Full Judgment Text
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PETITIONER:
BHASKAR TEXTILE M[LLS LTD;
Vs.
RESPONDENT:
JHARSUGUDA MUNICIPALITY & OTHER
DATE OF JUDGMENT11/01/1984
BENCH:
MISRA, R.B. (J)
BENCH:
MISRA, R.B. (J)
VENKATARAMIAH, E.S. (J)
CITATION:
1984 AIR 583 1984 SCR (2) 401
1984 SCC (2) 25 1984 SCALE (1)72
ACT:
Octroi duty, imposition of-Validity of the imposition
of Octroi duty under section 131(1)(kk) of the Orissa
Municipal Act, 1950 to a village constituted as a Grama
earlier under Section 3 of the Orissa Gram Panchayat Act,
1964 but later included in an area of cl Municipality under
Section 4 of the 1950 Act-Constitution of India, 1950,
Article 19(1)g.
HEADNOTE:
The appellant Textile Mills is a company duly
incorporated under the Indian Companies Act 1956 having its
mills located at Village Ektaji under the Jharsuguda police
station in district Sambalpur, Orissa. The company mainly
carries on spinning of Cotton which in the manufacturing
process is transformed from loose fibres into finished yarn
The area under the Ektaji village in which the appellant’s
factory was located was earlier constituted as a Grama by a
declaration made under Section 3 of the Orissa Grama
Panchayat Act 1964. On or about March 25, 1970 Jharsuguda
Municipality passed a resolution for the inclusion of the
Ektaji and other villages within its jurisdiction. After
considering the objections and representations against the
inclusion of Ektaji village in the Municipal Limit and after
following once again the other statutory requirement of
further notice etc., the State Government published in the
Orissa Gazette dated 12.8.1975 a notification approving the
inclusion. Soon thereafter on September 1, 1975 the said
Jharsuguda Municipality sent a letter to the appellant
directing it to pay octroi duty at the rate of I percent ad
valorem on cotton as soon as it entered the Municipal check
post for the purpose of its being spun into yarn. The levy
of octroi was challenged by filing a petition under Arts.
226 and 227 of the Constitution on various grounds, but the
writ Petition was dismissed. Petition seeking permission for
issuance of a certificate under Article 133(1) of the
Constitution was also dismissed. Hence the appeal after
obtaining Special Leave of the Court.
Dismissing the appeal the Court.
^
HELD: 1. Considering the case from any aspect the
imposition of Octroi duty under section 5 of the Orissa
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Municipal Act, 1950 does not suffer from any infirmity [413
H]
2. The levy, being neither an unreasonable one nor also
excessive, cannot . be challenged on the ground that there
is violation of Article 19(1)(e) of the Constitution. [413
a]
402
3. It is true that when a duly constituted Grama under
sub-section (I) of section 3 of the Grama. Panchayat Act is
to go out of existence an order of the Magistrate cancelling
the Notification in terms of sub-section (2) of Section 3 of
the said Act is a pre-requisite. But in the instant case the
Gram Panchayat never challenged the Notification of
inclusion of the Village Ektaji in Jharsuguda’ Municipality.
