DONGARAM VELLOSA POWER Vs. STATE OF MYSORE

JUDGEMENT

(1.) These are two petitions under Art.226 of the Constitution by two merchants carrying on business in Gadag Town. They have challenged the levy of octroi by the 2nd respondent pursuant to a Notification dated 3-2-1971 published in the Mysore Gazette dated 25-2-1971 under S. 97 of the Mysore Municipalities Act, 1964, hereinafter called the Act. The only ground on which the levy of octroi has been challenged in these writ petitions is that the Octroi Stations have not been specified in the Notification issued preliminary to imposing tax under S.95 and the final Notification issued under S. -97. S. 95 which prescribes the procedure preliminary to imposing tax provides, inter alia, that the Resolution proposing to levy octroi shall specify the Octroi Stations. Though S. 97 specifically does not state that the Octroi Stations shall be specified in the Notification, this Court in Sha Rupchand Hindumal v. State of Mysore (1972) 1 Mys.L.J. 157 has laid down that S. 97 Notification which is the Notification to be looked into for the purposes of levy and collection of octroi shall specify, among others, the Octroi Stations mentioned in the Resolution passed under S.95.

(2.) It is not disputed that the Notification issued under S.95 or under S. 97 does not specify the Octroi Stations. What is contended on behalf of the 2nd respondent in paragraph 6 of its counter-affidavit is that the Octroi Stations were not specified in the Notifications issued under Ss.95 and 97 by inadvertence as the Municipality has been levying octroi all through in the earlier years and that the same Octroi Stations were continued and not altered; and that in the bye-laws of the Municipality in the Notification No. 3422 of 1971-72 dated 24th September 1971 published in the Mysore Gazette dated 9th December 1971, the Octroi stations were clearly specified. It was submitted that the notification under S. 97 was issued prior to the decision of this Court in Sha Rupchand Hindumal's Case (1) and that after the said decision was rendered and the defect was noticed, the second respondent published an addendum in the Mysore Gazette dated 3-2-1972 in which the Octroi Stations mentioned in the bye laws were published. It has been stated in the counter affidavit that the resolution passed by the Municipal Council under S. 95 specified the Octroi Stations and that the only defect was that the S. 95 notification did not publish the same. However the said Octroi Stations were specified in the byelaws published in the Mysore Gazette dated 9th December 1971.

(3.) The facts in Sha Rupchand Hindumal's case (1) are distinguishable from the facts of the instant case. In the former case, there were no byelaws published specifying the Octroi Stations and they were not specified in the notification issued under S. 97 also. In the instant case, as the Octroi Stations have been specified in the bye-laws, the notification under S. 97 cannot be said to be defective if the same Octroi Stations were not specified therein. The defect, if any, is purely too technical in nature and does not call for interference under Art. 226 of the Constitution. Therefore, this is not a case of levy of octroi without the authority of law. In that view, the petitioners are not entitled to any relief under Art. 226 of the Constitution. Accordingly, these writ petitions are dismissed, but without costs.