ivil Appeal No 1800N of 1974 From the Judgment and Order dated 21173 of the Delhi High Court in CW No 906 of 1973
SN Mehta for the Appellant
G Ramaswamy Additional Solicitor General G Venkatesh Rao and AV Rangam for the Respondents
652 The Judgment of the Court was delivered by OZA J
This is an appeal on leave under Article 136 of the Constitution
The appellant is a transporter and it is alleged that he brought goods into the limits of Delhi and were seized within the Union Territory as it was alleged that they were brought in without the payment of terminal tax
A penalty of ten times of the amount of the terminal tax was also demanded from the appellant and he was informed that if the terminal tax alongwith the penalty is not paid within four days the goods will be sold at his risk
By a writ petition the appellant challenged this demand before the High Court of Delhi and by the impugned judgment the Delhi High Court dismissed the writ petition and hence the present appeal
The High Court has considered the law of the Delhi Municipal Corporation Act 1957 hereinafter referred to as the Act  coupled with the provisions contained in the imposition of terminal tax and also examined the legislative competence of the Parliament to enact the law and ultimately came to the conclusion that the law was applicable in the territory
There was also some controversy raised before the High Court in respect of the facts as to whether the cylin ders on which the duty was demanded were empty or were full and as to whether the appellant stopped its vehicle at the post and was allowed to go and later on he was stopped by the Squad or he got into the territory without payment of tax and was therefore caught but all these controversial questions of facts the High Court refused to consider as the appellant had an opportunity to pursue the remedy under the law where these facts could be investigated and therefore as that was not done and it was a writ petition filed before the High Court the High Court rightly did not go into the disputed questions of facts
The only question which was canvassed before the High Court and was considered is the question as to whether this penalty imposed under Section 464 of the Act could be imposed by the taxing authority without a prosecution having been filed before a competent magistrate and the High Court in its judgment dismissed the petition upholding the contention of the Delhi Municipal Corporation and the learned counsel appearing for the appel lant also canvassed that question alone as it was the ques tion on which High Court held against the appellant
It was contended by learned counsel for the appellant that Sections 463 and 464 both fall in the Chapter Offences and Penalties
By referring to the language of Section 464 he contended that in the body of this Section language indicate that what is levied against the appellant is de scribed as fine
He also referred to Sections 469 and 470 and contended that according to the scheme of this Chapter the 653 punishment provided in Section 463 and the penalty or fine provided in Section 464 could only be imposed by a Magis trate after a proper trial
He also contended that the learned Judges of the High Court placing reliance on Section 59 and the notification delegating the functions by the Commissioner to the terminal tax authority came to the conclusion that under Section 464 it is the tax authority who has the jurisdiction to impose the penalty but according to the learned counsel the residuary powers of the Commis sioners under Section 59 are only administrative powers and according to him the High Court was not right in placing reliance on that The main emphasis by the learned counsel was that impo sition of penalty as provided in Section 464 where a wide discretion is given to impose penalty upto ten times of the tax payable itself indicates that the functions of the authority who is expected to exercise the jurisdiction under Section 464 is in the nature of judicial function and there fore it could not have been left to the executive authority of the Commissioner or a delegate to whom the powers may have been delegated
According to the learned counsel the penalty was not imposed by the competent authority
Learned counsel for the respondent on the other hand contended that the language used at the heading of the Chapter which starts with Section 461 itself indicates that this Chapter deals with two types of matters i where offences are alleged to have been committed and ii where only penalties could be imposed and the scheme of this Chapter indicates that wher ever the offences are alleged to have been committed it has been provided that they will be tried by a competent magis trate and the punishment could only be inflicted by the competent magistrate on conviction of the person for the offences alleged against him
Whereas wherever penalties are provided it has been provided that where the facts attract the relevant provisions pertaining to penalty the tax plus penalty could be imposed and these penalty provisions nei ther talk of any offence nor talk of conviction before a competent court of a Magistrate
It was contended that on the basis of this distinction if the two sections 463 and 464 which are relevant are examined it is clear that Section 464 do not pertain to any offence and therefore the penalty thus imposed under this Section is not a punishment which could only be inflicted under Section 463 after conviction and therefore for imposition of penalty under Section 464 the prosecution of the appellant before a competent magis trate is not at all necessary
