JUDGMENT CHANDTJRKAR J.- This judgment will govern Special Civil Application Nos. 799, 779, 852, 378,844,848, 853,882 and 991 of 1968 as all these petitions involve a common question about the validity of section 105 of the Maharashtra Municipalities Act, 1965 (hereinafter referred to as the Act) and the Maharashtra Municipalities (Octroi) Rules, 1968 (hereinafter referred to as the Octroi Rules) made by the State Government on 22.7.1968. Originally the law relating to municipalities in the Vidarbha Region was contained in the Central Provinces and Berar, Municipalities Act, 1922. Section 66 of the said Act gave power to the municipalities to impose the taxes enumerated therein, and one such tax was "an octroi on animals or goods brought within the limits of the municipality for sale, consumption or use within those limits". It is not in dispute that within the municipal limits of the Municipalities of Mangrulpir, Yeotmal, Malkapur, Wani, Chandur Railway, Washim, Arvi and Akot, octroi was imposed by those respectively municipalities. The C. P. and Berar Municipalities Act as in force in the Vidarbha Region of this State was repealed by the Maharashtra Municipalities Act, 1965. Different provisions of this Act were brought into force on different dates. Sections 2, 4, 9 to 39, 74,296 (1), (2), (3), (4), 299,321, 342 (I), (2), (3), (4), (5), (14), 345, 351 and Schedule I were brought into force on 14-9-1965; section 311 was brought into force on 27-10.1965; and the remaining provisions, other than sub-sections (5), (6) and (7) of section 75, were brought into force with effect from 15-6-1965. Section 4 of the Act classified municipal areas i1HO three classes, 'A', 'B' and 'c' on the basis of the population thereof. A municipal area with a population of more than 50,000 was to be a 'A' class municipal area; with a population of more than 20,000 but not more than 50,000 was to be a 'B' class municipal area; and with a population of 20,000 or less, was to be a 'C' class municipal area. The number of member who constituted the Municipal Council was also determined on the population basis, and under section 9 (2) the Director of Municipal administration had to fix for each municipal area the number of elected Councilors in accordance with the following table; Class of Municipal area. Number of elected Councillors. The number of member who constituted the Municipal Council was also determined on the population basis, and under section 9 (2) the Director of Municipal administration had to fix for each municipal area the number of elected Councilors in accordance with the following table; Class of Municipal area. Number of elected Councillors. (i) 'A' Class The minimum number of elected Councillors shall be 30, and for every 5,000 of the population above 50,000 there shall be one additional elected Councillors, so, however, that the total number of elected to Councillors shall not exceed 50. (ii) 'R' Class The minimum number of elected Councillors shall be 20, and for every 3,000 of the population above 20,000 there shall be one additional elected Councillor ; (iii) 'C' Class The minimum number of elected Councillors shall be 15, and for every 2,000 of the population above 10,000 there shall be one additional elected Councillor. 2. Since these petitions relate to the validity of the provision with regard to municipal taxation it is necessary to refer to the provisions of Chapter IX of the Act which deals with municipal taxation. The Act has classified the taxes into two categories, namely, compulsory and voluntary taxes. The imposition of compulsory taxes provided for in section 105 which reads as follows; "105. (1) Subject to any general or special orders which the State Government may make in this behalf a Council shall impose for the purposes of this Act the taxes Act, listed below:- (a) a consolidated property tax on lands or buildings both situated within municipal area. based on their rateable value as determined in accordance with section 114; (b) an octroi; (c) a tax on professions, trades, callings and employments; (d) a tax on cinemas, theatres, circuses, carnivals and other performances and shows; (e) a tax on advertisements other than advertisements published in the newspaper; Provided that, the maximum and minimum rates at ~ which the taxes aforesaid shall be levied in different classes of municipal areas and other matters relating to imposition, assessment, collection and exemptions thereof shall be such as may be prescribed by rules. (2) The consolidated tax on property shall include (a) a general tax; (b) a general water tax; (c) a lighting tax. (d) a general sanitary tax. (2) The consolidated tax on property shall include (a) a general tax; (b) a general water tax; (c) a lighting tax. (d) a general sanitary tax. It is not necessary to "C" to the provision, of section 106 which provides 106 which provides for reimbursement by the government in respect of loss of income from tax due to exemption granted by the State Government in respect of any class of property or persons from levy of the taxes referred to above. Section 107 empowers the state Government to exempt a ‘C’ class Council partially or fully, from levying any of the taxes specified in sub· sections (1) and (2) of section 105 for a period to be specified by the State Government if the 'c' Class Council, by a resolution passed at a meeting by a majority of not less than two-thirds of the total number of the Councillors decides that, for rea10ns to be specified in such resolution it cannot levy any of the taxes specified above. Section 108 provides for other taxes which a Municipal Council may impose. It reads: "I08. Section 108 provides for other taxes which a Municipal Council may impose. It reads: "I08. Subject to any general or special orders which the State Government may make in this behalf, a Council may impose, for the purposes of this Act, any· of the following, taxes, namely:- (a) a tax on all vehicles (excluding motor vehicles as defined in the Motor Vehicles Act, 1939), boats· or animals used for riding, draught or burden and kept for use within the municipal area whether they are actually kept within or outside such area; (b) a toll on Vehicles (excluding motor vehicles save as provided in section 20 of the Bombay Motor Vehicles Tax Act, 1958) and animals used as aforesaid, entering the municipal area but not liable to taxation under clause (a); (c) a tax on dogs kept within the municipal area; (d) a special sanitary tax upon private latrines, premises or compounds cleansed by municipal agency, after notice given as hereinafter required; (e) a drainage tax; (f) a special water tax for water supplied by the Council in individual cases, charges for such supply being fixed in such mode or modes as shall be best suited to the varying circumstances of any class of cases or of any individual case; (g) a tax on pilgrims resorting periodically to a shrine within the limits of the Council; (h) a special educational tax; i) any other tax which under the Constitution of India the State Legislature has power to impose in the State; Provided that, no special sanitary tax in respect of private latrines, premises or compounds shall be levied, unless and until the Council has- (i) made provision for the cleansing thereof by manual labour, or for conducting or receiving the sewage thereof into municipal sewers, and (ii) issued either severally to the persons to be charged, or generally to the inhabitants of the municipal area or part thereof to be charged with such tax, one month's notice of the intention of the Council to perform such cleansing and to levy such tax." 3. Section 109 prescribes the procedure preliminary to imposing a tax specified in section 108, and it reads: "109. Section 109 prescribes the procedure preliminary to imposing a tax specified in section 108, and it reads: "109. A Council before imposing any of the taxes referred to in section 101 shall observe the following preliminary procedure:- (a) it shall, by resolution passed at a special meeting, select for the purpose one or other of the taxes specified in that section and approve the by-laws concerning the tax selected, and in such by-laws specify- (i) the classes of persons or of property or of both, which the Council proposes to make liable, and any exemptions which it proposes to make; (ii) the amount or rate at which the Council proposes to assess each such class; (iii) the mode of levying and recovering tax and the dates on which it or instalments (if any) thereof shall be payable; (iv) all other matters which the State Government by rules made in this behalf may require to be specified therein; (b) When such a resolution is passed, the Council shall take further action to obtain the previous sanction of the State Government to the by-laws under section 322." Section 322 deals with the power of Municipal Councils to make by-laws. Under that section the power to make all by-laws under the Act is made exercisable by each Council subject to the previous sanction of the Collector or the State Government as provided in that section. The by-laws have to be consi3tent with the Act and the Rules made there under for the administration of its affairs and for the guidance of its committees, officers and servants. Whenever a Council desires to make by-laws under the Act, it is provided that the Council shall by a resolution at a special meeting approve a draft of such by-laws. This draft is then required to be put up on the notice board of the Council. It is also required to be published In a local newspaper as soon as may be possible after the resolution is passed, inviting the inhabitants to submit their objections and suggestions to the Council within a reasonable period to be specified in such notice. If any objections and suggestions are received, the Council has to consider them at a special meeting and then approve the final draft of the by-laws. The Council has to send the final draft to the Collector within seven days of the passing of the resolution. If any objections and suggestions are received, the Council has to consider them at a special meeting and then approve the final draft of the by-laws. The Council has to send the final draft to the Collector within seven days of the passing of the resolution. The Collector has the power either to refuse to sanction the by-laws or to return them to the Council if in his opinion the by-laws are inconsistent with the Act or the rules made thereunder and the inconsistency cannot be removed except by materially altering the by-laws, or objections, if any, to the by-laws have not been duly considered by the Council; or if there is any new objection to the by-laws, or the rates of taxes or fee proposed in the by-laws are inadequate. The Collector has also the power to sanction the by- laws with or without such modifications as he considers necessary. The by-laws are then to be published in the Official Gazette by the Collector and the by-laws so published then take effect from the date of the publication in the Official Gazette or other subsequent date as may be mentioned therein. In clause (f) of sub-section (3) of section 322 it is provided that notwithstanding anything contained in clause (c) which deals with the power of the Collector to sanction or refuse to sanction the by-laws, if the by-laws sent by any Council under clause (d) relate to imposition, abolition, remission, alteration or regulation of any tax, the Collector shall forward them to the State Government for sanction and thereupon the provisions of clause (e) shall apply as if for the word "Collector" in the said clause the words "State Government" have been substituted. Thus, in the matter of by-laws relating to a discretionary tax the authority competent to sanction the imposition is the State Government and not the Collector. Section 110 provides for the date on which the by-laws in respect of a discretionary tax sanctioned by the State Government are brought into force, and it provides that such by-Jaws shall be brought into force on or after a date to be specified by the State Government in its sanction and such a tax shall not than be abolished without the previous sanction of the State Government. Section III deals with the republication of the by-laws referred to in section 109 and 110 and sanctioned by the State Government and published in the official Gazette. The republication is to be made in a local newspaper with a notice specifying the date on which the by-laws shall come into force, but such a date cannot be less than 30 days from date of publication of such notice. There is a proviso to section III which speaks about the date on which a tax leviable by the year is to come into force, and another part of the proviso provides that if the levy of a tax, or a portion of a tax, has been sanctioned for a fixed period only, the levy shall cease at the conclusion of that period except so far as regards recovery of arrears which may have become due during that period. The other provision which must be reproduced is section 112 because there was a debate at the Bar on the scope of this provision. Section 112 provides: "112. (1) Notwithstanding any rule, by-law or resolution specifying the amount or rate at which a tax is leviable, a Council may, by a resolution passed at a special meeting, decide to increase or reduce the amount or rate at which such tax is leviable and to that extent the by-laws already sanctioned by the State Government shall be deemed to have been suitably amended with effect from the date specified in the notice referred to under sub· section (2): Provided that- (a) such increase or reduction shall be within the maximum and minimum limits fixed in respect of such tax under the rules; (b) such increase or reduction shall not exceed ten per centum of the amount or rate at which such tax was leviable during the preceding official year. (2) When a Council has by a resolution decided to increase or reduce the amount or rate at which any tax is leviable, the Council shall publish in the municipal area the resolution together with notice specifying a date, which shall not be less than thirty days from the date of publication of such notice, from which the amount or rate at which any tax is leviable shall be increased or reduced. The tax at the amount or rate so increased or reduced shall be leviable from the date specified in said notice." 4. The tax at the amount or rate so increased or reduced shall be leviable from the date specified in said notice." 4. There are two other provisions to which a reference will have to be made. Section 321 deals with the rule making power of the State Government. It provides that the power to make all rules under the Act shall be exercisable by the State Government by notification in the Official Gazette and that without prejudice to any power to make rules contained elsewhere in the Act, the State Government may make rules consistent with the Act generally to carry out the purposes of the Act. Sub-sections (3) and (4) of section 321 are as follows: "(3) All rules made under this Act shall be subject to the condition of previous publication. (4) Every rule made under this Act shall be laid as soon as may be after it is made before each House of the State Legislature while it is in session for a total period of thirty days which may be comprised in one session or in two successive sessions, and if, before the expiry of the session in which it is so laid or the session immediately following, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, and notify such decision in the Official Gazette, the rule shall from the date or publication of such notification have effect only in such modified form or be of no effect as the case may be; so however that any such modification or annulment shall be without prejudice to the validity of anything previously done or omitted to be done under that rule." Section 346 deals with the consequences of replacement of existing Councils. We are concerned in these petitions only with clause (i) of section 346. We are concerned in these petitions only with clause (i) of section 346. The material part of that section reads: "With effect on and from the appointed day, the following consequences shall ensue, that is to say- * * * * * * (i) any appointment, notification, notice, tax, order, scheme, licence, permission, rule, by-law, regulation or form held, made, issued, imposed or granted by or in respect of an existing Council under any of the repealed laws or any other law for the time being in force in the area of such existing Council, and in force immediately before the appointed day, shall, in so far as it is not inconsistent with the provisions of this Act, continue to be in force as if made, issued, imposed or granted in respect of the corresponding area of the successor Council until superseded by an authority competent so to do: Provided that- • * • * ." 