DEVINDER SINGH KHORANA Vs. ADMINISTRATOR MUNICIPALITY JAMMU

JUDGEMENT

(1.) IN the above said two writ petitions, although filed by different petitioners and in writ petition No, 200 of 1977 only the Administrator? Municipality. Jammu is the respondent; whereas in writ petition No. 550 of 1980, the State of Jammu and Kashmir as well as Municipal Council, Jammu through its Chairman and the Octroi Officer, Tawi Octroi House, Jammu are the respondents, but the point involved in both the petitions is the same with respect to the realisation of Octroi Duty by the respondents on the import of wheat and wheat flour into the municipal limits Jammu at the rate of Rs. 1/ -per quintal is involved. By both the petitions the said imposition is challanged inter alia, on the ground that by virtue of the Notification issued under the Jammu and Kashmir Octroi Act. 1958, the above said commodity of wheat and wheat flour is exempted from the Octroi Duty, the imposition of Octroi on that Commodity Land the levy thereon under the Jammu and Kashmir Municipal Act, 2008 is bad in law and also that the Municipal Committee is not empowered to realise and impose that levy under the provisions of section 77 or section 78 of the Jammu and Kashmir Municipal Act of (both the Acts for brevity shall hereinafter be called respectively as the Octroi Act and the Municipal Act). Both the petitions are heard together and are hereby disposed of together by this judgment. By way of the present petition the petitioners have submitted that vide Government Order No. 26/C of 1943 dated 8. 1. 1943 issued under In the Octroi Act wheat and wheat products are exempted from Octroi Jammu Town under the Octroi Act till further .orders. The respondents, therefore, have no authority to charge the Octroi Duty on the Food -grains being imported by the petitioners for the payment of Octroi, who are Proprietors of the Flour Mills and are dealing in that business of importing the wheat and selling the flour. Subsequent to the said Notification Exemption by SRO -86 of 1966, certain conditions were imposed and the respondents under a misconception started realisation of Octroi Duty on the imported wheat and wheat products, which is without jurisdiction. The respondent -Municipality is not empowered to realise the Octroi Duty, as the Bye Laws and the Schedule therein on the basis of which the Municipality is realising the Octroi Duty are in violation of the provisions of sections 77 and 78.of the Municipal Act. It is also submitted that by the arbitrary imposition, the Government is charging Octroi from the petitioners while other Millers in Jammu and Srinagar are not subject to the said levy. The provisions of Section 5 of the Octroi Act also suffer from the vice of excessive delegation and the imposition notified in exercise of the power vested in the Government under this Section deserves to be quashed being unconstitutional. On the above grounds, the petitioners have prayed for issuance of a writ of Certiorari to quash the order of realisation of Octroi Duty from the petitioners on the import of Wheat within the Municipal Limits of Jammu and also prayed for the direction to refund the amount already paid by them.

(2.) IN writ petition No. 200 of 1977, the order passed by the when Adminstrator of Municipal Committee, Jammu on 8th of Oct. 1977 is also challenged by which the plea of the petitioner was rejected by the Adminstrator on the ground that exemption of the Octroi Duty on the import of wheat and wheat products in the Jammu Town issued vide Council Order No. 26/C of 1943 dated 8.1.1943 stands modified and further orders were made by sro -86 of 1966 dated 12th of March, 1966 limiting the exemption are based.

(3.) BOTH the petitions are contested by the respondents on several grounds inter alia this is also submitted in the preliminary point that being an alternative remedy of appeal under sec. 104(1) against the assessment or levy of, or against the refusal to refund any tax under the Municipal Act, shall lie to the Government or to such authority as may be empowered by it in this behalf, whose orders shall be final, the petition is not maintainable. Inter alia it is also submitted that in view of the vaild imposition under the Municipal/Octroi Bye -laws under Sec. 77/(ii) of the Municipal Act issued u/s 78 of the Municipal Act vide Notification SRO -153 dated 10 -4 -1974, the Octroi is liviable according to the Octroi Tarrif sanctioned by the Municipal Council. The provisions of Octroi are not applicable in view of the above said Bye -laws, since the Municipal council levies or collects the Octroi itself the provisions of the Octroi Act have ceased to apply.