Case: Municipal Corporation Jabalpur &amp; Another Vs. Soorji Bhanji Keniya

of the appeals, they were not disposed of, and ultimately the High Court had to hear the petition and dispose it of in March, 1971. 12. We find no substance in this appeal. It is not disputed that the goods imported within the octroi limits by the respondent fall within the following description "(a) Steel iron and mild steel section including plates, bars G. I. and black sheets and other iron and steel manufactures and (b) spares and component parts of machinery." 13. Both these items are liable to pay octroi not in excess of two annas per maund by reason of Government Notification No. 3821/179/M. XIII dated July 12, 1954. That notification was issued by the State Government under Section 120 (3) of the City of Jubbulpore Corporation Act, 1948.The sub-section provided that the State Government may, by rules made under the Act, regulate the imposition, assessment and collection of taxes under Section 120 and specify maximum amounts of rates for any tax and for preventing evasion of assessment and payment of taxes. The notification specified the maximum amount of rate for octroi in respect of specified goods. Therefore, any imposition of the tax by the Municipality under Section 120 (1) which exceeded the limits prescribed by the notification would be obviously bad. The Corporation had not imposed directly any tax under Section 120 (1) of the Act, but had purported to impose the tax as authorised by the rules made by the Municipality under the Central Provinces and Berar Act, 1922 on 14-5-1943. Those rules, it was contended, prescribed the ad valorem rate of Rs. 2/5/6 per cent on such goods, and continued to remain in force by virtue of Section 3 (2) of the City of Jubbulpore Corporation Act, 1948.That is undoubtedly true. The taxes imposed by the Municipality under section 66 (1) of the Central Provinces and Berar Municipality Act, 1922 would continue to be in force as if they were imposed under the new Act under Section 120 (1). But even as the taxes would continue to be in force under Section 120 (1), the notification issued by the State Government on 29-4-1950 under sub-section (2) of section 66 of the Central Provinces and Berar Municipality Act, 1922 would continue to be in force under sub-section (3) of Section 120 of the City of Jubbulpore Corporation Act, 1948, r/w Section 3 (2) of that Act. The notification had clearly prescribed the maximum octroi for these goods as annas two per maund. Hence side by side we had two orders with regard to the imposition and levy of octroi on these goods. One was the imposition made by the Municipality under Section 120 (1) of the City of Jubbulpore Corporation Act which prescribed an ad valorem rate and, the other was the notification issued by the State Government prescribing the maximum rate for octroi which could be imposed. In the case of conflict between the two it is obvious that the maximum prescribed by the State Government would hold the field. The notification issued by the State Government either under Section 66 (2) of the Central Provinces and Berar Municipality Act, 1922 or under Section 120 (3) of the City of Jubbulpore Corporation Act, 1948 or under S. 132 (6) of the Madhya Pradesh Municipal Corporation Act, 1956 after its application to Jubbulpore in 1961 would be binding upon the Municipal Corporation and any tax imposed by it exceeding that limit would be invalid. 14. That position was not seriously contested before us. Mr. Mukherjee, on behalf of the appellant Corporation, however, attempted to contend that these two notifications of the State Government dated 29-4-1950 and 12-7-1954 were ultra vires of the powers of the State Government. It is rather difficult to understand this contention. The Corporation was the respondent in the High Court and it does not appear that at any time it had sought to challenge these notifications issued by the State Government. The point was not argued before the High Court and it is difficult to see how in the absence of the State Government as a party to the proceeding such a contention could at all be taken. We did not, therefore, permit Mr. Mukherjee to argue that the above notifications were ultra vires of the powers of the State Government. 15. It was then contended by Mr. Mukherjee that the form in which the mandamus has been issued would require him to charge octroi at the rate of two annas per maund for all time. He submits that when the Writ Petition was pending in the High Court the State Government had issued a notification dated 27-9-1968 whereby it had fixed the octroi rate of Rupees 2.35 p. per cent ad valorem on similar goods and therefore, at least from that date the two annas per maund rule must be deemed to have been abrogated. We are not concerned with that contention now. It does not appear from the judgment that the attention of the High Court was invited to any such notification issued by the State Government. The Writ Petition had been filed in 1965 and the complaint was that octroi was being imposed upon goods at a rate in excess of the maximum prescribed by the State Government at that time. The High Court was concerned with that limited question and not with the question whether at some future date it was not open to the State Government to fix another rate as the maximum. We are also not concerned with the same. If, after 1965, octroi was levied at a higher rate, merchants would be liable to pay octroi at that rate, provided, always, the levy was legal and valid. But so far as the petition itself was concerned the complaint made by the respondent in the High Court was well-founded viz. that octroi was being charged at a rate in excess of the maximum permitted by the State Government. On that finding the mandamus was rightly issued.