5. Now, the State Government, in exercise of the powers under section 105 (i). proviso, read with section 321 of the Act, first published a draft of the rules" which were called the Maharashtra Municipalities (Octroi) Rules, J967.The draft rules are dated 14-12-1967 and were published in the Maharashtra Government Gazette dated 21-12-1967. It is stated in the draft that it was published as required by sub· section (3) of section 321 for the information of all persons likely to be affected thereby and a notice was given that the said draft will be taken into consideration by the Government of Maharashtra on or after the 10th day of January 1968. It was also stated that any objections or suggestions which may be received by the Secretary to the Government of Maharashtra in the Urban Development, Public Health and Housing Department from any person with respect to the said draft before the aforesaid date would be considered by the Government. The draft rules contained two schedules. Schedule contained a list of goods in respect of which octroi was to be leviable by every Council and the rate at which octroi was to be levied by the Council on any goods was not to exceed the maximum rate specified therefor in column 5 of the Schedule and not to be less than the minimum rate specified in column 6. Schedule II contained a list of goods in respect of which no octroi was to be payable. Draft rule 5 prescribed the procedure preliminary to imposing octroi. We are not concerned with the other parts of these Rules and it is, therefore, not necessary to refer to them. Schedule-I prescribed the maximum and minimum rates of octroi on ad valorem basis in respect of some items and the Schedule also prescribed the maximum and minimum rates by weight per 10 kilograms. Schedule-I originally contained 84 items, though many of the items themselves contained a reference to several articles. It appears that apart from some individuals who objected to those Octroi Rules and the rates some Municipal Councils also made representations to the Government either with regard to the number of items or with regard to the rates. Finally, after a consideration of the objections and the suggestions the State Government finalized the Octroi Rules and the final Rules were published on 25.7.1968. It is not in dispute that when the final Rules were published, changes were made in the total number of articles in respect of which octroi was leviable; and apart from other changes, a significant change which was made in Schedule-l was the introduction of an item at serial No. 86 saying "Goods not included in any of the above items and not specifically exempted in Schedule II." This was in the nature of a residuary item which was not there in the Rules when they were first published for the information of the persons affected by the Rules. In respect of this residuary item the maximum ad valorem rate was notified as 3 per cent and the mini mum rate was notified as I per cent. Almost within a month of the publication of these Rules, some changes were made with regard to the rates in respect of several items, and even in respect of the residuary item the rates were changed to 1.50 per cent maximum and 0.25 per cent minimum. We are really concerned in these cases with rule 5 which as it was finally published on 25-7-1968 read as follows: "5. We are really concerned in these cases with rule 5 which as it was finally published on 25-7-1968 read as follows: "5. Procedure preliminary to imposing octroi.-(l) Every Council shall, by resolution passed at a special meeting convened within thirty days from the date of the coming into force of these rules (or such further period or periods as the State Government may in any case allow),- (a) fix the rates at which octroi shall be levied on different goods specified in Schedule I; and (b) determine the number and location of Octroi Nakas, specify the routes by which goods intended for immediate export shall proceed from the Entrance Naka to the Exit Naka and fix a scale of deposits (depending on the estimated value of the goods) to be recovered at the Entrance Nakas in respect of such goods which are allowed to proceed without escort. (2) Within seven days of the passing of such resolution, the Council shall publish in the municipal area, the resolution together with a notice specifying- (a) the rates at which and the date (which shall not be earlier than thirty days from the date of publication of the notice) from which octroi shall be levied; (b) the number and location of Octroi Nakas, the routes by which goods intended for immediate export shall proceed from the Entrance Naka to the Exist Naka and the scale of deposit fixed under clause (b) of sub· rule (1); and (c) the octroi limits, if any, fixed by the Council under section 136. (3) Subject to the provisions of section 112, a Council may, by resolution passed at a special meeting, from time to time, decide to increase or reduce the rate of octroi on any goods within the permissible limits. When the Council decides to increase or reduce the rate accordingly, it shall follow the procedure laid down in sub-rule (2) and the rate so increased or reduced shall be applicable from the date specified by the Council for that purpose. (4) A Council may likewise, by resolution passed at special meeting, from time to time. decide to exempt all or any of the goods specified in Part II of Schedule II, from the levy of octroi or withdraw any exemption so granted. (4) A Council may likewise, by resolution passed at special meeting, from time to time. decide to exempt all or any of the goods specified in Part II of Schedule II, from the levy of octroi or withdraw any exemption so granted. When the Council decides to exempt such goods from the levy of octroi or to withdraw any such exemption it shall follow the procedure laid down in sub-rule (2), and such exemption shall come into force or stand withdrawn from the date specified by the Council for that purpose. (5) While fixing, increasing or reducing the rates of octroi under this rule, the Council shall be at liberty to fix different rates for the various goods falling, under any item in column 2 of Schedule 1 and also for the different varieties and qualities of any of such goods." 6. Soon there was an amendment in September 1968 by which the period of thirty days in sub· rule (1) was changed to sixty days, and in place of the old clause (a) Clauses (a) and (aa) were substituted. These clauses read: "(a) fix the rates at which octroi shall be levied on different goods specified in Schedule I. but while fixing the rates for the first time under these rules, if the Council is already levy in: octroi in respect of any of the goods specified in Schedule I at a rate higher than the minimum rate prescribed there for in that Schedule, it shall not at that time in respect of those goods fix a rate lower than the existing rate; (aa) fix the date (which shall not be earlier than thirty-seven days and not later than fifty two days, from the date of passing of the resolution) from which octroi shall be levied." . By another amendment dated 20-1-1970 the portion beginning with the words "but while fixing the rates" and ending with the words "than the existing rate" in the newly substituted clause (a), however, came to be deleted. 7. After these Octroi Rules came into force, the Municipal Councils passed resolutions levying octroi as permitted by section 105 read with rule 5 of the Octroi Rules. This imposition of the octroi tax by some of the Municipal Councils the being challenged by the petitioners in these several petitions. 7. After these Octroi Rules came into force, the Municipal Councils passed resolutions levying octroi as permitted by section 105 read with rule 5 of the Octroi Rules. This imposition of the octroi tax by some of the Municipal Councils the being challenged by the petitioners in these several petitions. The Municipal Councils the imposition of octroi by whom is now being challenged in these petitions and the corresponding petition numbers are as follows: Name of the Municipal Council Special Civil Application No. Yeotmal.779 of 1968 Mangrulpir.799 of 1968 Chandur Railway.844 of 1968 Washim.848 of 1968 Malkapur.852 of 1968 Shegaon.853 of 1968 Wani.878 of 1968 Arvi.882 of 1968 Akot.991 of 1968 Since a challenge to the validity of the provisions of section 105 of the Act and the Rules relating to imposition of octroi was involved in all these petitions, they were heard together and the learned counsel for all the petitioners were initially heard on the validity of section 105 of the Act and the validity of the Rules, and then such cases as involved any special feature were heard. It We shall first deal with the contention raised on behalf of the petitioners that section 105 of the Act suffers from the vice of excessive delegation, inasmuch as it does not itself provide for the maximum and minimum rates of octroi and has given unbridled and uncontrolled power without any guidance to the State Government to fix the maximum and minimum rates of octroi. The main argument on this question wall addressed by Mr. B.A. Udhoji appearing for the petitioners in Special Civil Application No. 799 of 1968 and hi, arguments were adopted by the other counsel. T he learned counsel mainly placed reliance on the decision of the Supreme Court in M/s. Devi Das v. State of Punjab1 in which the Supreme Court struck down section 5 of the Punjab General Sales Tax Act, 1948, as it did not provide any guidelines in the matter of fixation of the rates of sales tax. T he learned counsel mainly placed reliance on the decision of the Supreme Court in M/s. Devi Das v. State of Punjab1 in which the Supreme Court struck down section 5 of the Punjab General Sales Tax Act, 1948, as it did not provide any guidelines in the matter of fixation of the rates of sales tax. Section 5 of the Punjab General Sales Tax Act provided that subject to the provisions of the Act there shall be levied on the taxable turnover every year of a dealer a tax at such rates as the Provincial Government may by notification direct, and it was held that by enacting section 5 of that Act as it originally stood, uncontrolled power was conferred on the Provincial Government to levy on the taxable turnover every year of a dealer a tax at such rates as the Provincial Government may by notification direct and the Legislature has practically effaced itself in the matter of fixation of rates and it did not give any guidance either under the section or under any other provision of the Act. The Supreme Court Pointed out in that case that the minimum that was expected of the Legislature was to lay down in the Act conferring such a power of fixation of rates clear legislative policy or guidelines in that regard, and as the Act did not prescribe any such policy, it must be held that section 5 of the said Act as it stood before the amendment, was void. Now, the question dealing with the limits of permissible delegation of legislative power by a Legislature to a subordinate authority has been the subject matter of a large number of decisions of the Supreme Court and it is now well settled that where a statute is challenged on the ground of excessive delegation, it must be subjected to two tests, namely, (i) whether it delegates essential legislative functions or power, and (ii) whether the Legislature has enunciated its policy and principles for the guidance of the delegate: See Vasantlal Maganbhai v. State of Bombay2. It is also well settled that if there is sufficient guidance in the Act and if the Legislature itself has retained control over the subordinate legislation, then a delegated legislation or the rule made by the State Government in exercise of its rulemaking power cannot be said to suffer from the vice of excessive delegation. It is also well settled that if there is sufficient guidance in the Act and if the Legislature itself has retained control over the subordinate legislation, then a delegated legislation or the rule made by the State Government in exercise of its rulemaking power cannot be said to suffer from the vice of excessive delegation. We may usefully refer to a decision of the Supreme Court in Delhi Municipality v. Birla Cotton, Spinning and Weaving Mills, Delhi. In that case the Supreme Court was dealing with the provisions in section 150 of the Delhi Municipal Corporation Act, 1957, which enabled the Corporation to pass a resolution for the levy of some taxes defining the maximum rate of the tax to be levied, class or classes of persons or the description or descriptions of articles and properties to be taxed, the system of assessment to be adopted and the exemptions, if any, to be granted. The tax with which the Supreme Court was concerned was the tax on the consumption or sale of electricity. Dealing with the challenge that section 150 (I) was void on the ground of excessive delegation of legislative power and that no tax could, therefore, be levied by the Corporation thereunder, the Supreme Court refer~ red to the earlier decisions of the Court and observed in paragraph 28: "A review of these authorities therefore leads to the conclusion that so far as this Court is concerned the principle is well established that essential legislative function consists of the determination of the legislative police and its formulation as a binding rule of conduct and cannot be delegated by the legislature. Nor is there any unlimited right of delegation inherent in the legislative power itself. This is not warranted by the provisions of the Constitution. The legislature must retain in its own hands the essential legislative functions and what can be delegated is the task of subordinate legislation necessary for implementing the purposes and objects of the Act. Where the legislative policy is enunciated with sufficient clearness or a standard is laid down, the Courts should not interfere. What guidance should be given and to what extent and whether guidance has been given in a particular case at all depends on a consideration of the provisions of the particular Act with which the Court has to deal including its preamble. What guidance should be given and to what extent and whether guidance has been given in a particular case at all depends on a consideration of the provisions of the particular Act with which the Court has to deal including its preamble. Further it appears to us that the nature of the body to which delegation is made is also a factor to be taken into consideration in determining whether there is sufficient guidance in the matter of delegation. What form the guidance should take is again a matter which cannot be stated in general terms. It will depend upon the circumstances of each statute under consideration; in some cases guidance in broad general terms may be enough; in other cases more detailed guidance may be necessary. As we are concerned in the present case with the field of taxation, let us look at the nature of guidance necessary in this field. The guidance may take the form of providing maximum rates of tax upto which a local body may be given the discretion to make its choice, or it may take the form of providing for constitution with the people of the local area and then fixing the rates after such consultation. It may also take the form of subjecting the rate to be fixed by the local body to the approval of Government which acts as a watch-dog on the actions of the local body in this matter on behalf of the legislature. There may be other ways in which guidance may be provided. But the purpose of guidance, whatsoever may be the manner there of, is to see that the local body fixes a reasonable rate of taxation fur the local area concerned. 