Civil Appeal Nos
1600 1568 and 1416 of 1970
From the judgment and order dated the 13th14th February 1969 of the Bombay High Court in Special Civil Application Nos 295 of 1962 1397166 and 1086 of 1966 respectively
RB Datar Lalit Bhardwaj and Miss Madhu Moolchandani for the appellant in CA No 160070
Dr LM Singhvi RH Dhebar SK Dholakia RC Bhatia Mrs Ranjana Anand and LK Pandey for the appellants in CA No 156870
VS Desai and Dr YS Chitaley Mrs J Wad for the respondent in CA No 1600 and 1568
Mrs J Wad for respondent in CA No 1416 of 1970
The Judgment of the Court was delivered by MISRA J
The present appeals by certificate are directed against a common judgment of the Bombay High Court dated 13th of February 1969
By the impugned order the High Court dismissed the petitions filed by the appellants under Article 226 of the Constitution challenging the demand of octroi duty by the Municipal Corporation of Poona
The Bombay Provincial Municipal Corporation Act 1949 for short the Act  came into operation in the City of Poona on 15th of February 1950
Section 127 2 thereof authorises the Corporation to impose octroi and other taxes
Section 149 prescribes the procedure to be followed in levying taxes
Insofar as it is material it reads 732 149 1 In event of the Corporation deciding to levy any of the taxes specified in sub section 2 of section 127 it shall make detailed provision in so far as such provision is not made by this Act in the from of rules amplifying or adding to the rules at the time in force 2 The rules shall be submitted by the Corporation Government and the provincial Government may either refuse to sanction them or refer them back to the Corporation for further consideration or sanction them either as they stand or with such modification as it thinks fit not however involving an increase in the rate or rates of the levy or the extent thereof
 It appears that sometime in the year 1957 the Corporation in order to boost industrial development and to encourage the industrialists to establish industries in the city had decided to give certain concession in the nature of exemption from octroi duty on certain products under certain conditions
Pursuant to this objective the Corporation made rule 62 B in Chapter VIII to the Schedule of the Raid Act in 1957
It reads 62 B Industrial Estate or Area means the area which Corporation may from time to time demarcate for the purposes of the rule as the area in which industries can be suitably located in the interest of industrialisation of the city of Poona
In respect of any raw materials or machinery imported by any industrial manufacturing concern established or to be established in the industrial estate solely for the purpose of manufacturing finished articles in the said industrial estate the Commissioner shall not for a period of twelve years only from the date on which this rule comes into force levy octroi  Under this rule no levy of octroi was to be made for a period of twelve years from the date on which the rule came into force
Later on the Corporation framed extensive new octroi Rules under their resolution dated 7th of August 1962 which received the sanction of the Government of Maharashtra on 28th of January 733 1963
As the entire argument on behalf of the appellants is based on rule 5 8 of the said rules it will be appropriate to quote the rule 58
In respect of any raw materials or machinery belonging to and imported by the industrial manufacturing processing or assembling concern established or to be established in the industrial estate or area for the purpose of manufacturing processing or assembling finished articles in the said industrial estate or area the Commissioner shall not levy octroi for a period of 10 years from the date of demarcation of such areas as an industrial estate or area
Provided that this exemption not be given in respect of any raw materials imported for the purpose of refilling packing or repacking only
Provided that no exemption from octroi shall be given or claimable unless the importer produces at the time of 1 import but not afterwards a certificate in the form prescribed in Schedule P signed by the proprietor or the manager of the said industrial concern certifying that the raw materials or machinery that are being imported are the property of the ownership of the said industrial concern and that the said materials or machinery are to be used or are intended to be used by the said industrial concern for the purpose of manufacturing processing or assembling finished articles in the said industrial estate or area
For the purpose of this exemption Industrial Estate  or Area shall mean the area which the Corporation may from time to time demarcate for the purposes of this rule as the area in which industries can be suitably located in the interest of industrialisation of the City of Poona
 The Corporation had been levying octroi on the materials received by the appellants
They however sought to get exemption under rule 5 8 from octroi
As the pattern of facts in each of the appeals is similar we shall deal with the application made by the appellant in appeal No 1568 of 1970
The appellant in this case applied on 17th of November 1964 for exemption from payment of octroi duty under rule 5 8 of the octroi Rules
The 734 Superintendent of octroi Poona Municipal Corporation wrote back on 5th of December 1964 as follows  exemption from payment of octroi duty can only be granted if the area within which the concern is situated is declared as industrial area and is demarcated for the purpose under the Resolution of the Corporation
As the area in question has not been demarcated as an industrial area under the resolution of the Municipal Corporation the question of granting exemption from the payment of octroi duty does not arise
It is therefore regretted that the exemption asked for cannot be granted
 Similar was the position of the appellants in the other two appeals
