The word 'use' in Section 104(1)(2) of the Rajasthan Municipalities Act must be given a meaning in consonance with Entry 52 of II List of VII Schedule of the Constitution.

1. - Petitioner firm is engaged in manufacturing aerated water at its factory situated at Vishwakarma Industrial Area, Jaipur. In order to carry out its business the petitioner has been importing raw material and packing material in the form of empty bottles and crates. Aerated water manufactured by the petitioner Company is filled in the bottles and according to the petitioner these bottles are returned to the petitioner firm for refilling. These bottles are neither sold nor are they consumed or used by anybody. According to the petitioner since. 1965 no octroi has been claimed by the Municipal Council, Jaipur on these empty bottles. However, in the year 1987 some of the officers of the Municipality made attempt to charge octroi on empty bottles. Revenue Officer of the Municipality then issued directions that octroi be charged only on new bottles. A specific order dated 21.4.89 (Annexure 2) was issued for not charging octroi one empty bottles which arc returned for being refilled. However, after a period of over two years the respondent Municipality again started collecting octroi and it is this action of the Municipality which has been made subject matter of challenge in this writ petition filed by the petitioner under Article 226 of the Constitution of India. Petitioner has questioned the levy of octroi by asserting that this action of respondent No. 2 is without jurisdiction.

2. In reply, respondent No. 2 has contested petitioner's assertion that the same very bottles are returned to the petitioner firm for refilling. It has been alleged by respondent No. 2 that every time the petitioner has been using bottles for selling its product and the petitioner was taking undue advantage by not paying octroi. While staling that Annexure-2 was not in accordance with law, respondent Municipality stated that use of empty bottles shows that the same were used again by the manufacturer and, therefore, octroi duty is chargeable. The respondent has justified levy of octroi on the empty bottles by making reference to Section 104(2) as amended in the year 1990. It has also been stated by respondent No. 2 that notice have been issued for realisation of octroi in accordance with the amended Section 104(2). Argument of Shri Mathur, learned counsel for the petitioner, is that respondent No. 2 does not have jurisdiction to levy and collect octroi on the empty bottles received by it at Jaipur. According to Shri Mathur no element of consumption, use or sale in involved in the receipt of bottles. Shri Bhandari, learned Additional Advocate General, and Shri Tiwari, learned counsel for respondent No. 2, argued that as per amended Section 104, the word 'use' has to be given a wider meaning and, therefore, the use of empty bottles for the purpose of refilling, will fall within the scope of Section 104 of the Rajasthan Municipalities Act.

3. In order to appreciate the rival contentions it will be appropriate to refer to Entry 52 of II List of VII Schedule of the Constitution of India as well as Section 104(1)(1) and 104(1)(2), as it stood prior to amendment and as it stands after amendment :Schedule-VII

"52. Taxes on the entry of goods into a local area for consumption, use or sale therein.
1959 Act prior to amendment104 Obligatory taxes

(1) 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) a tax on the annual letting value of buildings or lands or both, situated within the municipality;

(2) an octroi on goods and animals brought within the limits of the municipality for consumption, use or sale therein;
After amendment104 Obligatory taxes

(1) 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 mann