MULJIBHAI CHAMPAKLAL SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The judgment and the order passed by the learned Additional Sessions Judge of Bharuch at Rajpipla Camp on 22nd April 1988 in Criminal Revision Application No. 96 of 1987 are under challenge in this petition under Art. 227 of the Constitution of India. By his impugned judgment and order, the learned Additional Sessions Judge set aside the judgment and the order passed by the learned Judicial Magistrate (First Class) at Rajpipla on 19th September 1987 in Municipal Appeal No. 3 of 1987. By his aforesaid judgment and order, the learned Magistrate had accepted the petitioner's appeal against the levy of penalty on the amount of octroi payable by the petitioner on the goods imported by him within the municipal limits of respondent No. 2 Municipality.

(2.) The facts giving rise to this petition move in a narrow compass. The petitioner has been carrying on his business in grains and provisions. It appears that he received goods from Jagdish Oil Industries of Ahmedabad on 7th July 1987 in one tempo bearing R.T.O. Regn. No. GRS 3252. It appears that the driver of the vehicle did not pay octroi on the goods in question while bringing the goods within the municipal limits of respondent No. 2 Municipality. On realizing this fact, the petitioner went to pay the amount of octroi payable on the said goods. It was not accepted on the ground that the proceedings for non-payment of octroi were in contemplation. Later on a notice of 9th July 1987 bearing No. 1260 was served to the petitioner claiming the amount of octroi together with 10 times the penalty in all in the sum of Rs. 17,587.00. The petitioner paid that amount on 10th July 1987 under protest. He thereafter preferred an appeal against such claim under Sec. 138 of the Gujarat Municipalities Act, 1963 ('the Municipalities Act' for brief). It came to be registered as Municipal Appeal No. 3 of 1987. After hearing the parties, by his judgment and order passed on 19th September 1987 in the aforesaid appeal, the learned Judicial Magistrate (First Class) at Rajpipla accepted the appeal and ordered refund of the balance amount to the petitioner after deducting from the amount paid by the petitioner pursuant to the aforesaid notice the amount of octroi and the expenses for recovery thereof. Its copy is at Annexure B to this petition. Respondent No. 2 was aggrieved by the judgment and the order at Annexure B to this petition. It, therefore, carried the matter in revision before the Sessions Court at Bharuch. It came to be registered as Criminal Revision Application No. 96 of 1987. It appears to have been assigned to the Additional Sessions Judge of Bharuch on his camp at Rajpipla. By his judgment and order passed on 22nd April 1988 in the aforesaid revisional application, the learned Additional Sessions Judge accepted it and set aside the judgment and the order at Annexure B to this petition. A copy of the judgment and the order passed by the learned Additional Sessions Judge as aforesaid is at Annexure C to this petition. The aggrieved petitioner thereupon invoked the extraordinary jurisdiction of this Court under Art. 227 of the Constitution of India by means of his Special Criminal Application No. 462 of 1988. By the order passed by this Court on 14th July 1988 therein, it was permitted to be converted into a Special Civil Application and it has been registered as such. The petitioner has questioned the correctness of the judgment and the order at Annexure C to this petition in this case.

(3.) It may be mentioned at this stage that the learned Additional Sessions Judge accepted the revisional application mainly on the ground that the dispute involved in appeal under Sec. 138 of the Municipalities Act partook the character of a civil dispute and the learned Magistrate had no jurisdiction to grant the declaration that respondent No. 2 Municipality had no authority to levy penalty on the octroi amount. According to the learned Additional Sessions Judge, such a relief of declaration could have been granted by the competent civil Court in an appropriate civil proceeding.