JUDGMENT CHANDURKAR J.-The only one question which arises in this petition is whether for the purposes of the levy of octroi by Ambernath Nagarpalika Parishad (hereinafter referred to as the "Municipal Council") 'rock phosphate' falls within entry No. 85 as a chemical manure in Schedule I to the Maharashtra Municipalities (Octroi) Rules, 1968 (hereinafter referred to as the "Octroi Rules"), or whether it was liable to be taxed in the residuary entry No. 85 of the Schedule. 2. It is not in dispute that the petitioners are manufacturers of fertilizers and for that purpose, they import rock phosphate from abroad. Rock phosphate is used by the petitioners as raw material in the manufacture of superphosphate and triple superphosphate. The Municipal Council had published an octroi schedule of their own making certain alterations in the schedule attached to the Octroi Rules and under entry No. 86, octroi was made payable on rock phospate at 2%. This levy remained in force for the purposes of the Municipal Council up to 31st March 1970 and it was in accordance with the rate prescribed by the Municipal Council at 2%that octroi was demanded from the petitioners in respect of rock phosphate brought in within the municipal limits during the months of October, November and December 1969. The total duty on rock phosphate for these three months amounted to Rs. 53,674.36. The three bills in respect of the demands for these three months are filed by the petitioners as Ex. I (collectively), the bills for the months of October, November and December 1969 being dated 18th December 1969, 26th February 1970, and 28th February 1970. The petitioners challenge the rate at which octroi has been levied because, according to them, octroi should have been levied at the rate of Re. 1 per metric tonne, as rock phosphate as a chemical manure would fall within entry 85 to the schedule and they were liable to pay only Rs. 17,290.57. The petitioners, therefore, seek to have the three notices quashed on the ground of an illegal levy of the octroi duty. In addition, the petitioners also seek a direction for a refund of the amount of Rs. 12,863 on account of excess payment in accordance with the bill dated 10th December 1969. 3. The petition is strenuously opposed both on behalf of the Municipal Council and the State Government. In addition, the petitioners also seek a direction for a refund of the amount of Rs. 12,863 on account of excess payment in accordance with the bill dated 10th December 1969. 3. The petition is strenuously opposed both on behalf of the Municipal Council and the State Government. The Municipal Council takes shelter under a circular issued by the State Government in the Urban Development, Public Health and Housing Department, being Circular No. MMA / 1069 /20444 / A dated 6th August 1969. This circular refers to the earlier Government letter No. MMR 1069/90915- Unification IV in which the Government had taken the view that rock phosphate was a chemical manure and was subject to levy of octroi under entry No. 85 of Schedule I of the Octroi Rules, 1968. According to the State Government, they had reconsidered the position and their view now was that rock phosphate, if used as a raw material for the manufacture of superphosphate, should be subject to levy of octroi under entry No. 86 of Schedule I to the Octroi Rules and otherwise it will be covered by entry No 85 of Schedule I as a chemical manure. The material pare of the circular reads as follows :- "Government has reconsidered the question on receiving some representations and is now pleased to clarify that whenever "Rock phosphate" is used as a raw material for manufacture of Superphosphate, it should be subject to levy of octroi under entry No. 86 of Schedule I of Maharashtra Municipalities Octroi Rules, 1968, otherwise as a chemical manure it will be covered by entry 85 of Schedule I." Both the Municipal Council and the State Government have contested the position that rock phosphate is generally used as manure and. according to them rock phosphate is essentially used as raw material for the manufacture of the fertilizers and it would, therefore, not fall under entry No. 85 and will, therefore, have to fall under residuary entry No. 86. 4. It will be convenient at this stage to refer to certain provisions of the Maharashtra Municipalities Act, 1965 (hereinafter referred to as the "Municipalities Act"). Provision is made in section 105 of the Municipalities Act in sub-section (1) which makes it obligatory on the Municipal Councils to impose certain taxes specified in that sub· section. 4. It will be convenient at this stage to refer to certain provisions of the Maharashtra Municipalities Act, 1965 (hereinafter referred to as the "Municipalities Act"). Provision is made in section 105 of the Municipalities Act in sub-section (1) which makes it obligatory on the Municipal Councils to impose certain taxes specified in that sub· section. The material part of section 105 (1) reads as follows :- "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 listed below: (a) ….. (b) an OCtroi; (c) (d) (e) 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.” 'Octroi' is defined under section 2 (28) as meaning a "tax on the entry of goods into a municipal area for consumption use or sale therein". In addition to the compulsory taxes which have to be imposed by the Municipal Councils, there are certain other taxes which it is left to the discretion of the Municipal Councils to impose, such provision having been made in section 108. The proviso to section 105 (1) contemplates that rules will be made by the State Government specifying the maximum and the minimum rates at which the, compulsory taxes shall be levied in different classes of municipal areas and rules will also be made with regard to matters relating to imposition. assessment, collection and exemptions of the taxes. Rules with regard to octroi were made by the State Government on 22nd July 1968 and they came into force on the 14th August 1968. assessment, collection and exemptions of the taxes. Rules with regard to octroi were made by the State Government on 22nd July 1968 and they came into force on the 14th August 1968. Rule 3 is the only material rule to which a reference is necessary and it reads as follows :- "Levy of octroi and maximum and minimum rates therefor.-(1) Subject to the provisions of the Act and the rules and by-laws made thereunder, octroi shall be leviable by every Council in respect of the several goods specified in Schedule I. (2) The rate at which octroi shall be levied by the Council on any goods shall not exceed the maximum rate specified therefor in column 3 or, as the case may be, in column 5, and not be less than the minimum rate specified therefor in column 4 or, as the case may be, in column 6, of that schedule." Columns 3 and 4 of the Schedule deal with ad valorem rates and columns 5 and 6 specify that octroi is leviable on quantity basis for 10 kilograms unless otherwise specified. The first column of the schedule gives the serial number of the entries and the second column is headed as "description of goods." Entry No. 85 reads as "Chemical manures", the maximum rate of the octroi being specified as Rs. 1 per tonne and the minimum of 75 paise per tonne. Entry No. 86 is a residuary entry and it reads: "Goods not included in any of the above items and not specifically exempted in Schedule II." The maximum rate prescribed is 1.50% and the minimum 0.25% It was fairly conceded by Mr. Sawant appearing on behalf of the Municipal Council that in so far as the rate of octroi at 2% exceeds the maximum prescribed under Entry No. 86, it will be invalid having regard to the provisions in rule 3 (2) of the Octroi Rules. 