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TMI Blog1995 (3) TMI 482X X X X Extracts X X X X X X X X Extracts X X X X ..... ged the legality, of the collection of the octroi made as per 1963 Schedule to the Octroi Rules framed by the appellant This was done by approaching the Bombay High Court by filing petitions under Article 226 of the Constitution which have come to be allowed by the impugned judgment. Hence these appeals by the Municipal Corporation for the City of Pune, hereinafter referred as the Municipal Corporation. 2.The challenge to the collection was broadly on two counts: (1)The 1881 Notification does not infact permit the collection; and (2)even if factually the Notification were to so permit, the appellant could not have done so in law.. 3.The High Court accepted both the contentions, the correctness of which has been assailed in these appeals. Factual matrix 4. Poona Cantonment (the Cantonment) came into existence in 1817. The Bombay Municipal Act, 1872, provided for levy of taxes including octroi. Similar was the provision in Bombay District Municipal Act, 1873. Poona City Municipality started levy and recovery of octroi from 1875-76. The Cantonments Act, 1880 was enacted on 5th February, 1980. Section 21 of this Act permitted imposition by the Local Government, with the previo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powers conferred by section 15(2) of the aforesaid Act and applied to the Cantonment of Poona in an adapted form the rules of the Poona City Municipality mentioned in Notification relating to assessment collection and recovery of octroi duties. 8. After the aforesaid Notifications had bean issued Cantonment Act. 1924 was enacted. Chapter V of this Act is on the subject of 'Taxation'; and sections 60 to 63 of this Chapter set out the power and procedure of imposition, of any tax in any cantonment. (A part of this Act was repealed in 1927). 9. In 1963 new Octroi Ruts were tamed by the appellant which enhanced the rates of octroi and included new articles in the schedule and it started collecting octroi accordingly from all concerned. Submissions 10. In the backdrop of aforesaid broad facts, the respondents challenged the collection of octroi by the appellant as per revised Rules of 1963 contending that nei- ther in fact nor in law the appellant had 'authority of law' required by Article 265 of the Constitution to carry on the work of collection of octroi from them as per 1963 schedule which enhanced the rates of octroi and included new articles in the sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submission, reliance has been placed on a judgment of this Court, to which one of us (Kuldip Singh, J.) was it pang, in Jivendra Nath Kaul v. Collector/District Magistrate and another, 1992 (3) SCC 576. In that case, this Court was concerned to find out the purport of this expression used in section 28(1) of the concerned provisions, which dealt with the question as to when a motion of no confidence can be said to be carried out. The section required support of more than half of the total number of members for the time being. The contention advanced was that as the Zila Parishad was constituted of 62 members, but as 31 valid votes had been cast in favour of the no-confidence motion, which number was not was not more than half of 62, the motion could not be said to have been carried out as required by the statutory provision. This Court stated that die expression for the time being meant at the moment or existing position ; and as at the time no- confidence motion was taken up, the total number of members of the Zila Parishad was 56, it was held that the requirement of law was satisfied. 16. Learned Advocate General of Maharastra appearing for the appellant, however, conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all concerned persons had accepted the aforesaid Notification to mean that the rates (so also the articles) need not be those which prevailed when the Notification was issued. 19. In view of all the above, we hold that the 1881 Notification was meant to impose octroi duties, not only at the rates prevailing when the Notification was issued, nor was confined to the articles on which octroi was lien leviable, but these could be collected at rates higher than those prevailing at the time of issuance of the Notification, or could be levied on articles then not subject to octroi. Supersession of 1881 Notification 20. The submission relating to supersession is advanced on the strength of what was stated in Notifications Nos. 4160- 4163 dated 17th June, 1918. Shri Divan was very emphatic that if these four notifications are read as a whole, as they are required to be, there would be no manner of doubt that the 1881 Notification relating to octroi stood superseded. This contention is equally emphatically challenged by the learned Advocate General. 21. We have closely perused the aforesaid Notification and we do agree with Shri Divan that they form a complete scheme in themselv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is context is that, in any case, Notification No. 4162 has to be read to have impliedly repeated 1881 Notification re- lating to octroi duties. We find no difficulty in accepting this submission, because Notification 14a 4162 which is on the subject of imposition of octroi duties has been supplemented by Notification No. 4163 dealing with assessment collection and recovery, of octroi duties. This aspect has been dealt with by section 15(2) of the Cantonments Act, 1910; the imposition being covered by sub- section (1) of this section. As these Notifications were issued with the previous sanction of the Governor-General in Council, we have no hesitation in stating that by issuing Notifications No.4162 and 4163, the issuing authority did impliedly repeal Notification of 1881 dealing with octroi. 