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PETITIONER: THE DHARANGADHRA CHEMICAL WORKS

       Vs.

RESPONDENT: DHARANGADHRA MUNICIPALITY  ANOTHER.

DATE OF JUDGMENT03/09/1985

BENCH: TULZAPURKAR, V.D. BENCH: TULZAPURKAR, V.D. KHALID, V. (J)

CITATION:  1985 AIR 1729            1985 SCR  Supl. (2) 757  1985 SCC  (4)  92        1985 SCALE  (2)669

ACT:      Bombay District Municipalities Act 1901 sections 60, 61 and 62.  Gujarat Municipalities  Act, 1963  section 279. The Saurashtra Terminal  Tax and  Octroi Ordinance  1949  &  The Dharangadhra Municipalty  octroi Rules  and Octroi Bye-laws. Rule 3 and Bye-law 3.      Dharangadhra Municipality  -  Levy  and  collection  of octroi duty - Whether legal and valid.      Interpretation of Statutes.      Repeal by implication - When arises - Effect of.

HEADNOTE:      The Saurashtra Terminal Tax and Octroi Ordinance No. 47 of 1949  was promulgated  and brought into force with effect from 31.8.1949,  to enable  the State Government to levy and collect octroi  duty in specified cities and towns and other local areas  of the  State  and  to  pass  on  the  duty  so collected to  those cities  and towns,  until Municipalities therein  were   constituted  under   the   Bombay   District Municipalities Act, 1901 and those Municipalities made their own rule  and bye-laws  enabling them  to levy  and  collect octroi. Section  3 of  the  Ordinance  empowered  the  State Government  to  impose  octroi  duty  in  towns  and  cities specified  in   Schedule  I   thereto,  and   the  town   of Dharangadhra came  to be included therein subsequently under a notification with effect from 26.12.49.      The respondent-Municipality  by  its  Resolution  dated 30.3.53 enhanced  the prevailing  rate of octroi duty by 50% without complying  with the  provisions of sections 60 to 62 of Chapter  VII of G the Bombay District Municipalities Act, 1901. The  appellant challenged  the enhancement in the rate of octroi  duty by  filing a writ petition, and also filed a suit for  refund of  the excess amount recovered from it for the  period  ending  September  30,  1961.  The  High  Court dismissed the  petition and  upheld the  enhancement, taking the view that while enhancing the rate of 758 octroi,  the   Respondent-Municipality  had   followed   the procedure prescribed  by the  Bombay Act  for  imposing  the octroi and  that  the  enhanced  imposition  was  not  under Ordinance No. 47 of 1949.      On appeal, this Court held that the enhanced imposition

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of duty  by the  Respondent-Municipality was  illegal as the mandatory provisions of sections 60 to 62 of the Bombay Act, had neither been complied with or could the enhanced levy be justified under  Ordinance No. 47 of 1949, because the State Government alone had the power thereunder to impose the duty or prescribe  its rate  and not the Respondent-Municipality. To get over the effect of this Court’s decision a validating Act being  Gujarat Act  No. 6  of 197 was passed where under the imposition  of octroi  levy and collection thereof prior to 30.4.65 was validated.      During the  pendency of  the writ  petition in the High Court, the  Respondent-Municipality proceeded  to frame  its own octroi  Rules and  Bye-laws under  the Bombay  Act after complying with  all the  procedural steps.  The  Respondent- Municipality passed  a Resolution  on 17.12.63 approving the draft  Rules   and  Bye-laws.  The  Divisional  Commissioner sanctioned the  draft Rules  and Bye-laws, However, on March 10, 1965  the State  Government issued  a Corrigendum to the sanction that  had already  been accorded  with  a  view  to rectify certain  printing or  typographical errors  that had come  to   the  notice   of   the   Respondent-Municipality. Thereafter, the  Respondent-Municipality  passed  a  General Board Resolution  dated 29.3.1965  resolving to  bring  into force these  Rules and  Bye-laws called:  "The  Dharangadhra Municipality Octroi  Rules and  Octroi Bye Laws" with effect from 1.5.65, and the requisite Notification was published.      By the  aforesaid Octroi  Rules and  Bye-laws, 1965 the Respondent-Municipality  increased   the  octroi   rates  by 12.1/2% on all the goods brought within the Municipal limits of  Dharangadhra   and  also   made  some   changes  in  the classification of  goods so  brought in; and issued bills of octroi payable every month. Feeling aggrieved by this action of the  Respondent-Municipality, the  Appellant filed a writ petition in the High Court challenging the levy of Octroi at the enhanced rate, which was dismissed.      In the  appeal to this Court it was contended on behalf of the  appellants: (1)  That since  the exemption  from the operation  of  the  Octroi  Ordinance  No.  47  of  1949  as contemplated by Rules 3 as well as Bye-law 3 was not granted by the  State Government,  the Municipal  Octroi  Rules  and Octroi Bye-Laws 1965 could not be said 759 to have come into force, and the Respondent-Municipality had no   authority or power to bring them into force with effect from 1.5.65,  and therefore,  the levy  to the extent of the enhanced rate  was bad  in Law. (2) That the impugned Octroi Rules  and   Bye-Laws  were   framed  by   the   Respondent- Municipality under  the Bombay Act, and sanction thereto had also been  accorded by the Divisional Commissioner under the Bombay Act  on 22nd April 1964, but since the Bombay Act was repealed by  Section 279(i)  of the  Gujarat Act with effect from 1.1.65,  and since these Octroi Rules and Bye-Laws were not brought  into force  before the repeal of the Bombay Act they would  have no  force of  law  as  sub-section  (2)  of section 279  of the  Gujarat Act does not save them, because under clause  (vi) of  sub-section (2)  of section  279 only such Rules  and Bye-Laws framed under the Repealed Act which were immediately in force prior to 1.1.65 would stand saved. (3) That  the Corrigendum  to the  Octroi Rules and Bye-Laws issued by  the Gujarat  Government on 10.3.65 was not by way of purely  correcting typographical  or printing  errors but virtually amounted  to a  modification of the Rules and Bye- Laws without following the procedure de novo and, therefore, the impugned  Octroi Rules and Bye-Laws could not be said to be valid and could not be brought into force.