Rather on the other hand the Gram panchayat was consulted
before the impugned notification dated 12th August 1975 was
issued. [406 H; 407 A]
4. The proviso to sub-section 1 of Section 4 of the
Orissa Municipal. Act, 1950 has no application to the
present case and that cannot be taken to be a ground for
challenging the Notification for inclusion of Village Ektaji
hl the Jharsuguda Municipality. A bare perusal of the
proviso clearly indicates that the requirement is that two-
thirds of the adult, male population of the town to which it
refers should be engaged in non-agricultural pursuits The
proviso applies not to all the clauses of sub-section (I) of
section 4 but it. applies only to clause (a) of sub-section
(1) of Section 4, because it is clause (a) of section 4 (1)
which talks of town. [408 E-F]
5. The contention that the objection raised by the
appellant against the inclusion of the village in question
into Municipality has not been considered by the State has
no force. The objection is required to be made through the
Magistrate of the District. Naturally the District
Magistrate. while forwarding the objection to the State
Government made his comment. The Revenue Divisional officer
who intervenes in the channel of communication between the
District Magistrate and the State Government had an occasion
to process the matter. The State Government while dealing
with the matter consulted the Panchayat Raj Department and
ultimately notified in terms of the notification dated
August 12, 1975. [408H; 409A-B]
6. Section 131(1) of the Municipal Act empower the
Municipal Council to impose various kinds of taxes which
includes octroi as provided in Clause (kk) with the sanction
of the Government since the goods are brought into the
municipal limits at least for the purpose of use"-one of the
three conditions laid down in clause (kk -the imposition of
Octroi is valid.
Burmah Shell Oil Storage & Distribution Co. v. The
Belgam Borough Municipality ’ [1963] Supp 2 SCR 216 referred
to and held inapplicable. [409 D-E]
7:1. There is a statutory presumption under section 392
of the Orissa Municipal Act, 1950 that the publication of
the rules or regulations or bye laws in the Gazette shall be
evidence that the rule pr regulation or bye law has, been
mad as required by the section Therefore the court will
assume that the bye law has been made in accordance with law
in the absence of anything more from the site of the
appellant. 1410 F-G]
7 :2; The argument that even assuming that the bye laws
when initially enforced might be presumed to be in
accordance with law in the absence of similar steps being
taken at the time of extension of bye laws to the newly
added area, the bye laws are not enforceable in the new
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areas is not correct as it has, proceed in utter oblivion of
the provisions of section 5 of the Municipal Act. [410H; 411
A]
Vishakhapatanam Municipality v. Kandregula Nukarajau &
Ors. [1976] 1 S.C.R. 5.44; Atlas Cycle Industries Ltd. v.
State of Haryana and Anr. [1972] 1 S.C.R. 127; Bagalkot City
Municipality v Bagalkot Cement [1963] 2 Supp S.C.R. 710;
distinguished
403
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 487 of
1977.
Appeal by Special leave from the Judgment and order
dated the 5th January, 1977 of the orissa High Court in
O.J.C. No. 810 of 1976.
V S Desai, Parveen Kumar and Ashok Mathur for the
Appellant.
C.V. Murty, K. PrabhaKar Rao and C.M. Murty for the
Respondents.
R.K. Mehta for Respondent No. 3.
B.D. Sharma for Respondent No. 2.
The Judgment of the Court was delivered by
MISRA J.: The present appeal by special leave is
directed against the judgment of the High Court of Orissa
dated 5th January ]977 dismissing a petition under ’Arts.
226 and 227 of the Constitution ’ for quashing imposition of
octroi under s. 131(1)(kk) of the Orissa Municipal Act, 1950
(hereinafter referred to as the ’Act’) and for . ’. a
declaration. that the notifications dated 31st July 1973 and
12th August, 1975 issued by the State Government in exercise
of powers . . vested under s.4 of the Act are illegal and
unenforceable and for a further declaration that the octroi
Bye-laws of the Jharsuguda Municipal Council are also void
and inoperative.
Jharsuguda Municipality, respondent No. 1, is a
municipality incorporated under the Act. In March 1962 the
State Government ’accorded sanction for the imposition of
octroi in terms of s.]3](]) of the Act. ’ A set of octroi
bye-laws were framed by the Municipal Council in terms of
s.388 of the Act and the same were also approved by the
State Government in exercise of powers under s.390 of the
Act on 19th March, 1968. octroi was levied for the first
time after 31st March 1962 when the State Government
accorded sanction under s.131 (i)(kk) of the Act.
The appellant is a company duly incorporated under the
Indian Companies Act, 1956 having its mills located at
village Ektali under the Jharsuguda police station in
District Sambalpur, Orissa. The said area of the village was
included within the Ektali Panchayat. The company mainly
carries on spinning of cotton which in the manu- .
