judgement:
Writ Petition (Crimi nal) No. 184 of 1989.
(Under Article 32 of the Constitution of India).
Kapil Sibbal, K.K. Lahiri, K.R. Nagaraja and R.S. Hegde for the Petitioner.
V.C. Mahanjan, T.V.S.N. Chari and Ms. A. Subhashini for the Respondents.
344 The Judgment of the Court was delivered by DUTT, J.
In this writ petition the petitioner has chal lenged the validity of the detention order dated January 19, 1989 passed under the , hereinaf ter referred to as 'the Act ', by virtue of which the peti tioner has been under detention since the said date.
The allegations made in the grounds of detention need not be stated, for only legal submissions have been made on behalf of the petitioner in challenging the order of detention.
The order of detention dated January 19, 1989 reads as follows: "WHEREAS, I, Vijay Karan, Commissioner of Police, Delhi, am satisfied that with a view to prevent Sh.
Jitender Tyagi s/o Sh.
Ram Nath Tyagi, R/o VIII.
Khajuri, Police Station.
Kila, Distt.
Meerut (Uttar Pradesh) aged at about 25/26 from acting in a manner prejudi cial to the maintenance of public order, it is necessary to make an order directing that the said Sh.
Jitender Tyagi may be detained.
Now, therefore, in exercise of the powers conferred vide sub section (2) of section 3 of the as delegated to me vide Delhi Administration, Delhi 's order No. F2/1/88 H.P. II, dated 11.1.89.
I hereby direct that the said Sh.
Jitender Tyagi be detained and kept in Central Jail, Tihar, Delhi.
" It, thus, appears from the order of detention that it was passed by the Commissioner of Police, Delhi, in exercise of the powers conferred by sub section (2) of section 3 of the Act as delegated to him by the Delhi Administration.
The order of detention was approved by the Administrator of Delhi by his order dated January 31, 1989.
Paragraph 3 of the said order is in the following terms: "3.
Now, therefore, in exercise of the powers conferred upon him by sub section (4) of section 3 of the , the Administrator hereby approves the order of the Police Commissioner dated 19.1.1989 de taining Sh.
Jitender Tyagi and further directs that Sh.
Jitender Tyagi be kept in custody in Central Jail, Tihar, New Delhi.
The first point that has been strenuously urged by Mr. Kapil Sibal, learned Counsel appearing on behalf of the petitioner, is that the order of detention not having been approved within a period of 345 twelve days, as provided in sub section (4) of section 3 of the Act, it had spent its force on the expiry of the said period and, accordingly, the detention of the petitioner is illegal.
Section 3 of the Act provides for the power to make orders of detention under certain circumstances.
Sub section (4) of section 3 reads as follows: "(4).
When any order is made under this sec tion by an officer mentioned in sub section (3), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government: Provided that where under section 8 the grounds of detention are communicated by the officer making the order after five days but not later than ten days from the date of detention, this sub section shall apply sub ject to the modification that, for the words "twelve days", the words "fifteen days" shall be substituted.
" Under sub section (4) of section 3, "no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government".
The question that arises for our consid eration relates to the computation of the period of twelve days.
To be more explicit, the question is whether in com puting the period of twelve days, the day on which the order of detention is passed should be included or not.
It is submitted on behalf of the petitioner that the day on which the order of detention was passed should be included and the order approving the detention having been passed on January 31, 1989, that is, on the thirteenth day after the expiry of twelve days, it had ceased to be in force.
On the other hand, it is contended on behalf of the respondents that the day on which the detention order was passed should be excluded and, accordingly, the detention of the petitioner having been approved on January 31, 1989, it was quite within the period of twelve days.
Further, it is the case of the respondents that the order of detention was, as a matter of fact, approved on January 26, 1989 and by the order dated January 31, 1989, the order of approval was communicated to the authorities concerned.
346 We may first consider the contention of the respondents that the order of detention was duly approved on January 26, 1989.
A statement in that regard has been made in the coun ter affidavit of the respondents.
We are, however, unable to accept the same.
We have already extracted above paragraph 3 of the order of detention dated January 31, 1989 in which it has been categorically stated "the Administrator hereby approves the order of the Police Commissioner dated 19.1.1989 detaining Sh.
Jitender Tyagi.
" After the said categorical statement in paragraph 3, it is difficult to accept the contention of the respondents that the said order dated January 31, 1989 was made for the purpose of communi cating the approval of the order of detention.
In our view, there can be no doubt, whatsoever, that the order of deten tion was approved by the said order dated January 31, 1989.
Now, we may consider the question as to the computation of twelve days as referred to in sub section (4) of section 3.
Sub section (4), inter alia, provides that when an order is made by an officer mentioned in sub section (3), he shall forthwith report the facts to the State Government.
It is contended on behalf of the petitioner that under sub section (4), the officer has to act forthwith after the making of the order in reporting the fact to the State Government and this is sufficient indication that the day on which the order of detention is made should be included in computing the period of twelve days.
In our opinion, sub section (4) has given a clear indi cation as to the computation of twelve days.
The period of twelve days has to be calculated 'after ' the making of the order of detention.
Thus, it is apparent that the period of twelve days comes after the making of the order of deten tion.
It is true that in sub section (4), the officer making the order of detention shall forthwith report the fact to the State Government, but the word 'forthwith ' will not be taken into consideration for the purpose of computing the period of twelve days inasmuch as there is a clear indica tion that the said period shall be computed after the order is made.
In other words, sub section (4) itself excludes the day on which the order is made.
Computation of twelve days including the day on which the detention order is made will be ignoring the direction of the legislature, as given in sub section (4) itself, that the said period of twelve days will commence after the making of the detention order.
