B HIRALAL Vs. CONTONMEUT BOARD SECUNDERABAD

JUDGEMENT

(1.) The question that this writ petition raises is the constitutionality of Sec. 60of the Contonments Act(II of 1924) hereinafter called "the Act" and S R.O No.323 dated .3-9-1957 issued in exercise of the powers conferred by Sec. 60 of the Act on the Conton nent Board.

(2.) The Secunderabad Cantonment Board started levying octroi duty in the year 1957. That duty was imposed by means of SRO No. 323 dated 13-9-1967 after obtaining the necessary sanction of Central Govt. as was required by S. 60 of the Act. By and under S.R.O No.323 octori duty has been levied on various articles mentioned and at the rates specified therein. The petitioners attack the constitutionality of sec. 60 as well as the S.R.O.No,323 on the ground that the levy of octroi placed a great and serious impediment in the way of free flow of trade and commerce throughout the territory of India and is therefore directly inconsistent with and hit by the provisions of Art. 301 of the Constitution. On the other hand, the learned Advocate-General who appeared for the Cantonment Board, argued that the octroi duty is a non-discriminatory compensatory tax and falls outside the purview of Art. 301 In any case he argued that since the Act is an existing Act and Sec 60 is a piece of conditional legislation, S.R.O. 323 issued in pursuance of sec 60 extends the application of the Act to certain things. Sec. 60 and the S.R.O therefore fall within the term 'existing law and therefore are saved by Art. 305 of the Constitution.

(3.) In order to appreciate these rival contentions, it becomes necessary to read Art. 301 and to undersea its setting in the scheme of Part XIII of the Constitution. Art. 301 is in the following terms :