wp3992-11.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3992 OF 2011 M/s.Rohit Infra Project Pvt Ltd & Anr .. Petitioners versus The Thane Municipal Corporation .. Respondent Mr.K.P.Anilkumar for the petitioners. Mr.R.S.Apte with Mr.A.R.Pitale for the respondent. CORAM : S.C.DHARMADHIKARI, J. 30th JUNE 2011. P.C.: . The matter is shown under the caption “Orders” as there were certain objections on the aspect of service, raised by the registry. At this stage itself, the writ petition is taken up for admission and disposed off. The petitioner is aggrieved and dissatisfied with a demand notice, a copy of which is at Annexure ‘A’ demanding octroi duty of Rs.6,48,300/- and 10 times penalty of Rs.64,83,000/-. Thus, in all Rs.71,31,300/- by the Assistant Commissioner (Octroi), Thane Municipal wp3992-11.doc 2 Corporation. 2 The petitioner has an alternate and equally efficacious remedy of appeal against this demand and the tax that has been levied on the goods brought within the octroi limits of the Corporation. That remedy is of an appeal under section 406 of the Bombay Provincial Municipal Corporation Act, 1949. The petitioner does not dispute that such an appeal is filed. That the petitioner has failed to deposit the tax demanded, is an admitted position. Yet, in the vacation, this writ petition was moved and without any notice to the Corporation, an ad-interim order has been made by this Court in terms of prayer clause (c) of this writ petition. That ad-interim order virtually allows the writ petition inasmuch as the direction is to remove the seal on the immovable property/factory premises of the petitioner and to allow the petitioner to use the same on a condition that it deposits Rs.6,48,300/- before the Appellate Authority. wp3992-11.doc 3 3 The grievance of Mr.Apte, learned senior counsel appearing on behalf of the respondent-Corporation is that the order passed is an ex-parte ad-interim order. It should be vacated forthwith. In terms of the statutory provisions, the petitioner has to comply and deposit the amount of tax that is demanded. If the demand notice is impugned and that includes the element of tax as also penalty, then, the entire amount thereunder must be deposited when condition to deposit is not found to be excessive or arbitrary or harsh in terms of the settled legal position. Yet, to by-pass the said appeal and knowing fairly well that it could stand dismissed for non compliance of this statutory condition, this writ petition has been filed only to obtain orders so as to thwart the measures of recovery of tax lawfully levied by the Municipal Corporation. All this has been done behind the back and without notice to the petitioner. 4 He, therefore, submits that not only the ad-interim order be vacated but the petition be dismissed. wp3992-11.doc 4 5 There is much substance in the objections of Mr.Apte and he invites my attention to the order dated 9th July 2011 of a Division Bench of this Court in L.P.A to challenge the ad- interim order. 6 After this matter was heard for sometime, Mr.Anilkumar, learned counsel appearing for the petitioner in all fairness stated that the petitioner will have to pursue the appeal and that too by complying with the statutory conditions. He fairly states that he cannot challenge the condition imposed by the statute to deposit the amount of tax demanded as a pre- condition for hearing of the appeal. He, therefore, prays that the ad-interim order may be continued and some time be given to the petitioner to comply with the statutory condition, so also argue the appeal. 7 Mr.Apte submits that by the ad-interim order the seal has been removed and the petitioners are carrying on the wp3992-11.doc 5 business activities even after evasion of payment of octroi. The petitioners have prevented the Corporation from recovering the tax in accordance with law. In these circumstances and going by the conduct of the petitioners, no discretionary and equitable relief can be granted in their favour. 8 After hearing both sides and disapproving strongly the conduct of the petitioners in approaching this Court and that too before learned Vacation Judge and taking an ad- interim order virtually allowing the writ petition without any prior notice to the Corporation but at the same time noticing that appeal is filed and it is pending, interest of justice will be served if this writ petition is disposed off with a direction that if the petitioners deposit the balance sum in the Court below (Appellate Court), within a period of two months from today, the appeal filed by the petitioners to challenge the octroi duty levied and the penalty vide demand notice dated 11th March 2011 shall be disposed off on merits and in accordance with law after hearing both sides. Needless to state that the appeal wp3992-11.doc 6 shall stand dismissed after period of two months, if this condition is not complied with. In no case any extension of time shall be granted to the petitioners. To enable the petitioners to comply with the condition imposed under this order, the ad- interim order passed in the vacation shall continue for a period of two months after which period it shall stand vacated without further reference to the Court and thereupon the Corporation can take all such measures, whether coercive or otherwise, to recover the tax in terms of the demand notice. Petition disposed off. No costs. Needless to state that if the amount is deposited, the Corporation can withdraw it. Further needless to clarify that all contentions on merits are kept open. (S.C.DHARMADHIKARI, J)