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    Dismissing the appeal, ^      HELD: 1.(a)  It cannot  be disputed  that  the  subject matter dealt  with by the Ordinance and the Government Rules framed thereunder was levy and collection of octroi duty and the subject  matter dealt  with by  the Bombay  Act and  the Municipal Rules  and Bye-laws framed thereunder is also levy and  collection   of  octroi   duty.  Both   the  pieces  of legislation, validly  enacted and intended to operate within the Municipal  limits of  the Respondent-Municipality, dealt with the  same subject  matter. In such a situation of there 18 repugnancy between the two pieces of legislation, to such an extent  that  both  cannot  stand  together  and  operate simultaneously, the  later will have the effect of impliedly repealing the former. [766 A-C]      Repeal by implication 18 not ordinarily favoured by the Courts But  the principle,  on which  the  rule  of  implied repeal rests, is that if the provisions of a later enactment are 80  inconsistent with  or repugnant to the provisions of an earlier  one that  the two  cannot  stand  together,  the earlier is  repealed by the later enactment is applied. [766 D]      Kutner v.  Phillips,[1891] 2  Q.B. 267 at 272. Zaverbai Amaidas v.  The State of Bombay [1955] 1 S.C.R. 799 referred to. 760      In the  instant case, the two pieces of legislation are so inconsistent  with or  repugnant to  each other that both cannot stand  together and  such repugnancy  arises from (a) the conferal  of power to levy duty on two different bodies, namely, the  State Government  under the  Ordinance, and the municipality under  the appropriate  Act, and  obviously the exercise of  the power concurrently by both the bodies would be incongruous  and entirely  destructive of  the object for which the  power was conferred, and (b) the enhanced rate of duty prescribed  by the Municipal Rules and Bye-laws. Having regard to  such repugnancy  obtaining between the two pieces of legislation  dealing with  the same  Subject  matter  the later in  point of  time will  have the effect of displacing the former  by  necessary  implication.  That  such  implied repeal or  displacement was  within the contemplation of the legislative authority  which issued the Ordinance of 1949 is amply clear  if regard  is had  to the object with which the Ordinance  came  to  be  promulgated  to  enable  the  State Government to  levy and collect octroi duty, in the state of Saurashtra and  to pass  on the  duties so  collected by  it those towns  and cities  until Municipalities  therein  were constituted   under    the   appropriate   Act   and   those Municipalities made  their own  Rules and  Bye-laws enabling them to  levy and  collect octroi  and other usual Municipal taxes. [767 D-H]      2.(a) The  Municipal Octroi  Rules  and  Bye-laws  were validly made  by the  respondent Municipality on 17.12.63 by following  the  procedure  prescribed  by  the  Bombay  Act, whereafter  these   were   forwarded   to   the   Divisional Commissioner who  made some  suggestions which were accepted by the respondent-Municipality and ultimately by order dated 22.4.64 sanctioned  the Rules and Bye-laws. Up to this stage everything was  validly done  under the  Bombay Act prior to its repeal  on 1.1.65. Under clause (vi) of sub-section (2), any order made and which was in force immediately before the commencement of  the Gujarat Act has been saved, inasmuch it was provided  that such  order shall  be deemed to have been made under  the Gujarat  Act and  will continue  to  operate until modified  or rescinded  by another  order passed under

