SATNA CEMENT WORKS Vs. NAGAR MAHAPALIKA ALLAHABAD

JUDGEMENT

(1.) THE Petitioner is engaged in the business of manufacture and sale of cement and has its factory at Satna in the State of Madhya Pradesh. It has its office at 230, Bansidhar Market, Uncha Mandi, Allahabad, Which falls within the limits of Nagar Mahapalika, Allahabad. At this office the Petitioner enters into contract of sale of cement with customers both within the limits of the Nagar Mahapalika as well as beyond it. It maintains two godowns: one in mohalla Himmatganj within the limits of the Nagar Mahapalika, Allahabad, and the other in village Dabrajpur at C.O.D. Road out side the limits of the Nagar Mahapalika, which the Petitioner has termed as Factory Cement Dump in village Dubrajpur. For bringing cement by road from the Petitioner's factory at Satna to its godown in Mohalla Himmatganj as well as to its Cement Dump in village Dubrajpur the trucks have to enter the limits of the Nagar Mahapalika through an octroi barrier. The cement which is stocked In the godown in mohalla Himmatganj after being brought within the limits of the Nagar Mahapalika through the aforesaid octroi barrier remains within the said limits and is according to the Petitioners sold to the customers within the limits of the Nagar Mahapalika from its sale office at Bansldhar market. The Petitioner admits its liability to pay octroi in regard to such cement. As regards as the cement which is stocked at the Cement Dump in village Dubrajpur, the case of the Petitioner is that after entering the limits of the Nagar Mahapalika, Allahabad through the aforesaid octroi barrier the cement is soon thereafter taken out of the said limits to reach its destination in village Dubrajpur out side the limits of the Nagar Mahapalika. This cement also while it remains lying in the said village is sold by the Petitioner from its sale office at Bansidhar market. According to the Petitioner the cement which is clocked in village Dubrajpur passes through the limits of the Nagar Mahapalika only in transit In connection with its onward journey to village Dubrajpur and the Nagar Mahapalika for the last about 12 years, since when the Factory Cement Dump at Dubrajpur has been in existence, had been issuing transit passes at the time of the entry 01 trucks within its limits at the aforesaid cctroi barrier which used to be surrounded at the octroi barrier at the other end while going ou of the said limits in connection with the onward journey to village Dubrajpur.

(2.) THE Petitioner's grievance in the present writ petition is that from 1st February, 1984 the Nagar Mahapalika has stopped issuing passes as, aforesaid and has started realising octroi from it in regard to such cement also which only passes through its limits for being stocked in village Dubrajpur. The reliefs prayed for in this writ petition are that a direction may be given to the Respondents, namely, the Nagar Mahapalika, Allahabad and its octroi superintendent to issue transit passes as they used to do earlier in regard to the cement taken by the Petitioner to its Cement Dump in village Dubrajpur and not to realise octroi in regard to the said cement as also to refund the amount of octroi realised in respect thereof on and after 1st February, 1984. The only point which has been urged by counsel for the Petitioner in support of the aforesaid reliefs is that even though the Petitioner's cement stored at its Cement Dump in village Dubrajpur passes through the limits of the Nagar Mahapalika, Allahabad for being stored at the said Cement Dump and was sold from its sale office at Bansiohar market it could not be held to have been 'brought within' the limits of the Nagar Mahapalika within the meaning of Section 172(2)(b) of the U.P. Nagar Mahapalika Adhiniyam, 1959 (hereinafter referred to as the Act). It was urged that no octroi was payable in respect of the said stock inasmuch as it was not stored and was not in existence at any place within the limits of the Nagar Mahapalika at the time of its sale. According to him physical presence of the said cement within the limits of the Nagar Mahapalika at the time of its sale was necessary to attract the provisions of Section 172(2)(b) of the Act. The relevant portion of Section 172 of the Act reads:

(3.) IT 19 admitted that the said cement enters within the limits of the Nagar Mahapalika through the aforesaid octroi barrier, even though only for going out through the octroi barrier at the other end on its onward journey to village Dubrajpur and it cannot be disputed that if the aforesaid entry satisfies the requirement of the good being "brought within" as contemplated by Section 172(2)(b) of the Act the levy of octroi will be valid. The crucial question which, therefore, falls for consideration is the true Import and interpretation of the aforesaid two words "brought within". In Burma Shell Co. v. Belqaum Municipality AIR 1963 SC 906 it was held in paragraph 21 of the report that the true concept of octroi included the bringing In of the goods in local area so that the goods come to a repose there." The word 'repose' used by the Supreme Court in the aforesaid expression according to dictionary, inter alia, means 'rest, quiet, stillness' and the word 'there' obviously means within the limits of the local area concerned. In Town Municipal Council v. Urmilla Kothari, AIR 1977 SG 873, it was held that if goods are carried in trucks which merely pass through the areas which lie within the municipal limits and are not unloaded and reloaded at any place within the municipal area the important element of repose and rest which the words 'brought into the municipal limits for the purpose of immediate exportation' in Section 124 of the Karnatak Municipalities Act 1964 imply is absent. It was further held that in such a case as the continuity or continuation process of the carriage of goods is not in any way in fact broken within the municipal limits it cannot be said that the goods were brought in or exported as contemplated by Section 124 aforesaid. Before octroi can, therefore, be levied on goods under Section 172(2)(b) of the Act the journey of the goods after being brought within the limits of a Nagar Mahapalika should break within the said limits and the said goods should lie there in a state of rest, quiet or stillness for " consumption use or sale therein." The view taken by it in the case of Burma Shell Co. (supra) was reiterated by the Supreme Court in the case of Hiralal Thakoralal v. Broach Municipality : AIR 1976 SC 1446.