KADI MUNICIPALITY Vs. NEW CHHOTALAL MILLS COMPANY LIMITED
HIGH COURT OF GUJARAT
NEW CHHOTALAL MILLS COMPANY LIMITED
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(1.)The principal contention urged on behalf of the Municipality was that the order No. 91/62 which was an order passed under section 43 of B Class Municipalities Act of Baroda being Act No. XXXII of S. Y. 1983 ceased to exist on the merger of the state of Baroda on 1/08/1949 It was also contended that that order was repealed by the Baroda State (Application of Laws) Order 1949 which came into force on 30/07/1949 whereby several Acts Central and Bombay were extended to the territories of the former Baroda State. Schedule I of the Baroda State (Application of laws) Order sets out a list of such Acts which were extended to these territories one of the Acts so extended being the Bombay District Municipal Act III of 1901. Since an elaborate argument was addressed to me on section 5 of this order it would be necessary to recite here that section. That section deals with the repeal of certain enactments in force in the Baroda State and lays down that the enactments set out therein including the rules made thereunder were repealed by the order. These enactments which were so repealed were :
(a) All the enactments specified in Schedule III and in force in the Baroda State immediately before the coming into force of the order. (b) Sections 1 2 and 36 to 45 (both inclusive) of the Government of Baroda Act VI of 1940 and (c) All other enactments In force in the Baroda State and corresponding to the enactments in force in the Province of Bombay and extended to the Baroda State under Paragraph 3. The Act relevant for these appeals which was extended to the former territories of the State of Baroda was the Bombay District Municipal Act 1901 Under clause (1) of section 5 all enactments in force in the Baroda State were deemed to have been repealed wherever Acts corresponding to them were under section 3 extended to the Baroda State. Sub-clause (ii) of section 5 then provided that all orders notifications schemes by-laws and all rules by whatever name or description called under any enactment repealed by the provisions of sub-clause (i) were also thereby repealed. Therefore if it were found that the order in question was an order made under any enactment repealed by sub-clause (i) of the section then such an order also must be deemed to have been repealed.
(2.)The argument of Mr. Patel was that the order in question was made under section 43 of the B Class Municipalities Act XXXII of S. Y. 1983 of Baroda and that an Act corresponding to that Act having been extended to the territory of Baroda not only the Baroda Act but also the order in question made thereunder must be treated as repealed by virtue of sub-clause (ii) of section 5. Sub-clause (iii) of section 5 however provided that the repeal by this Order of any such enactment notification scheme rule by-law or order shall not affect the validity invalidity effect or consequence of anything already done or suffered or any right title obligation or liability already acquired or incurred or affect any principle or rule of law or established jurisdiction form or course or pleading practice or procedure or existing usage custom privilege restrictions exemptions notwithstanding that the same may have been in any manner affirmed recognised or derived by in or from any enactment hereby repealed. It would thus appear that under sub-clause (ii) even if the Baroda Act XXXII of S. Y. 1983 was found to have been repealed under sub-clause (i) of section 5 if the order in question were to be construed as granting an exemption such an exemption cannot be said to have been repealed or done away with. Mr. Patel however relied upon sub clause (iv) of section 5 which lays down that nothing in sub-clause (i) shall be deemed to save or to continue in force any right title obligation liability any principle or rule of law jurisdiction exemption etc. if the same were in any way inconsistent with any of the enactments extended or continued in force under section 3 of the order. In other words if there was any exemption and if such an exemption was in any way inconsistent with any of the enactments extended to the former State of Baroda e. g. the Bombay District Municipal Act the such exemption was not saved by sub-clause (iii) of section 5. Therefore in order to establish that such an exemption is not saved under sub-clause (iii) of section 5 it has to be established that that exemption was inconsistent with the Bombay District Municipal Act 1901 Mr. Patel contended that the Order No. 91/62 in question being under section 43 of the B Class Municipalities Act of Baroda and the Bombay District Municipal Act 1901 having been extended to the former territories of Baroda State the Baroda Act stood repealed. It was also contended that the order in question was inconsistent with the Bombay District Municipal Act in as much as the exemption in respect of the octroi duty granted thereunder was contrary to the provisions of the Bombay District Municipal Act conferring powers on the District Municipalities to levy and collect octroi duties. The order granting such exemption consequently was not saved under sub-clause (iv) of sec. 5 of the Baroda State (Application of Laws) Order 1949 Therefore it was argued that the order in question stood repealed as from 30/07/1949 when the Baroda State (Application of Laws) Order 1949 was brought into force.
(3.)The first question that would arise on these contentions would be whether the Order No. 91/62 was issued under sec. 43 of the B class Municipalities Act of Baroda Section 43 of the Act is somewhat similar to section 59 of the Bombay District Municipal Act 1901 and provides that the B Class Municipalities would have the right to levy amongst other taxes octroi duty subject to the sanction of the Huzur. Section 44 of the Act them lays down the procedure which the Municipalities would have to follow before imposing any of the taxes in respect of which power was conferred upon them under section 43. Both the Courts below were of the view that the order in question was not one under section 4 of the Baroda Act and I think they were right in that view. There is in fact inherent evidence in the Order itself which shows that it was not an order under section 43 of the Baroda Act or any other provision of that Act. As I have pointed out it is a composite order granting exemption with regard to several matters not connected with the B Class Municipalities Act of Baroda viz. Income-tax Super-tax Mokharana tax acquisition of land on payment of certain compensation by the company etc. That being so the order No. 91/62 cannot be said to have been repealed by virtue of the provisions of section 5 of the Baroda State (Application of Laws) Order 1949.
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