K.C. Agrawal, J. - (1.) THIS petition under Article 226 of the Constitution of India has been filed by M/s. Dhanaura Filling/Service Station, Mandi Dhanaura, District Moradabad for a writ of mandamus, restraining the Nagar Palika, Moradabad, respondent No. 2, from charging any octroi on petrol, diesel, mobil oil or any other petroleum product, consumed at Mandi Dhanaura from the petitioner, and commanding the State of U.P. respondent No. 1, to issue a notification under Section 157(3) of the U.P. Municipalities Act 1916 exempting petroleum products from payment of octroi on the same lines as has been issued in respect of these products for the Nagar Palika, Jhansi. The petitioner is a dealer in petrol, diesel, mobil oil and other petroleum products, having its shop cum filling station at Mandi Dhanaura, District Moradabad. The petroleum products are imported by Indian Oil Corporation to Moradabad from where these products are brought to Mandi Dhanaura by the petitioner. The case of the petitioner is that the entire products collected by the petitioner from the Indian Oil Corporation Depot at Moradabad is consumed or sold at Mandi Dhanaura. It is not sold or consumed at Moradabad. The petitioner is, therefore, not liable to pay octroi on the petroleum products inasmuch as the requirements of Section 128 of the Act are not satisfied.
(2.) SECTION 128 of the Act, which provides for imposition of various types of taxes by the Municipal Board in so far as it is relevant for our purpose, is quoted 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 (viii) an octroi on goods or animals brought within the municipality for consumption, use or sale therein. Under the aforesaid section, octroi can be levied on goods brought within the Municipal limits for consumption, use or sale therein. The import of the words 'brought within' was considered by the Supreme Court in Burmah -Shell Oil Storage and Distributing Company of India Ltd. v. Belgaum Borough Municipality, Belgaum : A.I.R. 1963 S.C. 906. It was held in paragraph 21 that the true concept of octroi included the bringing in of goods in a local area so that the goods come to a repose there. The word 'repose' used by the Supreme Court came to be considered by a Division Bench of our Court in Satna Cement Works v. Nagar Mahapalika Allahabad : 1985 U.P.T.C. 269. The Bench observed that 'repose', according to the Dictionary meaning, denotes 'rest, quiet, stillness'. Before octroi can be levied, journey of the goods after being brought within the limits of the Nagar Palika should break within the said limits and the goods should lie there in a state of rest for consumption, use or sale therein. In a case where the goods are exported outside the limits of the municipality where it has been brought, no octroi would be leviable inasmuch as in such a case the goods were neither sold, nor consumed within the limits of the municipality where it was brought.
(3.) IN Burmah -Shell Oil Storage and Distributing Company of India Ltd. v. Belgaum Borough Municipality Belgaum (supra), it was held by the Supreme Court that: - - The company was liable to pay octroi tax on goods brought into local area (a) to be consumed by itself or sold by it to consumers direct and (b) for sale to dealers who in their turn sold the goods to consumers within the municipal area irrespective of whether such consumers bought them for use in the area or outside it. The company was, however, not liable to octroi in respect of goods which it brought into the local area and which were re -exported. In Satna Cement Works v. Nagar Mahapalika Allahabad, (supra), the Division Bench of our Court held: - - There seems to be no doubt that the petitioner is not liable to pay octroi in regard to such cement which enters the limits of the Nagar Mahapalika, Allahabad through one octroi barrier and after passing over an area within the said limits goes out through another octroi barrier for its destination to village Dubrajpur admittedly lying beyond the limits of the Nagar Mahapalika because it is not the case even of the respondents that the journey of the said cement is broken and the cement comes to a repose within the limits of the Nagar Mahapalika. In Shiv Shanker Lal Gupta v. Municipal Board Chhibramau : 1987 A.L.J. 231 interpreting the aforesaid decisions. Division Bench of this Court held that where potatoes were brought for keeping in cold storage situated within the Municipal limits and there was no evidence showing that potatoes were kept in the cold storage for re -exportation out of the municipal limits octroi was payable.;