{"id":200946,"date":"2009-11-03T00:00:00","date_gmt":"2009-11-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-bakshi-steels-ltd-vs-the-city-of-nagpur-on-3-november-2009"},"modified":"2017-11-08T00:05:23","modified_gmt":"2017-11-07T18:35:23","slug":"ms-bakshi-steels-ltd-vs-the-city-of-nagpur-on-3-november-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-bakshi-steels-ltd-vs-the-city-of-nagpur-on-3-november-2009","title":{"rendered":"M\/S. Bakshi Steels Ltd vs The City Of Nagpur on 3 November, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
M\/S. Bakshi Steels Ltd vs The City Of Nagpur on 3 November, 2009<\/div>\n
Bench: A. H. Joshi, A. R. Joshi<\/div>\n
                                    1\n\n\n\n\n                                                                \n                                        \n                                       \n             IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                       NAGPUR BENCH : NAGPUR\n                 Writ Petition No. 1086 of 1994\n\n\n\n\n                                 \n                   \n     M\/s. Bakshi Steels Ltd.,\n     18, Commercial Complex,\n     Malcha Marg, Diplomatic\n     Enclave, New Delhi-110 021,\n                  \n     a registered Company under the\n     Companies Act, through\n     Mahendra Dindayal Sharma,\n     aged about 36 years,\n     Packet-B-10, House No. 110,\n      \n\n\n     Sector 3,\n     Mohini, New Delhi,\n   \n\n\n\n     Auithorized Agent -\n     Holding Power of Attorney.          ....          Petitioner.\n\n\n\n\n\n                              Versus\n\n\n     1.   The City of Nagpur\n          Corporation, through\n          Municipal Commissioner,\n\n\n\n\n\n          Civil Lines,\n          Nagpur.\n\n     2.   Union of India, through\n          Secretary,\n          Ministry of Railways, Rail Bhavan,\n          New Delhi.\n\n     3.   Chief Project Manager\n\n\n\n\n                                        ::: Downloaded on - 09\/06\/2013 15:15:40 :::\n                                        2\n          [Gauge Conversion],\n          D.R.M. s Office,\n\n\n\n\n                                                                             \n          Building-IIIrd Floor,\n          South Eastern Railway,\n\n\n\n\n                                                     \n          Nagpur-1.                                   ....          Respondents.\n\n\n\n                                     *****\n\n\n\n\n                                                    \n     Mr. W.G. Charde, Adv., for the petitioner.\n\n     Mr. C.S. Kaptan, Adv., for respondent no.1.\n                              *****\n\n\n\n\n                                    \n                                     CORAM       :        A.H. JOSHI AND\n                         ig           Date       :\n                                                          A.R. JOSHI, JJ.\n<\/pre>\n
                                                          03rd November,2009.\n<\/p>\n
     ORAL JUDGMENT [Per A.H. Joshi, J]:\n<\/p>\n
     1.         Heard   learned   Adv.     Mr.       W.G.      Charde         for    the<\/p>\n
     petitioner    and    learned     Adv.       Mr.        C.S.      Kaptan         for<\/p>\n
     respondent no.1.      Perused annexures to the petition and<\/p>\n
     judgments cited at bar.\n<\/p>\n
     2.         Petitioner    herein        is        a     manufacturer              of<\/p>\n
     metallic    castings,    which       are,   inter          alia,       used      as<\/p>\n
     inputs   by   Railways    in    the     manufacturing               of    cement<\/p>\n
     concrete railway sleepers.\n<\/p>\n
     3.         Respondent    nos.    2    and       3     have      placed         with<\/p>\n
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\n                                           3<\/span>
\n     petitioner an order for one lakhs pieces of                         Malliable<\/p>\n
     Iron    Casting        Insert ,     described        briefly         as        MIC<\/p>\n
     inserts .        Copy of Work Order-cum-agreement is dated<\/p>\n
     6th December, 1993, which is at Annexure-A to the Writ<\/p>\n
     Petition at Page Nos. 12 to 22.\n<\/p>\n
     4.         It is seen that in the process of supply, the<\/p>\n
     petitioner had to deliver the goods freight prep-paid<\/p>\n
     to the convenient Railway Station, or when transported<\/p>\n
     by road, the delivery has to be done, freight pre-paid<\/p>\n
     and    goods     have   to   be    delivered       to     the     designated<\/p>\n
     representative of Railway at the factory\/work site.\n<\/p>\n
     5.         Whenever       MIC     inserts     are     delivered,           those<\/p>\n
     would be        received and upon inspection accepted by the<\/p>\n
     specified representative of Railway.\n<\/p>\n
                This mode of delivery is provided in Clause 8<\/p>\n
     of the Work Order, the Annex.A foregoing.\n<\/p>\n
     6.         In    the    situation        at   hand,      petitioner            has<\/p>\n
     preferred to deliver the goods by road at the appointed<\/p>\n
     destination, i.e., at the factory of M\/s. ISCO Track<\/p>\n
     Sleepers Pvt. Ltd., Railway Yard, Kalamna, Nagpur.\n<\/p>\n
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\n                                         4<\/span><\/p>\n
     7.         Having elected to transport the goods by road,<\/p>\n
     the   petitioner      was     required   to      deliver         the     goods,<\/p>\n
     secure acknowledgment after inspection of                      MIC inserts<\/p>\n
     at the factory of the consignor, secure a certificate<\/p>\n
