RAGHUVAR (INDIA) LIMITED Vs. STATE

JUDGEMENT

(1.) In instant petition, grievance of petitioner is that octroi in regard to RBD Palmolien Oil which was purchased by petitioner has been arbitrarily charged as per item No. 48 under notification dt.15th December, 1995; while according to him, octroi should have been charged as per item No. 2 of notification, supra. While notices were issued by this Court, interim order was passed on 10th July, 1998, but stay application was finally dismissed by this Court on 8th July, 2005. It has also been brought to the notice of this Court that the octroi which was levied in pursuance of notification dt.15th December, 1995 was finally withdrawn by the Government vide its notification dt.31st July, 1998 w.e.f. 1st August, 1998 and in view of later notification, octroi stands withdrawn by the Government.

(2.) Counsel for respondents has raised preliminary objection that if at all the petitioner was aggrieved with the assessment made by the Superintendent [Octroi] under R.14(4) of Municipal Octroi Rules, 1962, petitioner had an opportunity to file appeal under R.40 before the concerned competent authority which he has failed to do so and in view of alternative remedy available, the writ petition is not maintainable. Counsel further submits that whatever octroi was charged from the petitioner in regard to goods in question in the ordinary course must have been transferred to the consumer and as such, even if there has been an error in charging octroi from the petitioner if taken at its face value, the same could not be refunded to the petitioner and if permitted would be hit by doctrine of unjust enrichment and refund in such like matters has never been permitted by the apex court and he has placed reliance on the judgment in Mafatlal Industries Ltd. v. Union of India .

(3.) Counsel for petitioner while meeting out the preliminary objection, submits that however R.40 provides remedy of appeal, but in the facts of instant case when assessment could be made by Superintendent Octroi at the same time by the Executive Officer also. Since both were having concurrent jurisdiction to levy octroi in such circumstances, remedy of appeal was ineffective and was not going to serve any purpose and apart from it once the petition was admitted by this Court, remedy of appeal could not have been raised now at the stage of hearing, particularly, when writ petition is pending in this Court for almost 11 yrs. by now. He has further tried to convince this Court that octroi which was charged by the Municipal Authorities apart from being contrary to notification dt.15th December, 1995 was never pass on to the consumer, as such principle of unjust enrichment will not be applicable in the instant case. He has further tried to convince this Court that oil which he has purchased was covered by item No. 2 of the notification and item No. 48 relates to imported items and conjoint reading of items which are referred to in no manner will cover oil which the petitioner purchased and it does not fall in homogeneous class of item referred to in item No. 48 of the notification, as such, respondents have apparently committed error in charging 1% as octroi over the goods in question.