SINGH, J. - (1.) BY means of present writ petition under Article 226 of the Constitution of India, the petitioners have approached this Court for declaration that they are not liable to pay octroi for the goods brought at their godowns at Abuka-Ki-Dhani falling within the jurisdiction of Gram Panchayat, Aduka. Secondly, the action of the respondent No. 3 in realising the octroi amounting to Rs. 3,758. 87 be declared as void, arbitrary, illegal and without jurisdiction and the respondent No. 3 be directed to refund the amount alongwith interest at the prevailing bank rates.
(2.) THE facts giving rise to the instant petition lie in narrow campass. THE petitioner No. l is a limited company having its Headquarters at New Delhi. THE said company manufactures aluminium extrausions including irrigation sprinklers. THE aluminium pipes are also manufactured by the company, which are part of the sprinklers. THE petitioner No. 2 is a share- holder of petitioner No. l. It has been averred that the petitioner company established its godown at Aduka-Ki-Dhani in the year 1982, which comes within the jurisdiction of Village and Post Office, Aduka. THE petitioner company got itself registered under the Rajasthan Sales-tax Act, 1954 and the Central Sales-tax Act, 1956. According to the petitioners, the godown has been established by them for the purpose of supply of sprinklers to the farmers of the area. It has been alleged by the petitioners that Village Aduka and the place Aduka-Ki-Dhani come within the limits to Gram Panchayat, Aduka, which is outside the Municipal limits of the Municipal Board, Chirawa. THE Municipal limits of the Municipal Board, Chirawa have been declared by the Government vide its Notification dated 27. 01. 1959 issued under the Rajasthan Town Municipalities Act, 1959 which has since been repealed and replaced by the Rajasthan Municipalities Act, 1959; and the Notification dated 27. 01. 1959 derives its validity from the provisions of the Rajasthan Municipalities Act, 1959 (hereinafter to be referred to as "the Act of 1959" ). A certificate issued by the Sarpanch, Gram Panchayat, Aduka, Tehsil Chirawa, district Jhunjhunu has been filed as Annexure 4 to the writ petition to show that Aduka is a Gram Panchayat and does not fall within the territorial limits of Nagar Palika, Chirawa. THE petitioners have further alleged that they were carrying on their business within the limits of Gram Panchayat, Aduka and as such Gram Panchayat, Chirawa never demanded or realised octroi for the goods brought by the petitioners at Aduka-Ki-Dhani till the month of September, 1983. According to the averments made in para No. 7 of the writ petition, the petitioner company appointed Firm Kailash Chandra Surendra Kumar of Chirawa as its authorised dealer. THE dealership of the firm Kailash Chandra Surendra Kumar was Terminated in the month of September, 1983. THE termination was on account of poor performance of Firm Kailash Chandra Surendra Kumar. It is alleged that on 15. 10. 1983 the goods brought at the godown of the petitioner company by truck No. MVF 1048 were being unloaded. THEre-upon, the respondent No. 4 along with Revenue Inspector of Municipal Board, Chirawa came to the godown and threatened the petitioner company with serious consequences, alleging that they have not paid octroi leviable by the Municipal Board Chirawa. It has been further alleged that respondent No. 4 forcibly seized the truck, which had been partly unloaded and took away the truck along with remaining material containing 26 pipes and 8 woodden cases of aluminium fittings. THE petitioners have also alleged that on 16. 10. 1983, truck No. MRJ 4483 was bringing goods to the godown of the petitioner company through a route which comes within the Municipal limits of respondent No. 3 i. e. Municipal Board Chirawa. THE truck was stopped at octroi barrier No. 3 and the truck driver was asked to pay the octroi duty. THE respondent No. 4 is alleged to have reached on the spot. However, on the intervention of the police authorities, the truck was allowed to proceed, but only after payment of octroi duty. It is further alleged by the petitioners that receipt No. 40 from book No. 130 was given by the Incharge of the octroi barrier and he wrote 'aduka-Ki-Dhani' in the column of residence of the party importing the goods. When respondent NO. 4 saw this, he snatched the receipt and torn out the same on the spot and asked the Incharge of the octroi barrier to destroy the carbon copy. It has been alleged that a fresh receipt No. 41 was issued showing the residence as Chirawa (Khetri Road ). THE said receipt has been annexed as Annexure 5 to the writ petition. THE petitioners are also alleged to have sent protest letters to respondent No. 4 and also to the Collector, Jhunjhunu and ultimately a notice of demand for justice was sent to the respondents No. 1 to 3 on 20. 10. 1983 and thereafter the petitioners have approached this court in the instant writ petition. A reply has been filed to the stay application on behalf of respondent No. 3. However, no reply is available on record on behalf of respondent No. 4, against whom allegations have been made. From a perusal of the order sheet dated 23. 