JUDGMENT
M.R. Calla, J.
1. The petitioner Company has filed this Special Civil Application seeking a writ, order or direction for quashing and setting aside the order dt.22.9.97 passed bythe respondent – Corporation in the matter of chargingoctroi on the vehicles of the Company and/or restrainthem from assessing, levying and collecting the octroiduty on the vehicles owned by the petitioner Company.
2. The learned counsel for the petitioner hassubmitted that in this matter Special Civil ApplicationNo.8022/96 had earlier been filed by the petitioner andthis Special Civil Application was decided on 7.8.97 bythis Court (Coram :K.R.Vyas,J) by passing the followingorder:-
"It is not in dispute that the petitioner hasfiled a reply dated 17.10.1996 against the notice dated3.10.1996 issued by the Assessor and Tax Collectorwherein no order is passed. In view of this, withoutentering into the merits of the case, it would be in thefitness of things that the Municipal Commissioner of cityof Ahmedabad may consider the reply dated 17.10.1996 ofthe petitioner. In view of this, the followingdirections are given:- 1) The commissioner shall decide the reply dated17.10.1996 given by the petitioner within 4 weeksfrom the date of the receipt of the order; 2) It would be open for the petitioner also to filea separate representation with necessarymaterials to substantiate their case. If such arepresentation is filed, the same shall beconsidered alongwith the reply dated 17.10.1996and an appropriate decision shall be taken by areasoned order within 4 weeks thereafter; 3) Till the disposal of the representation and 15days thereafter, the respondent shall maintainstatus quo. In view of the above directions, Mr. K.N.Raval,learned advocate for the petitioner seeks leave towithdraw this petition. Permission granted. This petitionstands disposed of as withdrawn. Notice is discharged."
3. Thereafter, the impugned communication dt.22.9.97has been sent to the petitioner – Company under thesignatures of Junior Legal Assistant (Octroi) whereby ithas been conveyed that the vehicles are liable for octroiduty and the Company has been called upon to pay theoctroi duty as well as the vehicle tax for all thevehicles. The learned counsel for the petitioner in thefirst instance has submitted that in fact in terms ofthis Court’s order dt.7.8.97 the matter was to be decidedby the Commissioner of the respondent – MunicipalCorporation, but the matter was actually considered bythe Octroi Superintendent, namely, Z.A.Sacha. It hasalso been pointed out that the said Octroi Superintendentheard the matter and called upon the Company to give thearguments in writing. The grievance raised is that thematter was in fact required to be decided by theCommissioner, but the same has not been decided by theCommissioner and the impugned communication has been sentunder the signatures of Junior Legal Assistant (Octroi)after the consideration of the matter by the OctroiSuperintendent, as stated above. It is, therefore,contended that this communication dt.22.9.97 cannot besustained because it is not in conformity with thisCourt’s order dt.7.8.97. It has also been submitted thatthere is no delegation in favour of the OctroiSuperintendent by the Commissioner and that suchdelegation is not possible according to the provisions ofthe Act and the Rules and whereas the order has beenpassed without hearing by the Commissioner himself, asordered by this Court, the order cannot be sustained inthe eye of law. Reference has also been made to S. 69(2) of the Bombay Provincial Municipal Corporations Act, 1949(hereinafter referred to as ‘the B.P.M.C.Act”) and it wassubmitted that even the Commissioner cannot make an orderunder sub-section (1) of S. 69 delegating his powers,duties or functions under S. 466 except with the priorapproval of the Standing Committee.
