# THE MUNICIPAL CORPORATION FOR CITY OF PUNE AND ANR v. BHARAT FORGE CO. LTD. AND ORS

- **Citation:** [1995] 2 S.C.R. 716
- **Court:** Supreme Court of India
- **Decided:** 1995
- **Bench:** Kuldip Singh, B.L. Hansaria, S.B. Mujmudar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-municipal-corporation-for-city-of-pune-and-anr-v-bharat-forge-co-ltd-and-ors-12948
- **Pages:** 25

## Headnote

Doctrine of desuetude-Disuse of a statute for a long duration; and
contrary practice in use-The statute becomes a dead letter may be taken as
C replaced.
·
Cantonment Act, 1910-Ss.60-62-0ctroi Rules 1963-Whether 1881
resolution pennitted collection of octroi duties at the rates specified in Octroi
Rules of 1963-Whether any obstacle in law in allowing the same--Held.· No.
D
Wordr & Phrases : Contemporanea expositio'-Meaning of.
The Government of Bombay, by its Resolutfoo adopted on 26.li1881
approved the levy of Octroi in the Cantonment on the same articles and
at the same rate as in Poona City and it approved the proposal to divide
E the proceeds on certain terms. The Government of India conveyed its
sanction to the levy of Octroi in the Cantonment and issued notification.
The Municipality started collection of Octroi duties for the Cantonment
from that year itsrlf.
After the Cantonment Act 1910 came into force, the Cantonment
F wanted a new method of apportionment as it thought that the agreement
that existed was unjust. The State Government did not agree and the
disagreement was conveyed to the Cantonment. The Municipality
proposed to revise its Schedule ef Octroi Rules in 1917 by enhancing the
same, which was opposed by the Cantonment Committee. The Government
G approved the reVised Octroi Schedule. This order required the General
Officer Commanding of the Cantonment to be informed that the Government saw no reason to modify its earlier decisioa.
-H
Io 1963 new Octroi Rules were framed by the appellant which en-
~anced the rates of Octroi and included new articles in the schedule and
it started collecting octroi accordingly form all concerned. The respoo716
+
MUN. CORPN. FOR CITY OFPUNE v. BHARAT FORGE CO. LTQ. 717
~
dents filed writ petitions challenging the legality of the collection of the A
octroi made as per the 1963 Schedule to the Octroi Rules framed by the
appellant, before High Court. The Respondents contended that the 1881
Notification did not permit the collection and even i~ factually the· Notification were to so permit, the appellants could not have done so in law. The
High Court accepted both the contentions and allowed the writ petitions. B
r
Hence these present appeals.
, -
Allowing the appeal, this Court
r
HELD: 1. The 1881 Notification was meant to impose Octroi duties
1
not only at the rates prevailing when the Notification was i5$Ued nor was c
confined to the articles on which octroi.was then leviable, but these could
be collected at th~.rates..Jrigher than those prevailing at the time of issuance
-of the Notification, or could be le-ried on articles then not subject to octroi.
(725-D-E]
2. It would not be a correct reading of Notification No. 4160 of ~7th D
June, 1918 to hold that it .supersede t~e Notification of 12th March, 1881
in its entirety. 'fhe supersession has to be confined to taxes mentioned in
Notification No. 4160, Octroi being not one of these taxes, so the notifica·
tion did not supersede 1881 Notification qua octroi. This conclusion
receives support from what has been stated in Notification No. 4162of17th E
June, 1918 whicli has specifically _dealt with imposition of octroi duties and
trade registration fees. (726-F]
3. Notification No. 4162 which is the subject of imposition of octroi
duties has been supplemented by Notification No. 4163 dealing with the
assessment, collection and recovery of octroi duties. This aspect has been F
~;'
dealt with by section 15(2) of the Cantonment Act, 1910; the imposition
being covered by Sub- section (1) of this section. These Notifications were
issued with the previous sanction of the Governor-General in Council, and
by issuing Notifications No. 4162 and 4163, the issuing authority did
impliedly repeal Notification of 1881 dealing with octroi. (726-H, 727-A]
G
.
.
. 4. The Notification of June 1918 relating to Octroi duties were not
acted upon, and so, it would not be justified in allowing the Local Govern·
ment, or even the Governor-in-Council, to un

## Text

_Characters 0–39,983 of 60,214. This is a partial read: ask again with offset=39983 for what follows._

A
B
THE MUNICIPAL CORPORATION FOR
CITY OF PUNE AND ANR.
v.
BHARAT FORGE CO. LTD. AND ORS.
lvlARCfl 10, 1995
[KULDIP SINGH, B.L. HANSARIA AND S.B. MUJMUDAR, JJ.]
Doctrine of desuetude-Disuse of a statute for a long duration; and
contrary practice in use-The statute becomes a dead letter may be taken as
C replaced.
·
Cantonment Act, 1910-Ss.60-62-0ctroi Rules 1963-Whether 1881
resolution pennitted collection of octroi duties at the rates specified in Octroi
Rules of 1963-Whether any obstacle in law in allowing the same--Held.· No.
