MUNICIPALITY OF ANAND Vs. STATE OF BOMBAY

JUDGEMENT

(1.) THE petitioner -- the Municipality of Anand -- being desirous of levying an octroi upon goods imported for consumption within the municipal limits of the town of Anand obtained approval of the Government to the imposition of Octroi and imposed octroi with effect from 1-1-1955. One of the articles upon which it was imposed was milk and the octroi imposed was 4 annas per maund. Some of the milk is milk brought within the municipal limits by societies which supply it to respondent 2 Union, who processes it and subsequently supplies it to the Government of Bombay for being sold in Bombay. Sometime after the imposition it appears that the Milk Commissioner, Bombay as well as respondent 2 Union raised a contention before the Municipality with regard to the milk being property of Government inasmuch as respondent 2 Union was collecting it merely as its agent. The Director of Local Authorities, Northern Division, Ahmedabad, also raised a Question as to whether the Municipality was entitled to levy the octroi upon the combined Weight of the milk and cans and whether it could levy it upon portions of maund of milk. The Municipality seems to have thought that these objections were fair ones and they were thinking of changing the rules for which certain procedure laid down by the Bombay District Municipal Act, 1901 had to be followed. The Director of Local Authorities also appears to have thrown out a suggestion that as there was a Dairy Scheme likely to come into force soon, the Municipality might consider reducing the duty which it was levying, inasmuch as when the Scheme came into force the Municipality, would obtain sufficient income even with a reduced octroi on milk. In this state of affairs the Government of Bombay passed an order under Section 59, Bombay District Municipal Act prohibiting the Municipality of Anand from levying octroi upon miik brought into the municipal limits of Anand for consumption therein. The legality of this order is the subject matter of this petition.

(2.) NOW the contention that such an order could not be passed under the opening words of Section 59, Bombay District Municipal Act, inasmuch as it is the imposition which has got to be subject to the general or special orders of Government and that once a tax has been imposed with the sanction of the Government there can be no question of the Government passing a special order which can only effect subsequent levy and not the imposition of the tax, which has already been made is concluded by the decision of this Court in -- 'vijapur Municipality v. State of Bombay', AIR 1954 Bom 278 (A ).

(3.) THE second ground of attack is levelled against the section itself; and it is contended that so far as Section 59 allows a social order to be passed, to which the power of the Municipality to impose an octroi duty or any other duty or any other tax will have to be subject, the section is ultra vires of Article 14 of the Constitution. It is contended that it would be permissible under these provisions for the Provincial Government to pass an order which will prevent a particular Municipality from levying any of the taxes which have been mentioned, in Section 59. Even if the Provincial Government permits a particular tax to be levied, if the tax is to be levied on goods, it can direct that the tax shall not be levied by a particular Municipality upon a particular article, like milk in the present case. It may also direct that a particular tax or a particular tax upon a particular article shall not be levied within a particular geographical area, which may include part of a city or part of an area within the Municipal limits. Finally, Mr. Purshottam who appears on behalf of the petitioner says that Government may under the powers conferred under this section also pass an order directing that a person or a body like respondent 2 Union, shall not be liable to pay any tax upon milk which it imports within the municipal limits of a town for consumption therein. The section, therefore, by the words "special order" confers discretion upon Government which is unguided and uncontrolled, and consequently 16 is discriminatory.