Madhya Pradesh High Court
M/S Sharda Dall Mill vs M.P. State Agriculture Marketing Board on 18 June, 2019
1 Writ Petition No.6220/2017
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Writ Petition No. 6220/2017
M/s Sharda Dal Mill
Vs.
M.P. State Agriculture Marketing Board & Another
Date of Order 13.12.2018
Bench Constituted Single Bench
Order delivered by Hon'ble Shri Justice Sanjay Dwivedi
Whether approved for No
reporting
Name of counsels for For Petitioner: Shri Mukesh Agrawal,
parties Advocate.
For Respondent No.1/State: Shri
Samdarshi Tiwari, Additional Adv.
General.
For Respondent No.2 : Shri Pranay Choubey, Advocate.
Law laid down
Significant paragraph 14
number
(JUDGMENT)
(18.06.2019)
Since the pleadings are complete, at the request of the learned counsel for the parties, matter is heard finally.
2. By the instant petition, the petitioner has questioned the validity of the order passed by the respondents on 13.09.2014 (Annexure-P/1), 29.12.2016 (Annexure-P/14) and 10.04.2017 (Annexure-P/2).
3. The basic order dated 13.09.2014 (Annexure-P/1) has been 2 Writ Petition No.6220/2017 passed by the respondent No.2 levying market fees as per Section 19(4) of the Krishi Upaj Mandi Adhiniyam, 1972 (hereinafter referred to as "the Adhiniyam, 1972"). The petitioner preferred an appeal under Section 34 of the Adhiniyam, 1972 and also preferred an application under Section 59 to the Managing Director for setting aside the action taken by the respondent No.2 against it but in both the proceedings, the appeal as well as the application preferred by the petitioner has been rejected. The Appellate Authority decided the appeal vide order dated 10.04.2017 (Annexure-P/2) and vide order dated 29.12.2016 (Annexure-P/14), the application preferred by the petitioner under Section 59 has also been rejected.
4. As per the facts of the case, the petitioner is a licensee of respondent No.2 and has licence of 'wholesale trading' since 1991. Under the said licence the petitioner was involved in trading of notified agriculture produce and had a 'Dal Mill'. The Company has also applied for another licence of 'Processing' as it has installed a 'Dal Mill' at Pawai in District Panna but that licence has been refused without any reason. It is thus clear that the petitioner had no licence for processing and admittedly it has not installed and established any processing unit within the market area which comes under the jurisdiction of respondent No.2. It is also an admitted position that the petitioner has not applied for licence under the provision of Section 32-A of the Adhiniyam, 1972. As per the petitioner, it has a licence under Section 32 of the Adhiniyam, 1972 for trading business within the jurisdiction of respondent No.2. The application moved by 3 Writ Petition No.6220/2017 the petitioner for grant of licence under Section 32 for doing business of trading/processing within the area under the jurisdiction of Krishi Upaj Mandi Samiti, Pawai was not being decided and then a writ petition was preferred by the petitioner being W.P. No.18590/2014 which was disposed of vide order dated 02.12.2014 directing the Krishi Upaj Mandi Samiti, Pawai to consider and take a suitable decision for grant of licence on the pending application of the petitioner. Finally, that application was also rejected. It is thus clear that the petitioner without having any licence even for trading and processing installed a Dal Mill and was involved in the business of processing of notified agriculture produce particularly Rahar Dal.
5. As stated by the petitioner that in pursuance to the licence to be granted by the respondent No.2, a requisite fee was being paid by it to the respondent No.2 and as such, there was no outstanding against it. The petitioner, however, got aggrieved with the action taken by the respondent No.2 as the order dated 13.09.2014 was issued against it restraining it to carry out any sale and purchase business of food grains within the market area of Krishi Upaj Mandi Samiti, Katni and also asked it to deposit an amount of Rs.31,37,499/- towards Mandi Shulk and Nirashri Shulk. Notices have been issued to the petitioner on different dates for depositing the said amount but that was not done and consequently, the order dated 13.09.2014 (Annexure-P/1) was issued restraining the petitioner from carrying out business within the market area of Krishi Upaj Samiti, Katni.
