G H SAIYAD Vs. SITABEN GOPALDAS
LAWS(GJH)-1970-11-5
HIGH COURT OF GUJARAT
Decided on November 14,1970

G.H.SAIYAD Appellant
VERSUS
SITABEN GOPALDAS Respondents


Referred Judgements :-

INCOME-TAX COMMISSIONER V. A. RAMAN AND CO. IS CONCERNED WHAT HAS BEEN OBSERVED BY SHAH J. [REFERRED]
ROSS CLUNIS V. PAPADOPOULLOS AND OTHERS [REFERRED]
BARIUM CHEMICALS LIMITED VS. COMPANY LAW BOARD [REFERRED]
COMMISSIONER OT INCOME TAX GUJARAT VS. A RAMAN AND CO [REFERRED]


JUDGEMENT

B.J.DIVAN - (1.)The appellant herein is an Octroi Inspector of the Ahmedabad Municipal Corporation and had filed a complaint against the first respondent for an offence alleged to have been committed by the first respondent the original accused under sec. 399 of the Bombay Provincial Municipal Corporation Act 1949 hereinafter referred to as the Act. The allegation against the accused in the complaint was that a requisition in Schedule I was issued under rule 11 of the Octroi Rules of the Corporation and yet the accused to whom this requisition was issued had failed to comply with that requisition and that thereby she committed an offence punishable under sec. 399 of the Act read with rule 11 of the Octroi Rules for failure in complying with the requisition. Under this requisition in Schedule I the original accused was called upon to furnish detailed information regarding the goods imported namely dry fruits country medicines etc. imported by the original accused in her capacity as the owner of a firm called Gandhi Chhotalal Mohanlal. The accused was requested to return the requisition form duly filled in and signed by her giving the facts about the goods imported.
(2.)After the requisition form was issued on September 4 1967 it was duly served upon the original accused where after some correspondence took place and the authorities found that the accused had not complied with the requisition. The complaint in respect of the offence punishable under sec. 399 of the Act read with rule 11 of the Octroi Rules was filed in the Court of learned City Magistrate 8 Court Ahmedabad. Before the learned Magistrate four points were urged on behalf of the accused. The first point was that rule 11 of the Octroi Rules was not valid as it did not fall within the purview of sec.457 of the Act read with sec. 149(1) together with sec. 127(2) of the Act. The second contention was that there was no delegation of power in favour of the Octroi Superintendent to form a particular opinion or to entertain the reasonable belief referred to in rule 11 of the Octroi Rules and therefore the requisition form issued was not a valid requisition contemplated by rule 11 of the Octroi Rules. The third contention was that the learned City Magistrate could not take cognizance of this particular case as he was not a Special Magistrate as set out in sec. 422 of the Act. The fourth and the last contention of the learned advocate was that under Rule 11 of the Octroi Rules it was requisite that either the Municipal Commissioner or any other officer authorised in this behalf should form the opinion referred to in that rule or must have reason to believe as set out in that rule. It was contended that this opinion or reason to believe may be a subjective matter of opinion of the officer concerned but there must be objective facts on the basis of which the opinion can be entertained or there can be said to be reason to believe and it was contended that in the instant case there were no objective facts on which the officer concerned had formed his opinion but he had formed his opinion merely on suspicion and surmises. Out of these four contentions the learned City Magistrate who tried the case rejected the first three contentions but the fourth contention found favour with him and he accepted the same and acquitted the accused. Thereafter the original complainant applied for leave under sec. 417 of the Criminal Procedure Code to file an appeal. That leave was granted? and thereafter the present appeal has been filed. The very same four contentions were also urged before me at the hearing of this appeal on behalf of the respondent accused .
(3.)Taking up the point which found favour with the learned City Magistrate the main contention on behalf of the accused was that under rule 11 of the Octroi Rules the Commissioner of the Municipal Corporation or any other officer authorised in this behalf should form the opinion or must have reason to believe that it is necessary in the interest of municipal revenue to issue a requisition notice as per Schedule I or in such a form as may be prescribed by the Municipal Commissioner and if such an opinion is formed or if there is such belief then the requisition notice contemplated by rule 11 can be issued. Relying upon the decision of Shelat J. in Berium Chemicals Ltd. v. Company Law Board A.I.R. 1967 S.C. 295 it was urged before me that there must be objective facts in existence and it is only in the light of those objective facts that the opinion can be formed or belief can be entertained. It was contended before me that it was not open to the Court to examine the sufficiency or adequacy of the grounds but if there are no grounds whatever or if the grounds are such as no reasonable person would believe or if the grounds have no rational connection with the subject matter in such cases the Court can hold that the opinion was not formed or that there was no reason to believe as contemplated by rule 11. At p. 323 of the report in Barium Chemicals case Shelat J. has observed in para 60:-
Though an order passed in exercise of power under statute cannot be challenged on the ground of propriety or sufficiency it is liable to be quashed on the ground of mala fides dishonesty or corrupt purpose. Even if it is passed in good faith and with the best of intention to further the purpose of the legislation which confers the powers since the authority has to act in accordance with and within the limits of that legislation its order can also be challenged if it is beyond those limits or is passed on grounds extraneous to the legislation or if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation. In any one of these situations it can well be said that the authority did not honestly form its opinion or that in forming it did not apply its mind to the relevant facts. Again in para 63 at p. 324 of the report Shelat J. has observed:-

The words reasons to believe or in the opinion of do not always lead to the construction that the process of entertaining reason no believe or the opinion is land altogether subjective process not lending itself even to a limited scrutiny by the Court that such a reason to believe or opinion was not formed on relevant facts or within toe limits or as Lord Radeliffe and Lord Reid called the restraints of the statute as an alternative safeguard to rules of natural justice where the function is administrative.



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