80 long as the legislature has made provision to achieve that reasonable rates of taxation are fixed by local bodies, whatever may be the method employed for this purpose-provided it is effective, it may be said that there is guidance for the purpose of fixation of rates of taxation. The reasonableness of rates may be ensured by fixing a maximum beyond which the local bodies may not go. It may be ensured by providing safeguards laying down procedure for consulting the wishes of the local inhabitants. It may consist in the supervision by the Government of the rate of taxation by local bodies. The reasonableness of rates may be ensured by fixing a maximum beyond which the local bodies may not go. It may be ensured by providing safeguards laying down procedure for consulting the wishes of the local inhabitants. It may consist in the supervision by the Government of the rate of taxation by local bodies. So long as the law has provided method by which the local body can be controlled and there is provision to see that reasonable rates are fixed, it can be said that there is guidance in the matter of fixing rates for local taxation. As we have already said there is preeminently a case for delegating the fixation of rates of tax to the local body and so long as the legislature has provided a method for seeing that rates fixed are reasonable, be it in one form or another, it may be said that there is guidance for fixing rates of taxation and the power assigned to the local body for fixing the rates is not uncontrolled and uncanalised." (Underlining is ours). It is on the basis of these principles that we have to consider the Act with which we are concerned. Wanchoo C. J. in that case found that a guide or control on the limit of taxation was to be found in the purposes of the Act itself. It was also found that the Legislature made the Government the watchdog to control the actions of the Corporation in the matter of fixing rates and other incidents of the taxes and that was also a check to see that reasonable rates were fixed by the Corporation when it proceeded to impose taxes under section 150. In a separate judgment in that case dealing with the Principle of delegation of power. Hidayatuallah J. as he then was made the following observations: "The doctrine that Parliament cannot delegate its powers, therefore, must be understood in " limited way. It only means that the Legislature must not efface itself but must give the legislative sanction to the imposition of the tax and must keep the control in its own hands. There is no specific provision in the Constitution which says that the Parliament cannot delegate to certain specified instrumentalities the power to effectuate its own Will. The question always is whether the legislative will have been exercised or not. There is no specific provision in the Constitution which says that the Parliament cannot delegate to certain specified instrumentalities the power to effectuate its own Will. The question always is whether the legislative will have been exercised or not. Once it is established that the Legislature itself has willed that a particular thing be done and has merely left the execution of it to a chosen instrumentality (provided that it has not parted with its control) there can be no question of excessive delegation. If the delegate acts contrary to the wishes of the Legislature, the Legislature can undo what the delegate has done. Even the Courts, as we shall show presently, may be asked to intervene when the delegate exceeds its powers and functions. In the present case, in addition to prescribing the mode, it keeps a check by making Government answerable to itself, the supervising authority. This is not a safeguard in the sense in which the matter has been accepted in the opinion of the learned Chief Justice, but is indicative of the exercise of the legislative will by the Legislature itself. The details of the tax are to be considered by supervising authority and if the tax is not what the Legislature intended should be imposed, tbe tax cannot be imposed." (Italic is ours.) Sikri J. as he then Wait observed in a separate judgment in paragraph III as follows: "But assuming I am bound by authorities of this Court to test the validity of section 113 (2) (d) and section 150 of the Act by ascertaining whether a guide or policy exists in the Act, I find adequate guide or policy in the expression 'purposes of the Act', in section 113. The Act has pointed out the objectives or the results to be achieved, and taxation can be levied only for the purpose of achieving the objectives or the results. This, in my view, is sufficient guidance especially to a self-governing body like the Delhi Municipal Corporation." 9. We may also usefully refer to a later decision of the Supreme Court in Gulabchand Bapalal Modi v. Ahmedabad Municipality4. In that case a challenge was made to the provisions of sections 99. 123 and 129 (c) of the Bombay Provincial Municipal Corporations Act. We may also usefully refer to a later decision of the Supreme Court in Gulabchand Bapalal Modi v. Ahmedabad Municipality4. In that case a challenge was made to the provisions of sections 99. 123 and 129 (c) of the Bombay Provincial Municipal Corporations Act. 1949, on the ground that they suffered from the vice of excessive delegation in so far as they did not lay down the maximum rate at which the Corporation could levy the property tax. The Supreme Court observed in that case that the taxes could be levied only for the purposes of the Act and that the ultimate control both for raising the taxes and incurring expenditure. lies with the Councillors chosen by and responsible to the people. Thus, the Supreme Court took the view that although the Act did not prescribe the maximum rate at which the property taxes could be raised, the ultimate control for raising them was with the Councillors responsible to the people and it was, thereafter, difficult to sustain the plea that the power to levy the property tax was so unbridled as to make it possible for the Corporation to levy it in any arbitrary manner or extent. The earlier decision of the Supreme Court in the Birla Mill's case (cit. supra) was considered and t he Supreme Court pointed Out in that case the distinction between delegation of fixing the rate of tax like sales tax and delegation of fixing rates of certain taxes for purposes of local taxation. It may be remembered that in the Birla Mill's case the decision relied Upon by the learned counsel for the petitioners before us was also considered and the Supreme Court had Observed as follows: "There is in our opinion a clear distinction between delegation of fixing the rate of tax like sales tax to the State Government and delegation of fixing rates of certain taxes for purposes of local taxation. The needs of the State are unlimited. The needs of the State are unlimited. " The result of making delegation of a lax like sales tax to the State Government means a power to fix the tax without any limit even if the needs and purposes of the State are to be taken, into account." Referring to the Birla Mill's case the Supreme Court observed that the majority view in that decision showed that the mere fact that an Act delegating taxing power refrained from providing a maximum rate did not by itself render the delegation invalid. 10. In our view, the decisions in Birla Mill's case and the Ahmdabad Municipality's case are a complete answer to the contention raised on behalf of the petitioners that section 105 of the Act suffers from the vice of excessive delegation. We cannot forget that though the power to make rules prescribing the maximum and minimum rates of tax under section 105 (I), proviso, has been delegated to the State Government, the Legislature has still retained control over the rules which the State Government is authorised to make. This control is clear from the provisions of section 321 where, as already pointed out, under sub section (4-), it is obligatory that every rule made under the Act has to be laid before each House of the State Legislature. The Legislature has retained the power not only to modify any rule but even to nullify any rule which it desires. In such a case, where either the rule is modified or the Legislature is of the view that the rule should not be made, on a notification of such decision, the rule either begins to operate in a modified form or it ceases to be operative altogether, as the case may be. There is, therefore, a clear reservation of power by the Legislature to see that the delegate does not act contrary to the legislative policy. The taxes which are authorised to be levied under section 105 can be levied only for the purposes of the Act. The provisions of the Act show that the duties and functions of the Municipal Councils are enumerated in Chapter III. These duties are no doubt classified as obligatory duties and discretional functions of the Council. The taxes which are authorised to be levied under section 105 can be levied only for the purposes of the Act. The provisions of the Act show that the duties and functions of the Municipal Councils are enumerated in Chapter III. These duties are no doubt classified as obligatory duties and discretional functions of the Council. But when section 105 provides that the tax may be levied for the purposes of the Act, it is obvious that the money which is sought to be raised by levying taxes has to be utilised for the purposes of the performance of the obligatory duties and discretional functions imposed upon the Council by the provisions of the Act. As pointed out in the Birla Mill's case, the fact that the control is retained by the Legislature and the fact that the taxes are to be levied for the purposes of the Act only were clear indication that the power given under section 105(1) Proviso was neither unbridled nor uncontrolled. It is no doubt true that the above two decision were dealing with the power of a Municipal Corporation itself delegated to it by the legislature. In the present case we are not dealing with a provision delegating the entire power is entrusted to the government itself. It is the Government of the state witch is in the full Knowledge of the requirements of the local bodies in so far as their financial capacity and financial liability are concerned. It is the Government which has full knowledge of the commercial activities and the trading activities of the people who reside under its control and it would therefore be the most competent authority which was entailed to fix the maximum and minimum rates at which taxes could be levied. It is also well established that when the power is delegated to a state Government one Cannot easily assume that the State Government will abuse its power it is the abuse of power which becomes challengeable and the provision under which the power is given does not necessarily become bad. 11. We may also point out that the rules themselves are made subject to previous publication as a result of which the person affected by those rules were entitled to object though the ultimate decision was to be of the Government. 11. We may also point out that the rules themselves are made subject to previous publication as a result of which the person affected by those rules were entitled to object though the ultimate decision was to be of the Government. In such a case where objection are invited in respect of a rule it is clear that those who object will present before the rule making authority the various aspect of the problem and the purpose for which the rule is intended to be framed. Normally therefore where such objection are made and considered we must assume that there has been pointed out any averment in any petition nor has any representation been brought to our notice in which any particular objection with regard to the quantum of the maximum and minimum rates was made by any of the petitioners. The state Government has however filed a dialed statement of the nature of the objection which were received by them as a result of the previous publication. The Chart field by the State Government in each one of these petitions no doubt shows that most of the objection were received from municipal of council in difrent part of the state part-IV of the chart shows that some Municipal Council requested for increase in maximum rates. We shall later deal with the question whether as a result of the publication of the drafts rules municipal Council were entitled to make any suggestion or representation but the fact remain that maximum rate of tax become the subject matter of representation by certain Municipal Council. It is obvious that the rate which were fixed by the state Government by the rules as they finally emerged were fixed figures were ultimately placed before the Legislature when the rule were laid before the legislature and the legislature did not find it necessary to alter any of the rates. We must assume that the Rules having been laid before both the Houses of the legislature the legislature accepted the rates as proper and that the legislature did bring its mind to bear on the question whether these rates should be permitted to be levied as maximum and Minimum rates of octroi duty. 12. In the Ahmedabad Municipalities case (cit. We must assume that the Rules having been laid before both the Houses of the legislature the legislature accepted the rates as proper and that the legislature did bring its mind to bear on the question whether these rates should be permitted to be levied as maximum and Minimum rates of octroi duty. 12. In the Ahmedabad Municipalities case (cit. sup.) five factors which were pointed out by Wanchoo C.J. in the Birla Mill’s case as indicating furnishing of sufficient guidance so as to prevent the delegation becoming invalid have been reproduced in paragraph 20. These five factors were: "(1) that the delegation was to an elected body responsible to the people, including those who pay taxes and to whom the councillors have every four years to turn to for being elected; (2) that the limits of taxation were to be found in the purposes of the Act for the implementation of which alone taxes could be raised and though this factor was not conclusive. it was nonetheless relevant and must be taken into account with other relevant factors; (3) that the impugned section 150 itself contained a provision which required that the maximum rate fixed by the Corporation should have the approval of the Government; (4) that the Act contained provisions which required adoption of budget estimates by the Corporation annually; and (5) that there was a check by the Courts of law where the power of taxation is used unreasonably or in non-compliance or breach of the provisions and objects of the Act." In that case the Supreme Court no doubt found that factor (3) was absent in section I 37 of the Bombay Provincial Municipal Corporation Act, with which the Court was dealing; but it was still observed: "It is imposible to say that when a provision requiring sanction of the Government to the maximum rate fixed by the Corporation is absent, the rest of the factors which exist ill· the Act Jose their efficacy and cease to be guidelines," If we refer to these five factors reproduced above, factors (2) and (5) are present in the instant case also. The other factors do not become relevant in the context of the provisions of section 105. The other factors do not become relevant in the context of the provisions of section 105. Indeed, the check referred to in factor (5) viz., a check by the Courts of law where the power of taxation is used unreasonably or in non· compliance or breach of the provisions and objects of the Act, is an overriding power in the Court under Article 226 of the Constitution of India. The proviso to sub-section (I) of section 105 of the Act does not deal with the power of a Municipal Council and factor (I) or factor (3) would not be very relevant. But we cannot forget that even the Supreme Court took the view that a provision that the maximum