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Municipal Board Vs. Jai Engineering Works Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 1317 of 1955
Judge
Reported inAIR1957All244
ActsConstitution of India - Articles 14 and 226; Uttar Pradesh Municipalities Act, 1916 - Sections 296
AppellantMunicipal Board
RespondentJai Engineering Works Ltd. and anr.
Appellant AdvocateYashoda Nandan and ;Har Nandan Prasad, Advs.
Respondent AdvocateAmbika Prasad and ;Raja Ram Agarwala, Advs.
DispositionPetition dismissed
Excerpt:
.....14 and 226 of constitution of india - article 14 guarantees right to person and not only citizen - municipal board is entitled to relief by way of writ. - - the allahabad branch of the company also runs a school where the training in sewing is imparted and the machines sent to allahabad branch are utilized for this purpose as well. 5. a power has been given to the high court under article 226 of the constitution to issue any direction or writ in favour of any person for the purpose of enforcing any fundamental right as well as for any other purpose. article 226 of the constitution is not confined to the enforcement of a fundamental right, nor can it be interpreted to mean that only a citizen who has been granted fundamental rights under chapter iii can approach this court both for the..........carry on the business of sale ofusha sewing machine. in the course of their business they import sewing machines within the octroi limit of allahabad municipality. in june 1954 the opposite party no. 1 received 28 sewing machines and the dealers from whom the opposity party no. 1 had purchased the machines sent the railway receipt and the invoice. on the 17 of june 1954 the opposite party no. 1 brought the railway receipt and the invoice to the head octroi office, allahabad, under rule 159 of the municipal account code for the stamping of the railway receipt and for payment of the octori payable thereon. the value of the goods declared by them has been rs. 3,600/- and thereupon an octroi of rs. 112/8/- was assessed and received from them, and according to rule 159 the railway receipt.....
Judgment:
ORDER

Mehrotra, J.

1. This is a petition on behalf of the Municipal Board, Allahabad under Article 226 of the Constitution praying that a writ of certiorari be issued quashing the order of the Additional Commissioner dated the 20th of August 1955 and that the opposite party No. 1 Jay Engineering Works Ltd., be directed not to apply for refund in enforcement of the above order.

2. The facts mentioned in the affidavit are that Messrs. Jay Engineering Works Ltd., opposite party No. 1, carry on the business of sale ofUsha Sewing Machine. In the course of their business they import sewing machines within the octroi limit of Allahabad Municipality. In June 1954 the opposite party No. 1 received 28 sewing machines and the dealers from whom the opposity party No. 1 had purchased the machines sent the railway receipt and the invoice. On the 17 of June 1954 the opposite party No. 1 brought the railway receipt and the invoice to the Head Octroi Office, Allahabad, under Rule 159 of the Municipal Account Code for the stamping of the railway receipt and for payment of the octori payable thereon.

The value of the goods declared by them has been Rs. 3,600/- and thereupon an octroi of Rs. 112/8/- was assessed and received from them, and according to Rule 159 the railway receipt and the invoice were stamped with the Municipal Stamp and returned to the opposite party No. 1 to enable them to obtain the goods from the railway. The octroi as determined by the Octroi Superintendent was paid by the opposite party No. 1 at the Central Barrier. An appeal was filed by the opposite party No. 1 from the order dated the 17th of June 1954 under which the octroi had been assessed to the Additional Commissioner. The appeal was allowed by the Additional Commissioner and it was held by him that the Board was not competent to impose any octroi duty on the import of sewing machines. The octroi realised by the Board was ordered to be refunded. An objection had also been taken before the Additional Commissioner that no appeal lay to him.

3. Notices were issued to the opposite parties and a counter-affidavit has been filed on their behalf. In the counter-affidavit it was stated that Messrs. Jay Engineering Works Ltd. manufacture Usha Sewing Machines and fans, etc., at Calcutta where its Head Office is also located. Various selling branches have been opened at different places and there is a selling branch of the Company at Hewett Road, Allahabad, for over 12 years. The Company sends sewing machines and other manufactured goods to the selling branches where the paid servants of the Company sell the sewing machines and other goods. The Allahabad Branch of the Company also runs a school where the training in sewing is imparted and the machines sent to Allahabad Branch are utilized for this purpose as well.

It is admitted by the opposite party that in June 1954 twenty-eight sewing machines had been received. Several years past Allahabad Branch had been receiving sewing machines from the Head Office at Calcutta and no octroi duty had ever been paid by the Allahabad Branch. In June 1954 when the railway receipt and the invoice were sent to the Head Octroi Office for stamping and for making a free pass a demand for the payment of octroi was made. In order however to have no business inconvenience the octroi demanded wag paid as a protest. Thereafter the opposite party No. 1 discussed the matter with the Executive Officer and the Administrator but as no relief was granted to him he filed an appeal to the Additional Commissioner which was allowed. The right of the Municipal Board to charge octroi on the sewing machines has been challenged by the opposite party No. 1.

4. A preliminary point was raised by the opposite party No. 1 to the maintainability of the present petition. The contention raised by the opposite party No. 1 is that the Municipal Board being a statutory body has no right to approach this Court under Article 226 of the Constitution. Article 226 gives power to the High Court throughout the territories in relation towhich it exercises Jurisdiction to issue to any person or authority, including in appropriate cases any Government within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them for the enforcement of any of the rights conferred by Part III and for any other purpose. The main argument of the opposite party No. 1 was that the Municipal Board not being a citizen could not claim any fundamental rights under Chapter III and thus it has no right to claim any relief under Article 226 of the Constitution. In my judgment there is no force in this preliminary objection.

