IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO. 186 OF 2000 NO. 186 OF 2000 NO. 186 OF 2000 IN IN IN WRIT WRIT WRIT PETITION NO.94 OF 1995 PETITION NO.94 OF 1995 PETITION NO.94 OF 1995 1. Municipal Corporation of Greater Mumbai, having its Office at, Municipal Corporation Building, Mahapalika Marg, Bombay 400 001. 2. The Municipal Commissioner, having its Office at, Municipal Corporation Building, Mahapalika Marg, Mumbai 400 001. ... Appellants. Vs. 1. Ramdeo Food Products Pvt. Ltd. having its registered Office at 1095, Madhupara, Ahmedabad 380 004 2. Shri Pravinbhai B. Patel, Director & Shareholder of the Respondent No.1 Company, having his Office at 1095, Madhupura, Opp. Delhi Gate, Ahmedabad. ... Respondents. Mr. N.A.Shaikh, Advocate for the Appellants. None for the Respondents. CORAM CORAM CORAM : : : R.M.S.KHANDEPARKAR & R.M.S.KHANDEPARKAR & R.M.S.KHANDEPARKAR & P.B. P.B. P.B. MAJMUDAR, JJ. MAJMUDAR, JJ. MAJMUDAR, JJ. DATE DATE DATE : 3RD JUNE, 2008 : 3RD JUNE, 2008 : 3RD JUNE, 2008 ORAL ORAL ORAL JUDGMENT ( Per P.B.Majmudar, J) :- JUDGMENT ( Per P.B.Majmudar, J) :- JUDGMENT ( Per P.B.Majmudar, J) :- 1) This appeal is directed against the Judgment and order of the Learned Single Judge dated December 9, 1999, delivered in Writ Petition No.94 of 1995. The question which was raised before the learned Single Judge by the respondents 2 was in connection with payment of Octroi duty on the product manufactured by the respondent company. According to the respondents, the product which is marketed is a mixture of flours of two or more items with some spices, such as chilly and other preservatives. The said product is not edible and therefore, it would not fall in Entry No.8 of Schedule H, but it will fall in Entry No.1 of the said Schedule. The petitioner therefore, instituted the Writ Petition for declaration that the product in question should be subjected to octroi as per Entry 1 of Schedule H and not as per Entry 8 of the said Schedule. 2. The present appellant did not file any reply to the petition. But it was argued on their behalf before the learned Single Judge that the article in question which is sold by the respondent company is eatable article and even as per the advertisement of the said product, it is clear that the same is ready for eating as an instant food item and therefore, the Corporation was justified in charging octroi as per Entry 8 of Schedule H. It was also argued before the learned Single Judge that the petition is required to be dismissed, as statutory remedy is provided 3 regarding the dispute in question and that in a petition under Article 226 of the Constitution of India, the High Courts cannot decide disputed question of facts. The learned Single Judge allowed the Writ Petition filed by the respondents by holding that the Corporation cannot levy octroi as per Entry No.8 of Schedule H and octroi is payable as per Entry 1 of the said Schedule. The said order is impugned at the instance of the appellant Corporation in this appeal. 3. We have heard the learned Advocate for the appellant and we have also gone through the Writ Petition filed by the respondents. The learned Single Judge came to the conclusion that considering the nature of the product, it can be said that it is not an edible product and it cannot be consumed directly without the same is processed further. On the aforesaid ground, it was found that the product in question falls in Entry No.1 of Schedule H and it would not fall in Entry No.8 of Schedule H. The learned Single Judge found that the item in question is an instant mixed food and therefore, it can be said to be eatable item directly without it is processed further. It was found by learned Single 4 Judge that since the legislature thought it fit not to add the same specifically in Entry No.8 of Schedule H by amending the Schedule, it should be presumed that the same falls in Entry No.1. 4. We have heard the learned counsel for the appellant. On behalf of the respondents, non present. We have gone through the Entry No.1 as well as Entry No.8 of Schedule H. So far as Entry No.1 is concerned, the following articles of food and drink are included, they are : Articles Maximum rate of 1. Grain, flour, pulses 15 paise per and cereals of all sorts 50 kg. including gavar, soyabean parched grain and paddy So far as Entry No.8 is concerned, the same is also under the same heading of article of food and drink. Entry No.8 deals with edibles and the same entry is provided as under : 8. Edibles - bacon and 7 per hams, table butter, butter cent other than table butter, ad- 5 margarine, dried or preserved valorem fruits and nuts excluding fresh fruits and betel nuts, canneld fish, cheese, confectionery, jams and jellies, milk condensed and preserved all sorts of farinaceous foods, pickles, coca, coca beans and chocolates, biscuits and cakes, lard or edible fat, mawa, milk cream, chakka and curds, fruits juices and all beverages, Glucose, extrose or any fruit, sugar oilman stores (except edible oils), preserved provisions, baking or curry powder, saccharin, all kinds of food colours and essences, glucose of all other kinds, malt extract, honey, papad, meat fresh or preserved for whatever use, and all kinds of food or drink not specifically provided for excepting whole milk, toned 6 milk and skim milk powder. 