     from Specified Railway Officer and receive the payment<\/p>\n
     of bills from the respondent no.3 s designated officer.<\/p>\n
\n\n\n\n\n                                     \n     8.         The\n\n     petitioner under\n                       \n                         MIC       inserts      were          dispatched\n\n<\/pre>\n
                               lorry receipt dated 25th February,
\n                                                                                     by<\/p>\n
     1994 [one lorry], and lorry receipt dated 7th March,<\/p>\n
     1994 [one lorry] and 9th March, 1994 [two lorries].\n<\/p>\n
     These     lorries     and     consignments         were       detained          by<\/p>\n
     respondent no.1 for recovery of octroi.\n<\/p>\n
     9.         It is seen that on all consignments till four<\/p>\n
     lorries        transporting     the      MIC      inserts            and       all<\/p>\n
     subsequent consignments, the respondent no.1 did not<\/p>\n
     charge octroi on the          MIC inserts        transported from the<\/p>\n
     petitioner to the ISCO TS Pvt. Ltd. for the Railways.\n<\/p>\n
     10.        Lorries\/consignments          were       not       released          in<\/p>\n
     spite     of    communications\/certificates              issued         by     the<\/p>\n
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\n                                        5<\/span>
\n     Railways through their certificates dated 9th March,<\/p>\n
     1994 [Annex.F], and letter dated 15th March, 1994 [J]<\/p>\n
     to the Respondent No.1.\n<\/p>\n
                By these certificates\/letters, the Respondent<\/p>\n
     Nos.2 and 3 had certified and had reiterated that the<\/p>\n
     goods     transported    through      concerned           lorries          were<\/p>\n
      railway material purchased by Executive Director Track<\/p>\n
     [M], Railway Board, Ministry of Railways, New Delhi.\n<\/p>\n
     Only upon deposit of octroi amount by the petitioner,<\/p>\n
     respondent no.1 released the four trucks\/consignments.\n<\/p>\n
     11.        Petitioner herein has challenged the said levy<\/p>\n
     of octroi and claimed the refund of said amount of<\/p>\n
     octroi which seems to be around Rs.7,212-00 per truck,<\/p>\n
     and total sum of Rs. 30,558\/- inclusive of demurrage<\/p>\n
     charges.\n<\/p>\n
     12.        The levy of octroi was done and it appears,<\/p>\n
     was     recovered   by   the   Respondent            no.1       thereafter<\/p>\n
     successively. Petitioner has challenged the said levy<\/p>\n
     of octroi by filing this petition.\n<\/p>\n
     13.        Petitioner    claims       that      after        the       goods,<\/p>\n
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\n                                                    6<\/span>
\n     subject-matter,                were    manufactured,              those        were       got<\/p>\n
     inspected           by     authorities             prior        to       delivery          of<\/p>\n
     consignment to transporter.                        Relevant averment is seen<\/p>\n
     in     para    7     of        the    Writ        Petition,        which       reads       as<\/p>\n
     follows:-\n<\/p>\n
                    7.     After    this  release    order was
\n                   received, the four truck loads of the MIC
\n                   parts each of the truck containing 6000
\n                   pieces   were    got   inspected    by  the<\/p>\n
                   authorities   of   the   Railways   and the
\n                   consignee s receipts in the name of the<\/p>\n
                   Railway Authority     Executive Director in
\n                   respect of the four trucks were issued by
\n                   the petitioner. The lorry receipts are at
\n                   Annexures C,D, E & F respectively.      The<\/p>\n
                   Inspection Certificate in this respect of
\n                   the purchasing authority viz. Railways,
\n                   through its Executive Director, Track (M),
\n                   Railway Board, New Delhi is at Annexure-
\n                   G.\n<\/p>\n
     [Quoted from page nos. 3 and 4 of the Writ Petition<\/p>\n
     paper book].\n<\/p>\n
     14.           Relying on facts as pleaded and the effect of<\/p>\n
     provisions of Sale of Goods Act, petitioner has urged<\/p>\n
     that     Railway          is    the     owner       of       MIC      inserts ,           the<\/p>\n
     subject-matter of these consignments, stating that the<\/p>\n
      MIC inserts             are :-\n<\/p>\n
                   [1]         Specific goods. [Section 22].\n<\/p><\/blockquote>\n
                   [2]         The         goods        were        inspected            before
\n                               delivery       to       the    transporter.            [Section
\n                               20].\n<\/p><\/blockquote>\n
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\n                                           7<\/span><\/p>\n
              [3]        Goods      have           been             unconditionally<\/p>\n
                         appropriated         to    the        contract            by     the
\n                         seller with the assent of the buyer.\n<\/p><\/blockquote>\n
                         [Section 23 (1)].\n<\/p><\/blockquote>\n
              [4]        Goods are delivered by the seller to
\n                         the carrier without a right of disposal<\/p>\n
                         under    the     instructions              of       the    buyer.