It is, however, submitted that when two interpretations are possible, that which enures to the benefit of the detenu should be accepted.
In our opinion, sub section (4) admits of only one interpretation regarding the computation of twelve days and, accord 347 ingly, the question as to the adoption of the interpretation which enures to the benefit of the detenu does not arise.
The view which we take, is in accordance with the well established canons of interpretations.
It has been stated in Stroud 's Judicial Dictionary, Third Edition, Volume I, page 86, as follows: "Where an act has to be done within so many days "after" a given event, the day of such event is not to be reckoned In Smt.
Manjuli vs Civil Judge, AIR 1970 Bom.
1, the provision of section 15(1) of the Village Panchayats Act, 1958 came up for interpretation before the Nagput Bench of the Bombay High Court.
Section 15(1), inter alia, provides that any person who is qualified to vote is entitled to challenge the validity of the election "within 15 days after the date of the declaration of the result of the election".
The High Court in interpreting the provision rightly laid stress on the word "after" and held that the day of which the result was declared must be excluded.
This Court had also occasion to construe rule 119 of the Election Rules framed under the Representation of the People Act in T.C. Basappa vs T. Nagappa, ; Rule 119 provides, inter alia, that an election petition against a returned candidate is to be presented at any time after the publica tion of the name of such candidate under section 67 of the Act, but not later than 14 days from the date of publication of the notice in the official gazette under rule 113.
Mukh erjea, J. (as he than was) speaking for the Bench observed as follows: The High court seems to think that in comput ing period of 14 days the date of publication is to be included.
This seems to us to be an unwarranted view to take which is opposed to the ordinary canons of construction.
Dr. Tek Chand appearing for the respondent No. 1, plainly confessed his inability to support this view and we must hold therefore that there is no question of the Tribunal 's enter taining election petition after the prescribed period in the present case.
" In re: V.S. Mehta, AIR 1970 A.P. 234 which is a decision of the Andhra Pradesh High Court, relating to the computa tion of the period of three months in section 106 of the Factories Act Section 106 provides that no court shall take cognizance of any offence punishable 348 under the Act unless complaint thereof is made within three months of the date on which the alleged commission of the offence came to the knowledge of an Inspector.
The question before the High Court was whether in computing the said period of three months, the day on which the offence was alleged to be committed should be excluded or not.
The Andhra Pradesh High Court has taken the view that the term "within three months of the date" in section 106 of the Factories Act means 'within three calendar months after the commission of the offence came to the knowledge of an In spector ' and, consequently, the date of the knowledge, that is, the date of inspection should be excluded in computing the period of three months.
That interpretation resulting in the exclusion of the date of knowledge should be made as the High Court considered the expression "within three months of the date on which the alleged commission of the offence came to the knowledge of an Inspector" as "within three months after the date on which etc . . ".
Thus, what is significant to be noticed is the word "after" which the High Court has substituted for the word 'of ' in the expression "of the date" in section 106.
In Haru Das Gupta vs State of West Bengal, ; , the question was whether under section 12 of the West Bengal (Prevention of Violent Activities) Act, 1970, the order or decision of the State Government confirming the detention order was made within three months from the date of detention.
In holding that in computing the said period of three months, the date of detention shall be excluded, this Court has laid down that the effect of defining a period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day.
This Court has agreed to the view expressed by Wills, J. in Ratcliff vs Bartholomew, that a complaint under the Prevention of Cruelty to Animals Act filed on June 30 in respect of an act alleged to have been committed on May 30 was "within one calendar month after the cause of such complaint shall arise".
The principle on the basis of which that view was expressed by Wills, J. is that the day on which the cause for the complaint arose had to be excluded while computing the period within which under the Act, the complaint had to be filed.
Thus, it is apparent from the above decision that the day on which the cause of action arises has to be excluded in computing a particular period of time and, in the instant case, such an exclusion has to be made in view of the word "after" in sub section (4) of section 3 of the Act.
349 The petitioner has, however, placed reliance on a few decisions which will be stated presently.
In Prabhu Narain Singh vs Superintendent, Central Jail, Varanasi, ILR (1961) 1 All.
427 the Allahabad High Court has, on an interpreta tion of sub section (3) of section 3 of the , which is verbatim the same as subsec tion (4) of section 3 of the Act, with which we are con cerned, held that in computing the period of twelve days, the day on which the order of detention is passed should be included.
One of the reasons for the view expressed by the Allahabad High Court, which is strongly relied on by the learned Counsel for the detenu, is that if the day on which the order is passed is to be excluded .
from twelve days prescribed for the approval of the said order, then the consequence of the acceptance of this interpretation would be that it would not be possible for the State Government to approve of the order until after the day on which it was passed had expired.
It has been observed that such an unrea sonable consequence was not contemplated by the legislature.
When the language of a statute is plain and simple, the question of ascertaining the intention of the legislature does not arise.
In our opinion, the word 'after ' in sub section (4) of section 3 of the Act is very significant and clearly excludes any contention that in computing the period of twelve days the day on which the order of detention is passed should be included.
The Allahabad High Court has omitted to consider the word "after" in the section.
We are unable to subscribe to the view of the High Court that if the day on which the order of detention was made is excluded from the calculation of the period of twelve days, in that case, the position would be that it would not be possible for the State Government to approve of the order of deten tion until after the day on which it was passed had expired.
The expression "in the meantime" in sub section (4) of section 3 of the Act clearly indicates that the State Gov ernment can approve of the order of detention even on the day it is passed.
The language of sub section (4) of section 3 is plain and simple and the question whether the order of detention can be approved on the day it is passed or not does not at all arise.
