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Balasore Talkies (Pvt.) Ltd. And … vs Balasore Municipality And Ors. on 21 January, 1986

Orissa High Court
Balasore Talkies (Pvt.) Ltd. And … vs Balasore Municipality And Ors. on 21 January, 1986
Equivalent citations: AIR 1986 Ori 230, 1986 I OLR 318
Author: D Mohapatra
Bench: R Patnaik, D Mohapatra


JUDGMENT

D.P. Mohapatra, J.

1. The petitioners in these five writ petitions challenge the levy of octroi duty on cinematography films brought by them for exhibition in cinema halls. The petitioners are owners of cinema halls situated

in different towns in the State. They bring cinematography films from different distributors for exhibition in the cinema halls. The Municipal Council within the limits of which the cinema halls are located have imposed octroi duty on the films brought by the petitioners and owners of other cinema halls situated therein, at different rates. The Municipal Councils concerned in these writ petitions are those of Balasore and Berhampur. The imposition has been made in exercise of power under Section 131(1)(kk) of the Orissa Municipal Act, 1950 (hereinafter referred to as ‘the Act’), after getting the requisite sanction from the State Government in the Housing and Urban Development Department as required under the Act. Since the material facts-in all these writ petitions are not in dispute and the petitioners raise common questions of law the cases were heard together and shall be disposed of by this common order.

2. The gist of the case made out by the petitioners in their writ applications, is that they get films from different distributors for exhibition in their cinema halls from time to time. Each film consists of several reels depending on length. In most of the cases the films that the petitioners get are old copies which have already been exhibited in cinema halls elsewhere in the country. According to the petitioners, under the agreement with the distributors the title in the goods (films) remains with the distributors and the petitioners pay either a certain percentage of the collection or a fixed amount as rental to the distributors for exhibition of the films in their cinema halls. On expiry of the period fixed under the agreement, the film is returned to the distributor without any change in its original form. On these facts, the petitioners contend that the provisions of Section 131(1)(kk) of the Orissa Municipal Act are not attracted since the films are not brought inside the Municipal limits for ‘sale’ or ‘consumption’ or ‘use’. As such, the action of the Municipal Council levying octroi duty on the films and that of the State Government according sanction for such levy are ultra vires the aforesaid provision of the statute and invalid and inoperative. The imposition and collection of octroi duty on the basis of such illegal action is also bad.

3. The opposite parties, i.e., the Municipal Councils concerned and the State Government

in the Urban Land Development Department in their counter-affidavit have not contested the averments on facts in the foregoing para. They however, contend that under the arrangement between the distributors and the petitioners (exhibitors), though the latter might (not) have brought the films inside the municipal limits for sale or consumption, they have brought the said films for ‘use’. As such, it is urged on behalf of the opposite parties that the condition precedent for imposition of octroi duty is satisfied and the petitioners are liable to pay the impost.

4. From the respective cases of the parties narrated above, the core question that arises for consideration is : whether the provisions of Section 131(1)(kk) of the Act are attracted to import of cinematography films by the petitioners for exhibition in their cinema halls situated within the municipal limits of Balasore and Berhampur. Before proceeding further in the matter, it will be helpful to quote the provisions of Section 131(1)(kk) of the Orissa Municipal Act.

“Section 131(1). The Municipal Council may, from time to time, at a meeting convened expressly for the purpose of which due notice shall have been given subject to the provisions of this Act impose within the limits of the municipality the following taxes and fees or any of them –

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(kk) an octroi on goods brought within the limits of municipality for consumption, use or sale therein.”

From the aforesaid provision, it is clear that it is open to the Municipal Council to impose octroi on goods brought within the limits of the Municipality for ‘consumption’, ‘use’ or ‘sale’ therein, with the sanction of the State Government.

5. It is not disputed by the opposite parties that under the prevailing arrangement between the distributors of the films and the petitioners, it cannot be said that the films are brought for consumption, or sale within the municipal limits. The question that remains for consideration is whether the films can be said to have been brought for ‘use’ therein. The term ‘use’ has not been defined under the Act. The dictionary meaning of the term ‘use’ is : ’employ for a purpose or as instrument or