\n                         [Section 23 (2)].\n<\/p><\/blockquote>\n
              [5]        Delivery by road is authorized by the<\/p>\n
                         contract    and       hence          when       consigned         to
\n                         transporter,          property             in       the        goods<\/p>\n
              [6]
\n                      ig passes to the buyer. [Section 39 (1)].
\n                         The property in the goods has passed as<\/p>\n
                         intended. [Section 19].\n<\/p><\/blockquote>\n
              [7]        The property\/title in the goods passes
\n                         whether    the       payment          is       made    or      not,
\n                         because future payment can be a good<\/p>\n
                         condition for transfer of ownership.\n<\/p><\/blockquote>\n
              [8]        Petitioner           is      a        bailee          of         the
\n                         Respondent       Nos.     2      and       3    on    the       date
\n                         when those were detained by Respondent<\/p>\n
                         No.1 for demanding octroi.\n<\/p><\/blockquote>\n
     15.      In    brief,   case       of     petitioner               is    that       when<\/p>\n
     goods were detained by the respondent no.1, those were<\/p>\n
     owned by Railway, since same were specific goods and<\/p>\n
     were   appropriated         towards       sale       by        seller         at     the<\/p>\n
     directions     of    buyers     as       those       were          inspected          by<\/p>\n
     purchaser       the   respondent          nos.       2    and       3    and       being<\/p>\n
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\n                                  8<\/span>
\n     railway property when detained, levy of octroi is not<\/p>\n
     attracted, and hence the claim by respondent no.1 is<\/p>\n
     unlawful and arbitrary.\n<\/p>\n
     16.     The challenge, as presented in the petition in<\/p>\n
     a condensed form as found in paragraph no.14 can be<\/p>\n
     better read by quotation,   which is as follows:-\n<\/p>\n
              14.    The petitioner submits that this
\n             action on the part of the Respondents is<\/p>\n
             arbitrary   and
\n             jurisdiction.\n<\/p><\/blockquote>\n
                                unlawful    and    without
\n                             It constitutes invasion on
\n             the right of the petitioner to carry on the
\n             business and occupation and infringes the<\/p>\n
             right conferred under Article 19 (G) of the
\n             Constitution of India. It also invades the
\n             right under Articles 14 and 21 of the
\n             Constitution of India. In any case, it was
\n             not within the powers of the Respondent No.<\/p>\n
             1 to charge the octroi duty in question
\n             only because the petitioner happened to<\/p>\n
             bring the property of the Railways i.e.,
\n             Union   Government    according    to   their
\n             instructions for delivering the same at
\n             Kalamna Railway Yard. It was impermissible<\/p>\n
             and directly in contravention of Articles
\n             265 and 285 of the Constitution of India
\n             and also sections 184 and 187 of the Indian
\n             Railways Act. …..\n<\/p><\/blockquote>\n
     [Quoted from page nos.6 and 7 of the Writ Petition<\/p>\n
     paper-book].\n<\/p>\n
     17.     Learned   respective    Advocates        have        placed<\/p>\n
     reliance on following reported judgments :-\n<\/p>\n
             By petitioner :\n<\/p>\n
                                        ::: Downloaded on – 09\/06\/2013 15:15:40 :::<\/span>
\n                                          9<\/span><\/p>\n
     [a]     M\/s. Marwar Tent Factory Vs. Union of India<\/p>\n
             & ors. [AIR 1990 SC 1753],
\n     [b]     Agricultural Market Committee Vs. Shalimar<\/p>\n
             Chemical Works Ltd. [AIR 1997 SC 2502],
\n     [c]     Birendra    Nath       Guha     &   Co.,      Vs.     State       of
\n             Bihar [AIR 1955 Patna 245SC 1753],<\/p>\n
     [d]     Commissioner           of       Sales         Tax,       Eastern
\n             Division, Nagpur Vs. Husenali Adamji & Co.