5. Before we go to the merits of the contentions raised, we must notice a preliminary objection taken on behalf of the respondents to the maintainability of the petition in view of the new provisions in Article 226 of the Constitution of India as amended by the Constitution (Forty-second Amendment) Act, 1976. 5. Before we go to the merits of the contentions raised, we must notice a preliminary objection taken on behalf of the respondents to the maintainability of the petition in view of the new provisions in Article 226 of the Constitution of India as amended by the Constitution (Forty-second Amendment) Act, 1976. The learned counsel contended that in view of the provisions of Article 226 (3) since the petitioners are complaining of a breach of the provisions of the Municipalities Act and the Octroi Rules, their case will fall under either clause (b) or (c) of Article 226 (1) and the petitioners had alternative remedies open to them in the nature of an appeal to the Magistrate under section 169 of the Municipalities Act and the order of the Magistrate is further subject to revision under section 171 of the Municipalities Act. 6. Now, the main contention in the petition is that octroi is being demanded from the petitioners at the rate of 2% otherwise than by authority of law because octroi was payable not under entry No. 86 but under entry No. 85. If this Court comes to the conclusion that the demand was entirely illegal and that octroi was payable only under entry No. 85, the demand made by the Municipal Council would have the effect of depriving the petitioners of their property without authority of law. This would in turn amount to a clear violation of the fundamental right under Article 31 (1) of the Constitution of India. The provisions of Article 226 (3) do not create any bar against entertaining a petition in a case where the petition is for the enforcement of any of the rights conferred by the provisions of Part III of the Constitution because the provisions of Article 226 (3) are attracted only where the petition is for the redress of an injury referred to in Article 226 (1) (b) or (c). Article 226 (3) will not be a bar in the present case to the petitioners invoking the jurisdiction of this Court under Article 226 of the Constitution of India since the petition is in substance a petition for the enforcement of their fundamental right of property. Article 226 (3) will not be a bar in the present case to the petitioners invoking the jurisdiction of this Court under Article 226 of the Constitution of India since the petition is in substance a petition for the enforcement of their fundamental right of property. In this view it is not necessary to consider whether the remedies provided by sections 169 and 171 of the Municipalities Act were adequate and equally efficacious, as contended by the learned counsel for the petitioner. 7. The next question which arises is whether rock phosphate is a chemical manure. Mr. Devnani appearing on behalf of the State Government has contended that the right criterion for deciding whether rock phosphate was a chemical manure or not was the main use to which rock phosphate was generally put and, according to the learned counsel for the State, since the main 'use of rock phosphate is as raw material in the manufacture of superphosphate, it cannot be classified as a chemical manure and was, therefore, rightly taxed under the residuary entry No. 86. 8. The petitioners have relied on certain authorities. Excerpts from certain books dealing with fertilizers have been produced on record some of which go to show that rock phosphate is a recognised chemical manure and put to use as such and, according to the learned counsel, rock phosphate must, therefore, be treated as a chemical manure. 9. Amongst the authorities to which we have been referred we may first refer to a Handbook of Manures and Fertilizers, which is a publication of the Indian Council of Agricultural Research, where rock phosphate is treated as a category of phosphatic fertilizers. At page 116 of this publication of March 1964, the following is stated with regard to the use of rock phosphate: "Considerable quantities of rock phosphate are dressed to highly acidic soils. This is ground to very fine mash and then applied to the soil. Finer the powder of the material greater is the availability of P2O5 to the crop." With regard to the suitability to a particular kind of soil it is stated in this handbook as follows as at page 121 :- "The effectiveness of rock phosphate is much more on acidic than on alkaline soils. The phosphorous in this fertilizer is citrate soluble. The phosphorous in this fertilizer is citrate soluble. It does not dissolve in soil water so readily and remains fixed in the material unless large doses of farmyard manure or green manure be frequently added to the soil. It has proved very effective in highly leached soils of Kerala and Mysore States on which paddy is cultivated. The availability is not affected by the water-retentive power of the soil. It is very much in demand in Kerala State. The effectiveness is enhanced by mixing it with superphosphate and by finely powdering the material." Rock phosphate is also described clearly as "naturally occurring inorganic fertilizer." In "The Soil and Its Fertility" by H. Teuscher and R. Adler, the authors have observed at page 304 that rock phosphate, in its raw state, is sometimes recommended as being preferable to superphosphate. The authors' have pointed out at page 306 that for acid soils phosphate rock represents a relatively good source of phosphorus as long as liming does not become necessary. In a treatise on "Soils: Their Chemistry and Fertility in Tropical Asia" by four authors R. V. Tamhane, D. P. Motiramani, Y. P. Bali and Roy L. Donahue, the following passage occurs: "For India and Asian countries, rock phosphate comes chiefly from North African countries and the U. S. A. Its main use is for the manufacture of superphosphate .... It is recommended that rock phosphate be used instead of superphosphate on acid soils since the latter would largely become unavailable, while the former would become slowly available due to soil acidity. For the effective results, rock phosphate should be used in heavy applications, particularly with green-manure crops, since legumes are more efficient in utilizing phosphate than grain crops." In a publication dealing with "Superphosphate: Its History, Chemistry, and Manufacture" brought out by the U. S. Department of Agriculture in 1964, it is stated at page 334 that finally ground phosphate rock is used for direct application to the land in most of the fertilizer using