http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: STATE OF U.P. & OTHERS

       Vs.

RESPONDENT: M/S. INDIAN HUME PIPE CO. LTD.

DATE OF JUDGMENT03/03/1977

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA BHAGWATI, P.N.

CITATION:  1977 AIR 1132            1977 SCR  (3) 120  1977 SCC  (2) 724  CITATOR INFO :  R          1980 SC 611  (4)

ACT:             Constitution of India--Article 136--Practice of  Supreme         Court--Interference   with  discretionary  orders  of   High         Court--Article     226--Whether     High    Court     should         interfere--Alternative remedies.             Interpretation--Articles      used     for      business         purposes--Whether   in  commercial  sense--U.P.  Sales   Tax         Act--Meaning of sanitary fittings.

HEADNOTE:             The  respondent  manufactures and sells hume  pipes  and         high quality and high pressure pipes.   The pipes are  rein-         forced concrete pipes.   The U.P. Government issued a  noti-         fication under the U.P. Sales Tax Act providing that  "sani-         tary  fittings" were to be taxed at 7 per cent instead of  2         per  cent.  The Saks Tax Officer treated hume pipes supplies         by the respondent as sanitary fittings and imposed sales tax         @  7 per cent. The respondent filed a writ petition  in  the         High  Court assailing the order of the Sales Tax Officer  on         the ground that the hume pipes manufactured by the  assessee         could not by. any stretch of imagination he construed to  be         sanitary fittings nor were they ever used as such.  The High         Court  after  perusing the materials on record  and  hearing         counsel  accepted the plea of the respondent and  held  that         the  hume pipes could not be treated as  sanitary  fittings.         The  High Court accordingly quashed the assessment  made  by         the  Sales Tax Officer.  The respondent also filed  certifi-         cates of Local Self Government Engineering Department,  U.P.         to  show that  the  pipes  supplied by the  respondent  were         not  used  as sanitary fittings.  The said  certificate  has         been  signed  by the Executive Engineer on  behalf  of  the’         Chief Engineer  of the department.                       In  an  appeal by  certificate  the  appellant                       contended:                           (1) High Court should not have entertained                       the writ petition and should have allowed  the                       assessee to avail of the remedies provided  to                       him under the U.P. Sales Tax Act  particularly                       when question of fact had to be determined.                           (2)  On merits the conclusion of the  High