\n             [AIR 1959 SC 887],<\/p>\n
     [e]     The Union of India Vs. Bhusawal Municipal
\n             Council [AIR 1982 Bombay 512], and
\n     [f]<\/p>\n
             Maharashtra Distilleries Ltd. Vs. Municipal
\n             Corporation    of       Aurangabad        &     another       [AIR<\/p>\n
             2005 SC 760].\n<\/p>\n
             By Respondent No.1 :-\n<\/p>\n
             Municipal      Commissioner                of        Dum        Dum<\/p>\n
             Municipality       &    ors.        Vs.    Indian        Tourism
\n             Devpt. Corpn. & ors.             [(1995) 5 SCC 25].\n<\/p>\n
     18.     Plea of the respondent no.1-Corporation is of<\/p>\n
     a simple denial of exemption claimed by the petitioner.\n<\/p>\n
     Respondent no.1 urges that goods have been consigned by<\/p>\n
     the petitioner and Railway is the recipient. It further<\/p>\n
     urges that so long the Railways do not themselves come<\/p>\n
     forward and claim to be owner of the property, the<\/p>\n
     exemption would not apply.\n<\/p>\n
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\n                                           10<\/span><\/p>\n
     19.          The plea of Indian Railways is not disclosed,<\/p>\n
     as    they    have    chosen    to   be   mute.    It     is     seen      that<\/p>\n
     various certificates and communications are issued by<\/p>\n
     Railways      to     the   respondent     no.1,    stating        that       the<\/p>\n
     subject-matter is            railway material . At no point of<\/p>\n
     time, the respondent nos. 2 and 3 came forward to seek<\/p>\n
     release of goods, claiming ownership thereof.                              Even<\/p>\n
     before this Court, respondent nos.2 and 3 have not<\/p>\n
     appeared to support the plea of the petitioner.\n<\/p>\n
     20.          It is to be seen as to when the consignments<\/p>\n
     were    detained       for    demanding    octroi,       whether         those<\/p>\n
     specified goods manufactured for railway had vested in<\/p>\n
     Railways           rather whether property in the goods had<\/p>\n
     passed on to Railway.\n<\/p>\n
     21.          The points on which there is no controversy as<\/p>\n
     has revealed from the rival submissions demonstrate the<\/p>\n
     following:-\n<\/p>\n
                  [a]     It is not in dispute that the railway
\n                          property is not taxable in view of
\n                          Sections 148 and 187 of the Indian
\n                          Railways Act.\n<\/p><\/blockquote>\n
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\n                                  11<\/span><\/p>\n
           [b]   The taxation may come under the bar
\n                 of      Articles      265     and         285        of<\/p>\n
                 Constitution of India once it is a
\n                 property belonging to Union of India
\n                 or the Railways.\n<\/p><\/blockquote>\n
           [c]   If the levy is not authorized by law,
\n                 it would otherwise come into clutches<\/p>\n
                 of being arbitrary, unreasonable, and
\n                 would be hit by Articles 14 and 19 of<\/p>\n
                 Constitution of India.\n<\/p><\/blockquote>\n
     22.   The points on which dispute arises are:-\n<\/p>\n
           [a]        Whether the      MIC inserts           on the
\n                      date of entry into the limits of<\/p>\n
                      Corporation are imported for                  use<\/p>\n
                      or consumption     by the Railways as
\n                      Railway property?\n<\/p><\/blockquote>\n
           [b]        Whether   the    petitioner\/consignor
\n                      was acting sheerly as an agent of
\n                      Railways, when it had entrusted the
\n                       MIC   inserts    to    the    transporter<\/p>\n
                      and property in goods had already
\n                      passed to the Railways?\n<\/p><\/blockquote>\n
           [c]        Whether    the    MIC      inserts          were
\n                      inspected by Railways as averred in
\n                      para 7 of Writ Petition and what is<\/p>\n
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\n                                          12<\/span>
\n                           the effect of said inspection, if<\/p>\n
                           admittedly done or proved?\n<\/p><\/blockquote>\n
     23.        The   fact    of   the    matter      is     required          to    be<\/p>\n
     ascertained and dealt with on the basis of facts as<\/p>\n
     obtaining between the parties and stipulations of sale<\/p>\n
     as spelt out from the work order, which is the contract<\/p>\n
     document deciding the relations between the parties,<\/p>\n
     i.e. Railway and the petitioner, and their                               mutual<\/p>\n
     rights and obligations.\n<\/p>\n
     24.        Clauses 7 and 8 of Work Order [Annex.A] are<\/p>\n
     relied upon by both the parties, though with divergent<\/p>\n
     objects.\n<\/p>\n
                Clause    7   pertains        to   mode    of     dispatch          and<\/p>\n
     Clause 8     acceptance, inspection and payment.\n<\/p>\n
     25.        Clause 7.2 is quoted ad verbatim for a quick<\/p>\n
     access and understanding, which reads as follows:-\n<\/p>\n
                          7.2     The contractor shall load and
\n                         arrange dispatch as per the mode of
\n                         transport preferred by the consignee\n<\/p><\/blockquote>\n
                         (s) at contractor s own cost, booking
\n                         the   consignment   freight   pre-paid.