countries of the world. In a work on "Phospheric Acid, Phosphates- and Phosphatic Fertilizers" by Wm. In a work on "Phospheric Acid, Phosphates- and Phosphatic Fertilizers" by Wm. H. Waggaman, Senior Mineral Technologist, Bureau of Mines, U. S. Department of Interior, 2nd edition, it is pointed out at page 37 : "In order to maintain the fertility of soils indefinitely with respect to phospheric acid, a number of agronomists and agricultural chemists recommend the application of finely ground unacidulated raw rock phosphate directly on the field….. From a strictly theoretical standpoint it would appear that finely ground raw rock phosphate should be an effective phosphate carrier particularly when applied to soils low in P2O5." In "Soils and Soil Fertility" by Louis M. Thompson, Associate Dean of Agriculture, Iowa State College, the following is stated at page 262 : "There is something to be said for ground raw-rock phosphate. The material is cheaper than superphosphate and satisfactory results can be obtained on moderately acid soils (below pH 6.5) well supplied with crop residues or manure. There have been times when there was not enough superphosphate to supply the farmer demand while rock phosphate was available," Even the latest pronouncement of the Government of India on Import Trade Control Policy shows that rock phosphate is described as a phosphatic fertilizer and is clearly classified as a mineral or chemical fertilizer while dealing with the manner as to how the import of the fertilizer is to be canalised. (See Import Trade Control Policy, Volume I. 1977-78, page 31 at 31.02/05 and page 85 item 3 (ii) (a) of Group D.) Even the Goods Tariff which deals with classification of goods for the purpose of booking over the Indian Government Railways, rock phosphate is described as a chemical manure under the subhead "Mineral Phosphate". (See Goods Tariff No. 34, Part I, Volume n, page 65 and page 341.) The Government of India had issued a fertilizer control order in 1957 in the exercise of its powers under section 3 of the Essential Commodities Act, 1955, wherein in section 2 (d) the word 'fertilizer' has been defined as meaning any substance used or intended to be used as a fertilizer of the soil and specified in Column 1 of the Schedule I and includes a mixture of fertilizers and special mixture of fertilizers. In the Schedule at serial No. 23 rock phosphate is clearly mentioned as one of the fertilizers. In the Schedule at serial No. 23 rock phosphate is clearly mentioned as one of the fertilizers. The authorities to which we have earlier referred and even the publications of the Government of India as also that of the Council of Agricultural Research clearly recognise the fact that rock phosphate is a fertilizer. Indeed, in our view, hardly any argument is possible on the question that rock phosphate is known throughout the world as a chemical fertilizer, though the extent of its use depends upon the kind of soil that is to be treated. It may be that one :of its uses is that it is used in the manufacture of superphosphate, but that will not cause a change in the description of the article, namely, that it is essentially a chemical manure. We have referred earlier to an extract from "Soils: Their Chemistry and Fertility in Tropical Asia" where the authors have stated that the main use of rock phosphate is for the manufacture of superphosphate. These observations, on which the respondents have relied, however, do not affect the basic position that rock phosphate is itself a chemical fertilizer. If rock phosphate has been so recognised as a chemical fertilizer by those who are well-versed in the science of agriculture and its character as a chemical fertilizer has also received recognition from the Government of India, it will be too late in the day to contend that rock phosphate is not a chemical fertilizer. 10. Once we accept the contention of the petitioners that rock phosphate is a chemical fertilizer, then the next question is whether the use to which it is put is relevant for the purpose of determining its liability of octroi. The general principle is well established that where a particular article finds mention is a specific classification, that article cannot be made to fall in the residuary entry. When the State Government made their rules with regard to the imposition and the levy of octroi, the goods in respect of which octroi was to be paid have been specified with reference to their description because, as earlier pointed out by us, column 2 of Schedule I of the Octroi Rules is headed as "description of goods." Entry 85, namely, chemical manures will, therefore, take in any article which satisfies the description of a chemical manure. When considering the question of a description of a particular article, the description which is generally accepted by these dealing with that article will alone have to be taken into account. It is not the case of either the Municipal Council or the State Government that rock phosphate, which has been referred to as a chemical manure by the authorities dealing with the soil chemistry and even the Government of India, is known by any other term or that it is described in any other manner. 11. In Dunlop India Ltd. v. Union of India1, while dealing with the question whether a substance known as Pyratex-Vinyl Pyridine Latex fell within the description of raw rubber under item 39 of the Indian Tariff Act or whether it fell under description of synthetic resin, the Supreme Court pointed out that in interpreting the meaning of words in a taxing statute, the acceptation of a particular word by the trade and its particular meaning should commend itself to the authorities. In paragraph 34 the Supreme Court observed: "It is clear that meanings given to articles in a fiscal statute must be as people in trade and commerce, conversant with the subject treat and understand them in usual course. But once an article is classified and put under a distinct entry, the basis of the classification is not open to question. Technical and scientific tests offer guidance only within limits. Once the articles are in circulation and come to be described and known in common parlance, we then see no difficulty for statutory classification under a particular entry." Holding that V. P. Latex, which was the short form for the article in question in that case would be covered by raw rubber, the Supreme Court in paragraph 40 observed: "We are clearly of opinion, that in the state of the evidence before the revisional authority no reasonable person could come to the conclusion that V. P. Latex would not come under rubber raw. The basis of the reason with regard to the end use of the article is absolutely irrelevant in the context of the entry where there is no reference to the use or adaptation of the article." 12. The basis of the reason with regard to the end use of the article is absolutely irrelevant in the context of the entry where there is no reference to the use or adaptation of the article." 