In our opinion, Prabhu Narain Singh 's case (supra) has not correctly interpreted the provision of section 3(3) of the in regard to the computation of the period of twelve days.
The learned Counsel for the detenu has placed reliance upon two other decisions, namely, Nillapareddi Chandrasekhra Reddy vs The Government of Andhra Pradesh and Another, and C. Krishna Reddy and Another vs Commissioner of Police, Hyderabad 350 and Others, , both are of the Andhra Pradesh High Court.
These two decisions relate to the commu nication to the detenu of the grounds of detention not later than five days from the date of detention as provided in section 8(1) of the Maintenance of Internal Security Act, 1951.
We do not think that we should be justified in ex pressing any opinion as to the correctness or otherwise of the computation of the said period of five days as made in these two decisions, for the language that is used in sub section (4) of section 3 of the Act, with which we are concerned, is different from that used in section 8(1) of the Maintenance of Internal Security Act, 1951.
Similarly, the decision of the Patna High Court in Gulam Sarwar vs State of Bihar and Others, relied on by the respondents also related to the computation of the period of five days, as contained in section 8(1) of the Maintenance of Internal Security Act, 1951.
In this case, a contrary view has been expressed.
In our view all these decisions are of no help to us having regard to the differ ence in language of the provision with which we are con cerned.
Be that as it may, we have no hesitation in holding that in computing the period of twelve days referred to in sub section (4) of section 3 of the Act, the day on which the order of detention was passed should be excluded and, upon such computation, it must be held that the approval of the order of detention was made within twelve days after the making of the order of detention.
The next point that has been urged on behalf of the detenu is that the order dated January 11, 1989 of the Administrator of the Union Territory of Delhi, directing that during the period from 19.1.1989 to 18.4.
1989 the Commissioner of Police, Delhi, may also exercise the powers of detaining authority under sub section (2) of section 3 of the Act, is ultra vires section 3(3) of the Act.
Section3(3) provides that if, having regard to the circumstances pre vailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct that during such period, as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in subsection (2), exer cise the powers conferred by the said sub section.
It is contended that as no circumstances, as mentioned in section 3(3) in respect of which satisfaction has to be made by the Administrator of Delhi, have been stated in the order, nor in the grounds of detention, the said order dated January 11, 1989 is illegal and invalid.
This point has not been taken in the writ petition and, accordingly, the Delhi Administration did not get an opportunity to controvert the allega 351 tions made for the first time in the argument.
The point is not one involving only a question of law, but it also in volves question of fact.
In the circumstances, we do not think we shall be justified in allowing the petitioner to take the point for the first time in the argument.
The next point that has been urged by the learned Coun sel for the petitioner is that the detaining authority, that is, the Commissioner of Police, Delhi, not having supplied to the detenu a copy of the said order dated January 11, 1989 of the Administrator of Delhi directing him to exercise the powers of the detaining authority under subsection (2) of section 3 of the Act, a serious prejudice has been caused to the detenu in that, if the copy of the said order had been supplied, the detenu might have contended that no such circumstances, as contemplated by sub section (3) of section 3 of the Act, were prevailing and that the delegation of the powers on the Commissioner of Police of Delhi was illegal and invalid and, consequently, the order of detention was inoperative and void.
The Act does not provide for supplying a copy of an order under section 3(3) of the Act.
The said order has not been relied upon by the Commissioner of Police in passing the impugned order of detention.
It may be that by virtue of the said order dated January 11, 1989 passed under section 3(3) of the Act, the Commissioner of Police could exercise the powers of the detaining authority under section 3(2) of the Act.
But, that has nothing to do as to the subjective satisfaction of the Commissioner of Police in making the impugned order of detention.
We do not think there is any substance in the contention made on behalf of the detenu and it is, accordingly, rejected.
In the grounds of detention it is, inter alia, stated as follows: "Though Sh.
Jitender Tyagi is in judicial custody, it is reported that applica tion for his bail has been filed in the court in case FIR No. 6 dated 7.1.89 u/s 25/54/59 Arms Act, P.S. Yamuna Vihar, Delhi.
It is likely that he may be released in these cases on bail and again indulge in nefarious activi ties of extortion and intimidation.
Keeping in view his activities, I have issued order for his detention under section 3(2) of the Na tional Security Act, 1980, so that his crimi nal activities which are prejudicial to the maintenance of public order, could be stopped.
" It is urged on behalf of the detenu that only in one case the detenu has made an application for bail, but in the said statement of 352 the Commissioner of Police in the grounds of detention, he was proceeding on the assumption that in all the cases the detenu had made applications for bail.
Accordingly, it is submitted that this shows complete non application of mind by the detaining authority.
We are unable to accept the contention.
Mr. Mahajan, learned Counsel for the respond ents, has produced before us the records of the detaining authority from which it appears that a copy of the applica tion for bail was with the detaining authority before he made the order of detention.
So, the contention that the detaining authority proceeded on the basis that the detenu had made applications for bail in all the cases pending against him is not correct.
There is, therefore, no sub stance in this contention.
Equally non meritorious is the contention that a copy of the application for bail has not been supplied to the de taining authority for his consideration.
It is submitted that if such a copy had been supplied to the detaining authority, he would have considered the statement of the detenu that he was falsely implicated in these cases.
The contention is based on erroneous assumption that a copy of the bail application was not supplied to the detaining authority.
Indeed, as noticed already, a copy of the bail 'application was with the detaining authority before he had passed the order of detention.
This contention is also rejected.
No other point has been urged in this writ petition.
For the reasons aforesaid, the writ petition is dismissed.
T.N.A. Petition dismissed.

