Full Judgment Text
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PETITIONER:
THE TOWN MUNICIPAL COMMITTEE, AMRAVATI
Vs.
RESPONDENT:
RAMCHANDRA VASUDEO CHIMOTE AND ANOTHER
DATE OF JUDGMENT:
03/03/1964
BENCH:
AYYANGAR, N. RAJAGOPALA
BENCH:
AYYANGAR, N. RAJAGOPALA
SINHA, BHUVNESHWAR P.(CJ)
WANCHOO, K.N.
GUPTA, K.C. DAS
SHAH, J.C.
CITATION:
1964 AIR 1166 1964 SCR (6) 947
CITATOR INFO :
R 1964 SC1172 (12)
R 1964 SC1903 (32)
D 1978 SC1803 (9)
RF 1990 SC1927 (42)
E&F 1991 SC 274 (2,3)
RF 1991 SC1676 (59)
ACT:
Terminal Tax-Imposition of terminal tax by Municipality on
silver and silver jewellery, gold and gold jewellery and
precious stones in 1960-These taxes not levied before by
Municipality-Whether saved by Art. 277 of the Constitution-
"Continue to be levied and to be applied to the same
purposes"-Meaning of-C.P. and Berar Municipalities Act,
1922, s. 55-Government of India Act, 1935, s. 143(2)-
Constitution of India, Art. 277.
948
HEADNOTE:
A terminal tax on goods imported by road or rail was
imposed by the Amravati Municipality by virtue of a
notification dated August 10, 1916. This notification
exempted silver, bullion and coins from the operation of
this tax. When terminal taxes on goods imported by rail
were assigned exclusively to the Federal Centre under the
Government of India Act, 1935, the municipality was
authorised by s. 143 to continue to levy the terminal taxes
which were actually levied before the enforcement of the
Act. Likewise, the terminal taxes imposed by the pre-
Constitution notification were allowed to be levied and
collected even after the Constitution came into force by
virtue of Art. 277 of the Constitution. In 1960, the
Municipality levied terminal taxes on three new items, viz.,
silver and silver jewellery, gold and gold jewellery and
precious stones.
In a writ petition filed under Art. 226 of the Constitution,
the validity of the newly imposed terminal tax was
challenged by the respondent who was carrying on business,
within the limits of the Municipality, in gold, silver and
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precious stones on the ground of legislative incompetence.
The writ petition was granted by the High Court and the
appellant came to this court after obtaining a certificate
of fitness from the High Court.
Dismissing the appeal:
Held: The newly imposed terminal taxes on silver and
silver jewellery, gold and gold jewellery and precious
stones had never been imposed by the Municipality and hence
it could not be said that those were "being lawfully levied"
by the Municipality and "applied to the same purposes"
before the commencement of the Constitution as required by
Art. 277 of the Constitution. Art. 277 was not intended to
confer an unlimited legislative power to impose what in
effect were new taxes, though of the same type or nature as
existed before the Constitution.
Rama Krishna Ramanath v. The Janpad Sabha, Gondia, [1962]
Supp. 3 S.C.R. 70 and Chuttilal v. Bagmal and Balwantrai,
I.L.R. [1956] M.B. 339. referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 598 of 1962.
Appeal from the judgment and order dated March 18, 1961 of
the Maharashtra High Court (Nagpur Bench) at Nagpur in
Special Civil Application No. 30 of 1960.
WITH
Civil Appeals Nos. 695 and 700 of 1962.
Appeals from the judgment and orders dated October 12, 1961
and March 18, 1961 of the Madhya Pradesh High Court in Misc.
Petitions Nos. 122 of 1961 and 319 of 1960 respectively.
949
M. C. Setalvad and S. Shaukat Hussain, for the appellant
(in C.A. No. 598/62).
W. S. Barlingay and A. G. Ratnaparkhi, for respondent No.
1 (in C.A. No. 598 of 1962).
S. G. Patwardhan, Udai Pratap Singh and M. S. Gupta, for
the appellant (in C.A. No. 695/62).
A. N. Goyal, for respondent No. 1 (in C.A. No. 695/ 62).
1. N. Shroff, for respondent No. 2 (in C.A. No. 695/62).
M.C. Setalvad and M. S. Gupta, for the appellant (in C.A.