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the Gujarat Act. [770 E-G]      (b) What  is saved  by  the  order  of  sanction  dated 22.4.64 are  the sanctioned  Rules and Bye-laws. Clause (vi) uses both  the expressions,  ’order’ and  ’Rule and Bye-law’ separately and distinct from each other but such separate or distinctive use  is  conceivably  made  to  cover  different situations. In  a case where the order that is saved happens to be  an order sanctioning rules and Bye-Laws, the two will have to be regarded as part and parcel 761 of a  single INSTRUMENT which is saved in its entirety. What is saved under clause (vi) of sub-section (2) of section 219 are the sanctioned MunicipaI Octroi Rules and Bye-laws 1965. [771 B]      3. The  material  on  record  clearly  shows  that  the Corrigendum dated  10.3.1965  was  issued  with  a  view  to rectify typographical  errors or  mistakes that bad crept in the typed  copies of the Rules and Bye-laws forwarded to the Divisional Commissioner  which had come to the w dice of the Respondent-Municipality. Even  the omission  of sub-rule (5) of  Rule  5  in  the  copies  forwarded  appears  to  be  an inadvertent typographical mistake. 1772 E

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1225 of 1972.      From the  Judgment and  Order dated  the 21st  January, 1971 of  the Gujarat High Court in Special Civil Application No. 786 of 1965.       B.  Seth, Kamal  Mehta, K.S.  Nanavati and  Mrs.  A.K. Verma for the Appellant.       Soli  J. Sorabjee,  P.M. Raval,  M.P. Goswami and H.N. Salve for Respondent No.1.        S.T.  Desai,  Girish  Chandra  and  R.N.  Poddar  for Respondent No.2.       The Judgment of the Court was delivered by       TULZAPURKAR,  J.       This  litigation in  which  the Appellant has  challenged the levy of Octroi Duty imposed by the respondent  Municipality under its Octroi Rules and Bye- laws framed  under the  Bombay District  Municipal Act, 1901 (as adopted  by the  Government of Saurashtra) and continued under the  Gujarat Municipalities  Act 1963. (as adapted and applied to the State of Saurashtra) has a chequered history.       Briefly stated the facts leading to the present appeal are these.  The Appellant  is a Company registered under the Indian Companies  Act carrying  on business of manufacturing Soda Ash in its factory at Dharangadhra within the Municipal limits  of   the  Respondent-Municipality.   Originally  the Respondent-Municipality being  a District  Municipality  was governed by the provisions of 762 the Bombay  District Municipal  Act, 1901,  as  adapted  and applied to  the State  of Saurashtra,  (for short the Bombay Act) but  with effect  from 1.1.1965  it is  governed by the Gujarat Municipalities  Act, 1963  (for  short  the  Gujarat Act).       An Octroi Ordinance called the Saurashtra Terminal Tax and Octroi  Ordinance No.  47 of 1949 was promulgated by the Rajpramukh  and   brought  into   force  with   effect  from 31.8.1949. The  object of  the Ordinance  was to  enable the State  Government   to  levy  and  collect  octroi  duty  in specified cities  and towns  and other  local areas  of  the State and  to pass  on the  duty so collected by it to those