12. Thus, where for the purposes of taxation, it is to be found as to under what classification a particular article would fall, how that article is recognised by the people dealing with that article becomes important. To the commercial world, as already pointed out, rock phosphate is known as a mineral manure and the Import Trade Control Policy book recognises this fact. To the agronomists and those dealing with agricultural science also rock phosphate is a chemical fertilizer or a chemical manure. Entry 85 which is headed as chemical manures clearly indicates a genus into which all categories of manures which can be classified as chemical manures will fail. Once an article is established as a chemical manure, it will be squarely covered by entry No. 85. 13. Mr. Devnani appearing on behalf of the State bas, as already stated earlier, relied on certain observations in "Soils: Their Chemistry and Fertility in Tropical Asia" where the authors have stated that its main use is for the manufacture of superphosphate and. according to the learned counsel, the predominant use of rock phosphate being as raw material in the manufacture of superphosphate, it must Dot be included in entry No. 85. 14. It is not possible to accept this argument. What is important for the purposes of the Schedule to the Octroi Rules is not the use to which an article is predominantly or otherwise put because the description of the article does not make any reference to the use of the article. Wherever the rule making authority wanted to classify the articles on the basis of their use, an express reference to such use has been made by the rule making authority. For example, in entry No. 57 tobacco used for pipes and cigarettes is expressly referred to in entry No. 58. Tobacco for manufacturing Bidis and snuff and tobacco for eating purposes has also been referred to. Entry No.48 refers to paints, distemper and colour washes and other material used for painting. Entry No. 34 is: "Potash, ritha, soda, slun, saline substances, shikakai, washing soda, caustic soda, refined salt patre, phenyle and other substances used in washing clothes, floor and utensils. Tobacco for manufacturing Bidis and snuff and tobacco for eating purposes has also been referred to. Entry No.48 refers to paints, distemper and colour washes and other material used for painting. Entry No. 34 is: "Potash, ritha, soda, slun, saline substances, shikakai, washing soda, caustic soda, refined salt patre, phenyle and other substances used in washing clothes, floor and utensils. Thus wherever use was considered as relevant for the purposes of describing an article, express reference has been made in the Schedule. The presumption must, therefore, be that wherever no reference to the use of the article is made, the local authority intended to take into account merely the description of the article. Therefore, the use for which the petitioners brought rock phosphate into the municipal limits is entirely irrelevant. Rock phosphate must, in our view, therefore, fall expressly under an independent entry No. 85 as chemical manure. 15. It appears that the Municipal Council wanted to rely on a communication which was addressed to it by the Director of Department of Chemical Technology which contains an opinion given by one Dr. A. N. Gandhi, Reader in Chemical Engineering. The opinion which is quoted in the letter of the Director is as follows:- "The rock phosphate is not a chemical manure. The rock-phosphate is quite insoluble in water. It has resisted the leaching effects of water for centuries. Therefore under most farming situations, it is of little value as a supplier of nutrient phosphate. The primary objective of the phosphate fertilizer Industry is to convert the phosphate rock into a form available for plants. Therefore rock phosphate may be considered as a raw material for the manufacture of phosphate acid and/or chemical manure.” 16. While undoubtedly rock phosphate is used as raw material for the manufacture of superphosphate, it cannot be ascertained on what basis the opinion given by Dr. Gandhi that rock phosphate is not a chemical manure is based. We have, on the other band, a statement on affidavit by Dr. Kibe who has a degree of Doctor of Philosophy (Agriculture) of the University of Bombay and who seems to have a very impressive academic record. He has held several posts in the Government organisation connected with agriculture. He was a Professor of Agricultural Chemistry at Dharwar and Poona and Principal of the Agricultural College at Dapoli. Kibe who has a degree of Doctor of Philosophy (Agriculture) of the University of Bombay and who seems to have a very impressive academic record. He has held several posts in the Government organisation connected with agriculture. He was a Professor of Agricultural Chemistry at Dharwar and Poona and Principal of the Agricultural College at Dapoli. He has published several research papers in the field of soil science and agricultural chemistry. He was also a member of the Soil Science Committee of the Indian Council of Agricultural Research, New Delhi, and he was working as an Honorary Professor in Soil Science at the Maharashtra Association of the Cultivation of Science Poona. He has positively given an opinion that rock phosphate is a chemical fertilizer or manure and it supplies three important plant nuantity of sulpher. According to him, standard and recognised authorities on the subject clearly state that rock phosphate is a chemical fertilizer. He has supported his opinion by several authorities to some of which we have already referred. In the face of the authorities on which Dr. Kibe has based his opinion and the recognition of rock phosphate as a chemical manure by the Government of India, it is not possible for us to accept a bare statement made in the letter of the Director of Chemical Technology quoting Dr. Gandhi's opinion that rock phosphate is not a chemical manure, though it appears to us that a part of the opinion is itself self· contradictory because in the opinion it is initially stated that it is not a chemical manure, while later it has been stated that it is of little value as a supplier of nutrient phosphate under most farming situations. The latter part of the statement would imply that under certain situations, it could be a valuable source of nutrient phosphate. We have already referred to the publication of the Indian Council of Agricultural Research where the suitability of rock phosphate as manure in the States of Kerala and Mysore has been noticed. 17. Indeed if we may say so, the very circular of the Government under the cover of which the Municipal Council is imposing higher octroi itself states that where rock phosphate is not used as raw material, it will be covered by entry 85 as a chemical manure. 17. Indeed if we may say so, the very circular of the Government under the cover of which the Municipal Council is imposing higher octroi itself states that where rock phosphate is not used as raw material, it will be covered by entry 85 as a chemical manure. Therefore, even according to the State Government, rock phosphate is a chemical manure, but having regard to the use as raw material for the purpose of levy of octroi, the Government wanted it to be treated as one falling under entry 86. Therefore, it appears that even the Government cannot be permitted to dispute, in the face of the recital in the circular (Ex. P), that rock phosphate was a chemical manure. 