Gujarat High Court
Ishwarbhai Gagandas Gidwani vs State Of Gujaratehrough Secretary on 12 December, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/7450/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7450 of 2016
==========================================================
ISHWARBHAI GAGANDAS GIDWANI
Versus
STATE OF GUJARATEHROUGH SECRETARY
==========================================================
Appearance:
BHARATKUMAR K SOLANKI(8483) for the PETITIONER(s) No. 1,2,3,4,5,6
MR. RONAK RAVAL, ASST. GOVERNMENT PLEADER/PP(99) for the
RESPONDENT(s) No. 1
DS AFF.NOT FILED (N)(11) for the RESPONDENT(s) No. 1
MR BS PATEL(602) for the RESPONDENT(s) No. 2
MRS RANJAN B PATEL(646) for the RESPONDENT(s) No. 2
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 3
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 12/12/2018
ORAL ORDER
1. By this writ application under Article 226 of the Constitution of India, the writ applicants have prayed for the following reliefs;
"(A) This Honourable Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing respondent No.2 not to detain vehicles of the petitioners carrying agricultural produce from outside the market area to market area and from market area to outside the market area and not to demand the market fees from the petitioners;
(B) This Hon'ble Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing respondent No.2 to accept the Form "V" as provided in Rule 48(2) of the Gujarat Agricultural Produce Market Page 1 of 11 C/SCA/7450/2016 ORDER Rules, 1965;
(C ) This Hon'ble Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside demand notice dated 21.1.2016 and directing respondent No.2 to refund the market fees collected from the petitioners forcefully, as per the details given hereinabove.
(D) Pending hearing and final disposal of the petition, this Honourable Court may be pleased (I) to restrain respondent No.2 from demanding the market fees from the petitioners.
(iii) to direct respondent No.2 to accept from "V" produced by the petitioners as provided in Rule 48(2) of the Gujarat Agricultural Produce Market Ruiles, 1965;
(E) And to pass such other and further orders as may be deemed just and proper."
2. The case of the writ applicants, in their own words, as pleaded in the writ application is as under;
"2. It is respectfully submitted that the petitioners are running industries at GIDC area, Naroda, Ahmedabad and they are engaged in the business of processing food grains and pulses. The petitioners are having Small Scale Industry Certificates. Copies of Small Scale Industry Certificates of the petitioners are annexed hereto and marked as Annexure "A", collectively.
3. It is respectfully submitted that respondent No.2 detained the trucks of the petitioner carrying raw materials for the use of industries of the petitioners and, without any reason, the respondents are demanding market fees. The petitioners informed respondent No.2 that the petitioners are running industries and, as per Rule 48(2) of the Gujarat Agricultural Produce Markets Rules, 1965, the Industries, which purchase agricultural produce for their own use, are not liable to pay market fee. Rule 48(2) of the Rules read as under:Page 2 of 11 C/SCA/7450/2016 ORDER
"48.Market Fees:
(1) xx xx (2) No fees shall be levied on agricultural produce brought from outside the market area into the market area for use therein by the industrial concerns situated in the market area or for export and in respect of which declaration has been mode and a certificate has been obtained in Form V:
Provided that if such agricultural produce brought into the market area for export is not exported or removed therefrom before the expiry of twenty days from the date on which it was so brought, the market committee shall levy and collect fees on such agricultural produce from the person bringing the produce into the market area at such rates as may be specified in the bye-laws subject to the maxima and minima specified in sub-rule(i ).
Provided that no fee shalt be payable on a sale or purchase to which sub-section (3) of section 6 applies."
4. It is respectfully submitted that the petitioners tried to submit Form "V" every time to respondent No.2, but respondent No.2 refused to accept the said Form and compelled the petitioners to pay the market fees, failing which, the vehicles carrying such agricultural produce will be detained.
