MOHD AKBAR Vs. STATE OF J&K

JUDGEMENT

(1.) THE petitioner seeks a writ of certiorari as also of mandamus in respect of the imposition of tax under section 24 of the Town Area Act. The petitioner has averred that he is a fruit trader carrying on business of transportation of fruits and in this capacity he carries in vehicles fruits from Handwara to New Delhi. While carrying goods to New Delhi he has to pass through the limits of Notified Area Handwara, Town Area Sopore and Municipal limits of Srinagar and Jammu. While exporting the fruits to Delhi in the vehicles the petitioner does not stop any where enroute either for loading or unloading within the jurisdictional limits of any of the respondent Nos. 2 to 4. The fruit boxes sent by the petitioner to New Delhi from Handwara are being taxed at various points within two jurisdic -tional limits by the respondent 2 to 4 at different rates. The petitioner has further averred that the imposition and collection of taxes at various points by the respective Town Area and Notified Area Committees is being done inspite of the fact that the vehicles carrying fruit boxes do not stop in transit for loading or unloading purpose within the jurisdictional limits of any of the respondents. Therefore the taxes so imposed and collected by respondents

(2.) TO 4 are illegal and without jurisdiction. It is claimed that goods while in the course of Transit are immune from levy of tax and no tax can be levied under section 24 of the Town Area Act. Even respondent No. 1 issued an order No. 2360 -76/LB dated 9 -7 -1974 (forming annexure F to the petition) directing the respondents 2 and 3 not to impose Dharat duty on fruits which do not stop for more than 24 hours within their respective limits. But inspite of this specific instruction by respondent No. 1, the Dharat duty continues to be imposed by these respondents in violation of the rules. The petitioner, therefore, prays that the respondents 2 to 4 be restrained from collecting illegal tax levied on the petitioners goods when they are in the course of transit. The application is supported by an affidavit. The petitioner has also annexed with the petition annexures (A to F). 2. In their objections the respondents have through their counsel submitted that loading and un -loading of vehicles in transit is irrelevant for the purpose of determination of tax imposed by the Town Area Committee and Municipal Committees. The imposition of tax, it is submitted, is not illegal. It is perfectly within the competence of the authority imposing it. The provisions of section 24 of the Town Area Act have been misconstrued in -as -much as this section authorises inter -alia a committee which includes a Town Area Committee to impose subject to the provisions of the Act and the rules made thereunder the taxes mentioned in the section which includes Octroi Tax known as Dharat on goods brought within the town limits amongst other purposes for the purposes of sale. The goods taken to Delhi are on admission of the petitioner for the sale and therefore they are liable to be taxed. The place of sale is not relevant for the purpose of exercise of the authority under section 24 of the Act. I have heard the learned counsel for the parties.

(3.) IT is the interpretation of Section 24 (d) of the Town Area Act that is involved in this petition. Section 24 provides that a committee may subject to the provisions of the Act and the rules made thereunder impose in the whole or any part of the town area a town rate for any one or more of the taxes and fees such as modified octroi known as Dharat on animals or goods or both brought within the limits of town for consumption or for use therein or for sale. What the section intends to lay down is that Dharat can be imposed on goods that are brought within the Town Area limits for consumption or for use. It is the admitted position that in the present case the goods are not brought within the town limits of the respective committees for consumption or for sale. These goods are in the course of transit and therefore it cannot be said that they are brought within the limits of town area for consumption or for sale. It is the sale at the respective destination where the goods are carried that is material. There is no warrant for the proposition that fruit boxes in the vehicles meant to be exported to Delhi are meant for sale even at interim places where they are charged the Dharat Duty.