Case: Swastik Rubber Products Limited Etc Vs. Municipal Corporation of The City of Poona and Another

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 7.8-1962 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." 13. 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to the Bombay Provincial Municipal Corporation Act 1949 have been specifically mentioned in the preamble as being rescinded and rule 62B is conspicuous by its absence therefrom, which fact apparently supports Dr. Singhvis 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of the preamble under which new rules were framed, however, makes it clear that rule 62B relating to octroi was repealed by implication.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 All rules relating to octroi and enacted under the 1901 and the 1925 Acts were also repealed without exception.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 b y 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 5(8) 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 5(8) 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to the resolution of the Corporation seeking to repeal rule 5(8) which is in these words:"Octroi Rule 5(8) is hereby repealed. Provided that notwithstanding such repeal the exemption already granted shall continue until the expiry of the respective periods of their grants." 14. The resolution so passed was sent to the Government and, as held in Municipal Corporation for the City of Poona etc. v. Bijlee Product (India) Ltd. etc., (1) the Government accepted it in full and sanctioned the repeal of rule S(8), 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 5(8). 15. 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, i.e, 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 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 can not be said to be either irrelevant or extraneous. These considerations are within the ambit of rule 5(8) of the octroi Rules. 16. A lot of argument was advanced on behalf of the appellant by Dr. Singhvi on the nature of relief to be g ranted 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 S(8) 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. 17. In Civil Appeal No. 1600 of 1970 Shri R.B. 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 involved and, therefore, this judgment will govern the other two appeals.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]11. 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 ofe (8) of rule 5 of the octroi Rules. While demarcating an area for the purpose of rule 5(8) 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 5(8) 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 t own is to be plannedThere 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 5(8). There is absolutely no force in this contention13. 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 rule62Bis conspicuous by its absence therefrom, which fact apparently supports Dr. Singhvis contention. A closer analysis of the preamble under which new rules were framed, however, makes it clear that rule62Brelating to octroi was repealed by implication. It is noteworthy that chapter VIII above mentioned does not contain any rule relating to octroi, except rule, 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 ther 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 b y rule, namely, the matter of exemption of goods from octroi in areas considered suitable for industralisation. It does not stand to reason that theg authority framed new rules, of which rule 5(8) covers the entire field of the earlier rule, 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 5(8) as a part of an exhaustive set of new rules, in our opinion, has the effect of a repeal of rule62Bby 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 5(8) which is in these words:"Octroi Rule 5(8) is herebyrepealed.Provided that notwithstanding such repeal the exemption already granted shall continue until the expiry of the respective periods of their grants."14. The resolution so passed was sent to the Government and, as held in Municipal Corporation for the City of Poona etc. v. Bijlee Product (India) Ltd. etc., (1) the Government accepted it in full and sanctioned the repeal of rule S(8), 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 5(8)In our opinion the considerations which have weighed with the Corporation can not be said to be either irrelevant or extraneous. These considerations are within the ambit of rule 5(8) of the octroi RulesWe 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 relief17. In Civil Appeal No. 1600 of 1970 Shri R.B. 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 involved and, therefore, this judgment will govern the other two appeals.