KARACHI WINE STORE Vs. THE MUNICIPAL COUNCIL

JUDGEMENT

(1.) THESE three revision -petitions have come up for admission today. As they arise out of common order passed by the District judge Jodhpur and as common questions of law and fact arise in all these revision -petitioners, they are disposed of by one order. A notice was issued to the non - petitioner to show cause why this revision -petition be not admitted Mr. M.M. Singhvi has appeared on behalf of the Municipal Council, Jodhpur, non -petitioner and contended before me that the order of the appellate court dismissing the application for temporary injunction filed by the petitioner cannot be revised even though it may he a wrong order, because the first appellate court had jurisdiction to pass such an order and because the order does not suffer from material irregularity in the exercise of the jurisdiction. In support of his above contention, he relied upon Hindustan Aeronautics v. : (1972)ILLJ170SC and an unreported case of this court Harakraj and Anr. v. Binjaram and Ors. S.B. Civil Revision No. 251 of 1972, decided on 5 -7 -1972 It. has been observed in the referred to above authority of Hon'ble the Supreme Court than the order of the first appellate court directing the defendant to refrain from proceeding with the enquiry until the decision of the suit, cannot be interfered with in revision under Section 115 CPC irrespective of the feet whether such an order may be right or wrong or may be in accordance with law or may not be in accordance with law, provided the first appellate court had jurisdiction to pass such an order and provided the first appellate court did not exercise its jurisdiction illegally or with material irregularity. A similar view has been taken in the unreported judgment of this Court by the then Chief Justice Hon'ble Mr. Jagat Narayan.

(2.) MR . M.C. Bhoot, learned Counsel for the petitioner, on the other land, argued that the order passed by appellate court, i.e. District Judge, Jodhpur, is erroneous in law and that error of law should be considered as vital and a jurisdictional error in this case. In support of his above contention he placed reliance on M.L. Sethi v. : [1973]1SCR697 .

(3.) THE only point that remains to be considered is whether he exercised his jurisdiction with material irregularity. Mr. M.C. Bhoot, learned Counsel for the petitioner, in 'his connection invited my attention to Sub -section (2) of Section 104 of the Rajasthan Municipalities Act, 1959, hereinafter referred to as the Act, which clearly lays down that octroi duty shall be levied by every Municipal Board on goods and animals brought within the limits of the Municipality .or consumption, use or sale therein. On the strength of these provision, Mr. M.C. Bhoot, contended that the run petitioner is not entitled to levy octroi on the petitioner's goods, which are not brought within the Municipal limits of Jodhpur for consumption, use or sale therein and that if the non petitioner does so, it acts in contravention of the mandatory provision of Sub -section (2) of Section 104 of the Act. Mr. Bhoot further invited my attention to Rules 16 and 34A of the Rajasthan Municipalities (Octroi) Rules 1962, hereinafter referred to as the Rules and argued that the petitioner is keeping his goods in a were house licensed by the Excise Commissioner under Section 17 of the Rajasthan Excise Act and that by virtue of Rule 34A of the Rules, the warehouse shall be deemed to be a licensed ware house for the purpose of Rule 16 of the Rules and that the non -petitioner is not entitled to deny the facilities which the petitioner can obtain under Rule 16 of the Rules The learned District Judge was of the view that the warehouse in which the petitioner is keeping his goods though licensed by the Excise Commissioner under Section 17 of the Rajasthan Excise Act, is not an excise warehouse of the State of Rajasthan & that the petitioner therefore, is not entitled to avail himself of the facilities provided under Rules 16 of the Rules. Mr. M.M Singhvi, learned Counsel for the petitioner invited my attention to Rules 9 and 12 of the Rules and strenuously urged before me on the strength of the provisions contained therein that petitioner is bound to produce the goods at octroi outpost and to make the declarations under Clauses 1, 2 and 3 whichever is applicable and to follow the subsequent procedure laid down in Rules 11 or 12 of the Rules.