1 UNREPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.262 OF 1998. 1. Union of India, Department of Tele communication Ministry of Communication, New Delhi. 2. The Telecom District Manager, Latur. ... Petitioners. Versus 1. The State of Maharashtra through Secretary Urban Development. 2. The Chief Officer, Municipal Concil, Udgir. 3. The District Collector, Latur. ... Respondents. ... Mr.Alok Sharma, Asstt.Solicitor General of India for petitioners. Mr.K.B.Choudhari, Addl.Govt. Pleader for the State. ... CORAM : B.R.GAVAI AND : S.V.GANGAPURWALA,JJ. Date : 05.07.2010. 2 ORAL JUDGMENT (Per B.R.Gavai,J.) 1. By the present petition, the petitioners challenge the letter dated 20.12.1997 issued by the Respondent No.3, thereby calling upon it to pay the octroi on the goods detained by the Respondent No.2. There is interim order operating in the matter as per prayer clause (F). 2. Now presently in so far as Municipal Council in State of Maharashtra is concerned, octroi is not being levied, therefore, the question that arises for consideration is only as to whether at the relevant time the petitioner was liable to pay the octroi of the goods imported by them. 3. The goods in question were being imported in the area of Municipal Council for the purpose of installation of telephone lines, electronic telephone exchanges etc. 4. Article 285 of the Constitution of India reads thus : 3 "285. Exemption of property of the Union from State taxation - (1) The property of the Union shall, save in so far as Parliament may by law otherwise provide, be exempt from all taxes imposed by a State or by any authority within a State. (2) Nothing in clause (1) shall, until Parliament by law otherwise provides, prevent any authority within a State from levying any tax on any property of the Union to which such property was immediately before the commencement of this Constitution liable or treated as liable, so long as that tax continues to be levied in that State." 5. Clause (2) of Article 285 fell for consideration before the Apex Court in the case of Union of India Vs. City Municipal Council, bellary. The Apex Court in para 11 observed thus: 4 "11. But that is not all. The real difficulty in the way of the Municipal Council is presented by the expression 'That State' occurring at the end of Cl(2) of Article 285. The plain and simple meaning which must be culled out from the said expression in the context of the other phraseology in clause (2) is that the local authority can claim protection under clause (2) if it is a local authority in the same State in which it was before the advent of the Constitution. There does not seem to be any ambiguity in this matter and there is, therefore, no escape from the position that the Bellary Municipal Council in the City of Bellary which was a local authority within the State of Madras can not take the advantage of clause (2) as at the time when it was making the claim for realization of the tax it was a part of the Mysore State. It is neither necessary nor advisable 5 for us to speculate or hazard a surmise to find out a reason for making this distinction between the right of a local authority continuing to be a local authority in the same State and being part of the different States in the pre-constitution and post - Constitution eras. As we have said above the ultimate authority lies with the Parliament either under Cl(1) or Cl.(2). If it thinks that the distinction so made was without a difference it can by enacting a suitable law employer the Bellary Municipal Council to claim the Municipal taxes retrospectively or prospectively from the Railway concerned in respect of its property situated within the limits of the Municipal Council. The amount of tax which the Municipal Council was getting from the Railway in respect of such property was quite considerable and was, perhaps, necessary for the funds 6 of the Municipality. Such considerations are foreign and not germane for our purposes for deciding the constitutional point at issue. We are regretfully constrained to decide it against the Municipal Council on a plain reading of the Constitution provision engrafted in Art.285(2). We accordingly hold that the Respondent's suit can not be decreed against the appellant." In the said case the question before the Apex Court was that as to whether Bellary Municipal Council which prior to constitution was in the State of Madras was also entitled to the benefit of sub-clause (2) of Article 285 after it became a part of the Mysore State. The Apex Court held that the benefit was only to the local authorities if they continued to be part of the State prior to constitution and if the tax was so levied on the date on which the constitution came into force. 7 6. Admittedly, in the present case Udgir Municipal Council at the time of Constitution came into effect was part of State of Hyderabad and not State of Maharashtra. In that view of the matter, the present matter is squarely covered by the judgment of the aforesaid Apex Court. Undisputedly, the goods in question were purchased by the petitioner No.2 herein. In that view of the matter, Rule is made absolute by holding that the goods imported by the petitioner No.2 in Udgir Municipal Council were not liable for payment of octroi. (S.V.GANGAPURWALA,J.) (B.R.GAVAI,J.) asp/office/wp26298