4. In this regard Mr. Tanna appearing for theMunicipal Corporation has submitted that the Junior LegalAssistant (Octroi) has conveyed the decision and so faras the objection that the matter was not considered bythe Commissioner is concerned, he has referred to Officeorder No.3244 dt. 1.8.93 annexed with the reply asAnnexure II at page 68 and has submitted that in exerciseof the powers vested in the Municipal Commissioner underS. 69(1) of the B.P.M.C.Act, the Assessor, which in theinstant case was the Octroi Superintendent, was empoweredto discharge the powers, duties and functions vested inthe Commissioner as per the Schedule with this officeorder No.3244 and Item No.2 of the Schedule makesreference to the power to collect and recover the octroiduty on the basis of the declared market value and OctroiStanding order 8(2) with regard to the assessment ofoctroi when the original invoices are not produced or theinvoices produced are unreliable. It has been submittedthat these Standing Orders have already been approved notonly by the Standing Committee but by the general body ofthe Municipal Corporation and that the same orders, hadalso been published and that the same had also beenapproved by the State of Gujarat. The Booklet containingthe Octroi Rules and Standing Orders, as has beenproduced by Mr. Tanna, shows that the Octroi StandingOrders of the Ahmedabad Municipal Corporation underS. 466(1)(A) of the B.P.M.C. Act were sanctioned by theGovernment of Bombay under the Local Self Government andPublic Health Department Resolution No.6903/33(3)dt.22.7.52. On this basis it has been submitted thateven if the Commissioner himself has not considered thematter that is of no consequence because the OctroiSuperintendent was competent to discharge the functionsof the Commissioner and hence the direction given by thisCourt has been substantially complied with. Mr. Tannahas also submitted that in case the Court orders that theCommissioner himself may re-consider and pass the order,he has no objection.
5. I have considered the submissions in this regardand I find that it will not serve any useful purpose bynow sending the matter back for re-consideration by theCommissioner because in terms of the Standing Order, theOctroi Superintendent could discharge the functions ofthe Commissioner and in the facts of this case, it cannotbe said that the direction of this Court, that the mattermay be considered by the Commissioner, has not beencomplied with. If the Octroi Superintendent wasempowered with the powers of the Commissioner to considerthe matter and he has considered the same and on thatbasis the communication dt.22.9.97 has been sent to thepetitioners, the petitioners cannot have any legitimategrievance that it should have been heard by theCommissioner himself. So far as the requirement ofS. 69(2) is concerned, it may be pointed out that it isnot necessary that in each and every case, a separateprior approval is required. When there are StandingOrders already in force and the same have been approvedby the State Government and on that basis if the OctroiSuperintendent had been empowered, it cannot be said thatthe prior approval was required to be taken separatelywhen general standing orders are already existing andsuch Standing Orders have already been approved by theState Government. I do not find any illegality inexercise of the powers of the Commissioner by the OctroiSuperintendent and I find that it was not at allnecessary to obtain prior approval in each and every casein view of the general standing orders, which are alreadyin force and the prior approval therein is inherent forthe purpose. A reading of S. 69(1) and (2) makes theposition very clear that no exception can be taken to theexercise of powers by the Octroi Superintendent as anAssessor. This contention raised on behalf of thepetitioner, therefore, fails and the same is herebyrejected.
6. So far as the merits of the case are concerned,it was submitted on behalf of the petitioners that thevehicles owned by the petitioner – Company are registeredwith the Regional Transport Office of Ahmedabad, but theyhave been classified in 4 categories as per the listAnnexures “A’, “B”, “C” and “D”. It has been submittedthat the vehicles mentioned in Annexure ‘C’ are those onwhich the octroi has been paid because they are beingused in the City, but so far as the vehicles, particularsof which have been given in Annexures ‘A’, “B” and “D”,are concerned, the case of the petitioner Company is thatthe same are not being used in the City. It has beensubmitted that the vehicles, which are included inAnnexure ‘A”, are 53 in number and they are known as poolvehicles, which have been given to the Officers. Headoffice of the Company is outside the municipal limits ofAhmedabad Municipal Corporation on the Drive-in-Road andthese vehicles are reposed in that office which isoutside the Municipal limits. It is submitted that thesevehicles are used only for the purpose of carrying theofficers from their residence to the office and back toresidence. The residence of such officers are alsobeyond the municipal limits and, therefore, thesevehicles cross and pass through the Municipal Limits onlyfor the purpose of carrying the officers from theirresidential houses to the office on the other end beyondthe Municipal limits and again for dropping them to theirresidential houses after