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PETITIONER: M/S GUJARAT COMPOSITE LTD.  & ANR.

       Vs.

RESPONDENT: RANIP NAGARPALIKA & ANR.

DATE OF JUDGMENT:       02/11/1999

BENCH: S.P.Bharucha, V.N.Khare

JUDGMENT:

JU D G ME N T

Bharucha, J.

     For  the  manufacture  of   their  end  products,  the appellants  bring  raw asbestos into the area of  the  Ranip Nagarpalika,  the first respondent.  The question is whether they are liable to pay octroi under Entry 70 of Schedule  I of  the  Gujarat  Gram and Nagar Panchayats Taxes  and  Fees Rules,  1964, as they contend, or under Entry 71 thereof, as the  respondents contend.  Entry 71 is the general residuary entry.   Entry 70, as we have ascertained from the  relevant Gazette, reads (precisely) thus :

     Silica,  Quartz,  Zircon sand, Felspar, Gypsum,  Grog Minerals and Oxides used as raw materials.

     The  High  Court, being approached by the  appellants, dismissed  their Writ Petition by the order under challenge. It  found that there were disputed questions of fact, as  to whether  raw  asbestos was a mineral and whether grog was  a mineral.

     That  raw asbestos is a mineral has been found by this Court  in the judgments in Hyderabad Industries Limited  vs. Union  of  India (1995) 5 SCC 338 and (1999) 5 SCC 15.   The only  issue  that has, therefore, been addressed by  learned counsel  for  the  parties  is in relation  to  the  Entries aforementioned.

     The  said Entry 70 comprehends (1) Silica, (2) Quartz, (3) Zircon sand, (4) Felspar, (5) Gypsum and (6) Oxides when used as raw materials.  The question is in relation to Grog Minerals;  do these words in the said Entry 70 refer to (1) Grog and (2) Minerals, or do they refer to one item known as Grog  minerals.  It will be seen that each item in the  said Entry  70, other than Grog Minerals, starts with a capital letter  and  is separated from the other by a comma.   Where the  item  consists of two words, as in Zircon sand,  Zircon has  a  capital  Z and sand has a small  s.   There  is, therefore,  a patent error in the printing of said Entry 70. Either  there  should have been a comma between  Grog  and Minerals  therein  or Minerals should have had  a  small m.

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     The  word Grog usually means potable liquor, but  it also  means  a  substance  used  in  refractories.   It  is, according  to  the  Encyclopedia Brittancia,  1980  Edition, Macropaedia,  Volume IV (quoted in the judgment of the  High Court  under  challenge) mortar made of aluminium  compounds and  used  as  a  refractory, sprayed  to  form  linings  of furnaces  and  ovens.   Dealing  with  grog  chemicals,  the Encyclopedia  states that most refractories are produced  in the  form  of  brick, bonded and fired  in  furnaces.   Some castable  refractories  are  made in the  form  of  mortars, usually  tabular alumina with calcium aluminate cement as  a binder.   These  mortars,  called grog,  are  sprayed  under pressure  to form the linings of the steel industrys  basic oxygen  furnaces,  electric ore furnaces, steel  ladles  and coke  ovens,  and for steam boilers, rotary kilns, and  many other high temperature applications.

     The  case  of  the   respondents  initially  was  that Grogmineral  was  a single word.  In a later affidavit  it stated  that  the said Entry 70 referred to an  item  called Grog  Minerals and, in this behalf, all that was referred to was  an invoice of the Sihor Nagar Palika which showed  that eight  tonnes  of grog minerals had been produced  by  M/s Prakash   Traders  and  imported   into  Sihor  by  Hightech Investment  Pvt.   Ltd.   wherein octroi had  been  charged. Hightech   Investment  Pvt.   Ltd.    purchased  the   grog minerals   from   Bhavnagar   Refrectories   and   Ceramics Manufacturing  Company.  It appears from the affidavit  that the   respondents  had  the   grog  minerals  produced  as aforesaid analysed by Italab Private Limited.  The report of the  analysis  shows  that this product was  a  compound  of silica,  alumina, ferrous oxide, titanium dioxide, manganese oxide,   calcium   oxide,   magnesium   oxide,   phosphorous penzoxide,  sulpher  trioxides, sodium oxide  and  potassium oxide;   in other words, that it is not a mineral but a grog chemical of the kind referred to above.

