# MUNICIPAL COUNCIL, RAICHUR v. AMAR CHAND PRASANNA ETC

- **Citation:** [1968] 1 S.C.R. 87
- **Court:** Supreme Court of India
- **Decided:** 1965-06-11
- **Case number:** Civil Appeals Nos. 23822384 of 1966
- **Bench:** J. c. SHAH, s. M. S!KRI
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/municipal-council-raichur-v-amar-chand-prasanna-etc-4294
- **Pages:** 10

## Headnote

Mysore Municipalities Act, 1964, ss. 57, 80(5), 94, 95, 96, 97, 123(1),
324(4) and (5}-Resolution levying1 octToi wh~ther can. be adopte~
by confirmation of resolution passed by Standing C?mm1~ee-Mod1fication in resolution whether can be adopted by circulation among
members and subsequent confirmation by general body-Modification in model bye-laws must comply with s. 324(4) and (5)-DeC feet in some of the bye-laws does not make the rest of the bye4aws
unenforceable.
On June 11, 1965, the Standing Committee of the Raichur Municipal Council resolved to levy octroi duty according to Sch. II under
s. 94 of the Mysore Municipalities Act,
1964. It was rec'.ite~ in
the resolution that the confirmation of the general body be obtamed.
The genera? body unanimously approved the resolution of the
D Standing Committee.' On October 27, 1965 the notification under
s. 95 of the Act inviting objections from the public was published; 110
objections were received. On February 26, 1966 there was a special
general body meeting and it was resolved to levy octroi with effect
from April I, 1966. This resolution was however amended by modification of· its second paragraph on March 25, 1966. Approval to this
modification was obtained at first by circulation to the members on
March 3L, 1966 the minutes of the meeting dated February 26, 1966
E and the adoption of the resolution modifying the second paragraph
by circulation on March 25, 1966, were read, heard and confirmed
unanimously. As required by s. 123 of the Act the model bye-laws
framed by Government were adopted but the table of rates in model
bye-law 16 'relating to the levy of storage fee and charges on goods
placed in the bonded warehouses was left blank. The. rates were
fixed by the Council by its resolution of March 31, 1966. On April 16,
1966 sanction of the Government under s. 96 of the Act to the levy
p of octroi and the adoption of model bye-laws was given and on May
3, 1966, the notification under s. 97 of the Act imposing octroi duty
under Sch. II and adopting the bye-Jaws was published. The resploI!-
dents who were dealers in cloth in Raichur moved the High Court
of Mysore under Art. 226 of the Constitution. The High Court held
that though octroi had been properly levied its collection was unauthorised owing to defects in the bye-laws adopted. The municipality
G appealed. The following questions fell for consideration: (i) whether the resolution levying the octroi and the subsequent modifica'
tion of the said resolution were procedurally valid (ii) whether the
fixation of rates for the purpose of model bye-law 16 was validly
made. the procedure in s. 324('4) and (5) not having been followed·
(iii) whether the bye-raws were unenforceable fur the reason that
they did not fix the 'time for the PUrPOSe of bye-laws 23 27 and 28
and did not give a list of articles for the purpose of bye-laws 33
B to 36.
HELD: (i) The resolution of the Standing Committee selecting
octroi tax for imposition -exi;>ressly stated that confirmation of the
iieneral body would be obtained. and such confirmation was actual
ly obtained, It could not in the circumstances be contended that
88
SUl'REV!i COURT REPORTS
[1968] l li.C.R.
there was no valid resolution by the Municipal Council under s. 94 A
selecting octroi duty for imposition. [92F-HJ
The resolution modifying the original resolution dated February
26 1966 was no doubt passed by cir'eulation but later the said circulation was "read heard and confirmed unanimously" by the general
body Under s. 80(5) any irregularity not affecting the merit of the
case 'can be cured and s. 97(2) prohibits enquiry into the regularity B
of the procedure by which a tax has been imposed after a notice
unler s 97 (1) is published. No material had been placed before the
Court to show that in making the modification s. 57 had not been
complied with. f93A-Dl
Municipab Board, Hapur v. Raghuvendra Kripal & Ors., [1966)
1 S.C.R. 950, relied on.
(ii) If bye-laws in respect of the matters s

## Text

87
A
MUNICIPAL COUNCIL, RAICHUR
v.
