M. M. Lal, J. - (1.) IN both these writ petitions, filed under Article 226 of the Constitution of INdia, the petitioners have prayed for a writ of mandamus restraining the Municipal Board, Moradabad, respondent no. 2 from charging any octroi on petrol, mobil oil and diesel oil, which are sold to them by the INdian Oil Corporation Ltd. and Bharat Petroleum Corporation Ltd. As common questions of law are involved in both these writ petitions, hence these are being disposed of by a common judgment.
(2.) KRISHI Diesel Filling Station, petitioner no. 1 of writ petition no. 12149 of 1989 has got petrol and diesel oil pump situated on the Patiapara Mill Road Crossing, Chandpur, district Bijnor and Bansal Automobiles, petitioner no. 2 of the said writ petition has its petrol and diesel oil pump on Dhansury Road at Chandpur, district Bijnor. Petrol and diesel oil pump of Gupta Filling Station, petitioner of the other writ petition is situate on Noorpur, Chandpur Road at Noorpur, district Bijnor. The Indian Oil Corporation Ltd. and Bharat Petroleum Corporation Ltd., have got their Depots Within the limits of Municipal Board, Moradabad, wherein they store diesel and petrol imported from outside after payment of octroi duty to the Municipal Board, Moradabad. The petitioners purchase petrol, mobil oil and diesel oil from the said corporations. The said petroleum products are then sold by the petitioners at their respective petrol and diesel oil pumps situate in district Bijnor. The case taken up by the petitioners is that because the entire petroleum products sold to them by the aforesaid corporations are used, sold and consumed within the district of Bijnor hence the said products are not liable to any octroi duty at Moradabad inasmuch as the requirements of section 128 of P. Municipalities Act, 1916 are not satisfied. The Municipalities draw their power to levy tax from section 128 of the U. P. Municipalities Act. The said section, which provides for imposition of various types of taxes by the Municipal Boards, insofar as it is relevant for our purpose, is reproduced below :- "128. Taxes which may be imposed-(1) Subject to any general rules or special orders of the State Government in this behalf, the taxes, which a board may impose in the whole or any part of a Municipality are - x x x x xx (viii) an octroi on goods or animals brought within the municipality for consumption, use or sale therein". According to the said provision octroi can be validly levied provided the following two conditions are fulfilled :- (i) goods should be "brought within" the limits of Nagarpalika ; and (ii) they should be brought for 'consumption, use or sale therein".
(3.) THERE is no dispute in this case that the petroleum products are "brought within" the limits of Nagarpalika Moradabad by the aforesaid corporations from outside. With regard to the second condition, learned counsel for the petitioners has urged before us that the particular petroleum products which are sold to or which are purchased by the petitioners from the aforesaid corporations cannot be said to have been brought within the limits of Nagarpalika, Moradabad for the purposes of consumption, use or sale therein. The Nagarpalika Moradabad on the other hand has taken a case in the counter-affidavit that the said petroleum products are sold by the aforesaid corporations to the petitioners within the limits of Nagarpalika, Moradabad. In our view when the said petroleum products are sold by the aforesaid corporations to the petitioners within the limits of Municipal Board Moradabad, the aforesaid second condition of section 128 (1) (viii) is also satisfied because it cannot be then said that the said petroleum products were not brought within the limits of Nagar Palika, Moradabad for sale therein. Learned counsel for the petitioners has referred to us the various annexures filed by the petitioners along with the writ petition with a view to show that the aforesaid petroleum products are not sold by the aforesaid corporations within the limits of Nagarpalika but are sold in district Bijnor. In view of the case taken up by the Municipal Board Moradabad in their counter-affidavit that the petroleum products are sold by the aforesaid corporations to the petitioners within local limits of Nagarpalika Moradabad we are not inclined to decide the said disputed questions of fact. It will, however, suffice to state here that the said assertion made by the Nagarpalika Moradabad in the counter-affidavit is not without basis. The petitioners themseleves have filed (See annexure no. R. A. 1 of the writ petition no. 12149 of 1989), a cash memo issued by the Bharat Petroleum Corportion Ltd. at Moradabad on 21-7-1989. The very fact that a cash memo was prepared at Moradabad shows that the payment of the petroleum products purchased by M/s. Bansal Automobiles petitioner no. 2 of writ petition no. 12149/89 was made at Moradabad. The said circumstance indicates that the sale itself took place at Moradabad. Anyway, when the petroleum products are imported by the aforesaid corporations from outside within the limits of Municipal Board Moradabad and when the said corporations make payment of octroi duty willingly without any objection whatsoever, the petitioners have no locus standi to state that the said petroleum were not brought by the said "corporations within the limits of Nagarpalika Moradabad for consumption, use or sale therein. Even at best if it may be said that the said corporations wrongly paid the octroi duty to the Municipal Board on the said petroleum products then the said corporations, and not the petitioners can claim refund of the said octroi duty on establishing that the petroleum products subjected to octroi duty were not brought within the Municipal limits for consumption, use or sale;