rates determined by a Municipal Councilor a Corporation was subject to the approval of the Government was enough guidance or safeguard. In the instant case, section 105 (I), proviso, gives the power to determine the maximum and minimum rates of tax to the State Government itself which, as already pointed out earlier, cannot be expected to abuse that power and it is expected to exercise that power for the purposes of the Act alone. Having regard to this view therefore, we are not inclined to hold that the proviso to sub-section (1) of section 105 of the Act suffers from the vice of excessive delegation of Power On the basis that the decision of the Supreme Court in M/s. Devi Das v. State of Punjab (cit. sup.) which is relied upon by the learned counsel for the petitioners at it is of no assistance in view of the difference between delegation of power to fix rates of sales tax and rates of taxes for local taxation as pointed out in the Birla Mill's case. 13. That then brings us to the second contention raised on behalf of the petitioners on which the main argument was advanced by Messrs P. P. Deo and B. A. Udhoji. The argument is that the final Rules as published are not the same Rules which were originally published in the Official Gazette dated 21-12·1967. This challenge to the Rules is founded on the fact that the Rules as final1y published differ from the Rules originally published in five respects, namely : (1) Some more items have been added in Schedule as being subject to octroi. This challenge to the Rules is founded on the fact that the Rules as final1y published differ from the Rules originally published in five respects, namely : (1) Some more items have been added in Schedule as being subject to octroi. (2) There is a partial modification of the contents of some of the items by the introduction of new articles. (3) In some cases, the maximum rates fixed have been increased. (4) In some cases the minimum rates have been increased. (4) The rate of octroi duty has been changed from weight basis to ad valorem basis. Now, it cannot be disputed that the change referred to above do appear the, The Schedule which form part of the Rules which are finally published on 22-7.1968. A very outstanding illustration of that addition is the inclusion of a comprehensive item No. 86 which reads: "Goods not included in any of the above items and not specifically exempted in Schedule II." There are other items such as sugar-cane and ice which have been added in Schedule I. In some of the items the description or the contents of the item have been changed. For example, item 29 originally was only '"Carnets" in place of that the new item is "Camels and Elephants". In item 11 match boxes have been added. It was originally item 40 which read: "Camels, other articles intended for gas or lighting not provided elsewhere (including lamps, lanterns) irons and their spare parts:' It cannot also be disputed that in respect of several articles which are shown in Schedule D in S. C. A. No. 848 of 1968, the maximum rates have been increased and in respect of articles such as grains, green ginger, fishes, camels and unginned cotton, the minimum rate of octroi has also been increased. Schedule E in that petition gives a list of certain articles such a! edible oil, sugar and sugarcandy, gur of all sorts, vanaspati, tea, coffee and coffee seed, dates, dry or wet, betal nuts, and kirana etc., in respect of which the levy has been changed from weight basis to ad valorem basis. Schedule E in that petition gives a list of certain articles such a! edible oil, sugar and sugarcandy, gur of all sorts, vanaspati, tea, coffee and coffee seed, dates, dry or wet, betal nuts, and kirana etc., in respect of which the levy has been changed from weight basis to ad valorem basis. It is, therefore, argued that so far as those variations are concerned, the Rules cannot be said to have complied with the mandatory provision of section 321 (3) of the Act which provides that all rules made under the local shall be subject to the condition of previous publication and it is contended that at least to that limited extent the Rules must be struck down. Now, in the instant cases which have been disposed of by this judgment it is not the case of any of the petitioners that they have been called upon on any particular occasion to pay octroi in respect of the articles which have either been added for the first time in the Schedule or their description has been changed, or where maximum and minimum rates have been increased, or where the weight basis has been changed to ad valorem basis. However, since the matter was of some importance and this was a matter of general application, we have heard the learned counsel for the petitioners in support of their arguments that the condition of previous publication was not satisfied in respect of articles or the rates which differ from those which were published in the draft Rules. It is, however, argued on behalf of the Municipal Councils and the State that the changes which were ultimately made in the Octroi Rules as finally published were necessitated as a result of the suggestions which made by the some Municipal Councils, and it is contended that the petitioners cannot be permitted to challenge the finally published Rules in view of the conclusive evidence clause in section 24 (e) of the Bombay General Clauses Act, 1904. Now, section 321 (3) of the Act no doubt says that all rules made under the Act shall be subject to the condition of previous publication. Section 24 of the Bombay General Clauses Act contains provisions applicable to making of rules or by-laws after previous publications. Now, section 321 (3) of the Act no doubt says that all rules made under the Act shall be subject to the condition of previous publication. Section 24 of the Bombay General Clauses Act contains provisions applicable to making of rules or by-laws after previous publications. It provides: "Where, by any Bombay Act or Maharashtra Act, a power to make rules or by-laws is expressed to be given subject to the condition of the rules or by-laws being made after previous publication, then the following provision shall apply, namely,- (a) the authority having power to make the rules or by-laws shall, before making them, publish a draft of the proposed rules or by-laws for the information of persons likely to be affected thereby; (b) the publication shall be made in such manner as that authority deems to be sufficient or, if the condition with respect to previous publication so requires, in such manner as the Central Government, or as the case may be, the State Government prescribes; (c) there shall be published with the draft a notice specifying a date on or after which the draft will be taken into consideration; (d) the authority having power to make the rules or by laws, and, where the rules or by-laws are to be made with the sanction, approval or concurrence of another authority, that authority also, shall consider any objection or suggestion which may be received by the authority having power to make the rules or by-laws from any person with respect to the draft before the date so specified; (e) the publication in the Official Gazette or a rule or by-law purporting to have been made in exercise of a power to make rules or by-laws after previous publication shall be conclusive proof that the rule or by-law has been duly made," The learned counsel for the Municipal Councils and the State Government relied on this provision in clause (e) of section 24 and invoked the artificial rule of evidence in clause (e) that where a rule or by-law is published in the Official Gazette after previous publication, then such publication was conclusive proof that the rule or by-law has been duly made. The draft notification published in the Official Gazette dated 21-12-1967 notified that any objections or suggestions which may be received by the Secretary to the Government of Maharashtra in the Urban Development, Public Health and Housing Department, from any person with respect to the said draft before the aforesaid date will be considered by Government. As a part of the returns filed by the State, the State Government has filed a detailed statement which is in four parts. The first part shows the list of items which have been totally newly introduced for the first time in the final Rules and this statement gives the names of several Municipal Councils from which a request emanated in respect of certain items. In respect of the general item No. 86 it is stated that the Municipal Councils of Dombivali, Sangamner, Sangli, Jalgaon and many Municipal Councils from Marathwada where the Hyderabad District Municipalities Act was applicable and the octroi schedule under the Act made a provision for a residuary item, requested for the introduction of item 86. Part II of this statement deals with items partially newly introduced and the names of the several Municipal Councils which suggested this change are also specified. Parts III and IV give the names of the Municipal Councils along with the suggested changes in the minimum and maximum rates of octroi in respect of the several articles. Part V of the statement gives the items in respect of which weight basis was changed to ad valorem basis and a list of Municipal Councils which suggested such a change is also given. Now, it was contended on behalf of the petitioners that where the Rules were published for suggestions or objections, the Municipal Councils themselves were not entitled to make any suggestions or raise any objections, firstly because they cannot be faid to be a "person", and secondly because they cannot be said to be affected by the levy of octroi. Now, it is difficult to accept the argument that a Municipal Council is not a person and \ that it was not entitled to make any suggestions in respect of the maximum and minimum rates which the State Government was empowered to fix or with regard to the inclusion of any items in the Schedule to the Rules originally published. Now, it is difficult to accept the argument that a Municipal Council is not a person and \ that it was not entitled to make any suggestions in respect of the maximum and minimum rates which the State Government was empowered to fix or with regard to the inclusion of any items in the Schedule to the Rules originally published. Section 3 (35) of the Bombay General Clauses Act defines a "person" as including any company or association or body of individuals, whether incorporated or not, and it was contended by Mr. Pendse that the General Clauses Act itself defined a "local authority" in section 3 (26) and, therefore, "local authority" must stand excluded by the definition of "person" in section 3 (35). Now, it is no doubt true that section 3 (26) of the Bombay General Clause's Act defines "local authority" as meaning a municipal Corporation, municipality, local board, body of port trustees or commissioners, or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund. But the fact that "local authority" has been separately defined is no reason for holding that a Municipal Council which is an incorporated body of individuals is not covered by the definition of "person". Really speaking, so far as this Court is concerned, the matter stands concluded by a decision in Pallonje and Sons v. Lonavala Municipality5 where it has been held that a Municipality is included in the definition of the word "person". The question which, therefore, really requires to be considered is whether a Municipal Council can be said to be a person who is affected by the draft Rules. Mr. P. P. Deo relied on the decision of the Supreme Court in R. B. Sugar Company v. Rampur Municipality6 in which the Supreme Court was dealing with section 131 (3) of the U. P. Municipalities Act, 1916. The section read thus: "The Board shall, thereupon publish in the manner prescribed in section 94 the proposals framed under sub-section (1) and the draft rules framed under sub-section (2) along with a notice in the form set forth in Schedule III. The Supreme Court took the view that this section was in two parts. The section read thus: "The Board shall, thereupon publish in the manner prescribed in section 94 the proposals framed under sub-section (1) and the draft rules framed under sub-section (2) along with a notice in the form set forth in Schedule III. The Supreme Court took the view that this section was in two parts. The first part laid down that the Board shall publish proposals and draft rules along with a notice inviting objections to the proposals or the draft rules so published within a fortnight from the publication of the notice, and the second part provided for the manner of publication and that manner was according to section 94 (3). The question before the Supreme Court was whether the first part of section 131 (3) was mandatory and 10 that context the Supreme Court observed: "This provision deals with taxation. The object of providing for publication of proposal and draft rules is to invite objections from the inhabitants .of the municipality, who have to pay the tax. The purpose of such publication Obviously is to further the democrats have process and to provide a reasonable opportunity of being heard to those who are likely to be affected by the tax before Imposing it on them. Relying on these observations it was contended that the persons who are affected by the tax, as pointed by the Supreme Court, are the tax-payers and the Municipal Council cannot, therefore, e sat to e 10 any way affected by the octroi. Now, while it cannot be disputed that the notification in the case before the Supreme Court was in respect of the imposition of tax which became operative after it was finally published, and the persons who were affected by the action of the Municipality were the tax-payers alone, it is clear that the notification imposing the tax or proposing the imposition of tax was the act of the Municipality itself and in such a case, the question of the Municipality itself being affected by its own action cannot arise. The present case, however, stands on a different footing. In the present case, the draft Rules were not rules which were made by Municipal Councils. We are dialing with a notification relating to the maximum and minimum limits prescribed by the State Government in exercise of its power under section 105 (1), proviso, of the Act. The present case, however, stands on a different footing. In the present case, the draft Rules were not rules which were made by Municipal Councils. We are dialing with a notification relating to the maximum and minimum limits prescribed by the State Government in exercise of its power under section 105 (1), proviso, of the Act. The octroi tax, like all other local taxes, is to be imposed for building up the funds of the Municipal Council. The funds of the Municipal Councils under the Act are to be raised by taking recourse to the power of taxation under the provisions of the Act. But the power of the Municipal Councils to levy tax is not uncontrolled. It is controlled by the provisions of the Act, and in the instant case it is particularly controlled by the proviso to sub-section (l) of section 105 of the Act in the case of octroi. The Municipal Councils will not be entitled to levy taxes the rates of which will be less than the minimum or more than the maximum prescribed by the Government in view of the express provision and section 105 (1), proviso, of the Act. The rate of the tax, and indeed its maximum and minimum limit, is bound to have a direct impact on the funds which will he available to the Municipal Councils, for discharge of their duties and functions under the Act. Thus, the notification fixing the maximum and minimum rates has a direct impact on the Municipal Councils themselves apart from the fact that the tax-payer is also affected because he will have to pay octroi at some rate within the maximum and minimum limits prescribed under section 105 (1), proviso. Thus, if the rates prescribed by the State Government have a direct impact on the funds of the Municipal Councils in the sense that the raising of the revenue of the Councils is going to be regulated by the tax which must be imposed within the maximum and minimum limits set by the State Government, it is difficult to see why the Municipal Councils cannot be said to be affected by the maximum and minimum rates which are determined by the State Government. It is not permissible in the context of the provisions of section 105 (1), proviso, to give a restricted and narrow meaning to the words "persons affected;' by restricting the right to object or make suggestions to the imposition of the tax only to the tax-payer. We can always conceive of cases where certain goods might have excaped the attention of the State Government while making schedules or where the rates in respect of certain items might be found to be comparatively less or comparatively higher. We can also conceive of a case where though the State Government has initially restricted its schedule to a certain number of items, different Municipal Councils who may be out to find out new avenues of taxation or who may have some new article or goods in view, would like to suggest them to the State Government, and in such case it will be open to the State Government to modify the schedules at the suggestions of the Municipal Councils. In our view, the very concept of previous publication and final publication contemplates a change in the previously published items or rates in view of the suggestions which will have to be considered by the State Government. 