6. The respondents have filed their reply stating therein that the 4 Writ Petition No.6220/2017 petitioner was not entitled to get exemption as provided under the notification dated 13.10.2006 (Anneuxre-P/5) as the same was not available for it. It is clear from the recital contained in the notification that exemption from the market fees is provided by the State to the licence holder bringing agriculture produce from out of the State for processing in the Dal Mills established in the market area. The petitioner obtained a licence under Section 32 from Krishi Upaj Mandi Samiti, Katni (respondent No.2) but established Dal Mill in the market area of Krishi Upaj Mandi Samiti of Pawai District Panna. Thus, it is clear that the benefit of exemption of market fees as per this notification was not available to the petitioner but despite that he took undue advantage of the same suppressing this material information from the authority and as such, the petitioner was given notices by the respondents time and again for depositing the evaded market fees but the same was not deposited by the petitioner although, notices have been replied. An inquiry has also been conducted giving an opportunity to the petitioner to ascertain the irregularity committed by it and also to ascertain the quantity of agriculture produce especially Rahar Dal which was brought and processed by the petitioner. The inquiry report was also submitted i.e. Annexure-P/13 indicating that the petitioner has committed illegality and also evaded market fees. The quantity was also determined in the inquiry report. The respondents have thus stated that there was no illegality committed by them while issuing order dated 13.09.2014 (Annexure- P/1). As per the admitted position, it is clear that the petitioner has 5 Writ Petition No.6220/2017 fraudulently taken undue advantage of the notification Annexure-P/5 just to evade the market fees whereas it was not entitled to get any exemption from the market fees.
7. The petitioner has also filed a rejoinder reiterating the same facts as has been stated in the petition without justifying its unlawful act as to how it could take benefit of the notification dated 13.10.2006 (Annexure-P/5).
8. The learned counsel for the petitioner, at the time of arguments, has contended that before issuing order impugned dated 13.09.2014 (Annexure-P/1), the petitioner was not given any opportunity and even no show cause was issued to it. It is also contended that in the inquiry report (Annexure-P/13), it is found that the petitioner has not committed any irregularity and it was entitled to pay market fees only on 9 quintals and 80 Kgs. The learned counsel for the petitioner further contended that the order dated 13.09.2014 is without jurisdiction as the petitioner cannot be restrained for carrying out the sale and purchase business as it was holding the licence under Section 32 of the Adhiniyam, 1972 and such restrain can be made only under the conditions prevailing in Section 19-B of the Adhiniyam, 1972 whereas no such default has been made by the petitioner in paying the market fees as nothing is outstanding.
9. Arguments heard and record perused.
10. In view of the arguments advanced by the learned counsel for the parties and also taking note of the facts involved in the case, the 6 Writ Petition No.6220/2017 core question emerges which is to be adjudicated and decided is -
"Whether the petitioner was entitled to get the benefit of notification issued on 13th October, 2006 (Annexure-P/5) and if not, then action taken by the respondent No.2 vide issuing order dated 13.09.2014 was justified or not ?"
11. It is clear from the pleadings of the parties and arguments advanced by them that the question which is already framed by this Court is to be answered. Admittedly, the petitioner is a licensee of respondent No.2 since 1991 and it has been granted licence under Section 32 of the Adhiniyam, 1972. For the purpose of convenience, Section 32 of the Adhiniyam, 1972 is being reproduced herein below :-
"S.32 Power to grant licence. - (1) Every person specified in section 31 who desires to operate in the market area shall apply to the market committee for grant of a licence or renewal thereof in such manner and within such period as may be prescribed by bye- laws.
(2) Every such application shall be accompanied by such fee as the Director may, subject to the limits prescribed, specify in this behalf.
(3) The market committee may grant or renew the licence or for reasons to be recorded in writing refuse to grant or renew the licence :
[Provided that if the market committee fails to grant or renew a licence within a period of sic weeks from the date of receipt of application therefor the licence shall be deemed to have been granted or 7 Writ Petition No.6220/2017 renewed, as the case may be.
Provided further that the licence shall not be renewed, if any Mandi Committee dues including dues under the Madhya Pradesh Nirashriton Avam Nirdhana Vyaktion Ki Sahayata Adhiniyam, 1970 are outstanding against the applicant :
Provided also that no licence shall be granted to a minor.] (4) All licences granted or renewed under this section shall be subject to the provisions of this Act and the rules and bye-laws made thereunder.
(5) No commission agent or a broker or both shall act in any transaction between the agriculturist-seller or trader-purchaser, on behalf of an agriculturist-seller nor shall he deduct any amount towards commission or dalali from the sale proceeds payable to the agriculturist-seller.
S.32-A. Licence for more than one market area.- (1) Every person specified in Section 31 who desires to operate in more than one market areas, shall apply to such authority/officer notified by the State Government for grant of a licence or renewal thereof in such manner and within such period and on such condition as may be prescribed in the rules.
(2) The authority/officer notified by the State Government may grant or renew the licence or for reasons to be recorded in writing, refuse to grant or renew the licence.
