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PETITIONER: THE MUNICIPAL CORPORATION FOR CITY OF PUNE AND ANR.

       Vs.

RESPONDENT: BHARAT FORGE CO. LTD. & ORS.

DATE OF JUDGMENT10/03/1995

BENCH: HANSARIA B.L. (J) BENCH: HANSARIA B.L. (J) KULDIP SINGH (J) MAJMUDAR S.B. (J)

CITATION:  1995 SCC  (3) 434        JT 1995 (3)   312  1995 SCALE  (2)245

ACT:

HEADNOTE:

JUDGMENT: HANSARIA, J.: 1.  The jouney to decide the fate of these  appeals  has  to start from 1881 as it was on 314 12th  March  of  that  Notification  No.  165  was  gazetted starting    inter     alia  that  octroi   duties   in   the Cantonment of Poona would be, imposed at the rates "for  the time being" leviable and in respect of the several  articles "for time being" dutiable in the Municipality of Poona, when such  articles  would enter in to the  cantonment  from  any place  situate without the limits of the said  Municipality, The  Poona  Cantonment Bowl authorised the  Municipality  to collect  the  octroi  which  had  become  so  leviable   and thereafter  to  divide  the proceeds as  agreed  upon.   The Municipality of Poona having become a Corporation under  the Municipal  Corporation 1950, it continued to collect  octroi on the strength of the aforesaid Notification and agreement. The  respondents challenged 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

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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  previous  sanction  of   the Governor-General in Council, by notification in the Official Gazette,  any tax which could be imposed in a  Municipality. Section  22  of this Act permitted the Local  Government  by notification  in Official Gazette to apply and adapt to  any cantonment provisions and rules in force under any enactment for assessment and recovery, of any tax in Municipality. 5.   The  Government  of Bombay by its  Resolution  No.  234 adopted  on  26.1.1881 approved the levy of  octroi  in  the Cantonment  on  the same articles and the same  rate  as  in Poona  City;  and  it approved the proposal  to  divide  the proceeds  on  some  terms,  the details  of  which  are  not required to be noted.  The Government of India conveyed  its sanction  to  the levy of octroi in the  Cantonment  by  its telegram  dated  4.3.1881.  Thereafter  came  the  aforesaid Notification  of  12th  March,  1881  and  the  Municipality started collection of octroi duties for the Cantonment  from that year itself. 6.   The aforesaid arrangement smoothly continued till  1912 by  which  year the Cantonment Act of 191 0  had  come  into force.    The  Cantonment  then  wanted  a  new  method   of apportionment as it thought that 315 the existing agreement relating to apportionment was  unjust to it, The State Government did not, however, agree and  the disagreement   was   conveyed  to   the   Cantonment.    The Municipality proposed to revise its Schedule of Octroi Rules in  1917  by enhancing the same, which was  opposed  by  the Cantonment  Committee.  On the matter being examined by  the Government  it  approved  the  revised  Octroi  Schedule  as mentioned  in its Order No.6649 dated 25th September,  1918. This  Order required the General Officer Commanding  of  the Cantonment to be informed that the Government saw no  reason to modify its earlier decision. 7.   In  the  meantime,  the  Government  had  issued   four notifications  bearing  Nos. 4160 to 4163 dated  17th  June, 1918 which were gazetted on June 20, 1918.  Notification No- 4160  had  been issued in exercise of  powers  conferred  by section  15(1) of the Cantonments Act, 1910 and  it  imposed taxes  mentioned in this Notification in the  Cantonment  of Poona   "in  supersession  of  the  notifications   of   the Government  noted on the margin and all other  notifications on  the same subject." Notification No. 4162 had  also  been issued in exercise of the same power and it dealt inter alia with octroi duties.  Notification No. 4163 was, however   in exercise  of  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

