# BANGALORE WOOLLEN, COTTON AND SILK MILLS CO. LTD., BANGALORE v. CORPORATION OF THE CITY OE' BANGALORE, BY ITS COMMISSIONER, BANGA~ORE CITY

- **Citation:** [1961] 3 S.C.R. 707
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Case number:** Civil Appeals Nos. 448 and 449of1957
- **Bench:** S. K. Das, J. L. Kapur, M. HrnAYATULLAH, J.C. Shah, T. L. Venkatarama Ayyab
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bangalore-woollen-cotton-and-silk-mills-co-ltd-bangalore-v-corporation-of-the-2076
- **Pages:** 11

## Headnote

M unicipality-Octroi-Constitutionality of-Final resolution
for levying not published in Official Gazette-Defect, if can be validated-City of Bangalore Municipal Corporation Act, r949 (69 of
r949), ·ss. 38(I)(b), 98, IOJ, Sch. Ill, Part V, Classes I to VlllConstitution of India, Arts. 276, 3or-Goverilment of India Act,
r935 (26 Geo. V, Ch. 2), s. r42-A.
The appellants in the two appeals and petitioners under
Art. 32 of the Constitution challenged the constitutionality of the
imposition of octroi duty on cotton and wool on the grounds that
(1) the failure to notify the final resolution of the imposition of
the tax in the Government Gazette as required by s. 98(2) of the
City of Bangalore Municipal Corporation Act was fatal to the tax,
and that (2) the imposition of the tax offended Art. 276 or 301 of
the Constitution.
Held, that the impugned octroi duty did not contravene the
provisions of Arts. 276 and 301 of the Constitution.
Hamdard Dawakhana (Wakf) v. The Union of India [1960] 2
S.C.R. 671, held inapplicahle.
Atiabari Tea Co. Ltd. v. The State of Assam [1961] l S.G.R.
809, referred to.
Section 38(1)(b) of the Act validated any defect or irregularity in proceedings taken under the Act which did not afiect the
merits of the case. The failure to publish the final resolution did
not affect 'the merits of the imposition of the tax and was therefore not fatal to it.
i•
The mere fact that s. 38(1)(b) occurred in a chapter dealing
with Municipal Authorities or the other parts of the Section dealt
with another subject was no reason for confining its operation to
those subjects only.
Harla v. State of Rajasthan [1952] S.C.R. no and State of
Kera/av. P. ]. Joseph A.I.R. 1958 S.C. 296, referred to.
'fhe contention that the impugned tax contravened the provisions of Art. 276 of the Constitution was not sustainable. Entry
52 in List II of the Constitution and entry 49 in the Government
of India Act, 1935, which relate to taxes on entry of goods into
a local area are not afiected by Art. 272 of the Constitution and
.I96I
April 5.
708
SUPREME COURT REPORTS
[1961)
z96z
s. r42-A of the Government of India Act, which are similar to
-
each other and relate only to a distinct head of taxation i.e.,
~angalore Woollen, taxes on professions, trades and callings etc.
Cotton and Sllh
The Municipality of Chopda v. M otilal M anekchand I.L.R.
Mills Co. Ltd.
[r958] Born. 483, Gajadhar Hiralal Ginning and Pressing Factory v.
v.
The Municipal Committee, Washim I.L.R. [r958] Born. 628 and
COYptwation of the Secretary, Municipal Committee, Karanja v. The New East India
City 01 Bangalore Press Co. Ltd., Bombay A.LR. r949 Nag. 2r5, distinguished.
Kapur].
Classes I to VII in Schedule III of Part V make certain specified articles taxable and Class VIII makes "other articles which
~re not specified" taxable if approved by the Corporation. The
qombined effect of ss. 97 and r30 and Part V of Schedule III
including Class VIII is that the words used are of very general
nature and would have the same effect as if all articles were
intended to be and were included.
Anwarkhan Mahboob Co. v. The State of Bombay [r96r] I S.C.R.
709, followed.
.
/
CIVIL
APPELLATE
JURISDICTION:
Civil Appeals
Nos. 448 and 449of1957
with
Writ Petitions Nos. 97 and 107 of 1961.