14. Mr. Kakday on behalf of the Municipal Council, Arvi, has referred us to a decision in M. R. Pandya v. Chimanlal7 where the question before a Division Bench of that Court was whether section 23 (1) of the General Clauses Act, 1897, required that the publication of the final rules had to be made by the same authority which had published the draft rules. The question arose in the light of the States Reorganisation Act where the draft rules were published by the then State of Bombay and the final rules came to be published by the State of Gujarat. That part of the controversy is, however, not material for the present case. The question arose in the light of the States Reorganisation Act where the draft rules were published by the then State of Bombay and the final rules came to be published by the State of Gujarat. That part of the controversy is, however, not material for the present case. But the Division Bench in that case observed: "The main object of previous publication is to invite objections and to consider them, which means that the rules made may not, and are not expecied to be only a reproduction of the rules pre· published." (Italics is ours) It was further observed: "The main object and purpose of publication is that before the rules are made, an opportunity should be given by the authority to those who may be affected by them to object to all or any of them or make suggestions to alter or modify them. Further, that before the rules are finally put into effect, objections so received should be considered by the authority making the rules and on consideration of such objections, suggestions etc. if the authority does not find it necessary in its discretion to make any substantial change, then it may finally make the rules." In the instant case, as we have already pointed out, the Municipal Councils who were intimately concerned with the octroi tax as an important and major source of revenue could have always suggested to the State Government to make necessary changes either with regard to the number of items or with regard to the rates, or with regard to the change from weight basis to ad valorem basis. It was primarily the discretion of the State Government to accept those suggestions or reject them. In the instant case, it is no doubt true that a comprehensive item No. 86 was included which had the effect of making goods which were not included originally in Schedule I and which were not exempted from taxation under Schedule II subject to octroi for the first time as a result of the final publication. But it does not seem to be in the contemplation of law that every time a suggestion is accepted, the rules are required to be republished. But it does not seem to be in the contemplation of law that every time a suggestion is accepted, the rules are required to be republished. In our view, there was abundant power in the State Government to accept the suggestions of the Municipal Councils, and on the basis of the statement filed before us it appears that an item like item No. 86 was included in the tax legislation relating to octroi in a part of the former Hyderabad State in the Aurangabad Division, and a suggestion coming from that part was accepted by the State Government. We see no error or illegality on the part of the State Government in accepting the suggestion or including this item or making necessary changes in the final rules. 15. Our attention was invited by Shri Deo to two decisions of the Rajasthan High Court reported in Maula Bux v. Appellate Tribunal of State Transport Authority, Jaipur8 and Automobile Transport Rajasthan (Pr.) Limited v. State of Rajasthan9• In Maula Bux's case a Division Bench of the Rajasthan High Court was dealing with a notification amending rule 108 of the Rajasthan Motor Vehicles Rules, 1951. The draft amendment which was published state that in sub-rule (a) of Rule 103 for the words "the Chairman and two member of the State Transport Authority from time to time appointed by the Government" the words "the Transport Minister, the Legal Remembrancer to the Government of Rajasthan and the Director of Transport for the State of Rajasthan" shall be substituted. However, when the notification was finally published, it read: " for the words 'be the Chairman and two members of the State Transport Authority from time to time appointed by the Government', the words 'consist of the Transport Minister, Government of Rajasthan, as Chairman, and the Legal Remembrancer to the Government of Rajasthan and the Director of Transport for the State of Rajasthan as members shall be substituted." The final notification was challenged on the ground that the draft was different from the final notification inasmuch as in the draft notification there was no reference as to which one of the three persons shall be the Chairman, whereas the final notification provided that the Transport Minister was to be the Chairman. This contention was negatived and it was observed: "The powers of rule making under section 68 of the Motor Vehicles Act are subject to the condition of previous publication only and after a draft of the amendment of rules is published as required by section 23, it is open to the authority to make rules with or without changes in the previously published draft, subject however to the condition that the rule so made is not absolutely foreign to the draft. In the present case, the amendment of Rule 108 as finally made when compared with the previously published draft shows that the change is ancillary to the draft and it cannot be regarded as absolutely foreign to it." Relying on these observation it is contended on behalf of the petitioners that the changes of the nature made in the instant case in the final notification cannot be said to be merely ancillary to the draft and that they could also not be said to be not absolutely foreign to the draft. It is not possible for us to read the decision of the Rajasthan High Court as laying down a proposition that mere ancillary changes could be made at the time of final publication. One other circumstance which we cannot overlook is that we are dealing with a schedule to the Octroi Rules in which certain items of goods were included .in the originally published draft. When such a schedule is published for information and for inviting suggestions or objections the possibility of a change in the number of items in the schedule is implicit. These changes may be by addition of specific items or there may be a change which will cover all the !terns by putting in- a residuary item like item 86. If such changes are made in the number of items or goods to be subject to octroi, it is not possible for was to hold that these changes would become Illegal or that such changes would fail within the phrase "foreign to the draft" adopted by the Rajasthan High Court. The rates, maximum and minimum, were in respect of goods, and even such changes, we are unable to hold, could not have been made by the State Government or that such changes required any previous publication. The rates, maximum and minimum, were in respect of goods, and even such changes, we are unable to hold, could not have been made by the State Government or that such changes required any previous publication. The Rules themselves cannot be said to be entirely in a different shape and in our view the contention that changes in the original draft Schedules could not have been made without the previous publication £0 far as the newly proposed items or rates are concerned cannot be accepted. 16. It is not doubt true that some reliance was placed en the finality clause in the General Clauses Act on behalf of the State Government and the Municipal Councils, and the second decision of the Rajasthan High Court in Automobile Transport Rajasthan's case was relied upon both by the petitioners and on behalf of the State. On behalf of the State reliance was also placed on a decision of the Supreme Court in Berer Swadeshi Vanaspati v. Municipal Committee, Shegaon10; in which dealing with section 67 (7) of the C. P. and Berar Municipalities Act, 1922, which made a notification issued under section 67 conclusive evidence of the imposition of tax, the Supreme Court held that the notification being one which directed imposition of octroi and fell within sub-section (7) of section 67, and having been notified in the Gazetted it was conclusive evidence of the tax having been imposed in accordance with the provision of the Act and it could not be challenged on the ground that all the necessary steps had not been taken. However, in the view which we have taken that no previous publication was necessary in respect of the changes made in the Schedules we do not consider it necessary to go- into the question with regard to the scope of c1all~e (e) of section 24 of the Bombay General Clauses Act. 17. We then come to another contention advanced on behalf of the petitioners founded partly on Article 14 of the Constitution of India and partly on the terms of the proviso to sub-section (1) of section 105 of the Act. 17. We then come to another contention advanced on behalf of the petitioners founded partly on Article 14 of the Constitution of India and partly on the terms of the proviso to sub-section (1) of section 105 of the Act. It is not in dispute that in the Octroi Rules the maximum and minimum limits of that rate of octroi have been fixed irrespective of whether the Municipal Council which levies octroi falls within one or the other of the three Classes 'A', 'B' and 'C', contemplated by the Act. Section 4 of the Act classifies municipal areas into 'A' Class, 'B' Class and 'c' Class on the basis of the population thereof now, the contention is that by prescribing the same maximum and minimum rates of octroi in respect of all these three classes or Municipal Councils the State Government has treated similarly Municipal Councils which are dissimilar in their nature, and since the Octroi Rules do not make any distinction between these three different classes of Municipal Councils, the prescription of the rates is bad. This aspect of the matter was urged by Mr. B. A. Udhoji, Counsel appearing in Special Civil Application No. 799 of 1968. Mr. P. P. Deo appearing in Special Civil Application No. 882 of 1968 has also challenged the prescription of the same rates in respect of the three classes of Municipal Councils on the ground that the mandatory requirement of the proviso to sub-section (1) of section 105 has been violated. Mr. Deo relied on the well recognised principle that if the rules are in contravention of the provisions of the Act, then the rules are bad. A decision of the Mysore High Court in A. Irappa v. State11 was also relied upon. In that decision a Division Bench of the Mysore High Court bad held that the provisions of section 5-A of the Land Acquisition Act are mandatory and declaration made under section 6 without compliance with the provisions of section 5.A was invalid as the result of a transgression of section 5.A was to deprive the objector of a statutory opportunity to which he was entitled. We shall first take up the contention of Mr. We shall first take up the contention of Mr. Udhoji that the Municipal Councils of the three different classes are dissimilarly situated and they could not, therefore, have been treated in a similar manner for the purposes of the maximum and minimum rates of octroi. Strong reliance was placed by the learned Counsel on certain observations of the Supreme Court in State of Kerala v. Haji K. Kuttyl2. In that Case the Supreme Court struck down the charging section in the Kerala Buildings Tax Act, 1961. The Supreme Court found that the Act applied to the entire State of Kerala, and whether the building was situate ill & large industrial town or in an insignificant village, the rate of tax was determined by the floor area; it did not depend upon the purpose for which the building was used, the nature of the structure, the town and locality in which the building was situate, the economic rent which may be obtained from the building, the cost of the building and other related circumstances which might appropriately be taken into consideration in any rational system of taxation of building. It was found that in enacting the Kerala Buildings fax Act no attempt at any rational classification was made by the Legislature and that they had adopted merely the floor area of the building as the basis of tax irrespective of all other considerations. It was them observed and these are the observation on which the learned counsel relies as follows: "Where objects, persons or transactions essentially dissimilar are treated by the imposition of a uniform tax, discrimination may result, for, in our view refusal to make a rational classification may itself in some cases operate as denial of equality." Mr. Udhoji referred us to the provisions of section 6, 9, 61, 62, 65, 72 and 107 of the Act to underline the different treatment meted out to the three different classes of Municipal Councils by the Act itself. We have already referred to section 4- which classifies Municipal Councils on the basis of population. Consequently, the number of Councillors will also vary because under section 9 the minimum number of elected Councillors in an 'A' Class Municipal Council is fixed at 30, for a 'B' Class Municipal Council it is 20, and for a 'c' Class Municipal Council it is 15. Consequently, the number of Councillors will also vary because under section 9 the minimum number of elected Councillors in an 'A' Class Municipal Council is fixed at 30, for a 'B' Class Municipal Council it is 20, and for a 'c' Class Municipal Council it is 15. While in an 'A' Class Municipal Council for every 5,000 of the population above 50,000 there is an additional elected councilor but the total of elected Councillors is not to exceed 50, for a 'B' Class Municipal Council there is one additional elected Councillor for every 3,000 of the population above 20,000, and for a 'C' Class Municipal Council for every 2,000 of the population above 10,000 there is one additional elected Councillor. Section 61 also provides for different maximum rates of Honorarium per month at Rs.300/-, Rs. 200/- or Rs. 100 t- according as whether the municipal area is of 'A' Class, 'B' or 'c' Class. Standing Committees are prescribed only for 'A' and 'B' Class Municipal Councils by section 62, and there are five subjects Committees for these classes of Municipal Councils. However, so far as 'C' Class Municipal Councils are concerned, under section 65 there is to be a Standing Committee and the number of Subjects Committees is left to the discretion of the Municipal Council concerned. Under section 72 there ale different limits of financial sanctions in respect of the Standing Committees and Subjects Committees according to the classification of the municipal area and