BURMAH SHELL OIL STORAGE AND DISTRIBUTING CO OF INDIA LTD Vs. LICENSING OFFICER OF TAMLUK MUNICIPALITY

JUDGEMENT

(1.) The facts in this case are very short and they are as follows : The petitioner is the Bunnah Shell Oil Storage & Distributing Co. of India Ltd., a company with limited liability, having its Head Office for India at Calcutta. As is wellknown, the Company manufactures and distributes petrol and petroleum products as also kerosene, throughout the country. Sometime in August 1952, the petitioner Company received a notice from the Licensing Officer of Tamluk Municipality calling upon it to take out a trade licence and pay the necessary tax. The Company disputed its liability to pay trade-tax, and there was correspondence with the Municipality, ending in the Company making payments under protest.

(2.) The Rule was issued on 17-8-1953 calling upon the opposite parties to show cause why the notices and demands for the payment of trade-tax as mentioned in the petition should not be cancelled and/or recalled and why they should not be directed to refrain from demanding the same from the petitioner and also why a Writ in the nature of Prohibition should not issue as also a writ in the nature of Certiorari, and/or why such further or other order or orders should not be made as to this Court may seem fit and proper.

(3.) So far as the petitioner is concerned, the case shortly is that under the provisions of the Bengal Municipal Act, 1932 (hereinafter called the 'Act') it is not liable to pay trade-tax. The foundation for this is said to lie in the fact that according to the petitioner it does not carry on any trade or business within the jurisdiction of the Tamluk Municipality. According, to the respondent Municipality, the petitioner Company does carry on a trade within the precincts of the Municipality and as such is liable to pay trade-tax. There are several facts which fall to be considered upon this point of controversy. To start with, it is an admitted fact that the petitioner Company has taken lease of a plot of land within the precincts of the Municipality, and has constructed thereon a petrolpump with provision for storage of petrol. The second fact is that the petitioner Company has taken out a licence for the storage of petrol, which it must do under the provisions of the Act. It has not only taken out such a licence, but continues to hold it from year to year. The nature of the actual trade that is carried on in the leasehold premises is a matter of controversy. The Company enters into agreements with dealers for the sale of petrol as also kerosene. Copies of such agreement have been relied on by both sides and annexed to the affidavits. It appears from a casual reading of the agreements that there is something to be said on either side. So far as the kerosene agreement is concerned, it describes the dealer as an 'agent'. The matter is less clear with regard to the agreement relating to petrol, but nevertheless there is ground for arguing that the agreement is no more than an agent's agreement. Several other facts also are not disputed, e.g. that in calendars printed by the Company, such dealers are described as 'agents'. It is however said that there is no particular significance to be attached to the word 'agent', which expression is only used to confer a greater dignity or status upon the dealer. So far as the Act is concerned, the trade-tax that is sought to be levied is payable by virtue of Sections 123 and 182 read with Item No. 1 of Schedule IV of the Act. In Section 182, there has been an amendment, by which it is provided that the storage of goods within the precincts of a Municipality for the purpose of carrying on business outside the Municipality shall be deemed to be carrying on a trade or calling within the Municipality. The fact that the Company admittedly is in possession of a licence for storage of petrol within the jurisdiction of the Municipality, makes it very difficult for the Company to state that it has taken out a licence, but the storage is being effected by a stranger. Such an action would be a violation of the provisions of the Act. These however are some of the questions which have to be considered. There are other questions Which are also controversial. The Company says that it does not deliver any goods to its constituents at Tamluk but it does so in Calcutta, namely, at Budge Budge. It is said on behalf of the Municipality that the goods are taken by boat and delivered at Tamluk. To come to a proper finding on these disputed questions, it would be necessary to take further evidence, and I think that it would not be right to decide them in an application under Article 226. In order to establish the fact that the petitioner Company does not carry on trade within the precincts of the Municipality and as such, is not liable to pay trade-tax, it can institute an appropriate action in the proper jurisdiction, wherein evidence may be taken. As a matter of fact, at the hearing of this application, Mr. Das appearing on behalf of the petitioners, realised this, and took his stand on two constitutional questions.