S. B. MAJMUDAR, J. - (1.) LEAVE granted.
(2.) ALL these three appeals arising from a common judgment rendered by the High Court of Judicature at ALLahabad in three writ petitions project a short question whether the common appellant, original writ peittioner, was liable to pay octroi duty during the relevant period from 1980 to 1987 to the respondent-Municipalities on the weight of the glass bottles which were brought within the municipal limits when they were containing soft drinks like Gold Spot, Limca, Thumps-up, Soda, Rim-Zim etc. For the sake of convenience, we shall refer to the appellant as the writ petitioner and the respondents as the respondent-Municipalities in the latter part of the judgment. The contention of the writ petitioner was that the beverages in liquid form were imported by the wholesalers to whom the soft drinks were sold. The Municipalities, therefore, could validly impose octroi on the weight of liquid contents of the bottles and not on the weight of bottles which were mere containers as these bottles after taking out the liquid contained therein were being sent back in their empty state to the writ petitioner by the wholesalers for re-cycling and thus these bottles were not imported within the local limits of the Municipalities for consumption, use or sale therein. This contention of the writ peitioner was rejected by the Division Bench of the High Court relying on its earlier decision in the case of Prem Nath Monga Bottlers (P) Ltd. v. Municipal Board, Meerut, in Civil Misc. Writ Petition No. 6883 of 1973 decided on 11-2-1980. We shall refer to the said judgment at the appropriate place in the latter part of the judgment. In the impugned common judgment, the Division Bench of the High Court held that even though the cold drinks were being imported for being sold within the municipal limits, the bottles in which they were carried and filled in could be said to have been used within the municipal limits for the purpose of storing these liquids till they were ultimately utilised by the consumers concerned. Therefore, even the weight of bottles containing these liquids could legitimately be taken into consideration by the Municipalities for imposing the octroi duty thereon. It is the aforesaid decision of the High Court which is brought in challenge by the writ petitioner. We have heard learned counsel for the writ petitioner as well as learned counsel appearing for the respondent-Municipalities of Rampur and Moradabad and the State of Uttar Pradesh in support of the decision rendered by the High Court. The Municipalities of Pilibhit and Sahajahanpur, though served, have not thought it fit to appear and contest these proceedings. RELEVANT FACTS : It will be necessary to keep in view a few relevant facts leading to these proceedings. The writ petitioner is a Private Limited Company incorporated under the Indian Companies Act, 1956. Under an agreement with M/s. Parle (Exports) Pvt. Ltd., Bombay, the writ petitioner is engaged in the business of bottling soft drinks like Gold Spot, Limca, Thumps-up, Soda, Rim-Zim etc. which are manufactured by Parle Exports. After bottling these beverages at its Plants at Bareilly, the writ petitioner distributes the same to wholesalers in ten districts of Uttar Pradesh, which include amongst others, the respondent-Municipalities, namely, the Municipal Boards of Moradabad, Rampur, Sahajahanpur and Pilibhit. According to the writ petitioner-company after the beverages are consumed by the consumers within the municipal limits the bottles in empty state are returned to it and the title and ownership in the bottles also remain with it. The Uttar Pradesh State Legislature enacted an Act in 1916 called the U. P. Municipalities Act, 1916 (hereinafter referred to as 'the Act'). Under Section 128 thereof powers were conferred on the Municipal Board governed by the State Act to impose an octroi on goods or animals brought within the municipality for consumption, use or sale therein. Under Section 298 of the Act, the Municipal Board are empowered to frame bye-laws for various purposes of the Act. The bye-laws of Municipal Boards of Moradabad, Rampur, Pilibhit and Sahajahanpur were enforced during the period from 12-5-1977 to 1-9-1982. According to the writ petitioner, these bye laws provided for levying octroi on soft drinks like Cococola, Fanta, Vimgo, Soda Water, Lemon etc. but they did not permit levying octroi on the weight of bottles which contained these soft drinks. As the respondent-Municipalities were seeking to levy octroi on the basis of gross weight not only of the beverages contained but also of the bottles containing the beverages which were brought within the municipal limits of the aforesaid Municipalities, the writ petitioner company filed three writ petitions in the High Court of Judicature at Allahabad in the year 1983. The grievance made in the writ petition was that from 1980 onwards the respondent-Municipalities were illegally recovering octroi also on the weight of bottle-containers which they were not entitled to do and hence the respondent-Municipalities were required to be ordered to refund the requisite amount of octroi levied on the basis of the gross weight of bottles from 1980 onwards. During the pendency of the writ petitions in the High Court from 1983 till 1987, by interim orders, the respondent-Municipalities were restrained from recovering octroi on the gross weight of bottles meaning thereby the octroi duty was required to be confined only on the net weight of the beverages contained in these bottles that were imported by the writ petitioner within the municipal limits of the aforesaid four Municipalities. During the pendency of these writ petitions, the State of Uttar Pradesh issued a Government Order on 6-4-1987 directing all the Municipalities functioning under the Act in the State not to charge octroi on the basis of gross weight but only on the weight of beverages contained in the bottles. Thus, from 6-4-1987 onwards, the weight of bottles and crates containing the bottles got exempted from the octroi duty. Consequently, it must be held that dispute got confined only from 1980 till 6-4-1987. We may also note a further development, namely, that after 1991 the provision of Section 128(1)(viii) got deleted, therefore, from that date in the State of Uttar Pradesh no octroi duty is levied by any of the Municipalities on any goods or animals imported within the municipal limits of the Municipalities.
(3.) IN the light of this factual backdrop, the main grievance put forth by learned counsel for the writ petitioner has to be examined. RIVAL CONTENTIONS : Learned counsel for the writ petitioner submitted that under Section 135 of the Act, the State Government or the Prescribed Authority has to notify in the Official Gazette the imposition of the tax from the appointed date as laid down by Section 135(2) of the Act. The Governor of Uttar Pradesh had issued a Notification dated 26-5-1979 in exercise of powers conferred under Section 135(2) of the Act read with Section 21 of the U. P. General Clauses Act notifying that the concerned Municipality had in exercise of the powers under clause (viii) of sub-section (1) of Section 128 of the Act imposed the following tax in the Municipality of Moradabad with effect from the date of the said Notification. The description of the taxes was to the following effect :- "Octroi on goods and animals brought within the limits of the Municipality of Moradabad for consumption, use or sale therein be levied according to the rates given in Schedule I below subject to the exemptions in Schedule II thereunder : SCHEDULE I JUDGEMENT_474_5_1998Html1.htm ;