D
Wordr & Phrases : Contemporanea expositio'-Meaning of.
The Government of Bombay, by its Resolutfoo adopted on 26.li1881
approved the levy of Octroi in the Cantonment on the same articles and
at the same rate as in Poona City and it approved the proposal to divide
E the proceeds on certain terms. The Government of India conveyed its
sanction to the levy of Octroi in the Cantonment and issued notification.
The Municipality started collection of Octroi duties for the Cantonment
from that year itsrlf.
After the Cantonment Act 1910 came into force, the Cantonment
F wanted a new method of apportionment as it thought that the agreement
that existed was unjust. The State Government did not agree and the
disagreement was conveyed to the Cantonment. The Municipality
proposed to revise its Schedule ef Octroi Rules in 1917 by enhancing the
same, which was opposed by the Cantonment Committee. The Government
G approved the reVised Octroi Schedule. This order required the General
Officer Commanding of the Cantonment to be informed that the Government saw no reason to modify its earlier decisioa.
-H
Io 1963 new Octroi Rules were framed by the appellant which en-
~anced the rates of Octroi and included new articles in the schedule and
it started collecting octroi accordingly form all concerned. The respoo716
+
MUN. CORPN. FOR CITY OFPUNE v. BHARAT FORGE CO. LTQ. 717
~
dents filed writ petitions challenging the legality of the collection of the A
octroi made as per the 1963 Schedule to the Octroi Rules framed by the
appellant, before High Court. The Respondents contended that the 1881
Notification did not permit the collection and even i~ factually the· Notification were to so permit, the appellants could not have done so in law. The
High Court accepted both the contentions and allowed the writ petitions. B
r
Hence these present appeals.
, -
Allowing the appeal, this Court
r
HELD: 1. The 1881 Notification was meant to impose Octroi duties
1
not only at the rates prevailing when the Notification was i5$Ued nor was c
confined to the articles on which octroi.was then leviable, but these could
be collected at th~.rates..Jrigher than those prevailing at the time of issuance
-of the Notification, or could be le-ried on articles then not subject to octroi.
(725-D-E]
2. It would not be a correct reading of Notification No. 4160 of ~7th D
June, 1918 to hold that it .supersede t~e Notification of 12th March, 1881
in its entirety. 'fhe supersession has to be confined to taxes mentioned in
Notification No. 4160, Octroi being not one of these taxes, so the notifica·
tion did not supersede 1881 Notification qua octroi. This conclusion
receives support from what has been stated in Notification No. 4162of17th E
June, 1918 whicli has specifically _dealt with imposition of octroi duties and
trade registration fees. (726-F]
3. Notification No. 4162 which is the subject of imposition of octroi
duties has been supplemented by Notification No. 4163 dealing with the
assessment, collection and recovery of octroi duties. This aspect has been F
~;'
dealt with by section 15(2) of the Cantonment Act, 1910; the imposition
being covered by Sub- section (1) of this section. These Notifications were
issued with the previous sanction of the Governor-General in Council, and
by issuing Notifications No. 4162 and 4163, the issuing authority did
impliedly repeal Notification of 1881 dealing with octroi. (726-H, 727-A]
G
.
.
. 4. The Notification of June 1918 relating to Octroi duties were not
acted upon, and so, it would not be justified in allowing the Local Govern·
ment, or even the Governor-in-Council, to undo a notification issued with
the previous sanction of the Governor-General. The only legal way in which
Notifications No. 4162 and 4163 could have been rescinded was by issuance H
718
SUPREME COURT REPORTS
[1995) 2 S.C.R.
A of another Notification in the like manner and subject to like sanction
prevailing as when those were issued. It would alo be hazardous to allow an
executive authority to obliterate a statutory Notification, especially when a
subject which fell not within the domain of the Provincial Government, but
the Central Government, as did the subject of cantonment. (728-B-D]
B
c
D
5. The principle 'contemporanea expositio' is not decisive or controlling of the question of construction; it has only persuasive value. If
occasion arises, such interpretation may be even disregarded an in a clear
case of error, court would without hesitation refuse to follow such construction. (728-H, 729-A]
Deshbandhu Gupta v. Delhi Stock Exchange, (1979) 3 SCR 373, relied
upon.
Polestar Electronics (P) Ltd. v.Addl. Commissioner Sales Tax, (1978)
1 sec 636, referred ,to.
6. Though in India the doctrine of desuetude does not appear to have
been used so far to hold that any statute has stood repealed because of this
process, there could be no objection in principle to apply this doctrine to
our statutes as well. This is for the reason that a citizen should know
whether, despite a statute having been in disuse for long duration and
E instead a contrary practice being in use, he is still required to act as per
the 'dead letter'. It would advance the cause of justice to accept tlie application of doctrine of desuetude in our country also. Our soil is ready to accept
this principle; indeed, there is need for its implantation, because persons
residing in free India, who have been assured fundamental rights including
F what has been stated in Article 21, must be protected from their being, say,
prosecuted and punished for violation of a law which has become 'dead
letter'. A new path is, therefore, required to be laid and trodden. (731-F-G]
Brown v. Magistrate of Edinburgh, (1931) SLT (Scots Law Times
Report) 456458;/ohnstone v.Scott, [1802) 4 Pat274 andBuckoke v.Greater
G London Council, (1971) Ch 655, referred to.