Appeals from the judgment and order dated
September 27, 1956, of the Mysore High Court in Writ
Petitions Nos. 44 and 45 of 1955.
M. C. Setal,vad, Attorney-General for India, N. C.
Chatterjee, D. N. Mukherjee and B. N. Ghose, for the
appellant in C. A. No. 448/57 and Petitioner in Writ
Petition No. 97/1961.
M. C. Setalvad, Attorney-General for India, V. L.
Narasimhamoorty, S. N. Andley, J. B. Dadachanji,
Rameshwar Nath and P. L. Vohra, for appellant in
C. A. No. 449/57 and Petitioners in W. P. No. 107 of
1961.
A. V. Viswanatha Sastri and K. R. Choudhri, for
respondents in C. As. Nos. 448 and 449 of 57 and
W. Ps. Nos. !'7 and 107/1961.
1961. April 5. The Judgment of the Court was
delivered by
KAPUR, J.-A Divisional Benc

## Text

a S.C.R.
SUPREME COURT REPORTS
707
BANGALORE WOOLLEN, COTTON AND
SILK MILLS CO. LTD., BANGALORE
v.
CORPORATION OF THE CITY OE' BANGALORE,
BY ITS COMMISSIONER, BANGA~ORE CITY.
(with connected appeal and petitions)
(S. K. Das, J. L. KAPUR, M. HrnAYATULLAH, J.C. SHAH
and T. L. VENKATARAMA AYYAB, JJ.)
M unicipality-Octroi-Constitutionality of-Final resolution
for levying not published in Official Gazette-Defect, if can be validated-City of Bangalore Municipal Corporation Act, r949 (69 of
r949), ·ss. 38(I)(b), 98, IOJ, Sch. Ill, Part V, Classes I to VlllConstitution of India, Arts. 276, 3or-Goverilment of India Act,
r935 (26 Geo. V, Ch. 2), s. r42-A.
The appellants in the two appeals and petitioners under
Art. 32 of the Constitution challenged the constitutionality of the
imposition of octroi duty on cotton and wool on the grounds that
(1) the failure to notify the final resolution of the imposition of
the tax in the Government Gazette as required by s. 98(2) of the
City of Bangalore Municipal Corporation Act was fatal to the tax,
and that (2) the imposition of the tax offended Art. 276 or 301 of
the Constitution.
Held, that the impugned octroi duty did not contravene the
provisions of Arts. 276 and 301 of the Constitution.
Hamdard Dawakhana (Wakf) v. The Union of India [1960] 2
S.C.R. 671, held inapplicahle.
Atiabari Tea Co. Ltd. v. The State of Assam [1961] l S.G.R.
809, referred to.
Section 38(1)(b) of the Act validated any defect or irregularity in proceedings taken under the Act which did not afiect the
merits of the case. The failure to publish the final resolution did
not affect 'the merits of the imposition of the tax and was therefore not fatal to it.
i•
The mere fact that s. 38(1)(b) occurred in a chapter dealing
with Municipal Authorities or the other parts of the Section dealt
with another subject was no reason for confining its operation to
those subjects only.
Harla v. State of Rajasthan [1952] S.C.R. no and State of
Kera/av. P. ]. Joseph A.I.R. 1958 S.C. 296, referred to.
'fhe contention that the impugned tax contravened the provisions of Art. 276 of the Constitution was not sustainable. Entry
52 in List II of the Constitution and entry 49 in the Government
of India Act, 1935, which relate to taxes on entry of goods into
a local area are not afiected by Art. 272 of the Constitution and
.I96I
April 5.
708
SUPREME COURT REPORTS
[1961)
z96z
s. r42-A of the Government of India Act, which are similar to
-
each other and relate only to a distinct head of taxation i.e.,
~angalore Woollen, taxes on professions, trades and callings etc.
Cotton and Sllh
The Municipality of Chopda v. M otilal M anekchand I.L.R.
Mills Co. Ltd.
[r958] Born. 483, Gajadhar Hiralal Ginning and Pressing Factory v.
v.