summary/full:
Sub section (4) of section 3 of the provides that no order passed by an officer men tioned in sub section (3) shah remain in force for more than twelve days after the making thereof unless, in the mean time, it has been approved by the State Government.
The Commissioner of Police, Delhi, in exercise of the powers conferred by sub section (2) of section 3 of the Act, as delegated to him by the Delhi Administration, passed an order on 19.1.1989 detaining the petitioner The order of detention was approved by the Administrator on 31.1.1989.
The petitioner filed a writ petition in this Court challenging the validity of the detention order contending that (i) the day on which the order of detention was passed should he included in the period of computation of twelve days and since the order of detention was approved on 31.1.1989, that is, on the thirteenth day after the expiry of twelve days, it had ceased to be in force; (ii) the non supply of the copy of order delegating the power of deten tion on the Commissioner of Police has seriously prejudiced the detenu; and (iii) there was serious non application of mind by the detaining authority.
342 Dismissing the petition, this Court, HELD: 1.
In computing the period of twelve days referred to in sub section (4) of section 3 of the Act, the day on which the order of detention was passed should be excluded.
Therefore the approval of the order of detention was made within twelve days after the making of the order of deten tion.
[350D] 1.1 Sub section (4) of section 3 has given a clear indication as to the computation of twelve days.
It excludes the day on which the order is made.
The word 'after ' in sub section (4) of section 3 of the Act is very significant and clearly excludes any contention that in computing the period of twelve days the day on which the order of deten tion is passed should be included.
The period of twelve days has to be calculated 'after ' the making of the order of detention, i.e. the day on which the cause of action arises has to be excluded in computing the period of time.
[346E F; 349D; 348H] 1.2 It is true that in sub section (4) the officer making the order of detention shall forthwith report the fact to the State Government, but the word 'forthwith ' will not be taken into consideration for the purpose of computing the period of twelve days inasmuch as there is clear indica tion that the said period shah be computed after the order is made.
Computation of twelve days including the day on which the detention order is made will be ignoring the direction of the legislature, as given in sub section (4) itself, that the said period of twelve days will commence after the making of the detention order.
[346F G] 2.
When the language of a statute is plain and simple, the question of ascertaining the intention of the legisla ture does not arise.
[349D] 2.1 Sub section (4) of section 3 admits of only one interpretation regarding the computation of twelve days and, accordingly, the question as to the adoption of the inter pretation which ensures to the benefit of the detenu does not arise.
[346H; 347A] T.C. Basappa vs T. Nagappa, ; ; Haru Das Gupta vs State of West Bengal, ; and Ratcliff vs Bartholomew, , followed.
Nillapareddi Chandrasekhara Reddy vs The Government of Andhra Pradesh and Anr., ; C. Krishna Reddy and Anr.
vs Commissioner of Police Hyderabad & Ors., 343 and Gulam Sarwar vs State of Bihar & Ors.
, , distinguished.
Manjuli vs Civil Judge, AIR 1970 Bom.
1 and In re: V.S. Mehta, AIR 1970 AP 234, approved.
The expression "in the meantime" in sub section (4) of section 3 of the Act clearly indicates that the State Government can approve of the order of detention even on the day it is passed.
The language of sub section (4) of section 3 is plain and simple and the question whether the order of detention can be approved on the day it is passed or not does not at all arise.
[349F] Prabhu Narain Singh vs Superintendent, Central Jail, Varanasi, ILR 1961 1 All. 427, disapproved.
The Act does not provide for supplying a copy of an order under Section 3(3) of the Act.
In the instant case, the said order has not been relied upon by the Commissioner of Police in passing the impugned order of detention.
It may be that by virtue of the said order under section 3(3) of the Act, the Commissioner of Police could exercise the powers of the detaining authority under section 3(2) of the Act.
But, that has nothing to do as to the subjective satis faction of the Commissioner of Police in making the impugned order of detention.
[351D E] 5.
In the instant case, a copy of the application for bail was with the detaining authority before he made the order of detention.
So, it is not correct to say that the detaining authority proceeded on the basis that the detenu had made applications for bail in all the cases pending against him.
Accordingly there was no non application of mind by the detaining authority.
[352A B & C]


judgement:
ivil Appeal No. 4160 of 1989.
From the Judgment and Order dated 24.3.1988 of the Karnataka High Court in W.A. No. 637 of 1985.
section Ganesh, A.C. Gulati and B .B.
Sawhney for the Appellants.
T.S. Krishnamurthy Iyer and N. Nettar for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
Leave granted.
356 This is an appeal from the judgment and order of the Division Bench of the High Court of Karnataka dated 25th March, 1988.
There was a notification under section 98(2) of the City of Bangalore Municipal Corporation Act, 1949 dated 4th March, 1975 levying octroi, inter alia, on food drinks (including milkfood) brought into the municipal limits of Bangalore for sale, consumption or use.
On 8th October, 1976, representation was submitted on behalf of the peti tioners, HMM Limited, protesting against levy of octroi on "Horlicks" milkfood powder brought into the municipal limits in bulk containers (Large steel drums) for being packed at the packing station in Bangalore in Unit containers (glass bottles) and thereafter exported outside the municipal limits.
In respect of the quantity of the goods which were exported outside the municipal limits after being bottled, the petitioners sought refund of the octroi duty as there was no use or consumption or sale of the said milkfood within the municipal limits.
The respondent corporation rejected the claim on the ground that rule 24 of the Byelaw 45 framed by the Municipal Corporation had not been complied with and as such refund could not be given.
The petitioners again sought on 4th February, 1978, refund of octroi duty for the period 1974 75 to December, 1977 amounting to Rs. 13,39,652.92 enclosing computation of the duty collected for the aforesaid period.