AMAR CHAND PRASANNA ETC.
August l, 1967
B
[J. c. SHAH AND s. M. S!KRI, JJ.]
Mysore Municipalities Act, 1964, ss. 57, 80(5), 94, 95, 96, 97, 123(1),
324(4) and (5}-Resolution levying1 octToi wh~ther can. be adopte~
by confirmation of resolution passed by Standing C?mm1~ee-Mod1fication in resolution whether can be adopted by circulation among
members and subsequent confirmation by general body-Modification in model bye-laws must comply with s. 324(4) and (5)-DeC feet in some of the bye-laws does not make the rest of the bye4aws
unenforceable.
On June 11, 1965, the Standing Committee of the Raichur Municipal Council resolved to levy octroi duty according to Sch. II under
s. 94 of the Mysore Municipalities Act,
1964. It was rec'.ite~ in
the resolution that the confirmation of the general body be obtamed.
The genera? body unanimously approved the resolution of the
D Standing Committee.' On October 27, 1965 the notification under
s. 95 of the Act inviting objections from the public was published; 110
objections were received. On February 26, 1966 there was a special
general body meeting and it was resolved to levy octroi with effect
from April I, 1966. This resolution was however amended by modification of· its second paragraph on March 25, 1966. Approval to this
modification was obtained at first by circulation to the members on
March 3L, 1966 the minutes of the meeting dated February 26, 1966
E and the adoption of the resolution modifying the second paragraph
by circulation on March 25, 1966, were read, heard and confirmed
unanimously. As required by s. 123 of the Act the model bye-laws
framed by Government were adopted but the table of rates in model
bye-law 16 'relating to the levy of storage fee and charges on goods
placed in the bonded warehouses was left blank. The. rates were
fixed by the Council by its resolution of March 31, 1966. On April 16,
1966 sanction of the Government under s. 96 of the Act to the levy
p of octroi and the adoption of model bye-laws was given and on May
3, 1966, the notification under s. 97 of the Act imposing octroi duty
under Sch. II and adopting the bye-Jaws was published. The resploI!-
dents who were dealers in cloth in Raichur moved the High Court
of Mysore under Art. 226 of the Constitution. The High Court held
that though octroi had been properly levied its collection was unauthorised owing to defects in the bye-laws adopted. The municipality
G appealed. The following questions fell for consideration: (i) whether the resolution levying the octroi and the subsequent modifica'
tion of the said resolution were procedurally valid (ii) whether the
fixation of rates for the purpose of model bye-law 16 was validly
made. the procedure in s. 324('4) and (5) not having been followed·
(iii) whether the bye-raws were unenforceable fur the reason that
they did not fix the 'time for the PUrPOSe of bye-laws 23 27 and 28
and did not give a list of articles for the purpose of bye-laws 33
B to 36.
HELD: (i) The resolution of the Standing Committee selecting
octroi tax for imposition -exi;>ressly stated that confirmation of the
iieneral body would be obtained. and such confirmation was actual
ly obtained, It could not in the circumstances be contended that
88
SUl'REV!i COURT REPORTS
[1968] l li.C.R.
there was no valid resolution by the Municipal Council under s. 94 A
selecting octroi duty for imposition. [92F-HJ
The resolution modifying the original resolution dated February
26 1966 was no doubt passed by cir'eulation but later the said circulation was "read heard and confirmed unanimously" by the general
body Under s. 80(5) any irregularity not affecting the merit of the
case 'can be cured and s. 97(2) prohibits enquiry into the regularity B
of the procedure by which a tax has been imposed after a notice
unler s 97 (1) is published. No material had been placed before the
Court to show that in making the modification s. 57 had not been
complied with. f93A-Dl
Municipab Board, Hapur v. Raghuvendra Kripal & Ors., [1966)