The Municipal Committee, Washim I.L.R. [r958] Born. 628 and
COYptwation of the Secretary, Municipal Committee, Karanja v. The New East India
City 01 Bangalore Press Co. Ltd., Bombay A.LR. r949 Nag. 2r5, distinguished.
Kapur].
Classes I to VII in Schedule III of Part V make certain specified articles taxable and Class VIII makes "other articles which
~re not specified" taxable if approved by the Corporation. The
qombined effect of ss. 97 and r30 and Part V of Schedule III
including Class VIII is that the words used are of very general
nature and would have the same effect as if all articles were
intended to be and were included.
Anwarkhan Mahboob Co. v. The State of Bombay [r96r] I S.C.R.
709, followed.
.
/
CIVIL
APPELLATE
JURISDICTION:
Civil Appeals
Nos. 448 and 449of1957
with
Writ Petitions Nos. 97 and 107 of 1961.
Appeals from the judgment and order dated
September 27, 1956, of the Mysore High Court in Writ
Petitions Nos. 44 and 45 of 1955.
M. C. Setal,vad, Attorney-General for India, N. C.
Chatterjee, D. N. Mukherjee and B. N. Ghose, for the
appellant in C. A. No. 448/57 and Petitioner in Writ
Petition No. 97/1961.
M. C. Setalvad, Attorney-General for India, V. L.
Narasimhamoorty, S. N. Andley, J. B. Dadachanji,
Rameshwar Nath and P. L. Vohra, for appellant in
C. A. No. 449/57 and Petitioners in W. P. No. 107 of
1961.
A. V. Viswanatha Sastri and K. R. Choudhri, for
respondents in C. As. Nos. 448 and 449 of 57 and
W. Ps. Nos. !'7 and 107/1961.
1961. April 5. The Judgment of the Court was
delivered by
KAPUR, J.-A Divisional Bench of this Court made
a reference* under the proviso to cl. (3) of Art. 145 on.
the following two points :-
.
(1) Whether the imposition in the present C8IMl
offends Art. 276 or 301 of the Constitution?
•See p. 698 ""''.
38.C.R.
SUPREME COURT REPORTS
709
(2) Whether t.he failure to notify the final resolution of the imposition of the tax in the Government Bangaz,,., Wooll.,.,
Gazet.te is fatal to the tax ?
Cotton and Silh
The facts of the case are set out in the order of the
Mills Co. Ltd.
Divisional Bench and it is unnecessary to restate them.
v:
1
h
Th
II
.
h
·
l
d.
h
, Corporat1ono le
e appe ants mt e two appea s an mt e two peti- City of Bangalore
tions under Art. 32 are challenging the constitutionality of. the octroi duty on cotton and wool imposed
by the respondent Corporation within its octroi
limits. The procedure for levying municipal taxes
and the power of control of Government in regard to
1
,
those taxes is laid down in s. 98 of the City of Bangalore Municipal Corporation Act (Act 69 of 1949)
hereinafter tl'rmed the Act. The.procedure is that a
resolution intending to impose a tax has to be passed
by the Corporation and that resolution is required to
be published in the Official Gazette and in the local
newspapers. The rate payers can then submit objections and after considering such objections received
during the specified time the Corporation may by
resolution determine to levy the tax or duty. When
such a resolution has been passed the Commissioner is
required to publish forthwith a notification in the
Official Gazette and in the newspapers as set out in
Auh-s. (1) of s. 98 of the Act. This notification is to
specify the date from which, the rate at which and the
period of levy, if any, for which such tax is levied.
As has been stated in the order of the Divisional
Bench all other requirements of s. 98 were complied
with except that the notification in the Government
Gazette as required by sub-s. (2) was not published.
This, it was submitted, was a defect which was fatal to
the legality of the imposition of the tax. To support
this submission reliance was placed on two judgments
of this Court in Harla v. State of Rajasthan (1) and
State of Kerala v. P. J. Joseph(•). In the former case
the Jaipur Opium Act was enacted by a resolution of
the Council of Ministers appointed by the then Crown
Representative but this law was neither promulgated
nor published in the Gazette nor made known to the
public. The mere passing of the resolution by the
(•) [to,i] s.c.R. 110.
(•) A.I.R. 1958 s.c. •96·
Kapur ].