18. Since we have found that rock phosphate is a chemical manure and it would squarely fall under entry 85, the circular of the Government dated 6th August 1969 purporting to direct the Municipal Council to recover octroi on the basis of the use to which rock; phosphate was put was wholly unjustified. Thus on a true construction of entry 85, the construction placed by the State Government in the circular dated 6th August 1969 would have to be ignored. 19. What is, however, contended on behalf of the Municipal Council and the State Government is that the circular dated 6th August 1969 is not, merely a communication of a construction of the entries in the Schedule but that it is a general order made by the State Government in the exercise of its powers under section 105 of the Municipalities Act and as such it is binding on the Municipal Council. It is strenuously contended that the power of the Municipal Council to impose the tax referred to in section 105 is expressly made in the opening words of section 105 (1) "subject to any general or special orders which the State Government may make in this behalf". It was strenuously argued by Mr. Sawant that the power to issue general or special orders is an unlimited power and it can extend to even directing the Municipal Council that a particular article should be treated as falling under a particular entry even though on a proper construction it may not so fall in that entry. It was strenuously argued by Mr. Sawant that the power to issue general or special orders is an unlimited power and it can extend to even directing the Municipal Council that a particular article should be treated as falling under a particular entry even though on a proper construction it may not so fall in that entry. The contention appears to be that even when rates of taxes have been fixed and descriptions of the articles have been given in the Octroi Rules, those descriptions can be amended, the schedule can be amended, the rate of tax can be varied and anything which could have been done by the State Government in the exercise of its power under section 105 by making rules could also be done by merely issuing the general or special order in view of the opening words of section 105. 20. It is not possible for us to accept this extreme contention. We may briefly refer to the manner in which the power to impose tax can be exercised. Under section 105 (1), as already stated, it is obligatory on the Municipal Council to impose the taxes referred to in section 105 (1). Details relating to such imposition such as the maximum and the minimum rates in different classes of municipal areas and in the matter of imposition, assessment, collection as also exemptions have to be prescribed by rules. The rule making power of the State Government is to be found in section 321. Section 321 (1) prescribes that "the power to make all rules under this Act shall be exercisable by the State Government by notification in the Official Gazette." Therefore, all rules have to be notified. The rules must be such as they are consistent with the Act and they carry out the purposes of the Act. [See sub-section (2)]. Under subsection (3) the rules made under the Act are subject to the condition of previous ·publication. When it is provided that the rules under the Act are subject to previous publication, the procedure which is required to be adopted in such a case is prescribed under section 24 of the Bombay General Clauses Act, 1904. [See sub-section (2)]. Under subsection (3) the rules made under the Act are subject to the condition of previous ·publication. When it is provided that the rules under the Act are subject to previous publication, the procedure which is required to be adopted in such a case is prescribed under section 24 of the Bombay General Clauses Act, 1904. In brief the procedure is that a draft of the proposed rules is to be published for the information of persons likely to be affected thereby and when the draft is published, along with the draft a notice specifying the date after which the draft will be taken into consideration has to be published and the authority having the power to make the rules is duty bound to consider any objection or suggestions which may be received by it with respect to the draft before the date so specified, Therefore, before any rule could be made as contemplated by the proviso, objections have to be invited to the rules and those objections have to be considered. Then under sub-section (4) the rules have to be placed before each House of the State Legislature and the Legislature has the power to make any modification in the rules. Elaborate procedure is, therefore, prescribed for making the appropriate rules. 21. Now, the contention of Mr. Sawant is that when the State Government directed that raw material used for the purposes of manufacture of superphosphate should be taxed under entry No. 86, it was deleting rock phosphate from the category of chemical manures under entry No. 85 or, in other words, the rate for the purposes of rock! phosphate was being specifically specified. This need not be done, according to the learned Counsel, by following the elaborate procedure of amending the Schedule but could be done by exercising the power under section 105. 22. Now the logical result of the argument of Mr. Sawant is that anything that was required to be done by the elaborate procedure prescribed by the rules need not necessarily be done by following that procedure alone but that the Government could take recourse to its own power which is unlimited under section 105 and could make any provision for the purposes of imposition or collection of the taxes. Sawant is that anything that was required to be done by the elaborate procedure prescribed by the rules need not necessarily be done by following that procedure alone but that the Government could take recourse to its own power which is unlimited under section 105 and could make any provision for the purposes of imposition or collection of the taxes. On the words of section 105 it is difficult for us to hold that the power of the State Government under section 105 is as wide as it is claimed to be. It is no doubt true that there are no words of limitation in the words of section 105, but the limitation is to be found in the words "may make in this behalf". It has been provided under section 105 that a municipal council shall impose certain taxes. This power of the municipal council is made subject to the power of the State Government to make any general or special order. But what could be the subject of the general or special order under section 105 is specified in that section itself by the use of the words "in that behalf", The words "in that behalf" obviously refer to the duty of the Municipal Council to impose the taxes specified in section 105. In other words, the general or special order contemplated by section 105 can be issued only in the matter of imposition of the tax. The control which can be exercised by the State Government in the matter of imposition of the tax is a control which must extend to controlling