1 S.C.R. 950, relied on.
(ii) If bye-laws in respect of the matters specified in cl. (m) of C
s. 324(1) are made and submitted for sanction or model bye-laws
framed by the Government for thOSe purposes are adopted, the requirements of s. 123(1) wiJI be satisfied, and if Government sanctioll8
the resolution of the Municipal Council imposing octroi duty under
s. 97(1) and the notice is duly published, octroi duty may be collected by the Municipal Council. Defect in the bye-laws will not affect
the authority of the Municipal Council to collect the tax for the authority arilses under s. 94(3) from Act and the Rules. f94C-D]
D
The Municipal Council by fixing a tariff for storage fee under
bye-law 16 modified the model bye-laws, and since the modification
was made without the procedure prescribed in s. 324(4) and (5) the
said bye.Jaw was invalid. As a result the Municipal Council wak not
entitled to levy any charge for storage under bye-law 16. But the
validity of other bye.Jaws was not thereby affected. f94H-95Cl
(iii) The time contemplated to be fixed for the purposes of bye- B
laws 23(e), 27 and 28 need not be fixed in the bye-laws. If time is
fixed by resolution of the Municipal Council after the bye.Jaws are
sanctioned, there would be no defect in the bye-laws. [95E-F]
. Bye-la~s 33 to 36 depend for their operation upon the list of
articles being effectively incorporatea in bye.Jaw 32. Failure to in.
corporate the list of articles would result in the Municipal Council p
being u?able to enforce compliance with the requirement of taking
out a licence. The rest of the by-laws did not threby become in.-
effective. [95G-H]
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 23822384 of 1966.
Appeals from the judgment and orders dated October 6, 1966
of the Mysore High Court in Writ Petitions Nos. 1056, 1607 and
1298 of 1966.
S. T. Desai, S. C. Java/i and Vineet Kumar; for the appellant
<in all the appeals).
M. M. Ramamurthi and Shyamala Pappu, for respondent No. 1
(in all the appeals) and respondent No. 2 (in C. A. No. 2382 of
1966).
G
B
MUNICIPAL COUNCIL V. AllAR CHAND (Sha!., J,)
89
A
The Judgment of the Court was delivered by
Sllall J.--On May 3, 1966 the Municipality of Raichur lm·
posed octroi duty on goods specified .in Sch. II ~o. the. ~ysore.
Municipalities Act 22 of 1964, entermg the mumc1pal l11~11ts for
consumption, use or sale. The respondents who are tra~~rs ID cloth
at Raichur moved the High Court of .Mysore. by petitions un~er
B Art. 226 of the Constitution challenging the levy and co~lechon
of octroi duty on go~s described in Sch. II of the. Act m pursuance of the notification dated May 3, 1966. The l;hgh Court of
Mysore held that the tax was properly imposed, but'· in ~heir view
collection of the tax was not authorised by law. The High Court
accordingly issued a writ of mandamus restraining the. Mu_nicipal
Council, Raichur from recovering the octroi duty levied ID pure suance -of the notific~ion dated May 3. 1966. The Municipal
Council, Raichur, has appealed to this Court against the orders
passed by the High Court.
The relevant provisions of the Mysore Municipalities Act 22
of 1964 and the Bye-Laws may be summaried. Bys. 94 the Municipal Council is authorised, subject to the general or special orders
D of the Government, and after observing the preliminary procedure
prescribed by s. 95, to levy, among other taxes, octroi on goods
specified in Sch. II entering the municipal limi.ts for consumption,
use or sa,le therein. By sub-s. (3) of s. 94 it is provided that the
taxes specified in sub-s. (I) shall be assessed, levied and collected
in accordance with the provisions of the Act and the rules made by
the Government under s. 323. Section 95 prescribes the procedure
E preliminary to imposition of tax. A municipal council has by resolution passed at a general meeting to select for the purpose one or
more of the taxes specified in s. 94 and in such resolution to specify
the classes of persons or of property or of both which the municipal
council_ proposes to make liable and to prescribe exemptions which
it proposes to make, the amount or rate at which the municipal
r council proposes to assess any such class, and in the case of octroi,
the octroi stations. The resolution must be published in the official
~azette and in su~~ ot~er manne! a.s may be prescribed. Any inhabitant of the mumc1paltty may wllhm one month from the publication of the notice submit his objection to the imposition of the tax
or to the amount or rate proposed, or to the classes of persons or
pro~~ty to be '!lade liable, ?r to any exemptions proposed. The
G mum~1pal council must take IDto consideration the objections and
su~n,i1t to the Government of the State such objections with its
op1mo~ thereon and. any modifications proposed in accordance
therewith together with a copy of the notice. A resolution sanctioned by the Government together with a notice reciting the sanction
and ."!e date an.d . number thereof may then be published by the
B mumc1pal cou~cll ID the official Gazette, and the tax as prescribed
by the fCS?lution shall be imposed accordingly. Sub-sectlon (2) of
s. 97 proV1des :
"The publi~tion of a notice under this section shall
be conclusive evidence that the tax has been imposed in
90
SUl'REllE COURT REPORTS
[1968] l s.c.11.