Again, the ' refund was refused by the respondents in March, 1978.
Petitioners thereafter filed writ petition in the High Court of Karnataka challenging the levy/retention of octroi duty on "Horlicks" exported out of the municipal limits and seeking refund thereof.
From 1st April, 1979, levy of octroi on milkfood was totally abol ished in Karnataka.
Learned Single Judge of the High Court on 1st February, 1984, allowed the writ petition and direct ed that the amount of octroi duty collected for the period commencing three years prior to the filing of the writ petition be verified within 3 months and refunded within 45 days thereof.
Learned Single Judge noted that the case of the petitioners was that it was engaged in the manufacture and sale of a malted milk product marketed under the brand name "Horlicks".
The petitioner used to manufacture the said product in its two factories situated at Nabha in the State of Punjab and Rajahmundhry in the State of Andhra Pradesh and marketed these throughout the country through its bot tling and marketing centers situated in different parts of the country.
One such centre was situated in the city of Bangalore to which it brought its said product in bulk, then rebottled the same in small bottles of different capacities like 800 gms, 450 gms and 250 gms.
It was the case of peti tioners that small portion of the product, rebottled in small bottles, alone was sold within the city of 357 Bangalore to its dealers and the rest was exported to its agents situated in different parts of the State and other nearby places of the country also.
In this connection, it may be mentioned that rules 24 to 27 of the relevant Bye laws were as follows: "24.
On all articles on which octroi duty has been paid and which are subsequently exported beyond the octroi limits without breaking bulk, refunds shall, subject to the following rules, be granted at the rates originally charged at the time of import; provided that no such refunds shall, except in the case of timber imported and re exported in log be granted unless such goods are exported within three months from the date on which octroi was levied.
Any person claiming refund under the above bye laws shall produce the goods to be exported at the Central Octroi Office, togeth er with the Original receipt for octroi duty paid thereon, and an application for refund prepared in triplicate in the form prescribed in Schedule V. He shall fill up columns 1 to 10 of the application signing and dating the same, before he presents it at the Central Octroi Office.
He shall produce for record in office a certified copy of the invoice as per which duty was paid on the article at the time of its import.
Any person who has been exempted under bye law No. 10 from production of goods at the Central Octroi Office on import shall, subject to the same conditions, he exempted from the production of goods to be exported.
The Octroi Superintendent of the Central Octroi Office on being satisfied as to the identity of the goods produced with those for which the receipt has been granted or the validity of the claim, shall fill up columns 11 to 15 and also the coupon and handover the form to the exporter.
" There is no dispute that on the entire quantity of the goods brought within the municipal limits, octroi was col lected from the petitioner.
It claimed for refund only in respect of those quantities which were rebottled and export ed from the city to outside places.
This was refused.
The contention of the petitioners was that only that portion of the goods which was imported in drums and was rebottled in 358 bottles and exported outside the city was not liable to duty of octroi.
It was contended before the learned Single Judge that portion of the goods was not dutiable to octroi as these did not fall within the term "sale, consumption or use" within the local area of the city of Bangalore.
When the petitioner approached the High Court, rule 24 aforesaid of the Bye law 45 was in force.
Octroi was, however, abol ished with effect from Ist April, 1979.
The question that was canvassed before the learned Single Judge of the High Court was that when the product was imported in bulk in the city only for rebottling and rebottled in small bottles for the consumer requirements and marketed, there could not be consumption or sale of that product.
On the other hand, it was contended that in any event, it is a case of 'use ' to attract levy of octroi.
The Horlicks powder remains the same even after packing, as was held by Mittal, J. of the High Court of Punjab in C.W.P. No. 19873 of 1977.
In that case, the Horlicks powder in drums was sold direct to bulk consum ers.
It was held that the Horlicks powder remains the same after packing.
It does not become different commodity.
It also cannot be held that it acquired distinct commercial utility, according to Mittal, J. Therefore, in that context; Mittal, J. held that the packing of the Horlicks powder in small bottles does not fall within the ambit of the word 'use ' and, therefore, the petitioner in that case was not liable to the charge of octroi for its import within the limits of the city.
This decision was affirmed by the Divi sion Bench.
It was contended that in the judgment before Mittal, J, packing was entrusted to a separate agency, but it does not make any difference, according the learned Single Judge of Bangalore.
Therefore, the learned Single Judge in this case found that only on that quantity of milk product imported by the petitioner in bulk but rebottled in small bottles at its Bangalore bottling station and export ing from the city to other places for sale in those places and not using the same in Bangalore city, was not dutiable to octroi till that levy was in force.
The learned Single Judge, therefore, held that the amounts so levied and col lected as octroi for a period of three years prior to the presentation of the writ petition only and not beyond that are refundable by the respondents to the petitioner.
He directed refund and pursuant to this direction, the learned Single Judge further directed that the same may be verified.
We were informed that the same has been verified.
There was an appeal to the Division Bench of the High Court.
The question before the Division Bench was whether the Corporation was liable to refund that part of the amount of octroi duty paid by the petitioners on the quantity of the Horlicks powder imported into the city of Bangalore on the petitioners ' informing the Corporation that 359 they had despatched that part of the same from time to time by filing the same in bottles to places outside the city of Bangalore even though petitioners had not followed the procedure prescribed in rules 24 and 25 of Bye law No. 45 flamed by the Corporation and even though they had not even informed of such despatches as and when these were made? Item 17 of the notification dated 4th March, 1975, as mentioned before, so long as it continued, was as follows: "17.