the duty. While making thissubmission, it is admitted before this Court that allthese vehicles do enter and cross the Municipal limits atleast 4 times a day; twice in the morning and twice inthe evening after duty hours. Nevertheless it issubmitted that they are reposed always in the office ofthe Company, which is beyond the municipal limits and,therefore, there is no question of payment of octroi onthese vehicles as they are being reposed in the Companyoffice outside the municipal limits. As regards thevehicles, as mentioned in Annexure “B”, which are 32 innumber, it has been pointed out that these vehicles havebeen allotted to Officers, who also reside outside themunicipal limits and, therefore, the same logic, whichapplies to the vehicles classified in Annexure ‘A”, willapply to these vehicles and no octroi is required to bepaid. Regarding the vehicles mentioned in Annexure “D”,it has been submitted that though these vehicles areregistered with the R.T.O., Ahmedabad for the Company,they are being used in other Cities like Bombay, Lucknow,etc. and, therefore, merely because they are registeredwith the R.T.O. of Ahmedabad, no octroi is leviable inrespect of these vehicles on the Company. I called uponthe learned counsel for the petitioners to answer as towhether any octroi has been paid on these vehicles inother cities, but the learned counsel for the petitionerswas not in a position to make any statement in thisregard as to whether in the respective cities octroi hadbeen paid or not, but the fact remains that they areregistered with the R.T.O. of Ahmedabad for thepetitioner- company. Mr. B.P.Tanna has submitted onbehalf of the Corporation that all these vehiclesincluded in Annexures “A” and “B” are used by thepetitioner – Company within the Municipal limits ofAhmedabad and, therefore, they cannot be exempted fromthe payment of octroi and octroi is liable to be chargedon these vehicles. It is also submitted with referenceto S. 147 of the B.P.M.C. Act that until the contrary isproved any goods imported into the City shall be presumedto have been imported for the purposes of consumption,useor sale therein unless such goods are conveyed from theplace of import to the place of export by such routes,within such time, under such supervision and on paymentof such fees therefore as shall be determined by thestanding orders. Mr. Thakore has submitted thatnotwithstanding the case of the Corporation that thesevehicles mentioned in Annexure “A” and “B” cross themunicipal limits and notwithstanding the presumptionunder S. 147, such presumption is rebuttable and hesubmits that on the basis of he classification of thevehicles and the use thereof, as has been held out by thepetitioner – Company before this Court, such presumptionstands rebutted and they are not liable to pay octroibecause they are reposed outside the municipal limits andin this regard Mr. Thakore has also placed reliance on adecision of the Supreme Court in case of Acqueousvictuals Pvt.Ltd. v. State of U.P., reported in (1998)5 SCC 474. Mr. Thakore has made a pointed reference toPara 15 of this Supreme Court decision wherein theSupreme Court has held that, “the word ‘retention’ isheld to be a synonym with the word ‘repose’, meaningthereby the article concerned must finally rest withinthe municipal limits”. In the light of the Judgment ofthe Constitution Bench in the case of Burmah Shell OilStorage & Distributing Co.of India Ltd. v. BelgaumBorough Municipality, reported in AIR 1963 SC 906, theSupreme Court found that it was obvious that before amunicipality can impose octroi duty on any commodity, ithas to be shown that the commodity concerned was broughtwithin the municipal limits for consumption, that is, forbeing totally used up so that it ceases to exist withinthe municipal limits themselves or it was to be used foran indefinite period within the municipal limits so thatit ultimately rests within the municipal limits and doesnot go out subsequently, or the commodity concerned mustbe shown to have been brought within the municipal limitsfor the purpose of sale within the said limits.
7. I have considered the submissions made in thisregard by both the sides and I find that so far asvehicles mentioned in Annexures “A” and “B” areconcerned, they are admittedly being used in theMunicipal limits of Ahmedabad. Merely because after theuse, the vehicles are parked outside the municipallimits, it would not mean that they are reposed outsidethe municipal limits. Vehicles are in fact put to useonly in the municipal limits, more particularly when theCompany itself says that these vehicles are being used aspool vehicles or allotted to officers of the Company tocarry them from their residential houses to the officeand to drop them back to their residential houses. It isadmitted case of the petitioner – Company before thisCourt that the houses are situated at the other end ofthe municipal limits and the office of the Company issituated on another end of the Municipal limits and,therefore, these vehicles are actually used in theMunicipal limits. If we go to the root of the matter, itcomes to the question of actual use and there is no roomfor doubt that these vehicles are actually put to use inthe Municipal limits and they only remain parked in theoffice of the Company outside the Municipal limits aftertheir effective use during the day. Even otherwise, insuch