STATE OF U.P. & OTHERS

M/S. INDIAN HUME PIPE CO. LTD.

March 3, 1977 [P. N. BHAGWATI AND S. MURTAZA FAZAL Au, JJ.] B lonsriturion of India-Article 136-Practice of Suprenu' Court-Interfec

rence with d1.scretio11ary orders of High Court-Article 226___..:..WJiether Hif;:/1 C'ourl should interfere-Alternative ren1edies.

I nterprt'/ation-A rticles used for business purposes-Whether in co1nn1ercial sense-U.P. Sales Tax Act-Meaning of sanitary fittings.

The respondent manufactures and sells hume pipes and high quality an<l high pressure pipes.

The pipes are reinforced concrete pipes.

The U.P. (Joycrnment issued a notification under the U.P. Sales Tax Act providing that

"sanitary fittings" were to be taxed -at 7 per cent instead of 2 per cent.

The Sales Tax Officer treated hume pipes supplies by the respondent as sanitary fittings and imposed sales tax @ 7 per cent. The respondent filed a writ petition in the High Court as.sailing the order of the Sales Tax Officer on the ground that the humc pipes manufactured by the asscssee could not by any stretch of imagination be construed to be sanitary fittings nor \Vere they ever used as such.

The High Court after perusing the materials on record and hearing counslaccepted the ple.'l of the respondent and held that the hume pi:ics could not be treated as sanitary ticting~.

The High Court accordingly quashed the assessment made by the Sale.s Tax Officer.

The respondent also filed certificates of Locn! Self Government Engineering Department, U.P. to show that the pipes supplied by the respondent were not used as sanitary fittings.

The aid certificate has been signed by the Executive Engineer on behalf of the chief Engineer of the deparl1nent.

In an appeal by certificate the appellant contended :

( 1) Jii.i;:h Court should not have entertained the writ petition and snould have allov.ed the assessee to avail of the remedies provided to him unJer the U.P. Sales Tax Act particularly when question of fact had to be determined.

(2) On merits the conclusion of the Hill:h

3re not sanitary fitdngs is erroneous. by cc1 tificatc.

Court that hume pipes Dismissing the appeal

Held : ( 1) The Court ne&ative.d the contention of the appellant that the High Court ought not to have entertained the writ petition <ind should have allowed the assessee to avail of the remedies provided to him under the U.P. Sales "fax Act.

In the present case, whether the hume pipes manufactured and sold by the respondent were sanit; iry fittings was a question of.Jaw and

since tbe entice material on the basis of , vhich this question could be determined was placed be.fore the Sales Tax Officer and had pointed in one and only one direction, nan1ely, that the hume pipes were not sanitary fittings and there wai;

nothing to show otherwise, the High Court was justified in entertairiing the , vrit petition.

There is no rule of law that the High Court should not entertain a writ petition where an alternative remedy is available to a party.

Jt is ahvays a matter of discretion and if the discretion has not been exercised by the HiJ;?; h Court unreasonably or perversely, it is the settled practice of this Court not to interfere y, ith the exercise of discretion by the High Court.

Jn these circumstances this Court would not be justified in the interest of justice to intedere under Article 136 of the Constitution to quash the order of the High Court merely on that ground after having found that the order was legaUy correct.

[124 BE]

(2) It is "ell-settled that in construcinathe articles used for bu:!!ines!. pur poses the terms must be interpreted in a prnely commercial sens1~. [123 BCl

U.P. v. INDIAN HUME PIPE (Fazal Ali, J.) 121

Ran1avatar Budhaiprasad etc. v. Assistant Sales Tax Officer. Ako/a (1962) A SCR 279. 282. followed.

The King v. Planters Nut and Chocolate Company Ltd., (1951) Canada L.R. Ex. Court 122. 126 approved.

So construed, by sanitary fittings one only understands such pipes or materials as are used in lavatories, urinals or bath rooms of private houses or public butld1t:il,!S.

In the present case there was absolutely no material before the Sales Tax Officer to show that any of the hume pipes manufactured and B sold by the rc5pondent were meant for use in lavatories, urinals or bath rooms and, in fact, the material was used entirely the other way, the Sales Tax Officer was not at all justified in holding that they were sanitary fittings.

[123 F-H]

(3) The Sales Tax Officer does not appear to have applied his mind at all to the reasons as to how and why hume pipes could be treated as sanitary fittings.

The respondent had filed an application before the Sales Tax Olf!ccr v.herein he had clearly alleged substantial facts showing that the hume C pipes could nt..vcr be used as sanitary fittings; that it is only the G.l.P. Pipes or other }\inds of pipes wJ.iich are used in lavatories, uninals and bath rooms v.hich could be termed as sanitary fittings.

