Full Judgment Text
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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.Khari
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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