JUDGMENT

OZA, J. :— This is an appeal on leave under Article 136 of the Constitution. The appellant is a transporter and it is alleged that he brought goods into the limits of Delhi and were seized within the Union Territory as it was alleged that they were brought in without the payment of terminal tax. A penalty of ten times of the amount of the terminal tax was also demanded from the appellant and he was informed that if the terminal tax along with the penalty is not paid within four days the goods will be sold at his risk. By a writ petition the appellant challenged this demand before the High Court of Delhi and by the impugned Judgment the Delhi High Court dismissed the writ petition and hence the present appeal.

2. The High Court has considered the law of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as the Act) coupled with the provisions contained in the imposition of terminal tax and also examined the legislative competence of the Parliament to enact the law and ultimately came to the conclusion that the law was applicable in the territory. There was also some controversy raised before the High Court in respect of the facts as to whether the cylinders on which the duty was demanded were empty or were full and as to whether the appellant stopped its vehicle at the post and was allowed to go and later on he was stopped by the Squad or he got into the territory without payment of tax and was therefore caught but all these controversial questions of facts the High Court refused to consider as the appellant had an opportunity to pursue the remedy under the law where these facts could be investigated and therefore as that was not done and it was a writ petition filed before the High Court, the High Court rightly did not go into the disputed questions of facts. The only question which was canvassed before the High Court and was considered is the question as to whether this penalty imposed under Section 464 of the Act could be imposed by the taxing authority without a prosecution having been filed before a competent magistrate and the High Court in its judgment dismissed the petition upholding the contention of the Delhi Municipal Corporation and the learned counsel appearing for the appellant also canvassed that question alone as it was the question on which High Court held against the appellant.

3. It was contended by learned counsel for the appellant that Sections 463 and 464 both fall in the Chapter "Offences and Penalties". By referring to the language of Section 464, he contended that in the body of this Section language indicate that what is levied against the appellant is described as "fine". He also referred to Sections 469 and 470 and contended that according to the scheme of this. Chapter, the punishment provided in Section 463 and the penalty (or fine) provided in Section 464 could only be imposed by a Magistrate after a proper trial. He also contended that the learned Judges of the High Court placing reliance on Section 59 and the notification delegating the functions by the Commissioner to the terminal tax authority came to the conclusion that under Section 464 it is the tax authority who has the jurisdiction to impose the penalty but according to the learned counsel the residuary powers of the Commissioners under Section are only administrative powers and according to him the High Court was not right in placing reliance on that.

4. The main emphasis by the learned counsel was that imposition of penalty as provided in Section 464 where a wide discretion is given to impose penalty up to ten times of the tax payable itself indicates that the functions of the authority who is expected to exercise the jurisdiction under Section 464 is in the nature. of judicial function and therefore it could not have been left to the executive authority of the Commissioner or a delegate to whom the powers may have been delegated. According to the learned counsel the penalty was not imposed by the competent authori