TOWN MUNICIPAL COUNCIL LAKSHMESWAR Vs. SIDDALINGAPPA

JUDGEMENT

(1.) These two appeals by the Town Municipal Council, Laxmeshwar, are against the concurrent findings of the courts below in two separate original suits filed in the court of the Munsiff at Laxmeshwar. These two appeals are disposed of by the following common order, as the questions of law raised are substantially the same and the facts of the case are similar. The parties to these appeals in the course of this order will be referred to by the rank and position assigned to them in the trial court.

(2.) The facts leading to these appeals are briefly summarised as follows: The defendant Town Municipal Council proposed to levy octori in the town limits of Laxmeshwar under the Karnataka Municipalities Act, 1964 (hereinafter referred to as 'the Act). Accordingly by a resolution passed by the Town Municipal council dated 9-5-70 it proposed to levy octroi under the Act. The proposal was sent to the State Government through the Divisional Commissioner for the necessary sanction. The Divisional Commissioner sent it back proposing certain amendments. The Town Municipal Council accepted the amendments and sent back the proposal for levy of octroi for approval and sanction of the Govt. The State Government by its order No. HMA 142 TBR 74 dated 23-12-1974 accorded sanction to the proposal of the Town Municipal Council. Thereafter the Chief Officer of the defendant-Town Municipal Council got a notification published in the Karnataka Gazette together with the Government order, in its issue dated 16th January, 1975. The notification indicated that octroi would be levied with effect from 1-4-75 under the Act. It is necessary to state that till then the levy of octroi was under the provisions of the repealed Bombay District Municipal Boroughs Act,

(3.) The plaintiffs who were traders filed O. S. No. 36 and 37 of 1975, in the court of the Munsiff at Laxmeshwar seeking a mere injunction against the Municipality restraining them from collecting the octroi proposed under the aforementioned notification dated 16th January, 1975. It was the plaintiff's case in O. S. No. 36/1975 that the Municipality had not prepared the required Bye-laws and Rules for the levy and collection of octroi and therefore without such preparation of Bye-laws duly approved and sanctioned by the Government, they could not levy and collect octroi in the Town. Hence, an injunction was prayed for restraining the defendant-Town Municipal Council from collecting the levy of octroi. The defendant entered appearance in that suit and resisted the same on the ground that the Municipality had prepared the draft Bye-laws and Rules and forwarded the same to the Government for its approval, that the Municipality had the right to send such proposal along with the draft Bye-laws to be published in the official gazette dated 17-9-70 for information of general public and no objections had been received from any body and the same was sanctioned by the Government on 23-12-74 and the same was published on 16-1-1975. The defendant Town Municipal Council took the stand that the suit was not maintainable in as much as the plaintiff had not availed himself of the remedies available under the provisions of the Act itself. The suit having been filed for mere injunction it was not maintainable.