the power to impose the tax and in the context of section 105, such a power could be exercised, in our view, only for the limited purpose of restraining the Municipal Council from imposing any particular tax. The width of the power does not extend to a purpose other then the imposition of the tax, but at the same time, since the power is uncontrolled, that power could be exercised at any time or from time to time. Accepting the argument of the learned Counsel for the State is, in our view, likely to result in serious difficulties. Accepting the argument of the learned Counsel for the State is, in our view, likely to result in serious difficulties. Levy of a tax adversely affects the rights of a citizen and when section 321 has made provision for the condition of the previous publication being observed in the matter of making rules, the Legislature has recognised the necessity of inviting objections and considering them when rules which are required to be made in respect of the matters provided in the proviso have to be framed. The words "imposition, assessment and collection" take within them the whole procedure commencing from the levy of the tax to the recovery of the tax. The Octroi Rules have prescribed the maximum and the minimum limits of the tax in respect of a large number of articles which have been specifically described. It is well established that where rules have been made governing a particular subject matter, any alteration in the rules will also have to be made by following the same procedure. If any amendment to the Octroi Rules has to be made, the same procedure which was followed at the time of making of rules will have to be gone through giving proper opportunity to the persons likely to be affected thereby to submit their objections, if any, Once this procedure is prescribed, it is difficult to contemplate that the Legislature at the same time wanted to invest the State Government with a power to bypass all this procedure and by mere issue of an order in the exercise of its so-called general power under section 105 to do exactly what was intended to be done by framing or amending the rules. The words which are now to be found in section 105 reserving certain power to the State Government to make any general or special orders were also found in section 59 (1) of the Bombay District Municipal Act, 1901. The words which are now to be found in section 105 reserving certain power to the State Government to make any general or special orders were also found in section 59 (1) of the Bombay District Municipal Act, 1901. The relevant part of section 59 (1) reads as follows :- "Subject to the general or special orders which the State Government may make in this behalf, any Municipality- (a) (b) may impose, for the purposes of this Act any of the following taxes, that is to say,- Section 59 (1) and section 105 (1) are more or less identically worded except that while under section 59 (1) of the Bombay District Municipal Act discretion was given to the Municipal Council to impose a tax or not, section 105 of the Maharashtra Municipalities Act makes it compulsory for the municipality to impose the taxes specified in section 105 (1). 23. In Municipality of Anand v. Bombay State2, the scope of the power which could be exercised by the State Government in view of the opening words of section 59 (1) fell for consideration. The Anand Municipality levied octroi upon milk at the rate 4 annas per maund and later an order came to be passed by the Bombay Government under section 59 directing that "no octroi shall be leviable on milk imported within the limits of the Anand Municipality for consumption, use or sale therein". This order was challenged by the Municipality on the ground that it was ultra vires. This order was challenged by the Municipality on the ground that it was ultra vires. Dealing with the power under section 59, Bavdekar J. has observed as follows: - “…….but so far as section 59 is concerned, the only power which is conferred upon Government by that section is either to sanction a particular tax or to refuse to sanction it; and in so far as the imposition of a particular tax is concerned to make it subject to any special or general order which it passes in that behalf." J. C. Shah J., as he then was, who was the other member of the Bench, in his separate judgment observed: "Section 59 confers authority upon the Government by special or general order to restrain imposition of taxes, and does not expressly lay down principles which should govern the State in the exercise of that authority." (Italics is ours.) Shah J. accepted the construction placed on section 59 in an earlier decision of this Court in Vijapur Municipality v. State of Bombay3, where a Division Bench of this Court had taken the view that the general or special orders which the Government is authorised to pass under section 59 of the Bombay District Municipal Act, 1901, may be passed even after the tax has been imposed and later observed : "That decision is binding upon us, and it must be held that in exercise of the power under section 59 of the Act, it is open to the State Government, even after a tax is selected by a municipality and is imposed with the requisite sanction, to issue directions restraining the municipality from levying or collecting the tax." The learned Judge, therefore, held that the power under section 59 was intended to empower the State Government to restrain the municipality from imposing the tax. It was pointed out by Shah J. that in exercise of the supervisory powers the State Government had reserved to itself the power to control imposition of taxes which are described in section 59 and it was further observed: "Section 59 does not provide that the State Government in passing a special order in the, matter of imposition of a tax will be guided by any principles expressly set out in the Act, or that it will exercise its authority in a specific contingency, but the scheme of the Act clearly suggests that the Legislature intended the State Government to exercise its powers under section 59 having regard to the interests of the general public, for securing the interest of the residents within the limits of the municipality. It cannot in the circumstances be said that the exercise of the power under section 59 to impose restrictions upon a municipality is left to the arbitrary and uncontrolled discretion of an executive authority." These observations were, no doubt, made in the context of the challenge to the order of the State Government on the ground that it offends the equal protection clause in the Constitution. But what is sufficient for our purpose is that the power under section 59 was construed as a power to restrain the Municipality in the matter of 'imposition of a tax’. The same principle would, in· our view, apply to the construction of the power under section 105 where also having made use of the words "in this behalf" the subject of the general or the special order would be only the 'imposition of the tax,' that is to say', the Municipal Council could be restrained from imposing any or the taxes which were specified in section 105 (1). This power will not, therefore, take within it the power to change or amend the rules expressly made by the Government in the exercise of its rule making power or any addition or alteration in the schedule, whether with regard to the articles or with regard to the rates because any such alteration is bound to result in bringing about a change in the rules which could be brought about only by following the prescribed procedure. 