Uttarakhand High Court
Ms Annapurna Rice Industry vs State Of Uttarakhand And Another on 5 December, 2016
Author: V.K. Bist
Bench: V.K. Bist
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 3233 of 2016 (M/S)
M/s Annapurna Rice Industry. .....Petitioner
Versus
State of Uttarakhand & another. .......Respondents
Mr. Atul Kumar Bansal and Mr. Rajendra Tamta, Advocates for the petitioner.
Mr. P.C. Bisht, Standing Counsel for the State of Uttarakhand.
Mr. J.C. Belwal, Advocate for Krishi Utpadan Mandi Samiti.
Dated: 5th December, 2016
Hon'ble V.K. Bist, J.
Petitioner has approached this Court seeking the following relief:
"i) To issue a writ, order or direction in the nature of mandamus commanding the respondent no. 2 herein to return the amount, which, the petitioner herein has deposited with the respondent no. 2 as market fees and development cess under protest i.e. Rs. 95,000/- along with the interest."
2. Facts, giving rise to the present petition, are that on 01.11.2011, the State Legislature of Uttarakhand enacted 'The Uttarakhand Agricultural, Produce, Marketing (Development and Regulation) Act, 2011' (hereinafter referred to as "the Act No.9 of 2011". The Preamble of the Act reads as under:
"An Act to provide for the effective regulation in marketing of agricultural produce, establishment and development of proper and modern marketing system, 2 promotion of agricultural processing and agricultural export, superintendence and control of markets in the State of Uttarakhand and for the matters connected therewith or incidental thereto."
Section 27 (c) (iii) of the Act No.9 of 2011 was amended by the said amendment. Section 27 (c) (iii) of the Act No. 9 of 2011 provides for the levy of market fees and development cess, which reads as under:
"any such agricultural produce, which reaches any Market area of the State for sale, storage, processing or transaction from any other State or out of Country for the first time it shall be registered as "First Arrival" and on such produce, Market fee and Development cess shall be payable;"
Consequently, the Mandi Samities served letters of notice-cum-demand on the industries i.e. on Rice Millers, Seed Plant Owners as well as Flour Mills, those who are manufacturers for making payment of market fee on the agricultural produce, which the mill owners brought into the market. Feeling aggrieved, some of the manufactures filed writ petition before this Court challenging the said demand notice. This Court rejected the challenge to the legislative competence of the State Legislature and held as under:
"The pith and substance here would be the market area of Uttarakhand which is admitted and the product which is in question an agricultural produce. These two essential ingredients being met, the challenge to legislative competence does not survive."3
Thereafter, vide notification dated 03.01.2013, the State Legislature Uttarakhand enacted 'The Uttarakhand Agricultural, Produce, Marketing (Development and Regulation) Amendment Act, 2012. Section 1(2) of the Amendment Act provides that the said Act shall be deemed to have come into force with effect from 01.11.2011. According to the petitioner, amongst other provisions, Section 27 (c) (iii) of the Act No. 9 of 2011 was amended by the said amendment. The amended Section 27 (c) (iii) reads as under:
"any such agricultural produce, which arrives in any area of the State for sale, storage, processing, manufacturing, transaction, or other commercial purpose from any other State or out of Country for the first time it shall be registered as "Primary Arrival" and on such produce, Market fee and Development cess shall be payable."