No. 700/62).
G. S. Pathak, J. B. Dadachanji, O. C. Mathur and Ravinder
Narain, for the respondents Nos. 1 to 4 and 6 to 9 (in C.A.
No. 700/62).
1. N. Shroff, for respondent No. 10 (in C.A. No. 700/62).
March 3, 1964. The Judgment of the Court was delivered by
AYYANGAR, J.-These three appeals which are on certificates
of fitness granted by the High Courts-the first by the High
Court of Bombay at Nagpur and the two others by the High
Court of Madhya Pradesh-raise a common question as regards
the construction of Art. 277 of the Constitution and the
validity of certain terminal taxes imposed by the respective
appellant-municipal authorities under notifications issued
under Ch. IX of the C.P. & Berar Municipalities Act, 1922,
subsequent to the coming into force of the Constitution, and
so have been heard together.
Civil Appeal 598 of 1962 is an appeal from the High Court of
Bombay at Nagpur and has been filed by the Municipal
Committee of Amravati against a decision of the High Court
allowing the 1st respondent’s petition under Arts. 226 and
227 of the Constitution. The Municipal Committee of
Amravati has been established under the
950
C.P. & Berar Municipalities Act, 1922 (C.P. & Berar Act II
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of 1922) hereinafter referred to as the Act. Chapter IX of
the Act deals with the imposition, assessment and collection
of taxes which might be imposed by the Municipal Committee.
Section 66 specifies the taxes which, subject to the
provisions of the Chapter, the Committee may from time to
time impose. Its first sub-section specifies in its several
clauses 15 varieties of taxes and among them is cl. (o)
which reads:
"The terminal tax on goods or animals imported
into or exported from the limits of the
municipality provided that terminal tax under
this clause and an octroi under cl. (e) shall
not be in force in any municipality at the
same time-,’
The other sub-clauses which are relevant for the considera-
tion of the question arising in the appeal are sub-cls.
(2),(3) and (4) of s. 66 and they read :
(2) The State Government may, by rules made
under this Act, regulate the imposition of
taxes under this section, and impose maximum
amounts of rates for any tax.
(3) The first imposition of any tax
specified in subsection (1) shall be subject
to the previous sanction of the State
Government.
(4) Subject to the control of the State
Government, a committee may abolish any tax
already imposed and specified in sub-section
(1) clauses (a) to (in) inclusive, or may,
within the limits imposed under sub-section
(2), vary the amount or rate of any such tax :
Provided that in the case of any municipality
indebted to the Government, the abolition of
any tax or a reduction in the amount or rate
thereof shall be subject to the previous
sanction of the State Government."
951
Section 67 lays down the procedure for the imposition of
taxes and it provides :
"67. (1) A committee may, at a special
meeting, pass a resolution to propose the
imposition of any tax under section 66.
(2) When such a resolution has been passed,
the committee shall publish, in accordance
with rules made under this Act, a notice
defining the class of persons or description
of property proposed to be taxed, the amount
or rate of the tax to be imposed and the
system of assessment to be adopted.
(3)
(4)
(5) The State Government, on receiving such
proposals, may sanction or refuse to sanction
the same, or sanction them subject to such
modifications as it may think fit, or return
them to the committee for further
consideration.
(6) No modification affecting the substance
shall be made under sub-section (5), unless
and until the modification has been accepted
by the committee at a special meeting.
(7)
(8) A notification of the imposition of a
tax under this section shall be conclusive
evidence that the tax has been imposed in
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accordance with the provisions of this Act."
The procedure for the variation of the taxes
is to be found in s. 68 and it reads
"68. (1) A committee may, at a special
meeting, pass a resolution to propose the
abolition of any tax already imposed, or a
variation in the amount or rate thereof.
(2)
952
(3) If the proposal is to increase the
amount or rate of any tax, the committee shall
publish, in the manner prescribed by rules
made under this Act, a notice showing in
detail the effects of the proposal.
(4) Any inhabitant of the municipality
objecting to the proposed increase may, within
thirty days from the publication of the
notice, submit his objection in writing to the
committee.