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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 schedule. 11.  The factual aspects of the submission were:- (1)  The 1881 Notification having stated that octroi  duties at the rates "for the time being" dutiable, are imposed, the rates  which  were prevailing on 12th March,  1881  and  the articles  on  which octroi was leviable on that  date  alone could  be collected by the appellant; and not at  the  rates mentioned  in  the  Schedule of 1963 Octroi  Rules,  nor  on articles added by those Rules. (2)  The 1881 notification in any Case, stood superseded  by the fasiculus of Notifications dated June 18, 1918 which had been duly gazetted. 316 (3)if  the, later Notifications did not supersede  the  1881 Notification, the same, in any case, impliedly repealed  the former. 12.  The legal affirmity of the collection was    assailed on these counts :- (1)  The  appellants  not having entered into  an  agreement with  the Cantonment as required by Section 45(1)(b) of  the Cantonments  Act,  1924,  so also by section  32(4)  of  the Bombay  Provincial Municipal Corporations Act,  1949,  after new Octroi Rules were framed in 1963, it had no authority to collect octroi on behalf of the Cantonment. (2)  If  the Notification of 1881 were to be held to  permit levy  and  collection of octroi not only on  the  rates  and articles  as prevailing on 12th March, 1881 but on  articles other  than  those and/or at rates higher  than  those,  the notification   is   unsustainable   being   a   product   of impermissible delegation. (3)  The  procedure  contemplated  by  section  62  of   the Cantonments  Act,  1924  having  not  been  followed   while enhancing  the  rates of octroi duties by 1963  Rules,  col- lection  of the same at the enhanced rate would  be  against ’authority of law.’ 13.  We propose to deal with the submissions seriatim. Reach of the 1881 Notification 14.  The  basic point which would need our consideration  to answer  this question is to find out what was meant  by  the expression "for die time being" used twice in the  aforesaid Notification.   According to S/Shri Shanti Bhusan  and  Anil Divan   learned   Senior   Advocates   appearing   for   the respondents,  this expression refers to the rates of  octroi which were prevailing at the time when the notification  was issued;  and  octroi on the articles or at the  rates  which became effective after the Notification saw the light of day cannot  be  imposed or collected with the aid  of  this  no- tification. 15.  In support of this 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

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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, contends that  the  aforesaid  ex- pression  has  no  fixed  connotation  and  is  capable   of different interpretation accord- 317 ing  to the context.  This is was what been stated  at  page 257  of  Volume 2 of "Words and Phrases"  (Second  Edition). According  to the statement made there, this  expression  in one context may point to "one single period of time"; and in another context to "succession of periods." 17.  That   the  aforesaid  expression  means,  as  is   the contention on behalf of the appellant receives support  from what was pointed out by a Constitution Bench in the case  of Madhav  Rao Scindia Bahadur v. Union of India, 1971 (1)  SCC 85.   In that case, to which our attention has been  invited by  the  learned  Advocate General, while  dealing  with  be meaning  of the word "Ruler" as defined by Article 366  (22) of  the Constitution, which had stated at that time that  it included  any person "for the time being" recognized by  the President  as  the  successor of the  Ruler  with  whom  any agreement  had  been  entered  into  and  who  had  been  so recognized by the President it was observed in paragraph 112 that  the  expression "for the time being"  predicates  that there shall be a Ruler of Indian State and that if the first recognised Ruler dies, or ceases to be a Ruler, a  successor shall  be appointed, and that there shall not be more  Ruler than  one at a given time.  This observation indicates  that the  recognition  given  by the President is  not  one  time recognition, but the same could be bout time to time. 18.  That  die intention of the concerned authorities  while issuing  the  Notification at hand was not confined  to  the rates prevailing or articles subjected to octroi on the date of  Notification  is  apparent,  according  to  the  learned Advocate-General,  from what has been  recorded  contempora- neously  in  the Government file, a zerox copy  of  relevant nothings of which has been made available to us by him.   At page 13 of this collection we find mention of the fact  that rates  of  octroi duties to be imposed and the  articles  on which  octroi is to be imposed in the Cantonment were to  be so  as  enforced in the Municipality "from  time  to  time", There is also enough material on record to show that  octroi at  rates  prevailing subsequent to the  date  of  aforesaid notification had come to be collected by the Municipality on behalf of the Cantonment for a sufficient long period  after the  issuance  of 1881 Notification.   Thus,  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

