Valecha Engineering Limited vs Thane Municipal Corporation of the City of Thane and Others

The learned Counsel appearing for the first respondent-Municipal Corporation stated that the Municipal Corporation will withdraw the orders dated 10th October, 2012, 11th October, 2012 and 3rd December, 2011 (Exhibit "Y", Exhibit "Z" and Exhibit "A" respectively to the petition). He states that the orders shall be withdrawn and in the light of the order passed by this Court dated 15th June, 2011 in Writ Petition No. 3222 of 2011 with Writ Petition No. 3946 of 2011, a composite order shall be passed after giving an opportunity of being heard to the petitioners. We accept the statements. By the aforesaid order dated 15th June, 2011, the earlier writ petitions filed by the petitioner were disposed of in terms of minutes of the order. Certain directions were issued in addition to the directions contained in the minutes of orders.

Therefore, a fresh adjudication which is to be made by the first respondent will have to be in terms of order dated 15th June, 2011.

The amended Rule 35(2)(d) of the Thane Municipal Corporation (Octroi) Rules, 1999 (here-in-after referred to as "the said Rules") confers powers on the Municipal Corporation to recover a penalty upto 10 times the amount evaded. Apparently, there is a discretion vested in the Municipal Corporation to impose penalty upto 10 times the amount payable. It is obvious that for exercising the discretion of imposing penalty at maximum rate, the first respondent will have to assign the reasons. Subject to above observations and subject to accepting the statements made by the learned Counsel appearing for the first respondent, on instructions, we dispose of the petition by passing following order:

ORDER

(a) The orders dated 10th October, 2012, 11th October, 2012 and 3rd December, 2011 (Exhibits "Y", "Z" and "A" respectively) do not survive as the same have been withdrawn;

(b) We direct the authorised representatives of the petitioner to appear before the Deputy Commissioner (Octroi) of the first respondent Corporation on 15th April, 2013 at 11.00 a.m. alongwith an authenticated copy of this order;

(c) On that day, the Deputy Commissioner shall fix the schedule of hearing;

(d) After giving an opportunity of being heard to the petitioner, a fresh order in terms of directions issued by this Court by order dated 15th June, 2011 passed in Writ Petition No. 3222 of 2011 with Writ Petition No. 3946 of 2011 shall be passed by the Deputy Commissioner (Octroi) as expeditiously as possible and in any event within a period of two months from 15th April, 2013;

(e) All contentions on merits are kept open;

(f) In the event, the order passed by the Deputy Commissioner (Octroi) is adverse to the petitioner, it will be open for the petitioner to challenge the said order in accordance with law. In such an event, it will be open for the petitioner to challenge the validity of the relevant amended Octroi Rules.

(g) The petition is disposed of on the above terms;

(h) The authorities concerned to act upon an authenticated copy of this order.