TRANSPORT CORPORATION OF INDIA Vs. CHAIRMAN MUNICIPAL COUNCIL MUNICIPAL CORPORATION

JUDGEMENT

(1.) THIS opinion will also govern the opinion in Civil revision No. 178 of 1961.

(2.) THESE two references by our learned Brother Krishnan J. are under Chapter I, rule 9, Sub-rule (2) of the High Court Rule s. They arise out of two revision petitions under section 25 of the Small Cause Courts Act directed against two decisions of the Court of Small Causes, Indore, dismissing two suits filed by the petitioners for refund of octroi duty said to have been paid by the petitioners to the Municipal Corporation of Indore, in respect of certain goods brought within the limits of the Indore Municipal Corporation. As the references are under Chapter I, rule 9, Sub-rule (2) of the High Court Rules, we can only express an opinion on the questions on the basis of which a reference can be made to a large Bench under that rule. Under Sub-rule (2) of Rule 9, a reference is permissible if the case involves a question as to the interpretation of the Government of India Act or of any order in Council made thereunder, the Constitution or any order of the president made thereunder, or if the judge making the reference considers that the decision in the proceeding involves reconsideration of decision of a Judge sitting alone reported in the Central Provinces Law Reports, the Nagpur Law reports or the Indian Law Reports, Nagpur Series. [n these references, there is no question of reconsideration of any such decision. The only question that arises under the reference is as to the interpretation of article 304 (b) of the Constitution. The petitioners contended in the trial Court and before the learned Single Judge that the provisions contained in Section, 132 (f) of the Madhya Bharat Municipal Corporation Act, 1956, empowering the Corporation to impose an octroi on animals or goods brought within the city for sale, consumption or use therein was ultra vires as the levy of octroi duty on goods restricted the freedom of trade and commerce; and that this restriction was invalid inasmuch as the Madhya Bharat Municipal corporation Bill, 1956, was introduced and moved in the Madhya Bharat Legislature without obtaining the previous sanction of the President as required by the proviso to Article 304. Clause (b) of article 304 and the proviso run as follows :--

(3.) IT was argued by Shri Mathur, learned counsel appearing for the petitioners, that the imposition of octroi duty on goods or animals brought within the corporation limits in reality hampered or burdened trade and commerce with in the Indore Corporation limits and thus within the limits of the State; that the imposition was a tax on trade; that it was not a regulatory tax in the sense of one imposed for regulating any particular matter; that It was also not a compensatory tax In the sense of one levied for providing any facilities for the promotion of trade and commerce; and that the octroi tax was thus an impost on trade and restricted the freedom of trade. Learned counsel placed reliance on Atiabarl Tea Co. Ltd. v. State of Assam, AIR 1961 SC 232, Automobile Transport (Rajasthan) Ltd. etc. v. State of Rajasthan, AIR 1962 SC 1406 and Patna Zilla Truck Owners Association v. State of Bihar, AIR 1963 Pat 16.