Confectionary, biscuits, toffee, chocolates food essence, food coloured, aerated water and soft drinks, food drinks other than milk in condensed form bottled or canned arecounts both scomted or plain.
2% 0.06 ps.
ad valorem 10 Kg.
" The Division Bench noted that in terms of the aforesaid levy, the petitioners were paying octroi on the basis of the total quantity of Horlicks imported into the city of Banga lore.
Then a letter was addressed on the 8th October, 1975 to the Corporation of the city of Bangalore, which was set out in the judgment of the Division Bench.
In the said letter, it was, inter alia, stated that the petitioners were not bringing the goods within the municipal limits for use or consumption therein and as such the imposition of octroi was illegal and unwarranted and that the petitioners had paid under protest the amount and claimed the refund.
The petitioners claimed only the octroi paid on the goods which were exported outside the city of Bangalore and not used or consumed within the city.
The petitioners further stated, inter alia, as follows: "The petitioner is willing to differentiate the goods intended to be used consumed within the octroi limit of Bangalore and the goods which are exported out of the limits of Banga lore and not used or consumed therein appro priately in order to facilitate movements of goods and avoid difficulties to the octroi incharge." The Corporation turned down the demand.
The Division Bench noted that the petition was resisted by the respondent on to grounds: "1.
The transferring of Horlicks imported in bulk into the 360 city of Bangalore into bottles amounts to use of the Horlicks within the city of Bangalore notwithstanding the fact that a part of the total number of bottles were despatched out side the city of Bangalore.
The octroi collected on the Horlicks im ported into the city of Bangalore was in accordance with law and unless the procedure prescribed under rules 24 and 25 of Bye law 45 was followed, no obligation or duty was cast on the part of the Corporation to refund any part of the octroi collected.
" The Division Bench of the High Court in the decision under appeal observed that as far as the first ground raised was concerned, the learned Single Judge had rejected the claim and held that when the Horlicks powder was transferred into bottles of different sizes it did not use Horlicks within the city of Bangalore.
In this connection, the Divi sion Bench referred to the decision of Burmah Shell Oil Storage & Distributing Co. of India Ltd. Belgaum vs Belgam Borough Municipality, Belgaum, [1963] 2 Supp.
SCR 2 16.
This Court in that case held that mere transferring of a bulk product into small containers like packets or bottles for the purpose of sale does not amount to use of the goods in the sense the word is used in relation to levy of octroi.
On this aspect, the Division Bench agreed with the learned Single Judge.
So far as the second contention raised by the Corporation was concerned, the Division Bench noted that the relevant provision of the rules was not considered.
We have set out hereinbefore the said rules.
In the Schedule there is a form for refund.
The contention of the petitioners was that rule 24 did not apply.
Rule 24, as we have noticed hereinbefore, provided that in respect of articles on which octrio has been paid and which are 'subsequently exported beyond the octroi limits without breaking bulk ', refunds shall be subject to the rules indicated therein.
So, accord ing to the petitioners, after opening or breaking open the drums and putting the powder in the bottles, as in this case amount to breaking bulk, and as such there was no scope of applying for refund under Rule 24.
But the Corporation contended that it was not so.
The Division Bench, however, accepted the contention of the Corporation.
It is indubita bly true that the petitioners had not claimed the refund in accordance with the law because according to the petitioners the said rules would have no application as the bulk was broken.
The Division Bench, however, observed that the petitioners in their letter addressed to the Commissioner have specifically stated that the goods were subsequently exported outside the city of Banga 361 lore as envisaged by Bye law 24 of notification No. N.A.I(53) of 1952 53 dated 5th April, 1954.
Regarding the expression "without breaking bulk", the Division Bench of the High Court was unable to accept the contention that the bulk of the goods on which the octroi has been paid was transferred to containers of small sizes and despatched outside the city, the bulk was broken.
But the question was whether in such a situation, it can be said that it was done without breaking the bulk.
The Division Bench was of the view that having regard to the rule and having regard to the fact that it was imported into the city of Bangalore, and was to be despatched outside the city of Bangalore in the same form, i.e., without the same having been used or sold or consumed in the production or manufacture other goods, the person concerned can only claim refund in accordance with the rules.
Therefore, according to the Division Bench, no importance can be attached to the expression "without breaking bulk" on despatches of the goods.
Refund could be claimed only on despatches of the goods outside the city, for octrio is leviable only if the goods imported into the city are consumed, used or sold within the city.
Therefore, 'bulk ', in the view of the Division Bench, was, in fact, broken and the petitioner not having applied in accordance with rules 24 and 25, no amount could be refunded to the appellant.
In that view of the matter, the appeal was al lowed by the Division Bench and the judgment of the learned Single Judge was reversed.
It may be mentioned that there is no dispute that the Horlicks powder was brought in bulk in drums.
At the rele vant time, there was levy of octroi at the entry of such goods.
After being imported, it has been found that the entirety of the Horlicks powder had not been sold.
A part of the powder has been put in the bottles and exported outside the city of Bangalore.
It has been found by the Division bench that putting powder from the drums to the bottles inside the city, is not user or consumption as contemplated by the rule.
And on that no octroi duty was leviable.
In this case also, it has been found pursuant to the order of the learned Single Judge how much octroi will be refundable on account which has been paid by the petitioners.
The only ground on which the Division Bench had resisted the refund was that the petitioners did not apply in accordance with the procedure envisaged by rules 24 and 25 of the aforesaid Bye laws.
Mr. Krishnamurthi Iyer, learned counsel for the respondent, contended that the High Court was right in the view it took on the construction of rules 24, 25 and 26.
We are unable to agree with this submission.
As we have indi cated before, "without breaking bulk" is not an expression of art, nor is it an expression defined in the Act or the rules.