11. 82, it appears that service on all the respondents was complete but no counter has been filed on behalf of respondent No. 4. I have heard Mr. Ashbk Gaur, learned counsel appearing for the petitioners and Mr. B. N. Purohit, learned counsel appearing for respondent No. 3. Before I proceed to decide the controversy involved in the instant case, I consider it appropriate to refer certain provisions of the Rajasthan Municipalities (Octroi) Rules, 1962, which would be very relevant for the purpose of deciding the issue between the parties. In this connection Rules 6,7,9,11 and 40 are relevant, which are quoted in extenso : "6. Payment of octroi duty : No goods liable to payment of octroi shall, except as otherwise provided in these rules, be brought within the Municipal limits until the octroi duty leviable in respect of such goods has been paid at the octroi out-post situated on the route of entry as notified by the Board from time to time for the purpose. 7. Import through prescribed route : No person shall bring goods liable to the payment of octroi duty within the Municipal limits except through the route or routes prescribed for the purpose by the Board. 9. Declaration of goods brought into the Municipal limits : (1) Every person bringing within the Municipal limits goods liable to payment of octroi shall produce such goods at the octroi out post and shall declare whether goods are intended : - i) For consumpation, use or sale within the Municipality, or ii) For immediate transportation outside the Municipality, or iii) For temporary detention within Municipal limits and eventual transportation outside Municipal limits. (2) Declaration under clause (i) of sub-rule (1) may be oral and declarations under clauses (ii) and (iii) shall be in writing in form No. l and shall be tendered to the incharge of the octroi outpost at the time of bringing the goods within the Municipality. If no such declaration is made the goods shall be treated as having been brought within the Municipal limits for consumption, use or sale therein. 11. Goods for immediate transportation : (1) In case of goods for immediate transportation the Incharge of the octroi outpost shall draw up in triplicate a transit pass in Form No. 5 after receiving by way of deposit such amount as may be equivalent to the amount of octroi payable thereon, the first copy of which shall be retained in the Transit Pass Book as counter foil, the second copy shall be given to the person bringing the goods and the third copy shall be forwarded to the octroi Superintendent. 40. Appeals: - Any person aggrieved by an order of the Octroi Superintendent or the Executive Officer, as the case may be within thirty days from the date of such order, exclusive of the time requisite for obtaining a copy thereof appeal to the : - 1. Executive Officer, if the order appealed from is passed by the Octroi Superintendent, and 2. Board where the order appealed from passed by the Executive Officer. " A glance of rule 6 shows that no goods liable to payment of octroi duty can be brought within the Municipal limits till octroi duty in respect of such goods has been paid at the octroi outpost situated on the route of entry as notified by the Board from time to time for the aforesaid purpose. Rule 7 prohibits bringing of goods liable to the payment of octroi duty within the Municipal limits except through the route or routes prescribed for the purpose by the Board and not otherwise. Rule 9 deals with declaration of goods brought into the Municipal limits, which clinches the issue in favour of the Municipal Board, inasmuch as according to rule 9, the person bringing the goods within the Municipal limits liable to payment of octroi, shall produce such goods at the octroi outpost and is under obligation to declare whether the goods are intended (i) for consumption, use or sale within the Municipality, or (ii) for immediate transportation outside the Municipality, or (iii) for temporary detention within Municipal limits and eventual transportation outside Municipal limits. According to Rule 9 (2), the declaration under clause (i) of sub-rule (1) may be oral, but the declaration under clauses (ii) and (iii) have to be made in writing in Form No. 1 and the same has to be tendered to the Incharge of the octroi outpost at the time of bringing the goods within the Municipality. The consequence, which envisages under rule 9 (2) in case of non- declaration is that the goods shall be treated as having been brought within the Municipal limits for consumption, use or sale within the limits of the Municipal Board. A perusal of the language used in Rule 11 lays down that in case the goods are brought within the limits of Municipal Board for immediate transportation, the Incharge of the octroi outpost shall draw up in triplicate a transit pass in Form No. 5. After receipt of such amount as may be equivalent to the octroi payable there on, the first copy of the same will be retained in the Transit Pass Book as counter foil, the second copy shall be given to the person bringing the goods and the third one shall be forwarded to the Octroi Superintendent.
