CW 3255/98 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. Civil Writ Petition No.3255/98 M/s. Raghuvar [India] Limited & Anr. Versus State & Ors. DATE OF ORDER : 26/02/2009 HON'BLE MR. JUSTICE AJAY RASTOGI Mr. Anant Kasliwal, for petitioner Mr. Chetan Bairwa, Addl. Govt. Counsel, for State Mr. K.K. Mehrishi, for respondents 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notice of this court that the octroi which was levied in pursuance of notification dt.15th December, 1995 was finally withdrawn by the Government vide its notification dt.31st July, 1998 w.e.f. 1st August, 1998 and in view of later notification, octroi stands withdrawn by the Government. Counsel for respondents has raised CW 3255/98 [2] 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. Vs. Union of India [(1997) 5 SCC-536]. 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 CW 3255/98 [3] 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. Respondents counsel has also disputed and has tried to convince this court that octroi has rightly been charged in terms of item No.48 of CW 3255/98 [4] the notification and no error was committed by the Assessing Authority in charging octroi in regard to goods which were brought in the municipal area in terms of notification. I have heard counsel for parties and perused the material on record. Rule 40 of Rajasthan Municipalities [Octroi] Rules, 1962 provides remedy of appeal to a person who is aggrieved by the order of Superintendent [Octroi] or Executive Officer, as the case may be and if order is of Superintendent it lies to the Executive Officer and if Executive Officer has made assessment appeal lies to the Board. Indisputably, without availing remedy of appeal, petitioner approached this court assailing action of the respondents under Art.226 of the Constitution. Ordinarily, remedy of appeal is to be exhausted before invoking writ jurisdiction of this court but alternative remedy has been consistently held by Apex Court not to operate as bar atleast in three contingencies where (1) writ has been filed for enforcement of any fundamental right or (2) there has been violation of principles of natural justice or proceedings are wholly without jurisdiction or vires of the Act is under challenge but the case of present petitioner does not fall within any of exceptions CW 3255/98 [5] (supra), for which remedy of appeal would be bye- passed. That apart, there cannot be a bald proposition that writ once admitted cannot be dismissed on the ground of alternative remedy, in view of what has been recently considered by the apex court in State of UP Vs. UP Rajya Khanij Vikas Nigam S.S. (2008 AIR SCW 6086) and observed ad infra: 38. Even otherwise, the learned Judge was not right in law. True it is that issuance of rule nisi or passing of interim orders is a relevant consideration for not dismissing a petition if it appears to the High Court that the matter could be decided by a writ-Court. It has been so held even by this Court in several cases that even if alternative remedy is available, it cannot be held that a writ-petition is not maintainable. In our judgment, however, it cannot be laid down as a proposition of law that once a petition is admitted, it could never be dismissed on the ground of alternative remedy. If such bald contention is upheld, even this Court cannot order dismissal of a writ petition which ought not to have been entertained by the High Court under Article 226 of the Constitution in view of availability of alternative and equally efficacious remedy to the aggrieved party, once the High Court has entertained a writ-petition albeit wrongly and granted the relief to the petitioner.” Moreover, the dispute remained pending for very short period since the petitioner filed instant petition somewhere in June, 1998 and from 1st CW 3255/98 [6] August, 1998 the very octroi was withdrawn by the Government under its notification dt.31/7/98 and when there was no stay operating, the matter must have been settled by now. Taking the matter in totality into consideration, this court does not consider appropriate to examine the issue on merits particularly when remedy of appeal was available at the relevant point of time to the petitioner to be exhausted first before approaching this court U/Art.226 of the Constitution of India. Consequently, this court finds no substance to interfere in instant petition, the same stands dismissed. No order as to costs. [AJAY RASTOGI], J. FRBOHRA3255CW98 26-2FRB.doc