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

Explanation:
0[ds]12. We find no substance in this appeal. It is not disputed that the goods imported within the octroi limits by the respondent fall within the following description "(a) Steel iron and mild steel section including plates, bars G. I. and black sheets and other iron and steel manufactures and (b) spares and component parts of machinery."13. Both these items are liable to pay octroi not in excess of two annas per maund by reason of Government Notification No. 3821/179/M.I datedJuly 12, 1954. That notification was issued by the State Government under Section 120 (3) of the City of Jubbulpore Corporation Act, 1948.Then provided that the State Government may, by rules made under the Act, regulate the imposition, assessment and collection of taxes under Section120and specify maximum amounts of rates for any taxand for preventing evasion of assessment and payment of taxes. The notification specified the maximum amount of rate for octroi in respect of specified goods. Therefore, any imposition of the tax by the Municipality under Section120(1) which exceeded the limits prescribed by the notification would be obviously bad. The Corporation had not imposed directly any tax under Section120(1) of the Act, but had purported to impose the tax as authorised by the rules made by the Municipality under the Central Provinces and Berar Act, 1922 on. Those rules, it was contended, prescribed the ad valorem rate of Rs. 2/5/6 per cent on such goods, and continued to remain in force by virtue of Section 3 (2) of the City of Jubbulpore Corporation Act, 1948.That is undoubtedly true. The taxes imposed by the Municipality under section 66 (1) of the Central Provinces and Berar Municipality Act, 1922 would continue to be in force as if they were imposed under the new Act under Section120(1). But even as the taxes would continue to be in force under Section120(1), the notification issued by the State Government on0 undern (2) of section 66 of the Central Provinces and Berar Municipality Act, 1922 would continue to be in force undern (3) of Section120of the City of Jubbulpore Corporation Act, 1948, r/w Section 3 (2) of that Act. The notification had clearly prescribed the maximum octroi for these goods as annas two per maund. Hence side by side we had two orders with regard to the imposition and levy of octroi on these goods. One was the imposition made by the Municipality under Section120(1) of the City of Jubbulpore Corporation Act which prescribed an ad valorem rate and, the other was the notification issued by the State Government prescribing the maximum rate for octroi which could be imposed. In the case of conflict between the two it is obvious that the maximum prescribed by the State Government would hold the field. The notification issued by the State Government either under Section 66 (2) of the Central Provinces and Berar Municipality Act, 1922 or under Section120(3) of the City of Jubbulpore Corporation Act, 1948 or under S. 132 (6) of the Madhya Pradesh Municipal Corporation Act, 1956 after its application to Jubbulpore in 1961 would be binding upon the Municipal Corporation and any tax imposed by it exceeding that limit would be invalid14. That position was not seriously contested before us.Mr. Mukherjee, on behalf of the appellant Corporation, however, attempted to contend that these two notifications of the State Government dated0 and4 were ultra vires of the powers of the StateGovernment.It is rather difficult to understand this contention. The Corporation was the respondent in the High Court and it does not appear that at any time it had sought to challenge these notifications issued by the StateGovernment.15. It was then contended by Mr. Mukherjee that the form in which the mandamus has been issued would require him to charge octroi at the rate of two annas per maund for all time. He submits that when the Writ Petition was pending in the High Court the State Government had issued a notification dated8 whereby it had fixed the octroi rate of Rupees 2.35 p. per cent ad valorem on similar goods and therefore, at least from that date the two annas per maund rule must be deemed to have been abrogated.We are not concerned with that contention now. It does not appear from the judgment that the attention of the High Court was invited to any such notification issued by the StateGovernment.The Writ Petition had been filed in 1965 and the complaint was that octroi was being imposed upon goods at a rate in excess of the maximum prescribed by the State Government at that time. The High Court was concerned with that limited question and not with the question whether at some future date it was not open to the State Government to fix another rate as the maximum. We are also not concerned with the same. If, after 1965, octroi was levied at a higher rate, merchants would be liable to pay octroi at that rate, provided, always, the levy was legal and valid. But so far as the petition itself was concerned the complaint made by the respondent in the High Court wasd viz. that octroi was being charged at a rate in excess of the maximum permitted by the StateGovernment.On that finding the mandamus was rightly issued.