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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. 318 21.  We have closely perused the aforesaid Notification  and we do agree with Shri Divan that they form a complete scheme in  themselves relating to tax in the Cantonment  of  Poona; and  what  has  been stated  in  these  Notifications  would prevail insofar as taxes to be imposed in the Cantonment  is concerned,  in  preference of earlier Notifications  on  the subject.  Question, however, is whether I can be said on the language   of   the  1918  Notifications,  that   the   1881 Notification  relating  to  octroi  stood  superseded.   ’it deserves  mention that Notification No. 4160 alone,  of  the four  Notifications, expressly stated about supersession  of the-Notifications   mentioned   in  the   margin   of   this Notification.   Shri Divan draws our attention that  of  the four   Notifications  mentioned  in  the  margin,   one   is Government Notification No, 481 dated 18th September,  1891, which had superseded Government Notification No. 574 of  5th December,   1883,   which  in  its   turn   had   superseded Notification  No.  165 of 2th March, 1881. Relying  on  this historical  setting, it is urged that Notification No.  4160 must  be  held to have superseded the Notification  of  12th March, 1881 relating to octroi also. 22.  The  learned Advocate General joins issue  and  submits that Notification No. 4160 having not dealt with the subject octroi, what can reasonably be said to have been  superseded by  this  Notification qua the Notification of  12th  March, 1881  which  had dealt not only with the octroi  duties  but Property  Rates  also,  I that  die  supersession  of  which Notification  No.  4160 mentioned, is of those  taxes  which Were the subject of that Notification.  It is contended that this Notification stated about suppression of  notifications "on   the,  same  subject",  which,  according  to   learned Advocate,  General,  means the subject dealt  with  by  that Notification. 23.  We  do  find sufficient force in this  submission  and, according  to  us,  it would not be  a  correct  reading  of Notification  Nos.  4160 to hold that  it  superseded  Noti- fication on 12th March, 1881 in its entirety.  In our  view, the  supersession has to be confined to taxes  mentioned  in Notification  No.4160. Octroi being not one of these  taxes, we   hold   that  Notification  did   not   supersede   1881 Notification  qua octroi.  This conclusion of ours  receives support  from what has been stated in  Notification  No.4162 which  has  specifically  dealt with  imposition  of  octroi duties and trade registration fees. Implied repeal of 1881 Notification relating to octroi 24.  The alternative submission of Shri Divan     in    this 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

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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. 319 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  as required  by section 21 of the General Clauses Act,  as  per which  provision  any  addition,  amendment,  variation   or rescission  of  any  notification has to  be  "in  the  like manner"  and "subject to the like sanction" as the  issuance of  notification, the contention is that if we were to  bear in   mind   the  practical  construction  given   to   these Notifications,  it  would  be apparent that  they  were  not sought to be acted upon.  Another related submission is that these  Notifications should be deemed to have  good  effaced because of disuse for almost 50 years by 1963, as  permitted by the legal process known as "desuetude" 26.  Shri Divan and Shri Shanti Bhushan would not agree with the  learned Advocate General, because, according to them  a statutory  notification  could  not be  set  at  naught  any executive  decision,  which  is  the  basis  of  the   first submission  of  the learned Advocate  General  relatable  to practical construction.  The learned counsel for respondents submit that the Local Government knew that even an amendment of these Notifications could be made only by publication  in official gazette, because of which the little omission which had  occurred in the Notification No.4163 had been  supplied by   a  corrigendum  published  in  official  gazette,   Our attention  is invited to what was stated on this subject  in Mahender Lal Jaine v.  State of Uttar Pradesh, 1963  (Suppl) 1  SCR 912 at page 951.  In the written submissions  of  the respondent-:, filed on 31st January, it has been  mentioned, and  rightly,  that administrative practice  (and  for  that matter,  administrative order) cannot supersede or  override statutory  rule or Notification.  Some decisions  have  also been mentioned in this regard to which we are not adverting, because this legal proposition is well settled. 27.  As  we  are agreeing with the learned counsel  for  the respondents on the legal aspect we do not propose to  burden the judgment with the long factual facts, highlighted by the learned  Advocate General by referring to  Government  Order No. 6649 dated 25th September, 1918 (at pages 472 to 482  of Part-II  of the Paper Book) that die Notifications  of  June 1918  relating  to octroi duties were not  acted  upon.   We would not be justified in allowing the Local Government,  or even the Governor-in Council, to undo a notification  issued with  the previous sanction of Governor-General in  Council. According  to us, the only legal way in which  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