accordance with the provisions of this Act and the rules
A
made thereunder".
Section 123 provides that every municipal council when submitting
for sanction a proposal for the imposition of octroi, shall submit
therewith for sanction bye-laws for the purposes of cl. (m) of sub-s.
(]) of s. 324 or adopt model bye-laws made for the said purposes.
Section 124 deals with "non-liability for octroi and refund of octroi B
on goods in transit". Section 125 invests the municipal council with
power to exempt articles liable to octroi duiy, and s. 126 relates to
the presentation of bills for octroi and prescribes penalties for evasion of payment of octroi. Section 127 prescribes the penalty for
selling articles liable to octroi without a licence, or for being in
possession of any such article on which octroi has not been paid. C
Section 323 authorises the Government to make rules for carrying:
out all or any of the purposes of the Act and to prescribe forms for
any proceeding for which it considers that a form shall be prescribed. Exercising the authority conferred bys. 323 the Government of
Mysore published on September 2. 1965, the Mysore Municipalities
Taxation Rules, 1965. Rules 25 to 32 deal with the collection of
octroi. Rule 25 deals with the mode of collection; r. 26 with pay- n
ment of octroi; r. 27 with assessment Mid colledtion of octroi at
octroi station; and r. 28 with the procedure in case where octroi is
leviable ad valorem. Rule 31 requires the municipal council to
maintain a list of traders and public bodies allowed to have an
account current, and r. 32 requires a trader or public body allow·
ed to have an ·account current to present a declaration in Form
VII. Section 324 authorises the municipal council to make, alter I
or rescind bye-laws, subject to the provisions of the Act and the
rules made thereunder. Clause (m) provides, insofar as it is
material:
"providing for the exhibition of tables of octroi, requiring a licence to be obtained for the sale of any article
liable Ill octroi and prescribing the conditions on or subject
F
to which such licence may be granted, refused, suspended
or withdrawn, regulating. subject to any general or special
orders which the Government may make in this behalf,
the system under which refunds are to be made on account
thereof when the goods on which the octroi has been paid,
or article manufactured wholly or in part from such
G
goods, are again exported and the custody or storage of
goods declared not to be intended for use or consumption
or for sale within the municipality; ................. .
Section 325(2) provides that a municipal council may by resolution
adopt in respect of any matter the !"ode! bye-laws made by. the
Government under sub-s. (1) of s. 325 m respect of matters specified 8
in s. J24. Sub-section (3) of s. 325 provides:
"If a municipal council proposes to adopt the model
bye-laws in respect of any matter subject to any modifica·
tlons, the procedure specified in sub-sections (4), (5) ;ind (6)
A
B
MUNICIPAL COUNCIL V. AMAR CHAND (Shah, J.)
91
of section 324 shall be followed as if the modifications
were bye-laws
proposed to be made by the municipal
council. The modifications as approved by the Government shall be published in the prescribed manner and
the model bye-laws shall subject to such modifications
come into· force from such date as may be specified by
the municipal council and where no date is specified on
the date of such publication".
Sub-sections (4) & (5) of s. 324 set out the procedure to be followed
by the municipal council in the making and publication of bye-laws.
Sub-section (6) authorises the local Government while approving
the bye-laws to make any changes therein which appear to it to be
c necessary.