710
SUPREME COURT REPORTS
[1961]
' 96'
Council of Ministers without publication was held not
Bangalore woollen, to be sufficient. to make the law operative. At p. 114,
Collon and Silk it was observed that reasonable publication of some
Mills Co. Ltd. sort was necessary and that natural justice required
C
".·
,, h that before a law could operate it had to be promu!-
orpo1at•on o, I e
d
bl' h d
d .
b b
d
.
City of Bangalore gate or pu
IS e an it must
e roa cast m some
recognisable way. Similarly in the latter case there
Kapu1 J.
was no publication in the Gazette of the Order of the
Government made in the exercise of the power con·
ferred by an Act nor was there any communication
of the order to the person affected thereby and it was
held that not having been published in the Gazette it
was not valid and could not have the force of law.
But the respondent relied upon s. 38(l)(b) of the Act
which cures defects or irregularities not affecting the
merits of the case. That section provides :-
S. 38(1). "No act done, or proceeding taken
under this Aet shall be questioned merely on the
ground-
( a.)
0 O IO O 0 O IO IO O O O O O O O • O O • O O O •' O I• O • O • O O O O • O IO I I I Io 0 0 O I I IO O 0 O O 0 O
(b) of any defect or irregularity in such act or
proceeding, not affecting the merits of the case. "
Thus under that provision any defect or irregularity
not affecting the merits of the case saves any act done
or proceeding taken under the Act on the ground of
such irregularity or defect. The appellants contended
that the section has no application to defects in regard
to procedure under s. 98 of the Act for the imposition
of taxes because s, 38 read as a whole refers to
a different situation and that there was internal
evidence in the section itself to show that it has no
relevance to the objection taken by the appellants.
The section, it was argued, is in Chapter II dealing
with Municipal Authorities and this particular provision is in that Part of the Chapter which d1:1als with
provisions common to the Corporation and its Standing Committees and the marginal note shows that the
object of enacting it was the validation of proceedings
of the Corporation and its Standing Committees and
that the whole section should be read in that context.
So read, it was submitted, the section must be taken
to be a saving provision for the validity of proceedings
3 S.C.R.
SUPREME COURT REPORTS
711
of the Municipal Authorities which was clear from
z96z
cl. (a) of sub-s. (1) which deals with defects on the Bangalo~-Woollen,
ground of vacancy or defect in the constitution of the cotton and Silk
Corporation or of any Standing Committee and subMills co. Ltd.
s. (2) of that section also has reference to the meetings
v:
of the Corporation and therefore, it was contended, Corporation of the
th d c
.
I .
.
d .
l (b) f
b City of Bangalore
e eiect or irregu anty ment10ne
m c .
o su -
_
section (I) in any act done or proceeding taken also
Kapur J.
must have reference to that kind of defect which is
referred to in other parts of the section. It was
further submitted that the words "not affecting the
merits of the case" showed that the reference was not
to any defect in regard to the procedure for imposition of taxes but defects etc. which might arise in the
proceedings of the Corporation and which have reference to a defect in the constitution of the Corporation
or its Standing Committees. Reference was also made
to the marginal note in the section.
I,t is unnecAssary in this case to discuss the relevance
of marginal notes in the construction of s. 38(l)(b)
because in our opinion the language is unambiguous and
clear and it validates any defect in any act done or
proceedings taken under the Act and makes it immune
fron1 being questioned on the ground of any defect or
irregularity in suoh act or proceedings not affecting
the nwrit s of the case and merely because it is in a
chapter dr>aling with Municipal Authorities or other
parts of the section dealing with another subject is no
re11son for confining its operation to the defects conten<kd for by the appellants,
The resolution was published in newspapers and was
also communicated to those affected by it and thus it
was well known. The failure to publish it in the
Government Gazette did not affect the merits of its
imposition. The answer to question No. 2 referred
therefon' iH that the mere failure to notify the final
resolution of the imposition of the tax in the Government Gazette is not fa.ta.I to the legality of the
imposition.
