{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.01 OF 2009 1. Aurangabad Municipal Corporation Aurangabad, through its Commissioner 2. The Commissioner, Aurangabad Municipal Corporation, Aurangabad PETITIONERS VERSUS M/s KETI Constructions (I) Ltd., Vidya Chamber, 8/47, Sneh Nagar, Main Road, Indore Through its Account Officer Ganesh Rameshchandra Agrawal R/o Near S.T. Colony No.2, Row House No.D-4, Sara Garden, New Aurangabad, Maharashtra RESPONDENT ....... Mrs.Manjusha Deshpande, Advocate for petitioners MR.A.S.Bajaj, Advocate for respondent ....... [CORAM : A.V.POTDAR, J.] Reserved on : 01/07/2009 Pronounced on : 10/07/2009 {2} JUDGMENT : 1. By the present writ petition, filed under Articles 226 and 227 of the Constitution of India, the petitioners have challenged the judgment and order rendered by District Judge-1, Aurangabad in Regular Civil Appeal No.181/2007 dated 04.02.2008 thereby dismissing the appeal filed by the petitioners and confirming the decision / judgment and order rendered by the Civil Judge Senior Division, Aurangabad in Municipal Appeal No. 01/2007 dated 09.07.2007. 2. Rule. 3. Rule made returnable forthwith and by consent of the parties heard finally at the stage of admission itself. 4. The facts, which gave rise to file the present petition, can be summarized as under- a) Respondent herein is a Indore based company to whom work of construction of four lane road from Waluj to Wadala was allotted under work order dated 15.03.2007 from the World Bank Project (PW) Division, Ahmednagar. Respondent has opened its site office at Dahegaon, Tq-Gangapur. The respondent has purchased one JCB machine from JCB India Ltd, through its authorized agent M/s Bhopal Motors (P) Ltd., Indore. The JCB machine was {3} sent through truck/transport carrier to Dahegaon. When the said truck / vehicle was passing through the local limits of petitioner corporation, the officers of petitioner corporation intercepted the vehicle at Aurangabad Naka and imposed octroi without proper verification of the documents. The respondent paid octroi of Rs. 64,727/- and got released the JCB machine. Hence, respondent preferred an appeal No.01/2007 against the petitioners u/s 406 of the Bombay Provincial Municipal Corporation Act, 1949 (Herein after this Act will be referred as the said Act) on 17.04.2007. The appeal came to be allowed by the Civil Judge, Senior Division, Aurangabad vide judgment and order dated 09.07.2007. b) The petitioners have challenged the said order and judgment in Regular Civil Appeal No.181/2007 before the District Judge Aurangabad. The said appeal came to be dismissed by the District Judge-1, Aurangabad vide judgment and order dated 04.02.2008. The said judgment and order is under challenge in this petition. c) The petitioners have challenged the said judgment and order for the grounds stated in para 4 (I) to (XII) of the writ petition. 5. In this background, heard arguments of learned counsel Mrs.Manjusha Dehspande, appearing for petitioners followed by the arguments of learned counsel Mr.A.S.Bajaj, appearing for the respondent. {4} 6. During the course of arguments, learned counsel appearing for the petitioners gave lot of emphasis on section 406 (2) (c) of the said Act. According to learned counsel for the petitioners, on bare reading of this section, it is clear that it is a mandate of law to file compliant in respect of grievance about levy of octori before the Municipal Commissioner, as contemplated under sub section (2) (c) of section 406 of the said Act, as per the provisions laid down under Rule 16 (h) of the Municipal Octori Rules. Both the courts below have not considered this legal provision and have entertained the appeals, which in absence of compliance of this provision ought not to have entertained. 7. In reply to these submissions, it was urged on behalf of the respondent that though the Municipal Commissioner, Aurangabad was party opponent No.2 before the trial court and party appellant No.2 before the District Court, yet no objection is raised before both the courts below in respect of the compliant to be filed u/s 406 (2) (c) of the Act. As no objection was raised before both the courts below, there is no question of recording finding to that effect by both the courts below. On perusal of the judgment and orders of both the courts below, it appears that only objection in respect of limitation to file the appeal was raised, which issue was considered by the District Court in para 6 of its judgment. The second objection raised about levy of octroi under Rule 22 of the Octroi Rules. This fact is clear from the perusal of the judgments of both the courts below that no objection was raised in respect of {5} compliant to be filed before filing appeal in the courts below, as contemplated u/s 406 (2) (c) of the said Act. Whereas the appeals were entertained u/s 406 (1) of the said Act by both the Court below mainly on two grounds i.e. i) that the challenge to the levy of octroi by filing appeal was within stipulated time limit and ii) that the respondents have deposited / paid the claimed octroi. Hence, now at the belated stage, the petitioners cannot claim the benefits of non filing of complaint before the Municipal Commissioner, as contemplated u/s 406 (2) (c) of the Act and to fight the litigation at the costs of the citizens, as observed in para 3 of the judgment reported in 1992 (3) Bombay Cases Reported 188. Hence, these submissions are not accepted however rejected in toto. 8. Now, coming to the submissions in respect of presumption u/s 147 of the Act, which reads as follows: “147. Until the contrary is proved any goods imported into the City shall be presumed to have been imported for the purposes of consumption, use or sale therein unless such goods are conveyed from the place of import to the place of export by such routes, within such time, under such supervision and on payment of such fees therefor as shall be determined by the standing orders.” 9. Documents on record clearly disclose that the respondent company has its site office at Dahegaon and not in Aurangabad. While perusing the document, it has to be read as a whole for its true meaning and interpretation. The Aurangabad address, shown in the Tax Invoice and the consignment note (part {6} of Exhibit-C collectively annexed with the petition), is the address of contact person and not the address where the JCB machine was to be delivered or unloaded i.e. address of the place of delivery. Much emphasis was given that in the delivery challan address of Aurangabad was given, however on bare reading of this document and as observed by both the courts below, the address of place of delivery is Dahegaon and not Aurangabad and if it is so, the presumption u/s 147 of the said Act would lie in favour of the respondent and not in favour of the petitioners. 10. During course of arguments, much ado was made about misinterpretation of the judgment in case of “Man Mohan Tuli V/s Municipal Corporation of Dehli and others” reported in (1981) 2 SCC 467. In para 9 of the said judgment, the Apex Court has observed as to when the octori duty is levyable, of which substance can be read as “Where the goods merely pass through a local area without being consumed therein, the mere fact that the transport carrying the goods halt within the local area for transshipment or allied purposes would not justify the levy of either the terminal tax or octroi tax.” 11. For the discussion about the documents made in this judgment the fact is clear that the JCB machine was not used, sold or consumed within the local limits of petitioner corporation and hence, the petitioners are not entitled to levy octroi on the JCB machine of the respondent, which only passed through the local {7} limits of the Aurangabad Municipal Corporation. In substance, no fault is found in the judgment and orders passed by both the courts below, which require any interference at the hands of this Court. Therefore, the writ petition is dismissed. 12. Rule discharged as indicated above. Accordingly, writ petition stands disposed of with no order as to costs. [A.V.POTDAR, J.] drp/wp01-09