5. It is respectfully submitted that respondent No.2 issued demand notice dated 21.1.2016 demanding to pay market fees of Rs.5,720/-\ immediately and also detained the vehicles of the petitioners carrying agricultural produce. A copy of demand notice dated 21.1.2016 is annexed hereto and marked as Annexure-"B"
6. Thereafter, the officials of respondent No.2 visited the industrial premises of the petitioners and forcibly collected the market fees at lumpsum on account by cheque/cash and without determining the market fees.
The details of such payments are as under: Page 3 of 11 C/SCA/7450/2016 ORDER 1 1, Hira Enterprises Rs.10,200/-. 2 R.V. Food Industries Rs.10,300/. 3 Nanak Industries Rs.10,000/- 4 Narayan Pulse Mill Rs.10,600/- 5 Laxmi Foods Rs.10,200/-
Respondent No.2 issued receipts of such payments.
7. It is respectfully submitted that respondent No.3 issued circular dated 29..2.2016 directing respondent No.2 to dispose of Form "V" without any delay. The said circular, inter-alia, provides that no fees shall be levied on agricultural produce brought from outside the market area into the market area for use therein by the industrial concerns situated in the market area or for export and in respect of which declaration has been made and a certificate has been obtained in Form V. A copy of circular dated 29.2.2016 issued by' respondent No.3 is annexed hereto and marked as Annexure "C".
8. It is respectfully submitted that the petitioners purchase agricultural produce like wheat for further processing to make Atta. In the same way, the petitioners purchase Tuvar and other pulses to process and make Tuvar Dal, Mung Dal, Mung Mogar Dal, Chaana Dal, and Basin for their own use.
9. In the premises, the petitioners prefer present petition under Articles 226 and 227 of the Constitution of India challenging the impugned action of respondent No.2 of charging and collecting market fees contrary to Rule 48(2) of the Rules and circular dated 29.2.2016 issued by respondent No.3, on the following amongst other grounds.
10. It is respectfully submitted that the impugned action of respondent No.2 is unjust, improper, unreasonable, arbitrary and violative of Article 14 of Constitution of India.
11. It is respectfully submitted that circular dated 29.2.2016 is on the face of it untenable in as much as it is not only contrary to Rule 48(2) of the Rules but also Page 4 of 11 C/SCA/7450/2016 ORDER circular dated 29.2.2016 issued by respondent No.3. It is respectfully submitted that the Officers of respondent no.2 are intercepting the vehicles transporting goods bought and sold by Petitioners and other traders indiscriminately in the outskirts of Ahmedabad. These vehicles are carrying agricultural produce that are otherwise perishable in nature. The officers of respondent no. 2 forcibly stop vehicles carrying agricultural produce owned by Petitioners and they keep such vehicles on road side for long hours. This impugned action of respondent no. 2 of detaining the vehicles of the petitioners and demanding the market fee is illegal, unlawful, arbitrary and contrary to Rule 48(2) of the Rules and circular dated 29.2.2016 issued by respondent No.3. "
3. Thus, it appears from the pleadings that the applicants are aggrieved by the action of the Market Committee in demanding the market fees on the entry of the agricultural produce within the market area. The case of the writ applicants is that the agricultural produce purchased and brought within the market area is for the purpose of using in their industry. The case of the writ applicants is substantially based on Rule 48(2) of the Gujarat Agricultural Produce Markets Rules, 1965. It also appears that the respondent No.2 issued a demand notice dated 21.01.2016, calling upon the writ applicants to pay the market fees to the tune of Rs.5,720/-.
4. Mr. B.S. Patel, the learned counsel appearing for the Market Committee vehemently submitted that the writ petition is thoroughly misconceived. Mr. Patel would submit that his client is not disputing the fact that the writ applicants are running an industry and such industry is a processing house. However, according to Mr. Patel, the writ applicants have not Page 5 of 11 C/SCA/7450/2016 ORDER obtained any license for the purpose of running the processing house. Mr. Patel further submitted that the Market Committee can collect or levy market fees from the processing house on the market produce which are bought or sold in the market area by the writ applicants. Mr. Patel invited the attention of this Court to the Amendment Act No.17 of 2007 by which section 28(2)(a) came to be introduced. According to Mr. Patel, the writ applicants failed to adduce any evidence with regard to the payment of market cess of the agricultural produce bought by them in view of the provisions of section 28(2) of the Act.
