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PETITIONER: THE MUNICIPAL COMMITTEE, RAIPUR

       Vs.

RESPONDENT: PHOOLCHAND AND OTHERS

DATE OF JUDGMENT: 20/10/1961

BENCH:

ACT:      Municipality-Bye-law-Interpretation   of-levy of octroi  on sarso  oil seeds-Rate-Rules  of  the Raipur  Municipality,  1951,  Schedule  of  goods, items 4, 44.

HEADNOTE:      The  respondents   carried  on   business  of extraction of  oil from  oil seeds.  The appellant Municipality charged  octroi duty  at  Rs.  4-11-0 percent ad  valorem under  item 44 of the schedule of goods  attached to  the  Rules  framed  by  the Municipality. The  respondent’s case was that they were liable to pay octroi under item 4 of the said Rules at the rate of 2 as. per maund. The schedule consisted of eight classes with 67 items of goods, the serial  number running  consecutively. Class I was headed  "Articles of  food or drink or use for men or  animals". Item 4, which was in that class, read "oil seeds every description not specifically mentioned else  where". Class V was headed "Drugs, spices and  gums, toilet  requisites and perfumes" and item  44 which  was in that class read "betel- nuts,  gums,  spices,  sarso  etc.  and  known  as kirana" (groceries).  ’I‘he single Judge who heard the matter in the first instance held in favour of the appellant  but the  court of  appeal  held  in favour of the respondent. ^      Held, that  the view  taken by  the Court  of appeal must be upheld.      The   words    not   specifically   mentioned elsewhere" in  item 4  of the  Schedule must  mean mention as an oil-seed.      The  words  "known  as  Kirana"  in  item  44 clearly indicated that sarso fell within its ambit only as  a spice  or as  Kirana and not as an oil- seed. Although  there could be no doubt that sarso as an  oil-seed was  the same thing as Kirana, but the intention  behind the  bye-law to  charge  oil seeds at a lesser rate was clear and must be given effect to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeals Nos. 356 and 357 of 1961.      Appeals by special leave and certificate from

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the judgment  and orders  dated October  16, 1959, and February  16,1960, of  the Madhya Pradesh High Court in  L. P.  A.  No.  93  of  1957  and  Misc. Petition No. 254 of 1959 respectively. 152      S. T.  Desai and  N. H.  Hingorani,  for  the appellant.      M. R.  Nambiar, S.  N. Andley, Rameshwar Nath and P. L. Vohra, for respondent No. 1.      1960. October  20. The  Judgment of the Court was delivered by      HIDAYATULLAH, J.-These two appeals by special leave have  been filed by the Municipal Committee, Raipur,  against  two  different  respondents  who carry on  business of  extraction of  oil from oil seeds. The  case involves an interpretation of the Byelaws  of   the  Municipal   Committee  and  the determination of  octroi duty which was payable by the  respondents   in  the   relevant   years   of assessment on  sarso oil  seeds  brought  by  them within the  area of  the appellant  Committee  for purposes  of   their   business.   The   Municipal Committee demanded  an ad  valorem octroi duty Rs. 4-11-0 per  cent from the respondents, claiming to levy it  under item  44 of  the Schedule  of goods liable to  octroi duty in the Raipur Municipality, appended to  the Rules framed on June 4, 1951. The respondents, on  the other  hand contended  that a duty of  2 annas per maund was leviable under item 4 of  the same Schedule, which covered the case of oil seeds.      The    respondents    made    representations described as appeals, but were unsuccessful. Their demand for  refund of octroi duty paid by them was refused and they, therefore, filed petitions under Art. 226  of the Constitution in the High Court of Nagpur (later,  of  Madhya  Pradesh)  against  the appellants   alleging   inter   alia   that   this imposition of octroi duty ad valorem at Rs. 4-11-0 percent on  sarso oil  seeds as  against other oil seeds was  ultra  vires  the  Municipal  Committee under Art.  14  of  the  Constitution.  They  also averred that  octroi duty  was  properly  leviable under item  4 and  not under  item 44. In the High Court, the  petition out of which Civil Appeal No. 356 of  1961 arises, was heard by a learned single Judge, who held that 153 sarso oil seeds were chargeable to duty under item 44 and  not under  item 4.  From the  order of the learned single  Judge, it  does   appear that  the constitutional  question  was  urged  before  him. Against this  order, a  Letters Patent  Appeal was filed, and  the Divisional  Bench, which heard the appeal, held,  disagreeing with the learned single Judge, that  duty was properly leviable only under item 4.  Before the Divisional Bench also, it does not appear  that the  constitutional question  was argued. The  petition, out  of which  Civil Appeal No. 357  of 1961  arises was heard by a Divisional Bench,  which,  following  the  earlier  decision, decided against the appellant Committee.      The entries  in the  Schedule of goods liable to octroi  duty in the Raipur Municipality contain eight classes  of goods. Under them are grouped 67