(5) The committee shall take the proposal
and all objections received thereto )into
consideration at a special meeting, and may
modify the proposals as it may think fit, and
may pass a final resolution on the proposal.
(6) If the proposal requires the previous
sanction of the State Government under the
provisions of section 66, sub-section (4) or
sub-section (5), the committee shall forward
it to the State Government and it shall be
dealt with in the manner provided in section
67, sub-sections (4), (5) and (6).
(7)....................
(8)....................
(9) The publication in the manner prescribed
of the abolition or variation of any tax under
this section shall be conclusive proof that
such abolition or variation has been made in
accordance with the provisions of this Act."
From even before the constitution of the municipality under
the Act and at a time when the municipal committee was
governed by the Berar Municipal Law of 1886 which was in
force prior to the Act and whose taxation provisions were
continued by the Act of 1922, a terminal tax on goods
imported by road or rail had been imposed by the Munici-
pality by virtue of a notification dated August 10, 1916 on
several specified kinds of goods. This notification
exempted silver, bullion and coin from the operation of this
tax. This was superseded by a notification of June 2, 1921
under which the Schedules were modified and the terminal tax
953
imposed was confined to goods imported into or exported out
of the Municipal area by rail. The notification of June
1921 was amended from time to time by other items being
added and the rates being increased but no change was
effected in the taxes imposed after 1936. Under the scheme
of the distribution of taxing powers between the provinces
and the Central Government under the Government of India
Act, 1935 terminal taxes on goods carried by rail were
assigned exclusively to the Federal Centre under item 58 of
List I to Sch. VII, but the validity of the levy and
collection of the terminal tax in force, before the 1st
April, 1937 was continued by s. 143 of the Government of
India Act, 1935 and it was by virtue of this continuance
that these taxes were continued to be levied after April 1,
1937 Their continuance after January 26, 1950 when after the
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repeal of the Government of India Act, 1935, the Consti-
tution came into force with the same scheme of distribution
of taxing power on the relevant item identical with that
under the Government of India Act, was by reason of Art. 277
which was practically in the same terms as s. 143 of the
Government of India Act, 1935. The taxes imposed by the
pre-Constitution notification could, therefore, be legally
levied and collected even after the Constitution came into
force.
Subsequent to January 26, 1950 there was a notification on
December 1, 1959, under which to the list of goods liable to
terminal tax imported into or exported out of the Municipal
area, not merely by rail, but also by road were added three
new items-silver and silver jewellery, gold and gold
jewellery, and precious stones, and these three specified
items were subjected to the tax at the same rates as had
been imposed on other articles by the notifications which
were in force from before the Constitution. Before the
notification was issued the procedure indicated by s. 67 was
gone through and the Government accorded their sanction to
the rules made by the Municipal Committee for the imposition
of the tax on the newly added articles. The validity of the
tax imposed by this notification was challenged by the 1st
respondent who was carrying on business within Amravati
municipality in gold, silver and precious stones,
954
on the ground of legislative incompetency which had not
been saved by Article 277 of the Constitution, in a petition
under Article 226. The learned Judges of the High Court by
a majority accepted the contention raised by the respondent
and allowed the petition but granted a certificate of
fitness and hence this appeal. The facts of the other two
appeals are nearly similar but we shall refer to them after
dealing with the, common question which arises in these
appeals.
It is common ground that the right to levy a terminal tax is
now vested in the Union Parliament under Entry 89 of the
Union List which reads :
"Terminal taxes on goods or passengers carried
by railway, sea or air; taxes on railway fares
and freights",
so that if the levy by the appellant of the terminal tax on
the newly added items, and the same principle would apply to
an increase in the rate of the duty, had to rest on the
independent taxing power of the State, the same would have
to be struck down for want of legislative competence.
