(1.) THIS is a petition, in revision, against the judgment of Srimati Shanti Dei, Magistrate, First Class, Puri convicting the Petitioner for contravention of Rules 6 and 7 of the Orissa Terminal Tax Collection Rules, 1951 and sentencing him to pay a fine of Rs. 5/ - under Rule 10 of the said Rules. The allegation against the Petitioner was that being the owner of bus No. ORC -1141 plying during the months of October, November and December, 1960 between Bhubaneswar, Puri and Konarak he collected a sum of Rs. 56.24, Rs. 55.06 and Rs. 45.69 (totalling Rs. 156.99 Ps.) during the said period as terminal tax from the taxable passengers travelling in the bus, but omitted to deposit the sum in the Lodging House Fund, Puri, as provided for in the Rules.
(2.) THE Petitioner pleaded not guilty, but the principal witness against him is P.W. 2 who is a Ticket Checker of this Lodging House. He stated that he and a companion of his used to check the public service vehicles and make the necessary entries in the Terminal Tax Register maintained under the said Rules. He has also proved on extracts from the Register (exts. 2, 3 and 4) in support of his statement about the collection of the aforesaid amounts by the Petitioner from the passengers and the omission to deposit the same to the credit of the Lodging House Fund. He has been believed by the learned Magistrate. So far as this question of fact is concerned, I see no reason to take a different view. The said Rules were made by the State Government in exercise of the powers conferred on them by Sub -section (2) of Section 23 of the Bihar and Orissa Places of Pilgrimage Act (Bihar and Orissa Act II of 1920). Clause (2) of Section 2 of that Act defines a "Magistrate" as a District Magistrate and any other Magistrate of the First Class specially empowered by the State Government to perform the functions of a Magistrate under that Act. Section 23 confers on the State Government the power to make Rules and Sub -section (3) of that section says:
(3.) MR . Misra appearing for the Petitioner first contended that the power to impose a daily fine conferred by Sub -section (3) of Section 23 of the Act can be exercised only by a Magistrate as defined in the Act, that is to say by a First Class Magistrate "specially empowered" by the State Government. He urged that there was no evidence to show that Shrimati Shanti Dei was specially empowered under the provisions of the Act and that consequently the imposition of a daily fine was illegal. It does not appear, however, that either during trial or when the matter was taken up in revision before the Sessions Judge or even in the grounds of the revision petition before this Court it was mentioned that Shrimati Shanti Dei was not specially empowered under the provisions of this Act. This being a mixed question of law and fact, the Petitioner ought to have raised this objection at the earliest stage so that the State Government may be in a position to (sic) out the appropriate notification, if any, empowering Shrimati Shanti Dei to exercise the functions of a Magistrate under this Act. As this point was not taken even in the grounds of the revision petition, Mr. Misra cannot be permitted to raise it at this belated stage.