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2000 Supreme(Cal) 479
High Court Of Calcutta
KALYAN JYOTI SENGUPTA
ANDAMAN WOOD PRODUCTS INDIA PRIVATE LIMITED - Appellant
Versus
UNION OF INDIA - Respondent
W. P. 36 Of 2000
Decided On : 09/18/2000
D.R.Parekh, TAPAN MUKHERJI
The Lt. Governor of the Andaman and Nicobar Islands, as the successor-in-office of the Chief Commissioner, had the authority to exercise legislative functions and authorize the municipal authority to impose and collect octroi or terminal tax.
Headnote:
OCTROI TAX - IMPOSITION AND COLLECTION - ANDAMAN AND NICOBAR ISLANDS (MUNICIPAL BOARDS) REGULATION, 1957 - SECTIONS 71(6), 80(E) - ANDAMAN AND NICOBAR MUNICIPAL REGULATION, 1994 - SECTIONS 3(F), 80(E) - CONSTITUTION OF INDIA - ARTICLES 239, 240, 243X, 243 ZB, 301, 303 - LT. GOVERNOR'S AUTHORITY TO IMPOSE OCTROI TAX - VALIDITY - EXEMPTION FROM OCTROI TAX - CONDITIONS - REFUND OF OCTROI TAX - ENTITLEMENT.
Fact of the Case:
The petitioners, a group of small-scale industries manufacturing wood products, challenged the imposition of octroi/terminal tax by the Port Blair Municipal Council under the Andaman and Nicobar Municipal Regulations, 1994. They claimed exemption from paying octroi tax under para 3 (f) of the Port Blair Municipal Council Octroi/terminal Tax Bye-Laws, but were denied such exemption. They also sought a refund of the octroi/terminal tax already paid.
Finding of the Court:
The court held that the Lt. Governor of the Andaman and Nicobar Islands, as the successor-in-office of the Chief Commissioner, had the authority to exercise legislative functions and authorize the municipal authority to impose and collect octroi or terminal tax. The court further held that the power under Article 243x read with Article 243 ZB of the Constitution was in addition to the power of the State to levy taxes on the entry of goods into a local area for consumption, use, or sale under Entry 52 of List II of Schedule VII.
Issues: 1. Whether the Lt. Governor had the authority to exercise legislative functions and authorize the municipal authority to impose and collect octroi or terminal tax. 2. Whether the petitioners were entitled to exemption from paying octroi tax under para 3 (f) of the Port Blair Municipal Council Octroi/terminal Tax Bye-Laws. 3. Whether the petitioners were entitled to a refund of the octroi/terminal tax already paid.
Ratio Decidendi: 1. The court relied on the decision of a Division Bench of the same court in Dilip Chowdhury v. Registrar of Co-operative Societies, which held that the Lt. Governor appointed by the President under Article 239 of the Constitution in place of the Chief Commissioner could discharge the power and function of the Chief Commissioner without any notification under Article 240 of the Constitution of India and without any amendment of the Andaman and Nicobar Island Co-operative Societies Regulation, 1973. 2. The court held that the petitioners were not entitled to exemption from paying octroi tax under para 3 (f) of the Port Blair Municipal Council Octroi/terminal Tax Bye-Laws as their unit had been set up five years ago, which was beyond the five-year period specified in the notification published on 16th December, 1999 in the A. N. Gazette. 3. The court held that the petitioners were not entitled to a refund of the octroi/terminal tax already paid.
Final Decision: The writ petition was dismissed without any order as to costs.
( 1 ) BY this writ application the petitioners have asked for relief for declaration that they are not liable to pay octroi/terminal tax in view of the exemption given under para 3 (f) of the Port Blair Municipal Council Octroi/terminal Tax Bye-Laws framed under the Andaman and Nicobar Municipal Regulations, 1994 and the Municipal authorities are not authorised to realise the terminal/octroi tax from the petitioners or their members. A further challenge has been thrown to the notification dated 21st May, 1993, issued by the Lieutenant Governor for realising of octroi/terminal tax from the petitioners in exercise of his power under Section 71 (6) of the Andman and Nicobar Islands (Municipal Boards) Regulation, 1957, contending the same being ultra vires and unconstitutional. The writ-petitioners have also prayed for further relief for refund of the terminal/octroi tax in so far as the S. S. 1. Units are concerned and the units at Port Blair within the jurisdiction of Municipal Council.
( 2 ) THE petitioners, excepting the petitioner no. 2, are a group of Small Scale industries and they are manufacturing wood products. The business of the petitioners is of amongst other, purchasing of logs/timbers and manufacturing wood products.
( 3 ) IN terms of a notification, the Municipal Council has been realising octroi/terminal tax from the petitioners. According to the petitioners, the Lieutenant Governor unlike the Chief Commissioner under the provisions of law, has no authority and/or jurisdiction to act and/or discharge legislative function to frame regulations authorising Municipal Council to impose and realise octroi/terminal tax upon amongst others, wood products. It is further contended that the Lieutenant Governor has only jurisdiction to act administratively. He has no rule making power; so, the notification dated 21st May, 1993 issued by the Lt. Governor imposing octroi/terminal tax under section 71 (6) of the said Regulations of 1957 is unconstitutional and without any authority of law. Moreover it is contended by the petitioners that the petitioners are entitled to get exemption from paying octroi/terminal tax in terms of para 3 (f) of the Port Blair Municipal Council Octroi/terminal Tax Bye-Laws framed under Andman and Nicobar Municipal Regulation, 1994; but such exemption has not been granted to the petitioners whereas manufacturer's controlled by the Government are granted such exemption by the Lieutenant Governor. Therefore, they are entitled to get refund of the octroi/terminal tax which has already been paid.
( 4 ) NO affidavit-in-opposition has been filed on behalf of the Lt. Governor or Union of India in spite of direction being given. Only the Municipal Council has filed affidavit-in-opposition to oppose this application. In the affidavit-in-opposition filed by the Municipal Council, it has been contended that the Lt. Governor is the Successor-in-office of the Chief Commissioner. Admittedly, the Chief Commissioner had legislative function under the law. Therefore, the Lt. Governor being successor-in-office enjoys the same power and privilege. So, the Lt. Governor has jurisdiction to take legislative action. Moreover, under Article 243x read with Article 243 Z/b of the Constitution of India, the municipal authority has been authorised to impose any duty or taxes. Therefore, the municipal authority derives its power and/or authority under the Constitution itself. The Lieutenant Governor while exercising legislative power has authorised the municipal authority under the aforesaid regulation to impose levy amongst other any octroi or terminal tax on animals or dogs or goods brought into or sent out of municipal area.
( 5 ) MR. Tapan Mukherjee, learned counsel appearing on behalf of the petitioners, argues that the Lieutenant Governor has no authority to exercise legislative power inasmuch as his appointment cannot be termed to be replacement of the office of the Chief Commissioner as per no
