Dillip Kumar SwaIn Vs. Executive Officer, Cuttack Municipal Corporation - Court Judgment

A. Pasayat, J.

1. Petitioner's bi-cycle was seized by staff of Cuttack Municipal Corporation (hereinafter referred to as the 'Corporation') on the ground that it was being plied inside the Corporation limits without requisite licence.

2. Petitioner's case, in brief, is as under :

Petitioner is the owner of an Atlas brand bi-cycle. He being a permanent resident of Purunabasanta Grama Panchayat which forms, part of Raghunathpur Panchayat Samiti, had obtained requisite licence for user of his bi-cycle. He comes to Cuttack occasionally for personal works. Though he had obtained a licence for user of his bi-cycle, under an erroneous impression that it was unlicensed, seizure thereof was made purportedly under Section 186 of Orissa Municipal Act, 1950 (in short, the 'Act') and Orissa Municipal Rules, 1953 (in short, the 'Rules' ) framed thereunder. Stand of petitioner is that in view of Section 188 of the Act, he having obtained licence for plying his cycle, there was prohibition on further collection. Executive Officer of the Corporation has taken the stand that at the time of seizure, documents relating to payment of licence fee could not be produced and therefore, there was liability to pay fine, and since petitioner used his cycle within Municipal area everyday, and kept it there, no protection can be derived from Section 183, He comes to his place of work near Cuttack Railway Station everyday. That brings in application of Section 176. Though the expression used in Section 176 of the Act is 'ordinary course of business', the expression 'business' cannot be equated as trade or commerce and would mean ordinary course of activity in any event. Section 186 applies when the bi-cycle is employed in carriage, irrespective of the fact when it is used in actual trade or business. Since there was no licence, officials have rightly seized the bi-cycle.

3. Though the point involved is simple in nature and financial implication is negligible, it was submitted by the learned counsel for parties that similar' problems arise frequently and position in law should be settled.

4. For resolution of controversy as to whether seizure-was. proper, it is necessary to take note of few provisions. In Section 3(3) of the Act 'carriage' is defined as follows:

' carriage' means any wheeled vehicle with springs or other appliance acting as springs, which is used for conveyance of human beings and includes any kind of bi-cycle, tri-cycie, rickshaw, but does not include a motor Vehicle within the meaning of the Motor Vehicles Act; 1939 (IV of 1939);'

Obviously therefore, bi-cycle is a carriage for the purpose of the Act and Rules. In Chapter XIII under broad topic 'tax on carriages, carts, horses and other animals' Sections 176 to 195-A are included Section 176 'deals with tax on carriages, carts, horses and other animals. Section 188 oh which petitioner bases his case deals with prohibition on double tax. Section 179 deals with grant of licence on payment of tax. Section 181 prohibits keeping of a carriage without licence. A combined reading of provisions contained in Sections 176, 181 and 186 of the Act leaves no manner of doubt that tax is to be levied on carriages, and except where it is not brought to use or is so damaged as in the opinion of the Executive Officer to be unfit for use, shall be liable for tax. Section 185 permits seizure of carriage of cart not bearing numbers. Proviso to Section 185 indicates that no carriage or cart, other than bi-cycle, shall be seized or detained when actually employed in the conveyance of any passengers or goods. Undoubtedly, there is prohibition on double taxation in terms 'of Section 188. It provides that nothing in Sections 176 to 185 shall be deemed to authorise levy more than one tax for the same period in respect of any carriage, cart, horse and other animal which is kept or used in more than one Municipality or any other Local Authority. In such cases the tax shall be levied by the Executive Officer of the Municipality or any other Local Authority within the jurisdiction of 'which the carriage, cart, horse or other animal is kept.

5. Stand of the Corporation is that tax is to be levied by the Executive Officer of the Municipality or other Local Authority within the jurisdiction of which carriage, cart, horse or other animal is kept. According to him. Section 178 authorises levy of tax by the Municipality where carriage is kept or used in the ordinary course of business within the Municipality., 'Used in ordinary course of business according (to him means used on business in the average thrice a week By way of elaboration, it is stated that when the vehicle is kept more than thrice within limits of Municipal Corporation area, it is the Municipal Corporation which is authorised to levy tax. Any payment of tax to the Grama Panchayat does, not stand on the way of Municipal Corporation collecting tax as it is competent to levy tax.