(3.) LEARNED counsel for the petitioners has strenuously urged that the petitioners have established their godown, which is admittedly beyond the Municipal limits of Municipal Board, Chirawa and as such the Municipal Board, Chirawa has no authority to levy octroi on the goods brought by the petitioners in their godown at Aduka-Ki-Dhani. In my opinion there can be no dispute to the proposition that in case the goods are brought by the petitioners to their godown at Aduka-Ki-Dhani and if the goods are not consumed, sold or even brought through the Municipal limits of Chirawa for storage or for temporary detention, the Municipal Board would have no authority of chargmg levying any octroi on the goods brought by the petitioners to their godown at Aduka-Ki- Dhani. From a perusal of the facts contained in the writ petition, it would appear that the petitioners have no where stated that they do not bring their goods within the Municipal limits of Chirawa. On the contrary, the averments contained in para 10 of the writ petition clearly establish the fact that atleast on 16. 10. 1983, Truck No. MRJ 4483, which was loaded with goods, was passing through a route which cames within the Municipal limits of respondent No. 3 and Since truck was fassing through the Municipal limits of respondent No. 3, the Municipal authorities charged octroi from the petitioners, for which a receipt was issued. LEARNED counsel for the petitioner vehemently contended that assuming for the sake of argument that if the petitioner company removes its goods from the godown situated at Aduka-Ki-Dhani to some other place and does not sell the goods within the Municipal limits of Municipal Board, Chirawa, the respondent Board has no authority to levy the octroi on the goods of he petitioners. The said contention may be tenable only in case the goods are brought to the godown situated at Aduka-Ki-Dhani by the petitioners without entering into the Municipal limits, or if they are removed from the godown to some other place without entering the Municipal limits, but under the Rules, the moment petitioners bring goods at the octroi outpost situated on the route of entry as notified by the Board while bringing their goods to the godown, they have to give declaration as contemplated under rule 9 of the Rules of 1962. The fact which cannot be challenged as it is the admission of the petitioners themselves that the truck loaded with the goods did pass through the Municipal limits of respondent No. 3 atleast on 16. 10. 1993 and in the absence of any averment having been made by the petitioners that the declaration required under Rule 9 of the Rules of 1962 was made by them, in my opinion the respondent No. 3 i. e. the authorities of Municipal Board were fully justified in charging octroi from the petitioners. * Learned counsel for the respondent No. 3 on the other hand contended that Aduka-Ki-Dhani is a small village having 15 hamlets and is situated at a distance of hardly 100 'from octroi outpost Kheti' Road (Municipal limits of Chirawa ). The respondent's counsel also stressed that in the delivery challan-cum-invoice, the petitioner's address has been given as 'jindal Aluminium Limited, Khetri Road, Chirawa' and in the Bilty of Arya's Central Transport of India (Pvt.) Ltd. , the address has been given as Chirawa, the photo-stat copies of which have been filed as Exhibits R-3/1 and R-3/2 to the reply. According to him, even in the declaration in Form No. XXV-A, the address has been given to be at Chirawa and so also in the delivery note under the Karnataka Sales Tax Act the address at which the goods are consigned, has been mentioned as Chirawa and the photo-stat copies of the said declaration and the delivery note have been filed as Exhibits R-3/3 and R-3/4. On the basis of the afore said documents, the learned counsel for the respondent No. 3 contends that in fact the petitioners have been carrying on their business within the Municipal limits of Chirawa and the said contention finds full support from the most glaring circumstance as all eged by the petitioners themselves in the writ petition to the effect that the petitioner company had appointed Firm Kailash Chand Surendra Kumar, Chirawa as its authorised dealer, which of course, according to them, was terminated in 1983. On the strength of the aforesaid material and the facts, learned counsel for the respondent No. 3 has contended that inference should be drawn against the petitioners that the petitioners have been carrying on their business within the Municipal limits of Chirawa. It is well established that the fact of carrying on business by the petitioners has to be conclusively proved and the same cannot be inferred from the circumstances. In my opinion, no such presumption can be raised against the petitioners and the respondents have to prove conclusively that the petitioners were carrying on their business within the Municipal limits of Chirawa. However, this controversy is only academic and not relevant, inasmuch as now according to the learned counsel for the petitioners himself, the petitioner company has closed its business and they are no more carrying on the business and as such the cause of action for seeking declaration does not survive. From the pleadings of the parties, it is also abundantly clear that the question to be decided in the writ petition, apart from being legal, also relates to the question of fact i. e. whether the goods are brought by the petitioner within the Municipal limits of Chirawa or not, is a pure question of fact, which in my opinion cannot be suitably adjudicated in writ jurisdiction. ;