Karnataka High Court
M/S Vijaykumar S/O. Yallappa Yaragatti vs The Agriculture Produce Market on 18 April, 2024
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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NC: 2024:KHC-D:6465
WP No. 65168 of 2011
C/W WP No. 63797 of 2011
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 18TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
WRIT PETITION NO. 65168 OF 2011 C/W
WRIT PETITION NO. 63797 OF 2011 (APMC)
IN W.P. NO. 65168/2011
BETWEEN:
1. M/S VIJAYKUMAR S/O. YALLAPPA YARAGATTI,
AGE: 52 YEARS, OCCUPATION: BUSINESS,
R/O: APMC MARKET YARD, BAILHONGAL,
AT: BAILHONGAL, DIST: BELGAUM - 591102.
2. M/S. MELAGIRI, UPPIN & CO.,
VISHWANATH S/O. SHIVARUDRAPPA UPPIN,
AGE: 60 YEARS, OCCUPATION: BUSINESS,
R/O: APMC MARKET YARD, BAILHONGAL,
AT: BAILHONGAL, DIST: BELGAUM - 591102.
3. M/S. PATIL SAMPAGAR & CO. BY THE PARTNER,
MAHANTESH S/O. NAGANGOWDA PATIL,
AGE: 39 YEARS, OCCUPATION: BUSINESS,
R/O: APMC MARKET YARD, BAILHONGAL,
AT: BAILHONGAL, DIST: BELGAUM - 591102.
- PETITIONERS
CHANDRASHEKAR
LAXMAN
(BY MS. SHEBA A. KHANAPUR ADVOCATE FOR
KATTIMANI
SRI SUNIL S. DESAI, ADVOCATE)
Digitally signed by
CHANDRASHEKAR
LAXMAN KATTIMANI
Location: HIGH AND:
COURT OF
KARNATAKA
DHARWAD BENCH
1. THE AGRICULTURE PRODUCE MARKET COMMITTEE,
BAILHONGAL, DIST: BELGAUM BY ITS SECRETARY.
2. THE STATE OF KARNATAKA,
BY ITS CHIEF MARKETING OFFICER,
OFFICE OF CHIEF MARKETING OFFICER,
CRICKET STADIUM, BANGALORE.
- RESPONDENTS
(BY SRI C.S. PATIL, ADVOCATE FOR R1;
SRI MADANMOHAN M. KHANNUR, AGA FOR R2)
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NC: 2024:KHC-D:6465
WP No. 65168 of 2011
C/W WP No. 63797 of 2011
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN
THE NATURE OF CERTIORARI QUASHING COMMUNICATION ISSUED
BY THE 1ST RESPONDENT IN KRA.SUM:KRU.U.MA.SA/BLH/2241/
2011-2012 DATED 14.07.2011, KRA.SUM:KRU.U.MA.SA/BLH/2240/
2011-2012 DATED 14.07.2011 AND KRA.SUM:KRU.U.MA.SA/BLH/
2239/2011-2012 DATED 14.07.2011 WHICH ARE PRODUCED AS
ANNEXURES-A-A2 AS ILLEGAL AND VOID; ISSUE WRIT IN THE
NATURE OF MANDAMUS, DIRECTING THE RESPONDENT NOT TO
RAISE ANY DEMAND NOTICES DURING THE ABOVE SAID PERIOD IN
FUTURE & ETC.
IN W.P. NO. 63797/2011
BETWEEN:
1. M/S. B.A. SHETTAR & CO.,
BY BASAVRAJ S/O. APPAYAPPA SHETTAR,
AGE: 58 YEARS, OCCUPATION: BUSINESS,
R/O. APMC MARKET YARD, BAILHONGAL,
AT: BAILHONGAL, DIST: BELGAUM-591102.
2. M/S. G.S. HOOLI & SONS,
BY MALLIKARJUN GURUPADAPPA HOOLI,
AGE: 34 YEARS, OCCUPATION: BUSINESS,
R/O. APMC MARKET YARD, BAILHONGAL,
AT: BAILHONGAL, DIST: BELGAUM-591102.
3. M/S. ADARSH TRADING CO.,
BY ASHOK SHIVAPUTRAYYA MELLEPPANAVAR,
AGE: 55 YEARS, OCCUPATION: BUSINESS,
R/O. APMC MARKET YARD, BAILHONGAL,
AT: BAILHONGAL, DIST: BELGAUM-591102.
4. M/S. V.B. BELLAD,
BY VIRUPAKSHAPPA BASAVANNEPPA BELLAD,
AGE: 67 YEARS, OCCUPATION: BUSINESS,
R/O. APMC MARKET YARD, BAILHONGAL,
AT: BAILHONGAL, DIST: BELGAUM-591102.
