Writ Petition No.4692 of 2003

28th July, 2003

Petitioner Counsel: Mr. RAFIQ DADA,Mr. BIRENDRA SARAF, Mr. H. N. VAKIL , Mr. HITESH JAIN,UDWADIA & UDESHI
Respondent Counsel: Mr. V. P. MALVANKAR,Mr. DEEPAK MORE

Cases Cited:
Citizens Forum for Scientific Development of Pimpri-Chinchwad Vs. State of Maharashtra, 2003(2) ALL MR 85 [Para 2]
Texmaco Ltd. Vs. State of A.P., (2000)1 SCC 763 [Para 13]
Shree Cement Ltd. Vs. State of Rajasthan, (2000)1 SCC 765 [Para 13]

JUDGMENT

C. K. THAKKER, C.J. :- This petition is filed by the petitioners. Mahratta Chamber of Commerce, Industries and Agriculture and others, for an appropriate writ, direction or order restraining respondent Nos.1 and 2 State of Maharashtra as well as Pimpri-Chinchwad Municipal Corporation, seeking to levy and recover from the petitioners octroi at an increased rate as per Pimpri-Chinchwad Municipal Corporation (Octroi) Rules, 2001 for the period between 6th January,2002 and 14th February, 2002 and between 17th February, 2002 and 7th May, 2002, as the same is illegal, unlawful and contrary to law.

2. Now, in accordance with the provisions of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as "the Act"), octroi can be levied by respondent No.2-Corporation by framing Octroi Rules. Such rules were framed by respondent No.2 Corporation. They were sanctioned by the Government on November, 29, 2001. It is also an admitted fact that the Government granted the sanction in November, 2001 and they were gazetted on 6th December, 2001. They were brought into force from 6th January, 2002, i.e. on completion of one month from the date of publication in Gazette. It appears from the record as well as from a decision of a Division Bench of this Court in Public Interest Litigation No.31 of 2002 decided on 22nd January, 2003 : [2003(2) ALL MR 85] (Citizens Forum for Scientific Development of Pimpri-Chinchwad Vs. State of Maharashtra and Ors.) that stay against implementation of the Rules and seeking recovery of octroi was granted by the Government on 6th January, 2002 which remained operative up to 14th February, 2002. On 14th February, 2002 stay was vacated. Hence, from 15th February, 2002, recovery could be effected and was in fact effected. It is, however, on record that only two days recovery could be effected i.e. 15th and 16th February, 2002. Again, there was "oral" stay from "Mantralaya" and recovery could not be effected from 17th February, 2002 onwards. Finally, on 8th May, 2002, stay was vacated by the State Government and from 9th May, 2002, recovery could be effected.

3. In the PIL, a prayer was sought that the action of the State as well as respondent No.2 - Corporation of not effecting recovery for the intervening period; i.e. 6th January, 2002 to 14th February, 2002 and 17th February, 2002 to 7th May, 2002 was illegal, unlawful and an appropriate direction by issuing a writ of mandamus was required to be issued to the respondent-authorities to effect recovery by issuing notices and calling upon the parties to pay the amount of octroi.

4. The Division Bench, upholding the said contention, ordered that the respondent- authorities shall take appropriate proceedings to recover the said amount of octroi by taking appropriate steps.

5. The Division Bench observed;

"14. In our opinion, once the required procedure has been followed, the Rules were required to be brought into force. Once the sanction had been granted by the State Government, it had no power, authority or jurisdiction to suspend enforcement of the Rules or to grant any interim order. From the facts it is clear that at two stages the State directed the respondent-Corporation not to enforce new Rules and to collect octroi under the new Rules but continued to collect octroi under the old rules only firstly during 6th January, 2002 to 14th February, 2002 and secondly, from 17th February, 2002 to 7th May, 2002.

15. So far as the first period is concerned, it was stated by the State that there were elections to the Corporations and under the code of conduct the Rules could not be implemented. No provision, however, was brought to our notice by the learned Assistant Government Pleader as to how code of conduct would prevent enforcement of Rules which were framed in accordance with the provisions of the Act. Once the Rules were sanctioned by the State Government, a notification was issued and the time after which they were to come into force was over, in our considered view, the State Government could not prevent or prohibit enforcement of Rules on the ground that election was to take place and under the code of conduct, octroi Rules could not be enforced. Hence, the said action was clearly illegal and outside the purview of the Act. Since it was not within the power of the State Government, octroi ought to have been imposed and collected by the Corporation under the new Rules.

