Decided on August 25,1960



Sarjoo Prosad, C. J. - (1.)THIS application can be disposed of on two short points which have been urged by Mr. Rastogi in support of his prayer for writs. Firstly, he contends that the Municipal Board had to obtain previous sanction of the Government in order to make Bye-laws for the purpose of fixing octroi limits and stations; providing for the exhibition of tables of octroi; requiring a licence to be obtained for the sale of any article liable to octroi duty and prescribing the conditions, on or subject to which such licence may be granted, refused, suspended or withdrawn. In the present case it is conceded by the learned Government Advocate also that no such Bye-laws have been framed as required by sec. 46 (1) (k) of the Rajasthan Town Municipalities Act, 1951 (Act No. XXIII of 1951 ). THIS is a fatal error which cuts at the root of the authority of the Board to levy octroi duty.
(2.)THE second contention of Mr. Rastogi is based on the language of sec. 60 of the said Act. Sec. 60 provides a procedure which is a preliminary requisite to the imposition of octroi tax. THE Municipal Board under the law is bound to observe the procedure laid down in the section before imposing a tax. THE section requires that the Board shall by resolution passed at a general meeting select for the purpose one or other of the taxes specified in sec, 59, prepare rules for the purposes of clause (h) of sec. 44 inter alia prescribing the tax and in such rules specify the classes of persons or of property or of both, which the Municipal Board proposes to make liable, and any exemptions which it proposes to make ; the amount of rate at which the Municipal Board proposes to assess each such class etc. Clause (b) of sec. 60 further provides that when such resolution has been passed the Municipal Board shall publish the rules so prepared with a notice in the form of the Third Schedule prefixed thereto; and then after this publication any inhabitant of the Municipality is entitled under clause (c) of the section to object, within one month of the publication of the notice, in writing to the Municipal Board. THE Municipal Board is then required to take all such objections into consideration or to authorise a committee to consider the same and report thereon, and submit such objections with its opinion thereon and any modifications proposed in accordance therewith, together with the notice and rules aforesaid, to the Government. It is unfortunate that in this case none of the above procedure has been followed. All that has happened is that members of the Municipal Board passed resolution imposing the tax. It is not even clear that it was a general meeting of the Board or only a meeting of those members. THEre has been, therefore, a definite violation not only of sec. 46 but also of sec. 60 of the Act which lays down the essential procedure under which Octroi duty can be proposed and levied by the Municipal Board. This not having been done, we have no option but to quash the order of the Municipal Board, Suratgarh, which is the respondent before us, imposing octroi duty or prescribing octroi limits, as assailed in this writ petition and direct that no such octroi duty shall be recovered from the petitioners. Octroi duty can be levied only if the requisite procedure as prescribed by the Act has been followed and the Municipality has been authorised to recover the tax. THE learned Government Advocate on behalf of the Municipality had given an undertaking that any octroi duty which the Municipal Board has illegally recovered therefor would be liable to be refunded to the petitioners. This should be done.
Mr. Rastogi on behalf of the petitioners has pressed for special costs in this case because he alleges that they had to incur a good deal of demurrage charges On account of the detention of the goods on the railway premises due to the conduct of the respondent Board. The action of the Municipal Board has been undoubtedly very unfortunate, but having regard to the resources of the Board which in a locality like Suratgarh must be very limited, we think that we cannot assess any higher amount of costs. We direct that the Board should pay costs of Rs. 100/- to the petitioners. The respondent is also directed to refund the amount illegally realised from the petitioners on account of octroi duty within a month of the date of this order.

The application is accordingly allowed with costs and the rule nisi is made absolute quashing the order of the Board levying octroi duty and preventing the Board from realising any such tax. .


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