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cities  and   towns  until   Municipalities   therein   were constituted under  the Bombay  Act and  those Municipalities made their  own Rules and Bye-laws enabling them to levy and collect octroi  and other  Municipal taxes.  To achieve this object s.  3 of the Ordinance empowered the State Government to impose  octroi duty  in towns  and  cities  specified  in Schedule  I   thereto,  in   which  Schedule   the  town  of Dharangadhra  came   to  be   included  subsequently   under notification with  effect from  26.12.1949. Section 4 of the ordinance authorised  the State Government to make Rules for the imposition  and collection  of octroi duty but under the Rules so  framed the  Municipality of  the concerned city or town was to be the collecting machinery. After the inclusion of the  Dharangadhra town in the Schedule I octroi was being levied in  that town by the State Government under its Rules but the  same was  being collected  through the machinery of Respondent Municipality.       It  appears that  the Respondent  Municipality by  its Resolution dated  30.3.1953 enhanced  the prevailing rate of octroi duty  by 50% without complying with the provisions of sections 60  to 62  of Chapter  VII of  the Bombay  Act. The appellant challenged  this enhancement in the rate of octroi duty by filing a writ petition (No. 769 of 1962) in the High Court of  Gujarat and  also filed  a suit  for refund of the excess amount  recovered  from  it  for  the  period  ending September 30,  1961 after  serving a statutory notice on the respondent Municipality.  The High  Court dismissed the writ petition and  upheld the  enhancement on the view that while enhancing the  rate by  its Resolution  dated March 30, 1953 the  Respondent  Municipality  had  followed  the  procedure prescribed by  the Bombay  Act for  imposing the  octroi and that the enhanced imposition was not under the Ordinance No. 47 of  1949. Un  appeal, this  Court by  its judgment  dated 20.9.1972 held  that the  enhanced imposition of duty by the Respondent  Municipality   was  illegal   as  the  mandatory provisions of ss. 60 to 62 of the 763 Bombay Act had not been complied with nor could the enhanced levy A  be Justified  under Ordinance No. 47 of 1949 because the State  Government alone  had  the  power  thereunder  to impose the duty or prescribe its rate and not the Respondent Municipality. To recover the effect of this Court’s decision a Validating  Act being Gujarat Act No. 6 of 1978 was passed whereunder the  imposition of  octroi levy   and  collection thereof prior  to  30.4.1965  was  validated.  We  are  not, however, concerned  with the Validating Act inasmuch as that Act has  nothing to  do with  the imposition of levy for the period on  and after 1.5.1965 with which the present: appeal is concerned.       It  appears that  during the pendency of the aforesaid writ petition  in the  Gujarat High  Court  the  Respondent- Municipality proceeded  to frame  its own  Octroi Rules  and Bye-laws under  the Bombay  Act and after complying with all the procedural steps, such as publishing the draft Rules and Bye-laws, inviting  and considering objections thereto, etc. the   Respondent-Municipality   passed   a   Resolution   on 17.12.1963 approving  the  said  draft  Rules  and  Bye-laws whereafter these were forwarded through the Collector to the Divisional Commissioner, Rajkot; the Divisional Commissioner made some  suggestions to  the Respondent-Municipality which were accepted by it; ultimately by his order dated 22.4.1964 the Divisional  Commissioner sanctioned  the draft Rules and Bye-laws; however,  on March  10, 1965  the State Government (as in  the meantime the post of the Divisional Commissioner was abolished) issued a Corrigendum to the sanction that had

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already  been  accorded  With  a  view  to  rectify  certain printing or typographical errors that had come to the notice of   the    Respondent-Municipality   and   thereafter   the Respondent-Municipality passed  a General  Board  Resolution dated 29.3.1965  resolving to  bring into  force these Rules and Bye-laws  called "The  Dharangadhra Municipality  Octroi Rules and  Octroi Bye  Laws with  effect from  1.5.1965. The requisite Notification bringing these into force on and from 1.5.1965 was  issued under s. 103 of the Gujarat Act. It may be stated  that in  the meantime  the Bombay  Act  had  been repealed by  the Gujarat  Act which had come into force with effect from 1.1.1965       By  the aforesaid  Octroi Rules and Bye-laws, 19h5 the Respondent Municipality  increased the  octroi rates  by 12- 1/2% on all the goods brought within the Municipal limits of Dharangadhra   and   also   made   some   changes   in   the classification of  goods so  brought in; pursuant thereto it issued  bills   of  octroi   payable  every  month.  Feeling aggrieved by  this action of the Respondent Municipality the Appellant filed a writ petition (No. 786 of 764 1965) on 20.7.1965 in the Gujarat High Court challenging the levy of  octroi at  the enhanced  rate under the said Octroi Rules and  Bye-laws on  several grounds  and sought an order restraining the  Respondent-Municipality  from  levying  and collecting and/or  enforcing the  recovery        thereof in any manner.  The High Court by its judgment and  order dated the 21st January 1971 negatived all the grounds of challenge and dismissed  the writ  petition but  by  its  order  dated 8.10.1971 granted  a certificate  of fitness  for appeal  to this Court under Art. 133 (l)(a) and (b) of the Constitution and hence the instant appeal by the appellant.      Though the  levy of  octroi duty  at the  enhanced rate under the  impugned  Octroi  Rules  and  Bye-laws  1965  was challenged on several grounds in the High Court, counsel for the  Appellant   in  this   appeal  has  raised  only  three contentions on  the basis  of which  the invalidity of those Octroi Rules  and Bye-laws  has been  pressed  into  service before us. namely:           (i) Since  the exemption from the operation of the           Octroi Ordinance No. 47 of 1949 as contemplated by           Rule 3  as well as by Bye-law 3 was not granted by           the State  Government the  Municipal Octroi  Rules           and Octroi Bye-laws 1965 could not be said to have           come into  force and  the Respondent  Municipality           had no authority or power to bring them into force           with effect  from 1.5.1965 and therefore, the levy           to the extent of the enhanced rate is bad in law.           (ii) That  the impugned  Octroi Rules and Bye-laws           were framed  by the  Respondent-Municipality under           the Bombay  Act and sanction thereto had also been           accorded by  the  Divisional  Commissioner  Rajkot           under the  Bombay Act on 22nd April 1964 but since           the Bombay  Act was  repealed by  s. 279(1) of the           Gujarat Act  with effect  from 1.1.1965  and since           these Octroi  Rules and  Bye-laws were not brought           into force  before the  repeal of  the Bombay  Act           they would  have no  force of law as sub-s. (2) of           s. 279  of the  Gujarat Act  does  not  save  them           because under  clause (vi)  of sub-s.(2) of s. 279           only such  Rules and  Bye-laws  framed  under  the           Repealed Act which were immediately in force prior           to 1.1.1965 would stand saved.           (iii) That the Corrigendum to the Octroi Rules and           Bye laws  issued  by  the  Gujarat  Government  on

