A. Banerji, J. - (1.) THE Petitioner is a registered firm of Lucknow and is working as handling agent of Maiher and Century Cement in the district of Kanpur. The Petitioner receives cement from the factory in Maihar, par of which is distributed to the dealers in Kanpur and the rest outside the district of Kanpur. The cement bags are received at the Goods -shed, Kanpur Railway Station and carried from there to the respective districts/ dealers as intimated by the Principal. Admittedly, part of the goods received is also carted to the dealers located within the limits of the Nagar Mahapalika, Kanpur. The Petitioner has come with the allegation that the Nagar Mahapalika charges octroi for the cement no sooner it leaves the goods -shed of the railway station even though some of the consignments are transported for dealers outside the limits of the Nagar Mahapalika and some are carted to other districts. The Petitioner's grievance is that the Nagar Mahapalika has no right to charge octroi for the goods which are not being taken to dealers" within the territorial limits of the Mahapalika. The Petitioner relies on the provisions of Section 172(2) of the Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959, which empowers the Mahapalika to impose octroi in respect of goods brought within the city for consumption, use or sale therein. The Petitioner alleged that the octroi barriers of the Mahapalika prevent the vehicles of the Petitioner from carting the cement to dealers outside the territorial limits of the Mahapalika and to dealers in other districts without payment of octroi. The further allegation is that the Petitioner is not the owner of the cement bags but merely handling agent on behalf of the Principal and carries the cement bags to the various dealers and stockists. The prayer is that suitable orders or directions may be issued restraining the Nagar Mahapalika from charging octroi on such consignment of cement.
(2.) THE stand taken by the Nagar Mahapalika is that for the cement bags, which come to Kanpur Railway station, the Petitioner is liable to pay octroi unless it is satisfactorily established that the consignment in the truck is meant for consumption outside the district of Kanpur. Their further stand is that Under Rule 18(2) of the Nagar Mahapalika Octroi (Second Amendment) Rules, 1984 Passes for carrying consignment of goods meant for consumption outside the limits of Mahapalika are granted, but no transit pass facilities are to be extended to the mixed consignment i.e. those partly intended for the city and partly for going out of the city. Since the consignment that is received at the goods -shed of Kanpur Railway station is a mixed consignment, the Mahapalika is not obliged to exempt payment of octroi for the taking out of such consignment from the Railway station. In other words, the Nagar Mahapalika claimed that the Petitioner is not entitled to any relief in the writ petition, as the consignments received at the Railway station are mixed consignments, partly for consumption within the Mahapalika limits and partly for consumption outside the city. We have perused the affidavits filed by the parties in this case and have also heard the learned Counsel for the parties. We propose to dispose of this writ petition at the admission stage with the consent of the parties.
(3.) SECTION 172(2) of the Nagar Mahapalika Adhiniyam 1959 reads as follows: (2) In addition to the taxes specified in Sub -section (1) the Mahapalika may for the purposes of this Act and subject to the provisions thereof impose any of the following taxes, namely: (a) ...... (b) an octroi on goods or animals brought within the city for consumption, use or sale therein; (c) a tax on goods exported from or imported into the city in which an octroi was in force at the commencement of the Constitution of India. (d) to (j)..... Provided that octroi on goods Under Clause (b) and a tax Under Clause (c) shall not he levied at the same time. (3) The Mahapalika taxes shall be assessed and levied in accordance with the provisions of this Act and the Rules and bye -laws framed there under. According to the above provisions, octroi can be levied only on the goods which are brought within the Municipal limits for consumption, use or sale. In other words, the goods which are not brought within the city for consumption, use or sale in the city (i.e. within the territorial limits of the Mahapalika) cannot be subjected to octroi. So long as the goods come by rail and are unloaded within the Railway premises, these would not be subjected to octroi until they are taken out of the Railway premises. When the goods are taken out of the Railway premises, octroi will be charged at the octroi barrier unless it is satisfactorily established that the goods, which are being taken out of the Railway premises, are meant for consumption, use and sale outside the territorial limits of the Mahapalika. The burden to prove that the goods are not meant to be consumed within the Mahapalika limits is on the person who is taking out the goods from the Railway premises. In other words, such a person has to establish from the papers in his possession that the goods are meant for use or sale outside the Mahapalika limits. It is, therefore, evident that Under Section 172(2) octroi can be charged from a person who brings in any goods or animals within the limits of the Mahapalika for its consumption, use or sale therein. Goods or animals arriving at the Railway premises are not subjected to octroi unless the goods leave the Railway premises.;