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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 320 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  contending   that   the Notifications  had  stood effaced because of what  had  been stated therein. 29.  On  the  principle of ’contemporanea  expositio’  also, which is available to find out how a statutory provision has been  understood  by  those whose duty it  is  to  construe, execute and apply, as mentioned at pages 659-60 of  Polestar Electronics  (P)  Ltd. v. Addl.   Commissioner,  Sales  Tax, 1978-1 SCC 636 and at page 383 of Deshbandhu Gupta v.  Delhi Stock  Exchange, 1979-3 SCR 373 (to which our attention  has been  invited  by the Advocate General through  his  written Arguments filed on 21 1 A 995), we have two observations  to make.  First, this principle is not decisive or  controlling of  the  question of construction; it  has  only  persuasive value.  If occasion arises, such interpretation may be  even disregarded and in a clear case of error court would without hesitation  refuse to follow such construction. (See  obser- vations  of Mukherji J. in Balaeswar v. Bhagirathi,  ILR  35 al.701  noted in Deshbandhu’s Case).  Secondly,  as  already stated, reliance is being placed on the nothings in the file not  to  interpret  the Notifications in  question,  but  to declare  then as dead.  This is not permissible.   Not  only this,  Shri  Divan  has objection to  the  reliance  on  the notings   made  in  the  file  even  for  the   purpose   of interpretation  of  the Notifications, in support  of  which submission he has referred to what was stated in para 39  of Doypack  Construction Pvt. Ltd. v. Union of India, 1988  (2) SCC  299.   As to the reliance on the decision  in  Polestar Electronics’  case,  it has been mentioned  in  the  written submissions filed on behalf of the respondents that in  that case  itself it was stated at page 660 that the view of  the Department as to the meaning of a statute administered by it is  not admissible as an aid to construction because  "wrong practice does not make the law." It has been further  argued that the present was, in any case, not a case of a statutory provision  being  interpreted by, the Department,  in  which case it may be that the interpretation put upon it has  some sanction, if there be long acquiescence by the legislature,, as  mentioned in Maxwell’s Interpretation of  the  Statutes, noted in the aforesaid decision at page 660. Quasi-repeal of 1918 Notifications due to desuetude. 30.  Learned Advocate-General’s another submission  relating to implied repeal is that the 1918 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

