Judgment

SABYASACHI MUKHARJI

(1) THIS appeal by special leave is directed against the judgment and order of the High court of Rajasthan at Jodhpur in D. B. Civil Special Appeals Nos. 9 and 31 of 1977 and which raised common questions of law and fact, and were disposed of together.

(2) WRIT Petition No. 17 of 1976 was filed by M/s Parekh Automobiles, respondent 1 in C.A. No. 1552 of 1981. The said appeal may be taken up and disposal of the same would lead to the disposal of other appeals. In the said writ petition, the petitioner prayed for a direction or an order restraining the respondents therein from realising any tax on diesel, etc. which are supplied to the respondent herein at Dangiawas by the Indian Oil Corporation, being respondent 2 herein. It was further prayed that the respondents therein be ordered to refund the octroi tax as mentioned in the Schedule to the said petition which, it was alleged, had been illegally realised from the petitioner. It was further prayed that respondent 1 be directed to provide transport passes to the Indian Oil Corporation under Rule 13 of the Rajasthan Municipal Octroi Rules, 1962 read with S. 133 of Rajasthan Municipalities Act. It was the case of the petitioner in the High court, respondent 1 herein, that the Municipal council had no jurisdiction to levy octroi tax on the goods brought within the municipal limits but not sold, consumed or used therein and subsequently exported outside the said limits. The case of respondent 2 was that HSD (diesel) which was brought by the Indian Oil Corporation within the local limits of Jodhpur Municipality was ultimately exported and sold to respondent 1 at Dangiawas for use, consumption or sale outside the municipal limits and as such the Municipal council had no jurisdiction to levy octroi tax on the same. In reply to the said writ petition, it was stated by the Municipal council, being the appellant herein, that the sale of HSD (diesel) by respondent 2 to respondent 1 took place at Jodhpur, and only the delivery was effected at Dangiawas as respondent 1 did not have its own tankers but for this respondent 2 was charging mileage for transmission of goods from its depot to Dangiawas. It was stated that the appellant was charging octroi from respondent 2 and not from respondent 1. It was stated that the question whether the contract of sale between respondent 2 and respon dent 1 took place at Jodhpur or at Dangiawas was a disputed question of fact to be decided by reference to the original agreement qua each trans action. It was further stated that the disputed question of fact could not be adjudicated under Article 226 of the Constitution. In reply to para 6, it was stated that the current account facility was still provided and had not been stopped, that respondent 2 did not make the declaration as required by Rule 9 and Rule 13(4) of the Rajasthan Municipal Octroi Rules, 1962 and that the goods exported were to be lessened only if such goods had not been sold within the municipal limits and were exported out within a period of six months from the date of entry. The relevant provisions of S. 104 of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as the Act) are as follows :

"104. Obligatory taxes.-Every Board shall levy, at such rate and from such date as the State government may in each case direct by notification in the official gazette and in such manner as is laid down in this Act and as may be provided in the rules made by the State government in this behalf, the following taxes, namely:

(1).........

(2) An octroi on goods and animals brought within the limits of the municipality for consumption, use or sale therein; and

(3)........."

S. 133 of the Act provides as follows:

"133. Power to keep account current with Firm or Public Body in lieu of Levying Octroi on introduction of Goods.-(1) The Board if it thinks fit instead of requiring payment of octroi due from any mercantile firm