Appeal No 23460
Appeal from the judgment and order dated November 18 1958 of the Bombay High Court at Nagpur in Special Civil Application No 201 of 1958
N C Chatterjee M N Phadke section A Sonhi and Ganpat Rai for the appellants
A V Viswanatha Sastri B R Mandekar and A G Ratnaparkhi for respondent No 1
G C Mathur and R H Dhebar for respondent No 2 1961
January 27
 J This is an appeal against the jugdment and order of the High Court of Judicature of Bombay at Nagpur dismissing a petition under articles 226  227 of the Constitution challenging the legality of the imposition of the octroi tax under section 661e of the C P  Berar Municipal Act Act II of 1922 hereinafter termed the Act
The appellants who were the petitioners in the High Court are some of the rate payers of the town of Akola in the erstwhile State of Bombay and respondent No 1 is the Municipal Committee Akola
On November 11 1957 respondent No 1 passed a resolution to impose an octroi tax on animals and goods brought within the limits of the Akola Municipality
This resolution and the draft Rules of Assessment and Collection were later on forwarded by the Akola Municipality to the State Government for publication
A notification dated January 3 1958 was published in the Bombay Government Gazette on January 16 1958
This Gazette Notification contained the draft rules the schedule of goods liable to octroi duty and the rates to be charged
This was in accordance with the requirements of section 672 of the Act
Respondent 620 No 1 the Municipal Committee affixed on the Notice Board of the Committee and published in the local newspapers the proposed rules for the imposition of the tax but the objection of the appellants is that they did not publish along with them the draft of the  System of Assessment 
It is true that a pamphlet in Marathi language was distributed in the town of Akola and the proposals were also published in the local newspaper Jan Sewak
Objections to the proposals were filed by some of the rate payers of the town of Akola and all of them were considered and a resolution was passed by the Municipal Committee on March 3 1958 and that is the resolution which was challenged in the petition filed in the High Court by a petition dated April 14 1958 p raying for the quashing of the resolution and for the issuing of a prohibitory order against the State Government against sanctioning the proposal sent by the Municipal Committee
On April 18 1958 a rule was issued by the High Court to the opposite parties calling upon them to show cause why the order as prayed should not be made
This notice was served on the Special Government Pleader on May 9 1958 and the Special Government Pleader put in his appearance on June 17 1958
On June 23 1958 an interim injunction was issued but previous to that on June 19 1958 a final notification was issued by the Government approving of the proposal to impose the octroi tax
As a consequence of this the petition was allowed to be amended but ultimately the High Court dismissed the petition and this appeal has been brought on a certificate of the High Court
The sole question which has been debated before us is the legality of the imposition
The ground on which the legality is challenged is that there was no full compliance with the mandatory requirements of section 672 of the Act
It is therefore necessary to deal with the relevant provisions of the Act
Chapter IX of the Act deals with Imposition Assessment and Collection of taxes
Section 66 provides for the taxes which can be imposed and section 67 deals with the mode of the imposition of the tax
By section 71 the State 621 Government is empowered to make rules regulating the assessment of taxes and for preventing evasion of assessment
Section 76 empowers the State Government to make rules regulating the collection of taxes and preventing evasion of payment
Section 85 em Con powers the State Government to make rules regulating the refund of taxes
But it was argued on behalf of the appellants that as the mandatory provisions of section 67 as to publication of the  System of Assessment  in accordance with the rules was not complied with the imposition of the tax was illegal
Reliance was placed on certain judgments but it is not necessary to discuss those cases because in the circumstances of this case they are of little assistance
The respondents on the other hand submitted that what was published was all that the section required and that the word assessment there did not mean anything more
As section 672 has been mainly relied upon it may be quoted
It provides  672 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
 The scheme of section 67 appears to be this that when a Municipal Committee wishes to impose a tax it has to pass a resolution at a special meeting and then it has to publish its resolution for imposition of that tax so that the rate payers may be able to place their objections against the imposition
This publication must appear in the Government Gazette and also locally as required by the rules
The Municipal Committee has then to consider the objections if any of the rate payers and if the Committee does not consider it necessary to alter its original proposals it has to send its proposals with the objections received and its decision thereon and any modifications of the original proposals to the State Government which after considering the matter may sanction them or refuse to sanction or sanction them with modifications 622 The real objection of the appellants was that the system of assessment had not seen published as required
