Andhra HC (Pre-Telangana)
Vasavi Solvents, Guntakal vs Director Of A.P. Agricultural Market ... on 10 August, 1999
Equivalent citations: 1999(5)ALD63, 1999(4)ALT605
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
ORDER
1. The facts in the writ petition are tell-tale. It is a sad commentary as to how the judicial process can be put to abuse even by those who are not so mighty and powerful. May be lack of interest and tenacity to vigorously pursue the matters by the statutory authorities, is one of the reasons for an interested party to successfully obstruct the legal process. It may be one reason which enables an interested party to successfully jettison the legal process and avoid the liability to pay taxes and fee payable under validly enacted laws. May be the case on hand provides an opportunity for the Court to introspect on the very nature of the judicial process and the need for an intense and close threshold scrutiny of the petitions under Article 226 of the Constitution of India.
Over to the facts :
2. The matter arises under the A.P. Agricultural (Produce & Live Stock) Markets Act, 1966, (for short 'the Act'). The petitioner, admittedly, is a person licensed under sub-section (2) of Section 7 of the Act, therefore, is a trader within the meaning of the Act. We are not concerned with the nature of its business. The petitioner, admittedly, is doing business, as revealed in the affidavit filed in support of the writ petition within the notified market area of the second respondent, agricultural market committee. It is evident by its notice dated 28-1-1992 in Re, No.l82/S/89, the second respondent required the petitioner to submit the Registers and other books relating to its business for the years 1977 to 1989. The petitioner through its letter dated 3-2-1992 raised its objection questioning the very jurisdiction of the second respondent in requiring it to produce such books for the years 1977-1989. However, inter alia it is stated that the petitioner is prepared to produce the account books for the year 1987-1988 and 1988-89; but not of all the years, as desired. Leave about the language and structure of the letter, the tone and tenor of the objections reflect the defiant attitude of the petitioner. The notice is almost treated with contempt and put to redicule. The letter demands for xerox copies of "the judgments of the High Court in the writ petition, writ appeal and the review petitions, of course on payment of costs." Those writ petitions, writ appeals and the review petitions were filed by the petitioner, itself, inviting the judgments and orders from this Court.
3. Having lodged its protest, the petitioner promptly filed this writ petition on the very next day i.e., 4-2-1992, Before adverting to the grounds raised in this writ petition and the submissions made by the learned Counsel for the petitioner, it would be appropriate to notice few relevant facts as to what transpired upto the filing of this writ petition. It may also be necessary to observe the manner in which the facts are stated in the affidavit filed in support of the writ petition. The affidavit does not contain any precise details of the relevant facts, though all those facts are within the knowledge of the petitioner. It appears as though the petitioner does not subscribe to the view that every petitioner is duty bound to reveal the complete facts in an intelligible manner so as to enable the Court to make an analysis of the facts with a view to find out the grievance of the petitioner, if any. The facts are stated in presumptive manner, as if it is the duty of the Court to gather the relevant facts from whatever source it may be.
4. The petitioner goes to the extent of lodging a complaint about the decisions rendered by a Division Bench of this Court in WA No.1221 of 1989; as if, the instant writ petition is an appeal against the said order. Even in an appeal, against the decision rendered by a Division Bench of this Court, it would not have been open to an aggrieved person to adopt such a tone and tenor, as the one adopted by the petitioner in the instant writ petition. In the affidavit, it is stated that "the Division Bench took a decision on the ground of resjudicata i.e., the Division Bench gave importance to the suit filed by the Registered Society of Guntakal Merchants' Association, by its Secretary ............. Despite filing proof to the effect that the petitioner is not concerned with the suit, the Division Bench non suited the petitioner in contesting his case earlier on merits ...." The affidavit does not provide the details as to how and under what circumstances, the said writ petition was filed by it and it does not furnish any details of the writ petition as to its number and the date of judgment. It does not even provide for the details about the writ appeal and its number. It also does not say as to how and under what circumstances the suit was filed by the Merchants' Association. It is not possible for this Court to gather those facts. It is not permissible to the petitioner to make such comments about the decision rendered by the Division Bench of this Court in an appeal filed by the petitioner, itself. All the norms are thrown to winds in a non-challant manner. May be the soft nature of the State and its character enables one, like the petitioner to exhibit such a nonchalant and defiant attitude towards the institutions of the State.
