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1971 DIGILAW 353 (KAR)

SHA RUPCHAND HIDUMAL v. STATE OF MYSORE

1971-12-01

GOVINDA BHAT, VENKATASWAMI

body1971
GOVINDA BHAT, J. ( 1 ) IN this batch of 18 writ petitions, the petitioners who are merchants carrying on business in Ranebennur Town have challenged the levy of ocrroi by the Ranebennur Town Municipal Council (Respondent No. 2) pursuant to its Notification dated 2nd December 1970 published in the mysore Gazette dated 24th December 1970. By the impugned Notification, the 2nd respondent sought to bring into force with effect from 1st february 1971 the levy of octroi on goods imported into the Municipal area at the rates specified in the Schedule to the said Notification. ( 2 ) THE petitioners had raised a large number of grounds challenging the legality of the word levy in the pleadings; but Sri Havanur, their learned counsel pressed only one ground at the hearing. That ground was that the resolution, sanctioned under S. 96 with all modifications subject to which the sanction was given, has not been published by the Municipal Council in the Official Gazette and in the Municipality as required by S. 97 (1) of the Mysore Municipalities Act, 1964, hereinafter called 'the Act' and the notification bringing into force the revised rates of octroi is illegal and unenforceable and therefore void. In support of that contention, he relied on the decision of this Court in Manjanatha Setty v. State of Mysore, (1971) 1 Mys. L. J. 27, wherein it has been stated thus :"the mandate of the section requires that there shall be a publication of all resolutions sanctioned under S. 96 of the Act, with a notice reciting the sanction and the date and number thereof. The imposition of the tax prescribed by the sanctioned resolution would become operative from a date which shall be specified in such notice and which shall not be less than one month from the date of the publication. In other words, the resolution which was earlier passed by the Municipal Council specifying the requirements, like classes of persons, the amount or rate, and the octroi stations as laid down under s. 95 of the Act, if approved by the Government under S. 96 of the act, with modifications if any, shall be published under S. 97 of the act. There cannot be a valid imposition of the tax if the publication is not according to the mandatory requirements of the Section. There cannot be a valid imposition of the tax if the publication is not according to the mandatory requirements of the Section. " ( 3 ) THE Resolution of the Municipality under S. 95 of the Act was passed as Resolution No. 170 dated 20th September 1967. The said Resolution, inter alia, specified (a) the classes of persons liable to pay octroi, (b) exemptions from the levy, (c) the amount or rate of octroi and (d) the octroi Stations. It was submitted for sanction to the State Government who by their order dated 4th November 1970 accorded sanction without any modification. ( 4 ) THE Notification under S. 97 published in the Mysore Gazette dated 24th December 1970 has been made an Annexure to these writ petitions. It is not disputed that the Gazette publication does not contain the Resolution passed by the Municipality under S. 95 as sanctioned. The exemptions made from the levy and the Octroi stations, which were specified in the Resolution under S. 95, are not found in the Gazette publication under s. 97. Sri C. M. Desai, the learned counsel for the Municipal Council, submitted that there has been a substantial compliance with the mandatory requirements of S. 97 since the Notification has published the classes of goods, animals etc. on which octroi is levied with the rates of levy. He submitted that the non-publication of the classes of persons and property sought to be made liable, the exemptions from the levy and the specification of Octroi Stations is a mere irregularity not affecting the merits of the case and as such, its validity is not open to be questioned in view of sub-sec. (5) of S. 80 which states that no act done or proceeding taken under the Act shall be questioned on the ground merely of any defect or irregularity not affecting the merits of the case'. ( 5 ) THE question is, whether the non-publication of the matters referred to above in the Gazette publication under Sec. 97 is a mere irregularity which docs not affect thp validity of the levy. Octroi is levied on goods entering the Municipal limits for consumption, use or sale therein and it is one of the taxes which a Municipal Council is empowered to levy under s. 94. Before imposing such a tax. Octroi is levied on goods entering the Municipal limits for consumption, use or sale therein and it is one of the taxes which a Municipal Council is empowered to levy under s. 94. Before imposing such a tax. the Municipal Council has to pass a resolution as provided under S. 95 specifying the following matters: (i) The classes of persons or of property or of both which the municipal Council proposes to make liable, and any exemptions which it proposes to make; (ii) The amount or rate at which the Municipal Council proposes to assess each such class; and (iii) The octroi stations. Such a Resolution has to be published in the Official Gazette and in such other manner as may be prescribed. It is obvious that in the matter of a tax like imposition of octroi, the Resolution which imposes the tax must contain all the three particulars above referred to which are essential to the requirements for any valid levy of octroi. A valid levy of tax can be brought into force on publication of a sanctioned Resolution with notice as provided under S. 97. All enquiry into proceedings prior to publication of such notice being excluded by S. 97 (2), the publication under S. 97 (1) must contain (i) the classes of persons and property liable to tax and exemptions, if any; (ii) the rate of tax; and (iii) the Octroi Stations, were any dispute arises on the question of the liability of any goods to octroi or as to its rate, the only document that can be looked into is the gazette publication under S. 97 for determination of the liability to tax and therefore it is essential that it must specify all the essential particulars above mentioned including the Octroi Stations, and in the event of non-publication of those essential matters, there can be no enforceable levy of octroi. Since the essential elements for a valid imposition of octroi are absent in the publication under S. 97 in the instant cases, the 2nd respondent is not entitled to levy or collect octroi on the basis of the impugned notification which is invalid, inoperative and void. Since the essential elements for a valid imposition of octroi are absent in the publication under S. 97 in the instant cases, the 2nd respondent is not entitled to levy or collect octroi on the basis of the impugned notification which is invalid, inoperative and void. ( 6 ) FOR the reasons stated above, we issue a writ in the nature of mandamus directing the 2nd respondent to forbear from levying or collecting octroi on the basis of the Notification dated 2nd December 1970 published in the Mysore Gazette dt. 24th December 1970. It is ordered accordingly. Parties are directed to bear their own costs. ( 7 ) THE copy of the Resolution No. 170 dated 20th September 1967 passed under S. 95 of the Act was not filed as an Annexure. As directed by us, the learned counsel for the petitioners produced a certified copy and we direct that the said copy be kept as part of the records in WP. No. 315 of 1971. --- *** --- .