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

                     Court  that hume pipes  are nOt sanitary  fit-                       tings is erroneous,   Dismissing the appeal by                       certificate.             Held:(1)  The  Court  negatived the  contention  of  the         appellant that the High Court ought not to have  entertained         the  writ petition and should have allowed the  assessee  to         avail of the remedies provided to him under   the U.P. Sales         Tax  Act.    In  the present case, whether  the  hume  pipes         manufactured  and sold by the respondent were sanitary  fir-         ings was a question of law and since the entire material  on         the  basis  of which this question could be  determined  was         placed  before the Sales Tax Officer and had pointed in  one         and only one direction, namely, that the hume pipes were not         sanitary  fittings and there was nothing to show  otherwise,         the  High  Court was justified in   entertaining   the  writ         petition.    There  is no rule of law that  the  High  Court         should  not entertain a writ petition where  an  alternative         remedy  is available to a party.  It is always a  matter  of         discretion  and if the discretion has not been exercised  by         the High Court unreasonably or perversely, it is the settled         practice   of this Court not to interfere with the  exercise         of  discretion by the  High  Court. In  these  circumstances         this Court would not be justified in the interest of justice         to interfere under Article 136 of the Constitution to  quash         the  order  of the High Court merely on  that  ground  after         having  found that the  order  was  legally  correct.   [124         B-E]             (2) It is well-settled that in construcing the  articles         used for business purposes the terms must be interpreted  in         a purely commercial sense. [123 B-C]         121             Ramavatar  Budhaiprasad  etc.  v.  Assistant  Sales  Tax         Officer, Akola (1962) 1 SCR 279, 282, followed.             The  King  v. Planters Nut and Chocolate  Company  Ltd.,         (1951) Canada L.R.. Ex. Court 122. 126 approved.             So  construed by sanitary fittings one only  understands         such pipes   or materials as are used in lavatories, urinals         or  bath rooms of private houses or public  buildings.    In         the present case there was absolutely no material before the         Sales  Tax Officer to show that any of the hume pipes  manu-         factured  and sold by the respondent were meant for  use  in         lavatories. urinals or bath rooms and. in fact. the material         was used entirely the other way. the Sales   Tax Officer was         not  at  all justified in holding that  they  were  sanitary         fittings         [123 F-H]             (3)  The Sales Tax Officer does not appear to  have  ap-         plied his mind at all to the reasons as to how and why  hume         pipes  could  be  treated  as  sanitary fittings.   The  re-         spondent  had   filed  an  application  before   the   Sales         Tax Officer wherein he had clearly alleged substantial facts         showing that the hume pipes could never be used as  sanitary         fittings; that it is only the G.I.P. Pipes or other kinds of         pipes  which are used in lavatories, urinals and bath  rooms         which could be termed as sanitary fittings.   The respondent         had  placed  a  large catena of materials in  the  shape  of         certificates  from technical experts, engineers  and  highly         reputed  dealers in sanitary fittings that hume  pipes   are         never used as sanitary fittings.   Even where a hume pipe is         used for carrying the escrated material from the Commode  to         the  Sceptic tank that may be treated as sanitary  fittings.         The appellant in his counter affidavit before the High Court         did  not  controvert any of the facts mentioned by  the  re-         spondent,  The State produced no material to controvert  the         facts. [122 D-G--123A]             (4) The Court observed that if at any time the  material

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

       produced  before the Sales Tax Authorities establishes  that         in  a given case  hume  pipes  were meant to be used in  the         bath rooms, urinals and lavatories etc., then the  notifica-         tion of the Government would be attracted. [124 A-B]

JUDGMENT:         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 784 of 1972.         (From the Judgment and Order dated 29-9-1970 of the     Allaha-         bad High Court in Civil Misc. Writ No. 1111/70).         S.C. Manchanda and O.P. Rana, for the appellants.         S.V. Gupte, S.V. Vaidya, K.  Rajendra  Chaudhary  and  Mrs.         Veena Devi Khanna, for the respondent.         The Judgment of the Court. was delivered by             FAZAL ALI, J.  This appeal by certificate raises a short         question  of law as to whether or not hume pipes  which  are         the subject-matter of the. present case amount to  "sanitary         fittings"  as contemplated by a notification issued  by  the         Government under the U.P. Sales Tax Act. The respondent is a         dealer engaged in the manufacture and supply of hume  pipes.         The pipes manufactured by the respondent are reinforced with         cement  concrete pipes and the respondent also  manufactures         high  quality  and  high pressure  pipes   like  prestressed         concrete  pipes  for water supply,  R.C.C.  pressure  pipes,         penstock  pipes  used in hydroelectric  projects  etc.   The         respondent  was a supplier of pipes to various  Governmental         Departments  both  Central and State, such   as  Irrigation,         Public  Works, Local Self Government  Engineering,  Railways         and  Ministry of Petroleum etc.  It appears that  a  dispute         arose   between the respondent and the Sales Tax  Department         with respect to the         122         rate of tax for sale a-pipes manufactured by the  respondent         for   the  assessment years 1962-63,  1963-64  and  1964-65,         According  to the notification issued by. the Government  in         pursuance  of  the  U.P. Sales Tax  Act,  items  classed  as         "sanitary  fittings" were to be taxed at 7% instead of 2  %.         The Sales Tax Officer treated the hume pipes supplied by the         respondent  as "sanitary fittings" and imposed sales tax  at         the rate of 7 %.  Instead of going in appeal to the  Assist-         ant  Commissioner  (Judicial) the respondent  filed  a  writ         petition in the High Court assailing the order of the  Sales         Tax  Officer on the ground that the hume pipes  manufactured         by the assessee could not, by any stretch of imagination, be         construed to be "sanitary fittings", nor were they ever used         as  such.   The High Court, after hearing counsel  for   the         parties   and  after perusing the materials on  the  record,         accepted  the plea of the respondent and held that the  hume         pipes  could  not be treated as "sanitary fittings" and  the         Sales Tax Officer was., therefore, not entitled to levy  tax         at  the rate of 7%. The High Court accordingly  quashed  the         assessments  made  by the Sales Tax Officer and  hence  this         appeal by the Department after obtaining a certificate. from         the High Court.                 In our opinion, the facts of this appeal lie  within         a  very  narrow compass.  The only point which  arises  for.         consideration is whether or not the hume pipes  manufactured         by  the respondent could be said to be "sanitary  fittings".         The  notification   dated September  1,   1966  amended  the         existing entry as "sanitary goods and fittings" but in these         assessment  years-we  are concerned with  the  entry  as  it         stood  unamended.  The Sales Tax Officer does not appear  to         have  applied his mind at all to the reasons as to  how  and         why  hume  pipes  could be treated  as  sanitary  fittings..