cases, when the offices are chosen to be kept justoutside the Municipal limits only for the purpose ofavoiding or evading the payment of octroi and thevehicles are in fact used in the Municipal limits, theargument cannot be accepted that merely because they areparked outside the Municipal limits, the Octroi is notliable to be paid. In the instant case, it is anadmitted position that the office of the Company, wherethese vehicles are said to be reposed after their use, isjust outside the municipal limits of Ahmedabad onDrive-in-Road itself. Even otherwise it is verydifficult, rather not at all feasible and practicallyimpossible to keep surveillance over the vehicles of suchCompanies, whose offices are situated outside theMunicipal limits to see as to whether they are beingactually put to use in the Municipal limits or not and nobody like Corporation or any other agency can keep thatvigil over the vehicles to see whether they actuallyenter the Municipal limits or not. Therefore, in suchcases, when the vehicles are put to use by the Companies,the Octroi has to be paid and the Municipal Corporationhas every right to charge the octroi in such cases onaccount of the use of these vehicles in the Municipallimits and the payment of the Octroi cannot be evadedmerely by keeping the offices of such Companies outsidethe Municipal limits. It appears to be a plain andsimple device to evade the octroi and the Revenue of theMunicipal Corporation cannot be made to suffer on thebasis of such devices. The case of Acqueous VictualsPvt. Ltd. (Supra), on which reliance has been placed bythe petitioners, is not at all applicable. It was a casein which the question involved was with regard to thebeverages packed in glass bottles and the bottles werenot sold within the municipal limits. What was actuallysold was the contents thereof. After the beverages weretaken out of these bottles and the same were consumed,these very bottles were returned and were taken back andit was in the facts of that case and in the context, asaforesaid, that the Supreme Court had observed thatbefore a Municipality can impose octroi duty on anycommodity, it has to be shown that the commodityconcerned was brought within the municipal limits forconsumption. Here is a case of vehicles. Thesevehicles, as such, cannot be consumed. They can only beused and they are being effectively used within theMunicipal limits and on that count, the claim of theMunicipality to charge octroi on these vehicles is foundto be justified and that right of the MunicipalCorporation can not be defeated by saying that thevehicles are reposed outside the municipal limits aftertheir use because use is admittedly in the Municipallimits. In the case of Burmah Shell (Supra), on whichreliance was placed by the Supreme Court while decidingthe case of Acqueous Victuals Pvt.Ltd. (Supra), thelegal position was more than clear that the Burmah Shellwas liable to pay the octroi on goods brought into localarea (a) to be consumed by itself or sold by it toconsumers direct, and (b) for sale to dealers who intheir turn sold the goods to consumers within themunicipal area irrespective of whether such consumersbought them for use in the area or outside it and thatthe Company was, however, not liable to octroi in respectof goods which it brought into the local area and whichwere re-exported. In the instant case, it is not a caseof re-export of these vehicles, which are included inAnnexures “A” and “B”. So far as these vehicles, asincluded in Annexures “A” & “B” are concerned, I holdthat the Municipal Corporation is entitled to chargeoctroi thereon and the petitioner Company is under anobligation to pay the octroi for these vehicles, whichare included in Annexures “A” & “B”.
8. So far as vehicles, which are included inAnnexure “D”, are concerned, it has been admitted by thelearned counsel for the Municipal Corporation that theyare in fact being used in other cities. If that be so,even if these vehicles have been brought to Ahmedabad forthe purpose of registration in R.T.O., Ahmedabad and theywere re-exported to other cities, so far as AhmedabadMunicipal Corporation is concerned, it has no case forcharging any octroi on the vehicles included in Annexure”D”. It is for the concerned Municipalities, where thesevehicles are being used, to see as to whether the octroihad been paid or not and as to whether the octroi ischargeable on those vehicles in those cities according tolaw. Mr. Tanna has made a candid statement before thisCourt on behalf of the Municipal Corporation that theMunicipal Corporation will not charge any octroi from thepetitioner Company in respect of vehicles, which areincluded in Annexure “D” and which are not being used inthe Municipal limits of Ahmedabad and are being used intowns other than Ahmedabad. In view of this statementmade by Mr. Tanna, no orders are required to be passedby this Court in respect of the vehicles included inAnnexure “D” or any other such vehicle which may be ownedby the Company and which may be put to use in citiesother than Ahmedabad, depending upon the satisfaction ofthe municipal Corporation on the factual aspect of theiractual use in other cities or towns.
9. The result of the aforesaid discussion is thatthis petition fails and the same is hereby dismissed.Rule is discharged. Interim relief stands automaticallyvacated. No order as to costs.