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long period, a statute may loose its force with- 321 out  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.   Reference has also been made to what  happened  to the  Limitation Act, 1623, apart from mentioning  about  the refusal  to act according to Sex Disqualification  (Removal) Act, 1919, despite which enactment a peeress was denied  the right  to  sit  in the House of  Lords,  Vide  Committee  of Privileges,  Viscountess  Rhonddas’ Claim, 1922-2 AC  3  39, (HL).  The judicial emasculation of the first act had caused Lord     Sumner    to    lament    the     difficulty     of extracting’...anything   that  deserves  to  be   called   a principle from the decisions of three centuries, which  have been  directed to what is after all the task  of  decorously disregarding an Act of Parliament’. 31.  In  Craies’s  ’Statute Law’ (7th Edition) it  has  been stated at page 7 that desuetude is a process by which an Act of Parliament may lose its force without express repeal.  It does not, however, consist merely of obsolescence or disuse: there  must  also be a contrary practice, which must  be  of some  duration and general application.  Lord Mackay’s  view in  Brown  v. Magistrate of Edinburgh, 1931 SLT  (Scots  Law Times  Reports) 456 (458) has also been noted, which  is  as below               "I  hold  it clear in law that  desuetude  re-               quires  for its operation a very  considerable               period, not merely of neglect, but of contrary               usage  of such a character as  practically  to               infer such completely established habit of  de               community  as  to  set a  counter  of  law  or               establish a quasi-repeal" A  perusal of this judgment shows that Lord Mackay  ventured to  prefer the Scottish system to that of England  regarding which Lord Eldon, as a member of House of Lords, had  stated thus in Johnstone v. Scott, (1802) 4 Pat 274 at p. 285: -               "The  English lawyer feels himself much  at  a               loss here; tie cannot conceive at what  period               of time a statute can be held as commencing to               grow  in desuetude, no when it can be held  to               be  totally  worn out.  All he can  do  is  to               submit to what great authorities have declared               the Law of Scotland to be." Lord  Mackay thereafter enunciated the afore-quoted test  of desuetude for it to permit quasi-repeal. 32.It  would be useful to note what has been stated in  this regard  in  the  chapter headed  ’Repeal  and  Desuetude  of Statutes’  by  Aubrey L. Diamond, printed in  Current  Legal Problems  (1975), Volume 28 pages 107 to 124.   Diamond  has quoted  on this subject what Lord Denning M.R.  observed  in Buckoke v. Greater London 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

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             execution of laws’.  But this is sub-               322               ject  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 because of this process, we find no objection in principle to apply this doctrine to our statutes as well. This  is for the reason that a citizen should know  whether, despite  a statute having been in disuse for  long  duration and  instead a contrary practice being in use, he  is  still required to act as per the ’dead letter’.  We would think it would advance the cause of justice to accept the application of  doctrine  of desuetude in our country also Our  soil  is ready  to accept this principle: indeed, there is  need  for its  implantation, because persons residing in  free  India, who have assured fundamental rights including what has  been stated  in Article 21, must be protected from  their  being, say,  prosecuted and punished for violation of a  law  which has  become  ’dead  letter’.   A  new  path  is,  therefore, required to be laid and trodden. 35.In written submissions filed on behalf of respondents, it has  been stated that the theory, of desuetude can  have  no application  to  the facts of the present  case,  since  the challenge by the respondents is to the levy and  calculation under the 1963 schedule, and not to the rates enforced since 1918.     This  submission has been characterised  as  "most important".    As  to  this  -we  would  observe   that   if Notification  of  1818  were to  prevail  despite  1918  No- tifications,  the  fact that some changes were made  in  the schedule in 1963 has no legal bearing on the question  under examination.  The theory or desuetude has been pressed  into service by the appellant only to take can: of relevant  1918 Notifications.  If those Notifications can be said to  stand eclipsed, the fact that changes were made in the rates  etc. in 1963 cannot stand in the way of application of the theory of desuetude. 36.  Coming  to  1918 Notifications, we  find  materials  on record  to show that it has not been implemented till  date; and  in fact what has been done was contrary, and  that  too for  long period.  So, we hold that Notification  Nos.  4162 and  4163 dated 17th June 1918 had stood repealed  ’quasily’ by  the  time new Octroi Rules came to be  framed  in  1963, which  were applied to realise octroi from the  respondents. The  Statement  made  in the written  submissions  filed  on behalf  of  the  respondents  that  this  cowl  had  treated Notification  No.416O  as operative in the case  of  western India  Theatres v. Cantonment Board, Pune, 1959  Suppl.  (2) SCR  63,  does not affect the view taken by us  relating  to quasi-repeal of Notification Nos. 4162 and 4163 inas- 323 much  as the field of operation of Notification  No.4160  is