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

       Apart from his ipsi dixit that hume pipes amounted to  sani-         tary fittings, he based his order on no other material.  The         respondent  had  filed an application before the  Sales  Tax         Officer  wherein  he had clearly alleged  substantial  facts         showing that the hume pipes could never be used as "sanitary         fittings";   It  is only the G.I. pipes or  other  kinds  of         pipes  which are used in lavatories, urinals and  bath-rooms         which can be termed as ’sanitary fittings". Neither the con-         tract nor the tender by the respondent show  the exact   use         for which the hume pipes were meant.  On the other hand  the         respondent  had produced a large catena of materials in  the         shape of certificates from technical experts, Engineers  and         highly  reputed  dealers in sanitary fittings to  show  that         hume pipes are never used as sanitary fittings. In spite  of         these materials, the State, when it filed its  counter-affi-         davit  before the High Court, did not controvert any of  the         facts mentioned by the respondent, vide paragraphs 4, 5  and         6 of the counter-affidavit filed before the High Court.  The         materials  consist of certificates by Local Self  Government         Engineering  Department, U.P., to show that the  pipes  sup-         plied  by  the respondent were not used as  "sanitary   fit-         tings".  This certificate appears at p. 34 of the Paper Book         and shows that R.C.C.Pipes purchased from the respondent had         not  been used as sanitary fittings by the L.S.G.E.  Depart-         ment.   This certificate is signed  by the  Executive  Engi-         neer:  on behalf of  the Chief Engineer of  the  Department.         From pp. 36-39 and 41 of the Paper Book appear the  certifi-         cates given by certain reputed dealers in sanitary goods and         fittings,  who  have categorically certified that  the  hume         pipes  are never         123         recognised  as  sanitary-wares  or  sanitary  fittings.   As         against this, the State produced no materials to  controvert         these  facts,  which could not be brushed aside.  At  p.  40         there is a  certificate by the Ex.  Special Engineer, Bombay         Municipal  Corporation  and  Ex.  Director,  Central  Public         Health  Engineering Research Institute, Nagpur, in which  he         has  clearly observed that sanitary-wares and sanitary  fit-         tings  are applicable to fittings used in the household  for         W.Cs.  wash-basins, traps, sinks etc. and,  therefore,  hume         and R.C.C. pipes cannot be recognised  as sanitary-wares or,         sanitary  fittings.  As against this, the State produced  no         material to controvert these facts.             It  is  well settled that when we are dealing  with  the         articles  used  for  business purposes, the  terms  must  be         interpreted  in  a purely commercial  sense.   In  Ramavatar         Budhaiprasad etc. v. Assistant  Sales  Tax Officer, Akola(1)         this Court, while construing the import of the word "vegeta-         bles", observed as follows:                             "But this word must be construed not  in                       any   technical  sense nor from the  botanical                       point  of  view but as  understood  in  common                       parlance.  It has not been defined in the  Act                       and  being a word of every day use it must  be                       construed  in its popular sense meaning  "that                       sense which people conversant with the subject                       matter  with  which  the  statute  is  dealing                       would attribute to it." It is to be  construed                       as understood in common language;"         To  the same effect is a decision of the Exchequer Court  of         Canada  in The King. v. Planters Nut and  Chocolate  Company         Limited(2)  where the Court observed as follows:                             "The  words "fruit" and "vegetable"  are                       not  defined  in the Act and so far as  ’I  am                       aware they are not defined in any other Act in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