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NC: 2024:KHC-D:6465
WP No. 65168 of 2011
C/W WP No. 63797 of 2011
5. M/S. S.G. HOOLI, BY S.G. HOOLI,
AGE: YRS, OCCUPATION: BUSINESS,
R/O. APMC MARKET YARD, BAILHONGAL,
AT: BAILHONGAL, DIST: BELGAUM-591102.
6. M/S. S.D. BILLUR & G.S. JAVALI,
BY TIPPANNA SHIVALINGAPPA BILLUR,
AGE: 71 YEARS, OCCUPATION: BUSINESS,
R/O. APMC MARKET YARD, BAILHONGAL,
AT: BAILHONGAL, DIST: BELGAUM-591102.
- PETITIONERS
(BY MS. SHEBA A. KHANAPUR ADVOCATE FOR
SRI SUNIL S. DESAI, ADVOCATE)
AND:
1. THE AGRICULTURE PRODUCE MARKET COMMITTEE,
BAILHONGAL, DIST: BELGAUM,
BY ITS SECRETARY.
2. THE DIRECTOR,
DEPARTMENT OF AGRICULTURE,
NO.11, RAJ BHAVAN,BANGALORE.
- RESPONDENTS
(BY SRI K. ANANDKUMAR & B. ANANDSHETTY, ADVOCATES FOR R1;
SRI MADANMOHAN M. KHANNUR, AGA FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN
THE NATURE OF CERTIORARI QUASHING THE DECISION OF 1ST
RESPONDENT VIDE ANNEXURE-B-B5/856/2011-12 DATED
07.06.2011, 569/2011-12 DATED 19.05.2011, 851/2011-12 DATED
07.06.2011, 842/2011-12 DATED 07.06.2011, 863/2011-12 DATED
07.06.2011, 868/2011-12 DATED 07.06.2011; ISSUE A WRIT IN THE
NATURE OF MANDAMUS, DIRECTING THE RESPONDENTS NOT TO
RAISE ANY DEMAND DURING THE ABOVE SAID PERIOD IN FUTURE &
ETC.
THESE PETITIONS, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
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NC: 2024:KHC-D:6465
WP No. 65168 of 2011
C/W WP No. 63797 of 2011
ORDER
In W.P.no.65168/2011:
This writ petition is filed seeking for following reliefs:
a. Issue a writ in the nature of certiorari quashing communication issued by the 1st respondent in Kra.Sum:Kru.U.Ma.Sa/BLH/2241/2011-2012 dated 14.07.2011,Kra.Sum:Kru.U.Ma.Sa/BLH/2240/2011
-2012 dated 14.07.2011 and Kra.Sum: Kru.U.Ma.
Sa/BLH/2239/2011-2012 dated 14.07.2011 which are produced as Annexures-A-A2 as illegal and void.
b. Issue writ in the nature of mandamus, directing the respondent not to raise any demand notices during the above said period in future.
In W.P.no.63797/2011 This writ petition is filed seeking for following reliefs:
a. Issue a writ in the nature of certiorari quashing the decision of 1st respondent vide Annexure-B- B5/856/2011-12 dated 07.06.2011, 569/2011-12 dated 19.05.2011, 851/2011-12 dated 07.06.2011, 842/2011-12 dated 0706.2011, 863/2011-12 dated 07.06.2011, 868/2011-12 dated 07.06.2011.
b. Issue a writ in the nature of mandamus, directing the respondent not to raise any demand during the above said period in future.
2. Ms.Sheba A. Khanapur, learned counsel representing Sri Sunil S. Desai, learned counsel for petitioners submitted that petitioners were market functionaries of Bailhongal Agricultural Produce Marketing Committee. It was submitted -5- NC: 2024:KHC-D:6465 WP No. 65168 of 2011 C/W WP No. 63797 of 2011 that they were regular in paying market fee. However, when respondent no.1-Committee issued circular dated 22.06.1987 in pursuance of Sec.65-A of Agriculture Produce Marketing Committee Act (for short 'APMC Act') and bye-law no.17/2, petitioners challenged same through their association in W.P. no.9740/1987 along with challenging constitutional validity of Sec.65-A of APMC Act. But, this Court dismissed said writ petition on 06.06.1988. Even W.A.no.1421/1988 was dismissed on 01.01.1991. Subsequently petitioners paid market fee.
3. It was submitted since there was an interim order of stay during pendency of proceedings and no time limit was specified for payment of market fee, levy of penalty for delayed payment was unsustainable. Hence, petitioners approached this Court in W.P.nos.23305-315/1991 and connected petitions for challenging demand notices. Said notices were quashed on ground that they were issued without proceedings for determination of market fee. It was submitted, subsequently, books of accounts of all Commission Agents were inspected and resolution dated 21.05.1995 as per Annexure-F passed on Subject no.6, with specific observation that Commission Agents -6- NC: 2024:KHC-D:6465 WP No. 65168 of 2011 C/W WP No. 63797 of 2011 had not realized market fee attracting market fee and there was no occasion for levy of penalty. In view of same, impugned demand of penalty was unsustainable and therefore sought for quashing of notices.
