Mr. Mohammad Rafiq, J. - (1.) - This second appeal has been filed by the appellant-defendant against the judgment and decree dated 26.02.1982 passed by the Court of Civil Judge, Jhalawar(for short 'the first appellate court') whereby appeal filed by the appellant-defendant, Municipal Board, Bhawani Mandi was dismissed and the judgment and decree dated 15.04.1976 passed by the Court of Munsif cum Judicial Magistrate, Bhawani Mandi(for short 'the trial court') was affirmed.
(2.) Plaintiff-respondent filed a suit for permanent injunction before the trial court on the premise that it was the owner of Rajasthan Textile Mills, which is situated outside the municipal limits of Bhawani Mandi and, therefore, it was not liable to pay octroi. Facts as averred by the appellant in the memo of the appeal is that Gram Panchayat, Pachpahar had in fact served on the plaintiff a notice that its factory premise is situated within the limits of Gram Panchayat and it was liable to pay tax to the Gram Panchayat. It was prayed by the plaintiff-respondent that the defendant by decree of perpetual injunction be restrained from realising octroi on the goods brought to factory premise. The defendant, on the contrary, asserted that it was entitled to realise the octroi from the plaintiff. While under the Notification of the Government dated 14.09.1959, whole of the area of Municipal Board Bhawani Mandi was converted into panchayat and later on the same was re-converted into Municipal Board, Bhawani Mandi by another notification dated 08.10.1960. Rajasthan Textile Mills situated within the town of Bhawani Mandi in Ward No. 6 of Municipal Area and, therefore, the plaintiff was liable to pay octroi. The learned trial court following the Octroi Bye laws, 1954 held that Rajasthan Textile Mills was not situated in municipal area of Bhawani Mandi till 18.02.1974 and the defendant cannot claim any benefit from the provisions of Rajasthan Municipal Boards(Validating) Act, 1956. Thus, the trial court vide judgment dated 15.04.1976 decreed plaintiff's suit with cost and restrained the defendant-appellant by permanent injunction from realising octroi prior to 18.02.1974. The defendant-appellant filed appeal against the aforesaid judgment and decree whereas the plaintiff filed cross objection therein. First appellate court vide judgment and decree dated 26.02.1982 dismissed the appeal filed by the defendant and allowed cross objections and held that notification dated 18.02.1974 which amended limits of the Bhawani Mandi Municipality was not in accordance with law and therefore the first appellate court modified the decree passed by the trial court and restrained the defendant from realising octroi under the limits of Bhawani Mandi Municipality in accordance with law and also issued declaratory decree in favour of the respondent-plaintiff to the effect that whatever octroi has been realised would be liable to be refunded to the plaintiff. Second appeal filed by the defendant was dismissed by this Court vide judgment dated 10.11.2006 with findings that there is no dispute that the area in which the respondent Mill is situated was within the limits of the erstwhile Gram Panchayat and subsequently included in the municipal limits of Municipal Board, Bhawani Mandi . It was further held that area of Gram Panchayat could not have been brought into limits of Municipal Board until and unless compliance of Section 86 of the Rajasthan Panchayat Act, 1953(for short 'the Act of 1953') was made. Notification dated 18.02.1974 and corrigendum dated 17.05.1974 with regard to limits of Municipal area were held to be not in accordance with law. However, it was held that the Municipal Board(appellant therein) shall be entitled to levy octroi only after the date of Act No. 31 of 1974 and octroi levied prior to notified date, as referred to above, may be refunded to the respondent-plaintiff.
(3.) The plaintiff-respondent filed special leave to appeal against the aforesaid judgment before the supreme Court. The Supreme Court, after granting leave to appeal, decided civil appeal (No. 4899/2008) vide order dated 31.07.2008. Although, the judgment passed by this Court in second appeal was upheld, but when notification dated 01.07.1982 was cited before the Supreme Court on behalf of the Municipal Board with regard to extension of local limits of Municipality by the State Government under Section 4 (1) (b)(c) and (d) of the Rajasthan Municipalities Act, 1959(for short 'the Act of 1959'), the Supreme Court observed that this notification was not brought to the notice of the High Court in pending second appeal and therefore no opinion on the applicability and effect of the said notification could be expressed, despite assertion of the plaintiff that subject Khasras do not fall within the said notification dated 01.07.1982. According to Municipal Board, said notification was applicable to property in question, but the Supreme Court observed that since this controversy did not arise for consideration before the High Court in the pending second appeal, therefore, the High Court needs to consider applicability and effect of the said notification in the present case. The Supreme Court remanded the matter for consideration of this Court to that extent only holding that earlier findings recorded in the main judgment shall remain intact and the appellant-plaintiff shall be entitled to refund of the octroi prior to 01.07.1982 along with interest @ 9% per annum.;