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         10.3.1965 was 765           not by  way of  purely correcting typographical or           printing  errors   but  virtually  amounted  to  a           modification (like  inserting Sub-Rule (j) in Rule           (5) or  the Rules  are Bye-laws  without following           the  procedure   de  novo,   and,  therefore,  the           impugned Octroi  Rules and  Bye-Laws could  not be           said to  be valid  and could  not be  brought into           force. In our view  there is no substance in any of these contentions and we proceed to give our reasons for our view in regard to each presently.      As regards  the first  contention raised by counsel for the appellant  it will  be necessary  to see what Rule 3 and Bye-laws, of  the Municipal  Octroi Rules and Bye-laws, 1965 provide; both  are in  identical language and purport to and purport to  deal with  the commencement  of these  Municipal Rules and Bye-laws and state these Rules and Bye-laws:           "shall come  into  force  after  an  exemption  is           granted by  the  Government  from  the  Saurashtra           Terminal Tax  and Octroi  Ordinance No. 47 of 1949           and the  Rules  frames  thereunder  which  are  at           present in force. Counsel pointed out that admittedly prior to 1.5.1965 when these Municipal rules and Bye-laws where purportedly brought into force L no exemption from the Octroi Ordinance No. 41 f 1949 and the Rules framed thereunder was granted By he State Government as contemplated by the aforesaid provision which could and ought to have been done by issuing a C Notification withdrawing or deleting the Dharangadhra town and its Municipality from Schedule I to that Ordinance. Counsel urged that ill view of the Clear Language of the above provision the granting of such exemption must be regarded as a condition precedent to the coming into force of these municipal Octroi Rules and Bye-Laws and since the condition precedent was not compiled with these Rules could not be said to have come into force and the levy at the enhanced enhanced rate would be bad in law. Counsel urged that the high Court has erroneously treated the insertion. of Rules 3  Bye-Law  which relate to the commencement these Rules and Bye-laws to be a mere surplusage.      In  Our   View   The   contention   proceeds   upon   a misconception of  the  legal  position  in  the  matter  and ignores and  the object with which the ordinance of 1949 had been, promulgated as also the 766 object of  inserting Rule  3 and  Bye-law 3 in the Municipal Octroi Rules  and Bye-laws  1965. It cannot be disputed that the subject  matter dealt  with by  the  Ordinance  and  the Government Rules  framed thereunder  was levy and collection of octroi  duty and  the subject  matter dealt  with by  the Bombay Act  and the  Municipal  Rules  and  Bye-laws  framed thereunder (and  said to be continued under the Gujarat Act) is also  levy and  collection of octroi duty; in other words both the pieces of legislation, validly enacted and intended to  operate  within  Municipal  limits  of  the  Respondent- Municipality, deal  with the  same subject matter. In such a situation if there is a repugnancy between the two pieces of legislation,  to  such  an  extent  hat  both  cannot  stand together and operate simultaneously, the later will have the effect of implied repealing the former.      It is true that repeal by implication is not ordinarily favoured by  the Courts  but the principle on which the rule of implied  repeal rests  has  been  stated  in  Maxwell  on

