JUDGMENT - S.M. DAUD, J.:---Appellants, the Pune Municipal Corporation and the Municipal Commissioner-hereinafter referred to as 'PMC'-take exception to a decree for damages passed against them in an action brought by the plaintiff/respondent.

2. The admitted and indisputable facts in the background of which the points arising for determination have to be considered, may be stated thus:

Plaintiff-respondent before us - is a transporter to whom belongs goods truck bearing registration No. MTD 2619. The PMC us entitled to levy various taxes and imposts under section 127 of the Bombay Provincial Municipal Corporations Act, 1949-hereinafter referred to as 'the Act'. Octroi is a cess leviable upon the entry of the goods into the limits of the city of Pune, which goods are meant for consumption, use or sale therein vide Clause 42 of section 2 of the Act. Plaintiff has a house at Gultekdi in Pune No. 9 and on 28-11-1978 the aforementioned truck was found parked in front of the said house. The truck was loaded with goods and some Police Officers came to the plaintiff and informed him of the receipt of information by them about the truck containing smuggled goods. A search of the truck as also the godown of the plaintiff was taken but no contraband was found. The office of the PMC was contacted on phone by a person whose name was not given out. The caller whispered that the goods in the truck of the plaintiff had not been assessed to octroi and that the plaintiff had not paid the octroi payable on the said goods. Acting on this information the Octroi Officers, Bhame, Patel and some 13 Inspectors of the PMC, came to the place where the truck was parked, in two jeeps. When questioned about the payment of ctoroi, the plaintiff gave evasive answers. Therefore, he was informed by the PMC staff that the truck in the condition in which it was, had to be carried to the office of the PMC. The goods found in the truck were unloaded in the open compound of the Corporation's office. A list of the goods was prepared. On 29-11-1978, the plaintiff gave an application to the PMC expressing readiness to pay the amount of octroi payable on the goods found in the truck and praying that the truck and the goods may be released. There were no response to this application and for that reason, the plaintiff filed an application in the Court of the Corporation Magistrate praying for release of the goods truck on the payment of the octroi cess, and this, without prejudice to the prosecution to be launched against him. The said application which was numbered as Misc. Criminal Application No. 4 of 1978 was dismissed by the learned Magistrate and plaintiff thereafter moved the Sessions Court in Revision by Criminal Revision Application No. 227 of 1978. As an interim measure, the Sessions Court gave a direction for the release of the truck on 29-1-1979. Acting upon this order, the plaintiff was given possession of the truck on 30-1-1979. The Revision was eventually decided on 27-2-1979, the Sessions Court holding that it had no jurisdiction to entertain the Revision.

3. Plaintiff's case was that as a result of the illegal and malicious detention of the truck, he had been deprived of the use thereof. This had entailed a loss of income which he calculated at the net rate of Rs. 4,000/- per week. Apart from this, there were certain perishable or near perishable articles in the truck like medicines, diaries and calendars. The damage caused to these articles had entailed a loss of Rs. 10,000/- to him. The other heads under which plaintiff claimed damages need not be enumerated here, for those have been disallowed by the trial Judge and the plaintiff has chosen to accept the said disallowance. The PMC's stand was that the plaintiff had evaded payment of octroi duty at the octroi out-post. For this reason the truck and the goods were lawfully detained by the Octroi Officers for the purpose of assessment. The Officers of the PMC had acted in good faith in the discharge of the

Click Here to Read the rest of this document