In the present case the Municipal Council adopted the model
bye-laws framed by the Government. It appears, however, that the
table of rates in model bye-law 16 relating to the levy of storage
fee and charges on goods placed in the bonded warehouses. was
left blank. The Municipal Council has however by resolution presD cribed a. table of rates of storage fee and charges in respect of
different classes of articles stored in the bonded warehouses.
The respondents challenge in this Court the validity of the
imposition oi. octroi duty on two grounds: (i) that there was no
valid resolution by the Municipal Council under s. 94 of the Act
selecting the octroi duty for imposition; and (ii) that the model
E bye-la,ws having been altered by adding a tariff of storage fee in
the bonded warehouses without following the procedure prescribed under s. 324(4) & (5), the model bye-laws could not be
deemed to have been validly adopted by the Municipal Council.
They also submit that the Municipal Coun~il has no authority to
collect octroi duty, and support the judgment of the High Court,
p on that question.
Before considering the arguments advanced at the Bar, the
steps taken by the Municipal Council for imposing the tax and for
adoption of the model bye-laws may be briefly set out. ·On June
11, 1965 the Standing Committee of the Raichur Municipal Council resolved to levy octroi duty according to Sch. II under s: 94
G of the Mysore Municipalities Aot, 1964, at the maximum rates at
the octroi barriers specified therein. It was recited in the resoJu.
tion that confirmation of the general body be obtained. By resolution dated June 28, 1965 the general body resolved unanimously
to confirm the recommendations of the Standing Committee dated
June 11, 1965. On October 27, 1965 the notification under s. 95 i
B of the Act by the Municipality inviting objections to the proposals
to impose octroi tax was published. No objections were received
from any resident of the Municipality against the proposal to levy
octroi. On February 26, 1966 there was a special general body
meeting of the Municipal Council and it was resolved to levy
92
SUPRElllE COURT REPORTS
.
[1968] 1 s.c.R,
octroi with effect from April I, J 966. The resolution was in the A
following terms:
"After due decision and consideration it was unanimously resolved to levy the octroi duty on all the goods
imported within municipal limits of Raichur · under the
Schedule II of Mysore Municipalities Act, 1964, from
the first day of April 1966. Further the Committee resolvB
ed that the Hyderabad District Municipalities Octroi
Rules, 1959, will continue till the new Octroi Rules and
Bye-laws are finalised under Mysore Municipalities Act,
1964."
But this resolution was amended on March 25.
1966, and the
second paragraph was substituted by the following paragraph:- c
"Further the Committee resolved· that the appended
Bye-laws framed by the Municipality in the light of
Octroi Model ByeJJaws 1965 published by the Government in the Mysore Gazette dated I Ith November, 1965,
have been fully approved."
Approval to the modification in the second paragraph was ob- D
tained by circulation to the members and not in an open general
meeting. On March 31, 1966 the minutes of the meeting dated
February 26, 1966, and the adoption of the resolution modifying
the
second
paragraph by circulation on March 25, 1966, were
read. heard and confirmed unanimously. The storage fee under
bye-law 16 of the model bye-laws was also adopted. On April 16, E
1966 sanction of the Government under s. 96 of the Act to the
levy of octroi and the adoption of model bye-la.ws was given, and
on May 3, 1966, the notification under s. 97 of the Act imposing
octroi duty under Sch. II to the Act and adopting the bye-laws
was published. Thereafter on various dates in the months of July
and August 1966, the writ petitions out of which these appeals
arise were filed.
F
There is no substance in the contention that the municipal
council had not passed a resolution selecting the octroi tax for
imposition. As stated earlier, on June II, 1965, the Standing
Committee of the Municipal Council had "resolved to .impose
octroi duty" under Sch. II to the Act.
But the resolution also G
stated that confirmation of the general body meeting should be
obtained. The Municipal Council at its meeting dated June 28,
1965 treated the resolution of the Standing Committee as a recommendation and confirmed the recommendation.
The resolution
dated June 28, 1965, was passed by the general body and thereby
the Municipal Council
adopted
the recommendations of the
Standing Committee, and resolved to select levy of octroi duty at H
the maximum rates at the octroi barriers specified therein.
It is true that the resolution modifying the original resolution
dated February 26, 1966 was passed by circulation on March 25,
MUN:IOIPAL OOtlNOlL v. AMAR ell.a.ND (SW, J.)