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’Interpretation of  Statutes’ (Twelfth  Edition) at page 193 tuhs:           "If, however,  the provisions of a later enactment           are so  inconsistent  with  or  repugnant  to  the           provisions of  an earlier  one that the two cannot           stand together  the earlier  is abrogated  by  the           later . (vide Kutner V. Phillips)[1891] 2 Q.B. 267           at 272. In Zverbhai  Amaidas v.  The State of Bombay [1955] 1 S.C.R. 799, this  Court has  approved, the  above principle  in the context of  two pieces of legislation, namely, The Essential Supplies (Temporary  Powers) Act, 1946 as amended by Act LII of 1950  ( a  Central Act)  and Bombay Act No. XXXVI of 1947 the provisions whereof in the context of enhanced punishment were repugnant  to each  other.  The  Court  held  that  the question of punishment for contravention of orders under the Essential Supplies  (Temporary Powers)  Act both  under  the Bombay Act  and the Central Act constituted a single subject matter and  in view  of Art.  254(1) of the Constitution Act LII of  1950 (Central  enactment) must  prevail.  The  Court quoted with  approval Lord Goddar’s observations in Smith v. Benabo 1937  1 K.B. 518, namely It is a well settled rule of construction that  if a  later statute  again  describes  an offence created  by a  previous one, and imposes a different punishment, or  varies The procedure, the earlier statute is repealed  by   the  later   statute.  After   quoting  these observations the Court went on to say:           "It is  true, as  already pointed  out, that  on a           question  under  Art.  2541)  whether  an  Act  of           Parliament 767           prevails against  a law  of the State, no question           of repeal  arises; but  the principle on which the           rule of  implied repeal rests, namely, that if the           subject  matter   of  the   later  legislation  is           identical with  that of  the earlier, so that they           cannot both  stand together,  then the  earlier is           repealed by  the later  enactment, will be equally           applicable to a question under Art. 254(2) whether           the  further   legislation  by  Parliament  is  in           respect of  the same  matter as  that of the State           law. We  must accordingly  hold that  section 2 of           Bombay Act  No. XXXVI  of 1947  cannot prevail  as           against  sec.   7  of   the   Essential   Supplies           (Temporary  Powers)  Act  No.  XXXIV  of  1946  as           amended by Act No. LII of 1950." The aforesaid  principle of implied repeal has been approved and applied  in a  couple of other decisions of this  Court, particularly in  T. Barai v. Henry Ah Hoe and Another [1983] I S.C.R. 905. D       In  the instant case the two pieces of legislation are so inconsistent  with or  repugnant to  each other that both cannot stand together and such repugnancy arises from a) the conferal of  power to  levy duty  on two  different  bodies, namely, the  State Government  under the  Ordinance and  the Municipality under  the appropriate  Act and  obviously  the exercise of  the power concurrently by both the bodies would be incongruous  and entirely  destructive of  the object for which the  power was conferred, and (b) the enhanced rate of duty prescribed  by the  Municipal Rules  and Bye-laws  -  a situation similar to enhanced punishment provided by a later enactment.  Having   regard  to  such  repugnancy  obtaining between the  two pieces  of legislation  dealing with  the r same subject matter the later in point of time will have the effect of  displacing the  former by  necessary implication.

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That such  implied repeal  or displacement  was  within  the contemplation of  the legislative authority which issued the Ordinance of  1949 will  be amply  clear if regard is had to the object  with which the Ordinance came to be promulgated. The avowed  object of  the Ordinance was to enable the State Government to  levy and  collect octroi  duty in  towns  and cities of  the erstwhile  State of Saurashtra and to pass on the duties  so collected  by it  to those  towns and  cities until Municipalities  therein  were  constituted  under  the appropriate Act  and those  Municipalities  made  their  own Rules and  Bye-laws enabling them to levy and collect octroi and other usual Municipal taxes; clause (9) of the Ordinance made express  provision for  making over such collections to concerned 768 towns and  cities. That such was the object of the Ordinance has been clearly stated by this Court in Mulchand Odhavji v. Rajkot Borough  Municipality, A.I.R. 1970 S.C. 685. In other words  the   Ordinance  and   the  Government  Rules  framed thereunder were  a stop  gap measure,  being transitional in character which  would automatically  cease  to  operate  no sooner  the   concerned  Municipality   (here   Dharangadhra Municipality) made  and published  its own  Octroi Rules and ye-laws under the appropriate Act.       To counter Act the inference of implied repeal, strong reliance was  placed by  Counsel for  the appellant  on  the language used  in rule  and Bye-law 3 which state that these Rules shall  come into  force after  the exemption  from the Ordinance and  the Rules  thereunder has  been  granted  and according to  Counsel such  Language negative any suggestion of implied  repeal. In  our view  rule 3  as well as Bye-law proceed on  a mistaken  assumption of law that the exemption from the  Ordinance and  the  rules  framed  thereunder  was necessary before  the Municipal  Rules and Bye-laws could be enforced. Once  the Municipal  Rules and ye-laws are validly made and  also validly  brought into  force by following the requisite procedure  prescribed in  that  behalf  under  the appropriate Act  the earlier  Government Rules  would  stand pro-tanto repealed notwithstanding what is contained in Rule 3 or  Bye-law 3. The legal effect of such a provision (as is contained in Rule 3 or Bye-law 3) would not be and is not to restrain or  prevent the  municipalities from  bringing into force its  Rules and  Bye-laws by  following the  prescribed procedure. The  real aim  and object  of Rule 3 or Bye-law 3 sees to  be to  prevent double taxation. If the insertion of Rule 3  or Bye-law  3 was  because  of  a  wrong  belief  or assumption made  in the  matter of  the legal  position  the Court has to disregard such belief or assumption, for, it is well settled  that the  beliefs or  assumptions of those who frame Acts  of Parliament  cannot make  the law’  (vide Lord Radcliffe in Inland Revenue V. Dowdell  O’Mahoney & Co. Ltd. 1952 All  England Law  Reports 531  at 544).  Therefore, the Municipal  Rules  and  Bye-laws  1965  having  been  validly brought into  force after following the prescribed procedure in that behalf, the Government Rules under the Ordinance got impliedly repealed.       Counsel  for the appellant also raised the question as to  whether   the  Municipal   Rules  and   Bye-laws   being subordinate  piece   of  legislation   could  repeal  either expressly or  by implication  the Ordinance  promulgated  by Rajpramukh and  the Rules  framed thereunder  by  the  State Government and  urged that  the Municipal  Rules or  ye-laws could not do so; he further urged that for 769 effecting such repeal the Municipal Rules and Bye-laws, 1965