After amendment in Section 27 (c) (iii) of Act No. 19 of 2011, the Mandi Samities again served notices of demand to the mill owners for the payment to ensure the payment of Mandi fee or development cess. The petitioner was also served with the demand notices. Thereafter, some of the mill owners again filed the writ petitions before this Court challenging the constitutional validity of the Amendment Act, 2012. This Court, in its judgment and order dated 10.07.2014, observed that the earlier bunch of writ petitions were allowed on a limited point that the State Legislature had not included word "Manufacture" in the charging Section and that by the impugned amendment therein, the word had been added, effected as 4 retrospectively. Thus, the grounds which were available to those petitioners in the earlier writ petitions were no longer available now and the validity of the Act and the notice- cum-demand were upheld. Against the said order, the then petitioners filed Special Appeals before the Division Bench of this Court. The Division Bench of this Court, on 16.12.2014, dismissed the Special Appeals and upheld the order dated 10.07.2014 passed by the learned Single Judge. Aggrieved by the order dated 16.12.2014, the Special Leave Petition (c) 5013-5014 of 2015 were filed before the Hon'ble Supreme Court, which were numbered as Civil Appeal Nos. 14184-14185 of 2015. The Hon'ble Supreme Court, vide its judgment and order dated 09.12.2015, allowed the civil appeals and struck down Section 27 (c) (iii) of the amended Act No. 9 of 2011 and quashed the consequential action of issuing notice of demand. Operative portion of the judgment & order dated 09.12.2015 is being reproduced below:
"In view of the findings and reasons recorded in Point No.1 supra, the impugned common judgment and order upholding the validity of the amendment to Section 27(c)(iii) of the Act is set aside. Section 27
(c)(iii) of the Act is struck down. The consequential action of issuing notice of demand and any other orders passed against the appellants are hereby quashed. However, Section 27 (c)(iv) is hereby upheld. This Court makes it very clear that the purchaser must prove that the agricultural produce is brought from other State which is an interstate sale, and is in accordance with the provisions of the Sale of Goods Act, 1930.
These Civil Appeals are allowed in the above terms. No costs."
5It is the case of the petitioner that, during the pendency of litigation, on pressurizing by the party respondent, the petitioner deposited in total ` 95,000/-, as market fees and development cess with the respondent no. 2 under protest. After the judgment & order dated 09.12.2015 passed by the Hon'ble Supreme Court, the petitioner made several requests to the respondent no. 2 to return the money of ` 95,000/-, which was deposited by the petitioner under protest with the respondent no. 2 as market fees and development cess; but, till date nothing has been done so far. Hence, this writ petition.
3. Learned counsel for the petitioner submitted that the petitioner is legally entitled to get the said amount back, inasmuch as, Section 27 (c)(iii) of the amended Act No. 9 of 2011 has been struck down by the Hon'ble Apex Court vide its judgment & order dated 09.12.2015. He submitted that the said amount was deposited by the petitioner to the party respondent under protest. He prayed that the Director, Mandi Parishad may be directed to decide the pending representation of the petitioner earliest.
4. Learned counsel appearing for the Mandi Samiti submitted that the decision is to be taken by the Director, Mandi Parishad. He submitted that the rice is itself is a notified agricultural produce under the schedule of the Uttarakhand Agricultural, Produce, Marketing (Development and Regulation) Act, 2011. He further submitted that, in case direction is issued, the representation filed by the petitioner will be decided strictly 6 in accordance with law; but some reasonable time may be given.
5. Learned Standing Counsel appearing for the State also submitted that the representation of the petitioner will be decided in accordance with law.
6. I have considered the submission advanced by the learned counsel for the parties and have perused the papers available on record. The Hon'ble Apex Court has already struck down Section 27 (c)(iii) of the amended Act No. 9 of 2011. The only prayer made by the petitioner before the Court is that the petitioner may be permitted to file a fresh representation before the respondent authority and the authority competent may be directed to decide the same at the earliest.
7. Considering the facts herein stated above, I dispose of the writ petition by permitting the petitioner to file a fresh representation before the respondent authority within a period of two weeks' from today. In case such representation is filed by the petitioner within the stipulated period, the Director, Mandi Parishad shall decide the representation of the petitioner, strictly in accordance with law, expeditiously, preferably within a period of six weeks' from the date of filing of representation alongwith the certified copy of this judgment.
8. There will be no order as to costs.
(V.K. Bist, J.) 05.12.2016 Arpan