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2001 DIGILAW 1487 (RAJ)

Aalishan v. State of Rajasthan

2001-09-15

K.S.RATHORE

body2001
Honble RATHORE, J.–The petitioner firm is dealing in consumer items like T.V. Video, Refrigerators etc.. The main business of this firm is of selling the aforesaid items, after purchasing the same from manufacturers of the aforesaid consumer items on retail and whole sale basis in District Ajmer, Subject to certain limitations, which are governed by the Rajasthan Municipalities (Octroi) Rules, 1962 (hereinafter to be referred as the Rules of 1962). (2). On 21.6.95, two different consignments of 165 litres Kelvinator Freidges were dispatched by Expo Machinery Ltd., Jaipur; one consigment dated 21.6.1994 was of 18 Refrigerators and another one was of 30 Refrigerators. Both the consignments were despatched by vehicle No. RJ-01/GO 302 of J.K. Transport Company. The aforesaid Vehicle carrying the Refrigerators reached Ajmer at about 11.30 p.m. and suo moto stopped at the octroi post. In accordance with Rules of 1962 an oral declaration was made about the consignment and both the despatch bills were placed at the Octroi post. After assessment being made at the Octroi Post, the driver of the vehicle deposited Rs. 2,250/- towards Octroi duty leviable on consignment of 18 refrigerators. He made the part payment amounting to Rs. 1,100/- towards total octroi duty of Rs. 3,750/- leviable on the consigment of 30 refrigerators. (3). For default amount the petitioner deposited the Octroi duty leviable at 10 times of the penalty which was charged as per the compromise made by the petitioner with the respondent-Municipal Council. (4). Being aggrieved by imposition of penalty by the respondent No.2. the petitioner preferred an appeal before the respondent No. 2. Since respondent No.3 raised objection about the maintainability of the appeal so it was treated as revision petition by respondent No.2 which was ultimately came to be dismissed vide its order dated 17.2.95. (5). Against the judgment dated 17.2.95 the petitioner preferred this present writ petition onthe ground that imposition of releasing the penalty equivalent to 10 times of leviable Octroi duty the petitioner firm was not served with any kind of notice providing him any opportunity to explain his case. The petitioner further challenged the imposition of penalty on the ground that the mandatory provisions of the relevant Rules of 1962 and 1966 were not followed. The petitioner firm was not explained the offence, its nature and his right/liberty to be tried, entailing the entire proceedings bad in law, which is liable to be quashed. The petitioner further challenged the imposition of penalty on the ground that the mandatory provisions of the relevant Rules of 1962 and 1966 were not followed. The petitioner firm was not explained the offence, its nature and his right/liberty to be tried, entailing the entire proceedings bad in law, which is liable to be quashed. The petitioner further submitted that the petitioner firm was not put to trial before a Magistrate a required under rule 39 of the Rules of 1962. (6). Mr. Resham Bhargava in support of his contention referred a provision of Rule 39 of the Rules of 1962 and also referred analogous provisions of Sec. 463 of Delhi Municipal Act which provides: ``Punishment for offences relating to terminal tax and also referred the judgment of the various High Court Courts and Supreme Court wherein the courts have as been held that if in a particular Act. Offence is punishable with fine, it contemplates its imposition by the Criminal Court only and in no other manner. On comperative study of Rule 39 and analogous provisions of the different rules, it is established that respondent No. 3 could not impose the penalty upon the petitioner firm. Conviction by the Magistrate after fair trial, must precede the imposition of penalty. In the present case, the petitioner firm was not put on trial, which renders the charged penalty illegal, unlawful, ultravires and void ab initio in the light of the principles of law laid down by the Apex Court in the case of Municipal Corporation Ludhiana vs. Commissioner of Patiala (1). He also referred Sec. 133(2) of the Municipal Act, 1959 wherein it is provided that penalty could be levied only by the Magistrate. Powers to impose fine/penalty for revision of the octroi-Power re exercisable only be criminal court not by any officer of the municipal Council even if a person confess or agrees that he has committed an act punishable with fine it can only be used as evidence but cannot be acted upon in imposing penalty. In support of this argument Mr. Resham Bhargava cited the judgments reported in ( 1995(1) SCC 304 (2); 2000(4) WLC 559 (3); Allahabad Law Journal; 1981(7) Allahabad Law Reporter and 1985 Current Law Journal 627. (7). In reply to the arguments advanced on behalf of the petitioner Mr. In support of this argument Mr. Resham Bhargava cited the judgments reported in ( 1995(1) SCC 304 (2); 2000(4) WLC 559 (3); Allahabad Law Journal; 1981(7) Allahabad Law Reporter and 1985 Current Law Journal 627. (7). In reply to the arguments advanced on behalf of the petitioner Mr. Garg raised preliminary objection regarding maintainability of the present writ petition on the ground that disputed question of fact are involved in the present writ petition which cannot be decided in equitable writ jurisdiction of this court and also on the count that the petitioner has taken new grounds, therefore, this writ petition is not maintainable and given more emphasis on this issue that the petitioner himself moved application dated 26.06.1994 for compromising and compounding and thereafter the petitioner deposited the entire amount of Octroi as well as the compromise amount and as such the present writ petition is not maintainable. (8). Mr. Garg submitted that the petitioner and his driver evaded the payment of Octroi on 30 refrigerators. The truck was caught after about half a Km inside the city from the Octroi outpost, near Meer Shah Ali where it was found that the petitioner without making