     Were  there a material known to the technical world as grog  mineral,  there would have been ample literature  on the  subject  and  the respondents would have  produced  it, particularly since, according to the appellants, there is no such  thing.   The appellants rely upon the opinion  of  the Director,  Geology & Mining, Ahmedabad that, to the best  of his knowledge, there is no mineral called grog.

     Grog and minerals, on the other hand, are known to the technical world and the said Entry 70 would make perfect sense  if the items grog and minerals therein were  read separately.   That this should be done is also indicated  by the  fact  that the word Minerals therein starts with  the capital  M as does every item in the said Entry 70 and  by the  fact that where the item is a composite of two words as in Zircon sand the second word starts with a small letter.

     The  learned Attorney General, appearing on behalf  of the first respondent, submitted that it was not the function of the Court to supply a comma between Grog and Minerals and  that the said Entry 70 should be read only as referring to  an item called Grog Minerals.  In this behalf he  drew our attention to the judgment of this Court in Shrimati Hira Devi  and Ors.  Vs.  District Board, Shahjahanpur (1952  SCR 1122) where it was said that it is the duty of the court to try  to harmonise the various provisions of an Act passed by the  Legislature.   But it is certainly not the duty of  the Court  to stretch the words used by the Legislature to  fill

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in gaps or omissions in the provisions of an Act. Reference was  also made to Nalinakhya Bysack vs.  Shyam Sunder Haldar and  Ors.  (1953 SCR 533) where it was said that it was not competent  to any Court to proceed upon the assumption  that the  Legislature has made a mistake.  The Court must proceed on  the  footing that the Legislature intended what  it  has said.   Even if there is some defect in the phraseology used by  the Legislature, the Court cannot aid the  Legislatures defective  phrasing  of  an  Act or add  and  amend  or,  by construction,  make  up deficiencies which are left  in  the Act.   Even where there is a casus omissus, it is for others than  the  Courts to remedy the defect.  In P.K.   Unni  vs. Nirmala  Industries and Ors.  (1990 (2) SCC 378) this  Court said  that  it  must  proceed on  the  assumption  that  the legislature  did not make a mistake and that it intended  to say  what  it  said.   Assuming there was  a  defect  or  an omission  in  the words used by the legislature,  the  court would  not  go  to  its  aid  to  correct  or  make  up  the deficiency.  The court cannot add words to a statute or read words  into  it  which are not there,  especially  when  the literal  reading  produces an intelligible  result.   Where, however,  the  language  of  the  statute  led  to  manifest contradiction  of the apparent purpose of the enactment, the court  could adopt a construction which would carry out  the obvious  intention  of  the legislature.  In  doing  so,  as Denning,  L.J.,  had  said,  A Judge  must  not  alter  the material  of  which the Act is woven, but he can and  should iron out the creases.

     We are, in the first place, not dealing with a statute and  we are not adding or subtracting words.  We are dealing with  an  Entry  in Rules that  is,  manifestly  erroneously printed,  as pointed out above.  We are trying to make sense of  that  Entry by ironing out its creases.  There being  no such  item known to the technical world as Grog  Minerals, it  is  patent that the said Entry 70 was intended to  cover (1)  Grog and (2) Minerals.  This is the only manner  in which  any  sense  can be made of the said Entry  70.   That being  so and raw asbestos being a mineral which is used  by the  appellants  as  a  raw  material,  the  appellants  are entitled  to pay octroi on the raw asbestos they bring  into the  respondents area under the said Entry 70 and not under the residuary Entry 71.

     The  appeal  is  allowed, and the judgment  and  order under appeal is set aside.

     At  an  interim stage of this appeal,  the  appellants were  required  to  pay octroi as demanded but it  was  made clear  that  in  the  event   the  appeal  was  allowed  the respondent would refund the excess amount of the octroi paid by  the appellants with interest at the rate of 15 per  cent per  annum.  Now that the appeal is allowed, the  respondent shall  refund  to  the appellants the excess amount  of  the octroi  paid to date with interest thereon at the rate of 15 per cent per annum.

     In  view of the order upon the civil appeal, the  writ petition  does  not  survive  for consideration  and  it  is disposed of.

     No order as to costs.

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