Learned counsel also contend ed that even reading the provisions of Section 470 or 469 do not indicate contrary
As regards the authority of the tax authority to impose this pen 654 alty learned counsel referred to the notifications which have been relied on by the High Court and contended that Section 59 confers very wide powers on the Commissioner of Municipal Corporation and he is also authorised to delegate the functions and in accordance with the provisions of law by a notification the functions have been delegated
The Commissioner had the authority as regards the authority of the tax authority to impose this penalty under Section 464 and it is in this delegated authority that the terminal tax authority has imposed this penalty against the appellant as has been held by this Court
The only question which arises in this appeal is as to whether penalty as provided in Section 464 of the Act could be imposed by the terminal tax authority or it could not be imposed unless the appellant is convicted and found guilty by a competent Magistrate as is contemplated in Section 463 of the Act
Section 463 reads 463 Punishment for offences relating to terminal tax
Whoever brings within the Union Territory of Delhi any goods liable to terminal tax without the payment of such tax shall on conviction be punishable with imprisonment for a term which may extend to six months or with the fine which may extend to one thousand rupees or with both and the court trying an offence under this section may on such conviction also confiscate the goods in respect of which the offence has been committed
 Sec 464 reads Penalty for evasion of terminal tax Where any goods imported into Delhi are liable to the payment of terminal tax any person with the intention of evading payment of the tax introduces or attempts to introduce or causes or abets introduction of any such goods within the Union Territory of Delhi upon which payment of terminal tax due on such introduction has neither been made nor ten dered shall be punishable with fine which may extend to ten times the amount of such termi nal tax
 It is significant that in Sections 463 and 464 the language used is that a 655 person who brings the goods into the Union Territory of Delhi liable to terminal tax without the payment of tax shall on conviction be punishable Whereas in Section 464 the Section talks of bringing the goods into the Union Territory on which terminal tax is due and is not tendered or paid a fine which may extend to ten times the amount of terminal tax could be levied
This different phraseology used in the two Sections clearly go to show that where the ingredients of Section 463 are not in doubt it is open to the corporation authorities to launch a prosecution against the person who introduces the goods without payment of terminal tax and in this event the person on conviction only can be punished but the pun ishment is also imprisonment but the highest limit of fine is limited to Rs 1000 whereas under Section 464 neither there is any reference to a conviction nor any reference to the Court of a Magistrate and the only penalty provided is monetary which may extend to ten times
It is therefore clear that Section 463 refers to a criminal offence if committed could only be tried by a competent criminal court and on conviction alone the punishment could be imposed but Section 464 is in the nature of a revenue provision where non payment of tax could be remedied by imposition of penal ty and the limit of penalty has been prescribed at ten times of the tax which is payable
In view of different language used in the two sections and also the language used in the marginal note it is clear that the two can not be said to be same or similar
Even the heading of the Chapter talks of Offences and Penalties
It therefore clearly appears that this chapter deals with two categories of matters i offences  and the other penalties  and the scheme of this Chapter indicates that so far as offences are concerned they could only be tried by a competent criminal court and punishment could only be awarded after conviction whereas so far as penalties are concerned they could be imposed by the taxing authority itself
Even the language or Sections 470 or 469 does not help the appellant in any manner
It is no doubt true that as regards the offences a specific provision has been made in Section 469 for appoint ment of a Municipal Magistrate but in respect of penalties there is no specific provision authorising any officer or authority to exercise jurisdiction under the Section where for evasion of tax penalty could be levied like Section 464 but it could not be doubted that Section 59 gives a very wide power to the Municipal Commissioner either to exercise these powers himself 656 or to delegate
It is not in dispute that in exercise of power under Section 59 the Municipal Commissioner had the authority and exercising the powers under Section 491 of the Act by notification dated September 17 1973 he delegated the functions under Section 464 to the taxing authorities and it is the conclusion that the taxing authorities were competent under the scheme of this Act to impose the penalty to the tune of ten times of the tax which is payable