The respondent had placed a large catena of materials in the shape of certificates from technical expert<;,

engineers and highly reputed dealers in sanitary fittings that hume pipes are never used as sanitary fittin1rs.

Even where a hume pipe is used for carrying the escrated material from the Commode to the Sceptio tank that may be treated as sanitary fittings.

The appellant in hiS counter affidavit before the High Court did not controvert any of the facts mentioned by the respondent.

D The State produced no material to controvert the facts. (122 D~G-123A]

( 4) "fhe Court observed that if at any time the material _produced before the Sales Tax Authorities establishes that in a given case hume pipes were meant to be used in the bath rooms, urinals and lavatories etc., then the notification of the Government would be attracted. [124 A-B]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 784 of 1972. (From the Judgment and Order dated 29-9-1970 of the Allahabad High Court in Civil Misc. Writ No. 1111 /70).

S. C. Manchanda and 0. P. Rana, for the appellants.

S. V. Gupte, S. V. Vaidya, K. Rajendra Chaudhary and Mrs.

Veena Devi Khanna, for the respondent.

The Judgment of the Court was delivered by

FAZAL Au, J.

This appeal by certificate raises a short question of law as to whether or not hume pipes which are the subject-matter of the present case amount to "sanitary fittings" as contemplated by a notification issued by the Government under the U.P. Sales Tax Act.

The respondent is a dealer engaged in the manufacture and supply G of hume pipes. The pipes manufactured by the respondent are reinforced with cement concrete pipes and the respondent also manufactures high quality and high pressure pipes like prestressed concrete pipes for water supply, R.C.C. pressure pipes, penstock pipes used in hydro-electric projects etc. The respondent was a supplier of pipes to various Governmental Departments both Central and State, such as Irrigation, Public Works, Local Self Government Engineering, Railways H and Ministry of Petroleum etc. It appears that a dispute arose between the respondent and the Sales Tax Department with respect to the

rate of tax for sale of pipes manufactured by the respondent for tbe assessment years 1962-63, 1963-64 and 1964-65.

According to the notification issued by the Government in pun; uance oJl the U.P. Sales Tax Act, items classed as "sanitary fittings" were to be taxed a.t 7 % instead of 2 % . The Sales Tax Officer treated the hume pipes supplied by the respondent as "sanitary fittings" and imposed sales tax al the rate of 7 % . Instead ot going in appeal to the Assistant Conunissioner (Judicial) tbe respondent filed a writ petition in the High Omrt assailing the order of the Sales Tax Officer on the ground that the home pipes manufactured by the assessee could not, by any stretch of imagination, be construed to be "sanitary fittings", nor were they ever used as such. The High Court, after hearing counsel for the parties and after perusing the materials on the record, accepted the plea of the rc5pondent and held that the hume pipes could not be treated as "sanitary fittings" and the Sales Tax Officer was, therefore, not eutlt!W to levy tax at the rate of 7%. The High Court accordingly quashed the assessments made by the Sales Tax Officer and hence this appeal by the Department after obtaining a certificate from the High Court.

Jn our opinion, the tacts of this appeal lie within a very; 1mrrow compass. The only point which arises for considemtion is whether or not the home pipes manufactured by the respondent could he said to be "sanitary fittings".

The notification dated September 1, l 966 amended the existing entry as "sanitary goods and fittings" but in Viese assessment years we are concerned with the entry as it stood unamended. The Sales Tax Officer does not appear to have applied his mind at all to the reasons as to how and why home pipes could he treated as sanitary fittings.

Apart from his ipsi dixit that home pi1'es amounted to sanitary fittings, he based his order on no other matenal.

The respondent had filed an application before the Sales Ta.~ Ollicer wherein he had clearly alleged substantial facts showing tl1at the btunc pipes could nevet' be used as "sanitary fittings". It is only the O.I. pipes or other kinds of pipes which are used in lavatories., urinals and bath-rooms which can be termed as "sanitary fittings". Neither the contract nor the, tender by the respondent show the exact use for which the hume pipes were meant. On the other hand the respondent had produced a large catena of materials in the shape of certificates from fechn.ical experts, Engineers and highly reputed dealers in •anitary fittings to show that hume pipes are never nsed as sanitary fittings.

In spite of these materials, the State, when it filed it~ counter-affidavit before the High Court, did not controvert any of the facts mentioned by the respondent, vide paragraphs 4, 5 and 6 of the counter-affidavit filed before the High Court.