25. The learned Advocate General does not really contest the legal position, What, however, has been urged by him that the Notification No. of 1918 dealing with the imposition of octroi and rates thereof had not been acted upon and a decision had in act been taken to formally cancel these Notifications, which, however, did not actually happen. Despite non-cancellation of these Notifications ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notifications No.4162 and 4163 could have been reminded was by issuance of another Notification in the like manner and subject to like sanction prevailing as when those were issued. It would also be hazardous to allow an executive authority to obliterate a statutory Notification. We would take this view, more so, being concerned with a subject which fell, not within the domain of the Provincial Government, but the Central Government, as did the subject of cantonment. 28. What has been stated relating to executive construction or practical construction in Crawford's 'Interpretation of Laws at pages 393 to 401, watch has been relied on by the learned Advocate General, would not persuade us to agree with him in this submission, though it may be permissible to take note of post-enactment history to find out as to how an enactment was understood on the principle of contemporanea expositio , of which mention have been made at pages 551 et. seq. of Francis Bennions' Statutory Interpretation (1984). The learned Advocate General is not relying on the statements made in the aforesaid Government Order for the purpose of interpreting the two Notifications, but for conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notifications having not been acted upon must be taken to have become a dead letter because of its long disuse and the same stood repealed because of the legal process known as desuetude. He draws our attention to what has been stated in this regard in Francis Bennion's 'Statutory Interpretation' where this matter has been dealt at pages 441 and 442 of 1984 Edition. It is stated there that desuetude is a legal process by which, through disobedience and lack of enforcement over a long period, a statute may loose its force without express or implied repeal. This doctrine has not however, been accepted in United Kingdom for the reason that otherwise an inquiry would be needed before the subject could know whether or not an enactment would bind him. Under Scots Law, however, this doctrine has been applied. As to the English Law the further commentary is that though this doctrine has no application, an Act may in practice be 'dead letter', which would be so if the Act falls into disuse or is not applied as intended. In this connection Bacon's dictum: ' .............let penal laws, if they had been sleepers for long be confined in the execution' is quoted. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondon Council, 1971 Ch.655 at page 668, which reads:- It is a fundamental principle of our con- stitution, enshrined in the Bill of Rights, that no one, not even the Crown itself, has 'the power of dispensing with laws or the execution of laws'. But this is subject to some qualification. When a law has become a dead letters the police need not prosecute, nor need the Magistrate punish. They can give an absolute discharge 33. Diamond has thereafter referred to the Scottish approach to desuetude at pages 122 and 123 and has noted some decisions wherein an Act of Scottish Parliament was not enforced because of desuetude. It would be of interest to note that when an argument was advanced that the particular Act (which was of 1606) had been left unrepealed by the Statute Law (Repeals) Act, 1906, and must, therefore, be regarded as still in force, the reply given by one of the law Lords was that it was for the Court and not for the Statute Law Revision (sic Repeal) Act to determine whether Act of 1606 was or was not in desuetude. 34. Though in India the doctrine of desuetude does not appear to have been used so far to hold that any statute has stood repealed beca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view taken by us relating to quasi-repeal of Notification Nos. 4162 and 4163 inas- much as the field of operation of Notification No.4160 is different from that of later Notifications, as already noted. Legal objections 37. Being satisfied that 1881 Notifications held the field even by 1963, the legal objections relating to its applications may ,now be dealt with. These objections, as already noted, are (1) lack of agreement as required by law, (2) impermissible delegation; and (3) non-compliance with the procedure mentioned in section 62 of the Cantonments Act, 1924. 38. We shall deal with these objections as well seriatim Lack of agreement as required by law 39. That such sawn agreement is required is not disputed by the learned Advocate General. His stand is that such an agreement had in fact been entered into between the Poona Cantonment Board and Poona City Municipality in 1881 and the same was being renewed from time to time, as would appear from the resolutions of the Cantonment Board, copies of which have been printed in Appeal Paper Book (ii) at pages 245-428. As we have held that the 1881 Notification held the field by 1963, the fact that no agreement was ente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case. The non-inviting of objection has therefore introduced no legal infirmity). 43.In support of his submission, Shri Shanti Bhushan has further referred to Bagalkot State Municipality v. Bagalkot Cement Company, (1963 (Supp.) (1) SCR 710 wherein the stand of the municipality that octroi duty had become automatically realisable from that area which had come to be included within the municipal limits following the enlargement of Be limit, was held to be not sustainable. What had been stated in that case has no application, be- cause here the appellant is not trying to realise octroi from the residents of the Poona Cantonment because of enlargement of the limit of Poona Municipality. 