Craies's Statute Law, 7th Edn. p.75 and Repeal and Desuetude by
Aubrey L. Diamond printed in Cu"ent Legal Problems, (1975) Volume 28,
referred to.
H
7. Notificatfon No 4162 dated 17th June, 1918 has stood repealed
r
MUN. CORPN. FOR CITY OF PUNE v. BHARAT FORGE CO. LTD. 719
'quasily' by the time new Octroi. Rules came to be framed in 1963, which A
were applied to realise octroi form the respondents. [732-D]
Westem India Theatres Y. Cantonment Board, Pune, [1959] Suppl. 2
63, referred to.
8. As a matter of policy there should be no difference in taxing the B
__,.
residents of cantonment areas and those residing in municipal areas, in
view of the fact that the former have ceased to be a separate and exclusive
.,
colony for armed personnel. The 1881 Notification cannot be assailed on
the ground of impermissible delegation. [736-D-E]
f ~
In re Delhi Laws Act, [1951] SCR 747 and Rajanarain Singh v. c
Chainnan of Patna Demonstration Committee, [1951] 1 SCR, 290, Committee.
Bagalkot State Municipality v. Bagalkot Cement Company, [1963]
Suppl. 1 SCR 710; B. Shama Rao v. Union of Territory of Pondicherry, D
~
[1967) 2 SCR 650; Gwalior Rayon Silk Mfg. (Wvg.) Company Ltd. v. The
Assistant Commissioner of Sales Tax; M.P. Papaiah v. Excise Commissioner,
[1975) 1SCC492;A.K Roy v. Union of India, [1982) 1 SCRandBrij Sunder
Kapoor v. First Addi. District Judge, [1989) 1 SCR 561, referred to.
9. The notice required to be published by section 61 of the CantonE
ment Act specifying, interalia, "the rate at which the tax is to be levied" of
which mention has been made in clause (c) refers to the tax to be levied,
and not which has already been levied. Clause (a) makes it clear that the
1publication required by section 61 is about the tax which is proposed to
be imposed. These provisions would show that the objection which is to be F
solicited, pursuant to the mandate of section 62, has to be regarding the
tax proposed to be imposed and the rate at which it is to be levied. The
opening sentence of section 61 mentions about the proposal of the Board
"to impose a tax" and so the imposition of which section 60 speaks of, is
~ of a tax proposed to be imposed by the Board, and not a tax which had G
already been imposed by the time the Act came to be enforced. (740-C-D]
10. The 1881 Notification did in fact permit the appellant to collect
octroi duties at the rate specified in 1963 Octroi Rules framed by the
appellant; and there was no obstacle in law in allowing the appellant to do
~
s·o. (740-F]
H
7'1JJ
SUPREME COURT REPORTS
[1995) 2 S.C.R.
A
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2550 of
,......_
1981 etc.etc.
From the Judgment and Order dated 19.12.79 of the Bombay High
Court in S.C.A. No. 527 of 1969.
B
T.R. Andhyarujine, Adv. Genl. K.J. Presswala, S.K. Agnihotri, D.M.
Nargolkar and Ms. V.D. Khanna for the Appellants.
Anil B. Divan and Shanti Bhushan, S.M. Thakore, Shyam A. Divan,
Prasant Patnaik, Ms. Meeta Sharma, B.V. Desai, Pallav Sisodia, Ravinder
C Narain and Ms. Amrita Mitra, for JBD and Co. for the Respondents.
The Judgment of the Court was delivered by
HANSARIA, J. The journey to decide the fate of these appeals has
to start form 1881 as it was on 12th March of that year that Notification
, D No. 165 was gazetted stating inter alia that octroi duties in the Cantonment
of Poona would be imposed at the rates "for the time being" leviable and
in respect of the several articles "for the time being" dutiable in the .
Municipality of Poona, when such articles would enter into the cantonment
from any place situate without the limits of the said Municipality. The
E Poona Cantonment Board authorised the Municipality to collect the octroi
which had become so leviable and thereafter .Jg divide the proceeds as
agreed upon. The Municipality of PooruMi;ving become a Corporation
under the Municipal Corporation 1950, it ,continued to collect octroi on
the strength of the aforesaid Notification and agreement. The respondents
challenged the legality of the collection of the octroi made as per 1963
F Schedule to the Octroi Rules framed by the appellant. This was done by
approaching the Bombay High Court by filing petitions under Article 226
of the Constitution which have come to be allowed by the impugned
judgment. Hence these appeals by the Municipal Corporation for the City
of Pwie, hereinafter referred as the Municipal Corporation.
G
2. The challenge to the collection was broadly on two counts :-
'{1) The 1881 Notification does not in fact permit the collection; and
,
(2) even if factually the Notification were to so permit,, the appellant
H could not have done so in law.