93
A 1966. But in view of the terms of s. 80(5) the validity of the resolution was not liable to be questioned on the ground of irregularity which manifestly did not affect the merit of the case. It may
be recalled that on March 31, 1966 the "circulation dated 25-3-66
were .read, heard and confirmed unanimously."
The plea that a resolution passed by the Municipal Council
:S cannot,' under the Act, be modified or cancelled within three
months is without force. Section 57 of the Act provides that no
resolution of a municipal council shall be modified or cancelled
within three months after the passing thereof except by a resolution passed in the manner prescribed in that behalf. There are no
materials on the record to prove that the requirements of s. 57
O were not complied with, and s. 97(2) prohibits any enquiry into the
regularity of the procedure for imposition of the tax after a notice
under s. 97(1) is published. This Court in Municipal Board, Hapur
v.' Raghuvendra Kripal & Ors.(') in dealing with a similar provision in s. 135 of the U. P. Municipalities Act 2 of 1916, held tha.t
s .. 135(3) shuts out enquiry into the procedure by which a tax had
D been imposed. Hidayatullah, J .. speaking for the majority observed (p. 958):
E
"There is a difference between the tax and the imposition of the tax. The former is the levy itself and the
latter the method by which the levy is imposed and collected. What the sub-section does is to put beyond question the procedure by which .the tax is imposed, that is
to say, the various steps taken to impose it."
Section 97(2) makes the publication of the notice under s. 97(1)
conclusive evidence that the tax has been imposed in accordance with the ·provisions of the Act and the rules made there·
under. The expression "imposed in accordance with the provisions
r of this Act", in our judgment, means "imposed in accordance
with th.e procedure prQvided under the Act". All enquiry into the
regulllr1ty of the. procedure followed by the Municipal Council
prior to the publication of the notice is excluded by s. 97(2). This
is not a case in which the Municipal Council had not selected a
tax for imposition by ·a resolution: nor is it a case in which the
G Municipal Council was seeking to levy tax not authorised by
law.
A ~unicip~I Council w_hen submitting for sanction a proposal
for the llDPi>Sltlon of octro1 has. to submit under s. 123 with the
proposal for imposition of octroi, also bye-laws for the purposes
B of cl. (m) .of sub-s. (!) of. .s. 324, or t? adopt model bye-Jaws made
for the said purposes. It 1s to be noticed that under s. 94(3) of the
Act the tax has to be assessed, levied and collected in accordance
(1) [11166] I S.C:.R, 960.
SIJPllBll'.E COtlllT l\llil'OllTS
[I 968] 1 s.o.n.
with the provisions of the Act and the rules made by the Govern· A
ment under s. 323. Bye-laws contemplated to be made under s.
324(l)(m) and required to be adopted from the model bye-laws
or specially framed and submitted under s. 123 deaJ with matters
of details, such as the exhibition of tables of octroi; requiring a
licence to be obtained for the sale of any article liable to octroi
and prescribing the conditions on or subject to which such licence B
may be granted, refused, suspended or withdrawn; regulating the
system under which the refunds are to be made when the goods
on which the octroi has been paid are again exported; for the
custody or storage of goods declared not to be intended for use
or consumption or for sale within the municipality; prescribing a
period of limitation after which no claim for refund of octroi shall
be entertained; and prescribing the minimum amount for which c
any claim for refund may be made. If bye-laws in respect of these
matters specified in cl. (m) of s. 324(1) are made and submitted
for sanction or model bye-laws framed
by the Government for
those purposes are adopted, the requirements of s. 123(1) will be
satisfied, and if the State Government sanctions the resolution
of the Municipal Council imposing octroi duty under s. 97(1) and D
the notice is duly published, octroi duty may be collected by the
Municipal Council. Defect in
the bye-laws will not affect the
authority of the Municipal Council to collect the tall, for the authority arises under s. 94(3) from the Act and the rules.
The Municipal Council of Raichur adopted the model byelaws made by the Government. None of the bye-laws "for the E
purposes" of cl. (m) of s. 324 in the model bye-laws was defective
or incomt>lete. The model bye-laws undoubtedly did not prescribe
the storage fee, and the resolution of the Municipal Council levy·
ing storage fee at the rates set out in the bye-laws and submitted
to the Government was not made 'in conformity with the terms of
s. 324(4) & (5).
