M.L.JOSHI, J. - (1.) THESE two writ petitions challenge the validity of the levy as the octroi on the petroleum products by the Municipal Council Jodhpur sell from depot of the Indian Oil Corporation at Jodhpur, hereinafter called the respondent No. 2 to its retail outlets viz Dangiavas and Mogda. The petitions are based on almost identical facts and involve common questions of law and so they are being disposed of by a single judgment.
(2.) AS the facts and points involved in both the writ petitioner are almost similar it will be sufficient to narrate facts from writ petition NO. 17/76 Parekh Automobiles v. Municipal Council Jodhpur and Anr. as the decision in this case will govern the decision in the another writ petition also. The petitioner Parekh Automobiles Co., has a retail outlet for the sale of petroleum products at Dangiavas. The petitioner has been allotted retail outle by the respondent No. 2 for sale of petroleum products such as diesel oil, mobile oil etc. at Dingiavas which is admittedly outside the limits of Jodhpur Municipal Council. According to the petitioner, respondent No. 2 has got its depot near Raikabag Station at Jodhpur where it stores petroleum products. The respondent No. 2 from its depot at Jodhpur supplies the petroleum products to various pump stations situated within the limits of Jodhpur Municipal Council as well &s; situated outside the limits of jodhpur Municipal Council in several districts such as Districts of Jodhpur; Pali. Barmer, Jalore, Nagaur etc. including the retail outlet of the petitioner at Dargia as According to the petitioner the respondent No. 2 being a public (sic) taking, it is being provided current account facilities under Section 133 of the Rajasthan Municipalities Act, hereinafter called the Act, and so the respondent No. 2 has not to pay octroi tax on such consignment at the time of entry of goods within the limits of Municipal Council. It is alleged that under Rule 13 of the Rajasthan Municipalities (Octroi) Rules 1962, herein after to be referred to as the Rules, the respondent No. 2 is supplied printed books for entry passes in duplicate in form No. 7 appended to the said Rules. Under Rule 13 if the goods which are imported within the Municipal Limits are not used, consumed or sold within the Municipal Limits and are exported out of Municipal limits for supply at various other retail outlets no octroi duty is charged on those goods for the reason that under Rule 13(4) octroi tax payble shall be based on the total amount of octroi tax as shown by the entry passes less the octroi tax the total amount of goods transported outside the Municipal limit. It has been further alleged that the Municipal Council Jodhpur has been following this procedure till 14th of July, 1975, but all of a sudden on 25th of July, 1975 the Municipal Council suspended the transport passes facilities to the respondent No 2 and took the stand that octroi tax would be charged from the respondent No. 2 on the goods brought within the Municipal limits even though they are exported by it outside the Municipal limits if they are sold within the limits of Municipal Council although such goods were meant for use and consumption of the consumers outside the Municipal limits. The respondent No 1 therefore cancelled the transport passes supplied to the respondent No. 2 from 25 -7 -75. As a consequence of this action of the respondent No. 1, the Municipal Council, the petitioner is being charged octroi tax on supplies made to the petitioner at Dangiawas by the respondent No 2 since 25th of July 1975 by adding the amount of octroi tax in the bills for the supplies made to the petitioner's retail out Jet at Dangiawas. It is further alleged that the respondent No. 2 challenged the right of the Municipal Council to charge the octroi on such goods and approached the State Government. Upon that, the State Government by its letter Ex.2 wrote to the Municipal Council that it having granted current account facilities under Section 133 of the Act to the respondent No. 2 should charge octroi or, the basis of petroleum products imported by respondent No. 2 minus the goods exported by it to its other distributing centres in Rajasthan. The petitioner also made representation to the Municipal Council challenging its right to realise octroi on the petroleum products which are received at the depot of the respondent No. 2 at Jodhpur but are transported by it to its retail outlets but of no avail.
(3.) THE case of the petitioner is that the goods are not sold at Jodhpur but actually the sale takes place at Dangiawas the retail outlet of the petitioner. Secondly even if the sale is held to have taken place at Jodhpur merely on that account octroi cannot be levied unless the goods sold are meant for the use or consumption of the consumers within limits. The petitioner has therefore prayed for an order or direction or writ that the respondent be restrained from realising the octroi on diesel, petroleum products etc, which are supplied to the petitioner at its outlet station by the respondents No. 2. It has been further prayed that the respondent be ordered to refund the octroi -tax as mentioned in the schedule A which has been illegally realised from the petitioners.;