5. It is apparent from the record that the Guntakal Merchants' Association, represented by its Members and thirty five other petitioners filed WP No.5208 of 1974 questioning the Constitution of the Agricultural Market Committee for Gooty with head-quarters at Guntakal by notification dated 13-6-1973 vide G.O. Ms. No.534 and the authorisation given to the Committee to establish the Market Yard at Guntakal. It was contended that declaration of the market area and notified market area of Uravakonda sub-taluka and Gooty Taluka by the Government through the notification dated 1-12-1973 was not in conformity with the provisions of Act 16 of 1966. It was further contended that the Market Committee has not provided any facilities in the notified area and for that reason, the Market Committee has no authority to levy market fee on the transactions. The petitioners therein obtained interim orders restraining the Market Committee from levying and collecting the market fee from the petitioners therein. However, the said writ petition was dismissed by this Court by order dated 6-2-1976.
6. The Guntakal Merchants' Association thereafter filed OS No.118 of 1978, in its representative capacity before the Additional Subordinate Judge's Court, Anantapur, more or less raising the same pleas by contending that the Market Committee has not established the Agricultural Market Yard in the notified Market area and provided any facilities. It sought for permanent injunction restraining the Market Committee from levying and collecting any fee or penalty under Sections 12 and 23 of the Act 16 of 1966. The Association obtained an order of temporary injunction. Ultimately the said suit was dismissed on 31-8-1981 on the ground that the judgment rendered by this Court in WP No.5208 of 1974 operates as res judicata. The Association thereafter preferred AS No.1777 of 1981 against the judgment and decree in OS No.l 18 of 1978 and obtained injunction order again restraining the Market Committee from levying and collecting any market fee. The said appeal suit was also dismissed by this Court by judgment dated 1-8-1986.
7. Thereafter, the petitioner filed WP No.I2814 of 1987 once again questioning the validity and jurisdiction of the Agricultural Market Committee to levy and collect any fee as such from the petitioner. Once again it was urged before this Court that no market fee can be collected as no facilities as such are provided in the market yard. This Court by order dated 28-7-1988 rejected the said contention and dismissed the writ petition by holding that the liability to pay the market fee does not depend upon the provisions of facilities in the market yard and the principle of quid pro qua has no application. The petitioner preferred WA No.1221 of 1989 and again obtained an interim order against the respondent Market Committee by order dated 28-7-1988. The writ appeal was ultimately dismissed upholding the authority and jurisdiction of the Market Committee to levy and collect the market fee from the petitioner. The pelitioner, thereafter filed review WA MP No.1261 of 1991 seeking review of the judgment dated 19-3-1991 in WA No.1221 of 1989 mainly on the ground that the petitioner was never a member of the Registered Society of Guntakal Merchants' Association which filed OS No.l 18 of 1978 in the Court of the Additional Subordinate Judge, Anantapur, against the Agricultural Market Committee, Guntakal and, therefore, the judgment in the said suit does not operate as a bar on the principle of constructive res judicata. The Division Bench appears to have dismissed the WA No.1221 of 1989 holding that the petitioner could not have preferred the writ petition, as the writ petition, as well as the suit filed by the Guntakal Merchants' Association has been dismissed. It is under those circumstances, the petitioner contended in the review petition that he was never a member of ihe Registered Society of Guntakal Merchants' Association. The writ appellate Court once again went into the matter and held in categorical terms that the petitioner herein is a member of the Registered society of Guntakal Merchants' Association. The Division Bench refused to place any reliance upon the certificate dated 5-4-1991 purported to have been issued by the President, Guntakal Merchants' Association certifying that the petitioner herein is not a member of the Association from the starting of the Association. The Division Bench placed reliance upon the certified copy of the plaint and the averments made in the additional counter filed on behalf of the Market Committee, Guntakal, in the writ appeal. The Division Bench accordingly rejected the contentions put-forth by the petitioner that it is not a member of the Guntakal Merchants' Association.