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A should  have at  least been raised to the status of parent legislation by deeming them to have been incorporated in the Statute as is done in some cases like the Town Planning Acts which provide  that as  soon as a final town planning scheme comes  into   force  it   shall  be   deemed  to  have  been incorporated in the Act itself. The contention as formulated really misses the vital aspect that the effective charge and levy of  the octroi  is imposed  by the rules and not by the parent legislation,  be it  an Ordinance  or the appropriate Municipal Act.  The parent  legislation merely confers power on the  specified body  or authority  to frame Rules for the purpose of  levying and  collecting octroi  duty. Under  the Ordinance of  1949 it  was the State Government on whom such power had  been conferred  while under  the appropriate  Act such power has been conferred on the concerned Municipality; in either  case the  levy and  collection of  the duty is by means of  subordinate legislation  and if  such  subordinate legislation is  validly enacted  by following the prescribed procedure under  the parent  legislation there  is no reason why such  subordinate legislation should not have the effect of impliedly  repealing the  earlier subordinate legislation and no  question of  one named body or authority being lower than the  other can  arise; in  other words  the  status  or character of  the Rule  making body  would be irrelevant. In this view  of the  matter there  would be  no  necessity  of raising the Municipal Rules and Bye-laws to higher status to the parent  Legislation as  contended by the Counsel for the appellant. The first contention therefore fails.       Having  thus rejected  the  first  contention  of  the appellant for  the reasons indicated above it is unnecessary for us to consider the effect of deletion of Rule 3 and Bye- law 3  from these  Octroi Rules  and Bye-laws  done  by  the respondent Municipality and which deletion was sanctioned by the State Government on 13.4.1966 as such action was clearly taken ex  major cautela and the operation of these Rules and Bye-laws cannot  on that account be postponed but these will have to  be regarded  as having  come into force with effect from 1.5.1965. G       The  second contention  relates to  the effect  of the repeal of the Bombay Act under s. 279(1? of the Gujarat Act. The question  is what  has been saved under sub-s. (2) of s. 279 after  effecting such  repeal. Counsel for the appellant referred to clause (vi) of sub-s. (2) which runs thus:      "(2) Notwithstanding the repeal of the said Acts,- 770           (vi) any  appointment, notification,  notice, tax,           fee, order,  scheme,  licence,  permission,  rule,           bye-law, or form made, issued, imposed, or granted           in respect  of the  said boroughs or districts and           in  force  immediately  before  the  date  of  the           commencement of  this Act  shall in so far as they           are not  inconsistent with  the provisions of this           Act be  deemed to  have been made, issued, imposed           or granted  under  this  Act  in  respect  of  the           borough and  shall continue  in force  until it is           superseded  or   modified  by   any   appointment,           notification, notice,  tax,  fee,  order,  scheme,           licence, permission,  rule, bye-law,  or form made           issued, imposed or granted under this Act; Relying upon  the words "and in force immediately before the date of the commencement of this Act" occurring in the above provision counsel  urged that the Municipal Octroi Rules and Bye-laws in  question had been merely framed and at the most had been  sanctioned under the repealed Act (the Bombay Act) but these had not been brought into force immediately before

