Decided on September 07,1988



R.J.SHAH - (1.)In this petition under Art. 226 of the Constitution of India the petitioners have prayed for a writ of mandamus or any other appropriate writ order or direction restraining the respondent-municipality from recovering octroi under the residuary clause of Schedule it on ad valorem basis of 2 paise per rupee of the Octroi Rules of Gandal Municipality and also for an injunction against the respondent-Municipality directing it to adjust the deposits made by the petitioners from 1973 to 1979 under the residuary clause of Schedule III on the basis of item No. 11 of Schedule II of the Octroi Rules of Gondal Municipality and for an order against the municipality to refund the excess amount of deposits to the petitioners from the year 1973 till the filing of the petition.
(2.)It appears that a notice was issued at the initial stage and in answer to the said notice an affidavit-in-reply dated 7-9-1979 was filed for the purpose of opposing the petition by the Chief Officer of the respondent-Municipality. Thereafter on 26-9-1979 rule was issued in the matter. It seems that no further affidavit has been filed on behalf of the respondent after the issuance of the rule.
(3.)The short facts leading to the petition are that petitioner No. 1 is the proprietor of the business firm known as Vanja Damji Madhavji Weaving Works; petitioner No. 2 is a partner of the firm known as Jayant Weaving Works petitioner No. 3 is a partner of a business firm known as Vanja Harjivan Dayabhai Weaving Works; petitioner No. 4 is a partner of Vanja Weaving Works; and petitioner No. 5 is the proprietor of the firm known as Vanja Bhimji Dayabhai. The petitioners allege that they are running separate powerloom factories wherein they manufacture coarse cloth. For the purpose of the said business petitioners allege that they import cotton yarn manufactured by the spinning mills and the said cotton yarn is used as raw material for the purpose of weaving coarse cloth. Petitioners further state that the cotton yarn imported by them from the spinning mill is not subjected to any further process. The petitioners claim that the cotton yarn which is not subjected to any further process is commercially known as cotton yarn. The grievance of the petitioners is that though the respondent-Municipality was levying octroi on the said commodity at 8 paise per 20 kgs. and collecting octroi on the said basis from the petitioners and all other powerloom owners imparting cotton yarn within the municipal limits of Gondal municipality till 1973 respondent-Municipality for the first time somewhere in the year 1973 contended that the cotton yarn imported by the petitioners and others was liable to octroi under the residuary clause under Schedule III of the Rules and not under item 11 of Schedule II and under the said residuary clause the rate of octroi being 2 paise per rupee the respondent Municipality required the petitioners and others to pay octroi at the rate of 2 paise per rupee and not at the rate of 8 paise per 20 kgs. as was done upto the year 1973. In the present petition therefore petitioners have challenged the said levying and collection of octroi duty contending that the said residuary clause does not apply in the case of the petitioner. In the aforesaid circumstances the petition has been filed wherein inter alia relief have been claimed as aforementioned.

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