act. Thus, the Legislature has discharged its essential legislative functions in the determination of the legislative policy and formally enacting that policy into a binding rule of conduct.

23. It was contended that the animals or goods on which the Board could impose octroi duty have not been specified in Section 59 and it has been given an unlimited latitude in that respect. It is true that the selection of goods and animals on which the duty could be imposed has been left to the Board, but that has been done because it was impracticable for the Legislature to determine as to in what particular municipality taxes on what particular goods or animals could be suitably imposed. The selection has been left to the chosen representatives of the inhabitants of the municipality who could be the best persons to determine as to duty on what animals or goods or both would bring sufficient amount for the discharging of the functions of the Board and might not at the same time be oppressive to the inhabitants of the area. It is also true that the rate or its limits have not been given, but that again is a matter of detail, as in one municipality inhabitants may be poor and a low rate might have to be imposed whereas in other municipality they may be rich and a higher rate might conveniently be imposed. It might be argued that the Legislature ought to have at least given the upper limit of the rate of the tax. It is true that the Legislature could, if it had so liked, fix at least an upper rate; but the mere fact that it has not been done does not make the enactment invalid. After all, the question of reasonableness is for the courts to determine and even if the Legislature had fixed an upper limit and at that rate tax might have been imposed, the question could be brought before courts whether that rate was reasonable. Even in the absence of the fixation of the maximum rate by the Legislature, such a question can be brought before courts if the rate fixed by a particular Board is such as imposes unreasonable restrictions on the freedom of trade, commerce and inter course. If therefore the maximum rate has not been fixed by the Legislature, merely on this account Section 59 cannot be struck down. In Harishanker Bagla's case (C) referred to above the onl^.guidance was that the Essential Supplies (Temporary Powers) Act, 1946, defined what were essential commodities and a principle had been laid down that the object of the Act was the maintenance or increase in the supply of essential commodities and of securing equitable distribution and availability at fair prices. It was held that this principle was clear and offered sufficient guidance to the Central Government in exercising its power under Section 3. It was held that Section 4, which empowered the Central Government to delegate its own power to make orders under Section 3 to any officer or authority subordinate to it or the Provincial Government was also valid and that Section 6 which provided that any order made under Section 3 would have effect notwithstanding anything inconsistent therewith contained in any enactment other than that 'Act or any instrument having effect by virtue of any enactment other than that Act was also valid. It would appear that the powers given to the Central Government were very wide in fact much wider than the powers given to the Board under the Act and it was under those powers that the Cotton Textiles (Control of Movement) Order, 1948, was issued, Clauses 3 and 4 of which were specifically impugned in that case. Section 3 of the order was that no person shall transport or cause to be transported by rail, road, air, sea or inland navigation any cloth, yarn or apparel except under and in accordance with :

(i) a general permit notified in the Gazette of India by the Textile Commissioner or

(ii) a special transport permit issued by the Textile Commissioner.

These provisions were wide indeed and were made under the powers given under Section 3, yet to their Lordships the impugned provisions of the Act under consideration were not ultra vires the legislature because the particular measure was enacted for the purpose of maintenance and increase in the supply of essential goods and for their equitable distribution. It has been argued that the Legislature after enacting the sections relating to the imposition of the tax had no further control in the matter and therefore the delegation was excessive. It may be noted that under the Constitution of India the Government is responsible to the Legislature. It is only the people having the confidence of the majority in the Legislature who could form the Government. The Act has provided that the tax would be imposed only after the sanction of the Government and with such modifications etc. as are sanctioned by the Government. If the Government were to agree to the imposition of a tax which is excessive or extortionate or otherwise unduly irksome to the inhabitants of the municipality, the Legislature has the power to pull up the Government and the Government could not sanction any such tax or any such rate thereof which might not be acceptable to the Legislature. The Legislature had at any time power to withdraw the powers delegated to the Board and it cannot be said that the Legislature has altogether abdicated or effaced itself in making such provisions relating to tax as have been made in the Act. It was argued that a Dill which restricted the freedom of trade and commerce ought to have received the sanction of the President under Article 304. It is true that no specific measure has been enacted relating to the tax, but the provisions relating to taxation are incorporated in the Rajasthan Town Municipalities Act, and the whole of the Act has received the assent of the President. The President is presumed to have known before he gave his assent what were the provisions of the Act and that one of the provisions was that a tax could be imposed by the Board after following certain procedure on animals or goods or both brought within the Municipal limits for consumption or use therein. If the President thought that such a provision laid unreasonable restriction on the freedom of trade and commerce, he could very well have withheld his assent from that particular provision or from the whole of the Act and if he thought that it was necessary that animals and goods should be enumerated or classified or rate of tax should have been given in the Act itself, he could very well return the Bill for the consideration of the Legislature in the light of his suggestions. It was not done and assent was given. It is to be presumed that the President was satisfied that the taxes authorised by Section 59 including the octroi tax did not impose an unreasonable restriction on the freedom of trade, commerce or intercourse within the State of Rajasthan as might be required in the public interest.