404
facturing’ process is transformed from loose fibres into
finished yarn.
The area under the Ektali village in which the
appellants’ factory was located was constituted, along with
other villages as a Gram by a declaration made under s.3 of
the, Orissa’ Grama Panchayat Act, 1964. On or about 25th
March, 1970 Jharsuguda Municipality passed a resolution for
the inclusion of Ektali and other villages in the Jharsuguda
Municipality and thus extending the area of the said
Municipality. Against the proposed extension the appellant
made a representation to the State Government inter alia on
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the ground that he said, village Ektali could not under the
relevant rules be included in the Municipality under
s.4(1)(c) of the Orissa Municipal Act, 1950 in view of the
proviso to s.4(1) which contemplates that a declaration
shall not be made under this sub-section unless the State
Government are satisfied that two-thirds of the adult male
population of the town to which it refers are chiefly
employed in pursuits other than agriculture and that such a
town contains not less than 10,000 inhabitants and an
average number of not less than 1000 inhabitants to a square
mile of the area of such a town. The appellant alleged that
the male population of the said village Ektali was 2640 as
per 1971 census report, out of which only 1586 were chiefly
employed in pursuits other than agriculture and thus two-
thirds of such male population were not employed in non-
agricultural pursuits.
The State Government, however, by a notification dated
31st July 1973 declared their intention under s.4(1)(c) of
the Municipal Act, 1950 to include within the Jharsuguda
Municipality the local area of a number of villages
including the village Ektali. By the said notification
published in Orissa Gazette Extraordinary dated 22nd August,
1973 the Government invited objections within six weeks from
the date of publication. The appellant did file objection to
the said notification. Objection was also filed by Grama
Panchayat of Ektali to the effect that the Ektali Grama was
duly constituted , by the State Government in Community
Development and Panchayat Raj Department in exercise of
powers under s.3(1) of the Orissa Grama Panchayat Act and in
the absence or any notification under s.3(1) and s.149 of
the Grama Panchayat Act, village Ektali still continues to
be a Grama.
The objections were examined by the District
Magistrate, Sambalpur and the Revenue Division Commissioner
Northern Division, . Sambalpur and the same were rejected.
On 12th August, 1975, notification under s.4(33(b) declaring
the inclusion of the said villagsa
405
including the village Ektali, into Jharsuguda Municipality
was issued. Soon thereafter on Ist September, 1975 the said
Jharsuguda Municipality sent a letter to the appellant
directing it to pay octroi as per provisions of s.5 of the
Orissa Municipal Act. The said octroi was payable at the
rate of 1 per cent ad valorem on cotton as soon as it
entered the municipal check-post for the purpose of its
being spun into yarn.
The levy or octroi duty was challenged by filing a
petition under Arts. 226 and 227 of the Constitution on
various grounds viz.,(a) the inclusion of village Ektali in
the area of Jharsuguda Municipality was illegal and ultra
vires the provisions of the Orissa Municipal Act, and (b)
the levy of octroi duty at the rate of I percent ad valorem
was arbitrary, coercive and violative of Art. 301 of the
Constitution and, therefore, the appellant prayed for
quashing the notifications referred to above.
The writ petition was, however, dismissed by a Division
Bench of the Orissa High Court by its order dated 5th
January. 1977 The appellant filed an application under Art.
133(1) of the Constitution for the grant of a certificate
for leave to appeal to ’this Court, which was dismissed by
the High Court by its order dated 19th January, 1977. The
appellant has now filed the present appeal after-obtaining
special leave from this Court.
The learned counsel for the appellant raised the
following contentions: .
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1. In the absence of a notification cancelling the
declaration constituting Ektali village as part of
Grama, it was not legally permissible for the-
State Government acting ’ under the Orissa
Municipal Act 1 950 to include within the area of
the municipality the area of the said Grama.
