# SUPREME .COURT REPORTS [1962) r96r THE BERAR SWADESHI VANASPATHI & March z8. OTHERS v. THE MUNICIPAL COMMITTEE, SHEGAON & ANOTHER

- **Citation:** [1962] 1 S.C.R. 596
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeal No. 234of1959
- **Bench:** S. K. Das, J. L. Kapur, M. Hidayatullah, J.C. Shah, T. L. Venkatarama Ayyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supreme-court-reports-1962-r96r-the-berar-swadeshi-vanaspathi-march-z8-others-v-2151
- **Pages:** 6

## Headnote

;;.
Octroi Tax-Imposition of-Irregularities-Issuance of Government Notification-Effect-C. P. & Berar Municipal Act, I922
(C. P. & Berar II of r922), s. 67, sub-ss. (6) and (8).
The respondent Municipality passed a resolution under
s. 67(1) of the C.P. & Berar Municipal Act, 1922, for the purpose
of levying an octroi duty which was published in the State
Gazette along with the rules for assessment. Objections were
invited to the said proposed tax, and only one objection was
filed within time which was also rejected. The Government gave
its sanction to the imposition of the tax and draft Rules by two
Notifications.
The appellants filed a petition challenging the legality of the
imposition of the tax inter alia on the ground that the notifications were ultra vires. They contended that all steps necessary
for the imposition of tax had not been taken and that objections
raised within time by the respondent No. r were not considered
on their merits and were rejected merely on the ground that
there was only one objector; as this was one of the essential steps
for the validity of the imposition of tax it could not be said
that s. 67 of the Act had been complied with, therefore the imposition was invalid.
Held, that where the Government Notification clearly was
one which directed imposition of Octroi Tax it fell within subs. (7) of s. 67 of the Act and having been once notified in the
Gazette sub-s. (8) of s. 67 of the Act came into operation and the
issue of the notification was conclusive evidence of the Tax
having been imposed in accordance with the provisions of the
Act, and it could not be challenged on the ground that all necessary steps had not been taken.