(3) All licenses granted or renewed under this section shall be subject to the provision of this Act and the rules and bye-laws made thereunder."8 Writ Petition No.6220/2017
It is also an admitted position that the petitioner has applied for grant of licence for processing before the Krishi Upaj Mandi Samiti, Pawai where it has installed Dal Mill but that application has been rejected meaning thereby that the petitioner had no licence of processing or to carry out any such process in the unit of Dal Mill installed within the market area of Krishi Upaj Mandi Samiti, Pawai. It is also clear from the stand taken by the respondents and action taken against the petitioner that the petitioner has unlawfully taken advantage of the notification issued by the State Government exercising power under Section 69 of the Adhiniyam, 1972 granting whole exemption from paying the market fees to the licence holder who brings food grains from out of the State for processing in the Dal Mills established in the market area. It is as clear as day-light that such notification is not available for the petitioner because the petitioner was not processing the food grains particularly Rahar Dal in the market area of Krishi Upaj Mandi Samiti, Katni as it has Dal Mill installed in some other place which does not comes within the jurisdiction of respondent No.2. Despite that, it has taken the benefit of the notification (Annexure-P/5) just to evade the market fees which is payable by it as it was bringing the food grains from out of the State. It is also clear from the recital of notification that exemption from paying the market fees was provided by the State to the Dal Mills involved in processing of food grains if the unit is installed in the market area for which licence is granted but admittedly, the 9 Writ Petition No.6220/2017 petitioner had no licence granted by the Krishi Upaj Mandi Samiti, Pawai where its Dal Mill was installed.
12. It is also clear from the inquiry report (Annexure-P/13) that the petitioner had been given an opportunity to justify its stand but it failed to do so and the inquiry report clearly contained the irregularity committed by the petitioner taking undue advantage of the notification dated 13.10.2006. The report further contained the quantity for which the petitioner had to pay the market fees which it has evaded. Under such circumstances, Section 19 of the Adhiniyam, 1972 clearly provides for the penal action and is clear from Section 19 of the Adhiniyam, 1972 which is being reproduced herein below :-
Section 19-Power to levy market fee- (1) Every Market Committee shall levy market fee-
(i) on the sale of notified agriculture produce whether brought from within the State or from outside the State into the market area; and
(ii) on the notified agriculture produce whether brought from within the State or from outside the State into the market areas and used for processing or manufacturing;
at such rates as may be fixed by the State Government from time to time subject to a minimum rate of fifty paise and a maximum of two rupees for every one hundred rupees of the price in the manner prescribed:
Provided that no Market Committee other than the one in whose market area the notified agriculture produce is brought for sale or processing or manufacturing by an agriculturist or trader, as the case may be, for the first time shall levy such market fee.10 Writ Petition No.6220/2017
(2) The market fees shall be payable by the buyer of the notified agriculture produce and shall not be deducted from the price payable to the seller: Provided that where the buyer of a notified agriculture produce cannot be identified, all the fees shall be payable by the person who may have sold or brought the produce for sale in the market area:
Provided further that in case of commercial transaction between traders in the market area, the market fees shall be collected and paid by the seller:
Provided further also that no fees shall be levied upto 31st March, 1990 on such agriculture produce as may be specified by the State Government by notification in this behalf if such produce has been sold outside the market yard or sub-market yard by an agriculturist to a co-operative society of which he is a member:
Provided also that for the agriculture Produce brought in the market area for commercial transaction or for processing or for manufacturing the market fee shall be deposited by the buyer or processor or manufacturer, as the case may be, in the market committee office within fourteen days if the buyer or processor or manufacturer has not submitted the permit issued under sub-section (6) of Section 19. (3) The market fees referred to in sub-section (1) shall not be levied on any notified agriculture produce--
(i) in more than one market area, in the State; or
(ii) more than once in the same market area; if it is resold,-
(a) in the case of (i) in the market other than the one in which it was brought for sale or bought or sold by an agriculturist or trader, as 11 Writ Petition No.6220/2017 the case may be, for the first time and has suffered fee therein; or
(b) in the case of (ii), in the same market area;
in the course of commercial transactions between the traders or to consumers subject to furnishing of information in such form as may be prescribed in the bye-laws by the person concerned to the effect that the notified agriculture produce being so resold has already suffered fee in the other market area of the State.
(4) If any notified agriculture produce is found to have been processed, manufactured, resold or sold out of yard without payment of market fee payable on such produce the market fee shall be levied and recovered on five times the market value of the processed or manufactured produce or value of the agriculture produce as the case may be.
(5) The market functionaries, as the Market Committee may by bye-laws specify, shall maintain account relating to sale and purchase or processing or manufacturing in such forms and submit to the Market Committee such periodical returns as may be prescribed.
(6) No notified agriculture produce shall be removed out of the market yard, market proper or the market area as the case may be, except in accordance with a permit issued by the market committee, in such form and in such manner as may be prescribed by the bye-
laws:
Provided that if any person removes or transports the processed or manufactured product of notified agriculture produce from the market yard, market proper or the market area, as the case may be, 12 Writ Petition No.6220/2017 such person shall carry with him the bill or cash memorandum issued under Section 43 of the Madhya Pradesh Vanijyik Kar Adhiniyam, 1994 (No. 5 of 1995).