MUN. CORPN. FOR CITY OF PUNEv. BHARAT FORGE CO. LTD. [HANSARIA, J.J
721
3. The High Court accepted both the contentions, the correctness of A
which has been assailed in these appeals.
Factual matrix
4. Poona Cantonment (the Cantonment) came into existence in 1817. B
The Bombay Municipal Act, 1872, provided for levy of taxes including
octroi. Similar was the provision in Bombay District Municipal Act, 1873.
Poona City Municipality started levy and recovery of octroi form 1875-76.
The Cantonments Act, 1880 was enacted on 5th February, 1980. Section 21
of this Act permitted imposition by the Local Government, with the
previous sanction of the Governor-General in Council, by notification in C
the Official Gazette, any tax which could be imposed in a Municipality.
Section 22 of this Act permitted the Local Government by no.tification in
Official Gazette to apply and adapt to any cantonment provisions and rules
in force under any enactment for assessment and recovery of any tax in
Municipality.
D
5. The Government of Bombay by its Resolution No. 234 adopted on
26.1.1881 approved the levy of octroi in the Cantonment on the same
articles and at the same rate as in Poona City; and it approved the proposal
to divide the proceeds on some terms, the details of which are not required
to be noted. The Government of India conveyed its sanction to the kvy of E
octroi in the Cantonment by its telegram dated 4.3.1881. Thereafter came
the aforesaid Notification of 12th March, 1881 and the Municipality started
collection of octroi duties for the Cantonment from that year itself.
6. The aforesaid arrangement smoothly continued till 1912 by which p
year the Cantonments Act of 1910 had come into force. The Cantonment
then wanted a new method of apportionment as it thought that the existing
agreement relating to apportionment was unjust to it. The State Government did not, however, agree and the disagreement was conveyed to the
Cantonment. The Municipality proposed to revise its Schedule of Octroi
Rules in 1917 by enhancing the same, which was opposed by the Canton- G
ment Committee. On the matter being examined by the Government, it
approved the revised Octroi Schedule as mentioned in its Order No. 6649
dated 25th September 1918. This Order required the General Officer
Commanding of the Cantonment to be informed that the Government saw
no reason to modify its earlier decision.
H
722
SUPREME COURT REPORTS
[1995) 2 S.C.R.
/
A
7. In the meantime, the Government had issued four Notifications
bearing Nos. 4160 to 4163 dated 17th June, 1918 which were gazetted on
June 20, 1918. Notification No. 4160 had been issued in exercise of powers
conferred by section 15(1) of the Cantonments Act, 1910 and it imposed
taxes mentioned in this Notification in the Cantonment of Poona "in
supersession of the notifications of the Government noted on the margin
B and all other notifications on the same subject". Notification No. 4162 had
also been issued in exercise of the same power and it dealt inter alia with
octroi duties. Notification No. 4163 was, however, in exercise of powers
conferred by section 15(2) of the aforesaid Act and applied to the Cantonment of Poona in an adapted form the rules of the Poona City Municipality
"
C mentioned in Notification relating to assessment, collection and recovery
of octroi duties.
8. After the aforesaid Notifications had been issued, the Cantonments Act, 1924 was enacted. Chapter V of this Act is on the subject of
D 'Taxation'; and sections 60 to 63 of this Chapter set out the power and
procedure of imposition. of any tax in any cantonment. (A part of this Act
was repealed in 1927).
9. In 1963 new Octroi Rules were framed by the appellant which ,
enhanced the rates of octroi and included new articles in the schedule and
E it started collecting octroi accordingly from all concerned.
Submissions
10. In the backdrop of aforesaid broad facts, the respondents challenged the collection of octroi by appellant as per revised Rules of 1963
F contending that neither in fact nor in law the appellant had 'authority of
law' required by Article 265 of the Constitution to carry on the work of
collection of octroi from them as per 1963 schedule which enhanced the
rates of octroi and included new articles in the schedule.
G
11. The factual aspects of the submission were:-
(1) The 1881 Notification having stated that octroi duties at the rates
"for the time being" leviable in respect of the article "for the time being"
dutiable, are imposed, the rates which were prevailing on 12th March, 1861
and the articles on which octroi was leviable on that date alone could be
H collected by the appellant; and not at the rates mentioned in the Schedule
(
MUN. CORPN. FOR CITY OF PUNEv. BHARAT FORGE CO. LTD. [HANSARIA, J.)
723
,
of 1963 Octroi Rules, nor on articles added by those Rules.
A
(2) The 1881 Notification, in any case, stood superseded by the
fasciculus of Notifications dated June 18, 1918 which had heen duty
gazetted.
(3) If the later Notifications did not supersede the 1881 Notification,
B
the same, in any case, impliedly repealed the former.
12. The legal afirmity of the collection was assailed on these counts:-
(1) The appellant not having entered into an agreement with the
Cantonment as required by section 45(1)(b) of the Cantonments Act, 1924, C
so also by section 32( 4) of the Bombay l>rovincial Municipal Corporations
Act, 1949, after new Octroi Rules were framed in 1963, it had no authority
to collect octroi on behalf of the Cantonment.
