P L D 1970 Dacca 592 (PLP)

ABDUL HAKIM, J.‑--This Rule nisi was issued calling upon the respondent to show cause why the impugned Memo. No. 3287 Col‑V/C/66‑67 dated 27‑9‑66 and Memo. No. 3737‑Col. V/66‑67 dated 14‑10‑66 passed by the respondent should not be declared to have been issued without any lawful authority and of no legal effect. The facts of the, case are as follows:‑ The petitioner Messrs Anwar Asghar Brothers is a Clearing and Forwarding Agent at Chittagong and the respondent is the Chairman of the Chittagong Municipality, Chittagong. The petitioner was carrying on business as a Clearing and Forwarding Agent in the Port of Chittagong since 1949 and paid all octroi duties to the Chittagong Municipality in respect of the goods which it unloaded at the Port and brought within the limits of the Chittagong Municipality. But the Chairman of the Municipality by its Memo. No. 3287‑Col/V/C/66‑67 dated 27‑9‑66 illegally blacklisted the petitioner‑firm and put certain restraints upon the business of the petitioner on some vague and unspecified allegations. The above Memo. which has been marked as Annexure `A' to the petition contains the following:‑ "On verification of duplicate copies of Bills of Entry and other available records it has been detected that you have been evading octroi duty by forging Octroi receipts which has resulted in huge leakage of Municipal revenue. This Municipality cannot allow these malpractices with immunity and in order to prevent this occurrence we have decided to receive payment of Octroi from you at Head Office instead of at C. P. T. Octroi Post. Further your firm is black‑listed for having taken recourse to dishonest and illegal activities. Henceforth you will have to make payment of Octroi duty in respect of goods imported by Air, Rail and Steamer at Head Office only." The Chairman subsequently issued another letter being Memo. No. 3737‑Col‑/V/C/66‑67 dated 14‑10‑66 asking the petitioner to submit a fortnightly statement of the consignment cleared by him and also directing him to deposit the amount of Octroi or furnish a Guarantee of the amount involved against the consignment for which he will furnish declaration for obtaining transit passes. The second Memo. dated 14‑1C‑66 has been marked as Annexure `B' to the petition and its contents are as follows:‑ "With reference to this office letter No. 3287‑Col‑V/C/66‑67 dated 27‑9‑66, No. 3286‑Col/V/C166‑67 dated 27‑9‑

66. No. 3284‑V/C/66‑67 dated 27‑9‑66 No. 3285‑Col. V/C/66‑67 dated 27‑9‑66 you are further requested to submit a fortnightly statement of the consignments cleared by you with all the particulars together with the Octroi receipt No. & T.P. No. You are further informed that you are required to deposit the amount of Octroi or Bank Guarantee of the amount involved against the consignment for which you will furnish declaration for obtaining Transit pass. This amount will be refunded to you subsequently on production of documentary evidence of despatches of consignments and this will be done exclusively at the Head Office. It may further be noted that if the amount payable by the Clearing Agents on account of missing T. P. S. is not paid in. due course the Municipality will be under the painful necessity of taking further action against such Clearing Agents." The petitioner on receipt of the above second Memo sent a representation to the Chairman of the Municipality by its letter No. 36/1445/66 dated 31st October 1966 (Vide Annexure `C' to the petition) requesting him to allow time for a period of two months to settle up the matter amicably but the Municipality expressed its inability to accede to the said request of the peti tioner. Thereafter the petitioner issued a demand notice but having received no reply thereof, filed the present petition before this Court challenging the propriety of the two memos. Annexures `A' and `E', referred to above. The respondent has filed an affidavit‑in‑opposition con troverting the facts alleged in the petition. It has been alleged in the affidavit‑in‑opposition that the petitioner having obtained innumerable Transit passes from the respondent has not properly utilised the privileges and that on enquiry it has been found that the consignments of goods covered by innumerable Transit passes have not been taken out of the Municipal area in accordance with rule 33 of the Octroi Rules, 1961. The petitioner has given fictitious declarations in respect of innumerable consignments and did neither return the "Foil" nor produce the "Coupon" to show that the goods covered by those Transit passes had been taken outside the Chittagong, Municipality. On verification, it was detected that the petitioner, as a Clearing Agent, had evaded octroi duty by presenting forged Octroi Receipts in numerous cases and defrauded the Municipality to the tune of Rs. 3,49,000 and odd, in violation of the Rules of the Octroi Rules, 1961. The Municipality was, therefore, compelled to take action against the petitioner. The Municipality is competent to take necessary action in a proper case under rule 21 of the Octroi Rules and the action taken against the petitioner, in the‑ circumstances, is quite lawful. The steps taken by the respondent being a preventive measure for stopping the leakage of the Municipal, revenue as Octroi duties against the dishonest traders who misused the privileges given as per Transit passes and the petitioner having already been allowed to carry on his business as usual on payment of Octroi duties as before and his business having not been affected in any way by issuance of the above Memos. there is no scope for any suffering of the petitioner and as such the question of any harassment or restrainment does not arise. The respondent in the said affidavit‑in‑opposition has also challenged the maintainability of the petition on the ground that the question involved in the petition is mainly, dependent upon evidence, investigation and assessment of various disputed questions of facts. The respondent also alleged that the petitioner having evaded public revenue to the tune of Rs. 3,49,000 by adopting forgery and unfair means and having not come to the Court with clean hands, cannot get the discretionary relief under Article 98 of the Constitution. Mr. Syed Md. Shahudul Haq, the learned Advocate, appearing for the petitioner has contended that the impugned Memos. have been issued illegally beyond jurisdiction on some vague allegations without any prior notice to the petitioner and that the purported memos have put a restraint upon the right of the petitioner in running the business without let or hindrance and as such, are bad and inoperative in law. The petitioner, as a Clearing and Forwarding Agent is bound under the Municipal Ordinance, 1961, and the Octroi Rules and Schedules as published in the Dacca Gazette to pay Octroi duties to the Chittagong Municipality in respect of goods which it unloaded at the port and brought within the limits of the Chittagong Municipality. The case of the petitioner is that he paid all Octroi duties against the goods which be unloaded at the port and brought within the Municipal area. The respondent, on the other hand, asserts that the petitioner‑firm has not paid the octroi duties as levied upon the imported goods specified in Schedule 1 of the East Pakistan Municipal Committees (Assessment and Collection of Octroi) Rules, 1961. The categorical assertion of the respondent is that the petitioner has adopted unfair means, misused the privileges granted to him by the Transit passes and forged some receipts and taking advantage of the forgery, passed the imported goods from the port to the Municipal area without actual payment of the Octroi duties and has thus evaded payment of public revenue to the tune of Rs. 3,49,