24. We are of the view that Section 59 of the Act, which authorises such a tax, cannot be struck down as conferring excessive delegation on the Board or the Government.

25. Point No. 3--Under Section 59 of the Act power has been given to the Board to impose octroi duty on animals or goods or both brought within the octroi limits for consumption or use therein and not for sale. The octroi duty on goods brought for sale is therefore not authorised by the provision of Section 59 (b) (iv) of the Act.

26. On this point it has been argued by Shri Jain that under Section 59 of the Act octroi tax only on animals or goods or both brought within the octroi limits for consumption or use therein has been authorised, but not on animals or goods brought for sale. Looking to the Rules Ex. 1 on the record framed by the Board, it would appear that it has not been specifically said therein that the octroi tax shall be paid on animals or goods brought within the municipal limits only for the purpose of use or consumption therein. But it would appear from Rule 31 that a refund would be allowed on the articles brought within the municipal limits if the very articles have been taken out of the limits within one month from the date of their import. It has been argued by Shri Jain that the limit of one month shows that the Board intended to tax even those articles which would not be consumed or used within its limits but would be sent out more than a month after their import. We have anxiously considered this argument of Shri Jain. It cannot be detected when the animals or goods are brought within the municipal limits as to whether they had been brought only for use and consumption within the limits of the municipality or for being sent out. Tax has therefore to be collected on the taxable articles as soon as they are brought within the municipal limits, unless the importer gives a declaration that the articles are not intended tor use or consumption within the limits of the municipality. Section 46 (k) envisages that in case the goods or animals are not intended for use or consumption within the municipal limits, the importer shall make a declaration at the time of their import that they are not intended to be used or consumed within the municipal limits and the Board has been authorised to frame a bye-law for the custody or storage of the animals or goods declared not to be intended for use or consumption within the limits of the municipality. The law has, therefore, contemplated that the importer would give a declaration at the time of the import of animals or goods that they are not intended for use or consumption within the municipal limits. If such declaration is given, no tax will be collected. If, however, no such declaration is given, it would be presumed that they are intended for use or consumption within the municipal limits. Even if such declaration is not made, Section 44 (h) authorises the Board to frame rules prescribing the system on which refunds are to be allowed or paid and Section 46 (k) authorises the Board to prescribe a period of limitation after which no claim for refund of octroi shall be entertained and the minimum amount for which any claim to refund may be made. Thus, Section 59 read with Sections 44 (h) and 46 (k) authorises the Board to collect octroi tax on all animals or goods brought within the municipal limits at the time of their import unless a declaration is made that they are not intended for use or consumption within the municipality. The law gives a further chance for the refund of the tax if the animals or goods brought within the municipal limits are exported within a period of limitation prescribed by bye-laws framed under Section 46 (k). Only when the animals or goods are not exported within the period of limitation prescribed by the bye-laws, the law presumes conclusively that they were brought within the municipal limits for consumption or use therein. Law requires a period to be fixed during which articles not brought for use or consumption within the municipal limits may be sent out to get a refund of octroi duty because if that were not done duty could have been evaded after using a dutiable article for howsoever a long time within the municipal limits and then sending it out of them. By the provisions of Sections 44 (h) and 48 (k) the importers of dutiable articles have been, as it were warned that if they do not make a declaration that the articles being imported are not intended or use or consumption within the municipality, it would be presumed that they have been brought in for use or consumption within it and if they do not export them within a period to be fixed by the Board under Section 46 (k), no refund would be allowed and it would be conclusively presumed that they were brought for use or consumption within the municipal limits.

