PYARELAL BALURAM AGARWAL Vs. ADMINISTRATOR MUNICIPAL

JUDGEMENT

(1.) THIS is a writ petition under Article 226 of the Constitution of India presented by Pyarelal Baluram Agarwal against the non -petitioners with the allegations that the petitioner has stone quarry from the Mining Department situated outside the limits of Municipal Board, Abu Road (hereinafter referred to 'as the Board'), According to the petitioner the Board started charging certain type at tax or levy known as supervision charges over the material exported by the petitioner to the other parts of the country beyond the limits of the Board and similarly supervision charges are collected over the raw material, which the petitioner brings from other parts of the country to the petitioner's stone quarry. The petitioner averred that the National highway and the State highway pass through the limits of the Board through which material belonging to the petitioner is exported and imported and at the transit point the supervision charges are collected by the Board. The petitioner challenged the levy on the ground that no such tax or charges cart be realised from the petitioner under Sections 104 and 105 of the Rajasthan Municipalities Act, 1959 (hereinafter referred to 'as the Act') and that no resolution for collecting the supervision charges is passed by the Board and no notification has been issued to that effect. It was prayed by the petitioner that the non -petitioners may be restrained from realising Supervision charges from the petitioner on the material exported or imported by him from his quarry or brought to the quarry, and, any notification or resolution authorising the Board to collect supervision charges, may be quashed and declared ultra vires. The petitioner also prayed for refund of the supervision charges collected by the Board within three years.

(2.) THE non -petitioners No. 1 and 3 have not submitted any reply to the writ petition. However, they have banked upon the reply submitted to the stay application. It was stated in the reply to the stay application that the Board charges octroi tax on the import of goods in the Municipal area for use, sale and consumption therein under Section 104 of the Act read along with Rajasthan Municipalities (Octroi) Rules, 1962 (hereinafter referred to as 'the Rules'). It was further stated that in case of goods, which are imported within the Municipal limits not for use, consumption or sale therein, but for the purpose of export, the in charge of the octroi outpost is required to act under rule 11 of the Rules. He shall draw 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 second copy of the transit pass shall be given to the person bringing the goods. The goods have to be transported outside the Municipal limits within the time specified in the transit pass and the transit pass issued, shall be delivered back to the octroi outpost of exit and the incharge of the octroi outpost after satisfying himself that the goods being exported are those covered by the transit pass, shall pay to the person delivering the transit pass, the amount of octroi deposited, and, obtain a receipt from him for the amount so paid. It was further stated that this procedure has been devised so that octroi tax may not be evaded and no octroi tax may be charged from persons who really export goods. It was further stated that under Sub -rule (1A) of Rule 11 of the Rules an option has been given to the persons bringing the goods for immediate transportation that they may instead of depositing the octroi tax under Sub -rule (1A) of Rule 11, pay fixed charges for exporting the goods utside the Municipal limits, and, on payment of that amount, a receipt is given to the person bringing the goods. An employee of the Board is then sent by the incharge of such outpost to accompany the goods from such import octroi outpost to the export octroi outpost to see that such goods are actually transported out of the Municipal limits. It was stated that this amount has been fixed at Rs. 2.50p. per load truck by the Board and is being charged as service charge, which is actually rendered to the person bringing in the goods, Thus, the amount of Rs. 2.50 p. per load -truck is being charged under Sub -rule (1A) of Rule 11 of the Rules, which have been framed under Section 297 read with Section 104 of the Act. It was also stated that from a perusal of Rule 11(1A), it would be clear that these charges are also not compulsory, but an option has been given to the person bringing in the goods within the Municipal limits of the Board. Reference was also made to a circular of the Local Self Government Department dated April 23, 1963, wherein it has been clarified that the provision of Sub -rule (1A) of Rule 11 of the Rules are very clear. The amount of Rs. 2.50 would be charged from the importer only if he fails to pay the amount equivalent to octroi at the import barrier and not otherwise.

(3.) SHRI K.N. Joshi, learned Counsel for the petitioner vehemently submitted that the petitioner carries the material in transport trucks using the National Highway and State Highway, which pass through the Municipal limits of Abu Road. The goods are neither unloaded nor re -loaded any where within the Municipal limits and the goods pass through and through from outside the Municipal limits without being retained or kept within the Municipal limits and, as such, in view of continued process of transport neither octroi is leviable, nor any charges are leviable on the goods by whatever name they may be called, whether 'supervision charges', 'service charges' or 'escort charges', as contemplated under rule 11(1A) of the Rules. He submitted that the goods are neither 'imported', nor 'exported', nor brought in' within the Municipal limits. Strong reliance has been plaeed by Shri Joshi on a decision of the Supreme Court in the Town Municipal Council v. Urmilla Kothari : [1977]2SCR660 .