1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Writ Petition No. 2148/2008 Shri Mukund M. Agrawal and ors ..vs.. The Municipal Council, Achalpur. ----------------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. Shri F.T. Mirza. Advocate for petitioners. Shri A. B. Patil, Advocate For R-sole. CORAM : B. H. Marlapalle and A. H. Joshi, JJ. Dated : 11th November, 2008. Heard Shri Mirza the learned counsel for the petitioners and Shri Patil, the learned counsel for respondent- sole. The petitioners are aggrieved by the bill of demand issued by Municipal Council, Achalpur dated 10/10/2006. By the said bill of demand, an outstanding amount of octroi has been claimed at Rs. 10,45,420/-. In addition, the Municipal Council has claimed penal charges at 10 times to the principal amount i.e. 10,45,420 X 10 and thus, the total amount of penalty comes to Rs. 1,04,54,200/-. This Court by earlier order dated 02/06/2008 had directed the petitioners to deposit the principal amount of bill of demand of Rs. 10,45,420/- Shri Patil appears on behalf of 2 Municipal Council, Achalpur and states that the amount has not yet been deposited. The Municipal Council filed affidavit in reply and has stated that pursuant to the order passed by the Hon'ble Supreme Court on 26th April 2006 in Civil Appeal No.915-916/2001, the Municipal Council has taken due steps and issued the impugned bill of demand. It has been further stated that under Section 169 of the Maharashtra Municipal Councils Nagar Parishads and Industrial Townships Act, 1965(hereinafter referred to as the 'Municipalities Act”, for short), there is a remedy of appeal and when the said statutory remedy is available, this petition under Articles 226 & 227 of the Constitution of India, is not maintainable. The learned counsel for the petitioners has invited our attention to the provisions of Section 139 of the Municipalities Act and states that the said section as of now has been deleted by the amendment of 1999 by the State Government. Section 139 read as under : “Where any animal or goods passing into a Municipal Area are liable to the payment of octroi, any person who, with the intention of defrauding the council, causes or abates the introduction of or himself introduces or attempts to introduce within the octroi limits of the council any such animal or goods upon which the payment of Octroi due on such introduction has neither been made nor tendered, shall, on conviction, be punished with fine which may extend to 10 times the amount of 3 such octroi or two hundred rupees, whichever may be greater.” The learned counsel for the petitioners, therefore, submitted that when the appeal is required to be filed under Section 169 of the Municipalities Act, the appeal shall not be registered/entertained unless the entire amount of the bill of demand is deposited and the Municipal Council does not have the Authority to impose 10 times penalty unless the order of conviction has been recorded against the petitioners. The said issue has been decided by this Court in the case of M/s.Dhoot Agencies Pvt. Ltd. ..vs.. Aurangabad Municipal Corporation and others reported in AIR 2000 BOMBAY 246 and, therefore, it would not be permissible for the Municipal Council to demand penal charges unless an order of conviction has been passed against the petitioners. We, therefore do not see any justification in calling upon the petitioners to deposit an amount of penal charges when an appeal under Section 169 of the Municipal Act is filed by them. However, the petitioners shall have to deposit the principal amount of Rs.10,45,420/- in obedience of the order passed by this Court on 2/6/2008 while filing the appeal. We therefore, dispose off the petition with liberty to the petitioners to file an appeal under Section 169 of the Municipalities Act along with an application for condonation of delay. While considering the said application for condonation of delay, the period of pendency of this petition from 28/3/2008 shall be taken into consideration, if the appeal is filed within a 4 period of two weeks from today. We further direct the petitioners to deposit an amount of Rs. 10,45,420/- with the Municipal Council at the time of filing the appeal. With these directions, the petition is disposed of. JUDGE JUDGE. Andurkar.