8. The respondent-Market Committee after dismissal of the proceedings initiated by the Merchants' Association, as well as the petitioner, in its individual capacity, set the law in motion by issuing the impugned notice requiring the petitioner to make available the Registers, Accounts Books etc., for the years from 1977 to 1989 for making assessment to levy the market fee. The petitioner once again filed the present writ petition.
9. In this writ petition, Sri K. Venkataramaiah, learned Counsel for the petitioner submits that there is no market yard till today at Guntakal and the market fee could be levied only after establishing the market by providing the required facilities in the market. This very contention put-forth by the petitioner in WP No.12814 of 1987 and WA No. 1221 of 1989 was negatived by this Court. The same contention put-forth by the Guntakal Merchants' Association was also negatived by the civil Court and confirmed by this Court in AS No. 1777 of 1981 on 1-8-1986.
10. In the counter-affidavit filed by the Agricultural Market Committee, the details of the facilities and the infrastructure provided by it are stated. It looks as though that there is nothing to prevent the petitioner from agitating and reagitating the very same question inspite of clear and unambiguous verdict by this Court. The petitioner does not seem to have even realised that playing with judicial process is something like playing with fire. The petitioner obviously never thought that one day it would be caught in its own web. The Court is bound to depricate the most reprehensible conduct exhibited by the petitioner and its audacity to abuse the judicial process with impugnity. The contention therefore needs to be recorded only for the purposes of rejection. It is clearly barred by the principle of resjudicata.
11. Learned Counsel for the petitioner raised another contention stating that Act No. 16 of 1966 has under gone radical transformation and several provisions were amended drastically by Amending Act 4 of 1987 and the Amendment Act 4 of 1987 has not received the assent of the President. The Amendment Act came into force with effect from 4-2-1987 by which among other provisions, Sections 12-A to 12-C have been inserted in the parent Act prescribing the procedure for submission of returns relating to the turn over of the traders and making best judgment assessment of the market fee due from the traders. It is his case that the Parent Act has received the assent of the President of India on 18-11-1966 and thereafter it was published in A.P. Gazette. However, the Amendment Act has not received the assent of the President of India, but was assented to by the Governor of Andhra Pradesh on 4-2-1987, Hence, the Amendment Act is inoperative, unenforceable and void. A Division Bench of this Court in A. Hampayya v. Secretary, Agricultural Market Committee, 1996 (2) ALD 443 (DB), repelled this very contention. This Court after referring to various judgments on the subject held :
"In the instant case Sections 12-A to 12-C of the Act which are inserted by the Amending Act and their validity is now questioned in this writ petition. They relate to submission of returns of turnover by traders, assessment of market fee and payment of market fee and other dues payable under the Act. The argument is not that Sections 12-A to 12-C of the Act relate to any one of the entries in the Concurrent List so as to receive the assent of the President for their validity. In fact, they do not deal with any of the subjects in the Concurrent list. No decision was cited in support of the contention raised. In view of the statement of law enunciated in the above decisions, we hold that it is not necessary to receive the assent of the President for the validity of these provisions on the sole ground that the parent Act was assented by the President. Hence, this contention also fails."
I am bound by the said judgment. The learned Counsel for the petitioner, however, after going through this judgment fairly conceded that this point is squarely covered against the point raised by him in this writ petition.
12. Incidentally it may be noticed that the same contention - that the Government has not established any market yard at Guntakal, provided adequate facilities to the traders and, therefore, cannot levy and collect the market fee under Section 12 of the Act, has been raised in A. Hampayya's case (supra) and the Division Bench held that the Guntakal Market Committee has provided a well established market yard. Yet, the learned Counsel for the petitioner pressed the said contention once again in this WP which has been dealt with in the preceding paragraph.
