1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.758 of 2006 IN SECOND APPEAL NO. 528 OF 2006 Pune Municipal Corporation Shivaji Nagar, Pune. .. Applicant V/s. Ashok Vitthalrao More & Ors. ..Respondents Mr.R.M.Pethe a/w. Mr.R.G.Ketkar for the Appellant/Applicant. Mr.Dilip Bodake for the Respondents. CORAM : R.M.SAVANT, J. DATED : 5TH SEPTEMBER, 2008. P.C. By the above Civil Application, the Applicant prays for interim relief pending the Appeal in the following terms: “a) That pending admission, hearing and final disposal of the present second appeal, the implementation, operation and execution of the Judgment and decree dated 2 4/3/2006 passed by the 5th Additional District Judge, Pune in Civil Appeal No.205/2004 and of judgment and decree dated 15/3/2004 passed by the Civil Judge, Junior Division, (Pune Municipal Corporation), Pune in Regular Civil Suit No.1427/1998, be stayed.” 2. The Applicant/Appellant is the original Defendant in the suit filed by the Respondent No.1 to 3 herein for declaration and permanent injunction as regards the payment of Octroi to the Appellant Municipal Corporation under the Octroi Rules of the Corporation. The said Regular Civil Suit No.1427 of 1998 filed by the Respondents was decreed and the Appellant was restrained from charging the Octroi in terms of Rule Nos.14 to 16 of the Octroi Rules of the Applicant Corporation. The Applicant Corporation was also restrained from adopting any other procedure for imposition of octroi, as regards the transportation of cement from import naka to export naka and were allowed to charge only transit fees. The said decree of the 3 Trial Court dated 15th March, 2004 was confirmed by the First Appellate Court by its judgment and decree dated 4th March, 2006. 3. The above Second Appeal has been admitted on the substantial question of law as mentioned in the order dated 4th June, 2007 passed by a learned Single Judge of this Court. 4. The said substantial question of law is as under : “Whether the suit filed by the Respondents/Plaintiffs challenging the recovery of Octroi under Rule 14 of the Octroi Rule was maintainable more so when the Plaintiffs had a statuary remedy of Appeal under section 406 of the Bombay Provincial Municipal Corporation Act, 1949 ?” 5. It is the case of the Applicant that the Respondents by adopting a particular procedure in 4 the matter of issuing invoices are trying to defraud the Applicant corporation by not paying Octroi which is legitimately due to it. It is further contended on behalf of the Applicant that the documentation is done in such a manner to inter alia show that the consignment of cement is immediately exported. It is therefore contended on behalf of the Applicant that a public body is being sought to be deprived of a tax which is legitimately due to it, by an ingenious method adopted by the Respondent Nos. 1 to 3. It is therefore prayed that the Civil Application be allowed in terms of prayer clause 'a' which is reproduced herein above. 6. Per contra, it is contended on behalf of the Respondents that the relief in terms and to the extent sought in the above Civil Application was also sought pending the said suit. However, the said relief was turned down by the Trial Court and 5 therefore there is no order operating in favour of the Applicant above named since the filing of the above suit till date. It is further submitted on behalf of the Respondents that granting the relief sought in the Civil Application would amount to allowing the Appeal at the interlocutory stage. 7. No doubt, that there is no relief operating in favour of the Applicant, till this date, however, the fact that the Applicant is a Municipal Corporation carrying out its duties and functions under the Provisions of the B.P.M.C.Act, 1949, would therefore require that the interest of Applicant is protected pending the final disposal of the above Second Appeal, though no relief in terms of prayer clause 'a' of the Civil Application can be granted, in my view, the interest of justice would be served if the following directions are issued. 6 “(i)Respondent Nos. 1 to 3 to submit tax invoices, VAT receipts, delivery challans for each consignment which is loaded to the Appellant Corporation for every week by Thursday of the succeeding week. (ii) Respondent Nos.2 and 3 to give an undertaking through a responsible officer that in the event the Applicant succeeds in the Appeal, Respondent Nos. 2 and 3 undertake to pay the Octroi duty found due payable by the said Respondents, the undertaking is restricted to only the goods which are supposedly exported by the Respondents out of the limits of the Applicant Corporation. The undertaking to be filed within four weeks. (iii) It is clarified that in case of cement which is meant for consignment 7 within the limits of the Applicant Corporation, the Respondents would be liable to pay Octroi as found due and payable.” 8. The Civil Application is allowed to the aforesaid extent and Rule on the Civil Application is, accordingly, made absolute. 9. Considering the issue involved, the hearing of the appeal is expedited. The learned counsel for the Appellant to file private paper book within two months from date. On such paper book being filed, liberty to the Applicant to apply for a fixed date of hearing for the above Appeal in the first week of December, 2008. [R.M.SAVANT, J.] 8