24. Mr. 24. Mr. Sawant has relied upon the decision in the Vijapur Municipality case and particularly the observations at page 134 in support of his argument that the power is an unrestricted power. As we shall presently show, the decision in Vijapur Municipality case cannot be read as laying down that the power to issue a general or special order under section 59 of the Bombay District Municipal Act can be exercised for a purpose other than the imposition of the tax. The following observations are material:- "The other construction which it is possible to accept is that the power to impose conferred by section 59 is capable of being displaced by any general or special order which the State Government may issue, and as the power to impose is a continuing power, that power may be taken away or controlled or limited by any general or special order. Whenever the Municipality levies a tax, it is exercising the power to impose and at the time of the levy it would be open to the Government to control that power and to make the levy subject to any general or special order. In this view of the case, the power to control the imposing of a tax need not necessarily be exercised only at the time when the power is originally conferred upon the Municipality, but it can be exercised at any subsequent time so long as the power exists and the levy is in the exercise of that power. Looking to the whole scheme of the Act and looking to the wide powers conferred upon the State Government, we are inclined to accept the latter of the two constructions. Looking to the whole scheme of the Act and looking to the wide powers conferred upon the State Government, we are inclined to accept the latter of the two constructions. The principle underlying the Bombay District Municipal Act is that the Municipality, which is the creature of the statute must act and function under the general powers, control and supervision of the State Government, and it is consistent with that principal that the State Government should have the power at any time to impose limitations and restrictions upon the power of taxation of the Municipality." Later at page 135 the Division Bench observed: "The wide and unrestricted power to issue a general or special order must be related to the subject-matter of the imposing or levying of a tax." Now, when the Division Bench observed that the power was wide and unrestricted, those observations have to be read with the earlier observations made in the judgment that the power must be exercised only with regard to the subject matter of imposing or levying of a tax. The argument before the Division Bench in that case was two-fold-one, that the general or special order issued under section 59 must be in existence prior to the imposition of the tax and the second argument was that even after the tax had already been imposed, the power to control by a general or special order under section 59 could still be exercised. It was the latter contention that was accepted and it was in that context that it was stated that the power is wide and unlimited in the sense that it can be exercised from time to time so long as the power to impose a tax continued to vest in the Municipal Council. 25. The Division Bench in the Vijapur Municipality case has positively held that the wide and unrestricted power to issue a general or special order must be related to the subject matter of the imposing or levying of a tax. 25. The Division Bench in the Vijapur Municipality case has positively held that the wide and unrestricted power to issue a general or special order must be related to the subject matter of the imposing or levying of a tax. The direction which was challenged by the Municipality in that case was that no octroi' or terminal tax shall be levied on any article imported witbin the octroi or terminal tax limits of the Municipality and the second part of the order was that no amount due or outstanding on account of such lax on the date of the order of the State Government shall be recovered if- (a) such article is imported in pursuance of or for the purpose of fulfilling a contract with the Government, and (b) the Government certified that the contract is entered into by it for carrying out or executing any work relating to irrigation schemes and that the carrying out or execution of such work is in the national or State interest. The first part of the order was upheld by the Division Bench because it amounted to a prohibition issued by the Government against the Municipality to levy in future octroi tax on the articles mentioned in that order and it was construed as a legitimate exercise of the power of the Government under section 59. The second part of the order was, however, struck down because it did not deal with the imposition of the tax but it dealt with collecting of arrears of tax and it was, therefore, held to fall outside the purview of section 59. 26. Having regard to the scope of the power of the Government to issue a general or special order under section 105, it is clear that the circular which is treated as an order by the Municipal Council in the instant case is in excess of those powers. 27. Mr. 26. Having regard to the scope of the power of the Government to issue a general or special order under section 105, it is clear that the circular which is treated as an order by the Municipal Council in the instant case is in excess of those powers. 27. Mr. Sawant has relied on certain observations of another Division Bench of this Court in an unreported decision in Special Civil Application No. 938 of 1970 (with Special Civil Application No. 1376 of 1970) -Messrs Karamchand Premchand Pvt. Ltd (Swastik Oil Mills Division) v. The Ambernath Municipal Council, Thana and others-where the question was whether the State Government could by an order issued under section 105 of the Maharashtra Municipalities Act, 1965, direct the Municipal Council to give effect to the exemption in respect of certain goods. The Ambernath Municipal Council had framed octroi rules under section 46 read with section 60 of the Bombay District Municipal Act, 1901. The note appended to the Octroi Rules read as follows :- "Note: The octroi duty as promulgated in Schedule 'A' of the Rules will not be levied on the goods or material imported by new mills or factories for a period of five years from the date of their commission." This exemption was effective till the State Government issued a circular on 25th February 1966 to the effect that the Government considered that the octroi concessions need not be continued and the earlier orders dated 215t May 1963 in the matter of exemption did not apply to the local bodies specified in the circular and the Ambernath District Municipality was one such body. Thereafter, however, after the Maharashtra Municipalities Act, 