Kapur, J. - (1.)A Divisional Bench of this Court made a reference under the proviso to cl. (3) of Art. 145 on the following two points:
(1) Whether the imposition in the present case offends Arts. 276 or 301 of the Constitution

(2) Whether the failure to notify the final resolution of the imposition of the tax in the Government Gazette is fatal to the tax The facts of the case are set out in the order of the Divisional Bench and it is unnecessary to restate them. The appellants in the two appeals and in the two petitions under Art. 32 are challenging the constitutionality of the octroi duty on cotton and wool imposed by the respondent Corporation within its octroi limits. The procedure for levying municipal taxes and the power of control of Government in regard to those taxes is laid down in S. 98 of the City of Bangalore Municipal Corporation Act (Act 69 of 1949) hereinafter termed the Act. The procedure is that a resolution intending to impose a tax has to be passed by the Corporation and that resolution is required to be published in the Official Gazette and in the local newspapers. The rate payers can then submit objections and after considering such objections received during the specified time the Corporation may by resolution determine to levy the tax or duty. When such a resolution has been passed the Commissioner is required to publish forthwith a notification in the Official Gazette and in the newspapers as set out in sub-s. (1) of S. 98 of the Act. This notification is to specify the date from which, the rate at which and the period of levy, if any, for which such tax is levied.

(2.)As has been stated in the order of the Divisional Bench all other requirements of S. 98 were complied with except that the notification in the Government Gazette as required by sub-s. (2) was not published. This, it was submitted, was a defect which was fatal to the legality of the imposition of the tax. To support this submission reliance was placed on two judgments of this Court in Harla vs. State of Rajasthan, (1952) SCR 110 and State of Kerala vs. P. J. Joseph, AIR 1958 SC 296. In the former case the Jaipur Opium Act was enacted by a resolution of the Council of Ministers appointed by the then Crown Representative but this law was neither promulgated nor published in the Gazette nor made known to the public. The mere passing of the resolution by the Council of Ministers without publication was held not to be sufficient to make the law operative. At p. 114, it was observed that reasonable publication of some sort was necessary and that natural justice required that before a law could operate it had to be promulgated or published and it must be broadcast in some recognisable way. Similarly in the latter case there was no publication in the Gazette of the order of the Government made in the exercise of the power conferred by an Act nor was there any communication of the order to the person affected thereby and it was held that not having been published in the Gazette it was not valid and could not have the force of law. But the respondent relied upon S. 38 (1) (b) of the Act which cures defects or irregularities not affecting the merits of the case. That section provides:-
S. 38 (1). "No act done, or proceeding taken under this Act shall be questioned merely on the ground-

(a) **********

(b) of any defect or irregularity in such act or proceeding, not affecting the merits of the case."
Thus under that provision any defect or irregularity not affecting the merits of the case saves any act done or proceeding taken under the Act on the ground of such irregularity or defect. The appellants contended that the section has no application to defects in regard to procedure under S. 98 of the Act for the imposition of taxes because S. 38 read as a whole refers to a different situation and that there was internal evidence in the section itself to show that it has no relevance to the objection taken by the appellants. The section, it was argued, is in Chapter II dealing with Municipal Authorities and this particular provision is in that Part of the Chapter which deals with provisions common to the Corporation and its Standing Committees and the marginal note shows that the object of enacting it was the validation of proceedings of the Corporation and its Standing Committees and that the whole section should be read in that context. So read, it was submitted, the section must be taken to be a saving provision for the validity of proceedings of the Municipal Authorities which was clear from cl. (a) of sub-sec. (1) which deals with defects on the ground of vacancy or defect in the constitution of the Corporation or of any Standing Committee and sub-s. (2) of that section also has reference to the meetings of the Corporation and therefore, it was contended, the defect or irregularity mentioned in cl. (b) of sub-section (1) in any act done or proceeding taken also must have reference to that kind of defect which is referred to in other parts of the Section. It was further submitted that the words "not affecting the merits of the case" showed that the reference was not to any defect in regard to the procedure for imposition of taxes but defects etc. which might arise in the proceedings of the Corporation and which have reference to a defect in the constitution of the Corporation or its Standing Committees. Reference was also made to the marginal note in the section.
(3.)It is unnecessary in this case to discuss the relevance of marginal notes in the construction of S. 38 (1) (b) because in our opinion the language is unambiguous and clear and it validates any defect in any act done or proceedings taken under the Act and makes it immune from being questioned on the ground of any defect or irregularity in such act or proceedings not affecting the merits of the case and merely because it is in a chapter dealing with Municipal Authorities or other parts of the section dealing with another subject is no reason for confining its operation to the defects contended for by the appellants.