Besides it is necessary to add that whereas under the
notifications in force prior to 1st April 1937-when Part III
of the Government of India Act was brought into force,
articles imported into or exported out of the municipal area
by road were not subject to the tax, and that state of
affairs continued till long after the Constitution came into
force, a terminal tax was imposed by the impugned
notification of December 1959 on goods imported or exported
by road- a tax which it was not open to the State to impose
even with the aid of Art. 277. But ignoring this feature of
the impugned notification, insofar as it brought in goods
carried by road within the scope of the terminal tax, it is
admitted that the validity of the imposition cannot be
justified if it was a fresh imposition. What is, however,
urged in support of the validity of the imposition is that
the same is saved by Art. 277 which runs:
"277. Any taxes, duties, cesses or fees
which, immediately before the commencement of
this Constitution, were being lawfully levied
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by the
955
Government of any State or by any municipality
or other local authority or body for the
purposes of the State, municipality, district
or other local area may, notwithstanding that
those taxes, duties, cesses or fees are
mentioned in the Union List. continue to be
levied and to be applied to the same purposes
until provision to the contrary is made by
Parliament by law."
If learned Counsel for the appellant is right in his
contention ’that the impugned tax which he is now seeking to
sustain, ’was the tax which "was being lawfully levied" by
the municipality before the commencement of the Constitution
he would certainly be well-founded in the submission that
the fact that the terminal taxes are under the distribution
,of taxing powers under the Constitution assigned to the
Union would make no difference for the valid continuance of
the levy. The question, therefore, is whether this was -the
tax which was being levied by the municipal authority before
the Constitution and for whose continuance the Article
provides.
The first submission of Mr. Setalvad for the appellants was
that this condition would be satisfied whenever a ,terminal
tax (without reference either to the article on which it was
levied or the rate) was being lawfully levied by the
municipality prior to the commencement of the ,Constitution
and as in this case admittedly a terminal tax was being
levied on certain articles that condition was satisfied.
His argument was that the words ’tax or duty’ in the opening
part of Art. 277 should be read as meaning a tax or duty
under a specified legislative Entry, and if such a tax or
duty was being levied before the commencement ,of the
Constitution other duties of the same type or falling within
the same category might be imposed after the Constitution
notwithstanding that such duties or taxes were mentioned in
the Union List by reason of the words "shall continue to be
levied". Secondly, he said that the word ’levy’ meant not
merely the ascertainment, i.e., assessment and collection of
the tax but included its imposition, i.e., also the charging
and if that expression were understood in that wide sense it
would comprehend a case where other
956
items than those originally specified were brought into the
fold of the taxing provision. The learned Attorney-General
who appeared for the State and supported Mr. Setalvad,
however, went a step further and submitted that it was not
even necessary that a terminal tax should be actually
imposed and was being collected prior to the Constitution,
but that it was sufficient if the State enactment had vested
in the municipality a power to levy such a tax. The argu-
ment of the learned Attorney-General has to be rejected as
lacking any substance, for on no construction, wide or
narrow, of the expression ’levy’ in the phrase ’continue top
be levied’ can such a case be comprehended. From the mere
fact that a State enactment has authorised a municipality to
levy a tax it cannot be said that a tax which had never been
imposed was "being lawfully levied" by the municipality, not
to speak of the tax etc. collected being "applied to the
same purposes" before the commencement of the Constitution
as contemplated by the concluding portion of the Article.
Coming next to what one might term the narrower submission
of Mr. Setalvad we do not find it possible to agree with it
either. His first submission may be expanded thus : The
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expression "taxes, duties, cesses" with which Art. 277
opens, has to be read in the context of Part XII in which
the Article occurs and so read has to be understood as
referring to the class or category of taxes which were
levied and collected by the State, municipality etc. before
the commencement of the Constitution. In other words, the
reference here is to the entries in the legislative lists
which permit such taxes to be levied, and so read and taken
in conjunction with the circumstance that the Article is one
designed to prevent the dislocation of the finances of the
State or other local authorities, the terms of the Article
would be satisfied and the legislative power to continue to
levy the tax would be conferred "notwithstanding that the
tax, etc. are mentioned in the Union List". This argument,
in our opinion, proceeds on ignoring the terms of Art. 277.
