( 1 ) APPEAL admitted. Mr. Nanavati waives service of notice of admission. In the facts and circumstances of the case and with the consent of the parties, the matter is taken up for final hearing.

( 2 ) THIS appeal is raised against an order passed by the learned Single Judge of this court in Special Civil Application No. 1163/98 on 24th February, 1998.

( 3 ) THE Special Civil Application was preferred by the present appellant praying the following reliefs : (B) Allow this Special Civil Application by issuing a writ of mandamus or any other appropriate writ, order or direction to the respondent Corporation to strictly follow the provisions of Jamnagar Municipal Corporation Octroi rules in its true spirit with regard to the recovery of the amount of Octroi if at all leviable under the law from the petitioner. (E) Declare that the respondent Corporation has no authority at law to charge any penalty whatsoever on the amount assessed towards payment of Octroi for the period legally countable under the Rules and hold that issuance of any notice for the recovery of penalty to the extent of 10 times or otherwise is illegal, arbitrary to the provisions of the Rules and violative of Arts. 14 and 19 (i) (g) of the Constitution of India.

( 4 ) THE learned Single Judge after hearing both the sides passed the impugned order giving following directions :" (A) the Municipal Commissioner, Jamnagarshall decide the appeals preferred by the respective petitioners in accordance with law and in case the petitioners have preferred any representations, the same shall be treated as appeals under rule 9 and the Commissioner shall decide the same in accordance with law after giving the concerned appellants or their authorised agents an opportunity of being heard including an opportunity to lead the evidence in support of their case. It will be open to the petitioners to contend before the Commissioner that impugned levy and recovery of octroi and/or penalty from the respective petitioners was not in accordance with the provisions of the Act, Regulations and Rules. It will also be open to the petitioners to contend before the municipal Commissioner and any other authority that even if the petitioners had failed in paying octroi duty, the petitioners may be faced with the consequences for such non payment in accordance with law, without being required to pay penalty except after conviction by a Court of law. (b) the cheques submitted by. the petitioners shall not be encashed till the commissioner takes the final decision on the representations/appeals. (c) the Municipal Commissioner and the officers of the Octroi Department of the Jamnagar Municipal Corporation shall follow the procedure prescribed by law, in case of traders industrialists who are not willing to act as per the formula contained in the minutes of the meeting held on August 21, 1997 referred to in para 5 above. "

( 5 ) THE petitioner-appellant being aggrieved by the said order has raised several grounds.

( 6 ) MR. Lakhani, learned Advocate for the appellant has contended that the corporation has no power to impose any penalty on Octroi. The so called settlement arrived at between the Corporation and some of the representatives of industries and chamber of Commerce will not bind the traders as they may not be the members of such chambers of Commerce or other organizations. It was further contended that the concept of penalty and punishment as contemplated in the so called settlement is foreign to the bombay Municipal Corporation Act and the Octroi Rules. Reliance is placed on the decision of the Supreme Court in the case of Municipal Corporation, Ludhiana vs. Commissioner of Patiala Division, Patiala and Anr. , 1995 (1) SCC 304 wherein it has been categorically held by the Supreme Court that in case of evasion of Octroi the penalty cannot be imposed by the Municipal Officer. It is only Court which can decide the question of imposition of penalty or fine upon conviction. Sectio