CHANDRABHAN BHAJANDAS KATARIYA Vs. AHMEDNAGAR MUNICIPAL COUNCIL

JUDGEMENT

(1.) IN this petition filed, under Article 226 of the Constitution, the petitioner has challenged the authority of the Municipal Council to issue the notice dated 26th November, 1998 and the bill of demand under Outward No. 489 dated 14th March, 2000 and prayed for directions to refund an amount of Rs. 28,097/- with interest and exemplary costs, as well as to give open delivery of the goods detained by the Municipal Council on 2nd June, 1998. In addition, writ of mandamus has been sought against the Municipal Council to pay an amount of Rs. 63,845/- with interest and exemplary costs.

(2.) THE petitioner claims to be the proprietor of M/s. Saraswati Supari Stores at Shrirampur in Ahmednagar district and he deals in Pan Masala, Jarda, Bidi and Cigarettes. The stores is registered under the provisions of the Bombay Shops and Establishments Act, 1948. On or about 23rd May, 1998 he had purchased 13 packets of Pan Parag and Jarda etc. from M/s. Mulchand of Delhi and the goods were transported through M/s. Maharashtra Freight Carrier for onward delivery to Ahmednagar as the said transporter had no office at Shrirampur. On 2nd June, 1998 the said goods were being transported to Shrirampur and the officers of the Ahmednagar Municipal Council, without any authority of law and illegally detained the goods on the assumption that there was evasion of octroi. The prescribed procedure under sections 139 and 145 (1) of the Maharashtra Municipalities Act was not followed. No Bill of Demand was served on the petitioner and, therefore, he made a representation on 9th June, 1998 requesting to release the goods. There as no response and, therefore, he filed Regular Civil Suit No. 265 of 1998 in the Court of Civil Judge, Junior Division at Ahmednagar. The said suit was dismissed on 31st August, 1998 as the Civil Court has no jurisdiction to entertain the same in view of the provision of an appeal under the Municipalities Act. He issued legal notice through an Advocate on 23rd September, 1998 and in response to the same the Municipal Council issued notice dated 26th November, 1998 calling upon the petitioner to remit an amount of Rs. 28,092/- towards octroi payment. Petitioner came in Civil Revision Application No. 1025 of 1998 before this Court challenging the order passed in Regular Civil Suit No. 265 of 1998. The said civil revision application was rejected by this Court on 16th June, 1999. Therefore, the petitioner addressed letters dated 16th July, 1999, 20th August, 1999 and 4th September, 1999 to the Municipal Council requesting to accept the principal amount of octroi without imposing penalty and release the goods. He filed Civil Application No. 5128 of 1999 in Civil Revision Application No. 265 of 1998 praying for directions to issue the Bill of Demand and the impugned Bill of Demand dated 29th of March, 2000 was issued by the Municipal Council. The petitioner received this Bill of Demand on 3rd May, 2000 and the said amount was paid by cheque dated 3rd May, 2000 and requested to deliver the goods to his agent viz. Bhalerao Transport, Ahmednagar so that the goods could be forwarded to the petitioner at Shrirampur. The goods were not released even though the cheque was encashed and repeated pleas of the petitioner went on deaf ears of the Municipal Council. As a last alternative, the petitioner approached this Court by filing the instant petition on 7th of August, 2000. The subject goods are still lying in the godown of the Municipal Council and they have perished as a result of which he petitioner is entitled to recover damages from the Municipal Council along with the open delivery of the goods contends the petitioner.

(3.) THE Municipal Council has filed reply and has opposed the petition. At the first instance, it is stated that the subject goods were not in possession of the petitioner when they were confiscated and when the three wheeler goods carrier bearing No. MH-16-B-1778 carrying 10 boxes of Pan Parag Masala/jarda was intercepted on 2nd June, 1998 by the Municipal authorities the driver of the said vehicle viz. Aklesh Kaptansing Rajput, resident of Ahmednagar, made a statement in writing to the effect that the subject goods were being transported at the instance of the owner of M/s. Radhaswami Stores at Shimpi Galli at Ahmednagar town and they were to be delivered to the said stores. Notice under section 141 (1) of the Municipalities Act was issued against the said M/s. Radhaswami Stores on 27th October, 1998 calling upon him to pay an amount of Rs. 28,092/- plus the godown rent amount. Around the same time the Municipal Council received a legal notice on behalf of the petitioner and, therefore, it issued notice dated 26th November, 1998 against the petitioner for the first time. Thereafter, several notices were issued to the petitioner but he did not come and receive the delivery of the confiscated goods. These notices were served on M/s. Radhaswami Stores and were returned unserved. The petitioner filed Civil Application No. 5128 of 1999 in Civil Revision Application No. 265 of 1998 and the Municipal Council filed a reply thereto showing its willingness to issue a Bill of Demand as the petitioner had prayed for the same relief and accordingly on the basis of the legal opinion received by the Municipal Council the Bill of Demand dated 14th March, 2000 came to be issued by the Municipal Council. The Council is not at fault and the impugned notice as well as Bill of Demand was issued by is only at the instance of the petitioner and not by the Council on its own. The Council has not acted in violation of the provisions of the Municipalities Act or the Octroi Rules and, therefore, the Municipal Council is not liable to pay damages with interest on account of the goods having been perished or become useless. It was for the petitioner to approach the Municipal Council by establishing his title over the subject goods and to take the delivery after the Municipal Council had received the payment in May/june, 2000. The petitioner failed to do so and, therefore, it does not lie in his mouth to find fault with the Municipal Council. On all these grounds the petition has been opposed by the Municipal Council.