material; exercise, put into operation; avail oneself of, use of the whole, treat in specified manner”. From the admitted factual position discussed earlier it is manifest that the petitioners bring the cinematography films for the purpose of exhibiting them in their cinema halls. The films are therefore brought for being put to a particular application or user in the process of its exhibition on the screen in the cinema halls. It is contended on behalf of the petitioners that the words ‘consumption’ and ‘use’ in Section 131(1)(kk) of the Act should be understood as synonymous terms or at least should be read ejusdem generis. On this contention is based a further submission that consumption, in ordinary parlance, means using of an article or goods in a manner that it loses its original identity altogether. According to the petitioners, the term ‘use’ should also be given such a meaning and the film brought by the petitioners cannot be said to be for ‘use’ since they are sent back to the distributors in the same form without losing their identity. On careful consideration, we are unable to accept this contention. The terms ‘use’ and ‘consumption’ have distinct and different connotation. They are used in the section to convey their respective connotations and meaning. If the two terms were intended to be synonymous or to carry similar meaning and import, use of two separate terms was redundant and irrelevant. We do not find it possible to ascribe such intention to the legislature in framing the provision under. Section 131(l)(kk) of the Act. Consumption in certain cases may include use of the particular commodity, but not vice versa. In other words, in every case of use, it is not expected that the article would lose its original shape and form and be transformed into a complete separate article. There are many articles which even after being put to use either personal or commercial do not lose their original form. It cannot be said that all such articles were intended to be excluded from the purview of imposition of octroi duty under Section 131(l)(kk) of the Act. In our opinion, in order to enable the municipality to impose levy of octroi cess on an article, it must be brought within the municipal limits for consumption or use or sale therein. If the article is brought into the municipal limits only for being re-exported, the provision under Section 131(1)(kk) of the Act

will not be attracted. The meaning of the word ‘use’ depends on the context in which it is used. As noticed aforesaid, the intention of enacting the provision under Section 131(1)(kk) is to empower the Municipal Council to levy octroi duty on goods brought within its limits for ‘consumption’, ‘use’ or ‘sale’. Obviously, the word ‘use’ is something other than ‘consumption’, for consumption would also be ‘user’ in the natural meaning of the word ‘use’. Having regard to the context, it is obvious tha the use that is chargeable is not the same as consumption.

6. The interpretation of the words ‘consumption’ and ‘use’ came up for consideration before the Supreme Court in the case of Burmah-Shell Oil Storage and. Distributing Co. of India Ltd., Belgaum v. Belgaum Borough Municipality, Belgaum; AIR 1963 SC 806, wherein their Lordships pointed out that the word ‘consumption’ in its primary sense means the act of consuming and in ordinary parlance means the use of an article, in a way which destroys, wastes or uses up that article, but in some legal contexts as in the Explanation to Sub-article (1) of Article 286 of the Constitution as it stood before its amendment by Constitutional (6th Amendment) Act, 1956, it has a wider meaning which does not involve using up. With reference to the word ‘consumption’ used in the taxing entry relating to octroi the court observed that added to the word ‘consumption’ is the word ‘use’ also. There may be certain commodities which though put to use are not ‘used up’ in the process. A motor car brought into an area for use is not used up in the same sense as foodstuffs. The two expressions, ‘use’ and ‘consumption’ together, therefore, connote the bringing in of goods and animals not with a view to taking them out again but with a view to their retention either for use without using them up or for consumption in a manner which destroys, wastes or uses them up.

The Gujarat High Court in the case of Jafarabad Municipality v. Kathiawar Industries, AIR 1969 Guj 344, held that if the word ‘consumption’ in the context of octroi has been used in the sense of using up an article in same manner it cannot be said that the word ‘use’ also has been used to carry the same meaning, namely, using up.

From the principles laid down in these

decisions, it is clear that the words ‘use’ and ‘consumption’ are neither synonymous nor are they to be understood to be carrying the same meaning. The term ‘use’ is of wider connotation than ‘consumption’. Any article that is put to some application suffers waste or deterioration to some extent, though not totally destroyed or used up and can be said to come within the purview of the word ‘use’ in Section 131(1)(kk) of the Municipal Act for imposition of octroi duty. It has been urged on behalf of the petitioners that since cinematography films brought by them for exhibition are to be returned to the exhibitor its user by them does not come within the purview of ‘use’ in Section 131(l)(kk). In our opinion, this argument is without substance. The Supreme Court, while interpreting the term ‘use’ as discussed above, has laid down that goods intended only to be re-exported from out of the municipal limits are not amenable to the levy of octroi duty. But that is not the case here. The films are brought within the municipal limits for use and they are used within such limits and thereafter taken out therefrom. No material has been produced before us by any of the petitioners to show what was the duration for which the films were brought by them. But it is the admitted position that the period varies on each occasion. Instances are not rare when some films run in a particular cinema hall for several weeks or several months depending on its popularity amongst cinema-goers. Keeping in view the context and the facts and circumstances of the case the dictum laid down by the Supreme Court cannot be extended to the extent suggested by the petitioners.

7. On the aforesaid analysis, we hold that the petitioners are liable to pay octroi duty on the films brought by them into the municipal limits wherein their cinema halls are located, for exhibition therein.

8. Accordingly, the writ petitions are dismissed, but in the circumstances of the case, without any order for costs.

R.C. Patnaik, J.

9. I agree.

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