5. The learned counsel for the appellant submitted that even as per the say of the company, the product in question is ready for consumption and that there is nothing to show that it cannot be consumed directly unless it is processed further. It is submitted that simply on the basis of averments in the petition, the learned Single Judge should not have decided such disputed question of facts in a petition under Article 226 of the Constitution of India. It is submitted that the Item in question is ready for consumption as it is stated to be instant readymade food. The Corporation therefore, was justified in charging the octroi as per Entry No.8 of the said Schedule. 6. In our view, whether a particular article is edible or not or whether it requires further process, is a question which is required to be decided after considering the evidence on record. In this behalf, the factual finding is required to be given and such a disputed question therefore, cannot be decided in a petition under Article 226 of the Constitution of India. It is required to be noted that even statutory remedy is also 7 available under the Act and therefore, the High Courts under Article 226 is not required to go into question for finding out whether the article in question can be directly consumed as food article or further process is required. This Court is not an expert on such aspect to decide as to whether any further process of cooking is required making the article fit for consumption. It is true that normally when the petition is admitted, the petitioner should not be relegated to the alternative remedy. But in the instant case, since the disputed question of facts arises, which can be effectively decided only by appropriate forum, it would be desirable that the petitioner should first approach the appellate authority who can examine this case by going deep in the factual aspect of the matter and may be able to give ultimate finding of fact regarding the aspect as to whether the article in question can be directly consumed or can be treated as an edible article. This is not a case in which the High Court by going through the petition, can decide as to whether the product in question is required further process or whether it can be straight way utilized for consumption. We would not like to express any opinion on this behalf at 8 this stage as to whether the product in question can be said to be an edible, by considering the case and by looking at the wrapper of the product. 7. Considering the facts and circumstances of the case, therefore, the petitioner should first approach the appellate authority as statutory appeal is provided against the impugned decision of the Corporation. It is for the appellate authority to consider the aforesaid aspect as to under which Entry the product in question falls, by considering the nature of the product. It is for the appellate authority to find out as to whether the product in question can be directly consumed or it requires further process of cooking before such consumption. 8. Under the circumtances, the order passed by the learned Single Judge is set aside. The appellant is accordingly directed to approach the appellate authority under Section 217 of the Bombay Municipal Corporation Act. Considering the fact that these proceedings were pending before this Court and since considerable time has passed, the appellate authority may decide the appeal on merits, provided the appeal is preferred within a 9 period of two months from today. It is clarified that we have not expressed any opinion on the merits of the issue and it is for the appellate authority to consider as to the product in question falls in which Entry fo the Schedule. The petition is accordingly allowed by setting aside the order of the learned Single Judge with a liberty to the petitioner to approach the appellate authority. There shall be no order as to costs. (R.M.S. (R.M.S. (R.M.S. KHANDEPARKAR, J.) KHANDEPARKAR, J.) KHANDEPARKAR, J.) ( P. B. MAJMUDAR, J) P. B. MAJMUDAR, J) P. B. MAJMUDAR, J)