Judgment

KAPUR, J. : A Divisional Bench of this Court made a reference under the proviso to cl. (3) of Art. 145 on the following two points :

(1) Whether the imposition in the present case offends Arts. 276 or 301 of the Constitution?

(2) Whether the failure to notify the final resolution of the imposition of the tax in the Government Gazette is fatal to the tax? The facts of the case are set out in the order of the Divisional Bench and it is unnecessary to restate them. The appellants in the two appeals and in the two petitions under Art. 32 are challenging the constitutionality of the octroi duty on cotton and wool imposed by the respondent Corporation within its octroi limits. The procedure for levying municipal taxes and the power of control of Government in regard to those taxes is laid down in S. 98 of the City of Bangalore Municipal Corporation Act (Act 69 of 1949) hereinafter termed the Act. The procedure is that a resolution intending to impose a tax has to be passed by the Corporation and that resolution is required to be published in the Official Gazette and in the local newspapers. The rate payers can then submit objections and after considering such objections received during the specified time the Corporation may by resolution determine to levy the tax or duty. When such a resolution has been passed the Commissioner is required to publish forthwith a notification in the Official Gazette and in the newspapers as set out in sub-s. (1) of S. 98 of the Act. This notification is to specify the date from which, the rate at which and the period of levy, if any, for which such tax is levied.

2. As has been stated in the order of the Divisional Bench all other requirements of S. 98 were complied with except that the notification in the Government Gazette as required by sub-s. (2) was not published. This, it was submitted, was a defect which was fatal to the legality of the imposition of the tax. To support this submission reliance was placed on two judgments of this Court in Harla v. State of Rajasthan, 1952 SCR 110 and State of Kerala v. P. J. Joseph, AIR 1958 SC 296. In the former case the Jaipur Opium Act was enacted by a resolution of the Council of Ministers appointed by the then Crown Representative but this law was neither promulgated nor published in the Gazette nor made known to the public. The mere passing of the resolution by the Council of Ministers without publication was held not to be sufficient to make the law operative. At p. 114 (of SCR) : (at p. 468 of AIR), it was observed that reasonable publication of some sort was necessary and that natural justice required that before a law could operate it had to be promulgated or published and it must be broadcast in some recognisable way. Similarly in the latter case there was no publication in the Gazette of the order of the Government made in the exercise of the power conferred by an Act nor was there any communication of the order to the person affected thereby and it was held that not having been published in the Gazette it was not valid and could not have the force of law. But the respondent relied upon S. 38(1) (b) of the Act which cures defects or irregularities not affecting the merits of the case. That section provides :-

S. 38(1). "No act done, or proceeding taken under this Act shall be questioned merely on the ground-

(a) ..................................

(b) of any defect or irregularity in such act or proceeding, not affecting the merits of the case."

Thus under that provision any defect or irregularity not affecting the merits of the case saves any act done or proceeding taken under the Act on the ground of such irregularity or defect. The appellants contended that the section has no application to defects in regard to procedure under S. 98 of the Act for the imposition of taxes because S. 38 read as a whole refers to a different situation and that there was internal evidence in the section itself to show that it has no relevance to the objection taken