N. D. Ojha, J. - (1.) These five special appeals raise common questions of law and can conveniently be disposed of together. Two writ petitions being Nos. 1805 of 1970 and 4696 of 1970 were filed challenging the imposition of octroi duty by the Municipal Board, Bareilly, on mineral oils by notification dated August 27, 1969. Bharat Oil Company and others, who are respondents in special appeal Nos. 622 of 1972 and 654 of 1972, were the petitioners in writ petition No. 1805 of 1970 whereas Messrs. Bhagwan Service Station and others, who are respondents in special appeal Nos. 623 of 1972 and 85 of 1973 were the petitioners in writ petition No. 4696 of 1970. Both these writ petitions were decided by a common judgment dated 26th of September, 1972, and were allowed. The notification dated August 27, 1969, was quashed and the Municipal Board, Bareilly, was restrained from assessing or collecting octroi duty on mineral oils classified as motor spirit, kerosene oil and diesel oil. Two special appeals in each case have been filed, one by the Municipal Board, Bareilly, and the other by the State of Uttar Pradesh, these being the four special appeals referred to above. Yet a third writ petition, being No. 4671 of 1970 was filed by Burmah Shell and others against the Municipal Board, Deoria. The prayer contained in this writ petition was to quash an order dated September 16, 1970, passed by the Executive Officer, Municipal Board, Deoria to the effect that octroi duty was leviable on refined mineral oils. A further prayer was made to restrain the Municipal Board, Deoria, and its Executive Officer from levying any octroi duty on the petitioners. This writ petition too was allowed on December 8, 1972, relying on the decision in writ petition No. 1805 of 1970. The Municipal Board, Deoria, has preferred the fifth connected special appeal No. 681 of 1972.
(2.) Learned counsels for the parties in special appeal No. 681 of 1972 have adopted the arguments made in the four special appeals relating to Municipal Board, Bareilly, and as such we are giving the facts as emerge from the records of the writ petitions relating to the Municipal Board, Bareilly.
(3.) The Governor in exercise of his powers under Sec. 296 of the U. P. Municipalities Act made certain rules for the assessment and collection of octroi by the Municipalities within the State of Uttar Pradesh. These rules were notified by a notification dated October 24, 1925, and are contained in Chapter X of the Municipal Account Code (Vol. II Municipal Manual). Rule 131 of these rules makes a provision that octroi shall ordinarily be levied on commodities included in that rule subject to the exceptions contained In the proviso. One of the exceptions .contained in the proviso is mineral oils. The expression "mineral oils" was subsequently substituted by the expression "mineral oils classified as motor spirit, kerosene or diesel oils" by an amendment dated November 2, 1953. Sec. 128 of the U. P. Municipalities Act, which is the charging section, provides in its Sub-sec.(1) as follows:- "(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 part of a Municipality are ............ (viii) an octroi on goods or animals brought within the Municipality for consumption, use or sale therein..........." By virtue of the exception contained in the proviso to Rule 131 aforesaid which was apparently a general rule contemplated by Sec. 128, the power of the Municipal Boards to impose octroi duty, inter alia, on mineral oils was taken away.;