BALAKRISHNA ERADI - (1.) THESE appeals which have been filed on the strength of a certificate dt. Sept. 14, 1971 granted by the High Court of Bombay under Art 133(1)(a) and (c) of the Constitution as it then stood, are directed against the judgment of the High Court of Bombay dt. Nov. 23, 1970 dismissing a batch of Writ Petitions filed by the appellants herein challenging the order dt. 23/05/1969 passed by the District Magistrate, Poone setting aside the notices of demand of Octroi Duty issued by the appellants to the first respondent company.
(2.) THE first appellant herein is the Cantonment Board, Dehu Road and the second appellant is its Executive Officer. THE first respondent is a public limited company manufacturing trailers and water tankers at its factory at Pimpri in the District of Poone. THE first respondent had submitted tenders to the Defence Department of the Union of India for the manufacture and supply of trailers and water tankers. Pursuant to the acceptance of those tenders, the first respondent .manufactured and sold to the. Union of India different quantities of 100 C.W.D. and 10 C.W.D. trailers and two-wheeled water tankers. Under the terms of the contract the ownership passed to the Government of India on inspection of the goods at the first respondent's factory premises at Pimpri and appropriation thereof to the contract consequent on approval of the goods but delivery was to be effected by the first respondent-company free of charge within the Cantonment limits of Dehu Road Accordingly, by June-July 1965, 8,953 trailers, water tankers were delivered by the first respondent-company within the limits of the Cantonment Board. THEreafter, 682 more such trailers/water tankers were also delivered by the first respondent-company to the Defence Authorities within the Dehu Road Cantonment limits during 1965 and 1966. Under the provisions of the Cantonment Board Act (Cantonments Act (2 of 1924) ?) the appellant Board with the previous sanction of the Central Government could impose Octroi Duty in respect of articles brought into the limits of the Cantonment Board. Under a Notification dt. Oct. 29,1959, bearing No. SRO -318, the first appellant imposed a non-refundable Octroi Duty in respect of articles brought within the limits of the Cantonment Board, for consumption, use or sale therein at the rates specified in the First Schedule. Based on the aforesaid Notification the first appellant demanded from the first respondent-company payment of Octroi Duty on the trailers/water tankers which were brought within the limits of the Cantonment Board. The total amount so claimed from the first respondent aggregated to Rs. 3,37,628.08. Out of the said amount, the first respondent paid Rs. 3,18,620.08 under protest, and approached the High Court of Bombay by filing Special Civil Application No. 1720 of 1966 challenging the notices of demand and praying for directions being issued to the first appellant Board to cancel or withdraw the notices of demand and to refund, the amount of Octroi Duty already paid under protest. On Nov.. A 1968, the High Court dismissed the said Writ Petition on the ground that the matter involved disputed question of facts and hence the first respondent should exhaust his alternate remedy by referring an appeal to the District Magistrate before seeking relief under Art. 226 of the Constitution.
(3.) THE first respondent-company thereafter preferred appeals before the District Magistrate, Poone. under S. 84 of the Cantonment Board's Act with a praye prayer for condonation of the delay in filing the appeals, THE District Magistrate granted the prayer for condonation of delay and by a very detailed order allowed the appeals holding that the trailers/water tankers manufactured and delivered by the fast respondent-company did not fall within the scope of any of the items enumerated in the 1st Schedule to the Notification authorising the levy of Octroi Duty and hence the action of the appellants in demanding the payment of Octroi Duty in respect of them was illegal. He accordingly, set aside the notices of demand and directed the appellants to refund the amount of Duty already collected from the first respondent-company. Aggrieved by the said decision the appellants preferred a batch of Writ Petitions before the High Court challenging the legality and correctness of the aforesaid order passed by the District Magistrate. Those Writ Petitions were dismissed by the High Court under the impugned judgment. The High Court has upheld the view expressed by the District Magistrate that the trailers/water tankers did not fall within the scope of any of the entries in the First Schedule to the Notification authorising the levy of Octroi Duty. The correctness of the conclusion so recorded by the High Court is challenged by the appellants in these appeals.;