5. A power has been given to the High Court under Article 226 of the Constitution to issue any direction or writ in favour of any person for the purpose of enforcing any fundamental right as well as for any other purpose. It is not denied that the Municipal Board is a person and if any of its rights which are other than the fundamental rights are infringed the Board has as much a right to approach this Court for the enforcement of that right by means of a direction as any other person.

Article 226 of the Constitution is not confined to the enforcement of a fundamental right, nor can it be interpreted to mean that only a citizen who has been granted fundamental rights under Chapter III can approach this Court both for the enforcement of the fundamental right as well a5 for the enforcement of other rights, but anyone who has not been enforcement of other rights, but anyone who has not been guaranteed any fundamental right under Chapter III has no right to enforce even his other rights by means of a petition under Article 226 of the Constitution. Apart from this Article 14 of the Constitution which is in Chapter III confers a guarantee on any person and is not confined to a citizen and as such the Municipal Board is at least entitled to the protection of Article 14. In any view of the matter therefore the Municipal Board is entitled to a relief under Article 226 of the Constitution and there is no force in the preliminary objection raised by the opposite party No. 1.

6. Coming to the merits of the case it hasnot been seriously pressed before me that theAdditional Commissioner had no power to hearthe appeal and that the order of the AdditionalCommissioner is without Jurisdiction. It has alsonot been pressed before me that the oppositeparty No. 1 had any other remedy available tohim.

7. The main contention raised by the petitioner is that under the Municipal Account Code sewing machines were liable for octroi duty and the octroi was validly levied and realised from the opposite party No. 1. The decision of the Additional Commissioner to the contrary is palpably and manifestly erroneous. In order to appreciate this point it is necessary to refer to some of the provisions of the Municipalities Act and the Municipal Account Code. Section 128 of the Municipalities Act gives powers to the Municipal Board to impose an octroi duty on goods or animals brought within the municipality for consumption or use therein.

Section 296 of the Act gives power to the State Government to make rules consistent with the Act in respect of the matters described in Sections 29, 95, 127 and 153. Section 153 of the Act lays down the matters which would be regulated and governed by the Rules, and one of the matters is the assessment, collection or composition of taxes and In the case of octroi or toll the determination of theoctroi or toll limit. The provisions of the Municipal Account Code dealing with the assessment and realisation of the octroi dues have been framed in, the exercise of powers under Section 296 of the Municipalities Act. Paragraph 131 of the Municipal Account Code provides that subject to the exceptions contained in the proviso below, octroi shall ordinarily be levied on commodities included in the list given under that paragraph.

Class VIII of the list enumerated in paragraph 131 provides for metals and articles made wholly or partly of metal. Paragraph 132 of the Municipal Account Code provides that the following articles, on which octroi would be otherwise leviable, shall be exempt from the payment of such octroi and item No. 17 of this paragraph is as follows; 'Machines worked fay manual power when used for industrial or educational purposes, e.g., sweing machines and type-writers.'

The contention raised by the petitioner Municipal Board is that the sewing machines are articles made wholly or partly of metal and as such are liable to octroi under para. 131. No octroi however would be realisable in case sewing machines are covered by any of the items of the articles mentioned in para. 131 and sewing machines in the present case imported by the opposite party No. 1 are not covered by para. 132, item No. 17. The opposite party's contention however is that the sewing machines are covered by item No. 17 of para. 132. I have already quoted the language of item No. 17. The Municipal Board's contention is that all machines worked by manual power are not exempt from octroi duty but machines worked by manual power when used for industrial or educational purposes are exempt and unless the person who claims exemption proves that the particular machine which he has imported is to be used for industrial or educational purposes he can not claim that exemption.

This contention ignores the latter part of para. 132(17). The framers of the Rules after laying down that machines worked by manual power when used for industrial or educational purposes are exempt have further given illustration of such machines and have specifically mentioned sewing machines and typewriters as machines answering the description. If the interpretation put by the Board is accepted then it will have to be held that the illustration given in this item, namely, sewing machines and type-writers, is only an illustration of machines worked by manual power. To my mind the whole scheme of paragraph 132 is that it enumerates the articles which are liable to be exempt form octroi duty and one op the articles is machines worked by manual power when used for industrial or educational purposes.

As an illustration of such a machine sewing machines & type-writers are specified. The octroi duty is charged as soon as the goods enter the municipal octroi limits. At this stage it is difficult to ascertain whether the particular goods would be used for industrial or educational purposes or not and therefore it cannot be said that the exemption can only be claimed if and when any particular machine is used for industrial or educational purposes. Item No. 17 para. 132, as I have already pointed out, specifies the nature of the article which is exempt and if the words, viz., sewing machines and type-writers, were not in that class it would not have been open to a dealer to claim exemption on the ground that sewing machines and type-writers were such as would be used for industrial or educational purposes.

The framers of the Rules having specifically mentioned sewing machines and type-writers as an illustration have put it beyond controversy thatthey can be regarded as machines worked by manual power when used for industrial or educational purposes. It is not a proper method of construction to take the illustration as only indicating the first part of item No. 17 and not as an illustration of the article contemplated by item No. 17 as a whole. Emphasis was laid on the words 'when used for industrial or educational purposes' by the counsel for the petitioner. But as I have already pointed out the octroi is payable as soon as the goods enter the municipal limits and therefore the imposition of octroi cannot depend upon the ultimate use of the machinery.

It will depend upon the nature and the character of the machinery itself. If it is a machinery which has been exempted from payment of octroi under para. 132, item No. 17, the fact that it may ultimately be used for non-industrial or non-educational purposes will not make it liable for payment of the said octroi. In my judgment therefore the sewing machines and type-writers Were exempt under para. 132, Sub-section (17) of the Municipal Account Code from payment of octroi duty and the Municipal Board was not entitled to realise such an octroi from the opposite party No. 1.

8. The petition therefore has no force andis rejected with costs.


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