27. Point No. 4.-- No rules as required by Clause (h) of Section 44 of the Act were made, nor were any such rules published along with the notice as required by Section 60 (b) of the Act.

28. It has been argued by Shri Jain that no rules as required by Clause (h) of the Section 44 of the Act were made nor were any such rules published along with the notice as required by Section 60 (b) of the Act. The only rules which are admitted to have been made and published by the Board are those contained in Ex. 1. They have been entitled as ^mifu;el^ which if literally translated means bye-laws. There is separate provision for rules and bye-laws in the Act. The Board is authorised to make rules by virtue of Section 44 and bye-laws are authorised by Section 46. Rules prescribing the taxes subject to the provisions of Chap. 7, to be levied in the municipality for municipal purposes, the circumstances in which exemption will be allowed, the conditions on which and the extent to which remissions may be granted and the system on which refunds are to be allowed and paid, in respect of such taxes, the fees to be charged for licences or permissions granted under Section 77 and the times at which and the mode in which the same shall be levied or recovered or shall be payable and prescribing the fees for notices demanding payments due on account of any tax and for the execution of warrants of distress and the rates to be charged for maintaining any live stock, distrained and designating the persons authorised to receive payments on any sum so leviable and the manner in which auction of movable property under Section 91 shall be held can be framed by the Board under Section 44 (h). Rules prescribing the conditions subject to which sums due on account of any tax or of costs in recovering any parts or any other account may be written off as irrecoverable and the conditions subject to which the whole or any part of any fee chargeable for distress may be remitted can be framed under Section 44 (i). Examining the contents of Ex. 1 entitled ^mifu;el^ (bye-laws), we find that the following items, though misnamed 'bye-laws' are in fact rules under Section 44 (h) of the Act :

1. Items 2 and 11 providing for class of property liable to tax and the rates of octroi.

2. Items 10 and 26 providing for exemption and circumstances in which the exemption from octroi duty would be allowed.

3. Item 9 relating to refund of excess duty charged due to wrong calculation or difference in weight.

4. Item 24 providing for refund of the sale price after deduction of octroi duty.

5. Items 31, 32, and 33 relating to refund of octroi and the system of refund.

Note : A part of item 31 comes within the bye-laws under Section 46 (k) of the Act also.

6. Items 3 to 7, 13 and 14 providing for the way, time and mode in which the octroi shall be levied, recovered or paid.

7. Item 34 (ii) relating to power of Distress, and 8. Item 38 dealing with designations of persons authorised to receive payments.

29. These rules along with the notice were published in accordance with Section 60 (b) of the Act. It was contended by Shri Jain that the publication was not sufficient as the rules along with the notice were kept in the office of the Board for inspection and in the local library at Jhunjhunu only. It cannot, therefore, be said that provisions regarding publication under Section 60 (b) had been complied with. It is true that it the rules along with the notice had been kept only in the office of the Board for inspection publication would not have been sufficient within the meaning of Section 60 (b). It was so held by a Division Bench of this Court in Malchand v. The State of Rajasthan, 1955 Raj L W 442 (G). In that case notice under Section 60 (b) was pasted on the notice Board of the Municipal Board and one notice was also displayed at some cross road, but the rules and bye-laws were not displayed either on the notice Board or at the cross road, but were kept in the office of the Municipal Board and it was notified that they would be available in the office of the municipality and the members of the public were entitled to see them any day between 10 a.m. and 4-30 p.m. It was held that the manner of publication adopted by the municipality was liable to be abused and was not publication at all and that the law contemplated that the notice and the rules and draft bye-laws should be published in such manner that any one who sees the notice can immediately see the rules and draft bye-laws also.