{2) If the Notification of 1881 were to be held to permit levy and D
collection of octroi not only on the rates and articles as prevailing on 12th
March, 1881 but on articles other than those and/or at rates higher than
those, the notification is unsustainable being a product of impermissible
delegation.
{3) The procedure contemplated by section 62 of the Cantonments E
Act, 1924 having not been followed while enhancing the rates of octroi
duties by 1963 Rules, collection of the same at the enhanced rate would be
against 'authority of law'.
13. We propose to deal with these submissions seriatim.
F
Reach of the 1881 Notification
14. The basic point which would need our consideration to answer
this question is to find out what was meant by the expression "for the time
being" used twice in the aforesaid Notification. According to S/Shri Shanti
Bhushan and Anil Divan, learned Senior Advocates appearing for the G
respondents, this expression refers to the rates of octroi which were
prevailing at the time when the Notification was issued; and octroi on the
articles or at the rates which became effective after the Notification saw
the light of day cannot be imposed or collected with the aid of this
notification.
H
724
SUPREME COURT REPORTS
(1995) 2 S.C.R.
A
15. In support of this submission, reliance has been placed on a
judgment of this Court, to which one of us (Kuldip Singh, J.) was a party,
in Jivendra Nath Kaul v. Collector/Distlict Magistrate and another, (1992) 3
SCC 576. In that case, this Court was concerned to find out the purport of
this expression used in section 28(1) of the concerned provision, which
B dealt with the question as to when a motion of no-confidence can be said
to be carried out. The section required support of more than half of the
total number of members "for the time being". The contention advanced
was that as the Zila Parishad was constituted of 62 members, but as 31
valid votes had been cast in favour of the no-confidence motion, which
number was not more than half of 62, the In:otion could not be said to have
C been carried out as required by the statutory provision. This Court stated
'that the expression "for the time being" meant "at the moment or existing
position"; and as at the time no-confidence motion was taken up, the total
number of members of the Zila Parishad was 56, it was held that the
requirement of law was satisfied.
D
16. Learned Advocate General of Maharashtra appearing for the
appellant, however, contends that the aforesaid expression has no fixed
. connotation and is capable of different interpretation according to the
context. This is what been stated at page 267 of Volume 2 of "Words and
Phrases" (Second Edition). According to the statement made there, this
E expression in one context may point to "one single period of time"; and in
another context to "succession of periods".
17. That the aforesaid expression means, as is the contention on
behalf of the appellant, receives support from what was pointed out by a
Constitution Bench in the case of Madhav Rao Scindia Bahadur v. Union
F of India, (1971) 1 SCC 85. In that case, to which our attention has been
invited by the learned Advocate General, while dealing with the meaning
of the word "Ruler" as defmed by Article 366 (22) of the Constitution,
which had stated at that time that it included any person "for the time
being" recognized by the President as the successor of the Ruler with whom
G any agreement had been entered into and who had been so recognised by
the President, it was observed in paragraph 112 that the expression "for the
time being" predicates that there shall be a Ruler of Indian State and that
if the first recognised Ruler dies, or ceases to be a Ruler, a successor shall
be appointed, and that there shall not be more Ruler than one at a given
time. This observation indicates that the recognition given by the President
H is not one time recognition, but the same could be from time to time.
f
\.---
' \ \
'
MUN. CORPN. FOR CITY OF PUNEv. BHARAT FORGE CO. LTD. [HANSARIA J.J
725
18. That the intention of the concerned authorities while issuing the A
'"""'
Notification at hand was not confined to the rates prevailing or articles
subjected to octroi on the date of Notification is apparent, according to
the learned Advocate-General, from what has been recorded contemporaneously in the Government file, a zerox copy of relevant notings of
which has been made available to us by him. At page 13 of this collection B
we find mention of the fact that rates of octroi duties to be imposed and
the articles on which octroi is to be imposed in the Cantonment were to
l.,.,,
be so as enforced in the Municipality "from time to time". There is also
enough material on record to show that octroi at rates prevailing subsequent to the date of aforesaid notification had come to be collected by
the Municipality on behalf of the Cantonment for a sufficient long period c
"' -
after the issuance of 1881 Notification. Thus, all :oncerned persons had
accepted the aforesaid Notification to mean that the rates (so also the
articles) need not be those which prevailed when the Notification was
issued.
19. In view of .all the above, we hold that the 1881 Notific-dUOn was I)
•
meant to impose octroi duties, not only at the rates prevailing when the
..-._
Notification was issued, nor was confined to the articles on which octroi
was then leviable, but these could be collected at rates higher than those
prevailing at the time of issuance of the Notification, or could be levied on
articles then not subject to octroi.
E
Supersession of 1881 Notification
20. The submission relating to supersession is advanced on the
i
strength of what was stated in Notifications Nos. 4160-4163 dated 17th
--J
June, 1918. Shri Divan was very emphatic that if these four notifications F
are read as a whole, as they are required to be, there would be no manner
of doubt that the 1881 Notification relating to octroi stood superseded. This
_,,.
contention is equally emphatically challenged by the learned Advocate
1
General.