2. The mandatory requirements of proviso to sub-s.(l)
of s.4 of the Orissa Municipal Act, 1950 have not
beer satisfied.
3. The objection filed by the appellant under sub-
s.(2) of s.4 has not been considered by the State
Government.
4. (a) The liability to octroi arises when any of
the three alternatives mentioned in
s.]31(1)(kk) of the Municipal Act is
satisfied viz., when the goods are brought
406
within the municipal limits for (i)
consumption, (ii) use or (iii) sale.
(b) The tax already imposed within the limits of
the Municipality of Jharsuguda could not be
automatically made applicable to the extended
limits of the municipality without obtaining
the sanction of the State Government under
s.131(1) (kh) of the Act.
(c) The rate levied is per se unreasonable and
arbitrary. We take up these grounds seriatim.
Admittedly village Ektali where the factory of the
appellant is located was a part of the duly constituted
Ektali Grama Panchayat prior to 1973, within the meaning of
s.3 of the Orissa Grama Panchayat Act. Sub-section (1) of
s.3 authorises the State Government to constitute any
village or group of contiguous villages as a Grama by a
declaration notified in the Gazette and assign to such Grama
a name which shall be of one of the villages comprised
within the Grama. Subsection (2) of 5.3 provided that
whenever the State Government deems it fit so to do, they
may cancel any notification in respect of a Grama under sub-
s (1) on may alter the area comprised in a Grama by reducing
or adding to the number of villages comprised within such
Grama by a declaration ’notified in the Gazette constituting
such altered area or areas as a Grama or Gramas, as the case
may be.
The precise contention raised on behalf of the
appellant is that- there was a declaration by notification
for the. constitution of the Grama within the meaning of
sub-s.(l), but there has been no notification as required by
sub-s,(2) of s.3 for taking village Ektali out of Grama
Panchayat and, therefore, village Ektali continues to be a
Grama and the inclusion of village Ektali in Jharsuguda
Municipality by notifications dated 31st July, 1973 and 12th
August, 1975 will have no effect.
This contention has considerable force: When-a duly
constituted Grama is to go out of existence an order of the
Magistrate cancelling the notification in terms of sub-s.(2)
of s.3 of the Grama Panchayat Act is necessary. But there
are circumstances which take away the force of the argument.
The Grama Panchayat never’ challenged the notification of
inclusion of the village Ektali in Jhar-
407
suguda Municipality. From un-controverted averment made in
para 6 of the counter-affidavit of the State filed before
the High Court it appears that the Grama Panchayat was
consulted before the impugned notification. Therefore, we do
not feel persuaded to accept the contention at the instance
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of the appellant. This leads us to the second ground.
In order to. appreciate the second ground it is
appropriate at this stage to refer to the provisions of s.1
in so far as it is relevant for the purposes of the case:
"4.(1) The State Government may, by notification
declare their intention
(a) to constitute any town, together with, or
exclusive of, any railway station, village, land
or building in the vicinity of any such town, a
municipality under this Act: or
(b) .......................................
(c) to include within a municipality any local area
contiguous to the same and defined in the
notification; or
(d) ................
(e) .............. .
(f) ................
(g) ................
(h) ................
Provided that a declaration shall not be made
under this sub-section unless the State Government are
satisfied that two-thirds of the adult male population
of the town to which it refers, are chiefly employed in
pursuits other than agricultural, and that such town
contains not less than ten thousand inhabitants and an
average number of not less than one thousand
inhabitants to the square mile of the area of such
town,
408
(2) Any inhabitant of the town or local area, or
any, rate-payer of the municipality, in respect of,
which any . . such notification has been published
under sub-section (l) may, if he objects to anything
contained in the notification, submit his objection in
writing to the State Government. through the Magistrate
of the district within six weeks from the date of the
publication of the notification and the’ State .
Government shall take his objections into
consideration.
(3) ......."