The materials consist of certificates by Local Self Government Engineering Department, U.P., to show that the pipes supplied by the respondent were not used as "sanitary fittings". This certificate appears at p. 34 of the Paper Book and shows that R.C.C. !Pipes purchased from the respondent had not been used as sanitary fittings by the L.S.G.E. Department. This certificate is signed by the Executive Engineer on behalf of the Chief Engineer of the Department. From pp. 36-39 and 41 of the Paper Book appear the certificates given by certain reputed dealers in sanitary r, oods and fittings, who have categorically certified that the hume pipes are nver

U.P. V. INDIAN HUME PIPE (Faza/ A/i, J.) 123

rcrognised as sanitary-wares or sanitary fittings.

As against this, the State produced no materials to controvert these facts, which could not be brushed aside. At p. 40 there is a certificate by the Ex. Special Engineer, Bombay Municipal Corporation and Ex. Director, Central PubliC Health Engineering Research Institute, Nagpur, in which he has clearly observed that sanitarywares and sanitary fittings are applicabk

to fittings used in the household for W .C.S., wash-basins, traps, sinks etc. and, therefore, hume and R.C.C. pi~ cannot be recognised a~ sanitary-wares or1 sanitary fittings.

As against this, the State produced no material to controvert these facts.

It is well settled that when we are dealing with the articles used for buslnes.s purposes, the terms must be interpreted in a purely commercial sense. In Ramavatar Budhaiprasad ttc. v. Assistant Sales Tax Of!ica, A kola ( ') this Court, while construing the import of the word "veget>tbles", observed M follows :

"But this word must be construed not in any technical sense nor from tho botanical point of view but as under>tood in common parlance. It has not been defined in the Act and

being a word of every day use it must be construed in its popular sense meaning "that sense which people conversant with the subject matter with which the statute is dealing would attribute to it." It is to be construed as understood in common language;"

To the same effect is a docisi-On of the Exchequer Court of Canada in

ThL King .v. Planters Nut and Chocolate Company limited('), where the Court observed as follows :

"The words ''fruit" and "vegetable" are not defined in the Act and so far as 'I am aware they are not defined in any other Act in pari materia. They are ordinary words in every-day use and are therefore to be construed according to their popular sonse".

Tn these circumstances, therefore, we have to construe the expression "sarlitary fittings" in the popular sense of the tenn as it is used in our every-day life. Thus construing, it would be manifest that there could be no question of use of R.C.C. or humc pipes which are generally

laid underground and aro extremely heavy, for the purpore of use in lava!oOO, urinals or bath-rooms etc. By "sanitary fittings" we only

tmderstand such pipes or materiahl as are used in lavatories, urinals or bath-rooms of private houses or public buildings.

Even where a hnme pipe is used for carryinp; tho ascreted material from the commode to the 11eptic tank that mav be treated as sanitary fittings. In the instant care QS there was absolutely no matorial before the Sales Tax Officer tn show that any cl the hume pipes manufactured and sold by the respondent were meant for use in lavatories, urinals or bath-rooms and ill fact the material was used entirely the other way, the Sales Tax Officer was not at all justified in holding that they were sanitary fittings.

(1) [1962) I S.C.R. 279, 282.

(2) (1951) Canada L.R. Ex. Court 122 126

Of course, we must make it clear that if at any time the material produced before the Sales Tax authorities establishes that in a .given case the hume pipes were meant for use in a bathroom, lavatory, urinal etc .. then the notification of the Government would attracted and the assessee must be liable to be taxed at the rate of 7 % . ·

Lastly, it was feebly argued by Mr. Manchanda that the High Court ought not to have entertained the writ petition and should have allowed 'the assessee to avail of the remedies provided to him under the U .P. Sales Tax Act, particularly when questions of fact had to be determined. In the instant case, the question as to what is the true Connotation of the words "sanitary fittings" and whether the hume pipes manufactured and sold by the respondent were sanita!Cy fittings within the meaning of that expression was a question of law and sinco the entire material on the basis of which this question could be determined was placed before the Sales Tax Officer and it pointed in one and only one direction, namely, that the hume pipes were not sanitary fittings and there was nothing to show otherwise, the High Court was justified in entertaining the writ petition. Moreover, there is no rule of law that the High Court should not entertain a writ petition where an alternative remedy is available to a party. It is always a matter of discretion with the Court and if the discretion has been exercised by the High Court not unreasonably or perversely, it is the settkd practice .of this Court not to interfere with the exercise of discretion by the High Court. The High Court in the present case entertained the writ petition and decided the question of law arising in it and in our opinion rightly.

In these circumstances, therefore, we would not be justified in the interest of justice in interfering in our jurisdiction under Art. 136 of the Constitution to quash the order of the High Court merely on this ground after having found that the order is legally correct.

We are, therefore, unable to accept this contention.

For these reasons, therefore, we find ourselves in con1plete agreement with the view taken by the High Court and affinri the same. The result is that the appeal fails and is accordingly dismissed with costs.

P.H.P.

Appeal dismissed.