It has, therefore, to be construed 362 in its literal and ordinary sense to the extent possible, and construed as it is, in our opinion, transferring the product from the drums by breaking seal of the drums to bottles, cannot be said to be "without breaking bulk".
"Breaking bulk" is an expression not unknown to legal termi nology especially in England.
In the Cyclopedic Law Diction ary, 3rd Edn., "breaking bulk" has been stated to mean that for a bailee to open a box or packaging entrusted to his custody and fradulently appropriate its contents.
In Stroud 's Judicial Dictionary, 4th Edn., Vol 1, it has been stated that to 'break bulk ' is not now necessary to consti tute larceny or theft by a bailee.
It is stated that the cases were very numerous and turned on nice distinctions as to what amounted to "breaking bulk".
In the Dictionary of English Law by Earl Jowitt "breaking bulk" has been defined as that at common law there could be no larceny of goods which had originally been lawfully obtained by a person who subsequently wrongfully converted them to his own use, unless such conversion was preceded by some new act of taking.
It that is so, we are unable to agree with the construction suggested by the Division Bench.
It was con tended that the octroi was leviable on the entry of the goods in the municipal limits of the city but the Horlicks powder had not entered into the local limits of Bangalore for the purpose of use or consumption, as understood in the decision of the Burmah Shell 's case (supra) and as found both by the learned Single Judge and the Division Bench that putting the powder from the drums to the bottles for the purpose of exporting or for taking this out of the city, is neither use nor consumption of the Horlicks powder, attract ing the levy of octroi.
Certainly, the bulk was broken in the procedure followed.
The High Court was wrong in putting the construction on the expression as it did.
Mr. Iyer sought to raise before us the plea that in a case where refund is due in respect of the duties like this whether petitioners would be entitled to refund on the basis that refund cannot be given because there was possibility of undue enrichment of the claimant, is pending before the Seven Judge Constitution Bench in this Court.
Therefore, it was submitted that we should await the said decision or refer the matter to the Constitution Bench.
Octroi in this case is a duty on the entry of the raw materials for coming in.
It is the duty on the coming in of the raw materials which is payable by the producer or the manufacturer.
It is not the duty on going out of the finished products in re spect of which the duty might have been charged or added to the costs passed on to the consumers.
In such a situation, no question of 'undue enrichment ' can possibly arise in this case.
If that is the position then the pendency of the question before the Constitution Bench should not deter us from proceeding with this adjudication.
363 Shri Ganesh drew our attention to a decision of this Court in Kirpal Singh Duggal vs Municipal Board, Ghaziabad, ; There, the appellant had transported, between August 1953 and March 1955, certain materials in execution of a contract to supply goods for use by the Government of India.
The respondent Municipality collected toll while the appellant 's trucks were passing through the toll barrier.
The appellant, in that case, obtained in June, 1955, a certificate from the authority concerned that the goods transported were "meant for Government work and had become the property of the Government".
The appellant then applied to the Municipality for refund of the amount paid pursuant to the exemption granted by the Government of India under the U.P. Municipalities Act, 1916.
The respondent declined to refund the amount.
In an action against the respondent, the trial court decreed the claim.
The High Court affirmed the order of the Civil Judge.
Both the Civil Judge and the High Court took the view that by the rules framed under the Act an application for refund within six months from the date of actual payment is a condition prece dent for refund of the toll.
The party appealed to this Court.
This Court was unable to accept this contention Shah, 3, as the learned Chief Justice then was, speaking for this Court noted that the respondent therein had contended that the rules framed by the Government regarding the procedure constituted a condition precedent to the exercise of the right to claim refund and recourse to the civil court being conditionally strict, compliance to that procedure was necessary for obtaining any decree in civil court.
Allowing the appeal, this Court held that this contention was untena ble.
Shah, J. observed at p. 555 of the report as under: "The rules framed by the Government merely set up the procedure to be followed in preferring an application to the Municipality for obtain ing refund of the tax paid.
The Municipality is under a statutory obligation, once the procedure followed is fulfilled, to grant refund to the toll.
The application for refund of the toll must be made within fifteen days from the date of the issue of the certificate and within six months from the date of payment of the toll.
It has to be accompanied by the original receipts.
If these procedural re quirements are not fulfilled, the Municipality may decline to refund the toll and relegate the claimant to a suit.
It would then be open to the party claiming a refund to seek the assistance of the court, and to prove by evidence which is in law admissible that the goods transported by him fell within the order issued under section 157(3) of the Act.
364 The rules framed by the Government relating to the procedure to be followed in giving effect to the exemptions on April 15, 1939, do not purport to bar the jurisdiction of the civil court if the procedure is not followed.
In our judgment, the Civil Judge and the High Court exalted what were merely matters of procedure, which the Municipality was entitled to require compliance with in granting refund, into conditions precedent to the exercise of juris diction of the civil court.
It is impossible on a bare perusal of the order issued by the Government and the rules framed by it to give to the order and the rules that effect." These observations, in our opinion, in view of the contentions raised on behalf of the Municipality here are apposite in this case.
The aforesaid Rule 24 does not apply.
In that view, rules 25 and 26 have no scope of application.
Indubitably, amounts have been realised as octroi on the entry of the goods on which octroi was not leviable because these were not for use or consumption within the municipal limits.
Mere physical entry into the city limits would not attract the levy of octroi unless goods were brought in for use or consumption or sale.
In this case, putting the powder from the drums to the bottles for the purpose of exporting or taking these out of the city is neither use nor consump tion of the Horlicks powder attracting the levy of octroi.
Such amounts, therefore, cannot be retained by the respond ent Corporation.
