A-ONE ENGINEERS AND BUILDERS Vs. NAGAR MAHAPALIKA

JUDGEMENT

(1.) THE Petitioner, M/s. A -One Engineers & Builders, Kanpur, carry on business in Kanpur, dealing in centrifugal pumps, diesel pumping sets, diesel oil engines and tube -well fittings, mainly used for agricultural purposes. According to the Petitioner, the pumping sets are sold to agriculturists for agriculture purposes. The agriculturists are granted loan by the State Government or by a Scheduled Bank. They are sold to such agriculturists who are recommended by the Governmental authorities. The case of the Petitioner is that the diesel engines, pumping sets, tube -well fittings etc. in which it is dealing are agriculture implements and accessories which are imported for agricultural purposes only and they being exempt from octroi under the Government Notification, the Nagar Mahapalika of Kanpur had no right or authority to levy and charge octroi on such goods. The, Petitioner has challenged the validity of such levy and charge by the Nagar Mahapalika, Kanpur. The Petitioner has further raised a plea that the octroi so levied had not been legally and validity levied as required by law and on that ground also the levy is unauthorised. A Writ in the nature of mandamus is sought prohibiting the Nagar Mahapalika, Kanpur from levying and charging the octroi.

(2.) THE Nagar Mahapalika has raised a contest on the ground that the levy or octori by it is legal and valid under the law applicable and all provisions of the U.P. Nagar Mahapalikaa Adhiniyams were complied with in levying the octroi. It has also been contended on behalf of the Nagar Mahapalika that the pumping sets, diesel engines sets and other materiala for tube -well imported and sold by the Petitioner are liable to charge under the Octroi Rules on the rates, prescribed as machinery and they are not exempt from octori under the notification of the Government as these pumping sets and diesel engines are not agricultural implements and accessories as they can be used and are used for the purposes other than agriculture.

(3.) WE assume for the purposes of this case that all the formalities required by law have been complied with in levying the octroi by the Nagar Mahapalika. The only question to be considered then is whether the articles in question fall within the exemption granted by the State Government. At the outset it may be observed that on behalf of the Petitioner it has been averted in the affidavit that the pumping sets, diesel engines, tube well fittings etc. are sold to agriculturists for agricultural purposes and they are imported for agricultural purposes only. In the counter affidavit filed on behalf of the Nagar Mahapalika it has been averred that it is wrong to say that each and every oil engine is used for agricultural purposes only. In fact the main controversy seems to revolve round the levy of octroi on diesel engines. According to the Petitioner, these engines are a necessary ingredient of a pumping sets which lifts water for agricultural purposes and since, the whole supply of such sets fitted with engines is meant for agriculturist for use in agricultural operation only, it would be exempt from octroi. The Nagar Mahapalika took up the stand that every diesel oil engine would not necessarily, be an ingredient of pumping set for lifting water by the agriculturist and can be sold as a separate entity, it will not fall within the exemption clause. Reliance was also placed on a list issued by the Government in 1957 and published in Gazette explaining the items which were exempt as agricultural implements and on its basis it is the case of the Nagar Mahapalika that oil engines and pumping sets not having been included in the enumeration of agricultural implements clearly showed an intention on the part of the Government that their import was not exempt from octroi. We do not think the question of fact raised on the averments as to the actual use which the oil engines and pumping sets are put by the purchasers needs to be elaborately discussed inasmuch we believe the averments of the Petitioner that these implements and accessories thereof are imported by it for agricultural purposes only. There is sufficient material on record in support of this averment, which has not been satisfactorily controverted.