SINGH, J. - (1.) THE facts giving rise to the instant Writ Petition under Article 226 of the Constitution of India are as under:
(2.) THE petitioner company, National Engineering Ltd. is a company within the meaning al Companies Act, 1956 and carries on the business of manufacture and sale of various products, inter-alia, axle boxes, balls, roller bearing etc. THE company has its factory at Jaipur and has a valid licence to carry on aforesaid business. It is alleged that for the purposes of manufacture of its finished products, the petitioner company also manufactures various components of bearings, for which various manufacturing and testing machines are required. For improving the quality of the products of the company, the petitioner imported advanced and sophisticated machines from Japan and U. S. A. THE machines are alleged to have been received at the Madras Sea Port. THE custom duty as per tariff prescribed under Chapter 84 was paid by the petitioner company on the aforesaid imported machines. THE machines were thereafter despatched to Jaipur by various consignments from time to time. It is relevant to state that under the provisions of the Rajasthan Municipalities Act, 1959 (hereinafter to be referred to as the "act of 1959") the Municipal Boards have been empowered to establish check posts for collecting octroi. The our-post, which is relevant for the purposes of present writ petition, is the out post established at Ajmer road. It appears that a dispute arose regarding imposition of octroi duty by the Municipal Board of Jaipur on the consignments which were brought by the petitioner to Jaipur. It is alleged that the petitioner company filed separate writ petitions in respect of each consignment received in Jaipur, in this court, in which interim orders were passed directing the respondent Municipal Board to allow the arrival of imported consignments of the petitioner within the limits of Jaipur Municipal corporation on furnishing bank guarantee by the petitioner. The writ petitions filed by the petitioner were contested by the Municipal Corporation. Jaipur and the main objection raised by the Municipal Corporation, as alleged by the petitioner, is that the petitioner had an alternate remedy under the Act of 1959 of filing an appeal and, secondly that the questions involved in the writ petitions are disputed questions of facts, which cannot be suitably adjudicated upon in the writ jurisdiction under Article 226 of the Constitution of India. Learned Single Judge after hearing the parties, dismissed the writ petitions filed by the petitioner by the judgment which was rendered on 27. 05. 1993, upholding the preliminary objection raised by the respondents. Subsequently, the petitioner company filed special appeals against the judgment of the learned Single Judge of this Court and the aforesaid special appeals were disposed of by a Division Bench of this Court on 8. 11. 1993. A copy of the judgment passed in the special appeals has been filed by the petitioner as Annexure-1 to this writ petition. A perusal of the judgments passed by the Division Bench of this Court in the special appeals indicates that the Division Bench fully agreed with the view of the learned Single Judge on the question of alternate remedy and did not express any opinion on the merits of the claim of the petitioner. However, the Division Bench while disposing of the special appeals, issued certain directions to the Corporation in the following words: "octroi shall be charged at the octroi post in accordance with the description of the goods, which is accepted for the purposes of custom duty and a declaration should be obtained from the parties bringing the goods within the Municipal limits that it would pay the balance amount immediately after passing of the assessment order and appeal may be heard only after the assessed amount is deposited, of - course always subject to the decision in appeal. Though it appears to be an unusual order, but this is essential to strike the balance between the parties bringing, the goods within the Municipal limit and the Municipal Corporation. It will also be lawful for the Corporation to insists for an under-taking/bank guarantee for payment of balance amount within a week of passing of the assessment order. " It is alleged that after the decision of the special appeals by the Division bench of this Court, the respondent Corporation sent a letter dated 23. 12. 1993 to the State Bank of Bikaner and Jaipur, S. M. S. High-way, Chaura Rasta Branch, Jaipur seeking to invoke the bank guarantee in respect of SBJ 209/92. It is alleged that similar letter was also addressed by the respondent Corporation to the United Commercial Bank, Johari Bazar, Jaipur. Copies of these letters have been annexed as Annexures 2 and 3 to the writ petition. It is alleged that vide letter dated 28. 12. 1993, the petitioner company informed the respondent No. 1 that in view of the judgment dated 8. 11. 1993 passed by the Division Bench in the special appeals, the Municipal Corporation has to reassess the octroi payable by the petitioner as directed by the Division Bench in its judgment dated 8,11. 1993 and the petitioner is alleged to have requested the respondents to desist from getting the bank guarantee encashed without passing the reassessment order of octroi payable by the petitioner. The petitioner is also alleged to have addressed letters to respondents No. 2 and 3 and asserted that the bank guarantee could not be encashed in pursuance to the assessment order dated 28. 12. 