F
The High .Court held that the bye-Jaws adopted by the Muni·
cipal Council were invalid because m the resolution dated February 26, 1966 could not have been modified by circulation; and
(2) that it was not shown that the Municipal Council had complied
with the requirements of s. 57 when modifying the resolution 0 .
dated February 26, 1966; and (3) that the State Government had
not fixed the lime prescribed by bye-laws Nos. 23(e), 27, 28 and
32, and since no decision was taken on those bye-laws by the
Municipal Council, the enforcement of the oct:roi levy was
"rendered difficult".
It is clear that under s. 325(3) modifica.tions to the model B
bye-laws alone require compliance with sub-ss. (4) & (5) of s. 324.
It may be assumed that fixing a tariff for storage fee under byc-l.aw
·16 which is not prescribed under the model bye-laws amounts to
' '
llUNICIPAL COUNCIL v. AMAR CHAND (Shan, J.)
911
A modification of the bye-laws.
but even
on that assumption
only bye-law 16 may be deemed to be invalid, and the power
to collect the storage fee may not be lawfuly exercised by tho
Municipal Council:
that does not affect the validity of the
other bye-laws. If without a particular bye-law, the scheme of the
rest of the bye-laws may be unworkable, it may follow by nccesB sary implication that the other bye-laws have also become ineffective. But that cannot be said of the defect in adopting the table
of fees for the purpose of bye-law 16. The Municipal Council may
not be entitled to levy any charge for storage under bye-law 16,
but that is the only effect of non-compliance with the terms of
sub-ss. <4> and (5) of s. 324. The other bye-laws remain valid and
c
operative, for they are plainly severable.
Bye-law 23(e) of the model bye-laws provides that no refunds
shall be allowed in respect of goods which are transported outside
the municipal limits within one month of their being brought into
the municipal limits, but regarding which the intimation has not
been given to the Municipal Commissioner or Chief Officer within
such time as may be fixed by the Municipal Council. Bye-law 27
D provides that th~ app:ication for refund with the goods to which
it relates shall be presented at the Octroi Station through which
it is transported outside the municipal limits within such interval
from the hour of examination as the municipal council may determine. Similarly bye-law 28 provides that the Octroi
Official-inCharge of the Octroi Station shall satisfy himself that the goods
produced for transport outside the municipal limits as covered by
E the refund application correspond with the entries in the refund
application form and that they are presented within the time fixed
by the Municipal Council under bye-law 27. In our judgment, the
time contemplated to be fixed for the purposes of bye-laws 23(e),
27 8' 28 need not be fixed by the bye-laws.
If time is fixed by
resolution of the Municipal Council even after the bye-laws are
p sanctioned, there would be no defect in the bye-laws.
Bye-law 32 provides thai no person shall sell articles mentioned therein without obtaining a licence granted in that behalf.
The model bye-law is silent as to the articles which may not be
sol~ without. obtaining a lic~nce.
By~-laws 3'3 to 36 depend for
their t>11<:rat1on upon the !1st of a~t1cles being effe~tively incorG porated m bye-law 32. Failure to mcorporaie the hst of articles
would result in the Municipal Council being unable to enforce
compfo1nce with the requirements of ta.king out a licence. But we
are unable to hold that because of the failure to fix the time under
by~-laws. 23(e),
27, 28, or for failure to incorporate the list of
articles m bye-law 32, the rest of the bye-laws became ineffective.
H We are o_f the view that e~en without these: ?ye-laws and bye-law
16. octrm duty may be levied by the Municipal Council. Jn our
view, th7 High Court was in error in holding that the model byelaws which were adopted by the Municipal Council were unenforceable.
Slll'Ullll COlJBT lllll'OBTS
(1968) 1 1.0.I.
The appeals must therefore be allowed and the petitions filed 4
by the respondents dismissed with costs in this Court. One hearing
fee. The .order passed by the High Court regarding the costs is
maintained.
G.C
Appeals allowed.
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!IC.:
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