## Text

596
SUPREME .COURT REPORTS
[1962)
r96r
THE BERAR SWADESHI VANASPATHI &
March z8.
OTHERS
v.
THE MUNICIPAL COMMITTEE, SHEGAON &
ANOTHER
(S. K. DAS, J. L. KAPUR, M. HIDAYATULLAH,
J.C. SHAH and T. L. VENKATARAMA AYYAR JJ.)
;;.
Octroi Tax-Imposition of-Irregularities-Issuance of Government Notification-Effect-C. P. & Berar Municipal Act, I922
(C. P. & Berar II of r922), s. 67, sub-ss. (6) and (8).
The respondent Municipality passed a resolution under
s. 67(1) of the C.P. & Berar Municipal Act, 1922, for the purpose
of levying an octroi duty which was published in the State
Gazette along with the rules for assessment. Objections were
invited to the said proposed tax, and only one objection was
filed within time which was also rejected. The Government gave
its sanction to the imposition of the tax and draft Rules by two
Notifications.
The appellants filed a petition challenging the legality of the
imposition of the tax inter alia on the ground that the notifications were ultra vires. They contended that all steps necessary
for the imposition of tax had not been taken and that objections
raised within time by the respondent No. r were not considered
on their merits and were rejected merely on the ground that
there was only one objector; as this was one of the essential steps
for the validity of the imposition of tax it could not be said
that s. 67 of the Act had been complied with, therefore the imposition was invalid.
Held, that where the Government Notification clearly was
one which directed imposition of Octroi Tax it fell within subs. (7) of s. 67 of the Act and having been once notified in the
Gazette sub-s. (8) of s. 67 of the Act came into operation and the
issue of the notification was conclusive evidence of the Tax
having been imposed in accordance with the provisions of the
Act, and it could not be challenged on the ground that all necessary steps had not been taken.
CIVIL APPELLATE JURISDICTION:
Civil Appeal No.
234of1959.
Appeal from the order dated February 15, 1957 of
the Bombay High Court of Judicature at Nagpur in
Special Civil Application No. 2-N of 1956.
S. P. Varma, for appellant No. 1.
..
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1 S.C.R. SUPREME COURT REPORTS
597
B. S. Shastri and Ganpat Rai, for respondent No. 1.
B. R. L. Iyengar and T. M. 'Sen, for respondent
No. 2.
Berar Swadeshi
Vanaspathi
1961. March 28.
delivered by
The Judgment of the Court was
v
c
lvlunicij,al
omKAPUR, J.-This is an appeal on a certificate by the
High Court of Bombay against the judgment and
order of that Court passed on a petition under Art. 226
of the Constitution by the present appellants in regard
to the legality of the notification levying an octroi
duty on certain goods.
The appellants are some of the ratepayers of the
Municipal Committee of Shegaon which is respondent
No. 1 in this appeal. The other respondent is the
State of Bombay. The appellants were carrying on
trade and business which involved their bringing
goods within the limits of the Municipal Committee.
On July 25, 1954, the Municipal Committee passed a
resolution for the purpose of levying an octroi duty
instead of terminal tax. This resolution was published in the State Gazette on June 29, 1956, along with
rules for assessment. On August 4, 1956, objections
were invited to the proposed tax. The objections by
the first appellant were filed on August 4, 1956, and
by some others on August 5 and 6.
At a meeting of
the Municipal Committee dated August 16, 1956, the
objections of the other appellants were rejected as
being time barred and those by the first appellant
were rejected because it was the only objector whose
objections were within time. Some representations
were made by the first appellant to the Government
and a few days later the other objectors also made
similar representations but the Government issued the
notification sanctioning the imposition of the tax and
the Draft Rules on October 27, 1956, though the
Gazette Notifications were published on two separate
dates, i.e., October 30 and October 31, 1956.
The
appellants then filed a petition under Art. 226 in the
High Court of Bombay at Nagpur challenging the
legality of the imposition of the tax.
Two main
grounds were urged: (1) that the notification was ultra
1nittee, Shegaon
1< apur ].
Berar Swadeshi
Vanaspathi
v.
Municipal Co11iniittee, Shegaon
T<apur .f.
598
SUPREME COURT REPORTS
[1962]
vires because s. 67 of the C. P. & Berar Municipalities
Act, 1922 (Act II of 1922), hereinafter termed the
'Act', had not been complied with and (2) that the rate
of tax in regard to certain articles was unauthorised
in that it was more than the maximum which could
be levied under the law.
The High Court rejected the
first ground but accepted the second objection and
gave relief accordingly.
Appellants Nos. 2 to 6 have not taken steps for the
prosecution of the appeal and the appeal, in so far as
it relates to them, is dismissed for non-prosecution.
The appellant No. 1 before us has challenged the
vires of the imposition on two grounds: (1) that all the
steps necessary for the imposition of the octroi duty
had not been taken and therefore s. 67 had not been
complied with and (2) that as a matter of fact there was
no notification imposing an octroi duty. For the purpose of the decision of these objections it is necessary
to refer to the scheme of the Act, Chapter IX of
which relates to the imposition, assessment and collection of taxes. Section 66 enumerates the taxes which
may be imposed and s. 67 prescribes the procedure for
imposing taxes. Section 67 reads as under:-
Section 67(1) "A committee may, at a special
meeting, pass a resolution to propose the imposition
of any tax under section 66.
(2) When such a resolution has been passed, the
committee shall publish in accordance with rules
made under this Act, a notice defining the class of
persons or description of property proposed to be
taxed, the amount or rate of the tax to be imposed
and the system of assessment to be adopted.
(3) Any inhabitant of the municipality objecting
to the proposed tax may, within thirty days from
the publication of the notice, submit his objection in
writing to the committee.
(4) The committee shall take the proposal and all
objections received thereto into consideration at a
special meeting, and may modify tho proposals so