\n                         The contract rate is inclusive of the
\n                         cost of finished inserts supplied at
\n                         the consignees works and contractor
\n                         shall   have   no    additional   claim<\/p>\n
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\n                                      13<\/span>
\n                      towards any cost incurred in the
\n                      loading, packing and transport of the<\/p>\n
                      finished inserts.\n<\/p><\/blockquote>\n
     [Quoted from page no.16 of the Writ Petition paper-
\n     book].\n<\/p>\n
     26.     From Clause No.7 quoted above, it is apparent<\/p>\n
     that the consignment is to be done by the consignor at<\/p>\n
     own costs, with      freight pre-paid and any additional<\/p>\n
     claim   towards      costs       of   loading,           packaging,<\/p>\n
     transportation
\n                    ig  etc.,   of    finished    inserts          is      not<\/p>\n
     admissible.\n<\/p>\n
     27.     Clause 8 is quoted ad verbatim as follows:-\n<\/p>\n
              8.        Payments :\n<\/p><\/blockquote>\n
             8.1.    The time to time payment at the
\n             accepted rate towards supply of finished
\n             inserts will be made by the FA & CAO,
\n             Central Railway, Bombay.\n<\/p><\/blockquote>\n
             8.1.1   Payment of 98% of contract rate
\n             shall be made towards the inspected and
\n             passed inserts when despatched by rail.
\n             The claim for payment shall be supported by
\n             inspection certificate as also proof of<\/p>\n
             despatch (clear RR) where booking is done
\n             by Rail. Balance 2% payment shall be made
\n             on   certification   of  receipt  in   good
\n             condition by the respective consignee (s)
\n             duly verified by Railway representative
\n             (Concrete Sleeper Inspecting Engineer) at
\n             the consignee (s) factory of receipt of
\n             consignment in good condition.\n<\/p><\/blockquote>\n
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\n                               14<\/span><\/p>\n
            8.1.2   Where   the    passed   inserts   as
\n            allotted (under Release Order (s) are<\/p>\n
            supplied direct to the consignee by road
\n            transport, payment shall be made at 100% of<\/p>\n
            contract rate by the paying authority on
\n            production    of     relevant     inspection
\n            certificate (s) and a certificate from the
\n            consignee s authorised representative for
\n            the   receipt   of   consignment   in   good<\/p>\n
            condition and the same duly verified by the
\n            concrete sleeper inspecting authority (not
\n            below the rank of AEN\/AIE) nominated at the
\n            consignees works. The consignee (concrete
\n            sleeper manufacturer) shall certify the<\/p>\n
            receipt of consignment (s) on behalf of the
\n            Purchaser.\n<\/p><\/blockquote>\n
     [Quoted from page no.16 of the writ petition paper-
\n     book].\n<\/p>\n
     28.    Said Clause 8 can be analyzed as follows:-\n<\/p>\n
                  As to Clause 8.1.1:-\n<\/p><\/blockquote>\n
                  The contractor\/supplier is entitled<\/p>\n
                  for   the  98%   payment   no   sooner
\n                  delivery of goods is certified by the
\n                  Representative   of    Railways    and
\n                  balance payment is to be made after<\/p>\n
                  verification       of        Railway s
\n                  representative    Concrete     Sleeper
\n                  Inspecting Engineer at the factory on
\n                  receipt of the consignment of goods
\n                  at Railway yard.\n<\/p><\/blockquote>\n
                  As to Clause 8.1.2 :-\n<\/p><\/blockquote>\n
                  100 per cent payment will be made by
\n                  the paying authority on production of
\n                   relevant Inspection Certificates and
\n                  Certificate      from      Consignee s
\n                  authorized representative     for the
\n                  receipt of the consignment in a good
\n                  condition   and  the  same   is   duly<\/p>\n
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\n                                             15<\/span>
\n                          verified by the specified Concrete
\n                          Sleeper Inspecting Authority at the<\/p>\n
                          consignee s work.\n<\/p><\/blockquote>\n
     29.        It     is    seen       from        Clause     8.1.1         that       the<\/p>\n