The emphasis of the appellant is that two-third of the
adult male population of the Grama should be chiefly
employed in pursuits other than agricultural. The appellant
has referred to 1971 census figures. On the basis of these-
census figures it is argued that out of the total male
population of 2640 of Grama Ektali only 1586 adults were
engaged in non-agricultural pursuits hut the requirement of
law was that two-third of the male population should have
been employed in the non-agricultural pursuits which comes
to 1760.
The argument proceeds on the assumption that the
proviso to s.4(1) applies. But a bare persual of the proviso
clearly indicates that the requirement is that two-thirds of
the adult male population of the town to which it refers
should be engaged in non-agricultural ’ pursuits. The
provision, to our mind, applies not to all the classes of
sub-s.(l) of s.4 but it applies only to cl.(a) of sub-s.(l)
of s.4, because it is cl.(a) of s.4(1) which talks of town.
Therefore, the proviso, in . . Our opinion, has no
application to the present case and that cannot be taken to
be a ground for challenging the notification for inclusion
of village Ektali in the Jharsuguda Municipality. This takes
us to the third ground.
The appellant had filed an objection under sub-s.(2) of
s.4. The said objection was examined by the District
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Magistrate, Sambalpur and the Revenue Divisional
Commissioner (Northern Division), Sambalpur: They overruled
the objection treating it to be of general nature.
Thereafter, the Community Development and the Panchati Raj
(Grama Panchayat) Department were consulted to agree with
this proposal, to which they agreed, and it was thereafter.
that the Urban Development Department issued a final
notification dated 12th August, 1975 to include the above
village into the municipal limits of Jharsuguda
Municipality. The contention of the appellant that the
objection had not been considered by the State Government
409
cannot be accepted in as much as the objection is required
to be made through the Magistrate of the district.
Naturally, the District Magistrate while forwarding the
objection to the State Government made his comment. The
Revenue Divisional Commissioner intervenes in the channel of
communication between the District Magistrate and the State
Government and he, therefore, had an occasion to. process
the matter. The-State Government while dealing with the
matter consulted the. Panchayati Raj Department and
ultimately notified in terms of notification dated 12th
August, 1975. In the circumstances it cannot be accepted
that the objection filed by the appellant had not been
considered by the State Government.
It was next contended that the liability for octroi
arises when ally of the three alternatives mentioned in
s.131(1)(kk) of the Municipal Act are satisfied, namely,
when the goods are brought within the municipal limits fol
(i) consumption, (ii) use, or (iii) sale. Section 131(1) of
the Municipal Act empowers the Municipal Council to impose
various kids of taxes within the limits of the Municipality
with the sanction of the State Government. One of the taxes
contemplated by s.313 (l) is octroi, as provided in cl.
(kk). According to the appellant the goods are brought into
the municipal area not for the purpose of sale or for
consumption but for the purpose of manufacture of yarn. The
appellant took support from Burmah Shell Oil Storage &
Distribution Co. India Ltd. v. The Belgam Borough
Municipality in which this Court had an occasion to consider
the word ’Consumption’. This Court took the view that the
word ’consumption’ in is primary sense means the act of con
summing and in ordinary parlance means the use of an article
in a way which destroys, wastes or uses up that article, but
in some legal contexts, the word ’Consumption has a wider
meaning and that it is . not necessary that by the act of
consumption the commodity must be ’ destroyed or used up. On
the strength of this authority it is con tended that the
goods were brought into the municipal limits neither . For
consumption, nor for sale. Assuming the contention to be
correct there is no escape from the conclusion that the
goods are brought into the municipal limits at. least for
the purpose of use. In this view of the legal position the
imposition of octroi by the Municipality cannot be
challenged on this ground.