21. We have closely perused the aforesaid Notifications and we do G
>-I
agree with Shri Divan that they form a complete scheme in themselves
relating to tax in the Cantonment of Poona; and what has been stated in
these Notifications would prevail insofar as taxes to be imposed in the
Cantonment is concerned, in preference of earlier Notifications on the
subject. Question, however, is whether it can be said on the language of H
SUPREME COURT REPORTS
[1995) 2 S.C.R.
A the 1918 Notifications, that the 1881 Notification relating to octroi stood
superseded. It deserves mention that Notification No. 4160 alone, of the
four Notifications, expressly stated about supersession of the Notifications
mentioned in the margin of this !')lotification .. Shri Divan draws our attention that of the four Notifications mentioned in the margin, one is GovernB ment Notification No. 481 dated 18th September, 1891, which had
superseded Government Notification No. 574 of 5th December, 1883,
which in its turn had superseded Notification No. 165 of 12th March, 1881.
Relying on this historical setting, it is urged that Notification No. 4160 must
be held to have superseded the Notification of 12th March, 1881 relating
to octroi also .
. c
22. The learned Advocate General joins issue and submits that
Notification No. 4160 having not dealt with the subject of octroi, what can
reasonably be said to have been superseded by this Notification qua the
Notification of 12th March, 1881 had dealt not only with the octroi duties
D. hntProperty Rates also, is that the supersession of which Notification No.
4160 mentioned, is-of·those taxes which.were-the subject or'that Notification. It is contended that this Notification stated about supersession of
notifications "on the same subject", which, accor~_to learned Advocate
General, means the subject dealt with by that Notification.
·
E
23. We do find sufficient force in this submission and, according to
us, it would not be a correct reading of Notification No. 4160 to hold that
it superseded Notification of 12th March, 1881 in its entirety. In our view,
the supersession has to be confined to truces mentioned in Notification No.
4160. Octroi being not one of these truces, we hold that that Notification
did not supersede 1881 Notification qua octroi. This conclusion of ours
F receives support .from what has been stated in Notification No. 4162 which
has specifically dealt with imposition of octroi duties and trade registration
fees.
Implied repeal of 1881 Notification relating to octroi
G
24. The alternative sub~sion of Shri Divan in this context is that,
in any case, Notification No. 4162 has to be read to have impliedly repealed
1881 Notification relating to octroi duties. We find no difficulty in accepting this submission, because Notification No. 4162 which is on the subject
of imposition of octroi duties has been supplemented by Notification No.
H 4163 dealing with the assessment, collection and recovery of octroi duties.
MU~.CORPN. FORCITYOFPUNEv. BHARAT FORGE CO. LTD. (HANSARIA,J.)
727
This aspect has been dealt with by section 15(2) of the Cantonments Act, A
'"""""(
1910; the imposition being covered by sub-section (1) of this section. As
these Notifications were issued with the previous sanction of the Governor-General in Council, we have no hesitation in stating that by issuing
Notifications No. 4162 and 4163, the issuing authority did impliedly repeal
Notification of 1881 dealing with octroi.
B
25. The learned Advocate General does not really contest this legal
'
"1
position. What, however, has been urged by him is that the Notification No.
(
of 1918 dealing with the imposition of octroi and rates thereof had not been
acted upon and a decision had in fact been taken to formally cancel these
Notifications, which, however, did not actually happen. Despite non-can- c
...,.,,
cellation of these Notifications as required by section 21 of the General
Clauses Act, as per which provision any addition, amendment, variation or
rescission of any notification has to be "in the like manner" and "subject to
the like sanction" as the issuance of notification, the contention is that if
we were to bear in mind the practical construction given to these Notifica- D
lions, it would be apparent that they were not sought to be acted upon.
""
Another related submission is that these Notifications should be deemed
__..,
to have stood effected because of disuse for almost 50 years by 1963, as
permitted by the legal process known as "desuetude".
E
26. Shri Divan and Shri Shanti Bhushan would not agree with the
learned Advocate General, because, according to them a statutory notification could not be set at naught by any executive decision, which is the basis
of the first sQbmission of the. learned Advocate General relatable to
practical construction. The learned counsel for respondents submit that the F
Local Government knew that even an, amendment of these Notifications
could be made only by publication in official gazette, because of which the
little omission which had occurred iri the Notification No. 4163 has been
supplied by a corrigendum published in official gazette. Our attention is
inv:l.ted to what was stated on this subject in Mahender Lal Jaine v. State of G
Uttar Pradesh, [1963] Supp. 1 SCR 912 at page 951. In the written submisj
sions of the respondents filed on 31st January, it has been mentioned, and
.J
rightly, that administrative practice (and for that matter, administrative
order) cannot supersede or override statutory rule or Notification. Some
decisions have also been mentioned in this regard to which we are not
adverting, because this legal proposition is well settled.
H
SUPREME COURT REPORTS
[1995) 2 S.C.R.