If, as is admitted, the sole object sought to be achieved by
this provision for "continuance" is to avoid dislocation of
the finances of the State and local authorities,
957
by depriving them of the revenues which they were deriving
at the commencement of the Constitution, it would mean -that
the intention was to permit the existing range of taxes to
be continued, not that the Article conferred on them
authority to expand the range of their taxation by
subjecting new items to taxation or by increasing the rates
of duty. This consideration apart, it is not possible to
read the words "notwithstanding that the taxes etc. are
mentioned in the Union List" as conferring an unlimited
legislative power to impose what in effect the argument
involves new taxes, though of the same type or nature as
existed before the Constitution. The question of the proper
construction of s. 143(2) of the Government of India Act,
1935 which is for all practical purposes identical with Art.
277 came up for consideration before this Court in Rama
Krishna Ramanath v. The janpad Sabha, Gondia(1). There it
was submitted on behalf of the respondent-local authority
that by virtue of s. 143 (2) of the Government of India Act
the Provincial Legislature was vested with a plenary power
to legislate in respect of every tax which was being
lawfully levied by local authorities prior to the
commencement of the Government of India Act. This Court
rejected that contention and observed
"Section 143 (2) which is a saving clause and
obviously designed to prevent a dislocation of
the finances of Local Governments and of local
authorities by reason of the coming into force
of the provisions of the Government of India
Act distributing heads of taxation on lines
different from those which prevailed before
that date, cannot be construed as one
conferring a plenary power to legislate on
those topics till such time as the Central
Legislature intervened. Such a construction
would necessarily involve a power in the
Provincial Legislature to enhance the rates of
taxation-a result we must say from which Mr.
Sanyal did not shrink, but having regard to
the language of the section
(1) [1962] Supp. 3 S.C.R. 70.
958
providing for a mere continuity and its
manifest purpose this construction must be
rejected."
No doubt, even the words "continue to be levied and to be
applied to the same purposes" might import and imply a
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limited legislative power in the State. The scope of this
limited power was also examined by this Court in the same
case and it was stated :
"In the context the relevant words of the sub-
section could only mean ’may continue to be
levied if so desired by the Provincial
Legislature’ which is indicated by or is
implicit in the use of the expression ’may’ in
the clause ’may be continued until provision
to the contrary is made by the Federal
Legislature.’ This would therefore posit a
limited legislative power in the Province to
indicate or express a desire to continue or
not to continue the levy. If in the exercise
of this limited power the Province desires to
discontinue the tax and effects a repeal of
the relevant statute the repeal would be
effective. Of course, in the absence of
legislation indicating a desire to discontinue
the tax, the effect of the provision of the
Constitution would be to enable the continu-
ance of the power to levy the tax but this
does not alter the fact that the provision by
its implication confers a limited legislative
power to desire or not to desire the
continuance of the levy subject to the
overriding power of the Central Legislature to
put an end to its continuance and it is on the
basis of the existence of this limited
legislative power that the right of the
Provincial Legislature to repeal the taxation
provision under the Act of 1920 could be
rested. Suppose for instance, a Provincial
Legislature desires the continuance of the tax
but considers the rate too high and wishes it
to be reduced and passes an enactment for that
purpose, it cannot be that the legislation is
incompetent and that the State Government
959
must permit the local authority to levy tax at
the same rate as prevailed on April 1, 1937 if
the latter desired the continuance of the tax.
If such a legislation were enacted to achieve
a reduction of the rate of the duty, its
legislative competence must obviously be
traceable to the power contained in words ’may
continue to be levied’ in s. 143 (2) of the
Government of India Act."
Dealing next with the import of the words ’may continue to
be levied’ the same was summarised in these terms : (1) The
tax must be one which was lawfully levied by a local
authority for the purpose of a local area, (2) the identity
of the body that collects the tax, the area for whose
benefit the tax is to be utilised ’and the purposes for
which the utilization is to take place continue to be the
same, and (3) the rate of the tax is not enhanced nor its
incidence in any manner altered, so that it continues to
be the same tax. It is obvious that if these tests were
applied the submission on behalf of the appellant cannot be
accepted.
But authority apart, we cannot, even if this decision were
put aside, accede to the construction for which Mr. Setalvad
contends. It is not disputed that in ultimate analysis the
answer to the question raised should turn on the meaning of
the word ’levied’ in the phrase ’continue to be levied’
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which is the operative word conferring a power. Mr.
Setalvad submits that ’levied’ is a word of wide and varying
import and includes in its denotation not merely the actual
collection of the tax, but the imposition in the sense of
the creation of the charge by the statute, as well as the
ascertainment of the amount due from the tax payer. Mr.
