Full Judgment Text
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PETITIONER:
PURI MUNICIPAL COUNCIL AND OTHERS
Vs.
RESPONDENT:
INDIAN TOBACCO CO. LTD.
DATE OF JUDGMENT08/11/1995
BENCH:
PUNCHHI, M.M.
BENCH:
PUNCHHI, M.M.
MANOHAR SUJATA V. (J)
CITATION:
1996 AIR 534 JT 1995 (8) 95
1995 SCALE (6)297
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
The famous city of Puri in the State of Orissa, is a
municipality under the Orissa Municipal Act, 1950. It’s
limits extends upto the sea waters, on the side of the Bay
of Bengal. Fish and prawn caught by fishermen from the sea
have all along been brought within the municipal limit,
sometimes through the nearest octroi checkpost on payment of
octroi and more often without adopting that course. The fish
and prawn are then taken to the market by fishermen where
they are sold and bought by non-fishermen for local
consumption or for export to other destinations. In the
latter course, the goods inevitably are transported and have
to pass out through octroi checkposts. The dispute between
the parties i.e. the Puri Municipal Council and its officers
on the one side and the Indian Tobacco Company Ltd. on the
other, as projected before the High Court in writ
proceedings centered around the question whether the taxing
provisions of the Orissa Municipal Act and the bye-laws made
thereunder, permitted the Puri Municipal Council to charge
octroi tax on a non-fishermen merely found in possession of
fish and prawn within the municipal area, or while taking
them out through exist points, or octroi posts. On challenge
made by the respondent company to the steps taken by the
Municipal Council, the Division Bench of Orissa High Court
has taken the view that the invoked bye-law 11(2) by the
Municipal Council speaks of ’evasion’ authorising the
municipality to effect recovery of octroi tax on detection
of that happening but that word was considered by the Bench
to be distinct from ’non-payment of octroi duty’ the doubt
about which could arise when the commodity is found in the
municipal area in the possession of someone. The straight
case of the municipality was that it can, under the said
bye-law, proceed against the possessors of fish or
prawnsincluding exporters of these on the premise of non-
payment of octroi tax. That plea has been negatived by the
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High Court by a well-reasoned judgment.
The word expression octri committed by the person
bringing goods within municipal limits, since it is an entry
tax. The person bringing the goods without payment of octroi
is the evader and can certainly be brought within the ship
of bye-law 11(2). A person merely in possession of such
goods within a municipal area cannot be brought with ambit
of bye-law 11(2) raising a presumtion that he is an evader
because he may not have caused the entry and hence be not an
evader. On the pleas of the municipality, the tax cannot be
allowed to assume the character of a possessory tax or an
exit tax. That would be against the text and content of the
taxing provisions and their culpable part. the High Court in
this fact situation properly saw through the matter and, in
our view., afforded appropriate rellef to the respondent,
throwing out the specious plea of the appellant-municipality
based on the fact that it was not in a position to put up
octroi posts at every conceivable point alongside the sea
shore. That aspect is the concern of the municipality and
not that of the subject. If the words in the taxing statute
fail, the tax must fail, without sentiment playing any role.
For the afore reasons, the appeal fails and is hereby
dismissed. There shall be no order as to casts.