1965, came into force, the Government issued a fresh circular on 25th August 1967 and by this circular it was directed that the orders issued in Government circular dated 25th February 1966 shall not apply in respect of the industries established in the limits of local bodies mentioned in the earlier part of the resolution which included the area within the municipal limits of the Ambernath District Municipality. It was further made clear that: "This means that these industries shall enjoy octroi concessions for the period for which they have been granted by the respective local bodies mentioned in paragraph 1 above." The Ambernath Municipal Council declined to give effect to the concessions because according to it, the period during which the concessions were intended to be in force had expired as, according to the Municipal Council, the period commenced from the time the construction of the factories had started. This matter was brought to this Court by a firm claiming the concession by a petition under Article 226 of the Constitution of India and though one of the questions which was agitated before this Court was whether when the note to the Octroi Rules fixed the period of the concessions as a "period of five years" from the date of commission of the mills or factories, the commencement of the period had to be from the time when the construction of the factories had started according to the Municipal Council or from the time when the factories had gone in production. In that petition, one of the contentions raised on behalf of the Municipal Council was that the circulars issued by the State Government did not amount to an order as contemplated by section 105 of the Maharashtra. Municipalities Act. The contention on behalf of the State Government was that the circular issued by the State Government on 25th August 1967 amounted to an order and having regard to the provisions of section 105, that order would prevail and the exemption granted by the circular dated 26th October 1967 must be given effect to. While dealing with the contention whether the circular dated 26th August 1967 was an order contemplated by section 105, the Division Bench observed: "It is such an order then it must prevail not only against any resolution and letters passed or written by the Municipal Council but against even the rules because the provisions of the Act itself are controlled by any special or general orders which the State Government may pass, and a fortiori the rules." Mr. Sawant has relied on these observations heavily and it is contended that the Division Bench has taken the view that the powers of the State Government under section 105 to make a special or a general order control all the provisions of the Act which, according to Mr. Sawant, would also include the provisions relating to the making of rules for the purposes contemplated by the proviso to section 105 (1). 28. Now, these observations relied upon by Mr. Saw ant cannot be read out of context because what is the overriding effect of the opening words of section 105 is further made clear by the Division Bench in paragraph 25 of the judgment where referring to the earlier observations, the Division Bench has observed as follows:- "In fact, we have already pointed out and to re-emphasize here that the power of the Government to make special or general orders over-rides all rules and even section 10S itself having regard to the provisions of that section itself." Thus the overriding effect which was contemplated by the Division Bench was only with reference to the provisions of section 105 and with regard to the subject matter dealt with therein, namely, the imposition of the tax. When the Division Bench made a reference to "overriding of all rules", those observations will have to be read in the context of the words of section 105 where the power is expressly given in behalf of the matter of imposition of the tax. The decision in Messrs Karamchand Premchand Pvt. Ltd.'s case cannot, therefore, be read as an authority for the proposition that the power under section 105 can be exercised to override all other provisions of the Act even if they do not deal with the subject of imposition of the tax. 29. It is thus clear to us that the power of the State Government under the opening words of section 105 to make any general or special order could be exercised only in the matter of imposition of a tax and if a general or special order relates to a matter other than imposition of the tax, such an order will be entirely outside the provisions of section 105. So far as the instant case is concerned, it is obvious that once an article has been described in the rules made under the proviso to section 105 without making any reference to the use for which the article is imported within the municipal limits and the rate of tax is specified for such article, there is no power in the State Government to direct in the purported exercise of the power under section 105 that the rate of tax on the same article would vary according to the use to which it will be put. Such a direction will, in our view, be clearly in excess of the power under section 105 of the Maharashtra Municipalities Act. The direction given by the State Government which is styled as a clarification in the circular dated 6th August 1969 in so far as it requires that octroi shall be recovered on rock phosphate according to the rate prescribed in respect of entry No. 86 would thus be clearly in excess of the power of the State Government under section 105 and is, therefore, liable to be quashed. 30. In the result, we quash the direction contained in the circular dated 6th October 1969 by which the Municipal Council was required to recover octroi on rock phosphate under the residuary item. Consequently we must also quash the notices of demand issued by the Municipal Council in respect of the octroi for the months of October, November and December 1969. The natural consequence is that if octroi has been recovered by the Municipal Council from the petitioners in excess of what was payable under entry No. 85, the Municipal Council will be liable to refund the excess recovery to the petitioners. The Municipal Council will re-assess the amount of octroi payable to it by the petitioners on the basis that rock phosphate will fall under entry 85. It will be open to the Municipal Council to adjust any excess recovery in respect of such other payments as may be due in respect of octroi duty from the petitioners for any further period. The bank guarantees which were furnished by the petitioners from time to time in respect of the difference in octroi duty which, according to the Municipal Council, was payable by the petitioners will now stand cancelled and the bank guarantees shall be returned to the petitioners. The bank guarantees which were furnished by the petitioners from time to time in respect of the difference in octroi duty which, according to the Municipal Council, was payable by the petitioners will now stand cancelled and the bank guarantees shall be returned to the petitioners. The petitioner to get the costs of this petition from the Municipal Council, respondent No.1. Rule absolute. Rule made absolute.