- (1.) THIS is a revision application by Chenraj and Mangalchand of one Bastimal Oswal of Sojat City.
(2.) THE facts which have given rise to this application are these. On 22. 6. 57 Bholaram, Chairman, Taxation Committee of Municipal Board, Sojat applied for a warrant of search and arrest under sec. 84 (2) of the Rajasthan Town Municipalities Act, 1951 (hereinafter called the "act") to a First Class Magistrate of Sojat. A search warrant was issued. Armed with this warrant Bholaram searched the shop of the applicants and seized 7 seers of chillies, 37 1/2 seers of ambole and 2 mds and 13 1/2 seers of Haldi on the allegation that octroi duty had not been paid on them. THE total octroi duty on these articles comes to less than annas four THE Magistrate issued only a search warrant and refused to issue a warrant of arrest. THE applicants were then prosecuted under sec. 84 (1) of the Act, which runs as follows: - "84. Penalty for selling articles liable to octroi without a licence or for being in possession of any such article on which octroi has not been paid.- (1) Any person selling or keeping for sale without a licence any article liable to octroi for the sale of which a licence is required to be obtained or having in his possesion any such article on which octroi has not been paid shall be liable, on conviction before a magistrate, to a fine not exceeding ten times the octroi due on all the articles so sold or kept for sale, or possessed or one hundred rupees whichever may be greater. " It is not disputed that no bye law has been framed by the Board requiring a licence for the sale of the above commodities. THE contention of the applicants is that the provisions of sec. 84 are only applicable to commodities which are liable to payment of octroi duty as well as for the sale of which a licence is needed. THE contention of the Municipal Board on the other hand is that the provisions are applicable even to commodities on which no octroi duty has been paid even though no licence may be needed for selling them. THE contention of the Municipal Board was accepted by the two courts below. A plain reading of the words of sec. 84 (1) goes to show that the provisions are only applicable to a commodity which is not only taxable with octroi duty but for the sale of which a licence is also needed. In the words "or having in his possession any such article on which octroi has not been paid" the word "such obviously" refers to an article liable to octroi for the sale of which a licence is required to be obtained. Sec. 59 (b) (iv) authorises the Municipal Board to impose an octroi on animals or goods or both brought within the octroi limits for consumption or use therein, Sec. 46 (1) (k) provides amongst other thing for the requiring of licence to be obtained for the sale of any article liable to octroi and prescribing the conditions on or subject to which such licence may be granted, refused, suspended or withdrawn. It is in respect of such commodities which are not only liable to octroi but for the sale of which a licence has also to be obtained under the provisions of sec. 46 (i) (k) that the provisions of sec. 84 (1) are applicable. It is only such articles which may be seized on a search warrant issued under sec. 84 (2) and for the possession of which the person in possession can be arrested. There seems to be no reason why the drastic provisions of sec. 84 should be extended by stretching the language of sub-sec. (1) of the section. Such a drastic provision is not found in any other Municipal Act. It is very difficult to prove that octroi duty has been paid on a certain article, which has no mark of identification. False allegations that octroi has not been paid can easily be made and the provision is liable to be abused easily. From this also it is clear that it could not have been the intention of the Legislature that such a drastic provision should apply to every commodity which is liable to octroi. Almost every commodity like gain, spices and other items of Kirana which are commonly used and sold in the market is liable to octroi duty. If a commodity needs a licence for its sale then the person applying for a licence would undoubtedly lay himself to search and arrest under the provisions of sec. 84 (2 ). I accordingly hold that the provisions of sec. 84 are not applicable in the case of the commodities which were seized from the possession of the applicants. Next it was argued on behalf of the Board that in any case the applicants can be prosecuted under sec. 82. Such a prosecution can only be launched by a person authorised by the Board in this behalf. Learned counsel for the Municipal Board was required to produce the resolution authorising Bholaram to file the complaint. With considerable hesitation he produced the minute book of the Board. This minute book shows that a meeting of the Municipal Board was held on 20. 6. 57 in which several resolutions were passed. In one of the resolutions relating to the building committee the words "and Shri Bholaram, Chairman Taxation Committee is given power under S. 84 and 82 of the Raja-sthan Town Municipalities Act" were inserted. This insertion is quite out of context in this resolution, which deals with construction matters. The first part of the resolution deals with construction of latrines. The second part which begins with a fresh line deals with the construction of roads. In between the two the above words were inserted. As the space which was left was not sufficient to insert all the above words part of the writing was above the line. It is clear that forgery was committed, prima facie at the instance of Bholaram to cover the unauthorised act of getting the premises of the applicants searched. Bye-laws on the point had already been framed by the Board which received the sanction of the Government on 9. 3. 54. Bye-law No. 31 shows that only an officer authorised by the Chairman of the Municipal Board can obtain a warrant of search from a Magistrate. There is nothing to show that the Chairman ever authorised Bholaram to obtain a search warrant to get the premises of the applicants searched. Bholaram had therefore neither the authority to obtain a warrant of search nor the authority to file the complaint. I accordingly allow the application and quash the proceedings. The seized articles should be returned to the applicants forthwith. As the municipal records appear to have been forged the minute book shall be forwarded to the Government with a copy of this order by the Registrar after affixing his signatures on the last page of the minutes of 20. 6. 57 containing the interpolation referred to above and affixing the seal of the High Court, for such action they may deem fit to take. .;