13. The next submission made by the learned Counsel for the petitioner is that Section 12-B of the Act prohibits assessment of the market fee payable by the trader beyond the period of three years from the expiry of the year to which the assessment relates. It is submitted that the petitioner herein is required to submit and produce the records and the account books for the years from 1977 to 1989, which is contrary to Section 12-B of the Act. I do not find any merit whatsoever in this contention. Section 12- B of the Act is amended by A.P. Act 4 of 1987, which has come into force with effect on 4-2-1987. Before the said amendment Act, there was no prohibition or restriction whatsoever preventing any assessment beyond a period of three years from the expiry of the year to which the assessment relates. The proceedings against the petitioner and the other merchants were initiated as early as in the year 1974. The writ petition filed by the Guntakal Merchants Association, of which the petitioner is a Member was dismissed on 6-2-1976. The civil suit filed by the Guntakal Merchants' Association -OS No.7t8 of 1978 was dismissed on 31-8-1981 and the appeal suit, AS No.1777 of 1981, filed against the said judgment was dismissed on 1-8-1986. The writ petition filed by the petitioner - WP No.12814 of 1987 was dismissed on 28-7-1988, so also the writ appeal - WA No. 1221 of 1989 was dismissed on 19-3-1991. In all these proceedings either the petitioner or the Guntakal Merchants' Association obtained interim orders injuncting and restraining the respondent-Market Committee from proceeding against the petitioner and the Guntakal Merchants' Association in any manner whatsoever either to levy or collect the market fee from them. No assessment as such could be made by the respondent-Market Committee in view of the interim orders passed by this Court, as well as the civil Court. The petitioner immediately after dismissal of the review petition once again filed the present writ petition and obtained interim orders restraining the Market Committee from proceeding further in the matter, It may be pertinent to notice that, as on the date when the law was set in motion against this petitioner and the Members of the Guntakat Merchants' Association, there was no restriction whatsoever upon the Market Committee not to make any assessment or levy the market committee for the period beyond three years from the date of expiry of the year to which the assessment relates. The action initiated by the Market Committee against the petitioner got bogged down in the Courts on account of the untenable and unsustainable pleas put-forth by the petitioner. It is the petitioner who successfully prevented the Market Committee from discharging its statutory duty. It is the petitioner, who obtained interim orders from this Court, as well as the civil Court preventing the Market Committee from making assessment and levy of the market fee. The provisions of the amended Act have no application whatsoever insofar as the action initiated by the Market Committee for levying and collecting the market fee for the period before the Amendment Act 4 of 1987 came into force with effect from 4-2-1987. The contention advanced in this regard is totally devoid of merit.
14. It is hoped that the respondent would now, atleast, pursue and prosecute the matter vigorously against the petitioner facilitating the law to take its own course, since there is no hope and trust that the petitioner would not indulge in the luxury of vexatious litigation. The responsibility, perhaps, is more on the respondent to render timely and effective assistance to the Courts by bringing the true and correct facts to the notice of the Court as and when this petitioner makes any similar attempt as the one now made by it. It is a sad commentary as to how the petitioner could successfully stall the proceedings and prevent the Market Committee from making assessment and levy the market fee for a period almost twenty years.
One more aspect requires a mention
15. The petitioner is a partnership firm. It is represented by its partner, C. Maruthi Prasad. The said Maruthi Prasad is undoubtedly entitled to represent the firm, if he is so authorised. At this stage we do not know whether he was the managing partner and authorised to represent the partnership firm. It does not matter. What is astonishing to notice is that the affidavit filed in support of the writ petition is sworned and signed by one Dada Khalender son of Abdul Sab working at the relevant time of filing of the writ petition as a Lab Assistant in the petitioner solvent factory. The affidavit does not reveal anything as to whether the said Dada Khalender is authorised to file this affidavit on behalf of the petitioner firm. The reasons as to why either the Managing Partner or a Partner could not swear to the affidavit are not known. Obviously there is something more than meets the eye.
16. The Court has to now consider as to what are the costs to be imposed upon the petitioner? By taking the conduct of the petitioner and over all facts and circumstances of the case into consideration. I consider it appropriate to award a sum of Rs.5,000.00 as costs and the same is accordingly quantified.
17. For all the aforesaid reasons, the writ petition fails and it shall accordingly stand dismissed with costs quantified at Rs.5,000.00 (Rs. Five thousand).