Civil Writ Petition No. 3038 of 1997 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 3038 of 1997 Date of Decision: January 21, 2009 Union of India ..Petitioner Versus Faridabad Complex Administration, ..Respondent Faridabad through its Chief Administrator CORAM : HON'BLE MR. JUSTICE M.M.KUMAR HON'BLE MR. JUSTICE H.S.BHALLA Present:- Mr. Madan Mohan, Advocate for the petitioner. Mr. Manoj Sood, Advocate for the respondents 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reports or not? 3. Whether the judgment should be reported in the Digest? H.S.BHALLA, J The Union of India (hereinafter referred to as “the petitioner”) has knocked at the door of this court for setting aside the impugned orders dated 1.1.1993 (Annexure P-10) and 20.7.1995 (Annexure P-11) by virtue of which, claim of the petitioner for refund of octroi tax, was rejected. The facts required to be noticed for the disposal of this petition are that petitioner is aggrieved against the levy of octroi tax on the properties belonging to the department of Telecom, which Civil Writ Petition No. 3038 of 1997 2 were being transported within the jurisdictional area of the respondent for the purpose of installation of a Telephone Exchange. It has been claimed that the petitioner placed purchase orders with Indian Telephone Industries, Mankapur for electronic exchange equipment to be installed at the Telephone Exchange, Faridabad within the territorial jurisdiction of the respondent, Faridabad Complex, Faridabad. The payment for the said equipment was made at the site after the said equipment was cleared by the Quality Assurance Wing of the petitioner department. The equipment was then transported through a carrier to Faridabad. This material was intercepted by the octroi staff of the respondent and they demanded payment of octroi tax. Despite protest being raised by the officials of the petitioner, the respondent did not concede their request for the grant of exemption and insisted on charging octroi tax, which was, accordingly, paid. Thereafter, a communication took place between the parties, wherein it was claimed by the petitioner that the properties belonging to them were exempted from levy of octroi tax under Clause 16 of the Octroi Schedule issued by the respondent as sanctioned by the Haryana Government vide Notification dated 7.4.1972. The claim of the petitioner was rejected and this necessitated the filing of the present writ petition. The petition was contested by the respondent wherein objection with regard to maintainability of the writ petition was raised on the ground that since an alternative remedy is available to the petitioner under section 138 of the Haryana Municipal Corporation Act 1994 (hereinafter referred to as `the 1994 Act') and it failed to avail the same, the present writ petition is liable to be dismissed on this short Civil Writ Petition No. 3038 of 1997 3 ground alone. On merit, it was pointed out that the goods/equipments supplied to the petitioner were exempted under Clause 16 of the Octroi Schedule from octroi tax as it had not become the owner of the property at the time of entry into the limit of Fatehabad Complex and by denying the other assertions raised in the petition, it was finally prayed that the petition be dismissed. We have heard learned counsel for the parties and also gone through the paper-book with their assistance meticulously. Before we proceed further in the matter, we would, first of all, like to deal with the issue of maintainability of the writ petition, inasmuch as learned counsel appearing for the respondent raised an objection in the written statement filed by them that where an alternate remedy is available to the petitioner under section 138 of the 1994 Act, the same is liable to be exhausted. Section 138 of the 1994 Act clearly spells out that it does not oust the jurisdiction of the writ petition to determine and decide the question involved in the present writ petition. In other words, this section does not exclude the writ jurisdiction to the entertainment of this petition. Moreover, this court is justified to entertain the petition if it is proved that the authority exercising the power has exceeded the powers conferred upon it under a special statute. In the instant petition, the grievance raised by the petitioner does not relate to the assessment or the principle of assessment under this Act. In such like circumstances, this court is of the view that before filing the writ petition, the remedy provided under this Act is not liable to be exhausted. We are further of the view that if levy charges is completely without authority or oust the provisions of the 1994 Act, writ is maintainable for its refund and the Section does not bar such a petition. The contention raised Civil Writ Petition No. 3038 of 1997 4 by the learned counsel for the respondent, in our considered view, can not at all be countenanced and the same deserves to be rejected. It is an admitted case of the respondent-Corporation that Octroi Schedule has been issued by the respondent in exercise of its powers under section 21 of the Faridabad Complex (Regulation and Development) Act, 1971( for brevity `the 1971 Act') as sanctioned by the State Government of Haryana under Section 22 of the 1971 Act. Provisions of Section 21 of the said Act read as follows:- “ 21 Taxes which may be imposed (1) subject to the rules and any general or special orders which the State Government may make in this behalf, the Chief Administrator may from time to time for the purpose of this Act, and in the manner directed by this Act, impose with the previous sanction of the State Government in whole of the Faridabad Complex or any part thereof the following taxes, namely:- (a) a tax payable by the owner, on buildings and lands not exceeding fifteen percentum of the annual value thereof: Provided that in the case of lands and buildings occupied by tenants in perpetuity, the tax shall be payable by such tenants; (b) a tax