Dhan Raj Hari Ram vs Nagar Parishad

Guman Mal Lodha, J.—These revisions u/s 397 Cr. PC against the order dated 5th February, 1981, passed by Shri Jagat Singh, Additional Sessions Judge No. 1, Bharatpur, in Criminal Misc. Case No. 35/78.

All the three criminal revisions have been decided by one common judgment and therefore, I have accepted the request of the learned counsel for the parties to decide S. B. Criminal Revision Petition No. 143, 144 & 112/1981 by a common hearing and one common judgment.

The crux of the matter in all the 3 cases is that Cigratte Packets were being taken and at the octori post the octori was not paid. The nonpayment of the octori was taken note of by the Municipal Board and the Municipal Board thereupon seized the goods.

In all the three cases certain boxes containing Cigrattes were seized by the Municipal Authorities on the ground that there has been non-payment and evasion and avoidance of octroi duty.

The petitioner then filed an application before the Chief Judicial Magistrate for the purposes of taking custody of the goods. The Chief Judicial Magistrate directed that the goods may be given on ''Supardginama'' and surety and amount was directed in each case.

In each case the amount of surety was different. In case No. 35 by order dated 9-7-1978 the CJM directed that the goods which have been seized on 22nd/23rd June, 1978, by the Municipal Board on the ground of the avoidance octroi should be given to the petitioner if he furnishes surety of Rs. 55,000/- and undertakes in the matter of octroi duty when decided by the Municipal Board, whatever the amount would be decided to be paid and if necessary that is not paid he would return back the goods seized which is being taken on ''Supardginama''. The surety bond should also contain that if the amount of tax is more than Rs. 15,000/- then also he would pay the same and if he fails to pay the amount it would become realisable by sale of his movable and immovable property.

Separate orders were passed in all three cases.

The short point to be considered in all the three cases relates to the power of the Magistrate for releasing the goods on "Supardginama''. I enquired from the learned counsel for the parties representing both the sides whether any prosecution was contemplated or was made or is contemplated under any of the provision to the Rajasthan Municipalities Act. Both of them referred to the provisions of Section 130 and 136 of the Rajasthan Municipalities Act. I find u/s 130 of the Rajasthan Municipalities Act, the powers are for inspection and they can be exercised before any of the Officer authorised or a Magistrate. Then so far as Section 136 is concerned, Section 137 of the Rajasthan Municipalities Act empower the Municipal Board to seize on nonpayment of the tax any vehicle. The power of seizuer is mentioned in Section 137 and then Section 137 further provides that he would get auction for the purposes of realisation of octroi or toll chargeable. Now in present case so far the question as it has emerged before this Court is concerned it is not a case of any party that whereas the seizure was made in 1978 there has been any prosecution launched against the petitioner for non-payment of octroi.

Obviously the powers of the CJM to release comes into play only when some investigation for the purpose of some offences and some case is registered and the seizure is made of the property. Since it is nobody''s case that any prosecution was launched or is pending or is likely to be filed and now from 1978 and we are in 1987, obvious position is that the Municipal Board is entitled to its octroi duty, if according to law it is leviable.

Consequently these three revision petitions are disposed of with the following directions:

(1) That the CJM before whom this ''Supardginama'' was given and whose order has been quashed by the Sessions Judge would now direct the ''Supardginama'' or the surety to deposit octroi duty of the goods seized before the Municipality;

(2) That the petitioners would be at liberty to contest before the Municipal Board or the appellate authority that in the law no octroi is leviable. However that would not entitle them not to deposit the octroi duty.

The octroi duty deposited by them before the Municipal Board would be refundable to them if the appellate authority decides that no duty was leviable. If the Municipal Board itself decides that no duty was leviable, then also they would get refund of the octroi duty.

In case the octroi duty is not paid then the CJM before whom the surety bonds were executed, would enforce the surety bonds for the purposes of realisation of the octroi duty, as per the terms and conditions of the surety bond.

With the above further directions, the judgment of the Sessions Judge is confirmed, the revision petitions are decided accordingly.