The Rule relating to publication under section 67 is as follows   1
A notice under section 672 of the intention of the municipal committee to impose a tax or under section 683 of the proposal of the committee to increase the amount of rate of any tax shall be forwarded to the State Government through the Deputy Commissioner for publication in the  Madhya Pradesh Gazette
 The notice under section 672shall be accompanied by draft rules for the assessment and collection of the tax
After its publication in the Gazette the notice shall be published by affixing copies thereof to a notice board at the municipal office and at conspicuous places in the town and shall also be published in the local papers if any
As an alternative to its publication in local papers the committee may circulate the notice in print in vernacular within the municipal limits
Proclamation shall also be made by beat of drum throughout the municipality notifying the intention of the committee and calling the attention of the inhabitants to the notice in question and to the term of thirty days laid down in the law as that within which objections to the proposed imposition or increase must be submitted to the committee
 According to this rule the notice under section 672 has to be accompanied by draft rules for the assessment and collection of the tax and after its publication in the Gazette the notice has to be published by affixing copies thereof to a notice board at the Municipal Office and at conspicuous places in the town and has to be published in the local papers if any or it may circulate the notice in print within the municipal limits
It is admitted that in the Gazette dated January 16 1958 the draft rules were published which contained the articles to be taxed the rate or rates at which they were to be taxed and what articles were not to be taxed
It also contained a brief statement of objects
and reasons for the imposition of the tax
This was 623 followed by draft rules as to how taxation was to be done
In short what was published in the Gazette was admitted to conform to all the requirements of section 672
But the contention raised is that in the Jan Sewak a local Marathi newspaper the rules which were published contained the articles to be taxed the rate or rates at which they were to be taxed but the draft rules in regard to  System of Assessment  were not published along with it
The High Court has pointed out that what was done was a sufficient compliance with the provisions of section 672 and that the words  System of Assessment  meant only the stage of the imposition of the tax and not other stages as a whole
Sections 71 76 and 85 as has been said above deal with rules for assessment and for preventing evasion of taxes rules for collection of taxes and rules for refund respectively
Read together these provisions of the Act support the decision of the High Court that the words  System of Assessment  do not necessarily mean the whole procedure of taxation ie imposition collection and procedure in regard to collection and refunds
The rule also shows that what is to be affixed on the notice board and at conspicuous places of the town is the notice and not the draft rules relating to assessment and collection
In our opinion there has been a compliance with the provision of section 672 and that the publication of the rules relating to the rates at which the tax had been imposed was sufficient to comply with the provisions of the Act and the rules made thereunder
It is unnecessary to deal with the efficacy of sub sections
7 and 8 of section 67
In our opinion the judgment of the High Court was right and the appeal is therefore dismissed with costs
Appeal dismissed


Summary:
The appellant purchased the property in dispute from the respondent but soon thereafter there was an agreement for reconveyance of the property to the respondent within a period of two years for almost the same value for which it was sold
The relevant clause of this agreement was as follows  Clause 3 The purchase shall be completed by the purchasers within two years ie to say on or before the 10th day of February 1943 time being the essence of the contract
If the purchasers shall on or before the 10th day of February 1943 pay to the vendor a sum of Rs 10001 the vendor shall at the cost of the purchasers execute such conveyance as may be necessary for conveying and transferring its right title and interest in the said property free from encumbrances if any created by it
 Before the expiry of the stipulated period the respondent entered into correspondence with the appellant asking for the completion of the agreed reconveyance and intimating that the purchase money was ready to be paid but after some correspondence the appellant s solicitors totally repudiated the agreement for reconveyance
The respondent did not then tender the price agreed to be paid and filed a suit for specific performance which was dismissed by the trial court on the ground that the respondent had not paid the money
The High Court decreed the suit
Held that as the appellant had totally repudiated the con tract for reconveyance and had failed to perform his part of the contract it was open to the respondent to sue for its enforcement and the High Court was right in holding that the respondent was entitled to a decree for specific performance
In a case of total repudiation of the agreement for sale it was useless to make a formal tender of the purchase money
Hunter vs Daniel   and Chalikani vs Zamindar of Tuni and Others 1922 LR 50 IA 41
followed
Ismail Bhai Rahim vs Adam Osman ILR  distinguished