IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 535 of 1997. Date of decision: 31.8.2010. Mahaan Dairies Limited & anr. ….. Petitioners Vs. The Secretary, Market Committee & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. Justice Kuldip Singh, Judge. For the Petitioner (s) : Mr. Dushyant Dadwal, Advocate. For the Respondents : Mr. Navlesh Verma, Advocate, for respondent No.1. Mr. Vinod Gupta, Advocate vice Mr. Rajesh Mandhotra, Advocate, for respondent No.2. Mr. R.K.Sharma, Senior Addl. Advocate General, for respondents No. 3 and 4. Justice Kurian Joseph, C.J. (Oral) The petitioner has prayed for following relief in the writ petition:- (a) Quashing Annexure PC, PE, and PN as being illegal, arbitrary, unconstitutional and void. (b) Prohibiting and restraining the respondents 1&2 from proceeding with the recovery of any fee as levied vide Annexures PC and PE and further restraining the respondents from taking any coercive measures for the recovery from the petitioners under Rule 82(13) and 82(9) as being illegal, arbitrary, unconstitutional and void and having been enacted without authority of law and being ultra vires the Act, no authority being vested in Respondent No. 3 to enact the Rules in contravention of Section 33 of the Act. - 2 - (c) Prohibiting and restraining the respondent No. 4 from selling the property of the petitioners as contemplated by Annexure PN and further quashing Annexure PN as being arbitrary, unconstitutional and void. (d) Directing the respondents 1 & 2 to produce the entire record regarding the assessment proceedings of petitioner unto this Hon’ble Court and further quashing the same so that justice is done to the petitioners. (e) In the alternative directing the respondents 1 & 2 to reconsider the case of the petitioners from the proper assessment order in accordance with law and not to levy any other fee exempted by Section 21 of the Act and the Rules made therein, further directing that the appeal filed and the review petition filed by the petitioners be disposed of in accordance with law. 2. It is seen that in similar matter filed by the petitioners, this court passed order dated 25.2.2008 in CWP No. 912 of 2005 with the following directions:- “Learned counsel for the parties inform this Court that the petitioners have deposited the assessed amount and for filing an appeal the petitioners are even required to deposit the penalty amount. Learned counsel appearing for respondent No. 1- Committee submits that if the petitioners are relegated to the Appellate Authority stage, respondent No. 1 will not insist for deposit of penalty amount. In the light of the said statement and since thee is an alternative remedy, the petition is disposed of on the ground of alternative remedy. However, if an appeal is filed within three weeks from today then the Appeal be herd and disposed of on merits. Further, till three weeks no further coercive methods be used against the - 3 - petitioners. In case the Appeal is not filed within three weeks then the protection granted will not be available to the petitioners.” 3. Since the appeal has been disposed of by the Appellate Authority without the presence of the petitioners a review has been filed. In view of the directions extracted above, it will be appropriate that Appellate Authority considers the appeal afresh on merits. Therefore, this writ petition is disposed of, setting aside the order passed under appeal and directing the Appellate Authority to consider the case afresh with notice to the petitioners and dispose of the same in accordance with law. 4. Needless to say that deposit of penalty shall not be insisted in view of the judgement extracted above. Needless also to say that review petition hence has become infructuous. By way of abundant caution, we make it clear that it will be open to the petitioners/ appellants to take all available contentions before the competent authority including the question of jurisdiction. 5. With these observations, the writ petition stands disposed of, so also the pending application(s) if any. (Justice Kurian Joseph), Chief Justice. August 31, 2010 (Justice Kuldip Singh), (Hem) Judge.