The next ground of attack is based on s.372 of the
Orissa Municipal Act. Section 392 pertinently reads: - H
410
"392. The State Government before making any rules
under sub-section (2) of section 81 and section 387,
and a municipal council, before making any regulation
or by-laws under section 388, shall publish, in such
manner as the State Government deem sufficient for
giving information to persons interested, the proposed
rules or regulations or by-laws - together with a
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notice specifying a date on or after which the same
will be taken into consideration; and shall before
making such rules or regulations or by-laws, receive
and consider any objection or suggestion which may be
made - by any person with respect to the same before
the date so specified.
Every such rule or regulation or by-law shall be
published in the Gazette in English and in Oriya and
such publication shall be evidence that the rule or
regulation or by-law has been made as required by this
section."
It is contended that the mandatory requirements having
not been complied with the imposition of octroi is vitiated
on this account.
The appellant in para 3 of the Writ petition had
alleged that the bye-laws ’were not published in the State
Gazette either in Oriya or in English. This allegation has,
however, been controverted by the State Government in para
]8 of the counter-affidavit. It was specifically averred
that the bye-laws were approved and confirmed by the
Government in Urban Development Department vide. Order No.
1903/Legis-43-67/UD dated nil published in Orissa Gazette
for information of the general public on 23rd May, 1969 at
pages 691 to 697. There is a statutory presumption under s.3
of the Act that the publication of the rules or regulations
or by-laws in the Gazette shall be evidence that the rule or
regulation or bye-law has been made as required by this
section. In view of this statutory presumption the Court
will assume that the bye-law has been made in accordance
with law in the absence of anything more from the side of
the appellant.
As a second limb to this argument it was contended by
the appellant that even assuming that the bye-laws when
initially enforced might be presumed to be in accordance
with law, in the absence of similar steps being taken at the
time of extension of bye-Jaws to the newly added area, the
bye-laws are not enforceable in the new area.
411
This argument has proceeded in utter oblivion of the
provisions of s.5 of the Municipal Act. It reads:
"5. When any local area is included in a
municipality, by a notification under clause (b) or (c)
of sub-section (3) of section 4, all the provisions of
this Act and of any rules, by-laws, notifications, or
orders made thereunder, which immediately before such
inclusion were in force throughout such municipality,
shall be deemed to apply to such area, unless the State
Government, in and by the notification, otherwise
direct."
The learned counsel for the appellant, however, has
placed strong reliance upon Visakhapatnam Municipality v.
Kandrequla Nukaraju & Ors. In that case the question that
fell for consideration was whether the property tax which
could lawfully be levied under the District Municipalities
Act 1929 can be levied after the repeal of that Act, on
property situated in the areas included within the municipal
limits after the constitution of the municipality. Section
391(1) of the Andhra Pradesh Municipalities Act 1965
expressly repealed the. District Municipalities Act, 1920
from which it must follow that ordinarily no action can be
taken under the Act of 1920 after April 1, 1966 when the
repeal became effective on the coming into force of the Act.
It was, however, contended in that case that cl. la of
Schedule 9 of the Act keeps the repealed enactment alive for
tax purposes and, therefore, the municipality had the
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authority to impose the property tax under the Act of 1920
notwithstanding its repeal by the new Act. This Court,
however, took the view that the provisions contained in the
Schedule are of a transitional nature. They were intended to
apply during the period of transition following upon the
repeal of old municipal laws and the introduction of the li
new law. The object of clause 12 of Schedule 9 was to
authorise the levy of taxes which, on the commencement of
the Act, Were levied under the repealed laws. This Court
further added that the municipality might have been levying
property tax since long on properties situated within its
limits, but until April 1, 1966 the villages of
Ramakrishnapuram and Sriharipuram were outside those limits.
Qua the areas newly included within the municipal limits,
the tax was being imposed for the first time and therefore
it was incumbent on the municipality to follow the procedure
prescribed by the first proviso to section 81(2). Residents
and tax payers of those areas never had
412
an opportunity to object to the imposition of the tax and
that valuable opportunity cannot be denied to them. It is
obligatory upon the municipality not only to invite
objections to the proposed tax but also to consider the
objections received by it within the specified period.