The other question referred is whether the imposition offends Art. 276 or 301 of the Constitution.
qt
712
SUPREME COURT REPORTS
[1961]
I96I
Article 276 as far as it is relevant for the purposes of
this case provides :-
Bangalore Woollen,
A t 276(1)" N t · h
d'
h'
·
t• 1
Cotton and Silk
r •
0 Wit Stan mg anyt mg lil ar IC e
MillS co. Ltd.
246, no law of the Legislature of a State relating to
v.
taxes for the benefit of the State or of a municiCorporation of the
pality, district board, local board or other local
City of Bangalore
authority therein in respect of professions, trades,
Kapur J.
callings or employments shall be invalid on the
ground that it relates to a tax on income.
(2) The total amount payable in respect of any
one person to the State or to any one municipality,
district board, local board or other local authority
in the State by way of taxes on professions, trades,
callings and employment shall not exceed two
hundred and fifty rupees per annum."
It was contended that the imposition of the impugned
tax contravenes the provision of Art. 276(2) as it is of
a sum more than Rs. 250 and is therefore unconstitutional. This contention is not well founded. There
was a similar provision in the Government of India
Act, 1935, i.e., s. 142-A but there the amount mentioned in . sub-s. (2) was Rs. 50 per annum and this
limitation was placed as from after the 31st. day of
March, 1939. A reference to the legislative lists will
show that neither the Article 276 nor s. 142-A of the
Government of India Act, 1935, has any reference to
the tax now impugned. In the Devolution .Rules
under the Government of India Act, 1915, taxes which
could be levied for the purpose of local bodies were
the following :-
"Item No. 7. An octroi.
-· Item No. 8. A terminal tax on goods imported
into or exported from, a local area save where such
tax is first imposed in a local area in which-an octroi
was not levied on or before the 6th July 1917.
·
Item No. 9. A tax on trades, professions and
callings. "
·
In the Government of India Act, 1935, the relevant
entries in the Legislative List-List II-'were 46 and
49 which ·were as follows:
46. "Taxes on profe~sions, trades, callings and
employments, subject, however, to the pr!W'isions
3 S.C.R.
SUPREME COURT REPORTS
713
of section one hundred and forty-two A of this
z96z
Act."
49
" C
f
d . t
I
J
Bangalore Woollen,
.
esses on entry o goo s ~n ~ a. oca area Catton and Silk
for consumption, use or sale therem.
Mills ca. Ltd.
Terminal tax was taken to List I, i.e., Central List and
v.
is now entry 89 in the Union List (List I). Corres- c,,paratfon •/the
ponding entries to 46 and 49 of the Government of Ctty •!Bangalore
India. Act, 1935, in the Constitution in List II are 52
-
Kapur J.
and 60 which are as follows :-
52. " Taxes on ·the entry of goods into a local
area for consumption, use or sale therein."
60. " Taxes on professions, trades, callings and
employments. "
The history of these tax:es therefore shows that in
the Devolution Rules. under the Government of India
Act, 1915,· octroi, terminal tax: and tax:es on professions and callings were tli:ree distinct heads of taxation.
Similarly in the Government of India Act, 1935, and
in the Constitution the two entries are separate.
Therefore when s. 142-A was added in the Government of Indil/' Act, 1935, its operation was limited
to entry 46 of List II and had no reference to entry
49 w bicb deals with cesses on entrJ<; of goods. The
position under the Constitution is exactly the same
and therefore neither s. 142-A of the Government of
India Act, 1935 nor Art. 276 bas any effect on entry
49 in the Government of India Act, 1935 or entry 52
in the Constitution. The learned Attorney-General in
support of his argument that the impugned tax is .a
tax on trade, relied upon three judgments : The
Municipality 'of Ohopda v. Motilal Manekchand (');
Gajadhar Hiralal Ginning &: Pressing Factory v. The
Municipal Committee, Washim ('); and Secretary, .ll:luni·
cipal Committee, Karanja v. The New Ea.st India Press
Co. Ltd., Bombay('). None of these cases bas any
applicability to the tax now impugned because the
facts were different and the imposition was of a
different character. The attack on the constitutionality of the impugned tax on the ground of contravention of Art. 276 is therefore not sustainable and must
be rejected.
(I) I.L.R. [1958] Bom. 483.