     specified       representative            of     Railway         receives          the<\/p>\n
     delivery at the Railway yard whenever transportation is<\/p>\n
     by railway freight pre-paid, and there the delivery of<\/p>\n
     goods     is    complete       and     there      and      then       upon       said<\/p>\n
     inspection and acceptance of goods, the property in<\/p>\n
     goods gets transferred to Railways.\n<\/p>\n
     30.        It is seen that in the situation governed by<\/p>\n
     Clause 8.1.2, the delivery is complete only when the<\/p>\n
     goods physically reach the consignee s work and the<\/p>\n
     specified       Concrete       Sleeper         Inspecting        Authority          of<\/p>\n
     Railway    inspects          the   MIC      inserts        and     accepts         the<\/p>\n
     delivery.\n<\/p>\n
     31.        What is common in Clauses 8.1.1 and 8.1.2 is<\/p>\n
      Delivery upon inspection to specified representative<\/p>\n
     of Railway .\n<\/p>\n
     32.        This      Court     finds      that    delivery         of     physical<\/p>\n
     possession      to     the    Railway       or   for    and      on     behalf      of<\/p>\n
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\n                                       16<\/span>
\n     Railway after inspection in the manner prescribed is<\/p>\n
     made a pivotal and common point in Condition No.8.\n<\/p>\n
     33.     Now,    this     Court     has   to     see      how       was     the<\/p>\n
     consignment done.        For this purpose, Transport Invoice<\/p>\n
     has to be seen.\n<\/p>\n
     34.     The Transport Invoices\/Lorry Receipts are four<\/p>\n
     in number, and are concurrent as to form and details of<\/p>\n
     consignor and consignee and relevant part thereof reads<\/p>\n
     as follows:-\n<\/p>\n
                      Consignor s Name & Address                    :   M\/s.
\n                     Bakshi Steels Ltd., Bhiwadi.\n<\/p><\/blockquote>\n
                     Consignee Bank s name and address :
\n                     M\/s. Executive Director Track (M),<\/p>\n
                     Railway Board, Ministry of Railway,
\n                     New Delhi at M\/s. ISCO Track Sleeper
\n                     (P) Ltd., Railway Yard, Kalamana,
\n                     Nagpur.\n<\/p><\/blockquote>\n
     [Quoted from page no.26 of the Writ Petition paper-
\n     book].\n<\/p>\n
             Reference to        Bank       appearing in the portion<\/p>\n
     quoted above, is in-redundant, as the transaction is<\/p>\n
     direct and not through Bank, and word only                     consignee<\/p>\n
     will have to be read.\n<\/p>\n
     35.     In     present     case,      consignor,       as      seen      from<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 15:15:41 :::<\/span>
\n                                   17<\/span>
\n     documents admitted\/relied upon by the petitioner, is<\/p>\n
     the seller    the petitioner.\n<\/p>\n
     36.     Now it is to be seen whether petitioner has<\/p>\n
     acted as bailee, and for this purpose, it is also to be<\/p>\n
     seen whether title\/property in goods has transferred to<\/p>\n
     seller before consignment.\n<\/p>\n
     37.
\n             It follows by essential inference from Clauses<\/p>\n
     8.1.1 and 8.1.2 that in either case of transportation<\/p>\n
     either by rail or by road, the property in goods does<\/p>\n
     not pass to the railway until the inspection is done by<\/p>\n
     the specified Inspecting Authority, when goods actually<\/p>\n
     reach   the   consignee s    yard   (when      transported            by<\/p>\n
     Railway) or place of work and in the facts of present<\/p>\n
     case, at the Kalamana-based factory of ISCO TS [P] Ltd.\n<\/p>\n
     38.     Therefore, the property in goods would pass<\/p>\n
     unto the Railways, soon the inspection is done at the<\/p>\n
     time of taking delivery by the specified officer of<\/p>\n
     Railway under Clause 8.1.1 or 8.1.2.\n<\/p>\n
             Thus, in both the situations, a common factor<\/p>\n
     is inspection by    specified authority at the time of<\/p>\n
                                          ::: Downloaded on – 09\/06\/2013 15:15:41 :::<\/span>
\n                                         18<\/span>
\n     taking     physical      delivery.      This      inspection            before<\/p>\n
     delivery by specified representative of Railway was not<\/p>\n
     completed when the goods were consigned to transporter.\n<\/p>\n
     39.        The goods were detained demanding octroi by<\/p>\n
     the respondent no.1 before the stage of delivery to<\/p>\n
     Railway Officer at ISCO TS [P] Ltd., has matured.\n<\/p>\n
     40.