16. Regarding the second stage, no written order at all has been brought on record. The petitioner has stated that there was a telephonic message from the State Government directing the Commissioner of the respondent-Corporation not to collect octroi under the new Rules. The said assertion has not been controverted by the State Government, though an affidavit in reply is filed. On the contrary, in the affidavit in reply, the action is sought to be justified on the ground that some representations were made. In our opinion, however, when the draft rules were approved by the State Government and one month after which they were to bring into force was over, no power had been left with the State and no, direction could be issued to the Corporation not to enforce the Rules. It is further stated in the affidavit that after the State Government was satisfied that the Octroi Rules were proper, legal and valid, vide a letter dated 7th May, 2002, the Commissioner of the respondent-Corporation was permitted to collect octroi under the new Rules. The fact, however, remains that from 17th February, 2002 to 7th May, 2002, octroi could not be collected under the new Rules and it was only with effect from 8th May, 2002 that octroi could be recovered under the new Rules. Thus, even for that period, the action on the part of the State Government could not be said to be legal and valid. No provision has been shown to us under which such power was exercised by the State Government.

17. We are, therefore, of the opinion that at both stages, the action of the State Government was neither legal, nor valid nor supported by any provision of law.

.... ...... .....

19. In our opinion, when there is no provision in the Act to suspend implementation and enforcement of the Octroi Rules and when we are of the view that at both the stages, action of the respondent-State was not legal and valid, appropriate directions will have to be issued to the respondent Corporation to collect octroi from 6th January, 2002 under the new Rules, as per the available record with the Corporation".

6. At that stage, respondent No.4-petitioner herein (Maharashtra Chamber of Commerce and Agriculture), contended that if such an order will be issued, it would adversely and prejudicially affect the members of respondent No.4-Corporation. The Division Bench in the light of the said contention observed;

"18. At this stage, the learned counsel for respondent No.4, submitted that if this Court will issue a writ of mandamus directing the respondent-Corporation to implement new Octroi rules from 6th January, 2002 to 14th February, 2002 and then from 17th February, 2002 to 7th May, 2002, serious prejudice will be caused to the fourth respondent. The counsel submitted that the fourth respondent adopted a proper, permissible and democratic course in such matters i.e. to make a representation to the Chief Minister, the highest authority of the State by putting forward its grievances and objections. The Chief Minister also saw substance in the grievance voiced by respondent No.4 and accordingly, enforcement was stayed. It is because of the fact that the prayer was granted by the State Government that the fourth respondent did not choose other remedies which were available to it. If this Court orders recovery of octroi under the new Rules now, for that period also, it may cause substantial loss to respondent No.4 and several others.

....... ....... .......

20. We may, however, observe that if respondent No.4 is aggrieved by the new Rules, it is open to it to take appropriate proceedings in accordance with law and orders passed by us in the present petition would not come in its way."

Taking clue from the above observations, the present petition has been filed by the petitioners.

7. It was submitted by the learned counsel for the petitioners that the action of the respondents is illegal, unlawful and improper. Relying on the provisions of Sections 96,99,127 and 149 read with clause (44) of Section (2) of the Act, it was submitted that the Octroi Rules could not have been brought into force from 6th January, 2002. Section 149 of the Act enjoins the Corporation to bring into force Octroi Rules with effect from 1st April. The Octroi Rules, hence, could not have been implemented from 6th January, 2002. The said action was thus illegal, unlawful and contrary to and inconsistent with sub-section (4) of Section 149 of the Act. It is also clear, if one reads clause (44) of Section 2 of the Act which defines "official year" as the year commencing on the first day of April. It was, therefore, submitted that the action deserves to be quashed and set aside. It was also submitted that there was no fault on the part of the petitioners in not paying octroi as stay was granted in January, 2002 and thereafter again in February, 2002. Moreover, the action is contrary to the principles of justice, equity and good conscience and now it is not open to the respondent-authorities to make demand of octroi after decision of this Court in PIL. It was also stated that since the court has granted liberty to the affected parties to approach this Court, the petitioners have filed the present petition.