A
27. As we are agreeing with the learned counsel for the respondents
on the legal aspect, we do not propose to burden the judgment with the
long factual facts, highlighted by the learned Advocate General by referring
to Government Order No. 6649 dated 25th September, 1918 (at page 472
to 482 of Part-II of the Paper Book) that the Notifications of June 1918
B relating to octroi duties were not acted upon. We would not be justified in
allowing the Local Government, or even the Governor-in-Council, to undo
a notification issued with the previous sanction of Governor-General in
Council. According to us, the only legal way in which Notifications No.
4162 and 4163 could have been rescinded was by issuance of another
Notification in the like manner and subject to like sanction prevailing as
C when those were issued. It would also be hazardous to allow an executive
authority to obliterate a statutory Notification. We would take this view,
more so, being concerned with a subject which fell, not within the domain
of the Provincial Government, but the Central Government, as did the
subject of cantonment.
D
28. What has been stated relating to "executive const~uction" or
"practical construction" in Crawford's 'Interpretation of .Laws; at pages 393
· to 401, which has been relied on by the learned Advocate General, would
not persuade us to agree with him in this submission, though it may be
permissible to take note of post-enactment history to find out as to how an
E enactment was understood on the principle of 'contemporanea expositio",
of which mention have been made at pages 551 et. seq. of Francis
Bennions' "Statutory Interpretation" {1984). The learned Advocate General
is not relying on the statements made in the aforesaid Government Order
for the purpose of interpreting the two Notifications, but for contending
F that the Notifications had stood effaced because of what had been stated
therein.
29. On the principle of 'contemporanea expositio' also, which is
available to find out how a statutory provision has been understood by
those whose duty it is to construe, execute and apply, as mentioned at pages
G 659-60 of Polestar Electronics (P) Ltd. v. Addi. Commissioner, Sales Tax,
(1978) 1 SCC 636 and at page 383 of Deshbandhu Gupta v. Delhi Stock
Exchange, [1979) 3 SCR 373 (to which our attention has been invited by
the Advocate General through his written Arguments filed on 23.1.95), we
have two observations to make. First, this principle is not decisive or
H controlling of the question of construction; it has only persuasive value. If
\.
MUN. CORPN. FOR CITY OF PUNE.-. BHARAT FORGE CO. LTD. [HANSARIA. J.)
729
''"""(
occasion arises, such interpretation may be even disregarded and in a dear A
case of error court would without hesitation refuse to follow such construetion. (See observations of Mukherji J. in Balaeswar v. Bltagiratlti, ILR 35
Cal.701 noted in Deshbandhu's case). Secondly, as already stated, reliance
is being placed on the notings in the file, not to interpret t,he Notifications
in question, but to declare then as dead. This is not permissible. Not only B
this, Shri Divan has objection to the reliance on the notings made in the
/
file even for the purpose of interpretation of the Notifications, in support
~ r
of which submission he has referred to what was stated in para 39 of
Doypack Const1Uction Pvt. Ltd. v. Union of India, [1988) 2 SCC 299. As to
the reliance on the decision in Polestar Electronics' case, it has been c
~ . mentioned in the written submissions filed on behalf of the respondents
that in that case itself it was stated at page 660 that the view of the
Department as to the meaning of a statute administered by it is not
admissible as an aid to construction because "wrong practice does not make
the law". It has been further argued that the present was, in any case, not
a case of a statutory provision being interpreted by the Department, in D
....
which case it may be that the interpretation put upon it has some sanction.
.....
if there be long acquiescence by the legislature, as mentioned in Maxwells'
'Interpretation of the Statutes', noted in the aforesaid decision at page 660.
Quasi-repeal of 1918 Notifications due to desuetude.
E
30. Learned Advocate-General's another submission relating to implied repeal is that the 1918 Notifications having not been acted upon must
be taken to have become a dead letter because of its long disuse and the
--........
same stood repealed because of the legal process known as desuetude. He F
draws our attention to what has been stated in this regard in Francis
Bennion's 'Statutory Interpretation' where this. matter has been dealt at
·pages 441 and 442 of 1984 Edition. It is stated there that desuetude is a
legal process by which, through disobedience and lack of e':lfo~cement over
a long period, a statute may loose its force without express or implied G
I
repeal. This doctrine has not, however, been accepted in United Kingdom
. ./
for the reason that otherwise an inquiry would be needed before the subject
could know whether or not an enactment would bind him. Under Scots
Law, however, this doctrine has been applied. As to the English Law the
further commentary is that though this doctrine has no application, an Act
may in practice be 'dead letter', which would be so if the Act falls into H
730
SUPREME COURT REPORTS
(1995) 2 S.C.R.
A disuse or is not applied as intended. In this connection Bacon's dictum:
' .... let penal laws, if they had been sleepers for long ..... be .... confined in the
execution' is quoted. Reference has also been made to what happened to
the Limitation Act, 1623, apart form mentioning about the refusal to act
according to Sex Disqualification (Removal) Act, 1919, despite which
B enactment a peeress was denied the right to sit in the House of Lords, vide
Committee of Privileges, Viscountess Rhonddas' Claim 1922-2-AC 339.