1993. It is alleged that since the respondent Corporation was pressing for encashment of the bank guarantee furnished by the bank, the petitioner has approached -this court in the instant petition with the prayers for (a) for issuance of writ of certiorari quashing and setting aside the letter dated 23. 12. 1993 addressed by the respondent No. l to the respondents No. 2 and 3; (b) for issuance of writ of mandamus or a writ/order/direction restraining the respondent No. 1 form enforcing the bank guarantee without passing the reassessment order of octroi payable by the petitioner. Counter affidavit has been filed on behalf of the respondent Corporation. In para 6 of the counter affidavit, it has been specifically stated that in the 11 writ petitions filed by the petitioner challenging levy of octroi, which were disposed of by the learned Single Judge, the assessment order had been passed. The fact is not disputed that the assessment orders passed by the Corporation authorities were appealable under Section 139 of the Act of 1959 and Rule 40 of the Rajasthan Municipalities (Octroi) Rules, 1962. It has also been stated in the counter affidavit filed on behalf of the Corporation that a plea was raised before the learned Single Judge that he machines which were being imported by the petitioner Company were highly sophisticated computerized electronic machines, which were liable to be assessed under item No. 69 (e) of the Octroi Schedule dated 5. 12. 1991 and it was alleged on behalf of the respondents before the learned Single Judge that since this was a disputed question, it could not be adjudicated upon in writ jurisdiction and could be decided by the authorities under the Act and since the petitioner had not exhausted statutory alternative remedy available under the Act, the petition filed by the petitioner challenging levy of octroi by the respondent Corporation deserves to be rejected on the aforesaid ground.
(3.) I have heard Shri Alok Sharma, learned counsel appearing for the petitioner and Shri K. K. Mehrish learned counsel, appearing , for Respondent Municipal Corporation, Jaipur. Learned counsel for the petitioner vehemently urged that the action of the respondents in getting the bank guarantee during tendency of the writ petition furnished by the petitioner in this court, was wholly illegal arbitrary and in utter disregard of the directions issued by the Division Bench of this Court while disposing of the special appeals. He contended that in pursuance of the directions issued by the Division Bench of this Court, the respondents were duty bound to have passed fresh assessment orders against the petitioner and, in fact, it is submitted that the matter has been remanded to the Corporation and unless fresh assessment ourder was passed, the bank guarantee furnished by the petitioner during the pendency of the writ petition could not be encashed. I have no hesitation in saying that the argument advanced on behalf of the petitioner is wholly misconceived and deserves to be rejected out-right. Though the counsel for the petitioner very candidly conceded that the view of the learned Single judge that the petitioner had an alternate remedy, the questions involved could not be adjudicated in writ jurisdiction, was fully endorsed by the Division Bench while disposing of the special appeals against the judgment of the learned Single Judge, but the contention of the counsel for the petitioner is that in view of the directions contained in the judgment of the Division Bench, fresh assessment orders should have been passed. I have already referred to the relevant portion of the judgment of the Division Bench of this Court and I am of the definite view that there is no direction by the Division Bench of this Court that if the assessment order has been passed by the assessing authority against the petitioner, fresh assessment orders were to be passed. The interpretation put by the learned counsel for the petitioner to the observations contained in the D. B. judgment of this court, to my mind does not amount to remanding the matter or directing the authorities to pass fresh assessment orders and the directions contained in the judgment of the Division Bench, in fact, fire the directions to be followed by the respondent Municipal Corporation for the future transactions made by the petitioner but in cases where the assessment orders have already been passed by the assessing authority, it is implicitly clear from a perusal of the directions of the Division Bench of this Court that there was no direction for passing fresh assessment order. The interpretation put forth by the learned counsel for the petitioner cannot be accepted and deserves to be rejected. For deciding the controversy in the present case, it is relevant to state at this stage that the interim order directing the petitioner to furnish bank guarantee against the consignment, was passed at the time of admission of the writ petition, but the learned Single Judge dismissed the petitions of the petitioner on the ground of alternative remedy and also on the ground that the questions involved in the writ petition was the disputed questions of fact. I would like to refer to the following view taken by the learned Single Judge while dismissing the writ petition, which is as under: "the respondents have already assessed octroi duty on the machines which were imported by the petitioner company and as such the petitioner company should have filed appeals before the competent authority. Further more, whether the machines are electronic or computerized or simple machines, are the disputed questions of fact, which cannot be gone into in these writ petitions and as such I allow the preliminary objection raised by the counsel , for Respondents and dismiss the writ petitions. " ;