as not to affect their substance, and may then forward them to the Provincial Government along
with all objections received, its decisions thereon
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I S.C.R. SUPREME COURT REPORTS
599
and its reasons therefor. If the committee decided
to modify the proposals so as to affect their substance it shall publish them again in the manner
prescribed in sub-section (2).
(5) The Provincial Government., on receiving such
proposals may sanction or refuse to sanction the
same, or sanction them subject to snch modifications
as it may think fit, or return them to the committee
for further consideration:
(6) ............................................................. .
················································
(7) If any proposals for taxation have been sanctioneli under sub-section (5) the Provincial Government may, by notification direct the imposition of
the tax as sanctioned from such date as may be
specified in such notification, and thereupon the
tax shall come into effect as from the date so specified.
A notification of the imposition of a tax under
this section shall be conclusive evidence that the
tax has been imposed in accordance with the provision of this Act."
The objection to tho vires of the notification in regard
to procedure is that the objections raised by appellant
No. 1, though within time, were not considered on
their merits and were rejected merely on the ground
that there was only one objector and as this was one
of the essential steps for the validity of the imposition
it could not be said that s. 67 had been complied with;
and the imposition was therefore invalid. The High
Court rejected this plea because of s. 67(8), although
it found that non-consideration of the objections was
·an error in procedure. The language of sub-s. (8) lends
support to this view. It provides that the issuance of
the notification imposing a tax shall be conclusive
evidence that the tax had been imposed in accordance
with the provisions of the Act. But it was argued
that as a matter of fact there was no notification imposing the tax and therefore the question of conclu.-
sive evidence does not arise.
This, in our opinion, is
not established .
As stated above, there were two notifications issued
LJerar Swadeshi
Vanaspathi
v.
Municipal Committee, Shegaon
Kapur ].
Berar Swadeshi
Vanaspathi
v.
Municipal Coi-nmittee, Shegaon
Kapur ].
600
SUPREME COURT REPORTS
[1962]
by the Government both of October 27, 1956. One was
published in the Gazette on October 30, 1956, and the
other on the following day. The first notification w.as
as follows:-
"N o. 4963-5869-M-XIIT.-In exercise of the powers conferred by sections 71, 76 and 85 of the Central Provinces and Ilerar Municipalities Aut, 1922
(II of 1922), the State Government are pleased to
sanction the following draft rules for assessment,
collection and refund of the octroi tax within the
limits of the Shegaon Municipality, in the Buldana
District.
The rules shall come into force from the' date of
their publication in the 'Madhya Pradesh Gazette
Extraordinary' ".
And the second notification stated:-
"N o. 4962-5869-M-XIII.-In exercise of the powers conferred by sub-section (2) of section 67 of the
Central Provinces and Berar Municipalities Act, 1922
(II of 1922), the State Government are pleased to
confirm the following draft rules for the imposition
of the octroi tax within the limits of the SHEGAON
MUNICIPAL COMMITTEE, in the Buldana district, under clause (c) of sub-s. (1) of section 66 of
the said Act, on animals and goods brought for sale,
expenditure or use in supersession of the rules of
terminal tax, sanctioned under Notification No. 3716-B-VIII dated the 15th February, 1921.
The rules shall come into force from the date of
their publication in the 'Madhya Pradesh Gazette
Extraordinary' ".
The first notifieation purports to be in exercise of the
powers under s. 71 which relates to Rules for assess- 1
ment and for preventing evasion of assessment of
taxes; s. 76 which provides for collection of taxes
and s. 85 which relates to refunds. That notification
therefore lays down the various rules and other matters necessary for the collection of taxes. The second
notificationoii the face of it is under sub-s. (2) of s. 67.
It appears to us that this is a mistake and should have
been under sub-s. (7) of s. 67.
By this notification
the State Government confirmed the draft rules for
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1 S.C.R. SUPREME COURT REPORTS
601
the imposition of the octroi duty which in the context
'must mean imposition of the tax because the very
first rule states:-
. Rule 1 "Octroi shall ordinarily be levied on commodities included in the following classes and specified in the schedule hereto annexed and at the rates
therein entered".
The various classes of articles and commodities on
which octroi was to be levied are then set out and then
the exceptions and explanations are given. With
these rules are the schedules specifying the goods
under each class which are liable to octroi duty and
the rate at which the octroi duty was chargeable.
This notification therefore clearly is one which directs
imposition of octroi and falls within sub-s. (7) of s. 67
and having been notified in the Gazette it is conclusive evidence of the tax having been imposed in
accordance with the provisions of the Act and it
cannot be challenged on the ground that all the necessary steps had not been taken.
In our opinion this appeal is without force and is
therefore dismissed with costs.
Appeal dismissed.
HUKUM SINGH AND OTHERS
v.
THE STATE OF UTTAR PRADESH
(K. SUBBA RAO and RAGHUBAR DAYAL, JJ.)
Criminal Trial-Criminal Trespass-Right of private defence
of property-Degree of-Trespasser, if must abide by the directions
of the aggrieved party-Common object-Conclusion of-Indian
Penal Code (Act 45 of I86o), s. r49.
The appellants one of whom was armed with hatchet and
others with lathis, on being prevented by one 'H' and his supporters through whose field they were committing cri1ninal trespass
with the common object to reach a public passage with two load-
,__ ed carts, are alleged to have attacked 'H' and his supporters, as
76
r96r
Berar Swadeshi
Vanaspathi
v.
Municipal Committee, Shegaon
Kapur ].
March aB.