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items, the  serial numbers  running  consecutively through  all   the  classes.  Class  I  is  headed "Articles of  food or  drink or  use  for  men  or animals". Item  4, which  is in  that Class  reads "Oil-seeds of  every description  not specifically mentioned elsewhere".  Class V  is headed  "Drugs, spices and  gums, toilet requisites and perfumes", and  item  44  reads  "Betel-nuts,  gums,  spices, Indian herbs  and Indian  raw medicines and drugs, such as  nuts, ilaichi,  laung, jaiphal, jaipatri, dalchini., sont,  katha, zeera, Dhania garlic, dry chillies, pepper,  shahzeera, maithi,  sarso, etc. and  known  as  kirana"  (groceries).  Item  4  is chargeable to  a duty  of 2  annas per  maund, and item 44 is chargeable ad valorem at Rs. 4-11-0 per cent. In  addition to these entries, there is item 17, which reads "Vegetable oils (not hydrogenated) not provided  elsewhere such  as Tilli  Tel, Sarso Tel, Alsi  Tel, Falli  Tel, Narial Tel, Andi Tel’, which are  chargeable to  a duty  of 4  annas  per maund.      It is  conceded on all hands that sarso is an oil seed,  and if  there was  nothing more  in the Schedule a  duty of  2 annas  per maund  would  be leviable on  sarso as  an oil  seed.  The  dispute arises, because 154 sarso is  mentioned again  in Item  44 with a very much higher  duty, and  it  is  contended  by  the appellant   Committee    that   the   words   "not specifically  mentioned   elsewhere"  in   item  4 exclude  sarso   from  that  item,  and  that  its specific mention in item 44 makes it liable to the higher duty  indicated there.  The learned  single Judge of  the High  Court held  in favour  of  the Municipality. According  to him,  this reason  was sound and  the higher duty demanded was the proper duty payable.  The Divisional  Bench on  the other hand, points  out that  the two  classes (I and V) are  entirely   different.  Class   1  deals  with articles of  food or  drink for  use for  men  and animals while Class V deals with drugs, spices and gums, toilet requisites and perfumes. The division indicates clearly  that  goods  belonging  to  one category are  not included  in the goods belonging to the other. The Divisional Bench also points out that item  4 must  be read  as it  stood  and  the specific mention  must be  in the  same manner  in which that  entry was  framed. Item  4 deals  with "oil seeds",  and the  specific mention must be as "oil-seeds" elsewhere in the Schedule. It was also argued for  the respondents that "elsewhere" meant elsewhere in  the same  Class. But  the  appellant Committee pointed out that the serial numbers were all consecutive,  and that  the  specific  mention could  be   anywhere  in  the  Schedule.  The  two arguments are equally plausible, and nothing much, therefore turns upon them.      In our  opinion, the  Divisional Bench of the High  Court  was  right  when  it  said  that  the specific mention  elsewhere must  be as  oil seeds and not  as something  else. Class  V  deals  with spices and  groceries and  the concluding words of item 44  known as  "kirana" determine the ambit of that item.  Though sarso might be mentioned there,

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it must be taken to have been mentioned as a spice or as  kirana and  not as  oil seed. The extent of item 4,  which  deals  with  oil  seeds  of  every descrip- 155 tion, could only be cut down by a specific mention elsewhere of an item as an oil seed.      Item 44  contains fairly  long list,  out  of which we  have quoted  a few  illustrative  items. Each of  these items  is referable  to the general heading either  as a  drug or a spice or gum, etc. Sarso, it  is admitted, is sold as kirana and as a spice. The  mention of  sarso there  is limited by the general heading to which it belongs, namely, a spice, drug  or herb  sold as  kirana.  No  doubt, sarso as  an oil seed is the same article as sarso sold as  kirana but  we must take into account the intention behind  the bye-law  and give  effect to it. If  it was  intended that sarso as an oil seed was to  be taxed  in a  special way,  it would  be reasonable to expect that it would have be found a specific  in   mention  as  an  oil  seed  with  a different duty. One would not expect that it would be included  in a  long list of articles of kirana and in  this indirect way be taken out from a very comprehensive entry  like item  4, where oil seeds of every description are mentioned.      Though the  next argument  is not  conclusive because there  is no  logic behind a tax, still it is to be noticed that sarso oil (a maund of which, as the  affidavit of  the  respondents  shows,  is expressed from  three maunds  of oil  seed)  bears only an  octroi duty  of 4  annas per maund, while three maunds  of sarso  oil seed under item 44, if it were  applicable, bear  a duty of Rs. 4-3-6 per maund, if  the price  of sarso  is taken as Rs. 30 per maund  as stated  in the affidavit. This leads to an  anomaly, which,  in our  opinion, could hot have been intended.      Finally, it  may be said that if there be any doubt, the Divisional Bench of the High Court very properly resolved  it in  favour of  the taxpayer. We, therefore,  hold that the judgment of the High Court is  correct, and  dismiss these appeals with costs.                                Appeals dismissed,. 156