TMI Blog1994 (11) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-11-1994 - JEEVAN REDDY B.P. AND SINGH N.P. AND MAJMUDAR S.B. JJ. Writ Petition (Civil) No. 785, Writ Petition (Civil) No. 792, Writ Petition (Civil) No. 809, Writ Petition (Civil) No. 908 of 1988, Writ Petition (Civil) No. 657 of 1989, Civil Appeal No. 5021 of 1989 R.B. Misra, Mrs. Rani Chhabra, C.V.S. Rao, Ms. Abha Jain, P.K. Jain, S.K. Jain, A.K. Srivastava and K.V. Sreekumar, Advocates, for the appearing parties. -------------------------------------------------- The judgment of the Court was delivered by B.P. JEEVAN REDDY, J. -A common question arises in these matters. Civil Appeal No. 1635 of 1987 is preferred against the judgment of the Allahabad High Court allowing Writ Petition (C) No. 914 of 1986 filed by the Union of India. Civil Appeal No. 5021 of 1989 is preferred against the judgment of the same High Court in Writ Petition (C) No. 2858 of 1987 (filed by the Northern Railway City Booking Agency and another) allowing the writ petition following the judgment in Writ Petition (C) No. 914 of 1986. The writ petitions were filed later saying that they raise the very point involved in Civil Appeal No. 1635 of 1987. The matter arises under the U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of octroi by Sri Raj Kumar established that the said goods had been delivered to the said Raj Kumar at the railway station itself and further that the story of said goods being transported from the railway parcel godown to Bhoosa Toli city booking agency of the railways could not be true. The report stated further that if the story of transport from the railway godown to the city booking agency had been true, there was no occasion or necessity for paying the octroi and that too by a stranger. On the basis of the said report, proceedings were taken by the Deputy Commissioner (SIB), Sales Tax, Central Zone, Kanpur, under section 13-A(6) of the Uttar Pradesh Sales Tax Act. It is in these proceedings that the railway officials appeared and applied for release of goods contending that inasmuch as the goods were being transported from railway godown to the city booking agency, Bhoosa Toli, which according to them was indeed a part and parcel of the "railway" as defined in the Railways Act, the seizure of the goods was unlawful. The Deputy Commissioner considered the said plea and rejected it under an elaborate order dated August 20, 1985. The Deputy Commissioner referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after it is released by the railway booking agency". On the above basis, the Deputy Commissioner concluded that the gate pass produced does not establish that the said goods were being transported to the Bhoosa Toli city booking agency. He also referred to the fact that the railway officials could neither produce the consignee of the said goods nor the respective railway receipts (bilties). Accordingly, the Deputy Commissioner rejected the application made by the railway officials. Against the order of the Deputy Commissioner, the railway did not adopt the remedy of appeal provided by the statute but entered into some correspondence with the Commissioner of Sales Tax and, not getting satisfaction, approached the Allahabad High Court by way of the writ petition aforesaid. The Division Bench which heard and allowed the writ petition found the order of the Deputy Commissioner erroneous. The reasoning of the High Court is to be found in the following observations in the judgment: "(1) The short controversy before him (Deputy Commissioner) was whether the goods had been given possession of by the railway to the consignee or not. In order to decide this controversy, the proper cours ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guise of and with the connivance of the said agencies and that this fraud is resulting in loss of crores of revenue to the State. We shall, therefore, first examine whether the High Court was justified in interfering with the finding of fact recorded by the Deputy Commissioner in this case: Now, the power of the sales tax authorities to stop and check the goods being transported to satisfy themselves that they are being validly transported is undoubted. If they are satisfied that the goods being transported were imported into the State of Uttar Pradesh but that they are not accompanied by the documents/forms required by the Act and the Rules, they are entitled to seize the goods and levy the tax and penalty as is provided by law. The said power necessarily includes the power to decide the question whether the goods in fact were being transported to city booking agency or to some other place. In the present case, a finding was recorded by the Deputy Commissioner that the story of transport of the said seized goods to the city booking agency, Bhoosa Toli is untrue, for the several reasons recorded in his order. He was of the opinion that the goods were really being taken to some oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orsed by such officer is carried with the goods. Violation of the said provisions renders the goods concerned to be seized and the person concerned liable to the consequences provided by law. Sub-section (8) of section 28-A, however, says that "nothing contained in this section shall be construed to impose any obligation on any railway administration or railway servant or the post office or any officer of the post office, or to empower any search, detention or seizure of any goods while on a railway as defined in the Indian Railways Act, 1890, or in a post office as defined in the Indian Post Office Act, 1898". The case of the Union of India represented by the railway officials is precisely based upon this sub-section. Their case is that the city booking agency is included within the definition "railway" and hence the goods being transported form railway station to city booking agency need not be accompanied by the documents/forms prescribed by the Uttar Pradesh Act. For an appreciation of this plea, we must notice the definition of "railway" both in the Indian Railways Act, 1890, as also in the Railways Act, 1989, which has replaced the 1890 Act. The expression "railway" was d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Indian Railways Act, 1890, in sub-section (8) of section 28-A of the Uttar Pradesh Act as a reference to the 1989 Act, after its enactment.) A perusal of the definitions in the previous and the present Railways Acts shows that for a city booking agency to fall within the ambit of the expression "railway" it should either be an office or a warehouse of the railway. If it is an office or warehouse of another person though licensed or permitted by the railways, it would not fall within the expression "railway". For coming within the purview of the said definition, it must be the office or the warehouse of the railways themselves. This question can be determined only if we look to the relevant rules/orders/instructions which provide for establishment of such city booking agencies and to the particular contract/agreement which is said to have been entered into between the railways and the holder of the said agencies. We are told that the Indian Railway Commercial Manual, Volume II, Chapter 26, provides for appointment of city booking agencies but neither the said manila] was placed before us nor-more important-has the contract/agreement entered into between the railways and Bhoosa T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the city booking agency approached the High Court as soon as the goods were seized and the writ petition was allowed by the High Court following the judgment in Writ Petition (C) No. 914 of 1986. Since the question of fact has not been adjudicated in this matter, it shall now be determined by the appropriate authorities under section 13-A(6) and orders passed according to law. Civil Appeal No. 5021 of 1989 is accordingly allowed and the judgment of the High Court under appeal is set aside. No costs. Writ Petition (C) Nos. 785188, 792188, 809188, 908188 and 657189 These writ petitions were entertained and directed to be tagged with Special Leave Petition (C) No. 1575 of 1987 (numbered later as Civil Appeal No. 1635 of 1987) evidently because they were said to raise the very issue as is involved in Civil Appeal No. 1635 of 1987. There has been no adjudication of facts concerned in these writ petitions nor can it be done in these writ petitions. Accordingly, it is directed that the question of fact (i.e., whether the transport is really to the city booking agency from the railway station/godown or the said plea is only a cover for evading the statutory obligation created by secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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