there is a special provision in section 107 permitting a 'C' Class Municipal Council for reasons to specified in a resolution to be adopted by a majority of not less than two· thirds of the total number of the Councillors deciding not to levy any of the taxes specified in sub-sections (1) and (2) of section 105 and the State Government has discretion to exempt such Council partially or fully from levying such tax or taxes for a period to be specified by the State Government in that behalf • Relying on these provisions it is urged that the Act contemplates different treatment in respect of different classes of Municipal Councils and they are, therefore, dissimilarly situated and uniform rates of maximum and minimum of octroi tax could not have been fixed. It is, however, urged on behalf of the Municipal Councils that notwithstanding a dissimilarity in their composition the right, duties, obligations and functions- of all the Municipal Councils are the same, and the course adopted by the State Government in fixing the same maximum and minimum rates of octroi in respect of these three different classes of Municipal Councils was well warranted and the rules fixing the octroi cannot, therefore, be bad on the ground that different rates are not fixed. It is not possible for us to accept the contention that Rule 3 or Schedule I is in any way violative of the provisions of Article 14 of the Constitution of India. We might immediately point out that it is net a Municipal Council which is making a grievance that it has been unequally treated. It is difficult to entertain a challenge of the kind raised in the petition at the instance of an individual in respect of the rates of octroi tax. We may also point out that there has been no levy as such of octroi and an that has been done is to fix the maximum and minimum rates within which a Municipal Council might fix octroi rates applicable within its limits. It is difficult for us to appreciate how the fixation of maximum and minimum rates of octroi can be said to infringe any right of the petitioners so as to enable them to make a grievance of the nature which is made in this petition. When challenge to a measure of taxation on the ground of hostile discrimination or on the ground that differently situated things or persons have been subjected to equal or same treatment is made the burden is very heavy on the person who challenges a taxation measure. The octroi which might ultimately be levied by a Municipal Council will be a tax on the commodity itself though ultimately it will be passed on to the consumer or it will have to be borne by the person who will import within municipal limits the goods which are subject to octroi for the purposes of use, consumption or sale. A tax of such a kind must always stand on a different footing than a case of rating in respect of which the decision of the Supreme COUI t in regard to the Kerala Land Tax Act was given. A tax of such a kind must always stand on a different footing than a case of rating in respect of which the decision of the Supreme COUI t in regard to the Kerala Land Tax Act was given. The decision of the Supreme Court in State of Kerala v. Haji K. Kutty was further considered by that Court in Twyford Tea Company v. State of Kerala18• In that case the Supreme Court was considering the validity of the Kerala Plantation (Additional Tax) Act, 1960, and the Kerala Plantation (Additional Tax) Amendment Act, 1967. Under Kerala Act of 1960 there was a levy of an additional tax on plantations which means land used for growing se,,-en kinds of crops, namely, cocoanut account, rubber, coffee, tea, cardamom and pepper. Section 3 was the charging section and under that section for each financial year a plantation tax additional to the basic tax charged as land tax under the Land Tax Act, 1955, was payable at the rate mentioned in Schedule I of the Act. The Schedule stated that no tax was payable if the aggregate extent of plantations held by a person was below five acres. But if the plantations held by a person was 5 acres, or more, a tax of Rs. 8/. per acre was payable with exemption for the first two acres. For the purpose of finding out the extent of the plantations in acres held by a person a method of calculation was added in Schedule II. This Schedule was subsequently amended by the Act of 1967. The name of the tax was also changed. The rate of tax was altered in Schedule 1 to Rs. 501- per hectare which was payable in respect of plantations of two hectres or more with an exemption for the hectre. This Schedule was subsequently amended by the Act of 1967. The name of the tax was also changed. The rate of tax was altered in Schedule 1 to Rs. 501- per hectare which was payable in respect of plantations of two hectres or more with an exemption for the hectre. The method of calculation of the extent of plantation in heetres is restated in Schedule II as follows: For the purposes of the assessment of Plantation tax payable by a person, the extent of plantations held by him shall be deemed to be the aggregate of the following, expressed in hectares, namely:- (i) the quotient obtained by dividing the total number of bearing cocoanut trees standing on all lands held by him by 200; (ii) the quotient obtained by dividing the total number of bearing arecanut trees standing on all lands held by him by 1500; (Hi) the quotient obtained by dividing the total number of yield rubber plants standing on all lands held by him by 450; (iv) the quotient obtained by dividing the total number of yielding coffee plants standing on all lands held by him by 1500; (v) the quotient obtained by dividing the total number of yielding pepper vines standing on all lands held by him by 1000; (vi) the extent of lands on which tea plants are grown which have begun to yield crops; (vii) the extent of lands on which cardamom plants are grown which have begun to yield crops; Provided that where the total extent of land held by a person, which is cultivated with the aforesaid crops, is less than the aggregate calculated as above, the actual extent alone shall be deemed to be the extent of plantations held by him." One of the challenges made to the validity of these Acts was that unequals had been treated as equals and the flat rate imposed upon all plantations irrespective of their yield was arbitrary. According to the petitioners in those cases, some of the plantations could not make enough profit to be able to pay tax and in their case the tax became confiscatory. According to the petitioners in those cases, some of the plantations could not make enough profit to be able to pay tax and in their case the tax became confiscatory. The Supreme Court, therefore, considered the question whether the Act was discriminatory inasmuch as it sought to treat plantations of different kinds as if they were equal in all respects by reducing them to a common measure of hectares when it was not possible to do so regard being had to the different incomes derived from these plantations. The Supreme Court referred to the decision in State of Kerala v. Haji K. Kutty and the decision in New Manek Chouk Spinning and Weaving Mills Co. Ltd. v. Municipal Corporation of the City of Ahamedabad14 and it was observed: "The proposition laid down was that taking only the floor area of a building as the basis for determination of the tax was an arbitrary method when buildings must have different rental values depending upon the nature of the construction, the kind of building and the purpose for which they can be used. These were held vital considerations in the rating of buildings and could not be ignored. These cases were decided on different principles and no analogy can be found merely because equal tax was imposed in diverse conditions." Referring to the burden on a person who challenges a taxation measure on the ground of discrimination, the Supreme Court observed in paragraph 16: "The burden is proving not possible 'inequality' but hostile 'unequal' treatment. This is more so when uniform taxes are levied. It is not proved to us how the different plantations can be said to be 'hostilely' or unequally treated. A uniform wheel tax on cars does not take into account the value of the car, the mileage it runs, or in the case of taxis, the profits it makes and the miles per gallon it delivers. An ambassador taxi and a Fiat Taxi give different outurns in terms of money and mileage. Cinemas pay the same show feet. We do not take a doctrinnaire view of equality. The Legislature has obviously thought of equalising the tax through a method which is inherent in the tax scheme. Nothing has been said to show that there is inequality much less 'hostile treatment. All that is said is that the State must demonstrate equality. That is not the approach. We do not take a doctrinnaire view of equality. The Legislature has obviously thought of equalising the tax through a method which is inherent in the tax scheme. Nothing has been said to show that there is inequality much less 'hostile treatment. All that is said is that the State must demonstrate equality. That is not the approach. At this rate nothing can ever be proved to be equal to another." 18. While stating the law with regard to discrimination it was further observed: "What is meant by the power to classify without unreasonably discriminating between persons similarly situated, has been stated in several other cases of this Court. The same applies when the legislature reasonably applies a uniform rate after equalising matters between diversely situated persons. Simply stated the law is this: Differences in treatment must be capable of being reasonably explained in the light of the object for which the particular legislation is undertaken. This must be based on some reasonable distinction between the cases differentially treated. When differential treatment is not reasonably explained and justified the treatment is discriminatory. If different subjects are equally treated there must be some basis on which the differences have been equalised otherwise discrimination will be found. To be able to succeed in the charge of discrimination, a person must establish conclusively that persons equally circumstanced have been treated unequally and vice versa." 19. Thus, while there can be no dispute about the proposition if different objects are equally treated, there must be some basis on which the differences have been equalised or otherwise there will be discrimination, the question is whether this principle can really be invoked by the petitioners in the present case. The Municipal Councils no doubt are classified for the purposes of the Act on the basis of population. The tax, however, is directly levied in respect of the goods and it is difficult to hold that there is any differentiation between the goods which are taken for consumption, sale or use within the limits of a Municipal Council of 'A' Class or 'c' Class. It may be that for the purposes of the Act the population and the area are differently treated, but that has no relevance to the contention that even the goods entering such areas should have been differently treated. The goods are the same. It may be that for the purposes of the Act the population and the area are differently treated, but that has no relevance to the contention that even the goods entering such areas should have been differently treated. The goods are the same. These goods may be the subject of trade in any part of the country. What rate the Municipal Council will charge in respect of a particular article was left to the discretion of the Council. All that the State Government did was that within the State the Municipal Councils were not permitted to levy octroi beyond the maximum and below the minimum limit. We fail to see how a charge could be made against such fixation of the limits on the basis that differently situated things have been treated equally. The trend of thinking of economic theorists appears to be in favour of a uniform rate of octroi and this matter was considered in some detail by a learned single Judge of the Rajasthan High Court in M Is. Popular House v. State of Rajasthan15• The learned Judge in that case referred in some detail to a report of a local finance enquiry committee set up by the Government of India 1951. This Committee recommended the continuance of the levy of octroi duty but it was in favour of ad valorem rates. This report was considered by the Local Self-Government Institute, Bombay, who, dealing with the question of model schedule observed with reference to Punjab: "The levy of octroi in that State (Punjab State) is both by weight as well as on ad valorem basis. An attempt is being made in that State for the preparation of a model schedule of octroi rates and my colleagues have probably taken a clue from this move on the part of the Punjab Government and made their suggestion for a model schedule. Dealing with this matter the Rajasthan High Court observed: "It is true that the conditions in the matters of trade and commerce differ fro m area to area and from town to town and sometimes conditions in respect of trade in one commodity may be different in the neighbouring towns, but in order to justify the difference in rates of octroi duty it must be established that the existing difference in the rates is deeply related with the existing different conditions obtainable in different towns. There must, therefore, be some rational basis while prescribing different rates of octroi in different municipalities." Reference was made to the decision in Gopal Narain v. State of U. P.16 which clarified the position that where different rates of taxes were applicable in different municipalities, and the existence of different rates could be justified provided that difference of rates has some relationship with the amenities provided by the municipalities for the purpose for which the tax was charged, and there must be some justification for charging higher rates for a particular tax. Thus, it is only when different rates of octroi in different areas are fixed by the State that occasion for justification will really arise. But no such question can really arise where the State restricts the taxing power of a local authority within the maximum and minimum limits. As pointed out by Mr. Kakday, even in the instant case, irrespective of the classification of Municipal Councils on the basis of population, the functions and the duty which Municipal Councils are required to perform are the same whether the Municipal Council is of Class' A', or Class 'B' or Class 'C'. The classification for the purposes of the Act in the matter of its constitution, in the matter of determination of the number of elected members or their honorarium does not in any way affect the fact that the functions and the duties which the Municipal Council of each town is called upon to perform and the obligations which it is called upon to discharge are the same and they will always require funds in smaller or greater proportion. The persons staying within the limits of such Municipal Council were not the subject of taxation and we are, therefore, unable to accept the contention that by prescribing the same maximum and minimum rates of octroi for all the classes of Municipal Councils, there has been any violation of Article 14 of the Constitution of India. 