6. It is to be noted that expression used is 'ordinary course of business'. Explanation has clarified 'used in the ordinary course of business' to mean on business in the average thrice a week. Expression 'business' is of very wide import, in Smith v. Anderson: 15 Ch. D. 258, Jessel M. R. after citing definitions of 'business.' from several dictionaries, said 'anything which occupies the time and attention and labour of a man, for the purpose of profit is business'. Further on he remarks : 'There are many things which in common colloquial English would not be called a business, when carried on by - a single person, which would be so called when carried on by a number of persons. For instance, a man who is the owner of a house divided into several floors and used for commercial purpose, e. g. offices, would not be said to carry on a business because he let the offices as such. But suppose a company was formed for the purpose of buying a building, or leasing a house, to be divided into offices and to be let out-should not we say, if that was the object of the company, that the company was carrying on business for the purpose of letting offices The same observation may be made as regards a single individual buying or selling land, with this addition, that he may make it a business, and then it is a question of continuity. When you come to an association or company formed for a purpose, you would say at once that it is a business, because there you have that from which you would infer continuity. So in the ordinary case of investments, a man who has money to invest, the object being to obtain his income, invests his money, and he may occasionally sell the investments and buy others, but he is not carrying on a business.'

7. A reference to the dictionary would reveal that the word business has different shades of meaning. Among them the most suitable in the present context is that which The Oxford Advanced Learners Dictionary of Current English has given as its third meaning 'Task duty, concern or undertaking to do a work. Some succinct illustrations have also been given in the said dictionary to drive the meaning home. They are: 'It is a teacher's business to help his pupilsed I still make it my business to one that money is paid promptly, that is no business of yours.' In none of the illustration the word business is used to denote anything connected with trade or commerce. In Bata Shoe Company v. Union of India : AIR 1954 Bom. 129,Gajendragadker, J. (as he then was) observed that the word 'business' in its wider connotation may have more extensive meaning than the word 'trade'. His Lordship then quoted Jessei, M. R. In Simth v. Anderson .-(18802 15 Ch. D. 247, who stressed the meaning of 'business' as ','anything which occupies the time and attention and labour of a man for the purpose of profit'. This wide meaning was followed in Public Works Deptt. v. Commissioner : 1981 Lab. IC ; 493, by a Division Bench consisting of Dr. A. S. Anand, J. (as his Lordship then was) and I. K. Kotwal, J. in workmen's compensation cases. We are, therefore,emboldened by the above decision in adopting the wide connotation for the word 'business' in the present case.

8. In the context Section 32(2) of Indian Evidence Act, 1872 (in short, 'Evidence Act') may be noted. Expression 'in the ordinary course of business' means ' on the ordinary course of a professional avocation or currant routine of business' which was usually followed by the person whose declaration it is sought to be introduced. Expression 'in the ordinary course of business' means in the usual course of routine of business. It is used to detect current routine of business. It is trite law that definition or interpretation given in respect of a particular entry has to be judged in the background of that statute itself and cannot always throw a guiding light in respect of other statutes. It has to be judged in the background and context in which it is used in a particular statute.

9. It is trite law that the safe guidance for interpreting any provision in a statute or for understanding the scope and meaning of a particular word in the provision is to ascertain the intention of the legislature. However wide in the abstract, general words and phrases are more or less elastic and admit of restriction or extension to suit the legislative intention. 'The object of the legislation would afford answer to the problems arising from ambiguities which it contains.' {vide Maxwell on interpretation of Statutes, 12th Edn., p. 86).

10. Had the intention been to levy tax on keeping a particular carriage, cart, horse etc. there was no necessity irrespective of any colour or trade or business or commerce, language could have been otherwise. Inappropriate language cannot always stand on the way of an appropriate interpretation. Legislature in its wisdom has used the expression 'use in the ordinary course of business',. Had the intention been to levy tax on mere user, there was no necessity for use of the expression 'use in the ordinary course of business'. This becomes clear because explanation does not deal with on mere user but user on business. Therefore, normal definition of a business which involves commercial activity plays a dominant role. Mere use of the vehicle without any business activity linked with it does not attract levy of tax. The expression 'in the ordinary course, of business' relates to both 'kept' or 'used'. the language used is definitely deficient and inappropriate. Be that as it may, there should be some sort of continuity of user to constitute 'business' activity. Whether there has been such continuity has to be factually adjudicated. It cannot be laid down by way of a strait-jacket formula, what would constitute continuity. In the case at hand, factual position does not indicate continuity. Since tax has been collected once, there is no question of second levy in the petitioner's case. Petitioner's stand is on the terra firms, and he is to succeed- The seizure of his cycle and collection of tax is uncalled for. He is entitled to return of both.

The writ application is allowed. No costs.

A. Deb, J.

11. I agree