44.Shri Shanti Bhushan than places reliance on B. Sharma Rao v. Union Territory of pondicherry, (1967 (2) SCR 650. There, the particular Act of Pondicherry Legislative Assembly was held to be an abdication or effacement by the law making authority inasmuch as it had by the Act in question allowed the amendments to be made in the parallel Madras statute to prevail in Pondicherry without knowing that those amendments would be. Shri Shanti Bhushan contends that same would be the position here if t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India, 1982 (1) SCC 27 1. 48. What was held in Brij Sunder Kapoor v. First Addl. District Judge, 1989 (1) SCC 561 is more relevant for our purpose, because in that case a two-Judge Bench of this Court had upheld the delegation as contained in section 3 of Cantonment (Extention of Rent Control Laws) Act, 1957, by which the Central Government by a notification in official gazette could extend to any cantonment any enactment relating to control of rent which was in force in the State in which the cantonment is situated. The Bench distinguished Shama Rao's case and held that the delegation was valid, including that part of it by which amendments in the concerned State legislation were allowed to become effective in the cantonment area as well. 49. What was stated in Brij Sunders'case about the typical situation of cantonment in para 25 is more important for our purpose. The same is as below:- These cantonments were located in the heart of various cites ha the different States and unlike the position that prevailed in early years, had ceased to be a separate and exclusive colony for army personnel. It was, therefore, but natural for Parliament to decide, as a mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Works Ltd. v. State of Gujarat, 1973 (2) SCC 345. 54. In Amalgamated Coal Field's case the legality of levy of the tax imposed on coal at 9 pies per ton by the Janapada Sabha of Chhindwara was assailed on the ground that die same was in violation of section 51(2) of the concerned Act (noted at page 191 of the Report) which had laid down that the 'first imposition' of any tax shall be the subject to the previous sanction of the Provincial (Government The tax on coal had not, however, been imposed for the first time on the residents of the Janapada Sabha. What the Janpadha had done was that the tax which was earlier being levied by a Mining Board (whose successor the Sabha was) at the rate of 3 pies per ton had been enhanced to 9 piece.The appellant took a stand that though the Janpadha Sabha had on, enhanced be rate of tax, the same could have been done only with the previous sanction of the Provincial Government, as laid down in section 5 1(2), despite the section having required this for 'first imposition'. The Constitution Bench upheld this contention. Mr. Divan, therefore, contends that enhancement of rate of octroi duties by 1963 Rules could have been do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther context, is more relevant in the present context. There, what happened Was that no opportunity to object was given to the persons of the area, which had come to be included in the municipality subsequently, before calling upon the residents to pay tax in question. Though the mu- nicipality in that case lost on some other ground, what had been stated about the need to call for objections is relevant inasmuch as it was stated that even for imposition of tax at new rate objection is required to be invited. This stand was taken according to us, because the proviso to Section 81(2) of the concerned Act (noted at page 548) had stated that before passing a resolution imposing a tax for the first time or increasing the rate of an existing tax the council shall publish a notice in the prescribed manner declaring the requisite intention. It is because of this requirement that the need for calling objections for increased rate as well was held obligatory. 59. This is not all that we propose to say on this important facet of the appeals. We think that if sections 60 to 63 of the 1924 Act are read closely it would appear that for change in the rate of tax already in operation, objection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, and not which has already been levied. Clause (a) makes it clear that the publication required by Section 61 is about the tax which is proposed to be imposed. These provisions would show that the objection which is to be solicited, pursuant to the mandate of section 62, has to be regarding the tax proposed to be imposed and the rate at which it is to be levied. The opening sentence of section 61 mentions about the proposal of the Board to impose a tax ; and so, the imposition of which section 60 speaks of, is of a tax proposed to be imposed by the Board, and not a tax which had already been imposed by the time the Act came to be enforced. 61. We, therefore, do not find any infirmity in the collection of octroi by the appellant at the enhanced rates, mentioned in the schedule of 1963 Rules, without there having been compliance of what was required by section 62 of the: aforesaid Act. Conclusion 62. For the reasons aforesaid, we hold that the 1881 Notification did in fact permit the appellant to collect octroi duties at the rates specified in 1963 Octroi Rules framed by the appellant; and there was no obstacle in law in allowing the appellant to do so. 63. The appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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