20. The other limb of the argument advanced by Mr. Deo must also be rejected. The proviso to sub-section (1) of section 105 which has been reproduced earlier requires that the maximum and minimum rates at which the taxes referred to in sub-section (1) shall be levied in different classes of municipal areas shall be such as may be prescribed by rules. Deo must also be rejected. The proviso to sub-section (1) of section 105 which has been reproduced earlier requires that the maximum and minimum rates at which the taxes referred to in sub-section (1) shall be levied in different classes of municipal areas shall be such as may be prescribed by rules. This proviso firstly empowers the State Government to make rules prescribing the maximum and minimum rates, and secondly it limits the taxation power of the Municipal Councils within the maximum and minimum limits prescribed by the State Government. Now, the argument is that this proviso in terms requires the State Government to prescribe different maximum and minimum rates in respect of different classes of municipal areas. That, however, does not appear to be a correct reading of the provision. The section must really be read as making a twofold provision. Firstly it provides for the limit within which the Municipal Councils shall levy taxes; and secondly, these maximum and minimum rates have to be prescribed by the rules. It may be stated that the power which the State Government has been given is not only in respect of octroi. There are other taxes on sub-section (1) such as a consolidated property tax, a tax on professions, trades etc., a tax on cinemas, and a tax on advertisements. It is not the source of power only of the State Government to prescribe the maximum and minimum limits but the scope of the power which would enable the local authority or the Municipal Councils to levy any of the taxes in section 105 is to be found in the main section read with the proviso because the proviso limits the extent of the power of the Municipal Councils. In a given case it may be found necessary by the State Government to prescribe different maximum and minimum rates of tax for different municipal areas but that would not prevent the State Government from prescribing the same maximum and minimum rates in respect of all the classes of municipal area. Really speaking, the power of prescribing different maximum and minimum rates for different Municipal Councils is included in the power to prescribe the maximum and minimum rates given by the proviso. Really speaking, the power of prescribing different maximum and minimum rates for different Municipal Councils is included in the power to prescribe the maximum and minimum rates given by the proviso. Now, emphasis is sought to be laid on the words in different Classes of municipal areas but if we read the proviso correctly, the words "in different classes of municipal areas" are used in a descriptive sense to indicate the local areas contemplated by section 3 of the Act within which the taxes to be levied by the types of the Municipal Councils referred to in section 4 are to be operative. In our view, the proviso to section 105 (I) merely prescribes that the maximum and minimum rates at which different classes of Municipal Councils shall levy taxes referred to in section 105 (1) shall not be more or less than the maximum and minimum rates respectively which may be prescribed by the rules. This prescription of the maximum and minimum rates may be the same for different classes of municipal areas or if the State Government so chooses, it may prescribe different maximum and minimum rates for three different c1aslles of Municipal Councils. The argument of the learned counsel appears to be that the State Government must apply its mind independently to the financial needs of the Municipal Councils of each class, the effect of the octroi duty on trade within the areas of different classes of Municipal Councils, and it must also take into account the paying capacity of the people who reside within the areas of the different classes of Municipal Councils. It is not possible to accept this argument. We are not dealing in this case with any particular levy. The rules which have been made by the State Government are operative throughout the State. For the purposes of determination of maximum and minimum rates of tax, it will be virtually impossible to take into account individual needs of the Municipal Councils of the three different classes throughout the State. The needs of Municipal Council of Class 'A' in one particular part of the State will not be the same as the needs of a Municipal Councils of the same class in another part of the State. This will also be true of the Municipal Councils of Classes 'B' and 0' in the different parts of the State. The needs of Municipal Council of Class 'A' in one particular part of the State will not be the same as the needs of a Municipal Councils of the same class in another part of the State. This will also be true of the Municipal Councils of Classes 'B' and 0' in the different parts of the State. The financial capacity of people to pay the tax is hardly of any relevance in the instant Case, and in any case it is difficult to appreciate how it will be possible for the State Government to take into consideration the financial capacity of the people in different parts of the State in the context of levy of octroi. It can never be taken for granted that when classification is made on the basis of population merely by virtue of that classification people of similar or identical paying capacity or financial status resides within the areas of that class of Municipal Councils. Similar will also be the case in the case of effect of trade. All taxation is bound to affect trade. Indeed, the source of revenue which comes by way of octroi is the trade itself. But that trade again cannot be classified on the basis of the areas of the different classes of Municipal Council It is quite possible that the municipal area within the jurisdiction of a Municipal Council of Class 'C' even with less population might be a busy market trading place as compared with the area within the jurisdiction of another 'c' Class Municipal Council where commerce and trade may not be of the same kind. These are considerations which are inherently impossible to be taken into consideration for the purpose of fixation of the maximum and minimum rates of octroi. It is not, therefore. possible for us to hold that the State Government was bound to fix separately the maximum and minimum rates of octroi for the different classes of Municipal Councils and that on account of the failure of the State Government to do so there was any violation of the mandatory provisions of the proviso to sub-section (1) of section 105, so as to make the Schedule 1 and rules 3 and 4 of the Octroi Rules to be ultra vires of the provisions of section 105 of the Act. 21. 21. That takes us to the last contention which was argued for the benefit of all the petitioners by Mr. Dee. It is not disputed that in the municipal areas of all the Municipal Councils against whom petitions have been filed octroi is already in force. That octroi was levied in accordance with the provisions of section 66 (1) (e) read with section 67 of the C. P. and Berar Municipalities Act, 1922. Section 67 prescribed the procedure for Imposing taxes. It is also not it dispute that taxes in the several. Municipal Councils against whom these petitions have been filed were imposed by framing by-laws. Now, the argument is that these taxes were saved by the provisions of section 346, clause (i), of the Act, and in effect what was being done by the Municipal Councils when they exercised their taxing power was to enhance the octroi tax which was already in force. It is not disputed that the resolutions which were passed by the Municipal Councils as a result of which the octroi tax was imposed in these several cases were in exercise of the powers under section 105 or the Act but what is argued is that while levying the octroi after the new Act came into force and after the new Octroi Rules were made, the Municipal Councils have overstepped the limits laid down in section 112 of the Act. Section 112 of the Act deals with the power of the Municipal Councils to vary the rates of tax within prescribed limits. Under that section it is provided that notwithstanding any rule, by-law or resolution specifying the amount or rate at which a tax is leviable, a Council may by a resolution passed at a special meeting, decide to increase of reduce the amount or rate at which such tax is leviable and to that extent the by laws already sanctioned by the State Government shall be deemed to have been suitably amended with effect from the date specified In the notice referred to under sub-section (2). Then there is a proviso to sub-section (1), which provides: "(a) such increase or reduction shall be within the maximum and minimum limits fixed in respect of such tax under the rules; (b) such increase or reduction shall not exceed ten per centum of the amount or rate at which such tax was leviable during the preceding official year." The argument is that while imposing the octroi tax under the new Rules not only had the Municipal Council to abide by the restriction that the tax as newly imposed should be within the maximum and minimum limits fixed under the rules made under section 105 (I), proviso, but also that the increase or reduction in the tax could not exceed 10 per centum of the amount or rate at which such tax was leviable during the preceding official years. In Special Civil Application No. 848 of 1968 which is directed against the levy of octroi by the Washim Municipal Council, the petitioners have filed a Schedule (Annexure C) which show an increase varying between 100 per cent to 2500 per cent in respect of various items. To give an illustration, in respect of Vanaspati, the existing octroi Was 62 Paise for every 37~ kg. The new octroi is 2.50 per cent of the price. The price of 37i kg. of Vanaspati is Rs. 180, and thus according to the Schedule there is a rise of700 per cent. In respect of lint (ginned cotton), the original octroi was 62 Paise on every 178 kg. According to the new levy, it is 2.40 per cent of the price which comes to Rs. 750. The original percentage came to 00.01. Thus there is a rise of 2400 per cent. In Special Civil Application No. 882 of 1968 also figures have been given which show that the percentage of increase in the rate of octroi is between 22 per cent to 2700 per cent. To take an illustration, in respect of coal and coke the original octroi rate was 6 Paise per ton and now the rate is 2 per cent i. e. Rs. 1.20 per ton, that is, about 20 times which would come to 2000 per cent. This kind of levy was not, according to the learned counsel, permissible in view of the mandatory provisions of section 112 of the Act. 1.20 per ton, that is, about 20 times which would come to 2000 per cent. This kind of levy was not, according to the learned counsel, permissible in view of the mandatory provisions of section 112 of the Act. Now, it is not possible for us to accept the contention that when octroi tax is levied after the coming into force of the Act and after the maximum and minimum rates have been fixed by the State Government by the rules made under section 105 (I), proviso, of the Act, this amounts to an increase in the 'existing octroi. Section 346, clause (i), of the Act, so far as is material, provides that any tax, rule or by law imposed or made in respect of an existing Council, under any of the repealed laws or any other law for the time being in force in the area of such existing Council, and in force immediately before the appointed day, shall, in so far as it is not inconsistent with the provisions of the Act, continue to be in force as if imposed or made in respect of the corresponding area of the successor Council until superseded by an authority competent so to do. Rule 34 of the Octroi Rules made by the State Government also provides that with effect from the commencement of the levy of octroi under those rules in any Municipal area, the rules by whatever name called relating to levy of such tax which may be in force in that area immediately before such commencement shall stand repealed in that area, except as respects things done or omitted to be done under those rules before their repeal. Now, there can be no doubt that till such time that any octroi tax is levied in accordance with the provisions of the new Act, the validity of the old tax is not affected and it continues to be operative, But the effects of section 31-6, clause (i) of the Act and rule 34 of the Octroi Rules is that if any tax is imposed or any rules are made which is or are inconsistent with the tax imposed or the rules made under the C. P. and Berar Municipalities Act, then in view of the provision of section 34- of the Octroi Rules, with effect from the commencement of the levy of octroi under the new law, the old rules and the tax case to be effective. Section 346, clause (i), is a provision of general application. In a given case, steps may not be taken to impose at the same time all the taxes enumerated in section 105 and or the taxes specified in section 10B. The effect will be that during the time when taxes are not imposed in accordance with the powers now given under section 105 and 108, the old taxes imposed and the rules governing those taxes made under the provisions of the repealed enactment, namely, the C. P. and Berar Municipalities Act, will continue to be operative. But what will be the position where a tax mentioned in section 105 is imposed in exercise of the positive power given under section 105 itself and rules are made, as in the case of Octroi Rules? In our view, the tax which is n6w imposed in exercise of the new power under section 105 and in accordance with the new procedure mentioned in the Octroi Rules is altogether a new tax and the earlier tax and the rules and regulations governing that the became ineffective and ceased to be operative immediately from the commencement of the levy of octroi under the new rules. It is difficult to treat the imposition of octroi under section 105 (1) proviso, as amounting to an increase in the rate of the old tax. It is difficult to treat the imposition of octroi under section 105 (1) proviso, as amounting to an increase in the rate of the old tax. The taxing power in pursuance of which the tax is imposed is under a different enactment and the provisions of section 346, clause (i), and rule 34 of the Octroi Rules leave us in no doubt that the octroi tax imposed under the C. P. and Berar Municipalities Act and the rules governing this tax made under that Act ceased to be operative with effect from the commencement of the levy of octroi under the new rules. Since the tax is a new tax, it cannot be subject to the limitation prescribed in section 112 because section 112 deals with the power to vary a tax. Variation of a tax contemplates a subsisting tax, an operative tax, which itself is continued in a modified form its rate having been increased or decreased. That, however, is not the p03ition when a tax in exercise of the power under section 105 is imposed in accordance with the rules framing of which is a condition precedent to the exercise of that power. The question of infraction of section 112 of the Act does not, therefore, arise in the instant case. 22. While these petitions were being heard, we had sent for a decision of this Court at Bombay which was not immediately available, dealing with the validity of section 105 of the Act, in the Dhulia Agricultural Produce Market Committee’s v. The Dhulia Municipal Council17, in which also the provisions of section 105 of the Act were challenged on the ground of excessive delegation. Since we had heard the arguments for a considerable length of time, we went through the arguments at full length of time though the matter was really concluded by a decision 01 this Court. In the Dhulia Agricultural Produce Market Committee's case, this Court referred to the decision in Birla Mill's case and the several theories propounded therein with regard to delegation of powers and observed: "In our view, it is not necessary to canvass the various theories which hold the field in connection with the delegation of powers. In our view whichever of the three theories adopted by the majority is applied section 105 of the Act in the present case must be held to be valid. In our view whichever of the three theories adopted by the majority is applied section 105 of the Act in the present case must be held to be valid. The circumstances considered by the learned Chief Justice in his reasoning in Delhi Municipality's case must apply to the present case, if at all those circumstances are necessary to be considered The test laid down by the two other learned Judges (Hidayatullah & Ramaswami JJ.) is also satisfied, It is clear that legislature has not abdicated its functions at all particularly when one remembers that the rules so framed, are under section 321 (2) required to be laid before each House of the State legislature under section 321 (4) of the Act while in session, for a total period of thirty days and are subject to such modification as the Houses agree," In the same case this Court negatived the argument which we have just considered, namely, that the tax imposed under section 105 must confine itself within the limits of the proviso to sub-section (1) of section 112 of the Act. Dealing with this contention this Court observed: The first answer is that section 112 of the Act relates to variation in the levy of the tax which is to be made by the Council itself and has nothing to do with any other supervening authority. The last part (If clause (I) to section 346 of the Act makes it clear that any notification, notice, tax etc. is to continue in force as if made, issued or imposed by the successor Council until superseded by the authority competent so to do. Section 105 of the Act emphasises compulsion upon the Council to levy the tax between the maximum and minimum fixed as prescribed by the Rules. Even though, therefore, it is possible to contend that the tax levied at the old rate continued to be a tax under the new Act, it so constituted only for a limited period i.e. until superseded by a competent authority. Inasmuch as the Rules required the levy of the tax at the new rates within the prescribed limits within thirty days from the corning into force of the Rules, the Council acted within its power in varying the rates of the tax under the compulsion contained in section 105 of the Act read with the Rules as framed. Inasmuch as the Rules required the levy of the tax at the new rates within the prescribed limits within thirty days from the corning into force of the Rules, the Council acted within its power in varying the rates of the tax under the compulsion contained in section 105 of the Act read with the Rules as framed. Section 112 of the Act, therefore, cannot have any application in such a case," The decision, therefore, takes the same view which we have taken in these cases. 