\n                It is seen that the choice of transport by<\/p>\n
     road was made by the petitioner.                 Had the goods been<\/p>\n
     delivered at Railway Yard, wherever outside territorial<\/p>\n
     limits     of   Nagpur   Municipal      Corporation          whenever         the<\/p>\n
     goods would arrive within limits of Corporation while<\/p>\n
     those would stand already vested in Railway, and were<\/p>\n
     to    be   in    physical     possession       of     Railway         as      the<\/p>\n
     Railway s owned property at the time of entry in limits<\/p>\n
     of Corporation.\n<\/p>\n
     41.        From what is shown by the petitioner as the<\/p>\n
     transport       free     of   freight     to        destination ,             was<\/p>\n
     selected         by      seller,        the         entrustment                of<\/p>\n
     goods\/consignment to the transporter was not as per the<\/p>\n
     choice or direction of the buyer               Railway.\n<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 15:15:41 :::<\/span>
\n                                        19<\/span><\/p>\n
     42.       The inspection note on record                   Annexure-G at<\/p>\n
     page 30 is dated 3rd March, 1991.               Goods inspected are<\/p>\n
     described therein, but those are not shown or proved to<\/p>\n
     be the very goods which are consigned. It is also not<\/p>\n
     shown that due to any subsequent agreement, inspection<\/p>\n
     as    prescribed    in   Clause     8     has     been      altered         and<\/p>\n
     dispensed with so as to render inspection represented<\/p>\n
     in Inspection Note [Annex.             G ] dated 3rd March, 1991<\/p>\n
     to be the inspection as contemplated by Clause 8.1.2.\n<\/p>\n
     43.       Moreover,      while         Railways       supported             the<\/p>\n
     petitioner before the Respondent No.1 in the form of<\/p>\n
     letters\/Certificates        at   Annexures        H     and       I ,     they<\/p>\n
     have not filed in this Court any consenting reply.\n<\/p>\n
     Railways has refrained from appearing and supporting<\/p>\n
     the petitioner.\n<\/p>\n
     44.       It   is     not    a    case      where        like        in      an<\/p>\n
     interpleader, the petitioner may have said that not the<\/p>\n
     petitioner, but respondent nos. 1 and 2 are liable for<\/p>\n
     octroi, and, if any, levy is due, it be recovered from<\/p>\n
     the respondent nos. 1 and 2.               Railway Establishment<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 15:15:41 :::<\/span>
\n                                           20<\/span>
\n     was,    therefore,      not     called      upon       to      traverse          the<\/p>\n
     contents    of   the    petition,         and    they     have       chosen       to<\/p>\n
     remain mute.\n<\/p>\n
     45.        It has to be noted that they have not come<\/p>\n
     forward to own the responsibility of title of goods and<\/p>\n
     claim exemption from duty, by virtue of title, probably<\/p>\n
     because they wish to say that ownership in the goods<\/p>\n
     was not so far passed unto them, which would occur only<\/p>\n
     after the goods are physically delivered.\n<\/p>\n
     46.        The   term      railway        material        or     any         other<\/p>\n
     loose description as to Railway s interest in goods or<\/p>\n
     alleged    admission       by   Railway         that      MIC      parts         are<\/p>\n
     purchased by Railway in itself does not prove that the<\/p>\n
     ownership of goods on the day of detention was that of<\/p>\n
     Railway.\n<\/p>\n
     47.        It is pertinent to note that at no point of<\/p>\n
     time,   Respondent      Nos.    2    and     3    themselves          did      come<\/p>\n
     forward     to   urge      before     the       respondent          no.3       that<\/p>\n
     consignments belonged to them and those be released in<\/p>\n
     their     favour,    and      that    the       consignor         was        justa<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 15:15:41 :::<\/span>
\n                                     21<\/span>
\n     bailee     as their agent, no sooner first inspection at<\/p>\n
     manufacturer s [petitioner s] site represented through<\/p>\n
     Annexure G    [at page 30] was conducted.\n<\/p>\n
     48.        It is thus clear that Respondent Nos. 2 and 3<\/span><\/p>\n
     do not claim the ownership in goods so long those are<\/p>\n
     put in physical possession of Railway s representative,<\/p>\n
     as is clear without any ambiguity from Clauses 8.1.1<\/p>\n
     and 8.1.2 and mute stance of these respondents.\n<\/p>\n