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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  entered into  after  the  Octroi Rules of 1963 were  framed  by  the appellants   as  had  been  done  between  Poona   Municipal Corporation and Kirkee Cantonment Board, is not relevant We. therefore, do not find any legal infirmity in enforcement of 1963  Octroi Rules on the ground of lack of  agreement  with the Poona Cantonment Board after these ruts came into force. Impermissible delegation 40.  Shri Shanti Bhushan has taken pains to impress upon  us that if we were to read the expression "for the time being,, finding  place  in 1881 Notification to mean "from  time  to time",  that notification has to be struck down  because  of the delegation of an essential feature of the statute, which is not permissible in law. 41.  On the question of permissible extent of delegation the leading judgment is one rendered by a 7-Judge Bench of  this Court  in In re Delhi Laws Act, 1951 SCR 747.  The ratio  of that  decision  came to be applied to a  taxing  statute  in Rajnarain   Singh  V.  Chairman,  of   Patna   Demonstration Committee,  1955-1  SCR,  290.  It was  held  there  by  the majority that a delegatee has no power to change a policy of the  statute;  and imposition of tax without  observing  the formalities  prescribed  by  the statute was held  to  be  a change  in  the legislature policy.  The statute  which  had came to be examined in that case had required an opportunity to be given to raise objection; but the notification  issued by the delegate which had the effect of levying tax had been done  without inviting objection.  The same  was,  therefore struck down as ultra vires. 42.  Shri Shanti Bhushan contends that the octroi  collected by  the  appellant  being from  persons  residing  in  Poona Cantonment, opportunity was   required  to be given to  them to have their  say if they have objection to the enhancement of  rate  of  octroi  or for imposition  of  octroi  on  new articles  as  the 1963 Rules purported to do.  It  is  urged that  because  of the special importance of  Cantonment  the Central  Government  has been conferred with  the  power  to control 324 these areas; and it is because of this that the  Cantonments Act  of  1924 required by its section 62 to  seek  objection before  imposing any taxation which had admittedly not  been done  in  the present case; and so, octroi  could  not  have collected by the appellant at least after coming into  force of  The 1924 Act. (As we would point out later,  section  62

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has  not application to the facts of the present 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  the  1881 Notification were to permit changes in the rates of  octroi, without  knowing what the same would be, to prevail  in  the Cantonment area also. 45.Learned  Advocate General has contended that the case  of Sharma  Rao  was distinguished in Gwalior  Rayon  Silk  Mfg. (Wvg.). Company Ltd. v. The Assistant Commissioner of  Sales Tax, (1974 (2) SCR 879.  In this connection what was  stated by Khanna, J. at pages 885-6 and by Mathew J. at pages 908-9 has  been brought to our notice.  In that case the  validity of  section 8(2)(b) of the Central Sales Tax, Act, 1956  was assailed  on  the ground that it suffered from the  vice  of excessive delegation inasmuch as it stated that the rate  of central sales tax in case of goods other than declared goods shall  be  calculated  at the raw of 10%,  or  at  the  rate applicable to the sale or purchase of such goods inside  the appropriate  State,, whichever is higher.  The  Constitution Bench  rejected the contention because of clear  legislative policy  being discernible in what has been provided  in  the impugned section.  This shows that merely because the matter of rate at which tax is required to be imposed is left to be determined  by  some  authority other  than  the  one  which imposesit, the same would not be impermissible in law. 46.  Still  another decision pressed into  service  by  Shri Shanti  Bhushan  in  this context is  that  of  Atlas  Cycle Industries v.State of Haryana, 1971 (2) SCC 564.  A  perusal of  this decision shows dud A too was on a different  point. There, the effort of the Municipality of Sonipat to  realise octroi  on the force of Notification which had  been  issued earlier was not upheld, because the relevant section did not take  care, of Notification, but had mentioned about  rules, bye-laws, orders, directions and powers. 325 47.To buttress his submission, the learned Advocate  General brings  to our notice the decision in MK Papaiah  v.  Excise Commissioner, 1975 (1) SCC 492, in which it was held that if the  legislature retained its control over its  delegate  by exercising  its  power of repeal, the same  would  meet  the objection  relating  to  excessive  delegation,  for   which purpose   the  test  to  be  applied  is  not  whether   the legislature  has delegated any matter relating  to  essraial policy.  It is contended what was stated in Papiah’s case by a  three-Judge  Bench through Mathew, J.  was  accepted,  as

