- (1.) TWO reliefs have been sought in this writ petition: FOR quashing of an order dated 17th September, 1984, which is an order of assessment, and
(2.) FOR the issue of a writ of mandamus directing the Respondents to restore the properties of the Petitioners illegally seized on 18th July, 1984. In regard to relief No. 1, a Division Bench of this Court on 9th October, 1984, when the writ petition was presented, took the view that since the Petitioners has not only an alternative remedy of preferring an appeal before the State Government, they had already preferred an appeal, which was pending, no case for entertaining a writ petition has been made out. In this view of the matter, the writ petition stands already dismissed by that order, in so far as relief No. 1 is concerned. 2. In regard to relief No. 2, it is necessary to give certain facts. According to the case of the Petitioners, Petitioner No. 1 is a club registered under the provisions of the Societies Registration Act and has been showing video films to the members of the club. Their further case is that on 18th July, 1984 the Sub -Divisional Magistrate, Jhansi inspected the premises of the Club and took away with him the following articles: (a) VCR (National Panasonic No. 300). (b) colour TV (Beltex) 51 c.m. size. (c) one sound -box. (d) one stabilizer. (e) one video Casset. Their case is that the Sub -Divisional Magistrate, Jhansi did not have any jurisdiction to seize the aforesaid articles and consequently the Petitioners are entitled to the second relief prayed for in this writ petition. A counter affidavit has been filed, so has been filed a rejoinder affidavit. Having gone through these affidavits and the facts stated in the writ petition, we are of the opinion that it is a fit case which may be finally decided at this very stage as contemplated by the second proviso to Rule 2 of Chapter 22 of the Rules of Court.
(3.) WE have accordingly heard counsel for the parties on the merits of the case, as far as relief No. 2 is concerned. From a perusal of the counter affidavit it appears that the Petitioner had made an application before the Chief Judicial Magistrate, Jhansi for a direction to release the articles aforesaid in favour of the Petitioners. The said application was, however, dismissed. The Petitioners thereupon preferred a revision before the Sessions Judge, Jhansi and the revision also was dismissed on 6th September, 1984. A copy of this order has been filed as Annexure '7' to the writ petition. Its perusal indicates that the Chief Judicial Magistrate, Jhansi as well as the Sessions Judge, Jhansi came to the conclusion that the seizure of the goods, if it purported to have been made in connection with any offence, was illegal. However, these officers refused to release the goods in favour of the Petitioners, on the representation made on behalf of the Respondents that the said articles had been seized by the Sub -Divisional Magistrate, Jhansi inasmuch as the Petitioners were under a liability to pay Entertainment Tax. In other words, the seizure was sought to be justified on the ground that it was made for realization of the Entertainment Tax dues. This having been furnished as the reason for the seizure and detention of the articles aforesaid, the Chief Judicial Magistrate, Jhansi as well as the Sessions Judge, Jhansi rightly came to the conclusion that acting under the provisions of the Code of Criminal Procedure, they were not entitled to order release of those articles. The crucial question, therefore, for consideration is, as to whether the Sub -Divisional Magistrate Jhansi had any jurisdiction to seize the aforesaid articles for recovery of Entertainment Tax dues, even if the liability of the Petitioners to pay the said dues is accepted. No provision of law has been brought to our notice by the Standing Counsel appearing for the Respondents which entitled the Sub -Divisional Magistrate, Jhansi to seize the aforesaid articles and to retain them for recovery of the Entertainment Tax dues. If the Petitioners were in arrears of the aforesaid dues, the proper course for the concerned authorities was to issue a recovery certificate to the Collector, Jhansi for realization of these dues and it was only the Collector Jhansi in proceedings for recovery of the dues on the basis of the recovery certificate, who could proceed to take such steps, as were considered necessary for realization of the dues. The Sub -Divisional Magistrate on his own could not seize the aforesaid articles and retain them simply because according to him the Petitioners were in arrears of Entertainment Tax dues. The seizure of the articles and their retention is consequently without jurisdiction. The writ petition, therefore, deserves to be allowed in so far as the second relief is concerned.;