In the circumstances the appellants filed petitions under Article 226 of the Constitution for a mandamus requiring the Municipal Corporation to define and demarcate the area where their factories were situate as industrial area within the meaning of sub rule 8 of rule S and to exempt them from payment of octroi
It appears that during the pendency of the writ petitions rule 5 8 of the octroi Rules was repealed by a notification with effect from 1st of September 1968
The appellants therefore applied for amendment of the petitions
By these amendments the appellants sought to take up two more pleas I that the repeal of sub rule 8 of rule 5 was illegal andor ultra vires and therefore rule 5 8 still continues to be effective and 2 that in any event the appellants can get the benefit of rule 62 B which has not been repealed
The High Court repelled both the contentions and held that old rule 62 B and the new rule 5 8 were repealed and there was no legal flaw
It however
took the view that despite the repeal of rule S 8 the appellants could still get the relief under rule S 8 if other conditions were satisfied because of the proviso attached to the repealing rule
On merits however the High Court did not accept the case of the appellants
In its opinion the area in ques was not demarcated as industrial estate or area for the purpose of rule 5 8
The High Court further held that in view of rule 5 8 of the octroi Rules it was solely in the discretion of the Corporation to demarcate an area as industrial estate
The appellants have 735 now come to challenge the order of the High Court by these A appeals
Dr Singhvi appearing for the appellant in one of the appeals Civil Appeal No 1568 of 1970 has contended that if certain area has been demarcated as an industrial area under the Bombay Town Planning Act 1954 the same shall be taken to be an industrial area within the meaning of rule S 8 of the octroi Rules
The argument proceeded in the first instance on the assumption that the disputed area had already been included in the development plan under Bombay Town Planning Act 1954 before the promulgation of rule S 8 and had thus automatically become an industrial estate or area for the purposes of that rule
But the development plan was prepared by the Corporation on 20th of November 1958 which was sanctioned by the Government on 7th of July 1966 and it came into fore on 15th of August 1966
Therefore no area had been declared as industrial area under the development plan before 1957 and in fact it was only after the enforcement of the development plan on 15th of August 1967 that the disputed area became an industrial area under the Bombay Town Planning Act
Dr Singhvi s assumption clearly lacks any factual basis
Now the question is whether demarcation of a particular area as an industrial estate or area in pursuance of the Bombay Town Planning Act could be taken to be a demarcation within the meaning of rule 5 8
On a bare perusal of rule 5 8 it will be apparent that for the purpose of the exemption from octroi an industrial estate or area means the area which the Corporation may from time to time demarcate for the purpose of this rule as the area in which industries can be suitably located for the interest of industrialisation of the City of Poona
Obviously therefore the demarcation made under the Town Planning Act will not be a demarcation for the purpose of rule S 8 and unless there is a demarcation as contemplated by rule S 8 the appellants cannot claim exemption from octroi
The view taken by the High Court is fully warranted by rule S 8 of the octroi Rules
It is next contended for the appellant that the Corporation has refused to grant exemption to the appellant on the arbitrary ground that the concern of the appellant was not a new one
The learned counsel seeks to support his argument by the following expression used in sub rule 8 of rule 5 736  concern established or to be established in the industrial estate or area
 The expression obviously includes not only a concern to be established but also one already established
But even then the appellant cannot get exemption unless he proves that there has been demarcation within the meaning of sub rule 8 of rule 5 of the octroi Rules
While demarcating an area for the purpose of rule 58 the Corporation may have to take into consideration various factors and circumstances different from those which might weigh with it for making out an area as industrial under the Town Planning Act
The purpose of that Act is to plan the town and thus to keep industrial areas away from the residential or commercial areas and no industries could be set up in an area other than the industrial area declared in pursuance of that Act while the purpose of demarcation as industrial estate or area under rule 58 is the giving of incentive and impetus to industries in a particular area In so doing the Corporation has got to see whether a particular area is or is not suitably located in the interest of industrialisation irrespective of any consideration as to how the town is to be planned
It was next contended that there has been violation of Article 14 of the Constitution in as much as some industries in similar situation have been granted exemption while the appellants have been deprived of the benefit of rule 58
There is no foundation for this ground
It has not been alleged much less proved that any other unit has been granted exemption even without a demarcation by the Corporation under rule 58
There is absolutely no force in this contention
For the respondent it was contended that rule 58 of the octroi Rules having been deleted the appellant cannot seek exemption under rule S8
Dr Singhvi for the appellant in reply has contended that for one thing the appellant can fall back on the old rule 62 B as the same has not been repealed