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correct  by  a Constitution Bench in A.K. Roy  v.  Union  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 matter of  policy,  that  there               should  be  no difference, in  the  matter  of               housing    accommodation,   between    persons               residing  in cantonment areas of a  State  and               those residing in other parts of the State and               it  is  this  policy  that  was  given  effect               to.....  Having decided upon this  policy,  it               was  open  to  Parliament to  do  one  of  two               things:  pass a separate enactment in  respect               of  the cantonment areas in each State  or  to               merely extend the statutes prevalent in  other               parts  of  the respective States by  a  single               enactment.  The second course was opted upon 50.What was stated relating to cantonments in the  aforesaid excerpt qua housing accommodation should apply, according to us,  to  levy  of  taxes as  well  on  persons  residing  in cantonment  areas.  It can well be said that as a matter  of policy there should be no difference in taxing the residents of  cantonment areas and those residing in municipal  areas, in  view  of the fact that the former have ceased  to  be  a separate  and  exclusive  colony. for  armed  personnel,  as pointed out in the aforesaid case. 51.This  being  the legal position, we hold  that  the  1881 Notification   cannot   be  assailed  on   the   ground   of impermissible  delegation. -Me second legal infirmity  also, as  canvassed  by the learned counsel for  the  respondents, therefore, does not exist. Non-compliance with the procedure mentioned in section 62 of the Cantonments Act, 1924 52.That  the  procedure contemplated by section 62  has  not been followed is not in disputes The stand of the  appellant is that 326 procedure was not required to be followed.  The  respondents have serious objection to this stand of the appellant 53.The  objection is founded on the legal  proposition  that enhancement of rates by the Octroi Rules of 1963 have to  be taken  as  imposition of octroi, which would  have  required invitation of objections, of which mention has been made  in section  62.  The question for determination is whether  en- hancement of rates of octroi can be said to be imposition of

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octroi, in which case alone section 62 would get  attracted, because of what has been stated in sections 60 and 6 1. That this is so is very strenuously contended by Shri Anil  Divan by  placing reliance on two decisions of this Court, one  of which is of Constitution Bench: The Amalgamated Coal  Fields Ltd. v. Janapada Sabha Chhindwara 1963 Sup, (1)   SCR   172; and  another by a two-Judge Bench:in Dhrangadhara  Chemicals 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  done only in accordance with the provisions contained in sections 60 to 63 of the Cantonments Act 1924. 55 Learned Advocate General, however, submits that what  was held by the Constitution Bench in the aforesaid case may not be  taken  to mean that every case of  enhancement  of  rate would be first or fresh imposition of tax.  According to the learned  counsel,  the Constitution Bench had  regarded  the imposition  of  the  levy at the  altered  rates  as  ’first imposition’ only in the context (this word has been used  at page  193  of the Report) of what had happened;  and  it  is because  of this that the altered rates were ’deemed’  (page 194)  to  have  been  included  in  the  expression   ’first imposition’.   The context, as per the learned  counsel  was that the Janpada Sabha had levied the tax for the first time and  it  is because of this that it was taken  to  be  first imposition  qua  the  Sabha  residents.   Learned   Advocate General submits  that if what was held by the.  Constitution Bench  were to be taken literally, even if the rate  of  any tax  were  to be enhanced, say, even by 1%  the  same  would require the procedural aspect relating to imposition of  tax to be gone through whole hog, which could not have been  the intention of the constitution Bench. 56.  We have duly considered the rival submission.   Nothing really turns  on the 327 rate  of change, according to us.  It cannot be that if  the change be significant (say, 10051) then only the same  would be  a case of fresh imposition, but if it  be  insignificant (say,  1%  as mentioned by the Advocate General),  die  same would not be a case of fresh imposition.  Even so, what  has been contended by the learned Advocate General seems to have force,  as in Amalgamated Coal Field’s case this  Court  did deal  with a levy which had been imposed for the first  time by the Janpada Sabha. 57.  Shri  Divan urges that what was held by  the  two-Judge in.Dharangadhra Chemicals’ case (supra) would not leave any- thing to doubt that increase in rate of tax has to be  taken to  be a case of imposition of tax.  But in that  case  also