(2) I.L.R. [1958] Bom. 625.
(3) A.I.R. 1949 Nag. ZI5.
714
SUPREME COURT REPORTS
[1961]
1961
The second ground of assault on the constitutionB
I -
ality of the tax imposed is based on contravention of
anga o" Woollen, A
30
h' h
'd
Cotton and Silk
rt.
1 W IC prov1 es :-
Mills co. Ltd.
Art. 301. "Subject to the other provisions of this
v.
Part, trade, commerce and intercourse throughout
Corporation of the
the territory of India shall be free."
City 0f Bangalore It was contended that the tax imposed directly
Kapur}.
affected the movement of goods and therefore violates
Art. 301 which guarantees the freedom of trade
throughout the territory of India. In Atiabari Tea
Co. Ltd. v. State of Assa.m ('), Gajendragadkar, J.,
giving the opinion of the majority said :-
"that the content of freedom provided for by
Art. 301 was larger than the freedom contemplated
bys. 297 of the Constitution Act of 1935, and whatever else it may or may not include, it certainly
includes movement of trade which is of the very
essence of all trade and is its integral part. If. the
transport or the movement of goods is taxed solely
on the basis that the goods are th us carried or transported that, in our opinion, directly affects the
freedom of trade as contemplated by Art. 301. If
the movement, transport or the carrying of goods is
allowed to be impeded, obstructed or hampered by
taxation without satisfying the requirements of
Part XIII the freedom of trade on which so much
emphasis is laid by Art. 301 would turn to be
illusory."
According to Shah, J., the content is wider. At
page 241 the learned Chief Justice gave it a more
restricted meaning. Relying on these observ.ations it
was contended that the tax which is affected by
Art. 301 is one which is directly on movement .of
trade, i.e., from one point to another. As against this
reliance was placed by the respondent on Art. 305
which at the relevant time was as follows:-
Art. 305. "Nothing in articles 301 and 303 shall
affect the provisions of any existing law except in so
far as the President may by order otherwise direct; ... "
According to this article the provisions of Art. 301 do
not affect the provisions of any existing ll).w except in
so far as the President may otherwise direct and there
(1) [1961] I S.C.R. 809.
3 S.C.R.
SUPREME COURT REPORTS
715
is no such direction by the President. "Existing law"
r96r
has been defined in Art. 366, clause (10), to mean:
'"
' t'
1
'
1
0 d'
d
Bangalore Woollen.
ex1s mg aw means any aw, r mance, or er, Collon and s;ik
bye-law, rule or regulation passed or made before Mills co. Ltd.
the commencement of this Constitution by any Legisv.
lature, authority or person having power to make C~rporation oftke
such a law, Ordinance, order, bye-law, rule or re- City 01 Bangalore
gulation;"
-
and by Art. 372 all laws in force in the territory of
Kaf•ur f.
India immediately before the commencement of the
Constitution shall continue to be in force until altered
or repealed or amended by a competent legislature.
It was 'these provisions which were relied upon as an
answer to the question of the applicability of Art. 301.
But the learned Attorney-General argued that the
action taken by the Municipal Corporation was after
the coming into force of the Constitution, being a levy
imposed as from January, 1955, that the imposition
of the tax was subordinate legislation which could
not be saved undey Art. 305 cind that the tax could
only be imposed by resorting to the provisions of
Art. 304(b) which provides:
Art. 304. "Notwithstanding anything in article 301
or article 303, the Legislature of a State may
by law-
(a) ............................................................ ..
(b) impose such reasonable restrictions on the
freedom of trade, commerce or intercourse with or
within that State as may be required in the public
interest:
Provided that no Bill or amendment for the purposes of clause (b) shall be introduced or moved in
the Legislature of a State without the previous
sanction of the President."
The argument therefore was this that the Act being
an "existing law" might be saved under Art. 305 but
that would operate on and save the taxes on articles
specified in Schedule III of Part V, itAm 18, i.e., octroi
on animals and goods set out in Classes I to VII of
that Part but would not save the octroi on other articles under Class VIII imposed after the Constitution
because that would be an addition of a bye-law, rule
or order and would not fall within the term " existing
716
SUPREME COURT REPORTS
[1961]
r961
law". The impugned tax was levied under class VIII
B
I ·--1v 11
set out in part V which is as follows:-
anga ore
oo en,
O
,
M .