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the date  of the  commencement of  the Gujarat  Act, namely, 1.1.1965 and,  therefore, could  not be  said to  have  been saved under  the aforesaid  provision. Counsel  pointed  out that the  aforesaid clause  (vi) uses  both the  expressions "order" and  "Rule and  Bye-law" separately  and  therefore, Rules and  Bye-laws cannot  be confused  with the  order  of sanction passed  herein by  the Divisional  Commissioner  on 22.4.1964. It  is not possible to accept this contention for more than  one reason.  In the  first place  admittedly  the Municipal Octroi Rules and Bye-laws were validly made by the respondent  Municipality  on  17.12.1963  by  following  the procedure prescribed  by the  Bombay Act,  whereafter  these were forwarded  to the  Divisional  Commissioner  made  some suggestions  which   were   accepted   by   the   respondent Municipality; and  ultimately by  his order  dated 22.4.1964 the Divisional  Commissioner sanctioned these Rules and Bye- laws. In other words up to this stage everything was validly done under  the Bombay  Act prior to its repeal on 1.1.1965. Under clause (vi) of sub-6. (2) any order made and which was in force  immediately before the commencement of the Gujarat Act has  been saved,  inasmuch as  it is  provided that such order shall  be deemed  to have  been made under the Gujarat Act and will continue to operate until modified or rescinded by another  order passed  under  the  Gujarat  Act.  If  the Divisional Commissioner’s  order sanctioning  the Rules  and ye-laws is  thus  saved  that  order  cannot  be  looked  at divorced from  what  was  sanctioned  thereunder;  what  was sanctioned would  be a  part and  parcel  of  the  order  of sanction. 771 To say  that merely the order of sanction dated 22.4.1964 is saved A  and not the Rules and Bye-laws is to view the order of sanction  in the  air. In substance what is saved are the sanctioned Rules  and Bye-laws.  It is true that clause (vi) uses both  the expressions  ’order’ and  ’Rule and  Bye-law’ separately and distinct from each other but such separate or distinctive use  is  conceivably  made  to  cover  different situations. In  a case where the order that is saved happens to be  an order  sanctioning Rules and Bye-laws the two will have to  be regarded as part and parcel of single instrument which is saved in its entirety. In other words what is saved under clause (vi) of sub-s. (2) of s. 279 are the sanctioned municipal Octroi Rules and Bye-laws, 1965.      Secondly the question could be considered under s. 7(b) of the  Bombay General  Clauses Act,  1904. Section  7 deals with the effect of repeal an reads thus:           "7. Where  this Act  or any  Bombay Act or Gujarat           Act made  after  the  commencement  of  this  Act,           repeals any  enactment hitherto  made or hereafter           to be  made, then  unless  a  different  intention           appears, the repeal shall not-           (a)        xx        xx        xx           (b) affect the previous operation of any enactment           so repealed  or anything  duly  done  or  suffered           thereunder;" The Divisional  Commissioner’s order  according sanction  is obviously saved thereunder but even Rules and Bye-laws could be covered  by the expression "anything duly done- occurring in clause  (b) above  inasmuch as  the expression  ’anything duly done-’  would be  comprehensive enough  to take  in not only  the   things  done  but  also  the  effects  or  legal consequences flowing  therefrom. In  M/S  Universal  Imports Agency and  Another v.  The Chief  Controller of l ports and Export & Others, [1961] 1 S.C.R. 305, while interpreting the expression "things  done" occurring  in para 6 of the French

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Establishments’ (Application  of  Laws)  Order,  1954,  this Court  has   taken  the   view  that   such  expression   is comprehensive enough  to take  in not  only things  done but also  the   effects  or   the  legal   consequences  flowing therefrom. In  so interpreting the said expression the Court followed the English decision in The Queen v. Justice of the west Riding  of Yorkshire,  [1876] 1  Q.B.D. 220,  where the notice was given by a Local Board of Health 772 of intention  to make  a rate  under the  Public Health Act, 1848, A  and the  amending Acts  but before  the notice  had expired thee  Acts were  repealed by  the Public Health Act, 1875 which  contained a saving of "anything duly done" under the repealed  enactments, but  the Local Board, in ignorance of the  repeal, made  a rate  purporting  to  be  under  the repealed Act,  and it  was held that as the notice was given before the  repealing Act  the making  of the  rate was also saved by  the words  "anything duly done" under the repealed enactment. This  Court pointed out that the English decision was illustrative  of the point that it is not necessary that an impugned thing in itself should have been done before the Act was repealed but it would be enough if it was integrally connected with  and was  a legal consequence of a thing done before the  said repeal.  Therefore, it  is not  possible to accept the  contention that merely the order of sanction was saved and not the Municipal Octroi Rules and Bye-laws, 1965.      As regards  the last  contention  it  is  difficult  to accept that  the  Corrigendum  dated  10.3.1965  amounts  to modification of  the Rules  and Bye-laws.  The  material  on record clearly shows that corrigendum was issued with a view to rectify  typographical errors  or mistakes that had crept in the  typed copies  of the Rules and Bye-laws forwarded to the Divisional  Commissioner which had come to the notice of the Respondent-Municipality.  Even the  omission of sub-rule (5) of  Rule 5  in the  copies forwarded  appears to  be  an inadvertant typographical  mistake. Besides,  80 far  as the Rules  are   concerned  the  High  Court  has  rejected  the contention on  the basis  that the corrigendum even if lt is held to  amount to modification in regard to sub-rule (5) of Rule 5  the same  cannot be held to be outside the powers of the Government. The contention i, therefore, rejected.      In the  result the appeal fails and is dismissed. There will be no order as to costs. N.V.K.                                     Appeal dismissed. 773