payment of octroi in regard to the 30 refrigerators crossed the octroi outpost. The application in writing was submitted by the petitioner on 27.06.1994 in which the petitioner has admitted that he wanted to enter into a compromise and was prepared to make the payment of Octroi ten times of the octroi as compounding fee. He has further admitted that in future he will not repeat the mistake. (9). Mr. Garg further submits that after entering into compromise agreeing to pay and to 10 times of octroi as compounding fee then nothing remains in this writ petition. (10). In support of arguments Mr. Garg placed reliance on the judgment reported in 2002(2) SCC 48 (4); 2000(6) SCC 84 (5); 2001(1) SCC 762 (6); 1976(2) SCC 416 (7); 1997(7) SCC 76 (8); 1994(6) SCC 117 (9); 1994(6) SCC 132 (10); 1984(4) SCC 371 (11); RLR 95(1) 72 (12); and 1992(1) SCC 31 (13). (11). Heard the arguments of both the parties. The main argument of Mr. (11). Heard the arguments of both the parties. The main argument of Mr. Garg was that 10 times Octroi was charged from the petitioner as the compounding fee and not as a penalty wherein judgment referred by the petitioner are mainly deals with the fine as held in 1995(1) SCC 304 (supra) the Punjab Municipal Corporations Act, 1976 provision of Sec. 116 declaring evasion of octroi to be punishable with fine-Power to impose such fine rightly held by the High Court to be exercisable by a criminal court and not by an officer of the Municipal Corporation. The Punjab & Haryana High Court in this case has held that the fine contemplated by Sec. 116 can be imposed only by a criminal court and not by an officer of the Municipal Corporation and the Honble Supreme Court agree with the High Court that punishment of fine provided by Sec. 116 can be imposed only by the criminal court and cannot be imposed by the officers of the Corporation. (12). And the judgment of this Court in Brijlal Sringar Singh & Party vs. State of Rajasthan (14). In this case judgment in AIR 1994 SC Weekly 5136 (15) was considered and it was observed that `the penalty imposed by the officers of the Corporation also cannot be sustained. In this connection, the contention of the learned counsel for the respondents is that because the petitioner has deposited the penalty, he cannot chall- enge the same I am unable to accede to this contention. The matter of imposition of punishment whether by way of agreement is exclusive preserve of the criminal courts and not within the competence of the Corporation or its officers to impose. Similar view has been taken by the Allahabad High Court and Punjab and Haryana High Court. (13). Mr. Gargs submission was that in all the cases referred by the petitioner the penalty was imposed whereas in the instant case no penalty was imposed and only ten times of the Octroi as compounding fee has been charged. Therefore, these judgments cited by the petitioner are not applicable to the instant case in the facts and circumstances of the case. (14). In judgment referred by Mr. Therefore, these judgments cited by the petitioner are not applicable to the instant case in the facts and circumstances of the case. (14). In judgment referred by Mr. Garg with regard to locus standi to challenge the deposition of the compounding fee which was on account of application submitted by the petitioner and the petitioner cannot having a locus standi to challenge the same by way of filing this present writ petition as held in Municipal Council Ahmednagar vs. Shah Hyder Beig and Others (supra), wherein the Honble Supreme Court has held that the Land Acquisition notification issued and award published-Landowner not only refraining from challenging the acquisition notification but moving an application for the execution of the award- Subsequently, he challenging the acquisition notification by filing a writ petition-In such circumstances, high Court erred in allowing the writ petition by ignoring the applicability. of the principle of approbation and reprobation. (15). Also in 1976 (2) Supreme Court Cases 416. (16). Mr. Garg further challenge survival of the writ petition on the ground of principle of estoppel and in support of this argument he referred judgment of the Apex Court in Shish Ram & Ors. vs. State of Haryana & Others (supra), it was held as under:- ``A person having accepted a position of law and having taken benefit from it (acquiring leasehold rights to village common land in this case), held cannot later challenge the validity of such law-legal proceedings initiated by such a person would lack bona fides. (17). Mr. Garg also placed reliance on the judgment of this Court reported in M/s. Desai Brothers Ltd. vs. Municipal Council (supra), Srigangangar wherein the same controversy was involved that that penalty u/Sec. 39 can be imposed only after conviction- FIR lodged by the Municipal and notice under Sec. 137(1) of Municipalities Act issued but the petitioner deposited ten times of the octroi amount as compensation and the offence was compounded. Held, petitioner cannot take advantage of the fact that penalty has been imposed without there being any conviction. (18). After carefully gone through the provisions as well as the judgment cited before me I am of the opinion that since the petitioner has deposited the entire payment 10 times of the octroi as compoundable fee I am fully agree with the judgment referred by Mr. (18). After carefully gone through the provisions as well as the judgment cited before me I am of the opinion that since the petitioner has deposited the entire payment 10 times of the octroi as compoundable fee I am fully agree with the judgment referred by Mr. Garg and I am agree with the ratio decided in the judgment reported in RLR 1995(1) wherein this Court has held that the petitioner cannot take advantage of the fact that the penalty has been imposed without there being any conviction. The cases referred by the petitioner are not applicable to the facts and circumstances of the present case. (19). In view of the above observations, the writ petition does not survive and the same is dismissed. No orders as to cost.