MILKFOOD LIMITED Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE petitioner, a limited company registered under the Companies Act, is dealing in sale of ice-cream which is known as 'milkfood Ice-Cream'. The factory where the ice-cream is manufactured is situated at village Bahadurgarh outside the Municipal limits of Patiala. The ice-cream in question is also transported to Ludhiana city which is at a distance of about 90 Kilometers from the factory premises. As the ice-cream is a perishable item, it has to be transported in containers called 'shippers' which are designed to preserve it at low temperatures. While transporting the ice-cream the shipper usually contains the following items by weight: (a) Weight of one empty shipper with lid : 43 Kgs. (b) Ice and salt mixture required to be inserted in one shipper : 52 Kgs. (c) Ice-cream which is capable of being stored in one shipper. : 17 Kgs. Total : 112 Kgs.

(2.) IT is the admitted case that the ice-cream transported by the petitioner-company to the City of Ludhiana is subject to octroi in accordance with the schedule of octroi notified by the Punjab Government in respect of the Municipal Corporation, Ludhiana. Respondent, No. 1, the State Government issued a notification dated 12. 9. 1974 Under Section 61 of the Punjab Municipal Act, 1911 (hereinafter called 'the Act') levying octroi on the rates shown in the schedule appended to the notification and item no. 13 (a) therein prescribed that octroi at the rate of Rs. 17/00 per 100 Kgs. was to be charged on ice-cream in any form. In accordance therewith the Municipal Corporation, Ludhiana is levying octroi not only on the wright of the ice-cream but on the packaging as also on the weight of the 'shippers' and the ice-salt mixture. It is the petitioner's case that the Municipal Corporation is charging octroi on the wright of 112 Kgs. instead of confining the same to the 17 Kgs. of ice-cream above. On October 7, 1981 the petitioner-Company wrote a letter Annexure P1 to the respondent-Corporation pointing out that the levy was illegal in terms of the notification. Subsequent reminders were thereafter sent and ultimately vide letters Annexures P2 and P3 the Octroi Superintendent, Municipal Corporation, Ludhiana replied that the octroi would be charged on the full weight of the 'shipper'. Aggrieved by the action of the Municipal Corporation the petitioner filed an appeal Under Section 146 of the Act before the Commissioner, Patiala Division, respondent no. 3. This appeal was heard by the Commissioner, Patiala on 24. 3. 1982 and vide order of even date, Annexure P4/a he remanded the case to the Municipal Corporation holding that as the Municipal Corporation had failed to produce the records before him he had been unable to decide the appeal on merits. The learned Commissioner directed the Corporation to reconsider the matter and to pass a fresh order in the case. The petitioner-Company thereafter once again waited till June, 1982 for the Municipal Corporation to comply with the aforesaid orders of the Commissioner but no action was taken in the matter. The petitioner-company also sent a letter along with a copy of judgment of the Punjab and Haryana High Court in Civil Writ Petition No. 1873 of 1977 decided on 7. 1. 1980 showing that the point had already been decided in favour of the petitioner by the High Court. A copy of this letter has been annexed as Annexure P5 to the petition. It is the case of the petitioner that as no action has been taken the present petition had to be filed seeking the quashing of orders Annexure P2, P3 and the appellate order Annexure P4/a.

(3.) IT is the admitted position that the Commissioner did not decide the matter on merits and remanded the case to the Municipal Corporation with the stipulation that it should reconsider the matter and redecide the issue. To my mind the remand order of the Commissioner was not justified for the reason that in case the record had not been produced before him by the Municipal Corporation, he had ample administrative authority to secure the record. As the matter pertains to the year 1982, I am of the opinion that to relegate the petitioner to the remedy suggested by the Commissioner would be unjust. Moreover, from the reply filed on behalf of respondent no. 2 it is evident that they have taken a firm stand against the petitioner-Company and this fore-closes any possibility of an open mind and a fair hearing with regard to the controversy in issue. This petition is, therefore, partly allowed. The appellate order Annexure P4/a is quashed and the matter is remitted to the appellate authority for redecision. The petitioner shall serve a copy of this judgment on respondent no. 2 immediately and both the parties are directed to appear before the appellate authority on 22. 1. 1998. The appellate authority shall redecide the matter within a period of two months thereafter. No costs.