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TMI Blog1994 (11) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Uttar Pradesh Sales Tax Act. It would be enough if we refer to the facts in Civil Appeal No. 1635 of 1987 and indicate how the common question of law arises. Writ Petition (C) No. 914 of 1986 was filed by; (1) Union of India through General Manager, Northern Railway and (2) City Booking Agency, Bhoosa Toli, Kanpur, represented by M/s. Komal Prasad Ashok Kumar. The respondents to the writ petition were the sales tax officials of Uttar Pradesh in addition to State of Uttar Pradesh. The Union of India asked for quashing the order of the Deputy Commissioner, Sales Tax, Kanpur, dated August 20, 1985, dismissing an application filed by the Union of India represented by the railway officials for release of the goods seized by the sales tax officials. A further direction in the nature of mandamus was also asked directing the sales tax authorities to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own 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 the facts stated in the report of the seizing officer and observed that "it is a well-known fact that the responsibility of depositing the octroi tax with regard to any consignment by the consignee starts only after its being delivered to him by the transport agency and since the octroi in the instant case was paid by Sri Raj Kumar, it is, therefore, established that the consignment/goods had been got released from the transport agency by Sri Raj Kumar". The Deputy Commissioner further observed that Sri Matloob Ahmad was neither an employee of the railway nor was he having a contract to transport the goods of railway alone. The Deputy Commissioner further pointed out that according to paragraph (4) of the agreement/contract between the railway and M/s. Komal Prasad Ashok Kumar, contractor of Bhoosa Toli city booking agency, the goods have to be transpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 course would have been to summon the papers from the railway administration and to find out the fact. But, instead of doing so, the Deputy Commissioner considered irrelevant materials and held wrongly that the possession had been handed over by it to the consignee. To us it appears that as the relevant papers had not been taken into account, the decision reached by the Deputy Commissioner was invalid". The Division Bench further observed that "the circumstances, such as octroi was paid by Raj Kumar and goods were being taken in a 'thela' drawn by Matloob Ahmad and others, were wholly irrelevant. The payment of octroi did not or could not establish that the delivery of the goods had passed on from the railway to the consignee. Similarly, if services of Matloob Ahmad had been utilised for taking the goods from railway parcel office to the sub-agency, the Deputy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ooking 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 other place and since they were not accompanied by the requisite documents/forms, they are liable to be seized. The said finding is one of fact which could have been and ought to have been questioned in an appeal provided by the Uttar Pradesh Sales Tax Act. It was not done and the High Court was approached directly by way of a writ petition. We must say, with due respect to the Division Bench of the High Court, which decided the matter, that they interfered with the finding of fact without even referring to the several grounds on which it was based. We have set out hereinbefore the several grounds on which the finding of the Deputy Commissioner is based and the reasons for which the said finding was set aside by the High Court, which-clearly establishes that the High Court has not even referred to all the reasons and grounds assigned by the Deputy Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation 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 defined by clause (4) of section 3 of the 1890 Act in the following words: "(4) 'railway' means a railway, or any portion of a railway, for the public carriage of passengers, animals or goods, and includes- (a) all land within the fences or other boundary marks indicating the limits of the land appurtenant to a railway; (b) all lines of rails, sidings or branches worked over for the purposes of, or in connection with, a railway; (c) all stations, offices, warehouses, wharves, workshops, manufactories, fixed plant and machinery and other works constructed for the purposes of, or in connection with, a railway; and (d) all ferries, ships, boats and rafts which are used on inland waters for the purposes of the traffic of a railway and belong to or are hired or worked by the authority administering the railway." The 1989 Act defines the said expression ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Toli city booking agency (or for that matter any other city booking agency at Kanpur) been placed before us. In the absence of the said material, it is not possible for us to determine the question which the parties have asked us to determine. We accordingly allow Civil Appeal No. 1635 of 1987 and remit the matter to the High Court to look into the relevant material and determine the question whether the city booking agencies established at Kanpur-or for that matter anywhere else in the State of Uttar Pradesh-this we are saying on the assumption that the agreements/contracts between the railway and the city booking agencies throughout Uttar Pradesh are uniform; if they are not, the determination shall be confined to Kanpur only-fall within the expression "railway" as defined in section 3(4) of the Railways Act, 1890 or section 2(31) of the Railways Act, 1989. It is made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erned 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 section 28-A of the Uttar Pradesh Sales Tax Act and the Rules made thereunder) shall be determined by the appropriate authorities under the Uttar Pradesh Sales Tax Act. The writ petitions are accordingly dismissed. It is obvious that the determination made by the High Court pursuant to the remand in Civil Appeal No. 1635 of 1987 will apply in the case of all the city booking agencies at Kanpur-or the whole of State of Uttar Pradesh, as the High Court may direct. (Of course, so far as the question of fact concerned in Civil Appeal No. 1635 of 1987 is concerned, that shall be confined to that case alone.) The appellant in Civil Appeal No. 5021 of 1989 and the petitioners in writ petitions before us shall be heard on the aforementioned legal question by the High Court, if they seek to be heard. They may be treated as interveners. The writ petitions are accordingly dismissed with c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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