5. On behalf of the respondent No.2, an affidavit-in-reply has been filed, duly affirmed by the Secretary of the Market Committee, inter alia, stating as under;
"(c) I submit that the petitioner is asking the prayer for a writ of mandamus or direction to the respondent No.2 market committee to accept Form No. V as provided in Rule 48(2) of the Gujarat Agriculture Produce Markets Rules,1965 even though the respondent No.2 market committee has never refused and has accepted all the forms, i.e. Form-V submitted by the petitioner. Hence, the entire relief in the petition is on wrong premises and the result of incorrect statement. Hence, the petition deserves to be dismissed.
(d) I submit that the petitioner is not disputing the fact that the petitioner is running industry and is processing house. The respondent No.2 market committee can collect the market fees from the processing house also on the agriculture produce which are bought or sold in the market area of respondent No.2 market committee by the petitioner. I submit that there is amendment by Act No.17 of 2007 and section 28(2)(a) of the Act is introduced which reads as under.
"SECTION 28 : Power to levy fee Page 6 of 11 C/SCA/7450/2016 ORDER (1) XXX xxx xxx (2) (a) The market fee specified in sub-sec. (1) shall not be 1e'lied for the second time in any market area from the buyer who is a processor, grader, packer, value addition centre or exporter of an agriculture produce and market fee has already been paid on that agricultural produce in any market and the information in this context has been furnished, as prescribed, by the person concerned that the payment of market fee has already been made in other market , provided such proof as may be prescribed is furnished to the Director by the buyer who is doing processing, grading, packing, value addition or export within such period as may be prescribed by the Government."
(e) I submit that the petitioner has not produced the payment of market cess of agriculture produce which has been bought by him and in view of the provisions of section 28(2) of the Act which has come into force, the petitioner cannot claim exemption from the payment of market cess.
(f) I submit that what is raised by the petitioner is the disputed questions of facts and the same cannot be gone into in a writ jurisdiction under Article 226 of the Constitution of India.
(g) I submit that for charging of market fees illegally, there is separate machinery provided under the Act for which the present petition is not maintainable as alternative remedy is available. Hence also, the petition is not maintainable.
(h) I reiterate that respondent No.2 market committee is collecting market cess only as per the provisions of section 28 of the Act read with Rule 48 of the Rules and in no case, respondent No.2 market committee has committed breach of any of the provisions of the Act or Rules. Hence also, no writ may be issued against the respondent No.2 market committee which is collecting market cess as per the provisions of the Act and the Rules. "
6. To the reply of the respondent No.2, an affidavit-in- Page 7 of 11 C/SCA/7450/2016 ORDER rejoinder has also been filed, inter alia, stating as under;
"6. I further submit that then after on dated 19.05.2016 the Respondent No.2 has sent us another letter. In the said letter, Respondent No.2 directed us to file Form No.F and Form No.F1. The specimen copy of the same form was also attached with the said letter. The copy of the said letter hereby annexed and marked as Annexure-B.
7. I further submit that on 11.7.2016 the Respondent No.2 send us another letter in this letter Respondent No.2 has made wrong interpretation of Rule 48(2) which was totally contrary of rule 48(2).
The Respondent No.2 stated that the agricultural produce which purchased by us should be disposed within 20 days of purchased date. And also order us to deposit the purchase and sales bills within 3 days at the market committee office. The copy of the said letter dated 11.7.2016 annexed here and marked as Annexure-C.
8. I further submit that every time the Respondent No.2 has taken different view in different manner Respondent No.2 not sure that which rule they want to apply.