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the  Municipality’s  increase of octroi was  in  first  act, because of which what has been urged by the learned Advocate General  qua  Amalgamated Coal Field’s case would  apply  to this case also. 58.The  case  of  Visakhapatnam  Municipality  v.  Nukaraju, 1976(1)  SCR 544, which was cited by shri Shanti  Bhusan  in some other 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, objections  are not required to be invited.  To  bring  home this, let sections 60 to 63 of the Act, which together  form a chain, be noted:-               "60.  General power of taxation-               (1)   The   Board  may,  with  the   previous,               sanction of the Central Government, impose  in               any   Cantonment  any  tax  which  under   any               enactment for the time being in force, may  be               imposed  in  any  municipality  in  the  State               wherein such cantonment is situated:               (2) Any tax imposed  under this section  shall               take effect from the date of its  notification               in  the official Gazette, or where  any  later               date  is  specified  in  this  behalf  in  the               notification from such later, date.               61.   Framing of preliminary proposals-               When a resolution has been passed by the Board               proposing  to impose a tax under  section  60,               the  Board shall in the manner  prescribed  in               section 255 publish a notice specifying -               (a)   the tax which it is proposed to impose;               328               (b)the  persons  or classes of persons  to  be               made   liable  and  the  description  of   the               property  or  other taxable thing  or  circum-               stance in respect of which they are to be mode               liable; and               (c)the rate at which the tax is to be levied.               62.   Objections and disposal thereof-               (1)   Any  inhabitant of the  cantonment  may,               within thirty days from the publication of the               notice  under section 61, submit to the  Board               an  objection in writing to all or any of  the               proposals  contained  therein  and  the  Board               shall  take such objection into  consideration               and pass orders thereon by special resolution.               (2)   Unless the Board decides to abandon  its               proposals  contained in the  notice  published

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             under  section  61,  it shall  submit  to  the               Central   Government   through   the   Officer               Commanding  in-Chief,  the command,  all  such               proposals  alongwith the objections,  if  any,               received in connection therewith together with               its  opinion  thereon  and  any  modifications                             proposed  in accordance with such  opinion  an d               the note published under the said section.               63.   Imposition of tax -               (1)   The Central Government may authorise the               Board to impose the tax either in the original               form  or, if any objection has been  submitted               in  that form or any such modified form as  it               thinks fit.  " 60.  The  aforesaid  shows that the notice  required  to  be published by Section 61 specifying, inter alia, "the rate at which  the tax is to be levied", of which mention  has  been made in clause (c), refers to the tax to be levied, 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  appeals are allowed accordingly by  setting  aside the  impugned  judgment,  with  the  result  that  the  writ petitions  filed in the High Court by the respondents  stand dismissed.   On the facts and circumstances of the case,  we do not make any order as to costs. 330