Section 59 of the Act reads 59 Functions of the Commissioner Save as otherwise provided in this Act the entire executive power for the purpose of carrying out the provisions of this Act other than those pertaining to the Delhi Electric Supply Undertaking and of any other Act for the time being in force which confers any power or imposes any duty on the Corporation shall vest in the Commissioner who shall also a exercise all the powers and perform all the duties specifically conferred or imposed upon him by this Act or by any other law for the time being in force b prescribe the duties of and exercise supervision and control over the acts and proceedings of all municipal officers and other municipal employees other than the Municipal Secretary and the Municipal Chief Auditor and the municipal officers and other municipal employees immediately subordinate to them and subject to any regulation that may be made in this behalf dispose of all questions relating to the service of the said officers and other employees their pay privileges allowances and other conditions of service c on the occurrence or threatened occurrence of any sudden accident or any unforeseen event or natural calamity involving or likely to involve extensive damage to any property of the Corporation or danger to human fife take such immediate action as he considers necessary and made a report forth with to the Standing Committee and the Corpo ration of the action he has taken and the reasons for the same as also of the amount of cost if any incurred or 657 likely to be incurred in consequence of such action which is not covered by a budget grant d exercise the powers and perform the duties conferred or imposed by or under this Act upon the General Manager Electrici ty in this absence or on failure by him to exercise or perform the same This Section clearly shows that the Municipal Commissioner had wide powers and he could therefore exercise powers to impose the penalty as contemplated under Section 464
Sec tion 491 of the Act reads 491 Power to delegate functions of Commissioner The Commissioner may by order direct that any power conferred or any duty imposed on him by or under this Act shall in such circumstances and under such conditions if any as may be specified in the order be exercised and performed also by any municipal officer or other municipal employee specified in the order This Section authorises the Commissioner to delegate the authority vested in him and it is in exercise of these powers that in fact he had delegated the authority to the tax officer to exercise powers under Section 464
Under these circumstances therefore the contention advanced by the learned counsel for the appellant that the penalty under Section 464 could not be imposed without a conviction by a criminal court is not sustainable in law
We therefore see no reason to entertain this appeal
It is therefore dismissed
In the circumstances of the case par ties are directed to bear their own costs
GN Appeal dis missed


Summary:
On 20th February 1975 the State Government published a joint seniority list of teachers of subordinate Education Service belonging to the Boys branch and the Higher Second ary Teachers of the Subordinate Educational Service
This joint gradation list was challenged before the High Court but the writ petition was dismissed as also an application for review of the dismissal
The Special Leave Petition against the aforesaid decision was dismissed by this Court on 30th March 1981
The aforesaid single cadre known as Secondary Education Service was difurcated by the State Government by its Noti fication dated 8th November 1986 under which the Subordinate Education Service Teaching Branch Determination of Senior ity Rules were framed under the proviso to Article 309 of the Constitution This bifurcation scheme was challenged in the High Court
The stand of the Government was that the demand for such bifurcation was taken up in the legislature and in terms of the decision of the Implementation Committee of the Bihar Legislative Council the new scheme for bifurcation had to he implemented
The High Court by its decision dated 27th November 1987 quashed the Notification dated 18th November 1986 under which the bifurcation was done
The High Court was of the view that though the authority of the state to frame rules in terms of the proviso to Article 309 was unquestionable yet notice had to he tam of time fact that those who stood 659 together and fell in line to proceed further in the seniori ty list have to he provided all opportunities in respect of their avenues of promotion alike without breaking that order so that one who ranks higher in the grade may not go down in due course of service and held that the rules in the Notification dated 18th November 1986 were ultra vires Articles 161 and 14 of the Constitution
Dismissing the Special Leave Petition to this Court HELD The High Court rightly found fault with the State Government action and holding that the rules in the Notifi cation dated 18th November 1986 are ultra vires Articles 161 and 14 of the Constitution
660F Counsel for the State was not able to dislodge the conclusion that bifurcation was the outcome of an attempt to provide quick promotional avenues to those who were lower down in the joint cadre and would not have come within the range of consideration for promotional benefits but by bifurcation became entitled to such benefits
661C