9. I further submits that Respondent No.2 has demanded the market fees under section 28(2)(A) which was applicable for processors not for industry. Industry falls under rule 48(2) and hence no market fees levy to industry that purchased agricultural produce for his own use.
10. I further submit that Respondent No.2 has stated that petitioner has not produce the receipt of market fees which paid any market committee of agricultural produce which brought in market area by petitioner. Under rules 48(2) no need to produce any payment receipt of market fees paid anywhere. "
7. Mr. Patel as well as Mr. Ronak Raval, the learned AGP invited the attention of this Court to a letter addressed by the Market Committee to the writ applicants dated 19.05.2016 at Page 8 of 11 C/SCA/7450/2016 ORDER page-37, Annexure-B to this writ application. The letter reads thus;
"The Agricultural Produce Market Committee, Ahmedabad Sardar Patel Market, O/s. Jamalpur Gate, Opp. Calico Mill, Ahmedabad- 380022 Ja.No.84/2016/2017 Date. 19-05-2016 REGISTERED AD.
To, Hira Enterprise, Plot no. 617, Phase-4, G.I.D.C. Naroda, Ahmedabad- 382 330 Subject: Sample of certificate and affidavit as per Rule- 48(2) of Gujarat Agriculture Produce Market Rules-1965 Reference: Your certificates from Date.1/4/16 to 30/4/16 Sir, With reference to the above mentioned subject, it is stated that your goodself are doing the processing of pulses in the area of Agriculture Produce Market Committee, Ahmedabad and in reference to it you had sent the Form-5 to A.P.M.C. Ahmedabad through Registered A.D. and which was received by us on date 17/5/2016.
You had sent the Form no.5 filled up in detail and going through it, it transpires that your institution is doing the business of processing of pulses and brings the item from outside but as your goodself were doing the business in Naroda GIDC area of Agriculture Produce Market Committee, Ahmedabad and so, you need to get the license from Agriculture Produce Market Committee, Ahmedabad as a processor and as per the amended Agriculture Produce Market Rules-2014 each and every processor has to do the registration and even as per Rule-48(2) the Form no.5, the new F-1 form as per newly amended Rule-48(3) shall also be attested by your goodself and hence both Form no.5 as per Rule-48(2) and F-1 form as per Rule-48(3) both shall be produced Page 9 of 11 C/SCA/7450/2016 ORDER together and only then the proceedings shall be completed as per the rules, hence you are directed to complete the necessary procedure and co-operate with the market committee. For your reference, the Rule-48(3) (4) and F and F-1 form are also sent alongwith. Please fill up the Form-F within a period of 10 days and you can do the business as a processor as per the rules and regulations.
Your co-operation is expected.
Enclosure:-
(1) Xerox copy of Rule-48(3)(4)
(2) Form F
(3) Form F-1
Signature
(Vishwajit R. Patel)
Asst. Secretary
Agriculture Produce Market Committee, Ahmedabad"
8. The contents of the letter, referred to above, are self- explanatory. The writ applicants are expected to comply with what has been stated in the letter and that should put an end to this litigation.
9. This writ application is disposed of with a direction that the writ applicants shall respond to the letter dated 19.05.2016 and the Market Committee shall hear the writ applicants in that regard and take an appropriate decision in accordance with law. If, thereafter, the writ applicants are dissatisfied or aggrieved by the decision of the Market Committee, then it shall be open for them to avail of appropriate legal remedy before the appropriate forum in accordance with law under the Act. I also take notice of the fact that one of the reliefs sought by the writ applicants is for refund of the fees paid by them to Page 10 of 11 C/SCA/7450/2016 ORDER the Market Committee. Having regard to the materials on record, I am not inclined to go into the issue as regards refund of the fees. This issue can be looked into only after appropriate decision is taken by the Market Committee in accordance with the letter dated 19.05.2016, referred to above. Notice stands discharged.
(J.B.PARDIWALA, J) Vahid Page 11 of 11