Bapna, J. - (1.) THIS is a revision by Nathilal and Shri Bhagwan. who are carrying on business at Dholpur. under the name and style of Nathilal Shri Bhagwan. They were convicted by the learned Magistrate, First Class, Dholpur on 14. 6. 58 on a charge under sec. 84 of the Rajasthan Town Municipalities Act, 1951, and sentenced to a fine of Rs. 50/- each. The revision filed by the accused was dismissed by the Additional Sessions Judge of Dholpur on 26. 7. 58.
(2.) THE case for the prosecution, as set out in the complaint was that the accused brought into the limits of the Municipality a truck containing 180 bags of sugar, weighing 495 mds. . but did not pay the octroi duty chargeable thereon. It was alleged that a third accused, Munshi, who was driver of the truck, was accosted at the Octroi Outpost, and the accused were asked to pay the octroi duty before proceeding further in the town, but the driver did not stop the truck, and the two accused carried the truck-load of sugar bags in the town. It was then alleged that the two accused were selling at their shop sugar out of the said lot, some of which was still in their possession, and they should be punished under sec. 84 of the Town Municipalities Act. The relevant portion of sec. 84 of the Town Municipalities Act is as follows : - "any person having in his possession 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 possessed or one hundred rupees whichever may be greater". The accused denied the charge, and pleaded that on the imposition of the octroi tax in the town of Dholpur, there was great public agitation against the imposition, and on 2. 3. 56 a compromise was arrived at between the town people and the Chairman of the Municipal Board, by which it was agreed that the schedule of taxes would be revised in 3 or 4 days through the assistance of Master Adityendra President of the Provincial Congress Committee, and such revised rates will be sent to the Government for sanction. It was provided that if the merchants, the Chairman of the Municipal Board, and Master Adityendra were not agreed as to the change to be made to the Schedule, the matter will be referred to the Rajasthan Government, and the decision of the Government will be acceptable to everybody concerned. It was provided that in the meanwhile, the merchants may continue to import goods, details whereof will be noted at the Octroi Outpost, and that there would be no collection of any tax until the rates are revised as aforesaid, and on such revision the octroi duties will be chargeable according to the revised rates. It was then pleaded that the accused in accordance with the agreement, gave details of the imports of this sugar at the outpost, and the document was Ex, P. 1, produced by the prosecution. A plea was also taken that the imposition of tax was not in accordance with law. The learned Magistrate held that the imposition was in accordance with law. and the agreement as pleaded was proved, but that it was not binding on the Municipal Committee of Dholpur. He held that there was no intention to defraud the Municipal Board, and the details were given at the Octroi Outpost in accordance with the agreement. In view of the finding, however, that the agreement was not of binding nature on the Municipality, he convicted the accused for being in possession of goods liable to octroi duty without paying the same. The learned Sessions Judge also was of the same opinion. Hence this revision. A copy of the agreement between the Chairman of the Municipal Board and the town's people of Dholpur is exhibited as Ex. D. 2 on the record. Its genuineness is not disputed. The details given at the Octroi Outpost is Ex. P. 1. It is written on behalf of the accused, and is dated 26th September, 1956. Its relevant portion is as follows : - "we have received 180 bags of sugar, 495 mds. in weight from Buland Shahar to Dholpur, the octroi duty whereof has not been paid in accordance with the agreement of 2. 3. 56". The relevant portion of section 84 of the Town Municipalities Act has already been quoted above. It is impossible to think that in every case of non-payment the person in possession could be held guilty because cases can be conceived where, for instance, there may be nobody at the Octroi Outpost to collect the chungi, when the goods are passing by that outpost. Therefore, in cases where the importer is willing to pay duty, but the duty is not collected for other reasons, sec. 84 would not become applicable. There must be the element of evasion of duty in order that sec. 84 may become applicable. In the present case, the goods were openly brought into the town, and their detail was intimated to the Octroi Outpost, and the accused only claimed to pay such duty as may be finally adjudged to be proper duty in accordance with the proposed revision in contemplation in March, 1956. Learned counsel for the Board contends that the agreement was arrived at in March, but the import and non-payment of duty took place in September when that agreement cannot be said to be subsisting. It was contended that the agreement, which may have been arrived at by the Municipal Board, was of no legal effect, since it had not received any sanction from the Government, if that agreement may be taken to be a suspension of the right to recover the tax. In this connection, attention was drawn to sec. 45 of the Town Municipalities Act. This section permitted a Municipal board for any sufficient reason to suspend, modify or abolish any existing tax by suspending, altering or rescinding any rule prescribing such tax. But this power is to be exercised subject to the requirements of proviso (1) to sec. 44 of the Act. That proviso stated that no rule made or any altera-tion or rescision of a rule made by a Municipal Board under sec. 44 shall have effect unless and until it has been approved by the Government. The Municipal Board is quite right in saying that the agreement between the Chairman of the Board and the town's people did not have any valid effect of suspending, altering or rescinding the rules previously sanctioned by the Government for the imposition of the tax. But the question in the present case is not whether the tax can be recovered, but the question is whether the accused intentionally did not pay the tax, and thereby became liable for prosecution under sec. 84. Under sec. 23 (l-d), the chairman is en powered to perform (subject to certain exceptions which are not relevant for the present case) such executive functions as may be performed by or on behalf of the Municipal Board over which he presides. The obtaining of the sanction of the Government is an internal matter between the Municipal Beard and the Government. So far as the accused were concerned, they could have a genuine belief that the agreement which the chairman purported to enter into did not require them to pay the tax till such time as the contemplated revision or reference to the Government had taken place. There was thus no intention on behalf of the accused to refrain from paying the octroi. In the circumstances, the offence under sec. 84 has not been made out. This, however, will not prevent the Municipal Board from recovering any duty according to the revision which may have taken place, or without such revision, if so authorised by law. The recovery will have to be made according to the provisions of the Act. The revision is accordingly allowed. The conviction and sentence of the petitioners for an offence under sec. 84 of the Town Municipalities Act are set aside, and they are acquitted. If they have already paid the fine, it will be refunded to them. .;