4. It was submitted, when petitioners were paying market fee regularly without any delay, demand of penalty was unsustainable and this Court in W.P.no.62862/2011 dated 24.05.2011 had directed petitioners to appear before respondent no.1 and avail opportunity of hearing. In pursuance of same, petitioners had given reply on 08.06.2011 as per Annexures-H and J to J2. Despite same, impugned demand notices were issued and respondents were insisting on payment of penalty.
5. On other hand Sri C.S. Patil, learned counsel for respondent no.1 in W.P.no.65168/2011 and Sri B. Anand Shetty, learned counsel for respondent no.1 in W.P.no.63797/2011 sought to justify impugned demand. It was submitted initially petitioners had challenged constitutional validity of Sec.65A of APMC Act which came to be dismissed. Thereafter, market functionaries paid market fee demanded. -7-
NC: 2024:KHC-D:6465 WP No. 65168 of 2011 C/W WP No. 63797 of 2011 But, as there was delayed payment, respondent no.1 was justified in levying penalty. Sec.65-A of APMC Act provides for imposition of penalty between 12 and 30% of market fee due.
6. It was submitted validity of power to impose penalty having been upheld, there was no merit in present challenge. Insofar as resolution no. 6 dated 21.05.1996 at Annexure-F, it was submitted, though an opinion was formed about non- realization of market fee by Commission Agents, said opinion was to be forwarded to Director of APMC and only after receipt of approval, it was to be implemented. Therefore said note would not come to rescue of petitioners. It was further submitted petitioners were having efficacious remedy under Section 132(2) of APMC Act, in case they were raising issue against any demand.
7. Insofar as W.P.no.63797/2011, Sri B. Anand Shetty, advocate for petitioners submitted, petitioners no.3 to 6 had paid entire outstanding amount and therefore their writ petitions were rendered infructuous. Further, even petitioners no.1 and 2 had made part payment and hence challenge was rendered otise.
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NC: 2024:KHC-D:6465 WP No. 65168 of 2011 C/W WP No. 63797 of 2011
8. Heard learned counsel for parties and perused writ petition records.
9. From above, it is seen dispute between parties is about levy of penalty of market fee due. While it is contention of petitioners that there was no realization of market fee and hence there was no belated payment calling for imposition of penalty, by relying upon observations of Committee in its resolution dated 21.05.1996 on Subject no.6, respondents contend that challenge against power to levy penalty having been rejected and this Court in W.P.no.62862/2011 on 24.05.2011 having remitted matter back for hearing petitioners, Secretary of APMC had afforded opportunity of hearing and thereafter arrived at factual finding about market fee due to belated payment and calling for levy of penalty. In view of same, demands were justified.
10. Thus dispute between parties is whether petitioners are due any amount to APMC. Sec. 132(2) of APMC Act reads as follows:
"132. Recovery of sums due to market Committee Board or the Seller.-9-
NC: 2024:KHC-D:6465 WP No. 65168 of 2011 C/W WP No. 63797 of 2011 (2) If any question arises whether a sum is due to the market committee or the Board or the seller within the meaning of sub-section (1) it shall be referred to the Director of Agricultural Marketing or an officer subordinate to him authorised by him and the Director of Agricultural Marketing or the authorised officer shall after making such enquiry as he deems fit and after giving to the person from whom the sum is alleged to be due an opportunity of being heard decide the question; and his decision shall be final and shall not be called in question in any court or before any other authority."
The provision provides for determination mechanism by Director of Agricultural Marketing ('DAM' for short).
11. Since determination of whether any sum is due to APMC would require factual enquiry, it would be appropriate to remit matter to the DAM on 28.05.2024 at 3.00 p.m. or on such later stage as may be intimated to them.
Liberty is reserved to take up all contentions before DAM, who shall secure records from petitioners and respondent no.1- Committee to verify whether any market fee was due and whether there was belated payment and shall give a specific finding about penalty payable.
Considering fact that demand is of year 1987, DAM shall conclude proceedings within an outer limit of one month from
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NC: 2024:KHC-D:6465 WP No. 65168 of 2011 C/W WP No. 63797 of 2011 28.05.2024. Respondent no.1 shall avail necessary records for such determination.
Petitioners shall co-operate for conclusion of enquiry within time indicated.
In W.P. No. 63797/2011, petitions filed by petitioners no.3 to 6 stand disposed of as infructuous as they had already paid market fee/ penalty. Therefore above direction shall not apply to them.
I.A.no.1/2011 in W.P.no.65168/2011 stands disposed off in view of disposal of main matter.
Sd/-
JUDGE BVV List No.: 1 Sl No.: 19