30. In the present case, as would appear from Ex. Section 2, the rules were kept not only in the municipal office for inspection between office hours, but they were also placed in the local public library for inspection. It has been held by another Division Bench of this Court in Jai Narain v. The State of Rajasthan, 1955 Raj L W 454 (H) that such publication was sufficient within the meaning of Section 60 (b). In that case also the rules and bye-laws had been kept in the office of the Municipal Board and the municipal tax out-posts and in the public reading room and they could be inspected during working hours of the office and of the library. Such publication was considered sufficient. In this case besides the rules being kept in the Municipal Board for inspection during office hours, they were kept in the public reading room also where they could be inspected during the working hours of the library. Although in the present case the rules were not kept at the Municipal tax out-post also as was done in Jai Narain's case (H) cited above, yet we think that the publication was sufficient because anybody who had a mind to inspect the rules could go to the public library to inspect them and it had been notified in the notices affixed in several bazars and at the Pyao that they could be inspected either at the office of the Municipal Board or in the public library. We do not think that the contention of the learned counsel for the petitioner in respect of the insufficiency of publication is sound.

31. Point No. 5. -- No publication was made of the rules with the notice as required by Section 62 of the Act.

32. On this point it has been argued by Shri Jain that publication of the rules with notice was not made as required by Section 62 of the Act, inasmuch as the rules with notice were put up only on the notice Board of the Board although notices were pasted in some other places also. We have considered this argument of the learned counsel. On a reference to Ex. Section 4-A it would be found that the notices along with the rules were put up only on the notice Board of the Board and were not put up at any place other than the premises of the Board. To our mind this was not sufficient publication within the meaning of Section 62 of the Act. There is an authority of this Court in the case of Chunnihil v. The Municipal Board, Shrimadhopur, Civil Writ Petn. No. 63 of 1954, D/- 25-1-1956 (Raj) (1) that such publication is not sufficient publication within the meaning of Section 62 of the Act. This judgment, though marked as reportable, does not yet appear to have been reported. We were, therefore, referred to the original judgment on the record of the said case. In that case also notices under Section 62 were published in some other places besides the notice Board of the Municipal Board concerned, but the rules were affixed only on the notice Board of the Municipality. Out of the two Judges composing the Division Bench one held the publication in such a manner to be sufficient within the meaning of Section 62 of the Act and the other Judge did not. The case was therefore referred to a third Judge who agreed that the publication was not sufficient. There is therefore clear authority of this Court for holding that the affixation of rules only on the notice Board of the Municipal Board is not sufficient within the meaning of Section 62 of the Act.

33. Point No. 6:--Bye-laws were not made in accordance with Section 46 of the Act.

34. It has been held under point No. 4 that some of the items contained in Ex. 1 are rules under Section 44 (h). Other items appear to be more like bye-laws than the rules. So far as ordinary rules under Section 44 of the Act are concerned, no publication is necessary, but rules relating to tax framed under Section 44 (h) have to be published in the manner prescribed by Section 69 (b) after they have been prepared. In the case of rules under Section 44 no previous sanction of the Government is necessary nor is it necessary that a draft thereof should be published. For the bye-laws under Section 46, however, it is necessary that previous sanction of the Government should be obtained. This was not done in the present case. It is also necessary that a draft of the bye-laws should be published in the manner required by Section 46 (2) and objections are to be taken into consideration after the publication and before the making of the bye-laws. In the present case, Ex 1 was published under Section 60 (b) after it had been prepared and its draft was never published before the making of the bye-laws as required by Section 48 (2). That portion of Ex. 1 therefore which amounts to bye-laws cannot be enforced. However this question is not of any practical importance as it has been found under point No. 5 that on account of omission to publish the rules as requited by Section 62 of the Act, the tax cannot be enforced, It would be open to the Board to prepare bye-laws after full compliance with Section 46 of the Actif it wants to enforce the tax after duly publishing the rules and notice under Section 62 of the Act.

35. On our finding on point No. 5, we allow the petition and declare that the octroi duty imposed by the respondent No. 1 is illegal and direct the respondent No. 1 not to collect any octroi duty.

36. The petitioner has also prayed that the respondent No. 1 be directed to refund the amount of Rs. 1337 collected from him without the authority of law. We do not think it would be proper to pass such orders in these proceedings. If the petitioner is so advised, he may proceed by way of suit to recover them wherein it can be properly determined as to what is the amount of tax which he has paid and whether he is entitled to its recovery. Under the circumstances of the case parties shall bear their own costs.


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