on persons practising any profession or art of carrying on any trade on calling in the Faridabad Complex. Explanation:- A person in the service of the Government Civil Writ Petition No. 3038 of 1997 5 or holding an office under the State Government or the Central Government or a local or other public authority shall be deemed to be practising a profession within the meaning of this clause; ( c ) a tax payable by the owner on all or any class of vehicles other than motor vehicles, animals used for riding, drought or burden and dogs, when such vehicles, animals and dogs are kept within the Faridabad Complex; (d ) a tax payable by the employer on menial servants; (e) a tax payable by the occupier of any building in respect of which the Administration has in the exercise of the powers conferred by sections 162 to 169 of the Haryana Municipal Act, 1973, undertaken in the house scavenging; (f) a tax payable by persons presenting building applications to the Administration; and (g) taxes which the State Legislature has power to impose. (2) Without prejudice to the provisions of sub-section (1), for the purpose of providing, maintaining or continuing any amenity in any area other than an urban estate in the Faridabad Complex, the State Government may levy such fees or tax as it may consider necessary which shall be in addition to any fee or tax for the time being leviable under any other law in respect of any site or building on the occupier thereof. Explanation xxx xxx xxx (3) & (4) xxx xxx xxx Civil Writ Petition No. 3038 of 1997 6 By virtue of Sections 27 and 28 of the Act, provisions of the Haryana Municipal Act, 1973 have been made applicable to the respondent. It is further admitted case of the respondent that as per Clause 16 of the Schedule, the articles which are the properties of the Union Government, except those which are liable to octroi prior to 1.4.1937 are exempt from tax. At this stage, it would be necessary to reproduce the Notification dated 7.4.1972 (Annexure P-2) issued by the respondent- department, wherein the articles belonging to the Government are shown to have been exempted from octroi, relevant portion of which reads as under:- “ LOCAL GOVERNMENT DEPARTMENT COMMITTEES NOTIFICATION THE 7th APRIL, 1972. No. 2389-ICI-72/10750 – Whereas the Chief Administrator in exercise of the powers conferred on him under Section 21 of Faridabad Complex (Regulation and Development) Act, 1971, has, with the previous sanction of the Governor of Haryana, proposed to impose a tax on the entry of goods into the limits of Faridabad Complex for use, sale or consumption therein in the nature of octroi (without refunds) with 50 per cent surcharge thereon. And whereas the proposal for the taxation aforesaid has been sanctioned by the Government of Haryana under sub-section (5) of Section 22 of the aforesaid Act. Now, therefore, in pursuance of the provision of Civil Writ Petition No. 3038 of 1997 7 sub-section (6) of Section 22 ibid, the Governor of Haryana is pleased to notify the imposition of the tax in accordance with the Schedule as hereinafter appearing with 50 per cent surcharge thereon and specify that the tax shall come into force with effect from 9th May, 1972 and from the same date the Punjab Government Notification No.4447-CI- (4CII)-61/22497, dated 26th May, 1961, No. 10196-CI (4C1)-60/52599 dated 12th September, 1960, and No.10571-C1(4C1)-60/50498, dated 20th September, 1960, pertaining to the levy of octroi within the octroi/municipal limits of Faridabad (Old) Industrial Township Faridabad and Ballabgarh respectively, with amendments made thereto from time to time, shall cease to have effect. G.V.Gupta, Secretary to Government, Haryana Local Government Department OCTROI (WITHOUT REFUNDS) List of Exemption from Octroi (a) Articles belonging to Government 1 to 15 xxx xxx xxx 16 All articles are the property of the Union of Government except, those which were liable to octroi duty prior to last April, 1937. 17 to 29 xxx xxx xxx.” Civil Writ Petition No. 3038 of 1997 8 Leaving aside, what has been reproduced above, it is also worth noticing that Clause 16 of the Schedule is in consonance with the mandate of Article 285 of the Constitution of India, according to which, the respondent cannot levy octroi charges in respect of the properties belonging to the petitioner. Moreover, the price of the equipment for the purchase order was paid to the Telephone Industries after the same was acquired by the Quality Assurance Wing of the petitioner and thereafter the equipment was transported through carrier to Faridabad within the territorial jurisdiction of the respondent. In such like circumstances, we have no hesitation in holding that the Union of India became the owner of the goods/equipment soon after the payment was made to the seller. Accordingly, in our considered opinion, action of the respondent in rejecting the claim of the petitioner seeking exemption of the properties from the tax is unreasonable and without any legal basis, inasmuch as the goods/equipments supplied were the properties of the petitioner at the time of entry into the limits of Faridabad Complex and on account of this fact, they are exempt from such levy under Clause 16 of Octroi Schedule of the respondent-Administration. For the reasons stated above, writ petition filed by the petitioner, succeeds and is allowed. Impugned orders dated 1.1.1993 (Annexure P-10) and 20.7.1995 (Annexure P-11) are quashed. Respondent is directed to refund the amount of Rs.17,83,672.84P to the petitioner, within a period of 60 days from the date a certified copy of this order is produced. However, it is made clear that in case the aforementioned amount is not refunded within the stipulated period, then in that event, the petitioner would be entitled to interest Civil Writ Petition No. 3038 of 1997 9 at the rate of 9% per annum from the date of passing of this order till its realisation. ( H.S.BHALLA ) JUDGE 21.1.2009 ( M.M.KUMAR ) VK JUDGE