     49.        It is, thus, seen that inspection by Railway<\/p>\n
     Officer prior to delivery to truck for transport by<\/p>\n
     itself and in isolation would not pass the title in the<\/p>\n
     goods to Railway, and by fiction of law, make it a<\/p>\n
      railway     property ,    since    the   inspection           prior       to<\/p>\n
     actual     delivery   of     consignment        to       railway          was<\/p>\n
     contemplated by Clauses 8.1.1 and 8.1.2.\n<\/p>\n
     50.        In the given situation as obtaining on record,<\/p>\n
     Railway is not shown to be the consignor, but is the<\/p>\n
     consignee, as owner of goods on facts or by fiction of<\/p>\n
     law.\n<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:15:41 :::<\/span>
\n                                         22<\/span><\/p>\n
     51.        On facts, the petitioner has failed to bring<\/p>\n
     on    record   any   material   or      jurisdictional          facts,       to<\/p>\n
     prove or demonstrate that indisputably Railway is the<\/p>\n
     owner.\n<\/p>\n
     52.        Petitioner has failed to prove fact crucial to<\/p>\n
     attract the fiction of             passing property in goods ,<\/p>\n
     which     is      inspection    followed        by      delivery.            By<\/p>\n
     application of various provisions of law relied upon<\/p>\n
     while urging points referred to in para 14 of this<\/p>\n
     judgment are, property in goods does not pass unto<\/p>\n
     Railway.       Facts crucial to passing the property in<\/p>\n
     goods are not proved from the material relied upon by<\/p>\n
     the petitioner.\n<\/p>\n
     53.        This    Court   holds     that   the      goods       were       not<\/p>\n
     appropriated to the sale either by seller or purchaser<\/p>\n
     to the contract, and the property in goods did not pass<\/p>\n
     to the buyer.\n<\/p>\n
     54.        The petitioner, therefore, continued to hold<\/p>\n
     the goods for himself when detained by the Respondent<\/p>\n
     No.1, and, therefore, was not a bailee of Respondent<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 15:15:41 :::<\/span>
\n                                        23<\/span>
\n     Nos. 2 and 3.\n<\/p>\n
     55.       It is, thus, clear on facts, and this Court<\/p>\n
     holds that:-\n<\/p>\n
               [a]     The said        MIC inserts             are owned,<\/p>\n
                       imported         and           possessed               by
\n                       petitioner, and not by respondent
\n                       nos. 2 and 3, on the date of entry<\/p>\n
                       in     municipal         limits             of       the
\n                       respondent no.1.\n<\/p><\/blockquote>\n
               [b]     Petitioner        is     not           bailee          of<\/p>\n
                       Railway, but a consignor itself for
\n                       own purpose of delivery to Railway.\n<\/p><\/blockquote>\n
               [c]     The     inspection            done        by       some\n                       organization          represented              through\n   \n\n\n\n                       Annexure     G       is not the inspection\n<\/pre>\n
                       as contemplated by Clause 8.1.2.\n<\/p><\/blockquote>\n
     56.       In    the     result,        goods       imported           by       the<\/p>\n
     petitioner do attract octroi as has happened in the<\/p>\n
     present case.\n<\/p>\n
     57.       Analysis of facts done herein before does not<\/p>\n
     warrant   any   further     detailed       discussion              about       the<\/p>\n
     precedents relied upon by the petitioner.\n<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 15:15:41 :::<\/span>
\n                                      24<\/span><\/p>\n
     58.       In      the   circumstances,   Rule      is     discharged.\n<\/p>\n
     Parties are directed to bear own costs.\n<\/p>\n
               JUDGE                                       JUDGE\n\n                                  -0-0-0-0-\n\n     |hedau|\n\n\n\n\n                                   \n                        \n                       \n      \n   \n\n\n\n\n\n\n                                              ::: Downloaded on - 09\/06\/2013 15:15:41 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court M\/S. Bakshi Steels Ltd vs The City Of Nagpur on 3 November, 2009 Bench: A. H. Joshi, A. R. Joshi 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Writ Petition No. 1086 of 1994 M\/s. Bakshi Steels Ltd., 18, Commercial Complex, Malcha Marg, Diplomatic Enclave, New Delhi-110 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-200946","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nM\/S. 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