000. In the affidavit‑in‑opposition the respondent has given a number of instances of such evasion of public revenue. The allegations as to whether the petitioner adopted unfair means or committed forgery and whether the Octroi duty was paid or not are all matters of facts and these complicated facts cannot be decided without evidence, purely on the basis of affidavits and counter‑affidavits in the writ jurisdiction of the High Court under Article 98 of the Constitution. We, therefore, refrain from saying anything about those complicated questions of facts. Now coming to the question of restraint put by the above two memos upon the business of the petitioner, it appears that the Municipality under rule 21 of the Octroi Rules, 1961 has power to direct any person liable to pay Octroi duties to pay the same to the Head Octroi office. In this view of the matter, the memo marked as Annexure 'A' cannot be called to have been issued without jurisdiction. The expression "black‑listed" used in the said Memo. means nothing as the petitioner's business has not been stopped or affected in any way and he is still entitled to carry on business on payment of the Octroi duties. Since he is not a licensee under the Municipality, does not seem to have any authority to black‑list the petitioner. The expression "Black‑listed" amounts to a dead letter as the petitioner cannot be refused by the Municipality to bring in dutiable goods within the Municipal limits on payment of Octroi duties. As regards the second memo. marked as Annexure 'B', it appears that the first portion of the said Memo, is covered by rule 37 of the said Rules and as such no grievance can be made by the petitioner where he has been asked to submit a fortnightly statement of the consignment cleared by him. But the second part of the said Memo. dated 14‑10‑66 where he has been asked to deposit the amount of Octroi. or furnish Bank Guarantee of the amount involved against the consignment for which he will furnish declaration for obtaining Transit pass seems to be not covered by any of the rules of the said Rules. The effect of this portion of the order is that the petitioner cannot bring within the Municipal limits the goods on which Octroi duty is payable though such goods are brought in only for the purpose of Transit through the Municipal area and not for consumption or sale within the limits of the Municipality, without first paying the Octroi duty or giving Bank Guarantee to the extent of the duty that might have to be paid, if the goods were for con sumption or sale within the Municipal limits. If this order of the respondent, which is not backed by any legal provision, is allowed to remain; then the petitioner will be forced to first pay or guarantee to pay the Octroi duty on the goods in transit, which, under the law, he is not liable to pay. This will further amount to a complete blockade of his trade or business in regard to goods in transit that must, of necessity, pass through the area covered by the Octroi Law, and will cause great hardship upon the business of the petitioner. In this view of the matter, this portion of the Memo. Annexure 'B' is liable to be set aside as the same has been made without lawful authority. The petitioner cannot, however, take any exception to the last paragraph of the said Memo. In the result, the second paragraph of Memo‑3637‑Col -V/C/66‑67 dated 14‑10‑66 marked as Annexure `B', to the petition is set aside and the rule is made absolute in part to that extent. We, however, make no order as to costs in this rule. SIDDIQI, C. J.‑

I agree. A. E. Rule made partly absolute.