8. The learned counsel for respondent Nos.1 and 2, on the other hand, supported the action taken by the respondent-authorities and submitted that the action has been taken consequent to and implementing the order passed by the Division Bench of this Court which cannot be said to be illegal. It was also submitted that when sanction was granted, the Government has specifically stated that the Rules will come into force and will be implemented on completion of one month from the publication of the Rules in Official Gazette.

9. The Marathi sentence reads thus:

(moj Ëvëeµe jepçe^eel ^Ëm±o üe½ÈeèÈe lej×fhemgv Sk cË|ÞÈevxlj Dc½eel Èslr½e.)

Admittedly the rules were gazetted on 6th December, 2001, and hence on completion of one month, they were brought into force from 6th January, 2002.

10. The counsel for the respondent-Corporation also relied upon sub-section (3) of Section 149 which enacts that any sanction given by the State Government under sub-section (2) "shall become operative on such date not earlier than one month from the date of the sanction as the State Government shall specify in the order of sanction." Since the sanction was granted on 29th November, 2002, and the Rules were ordered to be brought in force on completion of one month from publication thereof in the Official Gazette which was done on 6th December, 2001, the action of implementing the Rules with effect from 6th January, 2002 cannot be said to be illegal. On the contrary, it is in consonance with and as per the legislative mandate reflected in sub-section (3) of Section 149 of the Act.

11. We may state that we are not expressing any opinion on merits one way or the other in view of the fact that, in our opinion, statutory alternative and equally efficacious remedy is available to the petitioners by filing an appeal under Section 406 of the Act. The said section provides for an appeal in certain cases. Thus, it is a statutory remedy. And the petition deserves to be dismissed only on that ground. Once, the action of the State Government of granting stay against implementation of Octroi Rules was found to be without authority of law by this Court, and the petition (PIL No.31 of 2002) was allowed, the consequential action was required to be taken. If the contention of the petitioners is that proper procedure was not followed or the action taken by the Corporation was otherwise illegal or contrary to law, an appropriate remedy would be to invoke appellate jurisdiction under Section 406 of the Act. Hence, in our opinion, the petition cannot be entertained at this stage.

12. So far as the doctrine of justice, equity and good conscience is concerned, in our opinion, the same cannot be invoked in the instant case. In the judgment in PIL No.31 of 2002, this court held that the action taken by the Municipal Corporation of framing Rules and forwarding them in accordance with law to the State Government was proper. The State Government sanctioned those Rules. They were duly gazetted and they were ordered to be brought in force on completion of one month from publication in the Official Gazette. They were gazetted on December 6, 2001 and were implemented with effect from 6th January, 2002. Thereafter the State authorities granted stay and suspended implementation of Rules. Once it was held by this Court that the said action was illegal, unlawful and otherwise impermissible, in our view, the doctrine of justice, equity and good conscience has no application. Hence, even that contention also does not impress us for entertaining the petition under Article 226 of the Constitution at this stage.

13. In view of the above observations, in our opinion, the ratio laid down in Texmaco Ltd. and Anr. Vs. State of A.P. and another, (2000)1 SCC 763 and Shree Cement Ltd. and another Vs. State of Rajasthan and Others, (2000)1 SCC 765 has no application.

14. For the foregoing reasons, in our opinion, the petition deserves to be dismissed and is accordingly dismissed. No order as to costs.

15. Before parting with the matter, we may observe that we have made all the observations hereinabove only for the purpose of not entertaining the petition at this stage. As and when the matter will come up before an appropriate court/authority, it will be decided on its own merits, without being influenced by the above observations. All contentions of parties are kept open.

16. The learned counsel for the petitioners at this stage prays that some time may be granted and till that period, no coercive action be taken by the respondent-authorities. In our opinion, no such prayer can be granted, in the light of the fact that we are not entertaining the petition, the Rules had been brought into force and effected. Even otherwise, considering the underlying object and legislative mandate of Section 406 of the Act also, no prayer for stay can be granted. Hence, the prayer is rejected.

Parties be given copies of this order duly authenticated by the Sheristedar/Private Secretary.

Petition dismissed.