(HL). The judicial emasculation of the first Act had caused Lord Sumner
to lament the difficulty of extracting' ....... anything that deserves to be called
a principle from the decisions of three centuries, which have been directed
to what is afterall the task of decorously disregarding an Act of Parliament'.
31. In Craies's Law' 'Statute Law' (7th Edition) it has been stated
at page 7 that desuetude is a process by which an Act 'of Parliament may
lose its force without express repeal. It does not, however, consist merely
of obsolescence or disuse: there must also be a contrary practice, which
must be of some duration and general application. Lord Mackay's view in
D Brown v. Magistrate of Edinburgh, [1931) SLT (Scots Law Ti:nes Reports)
456 ( 458) has also been noted, which is as below
"I hold it clear in law that desuetude requires for its operation
a very considerable period, not merely of neglect, but of contrary
E
usage of such a character as practically to inf er such completely
established habit of the community as to set up a counter law or
establish a quasi-repeal".
A perusal of this judgment shows that Lord Mackay ventured to prefer the
F Scottish system to that of England regarding which Lord Eldon, as a
member of House of Lords, had stated thus in Johnstone v. Scott, (1802] 4
Pat 274 at p.285:-
G
"The English lawyer feels himself much at a loss here; he cannot
conceive at what period of time a statute can be held as commencing to grow in desuetude, nor when it can be held to be totally
worn out. All he can do is to submit to what great authorities have
declared the Law of Scotland to be."
Lord Mackay thereafter enunciated the afore-quoted test of desuetude for
H it to permit quasi-repeal.
y -.
'\
\
{
-
I
J
MUN.CORPN. FORCITYOFPUNfa. BHARAT FORGE CO. LTD. [HANSARIAJ.j
731
32. It would be useful to note what has been stated in this regard in A
the chapter headed 'Repeal and Desuetude of Statutes' by Aubrey L.
Diamond, printed in Current Legal Problems (1975), Volume 28 at page
107 to 124. Diamond has quoted on this subject what Lord Denning M.R.
observed in Buckoke v. Greater Lo11do11 Council, (1971J Ch.655 at page 668,
which reads:-
"It is a fundamental principle of our constitution, enshrined in
B
the Bill of Rights, that no one, not even the Crown itself, has 'the
power of dispensing with laws or the execution of law'. But this is
subject to some qualification. When a law has become a dead
letter, the police need not prosecute, nor need the Magistrates C
.punish. They can give an absolute discharge."
33. Diamond has thereafter referred to the Scottish approach to
desuetude at pages 122 and 123 and has noted some decisions wherein an
Act of Scottish Parliament was not enforced because of desuetude. It
would be of interest to note that when an argument was advanced that the D
particular Act (which was of 1606) had been left unrepeated by the Statute
Law (Repeals) Act, 1906, and must, therefore, be regarded as. still in force,
the reply given by one of the law Lords was that "it was for the Court and
not for the Statute Law Revision (sic Repeal) Act to determine whether
Act of 1606 was or was not in desuetude."
E
34. Though in India the doctrine of desuetude does not appear to
have been used so far to hold that any statute has stood repealed because
of this process, we find no objection in principle to apply this doctrine to
our statutes as well. This is for the reason that a citizen should know
whether, despite a statute having been in disuse for long duration and F
instead a contrary practice being in use, he is still required to act as per
the 'dead letter'. We would think it would advance the cause of justice to
accept the application of doctrine of desuetude in our country also. Our
soil is ready to accept this principle: indeed, there is need for its implantation, because persons residing infree India, who have assured fundamenG
tal rights including what has been stated in Article 21, must be protected
from their being, say, prosecuted and punished for violation of a law which
has become 'dead letter'. A ne"". path is, therefore, required to be laid and
trodden.
35. In written submissions filed on behalf of respondents, it has been H
732
SUPREME COURT REPORTS
[1995) 2 S.C.R.
. A stated that the theory of desuetude can have no application to the facts of
the present case, since the challenge by the respondents is to be levy and
calculation under the 1963 schedule, and not to the rates enforceJ since
1918. This submission has been characterised as "most important". As to
this we would observe that if Notification of 1818 were to prevail despite
B 1918 l:'lotifications, the fact that some changes were made in the schedule
in 1963 has no legal bearing on the question under examination. The theory
of desuetude has been pressed into service by the appellant only to take
care of relevant 1918 Notifications. If those Notifications can be said to
stand eclipsed, the fact that changes were made in the rates etc. in 1?63
cannot stand in the way of application of the theory of desuetude.
c
36. Coming to 1918 Notifications, we find materials on record to
show that it has not been implemented till date; and in fact what has been
done was contrary, and.that too for long period. So, we hold that Notification Nos. 4162 and 4163 dated 17th June, 1918 had stood repealed 'quasily'
by the time new Octroi Rules came to framed in 1963, which were applied
D to realise octroi from the respondents. The statement made in the written
submissions filed on behalf of the respondents that this Court had treated
Notification No .. 4160 as operative in the case of Western Indiu. Theatres v.
Cantonment Board, Pune, [1959) Suppl.