23. As a result of the above discussion we must hold that the proviso to sub· section (1) of section 105 of the Act does not suffer from excessive delegation, that the Octroi Rules have been validly framed, and that rule 3 of the Octroi Rules read with Schedule I does not in any way violate Article 14 of the Constitution of India. These were the only points which were argued in Special Civil Applications Nos. 799, 779, 878, 852, 878, and 853 of 1968. No other points were urged in these petitions. These petitions must, therefore, be rejected. 24. We shall now take up the four individual cases in which additional points were urged. The first one is Special Civil Application No 844 of 1968. In this petition a resolution as required by rule 3 of the Octroi Rules was passed on 11-9-1968 by the Municipal Council, Chandur Railway. The meeting was presided over by one Rambhau Pudke who was the President of the Municipal Council. It is argued on behalf of the petitioners by Mr. Mandlekar that the resolution was carried by one vote because 8 votes were cast in favour and 7 against the resolution, and it is urged that a daughter of the President was appointed as a teacher from 26-12-1967 by a resolution of the General Committee of the same Municipal Council held on 23-1-1967. Thus, according to the learned counsel, the respondent No. 3 was not entitled to attend the meeting because he stood disqualified in view of section 16 (1)(i) of the Act. Thus, according to the learned counsel, the respondent No. 3 was not entitled to attend the meeting because he stood disqualified in view of section 16 (1)(i) of the Act. Section 16 (1) (i) provides that no person shall be qualified to become a Councillor whether by election, co· option or nomination, who, save as hereinafter provided, has directly or indirectly, by himself or his partner, any share or interest in any work done by order of a Council or in any contract with or under or by or on behalf of a Council. Thus, what is urged is that the President, respondent No.3, was interested in the contract of employment between the Municipal Council and his daughter and was, therefore, disqualified and, therefore, could not have attended the meeting. Now, it does not appear that the President was initially disqualified to be a Councillor, nor is it the case of the petitioners. The disqualification, if any, was incurred later, and as provided under section 44- (3) of the Act the Councillor cannot be said to have ceased to hold office until the Collector decides the question of disqualification and he gives his decision that a vacancy has arisen. No such proceeding was taken by the Collector and there was no decision by the Collector about any vacancy. Consequently, the respondent No.3 cannot be said to have ceased to hold office merely by virtue of the fact that his daughter was employed as a teacher in the Municipal Council. The challenge that the resolution was not validly passed must, therefore, be negatived. In this view, Special Civil Application No. 844 of 1968 must also stand rejected. 25. In Special Civil Application No. 848 of 1968 which is directed against the levy of octroi by the Washim Municipal Council, it is urged that the question of levy of octroi was not mentioned as an item on the agenda of the meeting in which the by-laws, were passed. The petitioners contend in paragraph 14 of the petition that "the framing of the by-laws and schedule of rates was not on the agenda of the special meeting dated 8-9-1968", and therefore, the meeting was incompetent to frame the by-laws including the framing of the schedule of rates. The petitioners contend in paragraph 14 of the petition that "the framing of the by-laws and schedule of rates was not on the agenda of the special meeting dated 8-9-1968", and therefore, the meeting was incompetent to frame the by-laws including the framing of the schedule of rates. Now, it is no doubt true that the notice of the meeting which is produced before us refers to the subject as "To consider the new octroi rules and the rates made by the Government." The notice of the meeting states that "the special meeting of the Washim Municipal Council will be held on Sunday the 8-9-1968 in the morning at 9 a. m. in the Municipal Office to consider the following subjects. All Councillors are requested to attend." Now, it is true that the subject of the rates was not specifically mentioned in the notice. The learned counsel for the Municipal Council has made available to us the proceedings of the meeting of the Municipal Council held on 8·9-1963, and in spite of the fact that the notice has not been properly worded, the proceedings leave us in no doubt that what was intended to be discussed was the levy of octroi and the octroi rates. There was really no question of considering the Octroi Rules made by the Government because the maximum and minimum rates and the rules were binding on the Municipal Council. It is obvious that the person who issued the notice, namely, the President, did not properly knew how to describe the subject which had to be discussed and the proceedings show that the resolutions dealing with the establishment of octroi posts, the boundaries and the rates have all been passed unanimously. It is not the grievance that any member has been prejudiced by this wrong description of the subject or that this prevented him from attending the meeting. An error in the description of the subject in the agenda did not vitiate the proceedings which took place at the meeting. We are, therefore, unable to find any illegality in the rates of octroi fixed by the Municipal Council, Was him, which are challenged in Special Civil Application No. 8-1.8 of 1968. This petition must, therefore, also be dismissed. 26. In Special Civil Application No. 882 of 1968 Mr. We are, therefore, unable to find any illegality in the rates of octroi fixed by the Municipal Council, Was him, which are challenged in Special Civil Application No. 8-1.8 of 1968. This petition must, therefore, also be dismissed. 26. In Special Civil Application No. 882 of 1968 Mr. Deo on behalf of the petitioners pointed out that the State Government itself amended the maximum and minimum rates in several items in the Schedule with effect from 27-9-1968. It is contended that the resolution of the Municipal Council, Arvi, imposing octroi was passed on 8-9-1968 and could not have taken effect till at least the period of one month expired i. e. it would take effect earliest in the first week of October 1968. We are shown the maximum and minimum rates in respect of gold which is item 54 and the maximum rate in respect of gold and silver was 4 per cent and the minimum rate was I percent. A reduction was made on 27-9-1968 by which the maximum rate in case of gold was reduced to 0.25 per cent and in the case of silver to 0.50 per cent. The minimum rate was also changed in the case of gold to 0.12 per cent and in the case of silver to 0.25 per cent. We were also shown the reduced rate in respect of edible oils which were originally covered by item 5 and· maximum rate was 4 per cent and the minimum rate was 1.5 per cent. Year that were now changed to 0.50 per cent and 0.25 per cent in the case of edible oils intended to be used for manufacture of hydrogen crated oils or vanaspati the hydrogenerated oils or vanaspati or bottled edible oils. The Municipal Council in paragraph 27 of their return have justified the levy at 2 per cent ad valorem on gold on the basis that when they passed their resolution dated 3-9-1968 the old notification dated 22-7-1968 was in force and the Municipal Council thus wanted to justify the imposition of levy of octroi at 2 per cent ad valorem. The Municipal Council in paragraph 27 of their return have justified the levy at 2 per cent ad valorem on gold on the basis that when they passed their resolution dated 3-9-1968 the old notification dated 22-7-1968 was in force and the Municipal Council thus wanted to justify the imposition of levy of octroi at 2 per cent ad valorem. It is true that in these petitions it is not possible to ascertain whether the petitioner in this petition or any other petitioners were required to pay octroi in excess of the maximum prescribed in respect of those items where the maximum and minimum rates have been amended by the Government subsequent to the passing of the resolution by the Municipal Council but before the rates levied by the Municipal Council came into force. In any case, it is difficult for us to find any sanction for the Municipal Council to recover octroi at the rates levied in accordance with the unamended Schedule rates in respect of items where the maximum rate has already been reduced by the State Government by modification and amendment of the Rules before the levy became effective. There could not be any power in the Municipal Councils to recover octroi at a rate which is higher than the maximum fixed by the notification dated 27-9-1968 after that date. It was also sought to be argued that the imposition of octroi on unginned and ginned cotton was beyond legislative competence as cotton, unginned or ginned, was not brought within municipal limits for consumption therein. It was urged that unginned cotton was ginned and pressed into bales and was exported and similarly ginned cotton was brought within municipal limits for pressing and export. The petitioner No.1 in Special Civil Application No. 882 of 1968 had alleged that he had a small ginning factory at Deoli, and since he had no pressing factory at Deoli, he had to bring the ginned cotton to Arvi for being pressed into bales which are then exported to places outside Arvi. After the matter was argued for some time, the learned counsel for the petitioners wanted this point to be left open as sufficient facts necessary for the decision of the question were not available on the record. We, therefore, declined to decide the contention raised. The petitioner is at liberty to raise the contention whenever occasion arises. After the matter was argued for some time, the learned counsel for the petitioners wanted this point to be left open as sufficient facts necessary for the decision of the question were not available on the record. We, therefore, declined to decide the contention raised. The petitioner is at liberty to raise the contention whenever occasion arises. Subject to the order with regard to the amended rates, this petition must also be rejected. 27. In Special Civil Application No. 991 of 1968 which is directed against the levy of octroi by the Municipal Council, Akot, the grievance of the petitioner appears to be that the members who constituted the Municipal Council came from different castes and the rates have been so fixed as to suit the business interest of the members of the majority party because, according to the learned counsel, in respect of items with which some of the members of the majority are concerned, the minimum rate has been fixed. It is alleged in paragraph 4 of the petition that the President of the Council himself was a Mali by caste and represented the interests of Malis whose business is to grow and sell vegetables, and item 16 which relates to vegetables was taxed at the lowest rate. A minimum rate of octroi was fixed in respect of fruit, which is item 17, became the Vice-President was a fruit-seller. Similarly, a member, Kisan Januji Bundale, dealt in bricks and in respect of bricks there was a minimum rate fixed, as also in the case of cutlery in which another member called Arjun Sindhi dealt. The grievance appears to be that the majority has used its strength in an arbitrary manner which would prejudicially affect the interests of the petitioners who belong to the opposite party. Now, in a case where the Rules contemplate the fixation of rates of octroi by passing a resolution, the only question which can be considered is whether the resolution has been properly passed or not. This Court can hardly go behind the motives in fixing the different rates of octroi which is a matter for the Municipal Council and consequently for the persons in charge of the affair! of the Municipal Council to determine. This Court can hardly go behind the motives in fixing the different rates of octroi which is a matter for the Municipal Council and consequently for the persons in charge of the affair! of the Municipal Council to determine. Since the resolution has been passed by majority, it will not be possible for this Court to interfere with the levy of octroi on the grounds urged by the petitioners. The petition must, therefore, fail. However, it appears that in respect of several items such as suffron, chemicals and other items which are specified in items 12, 14, 24, 25, 3a, 33, 51, 52, 54 and 57 the rates fixed are beyond the maximum limit prescribed by the State Government. In spite of our repeated efforts to get some clarification from Shri Palshikar appearing on behalf of the Municipal Council, we have not been able to get any information because, according to him, the Municipal Council itself was superseded and the Administrator does not respond to his communications in spite of two telegrams being sent. We have already held earlier that any octroi duty in excess of the maximum prescribed by the State Government cannot be recovered by a Municipal Council. The contents of Annexure P-l which gives the list of items in respect of which more than the maximum rate has been levied have not been controverted though the petition has been pending now for almost 51/2 years. We must, therefore, direct that the Municipal Council, Akot, is not entitled to recover octroi at any rate in excess of the maximum fixed by the State Government under section 105 (1), proviso, of the Act. This petition is thus partly allowed with costs. 23. The result is that Special Civil Applications Nos. 799, 779,852,878, 844, 848, 853 and 882 of 1968 are dismissed. Special Civil Application No. 991 of 1968 is partly allowed. In all the cases, except Special Civil Application No. 991 of 1968, in the circumstances we make no order as to costs. In Special Civil Application No. 991 of 1968 the Municipal Council will pay the costs of the petitioners. Order accordingly.