The procedure prescribed under Rule 5(2) of the Maharashtra Municipalities (Octroi) Rules, 1968 is mandatory, but its non-compliance would not render the resolutions void if the appellants did not dispute that the procedure was not followed.

JUDGMENT - R.M. LODHA, J. :---This second appeal preferred under section-100 of Civil Procedure Code, 1908 is directed against the judgment and decree passed by IInd Extra Assistant Judge, Sangli on 2nd July, 1983 affirming the judgment and decree passed by Civil Judge, Junior Division, Vita on 28th April, 1982 in R.C. Suit No. 114/87 whereby the Courts below have dismissed plaintiff's suit for declaration and injunction.

2.The background facts of this appeal in nutshell are :

Vita Municipal Council is Class-C Municipal Council under the Maharashtra Municipalities Act, 1965 (for short, Act of 1965'). In exercise of the powers conferred by sub-section (2) of section 321 read with sub-section (1) of section 105 of the Act of 1965 and all other laws enabling it in this behalf, the Government of Maharashtra made the Maharashtra Municipalities (Octroi) Rules, 1968 (for short, 'Rules of 1968') which came into force on 14th August, 1968. By resolution dated 11-9-1968, the Municipal Council, Vita excluded levy of octroi on yarn and threads of all sorts. Thereafter by resolution dated 23rd January-1975 bearing No. 8/86 the Municipal Council, Vita decided to levy the octroi on yarn and threads falling under Entry 65 of Schedule-I appended to Rules of 1968 and the said resolution was to be effective from 1st April, 1975. It appears that the Collector, Sangli in exercise of his powers vested under section 308 of the Act of 1965 suspended the operation of the said resolution dated 23rd January-1975. On 7th July-1975 the Municipal Council, Vita passed another resolution providing amendment in the resolution dated 23rd January, 1975 and thereby fixed the rate of octroi on yarn and threads specified at Item No. 65 of Schedule-I @ Rs. 1.20 in case the declaration in Form No. 14 was given stating that the goods have brought in for the purpose of industrial process. The notices as required under law were published on 25-7-77 and date of enforcement was fixed from September 1977. The Municipal Council, Vita accordingly started charging the octroi. The Samast Vinkar Bhagdhari, an association of various persons in representative capacity filed a suit before the Civil Judge, Junior Division, Vita praying therein that the levy of octroi over the yarn and threads pursuant to the two resolutions dated 23-1-1975 and 7th July-1975 be declared null, void and ineffective since the mandatory procedure required under law was not observed. The plaintiff also prayed for perpetual injunction restraining the Municipal Council, Vita from levying any octroi over the threads and yarn. The trial Court granted the permission to the plaintiff to sue in representative capacity. The Municipal Council, Vita opposed the claim of the plaintiffs and denied allegations that the resolutions dated 23-1-1975 and 7th July-1975 were issued and made enforceable without following the prescribed procedure under the Act of 1965 and Rules of 1968. According to the written statement filed by the Municipal Council. Vita on coming into force of the Rules of 1968 on 14th August, 1968, the Municipal Council passed resolution on 11-9-1968 levying octroi on various items and those were brought into force with effect from 1-11-68. However, keeping in view the local conditions levy of octroi on the yarn and threads was exempted in exercise of the powers under sub rule (4) of Rule 5 of Rules of 1968. The Municipal Council asserted that the provisions and the rules were followed while passing resolution dated 11-9-1968. Thereafter, the Municipal Council in its resolution dated 23-1-1975 decided to withdraw the exemption from 1st July, 75 and accordingly after following the procedure prescribed under Rule 5, the exemption of octroi on yarn and threads was withdrawn and octroi was levied. The said resolution dated 23-1-1975 was amended by the subsequent resolution dated 7th July-1975. Thus, according to Municipal Council, the octroi is charged in accordance with law and plaintiffs were not entitle

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