The preamble to the new octroi Rules reads Whereas it is found necessary to rescind Rules 26 28 29 33 62 and Rules 35 and 49 in so far as they relate to octroi contained in Chapter VIII of the Schedule of the Bombay Provincial Municipal Corporations Act 1949 and all other existing rules and bye laws relating to octroi enacted under the Bombay District Municipal Act 1901 737 and the Bombay Municipal Boroughs Act 1925 and A whereas it is found necessary to make new rules relating to octroi under sub section I of section 149 of the Bombay Provincial Municipal Corporations Act 1949 the Municipal Corporation of the City of Poona under its Resolution No 78 dated 78 1962 in pursuance of the power vesting in it under clause 7 and clause 17 of section 457 read with section 454 of the said Act is pleased to rescind the rules and bye laws aforementioned and to make the new rules as follows
 It is true that seven rules covering the subject of octroi and contained in chapter VIII of the Schedule to the Bombay Provincial Municipal Corporation Act 1949 have been specifically mentioned in the preamble as being rescinded and rule 62B is conspicuous by its absence therefrom which fact apparently supports Dr Singhvi s contention
A closer analysis of the preamble under which new rules were framed however makes it clear that rule 62B relating to octroi was repealed by implication
It is noteworthy that chapter VIII above mentioned does not contain any rule relating to octroi except rule 62B which did not find a place in the preamble
All rules relating to octroi and enacted under the 1901 and the 1925 Acts were also repealed without exception
Another pointer which is perhaps the most important in this connection is available in the fact that octroi was made the subject matter of a new and comprehensive set of rules which not only deal with the matters covered by the rules contained in chapter VIII and specifically mentioned in the preamble but also the one covered by rule 62B namely the matter of exemption of goods from octroi in areas considered suitable for industralisation
It does not stand to reason that the rule making authority framed new rules of which rule 58 covers the entire field of the earlier rule 62B and yet left the latter intact
It could possibly not have been the intention of that authority to have two rules on the same subject and thus create confusion
The promulgation of rule 58 as a part of an exhaustive set of new rules in our opinion has the effect of a repeal of rule 62B by necessary implication although not in express terms
Dr Singhvi however as a second string to the bow banks upon the proviso to the resolution of the Corporation seeking to repeal rule 58 which is in these words 738 Octroi Rule 58 is hereby repealed
Provided that notwithstanding such repeal the exemption already granted shall continue until the expiry of the respective periods of their grants
 The resolution so passed was sent to the Government and as held in Municipal Corporation for the City of Poona etc
vs Bijlee Product India Ltd etc
1 the Government accepted it in full and sanctioned the repeal of rule S8 as also the proposed proviso
But then the appellants would not be entitled to any benefit by reason of the proviso because they were never granted any exemption under rule 58
The other contention raised by Dr Singhvi is that the Corporation while denying the benefit of exemption from octroi has taken into consideration extraneous or irrelevant considerations
In support of his contention he referred to paragraph 7 of the counter affidavit filed by the Corporation in the writ petition which is as follows 7
The respondents grant exemptions to concerns on certain policies
The purpose of extending exemption from octroi duty is to attract new industries in the Corporation limits
This policy is also carried out with a view to develop the city and also to secure employment to citizens and thus to have progress in the economic conditions commerce and trade for the welfare of the people in general
Moreover the aim of giving exemptions to new industries is to secure permanent sources of income for the respondents after a certain period ie ten years
This is the main object in granting exemption in the cases of new industries to be started that help the development of the City and secure permanent sources of income for the respondents after a definite period
Side by side there are certain other objects also which are kept in view while determining the question of granting exemptions
These are whether Defence needs are satisfied whether in the interest of public health and sanitation the grant of exemptions is beneficial whether foreign exchange is saved whether the problem of housing accommodation is solved to some extent and the like
The respondents will suffer 739 huge loss in revenue if exemptions are granted to each and every industry falling within the industrial areas under the Town Planning Scheme
All these considerations are within the full discretion of the respondents while determining the question of grant of exemptions   In our opinion the considerations which have weighed with the Corporation cannot be said to be either irrelevant or extraneous
These considerations are within the ambit of rule 58 of the octroi Rules
A lot of argument was advanced on behalf of the appellant by Dr Singhvi on the nature of relief to be granted to the appellant
His contention was that a writ of certiorari may not be of much avail unless the Court grants a writ of mandamus directing the Corporation to demarcate the area in question under rule S8 of the octroi Rules and grant him the exemption from octroi duty
A number of authorities were cited that the Court can issue a writ of mandamus in suitable cases even in respect of administrative orders
We do not think it is necessary to decide this point as in our opinion the appellants have not been able to make out a case for any relief
In Civil Appeal No 1600 of 1970 Shri RB Datar adopted the arguments advanced by Dr Singhvi
In the third appeal No 1416 of 1970 also the same questions of fact and law are h involved and therefore this judgment will govern the other two appeals
For the reasons given above these appeals must fail
They are accordingly dismissed
The parties however shall bear their own costs
NKA Appeals dismissed


Summary:
The Bombay Provincial Municipal Corporations Act 1949 came into operation in the city of Poona on 15th of February 1950
Section 1272 thereof authorised the Corporation to impose octroi and other taxes while section 149 prescribed the procedure to be allowed in levying taxes
In the year 1957 the Corporation in order to boost industrial development and to encourage the industrialists to establish industries in the city decided to give certain concession in the nature of exemption from octroi duty
Pursuant to this objective the Corporation made rule 62 B in Chapter VIII to the Schedule of the said Act in 1957 which envisaged the creation of an Industrial Estate or Area by which was meant the area which the Corporation may from time to demarcate as the area in which industries can be suitably located in the interest of industrialisation of the city
Under this rule no levy of octroi was to be made for a period of twelve years
Later on the Corporation framed extensive new octroi Rules under their resolution dated 7th of August 1962
Rule 58 of the new Rules provided for exemption in respect of levy of octroi
The Corporation had been levying octroi on the materials received by the appellants
The appellants sought exemption under rule S8
The Corporation rejected their claim for exemption of octroi on the ground that exemption can only be granted if the area within which the concern was situated was declared as industrial area and demarcated for the purpose
Being aggrieved the appellants filed petitions under Article 226 of tho Constitution in the High Court for the issue of a writ of Mandamus requiring the respondent Corporation to define and demarcate the area where their factories were situated as industrial area within the meaning of rule 58 and to exempt them from payment of octroi
During the pendency of these petitions rule 58 was repealed
The appellants amended the writ petitions and further contended that 1 that the repeal of rule 58 was illegal andor ultra vires and therefore rule S8 still continues to be effective and 2 that in any event they were entitled to get the benefit of rule 62 B which had not been repealed
The High Court repelled both the contentions and held that old rule 62B and the new rule 730 58 were repealed and that there was no legal flaw
It however took the view that despite the repeal of Rule S8 the appellant could still get the relief under rule 58 because if the proviso attached to the repealing rule the area in question was not demarcated as industrial estate or area for the purpose of rule S8 and that it was solely in the discretion of the Corporation to demarcate an area as industrial estate
It consequently dismissed the writ petitions
In the appeals to this Court it was contended on behalf of the appellants I that the disputed area had been included in the development plan under the Bombay Town Planning Act 1954 before the promulgation of rule S8 and had thus automatically become an industrial estate or area for the purposes of that rule
2 The Corporation had refused to grant exemption to the appellants on the arbitrary ground that the concern of the appellants was not a new one
3 There had been violation of Article 14 of the Constitution in as much as some industries in similar situations have been granted exemption while the appellants have been deprived of the benefit of rule S8 and 4 While denying the benefit of rule S8 the Corporation had taken into consideration extraneous or irrelevant considerations
Dismissing the appeals  HELD 1 i No area had been declared as industrial area under the Development plan before 1957 and in fact it was only after the enforcement of the development plan on 15th of August 1966 that the disputed area became an industrial area under the Bombay Town Planning Act
735 C D ii A bare perusal of rule 58 makes it apparent that for the purpose of the exemption from octroi an industrial estate or area means the area which the Corporation may from time to time demarcate for the purpose of the rule as the area in which industries can be suitably located for the interest of industrialisation of the City
Therefore the demarcation made under the Town Planning Act will not be a demarcation for the purpose of rule S8 and unless there is a demarcation as contemplated by rule S8 the appellants cannot claim exemption from octroi
The view taken by the High Court is fully warranted by rule S8 of the octroi Rules
735 E G 2
The purpose of the Town Planning Act is to plan the town and to keep industrial areas away from the residential or commercial areas and that no industries could be set up in an area other than the industrial area declared in pursuance of the Act
The purpose of demarcation as industrial estate or area under rule S8 is for the giving of incentive and impetus to industries in a particular area
736 B C 3
An analysis of the preamble to the new octroi Rules makes it clear that rule 62 B relating to octroi was repealed by implication
It is noteworthy that chapter VIII does not contain any rule relating to octroi except rule 62 B which did not find a place in the preamble
All rules relating to octroi and enacted under the 1901 and the 1925 Acts were also repealed without exemption
Another pointer is available in the fact that octroi was made the subject matter of a new and comprehensive set of rules which not only dealt with the matters 731 covered by the rules contained in chapter VIII and specifically mentioned in the A preamble but also the one covered by rule 62 B namely the matter of exemption of goods from octroi in areas considered suitable for industrialisation
The promulgation of rule 58 as a part of an exhaustive set of new rules has the effect of a repeal of rule 62 B by necessary implication although not in express terms
737 D G 4
The considerations which have weighed with the Corporation for denying the benefit of exemption from octroi to the appellants cannot be said to be either irrelevant or extraneous
These are within the ambit of rule S8 of the octroi Rules
739 B