There is no dispute as to the quantum in view of the fact that the amount has now been found to be certified to be credited pursuant to the direction of the learned Single Judge of the High Court.
We see no ground as to why amount should not be refunded.
Realisation of tax or money without the authority of law is bad under Article 265 of the Constitution.
Octroi cannot be levied or collected in respect of goods which are not used or consumed or sold within the municipal limits.
So these amounts become collec tion without the authority of law.
The respondent is a statutory authority in the present case.
It has no right to retain the amount, so far and so much.
These are refundable within the period of limitation.
There is no question of limitation.
There is no dispute as to the amount.
There is no scope of any possible dispute on the plea of undue en richment of the petitioners.
We are, therefore, of the opinion that the Division Bench was in error in the view it took.
Where there is no question of undue enrichment, in respect of money collected or retained, refund, to which a citizen is entitled, must be made in a situation like this.
We, therefore, hold that amounts should be refunded subject to 365 the verification directed by the learned Single Judge of the High Court of the amount of refund.
The appeal is, thus, allowed.
The Judgment and the order of the Division Bench of the High Court are, therefore, set aside.
In the facts and the circumstances, there will be no orders as to costs.
R.S.S. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The appellant company was engaged in the manufacture and sale of a malted milk product marketed under the brand name "Horlicks".
The appellant brought the product within the octroi limits of Bangalore in bulk containers, rebottled the same in small bottles and exported the major portion of the rebottled product beyond the octroi limits of Bangalore.
The appellants made representation protesting against the levy of octroi on Horlicks in respect of the quantity of the goods which was exported outside the municipal limits after being rebottled, and sought refund of the octroi duty on the ground that there was no use or consumption or sale of the said milkfood within the municipal limits, and that the imposition of octroi was illegal and unwarranted.
The re spondent Corporation rejected the claim.
Thereupon the appellant filed a writ petition in the High Court challeng ing the levy/retention of the octroi duty on Horlicks ex ported out of the municipal limits.
The petition was resisted by the Corporation on two grounds, namely, (i) the transferring the Horlicks imported in bulk into bottles amounted to use of the Horlicks within the city; and (ii) the octroi collected was in accordance with law and unless the procedure prescribed under rules 24 and 25 of Bye law 45 framed by the Municipal Corporation under the City of Bangalore Municipal Corporation Act, 1949 was followed no obligation or duty was cast on the part of the Corporation to refund any part of the octroi collected.
The learned Single Judge allowed the writ petition and held that when the Horlicks powder was transferred into bottles of different sizes, 354 the appellant did not use Horlicks within the city of Banga lore.
In the appeal, the Division Bench agreed with the learned Single Judge on the first point.
On the second point, however, the Division Bench rejected the contention of the appellant that opening or breaking open the drums and putting the powder in the bottles amounted to breaking bulk and as such there was no scope of applying for refund under rule 24 which provided for refund in the case of articles on which octroi duty had been paid and which were subsequently exported beyond the octroi limits without breaking bulk.
According to the Division Bench, no importance could be attached to the expression 'without breaking bulk ', and the appellant not having applied in accordance with rules 24 and 25, no amount could be refunded.
Before this Court, the Corporation sought to raise an additional plea that where refund was due in respect of the duties like this, the amount could not be refunded because there was possibility of undue enrichment of the claimant.
Allowing the appeal, this Court, HELD: (1) Octroi in this case is a duty on the coming in of the raw materials which is payable by the producer or the manufacturer.
It is not the duty on going out of the fin ished products in respect of which the duty might have been charged or added to the costs passed on to the consumers.
In such a situation, no question of 'undue enrichment ' can possibly arise.
[362G] (2) There is no dispute that the Horlicks powder was brought in bulk in drums.
After being imported, the entirety of the Horlicks powder had not been sold.
A part of the powder has been put in the bottles and exported outside the city of Bangalore.
[361E] (3) Octroi cannot be levied or collected in respect of goods which are not used or consumed or sold within the municipal limits.
[364F] (4) Indubitably, amounts have been realised as octroi on the entry of the goods on which octroi was not leviable because these were not for use or consumption within the municipal limits.
Mere physical entry into the city limits would not attract the levy of octroi unless goods were brought in for use or consumption or sale.
[364C D] (5) In this case, putting the powder from the drums to the bottles 355 for the purpose of exporting or taking these out of the city is neither use nor consumption of the Horlicks powder at tracting the levy of octroi.
Such amounts, therefore cannot be retained by the respondent corporation.
[362D E] C.W.P. No. 19873 of 1977 High Court of Punjab Burmah Shell Oil Storage & Distributing Co. of India Ltd. vs Bel gaum Borough Municipality, [1963] 2 Supp.
SCR 216, referred to.
(6) "Without breaking bulk" is not an expression of art, nor is it an expression defined in the Act or the rules.
It has, therefore, to be construed in its literal and ordinary sense to the extent possible, and construed as it is, trans ferring the product from the drums by breaking seal of the drums to bottles cannot be said to be "without breaking bulk".
Certainly the bulk was broken in the procedure fol lowed.
[361H; 362A E] (7) Rule 24 does not apply.
In that view, rules 25 and 26 have no scope of application.
[364C] Kirpal Singh Duggal vs Municipal Board, Ghaziabad, , referred to.
(8) Realisation of tax or money without the authority of law is bad under Article 265 of the Constitution.
Octroi cannot be levied or collected in respect of goods which are not used or consumed or sold within the municipal limits.
So these amounts become collection without the authority of law.
The respondent is a statutory authority in the present case.
It has no right to retain the amount, so far and so much.
These are refundable within the period of limitation.
[364E F]