For the State, however, reliance was placed in that
case on s.3(4) of the Act to contend that the inclusion of
the two villages within the municipal area attracts of its
own force every provision of the Act with effect from the
dale on which the final notification is published. by the
Government under s.3(3). In support of this contention it
cited the decision of this Court in Atlas Cycle Industrial
Ltd. v. State of Haryana & Anr. This argument on behalf of
the State was, however, repelled and the Court observed :.
"Far from supporting the argument, we consider
that the decision shows how a provision like the one
contained in Section 3(4) cannot have the effect
contended for by the appellant. In the Atlas Cycle
case, section 5(4) of the Punjab Municipality Act, 1911
provided that when any local area was included in the
municipality, "this Act and...all . rules, bye-laws,
orders, directions and powers made, issued or conferred
under this Act and- in force throughout the whole
municipality at the time, shall apply to such areas."."
But this Court took the view that since section 5(4) of
the Punjab Act did not, significantly, refer to
notifications and since section 62(1) of the Punjab Act
spoke of "notification" for the imposition of taxes, it was
not competent to the municipality to levy and collect octroi
from the company on the strength merely of the provision
contained in s. 5(4) of the Punjab Act. That case, however,
is distinguishable and cannot be of much assistance for
solving the problem before us. Section 5 of the orissa
Municipal Act makes all the provisions of the Act and of any
rules, by-laws, notifications, or orders made thereunder,
which immediately before such inclusion were in force
throughout such municipality, applicable to such area,
unless the State Government, in and by the notification,
otherwise direct. . This section, therefore, includes not
only the provisions of the Act, rules and bye-laws but also
includes notifications. This distinguishes the. . present
case from the Visakhapatnam Municipality’s case (supra).
413
For the appellant, next reliance was placed upon
Bagalkot City Municipality v. Bagalkot Cement.(1) In that
case also at the time of the imposition of the octroi duty
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the respondent’s factory was situated outside the municipal
district and was not subject to the octroi duty.
Subsequently, the Government extended the municipal district
so that the factory came to be included within that
district. The appellant in that case contended that upon
such extension its octroi limits also stood extended to
include the factory and the respondent became liable to pay
octroi duty in respect of goods brought into the factory.
The majority view was that the expression "municipal
district" in the bye-law referred to the municipal district
as existing when the bye-law was framed. The context
prevented the definition of "municipal . district" in the
Act, namely, the municipal district as from time to time
existing from being applied under s.20 of the Bombay General
Clauses Act to interpret the bye-law The bye-law had been
made without being published to the respondent, and if it
was so read referring to the municipal district from time to
time existing it would be invalid for non-compliance with
the provisions of s.48 of the Act. This case again is
distinguishable in view of the wording of s.5 of the orissa
Municipal Act: .
Lastly it is urged that the octroi duty levied in this
case by the Municipality is unreasonable and excessive. The
Municipality is required to provide certain amenities not
only for the permanent residents within the municipality,
but also even for casual visitors who may on occasions enter
the limits of the municipality. The entry of large
quantities of goods within the municipality almost daily
from outside necessarily creates innumerable problems such
as provisions of water supply, lighting facilities,
facilities for conservancy, sanitation, maintenance of good
roads and markets etc. which the Jharsuguda Municipality
has done and there is no allegation to the contrary by the
appellant. From the material placed before us we are of the
view that the levy is not an unreasonable one. It is not
also excessive. . The imposition of octroi cannot,
therefore, be challenged on the ground that there is
violation of Art. 19(1)(g) of the Constitution.
Considering the case from any aspect the imposition of
octroi duty, in our opinion, does not suffer from any
infirmity.
414
For the foregoing discussion the appeal cannot succeed.
It is accordingly dismissed. In the circumstances of the
case, however, we allow the parties to bear their own costs.
S.R. Appeal dismissed.
415