Colton and Silk
ctori
aximum rate
Mills co. Lid.
Class VIII-Other articles
v.
which are not specified above
Corporation of the and which may be approved
C•ty of Bangalore by the Corporation by an
Rs. 2-0-0 per cent.
Kapur._!.
order in this behalf............
ad valorem.
Octroi is to be levied by reference to s. 130 of the Act
which provides:-
S. 130. "If the oorporat.ion by a resolution determines that an octroi should be levied on animals or
goods brought within the octroi limits of the city,
such octroi shall be levied on such articles or goods
specified in Part V of Schedule III at such rates not
exceeding those laid down in the said Part in such
manner as may be determined by the corporation."
Therefore under this section if the corporation resolved to levy octroi on animals or goods brought within
the octroi limits of the city then this octroi was to be
levied at rates not exceeding those laid down in that
section.
This, it was submitted, was subordinate
legislation and therefore was not saved by Article 305
. because "existing law" as defined means any law,
ordinance, order, by-law, rule or regulation passed
. ...
before the·Constitution and as the impugned tax was
a new regulation passed after the Constitution it was
not saved by Art. 305. In support of this reliance was
placed on the observations of this Court in Hamrlard
Dawakhana (Wakf) v. The Union of India('); but as
was observed by the Divisional Bench that case does
not apply to the facts of the present case.
For the respondef!t it was argued that (1) goods and
animals were specified in the Act and therefore there
was no making or passing of new regulations and (2)
it is not a case of delegated legislation but is a case
of conditional legisla~ion. It was firstly submitted
that there is sufficient' specification in the Act itself of
the articles on which the octroi duty could be levied.
Section 97 of the Act gives the power to levy octroi
duty on animals or goods without any exception which
are brought within the octroi limits. Sections 98
(•l (1960] 2 s.c.R, 67"
.~-
3 S.C.R.
SUPREME COURT REPORTS
717
and 130 lay down the procedure for the levying of
' 96'
taxes and impose a limitation on the extent of the Bangalore woollaK,
tax to be levied and Classes I to VII make certain Cotton and Sil~
articles taxable and Class VIII makes other articles Mills Co. Ltd.
and goods taxable if they are approved by the Corpov:
,, ••
t •
Th'
h
h
b'
h
h
Corporation o, m•
ra 10n.
1s approac to t e su Ject as t e support Cit of Bangalore
of a decision of this Court in Anwarkhan Mahboob Co.
Y _
v. The St,ate of Bombay ('), where the facts were that
Kapur J.
the assessee was subjected to a purchase tax under
s. 14(6) of the Bombay Sales Tax Act, 1953 (Act III of
1953). The contention of the assessee was that the
goods had not been specified in the Sales Tax Act. In
that Act in the schedule were mentioned the goods
the sale or purchase of which was subject to tax and
the last entry wa.s of" a.II goods other than those specified from time to time in Schedule A (and section 7 A)
and in the preceding entries . "
The question for decision was whether that entry amounted to specification
of goods for the purposes of Sales Tax and it was held
that it was.
This case was sought to be distinguished
on the ground that the words there were " a.II goods
other than ......... " and those words would comprise
every article which was not specifically mentioned in
the Schedule. We are unable to accept this distinct.ion
because even though the words used in the present
statute a.re different the combined effect of ss. 97 and
130 and Pa.rt V of Schedule III including Class VIII
which have been set out above is that the words are
of very general nature and would have the same effect
as if all articles were intended to be and were included. In view of this it is unnecessary to discuss the
second contention.
Therefore the answer to the first question referred is
thatthe impugned octroi duty does not contravene the
provisions of Arts. 276 and 301. In view of our
decision on the two questions referred these appeals
fail and are dismissed with costs. One hearing fee.
Consequently Writ Petition Nos. 97 and 107 are
dismissed. There will be no order as to costs in those
petitions.
(1) (1961) 1 S.C.R. 709.
Appeals dismissed.
Petitions dismis&ed.