                     pari material.  They  are  ordinary  words  in                       every-day  use  and are therefore to  be  con-                       strued according to their popular sense".             In  these circumstances, therefore, we have to  construe         the  expression "sanitary fittings" in the popular sense  of         the term as it is used in our every-day life.  Thus constru-         ing, it would be manifest that there could be no question of         use  of  R.C.C.  or hume pipes  which   are  generally  laid         underground and are extremely heavy. for the purpose of  use         in  lavatories,  urinals or bath-rooms  etc.   By  "sanitary         fittings" we  only understand such pipes or materials as are         used in lavatories, urinals or bath-rooms of private  houses         or  public  buildings.  Even where a hume pipe is  used  for         carrying,  the  secreted material from the  commode  to  the         septic  tank that may be treated as sanitary  fittings.   In         the instant case as there was. absolutely no material before         the  Sales  Tax Officer to show that any of the  hume  pipes         manufactured  and sold by the respondent were meant for  use         in lavatories, urinals or bath-rooms and in fact the materi-         al  was used entirely the other way, the Sales  Tax  Officer         was not at all justified in holding that they were  sanitary         fittings.             (1)  [1962] 1 S.C.R. 279, 282.             (2) (1951) Canada L.R. Ex. Court 122 126         124         Of  course,  we must make it clear that if at any  time  the         material  produced before the Sales Tax  authorities  estab-         lishes  that in a given case the hume pipes were  meant  for         use in a bathroom, lavatory, urinal etc.. then the.  notifi-         cation of the Government would attracted  and  the  assessee         must be liable to be taxed at the rate of 7%.             Lastly, it was feebly argued by Mr.  Manchanda that  the         High  Court ought not to have entertained the writ  petition         and  should have allowed the assessee to avail of the  reme-         dies provided to him under the U.P. Sales. Tax Act, particu-         larly  when questions of fact had to be determined.  In  the         instant  case, the question as to what is the true  connota-         tion of the words "sanitary fittings"  and whether  the hume         pipes manufactured and sold by the respondent were  sanitary         fittings  within the meaning of that expression was a  ques-         tion  of law and since the entire material on the  basis  of         which  this question could be determined was  placed  before         the  Sales Tax Officer and it pointed in  one and  only  one         direction,  namely,  that the hume pipes were  not  sanitary         fittings  and there Was nothing to show otherwise, the  High         Court  was  justified  in entertaining  the  writ  petition.         Moreover, there is no rule of law that the High Court should         not  entertain. a writ petition where an alternative  remedy         is available to a party. It is always a matter of discretion         with  the Court and if the discretion has been exercised  by         the  High Court not unreasonably, or perversely, it  is  the         settled  practice  of this Court not to interfere  with  the         exercise  of discretion  by the nigh Court.  The High  Court         in the present case entertained the writ petition and decid-         ed  the  question of law arising in it and  in  our  opinion         rightly.  In these circumstances, therefore, we would not be         justified  in the interest of justice in interfering in  our         jurisdiction  under  Art. 136 of the Constitution  to  quash         the  order  of the High Court merely on  this  ground  after         having  found  that the order is legally correct.   We  are,         therefore, unable to accept this contention.             For  these  reasons.  therefore, we  find  ourselves  in         complete agreement with the view taken by the High Court and         affirm the same. The result is that the appeal fails and  is         accordingly dismissed with costs.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

       P.H.P.                             Appeal dismissed.           125