Setalvad is right, for before a tax can be collected from
any tax payer, its quantum must be ascertained and assessed,
and for this to be lawfully done there must be legislative
sanction-in other words an imposition of the charge -because
it is the charge under the Statute that is quantified’ by
the authorities acting under the taxing enactment. The
acceptance of this construction however does not lead to the
result desired, for what can "continue to be levied" is what
"was being lawfully levied" in the same sense of the,
960
word "levied", prior to the Constitution. Admittedly, there
was no imposition of the charge now sought to be recovered
prior to the Constitution, i.e., the Act did not impose the
charge by s. 66 but merely enabled the Municipal Committee
by appropriate procedure to impose the tax. If, of course,
this power had been availed of and a charge had been imposed
it would be a different matter. So long as the Municipal
Committee did not pass the necessary resolutions and impose
the tax there was no charge levied on the commodity, so that
it could not be said that the tax "was being lawfully
levied" before the commencement of the Constitution. The
words "was being lawfully levied’ obviously mean "was
actually levied" and it would not be sufficient to satisfy
those words that the Municipal authority could lawfully levy
the tax, but had not availed itself of that power.
There is another circumstance to which also reference may be
made. The last portion of Art. 277 uses the words "continue
to be levied" and "to be applied to the same "purposes". By
reason of this collocation between the concept of the levy
and of application of the proceeds of the tax-, the
Constitution makers obviously intended the word ’levy’ to be
understood as including the collection of the ,tax, for it
is only when a tax is collected that any question of its
application to a particular purpose would arise. It is
apparent that if the word "levied" were understood in the
sense which Mr. Setalvad contends, there could be no
"application" of the proceeds of the tax to the same pur-
poses as at the commencement of the Constitution. For ex
concessis at that date there were no proceeds to be applied.
In this connection learned Counsel for the respondent
referred us to the decision in Chuttilal v. Bagmal and
Balwantrai(1) where the relationship between the levy and
the application of the tax has been referred to as an aid to
the construction of the expression "continue to be levied"
in Art. 277. We find ourselves in agreement with the views
there expressed.
The decision of the High Court is, therefore, correct and
"the appeal fails.
(1) I.L.R. [1956] Madhya Bharat 339.
961
CIVIL APPEAL No. 695 OF 1962.
In this appeal a notification was issued under sub-ss. (5)
and (7) of s. 67 of the C.P. & Berar Municipalities Act,
1922, on December 9, 1960 imposing a terminal tax on gun-
powder imported into or exported out of the municipal area
by rail. It is admitted that previous to the Constitution
there was no tax imposed on gun-powder. The position in
this case is, therefore, identical with that in Civil Appeal
No. 598 of 1962 which we have just disposed of and it
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follows that this appeal also fails and should be dismissed.
CIVIL APPEAL No. 700 OF 1962.
In Civil Appeal 700 of 1962 the original notification
imposing terminal taxes in respect of goods coming into or
going out of the municipal area by rail was one dated March
17, 1926 which was operative from April 1, 1926. This was
amended by a notification under s. 67 (5) of the C.P. Berar
Municipal Act, 1922 dated September 23, 1960 by which new
articles were included to the list of items imported into or
exported from the municipal area by rail subject to the
terminal tax and besides the rate of tax on the previously
existing items was also increased. It was this inclusion of
new articles for the levy of terminal tax by the
notification of 1960 and the increase in the rate of duty on
articles, already subjected to tax, that was impugned in the
writ petition filed by the respondent before the High Court.
On our reasoning on the basis of which we have dismissed
Civil Appeal 598 of 1962 it would follow that this appeal
should also fail. We can see no difference between the
inclusion of new items and the increase in the rate of duty
because if there is an increase it would not be a mere
continuance of the duty which had been lawfully levied which
is the only purpose and function of Art. 277. The judgment
of the High Court allowing the writ petition of the
respondent was therefore correct.
In the result, ;all the three appeals fail and are dismissed
with costs of the contesting respondent or respondents. in
each appeal.
Appeals dismissed.
134-159 S. C.-61
962