(7) The Market Committee may levy and collect entrance fee on vehicles, plying on hire, which may enter into market yard at such rate as may be specified in the bye-laws.
(emphasis supplied)
13. As per the stand taken by the petitioner that before issuing order impugned dated 13.09.2014 (AnnexureP/1), it was not provided any opportunity and no notice was even issued to it but such stand of the petitioner is also not acceptable because from the record it is clear that on 28.06.2014 (Annexure-P/7) petitioner was given a notice informing that it has no entitlement to get exemption from Mandi Shulk and asked it to deposit the requisite Mandi Shulk/ Nirashri Shulk as per Section 19(4) of the Adhiniyam, 1972. The said notice was replied by the petitioner which is annexed as Annexure-P/8. It is noteworthy to mention here that even from the reply submitted by the petitioner it can be seen that nowhere it is stated that the petitioner has not taken the benefit of the notification and if taken as to how it was eligible to get the said benefit. Likewise, further notice was given on 19.07.2014 (Annexure-P/9), which was replied by Annexure-P/10 and another notice on 28.08.2014 (Annexure-P/11) but nothing was done by the petitioner and the petitioner has also not denied that it has evaded the market fees under the garb of the notification dated 13.10.2006 (Annexure-P/5). Thus, in my opinion it is clear that the 13 Writ Petition No.6220/2017 respondents have not committed any illegality while issuing order impugned dated 13.09.2014 as the petitioner has unlawfully taken the benefit of the notification dated 13.10.2006 and evaded the Mandi Shulk for which penal action has been taken by the respondents under Section 19(4) of the Adhiniyam, 1972.
As far as the contention raised by the learned counsel for the petitioner regarding competence of the respondents restraining the petitioner to carry out the sale and purchase business within the market area of respondent No.2 is concerned, Section 19-B of the Adhiniyam, 1972 clearly provides as the competency of the respondent No.2 to restrain the petitioner to enter into further transaction in the market area or even any other market area for which the market fees has not been paid by the licence holder. For ready reference, Section 19-B of the Adhiniyam, 1972 has been reproduced herein below :-
"S.19-B. Default in payment of market fee.- (1) Any person liable to pay market fee under this Act shall pay the same to the market committee within fourteen days of the purchase of the notified agriculture produce or its import into the market area for processing or manufacturing and in default he shall be liable to pay the market fee together with the interest at the rate of twenty four percent per annum.
(2) If the person liable to pay the market fee and the interest under sub-section (1) fails to pay the same within one month, such person shall not be allowed to enter into further transactions in that market area 14 Writ Petition No.6220/2017 or any other market area and the market fee with interest shall be recovered as arrears of land revenue and the licence of such person shall be liable to be cancelled."
14. The learned counsel for the petitioner has also argued that as per Section 21 of the Adhiniyam, 1972, if the assessment has been done of a financial year by the Secretary in pursuant to the statement of purchase or sale of notified agriculture produce then the said assessment cannot be reopened unless the proceedings initiated by the Secretary is challenged before the market committee by way of an appeal.
The learned counsel for the petitioner further submits that the petitioner has submitted the statement of purchase or sale of notified agriculture produce of the respective financial year and the same was verified by the Secretary giving approval, therefore, no action under Section 19(4) of the Adhiniyam, 1972 could have been taken. However, I am not convinced with the arguments advanced by the learned counsel for the petitioner for the reason that Section 21 of the Adhiniyam, 1972 has no application in the present case. As the question framed herein above and the conduct in which the petitioner was held guilty for taking undue advantage of the notification got exemption from the market fees though, it was not entitled for the same and such notification was not available to him. It is not a case of re-verification or reassessment already done by the officers of respondent No.2 hence, this contention of the learned counsel for the 15 Writ Petition No.6220/2017 petitioner has no substance.
15. In view of the aforesaid discussion, it is clear that the petitioner had to pay the market fees to respondent No.2 for bringing the food grains from out of the State but it has evaded the same taking undue advantage of the notification dated 13.10.2006 (Annexure-P/5) and as such, notices were issued to it by the respondents but the petitioner has not deposited the requisite Mandi Shulk and, therefore, I do not find any infirmity and illegality in the action taken by the respondents issuing order impugned to the petitioner which was also appealed by the petitioner but the Appellate Authority has also rightly dismissed the appeal holding the petitioner guilty of illegality committed by it defrauding the respondents and taking undue benefit of the notification dated 13.10.2006 (Annexure-P/5).
16. The petition therefore, being without any substance and merit, is hereby dismissed. Parties shall bear their own costs.
Certified copy as per rules.
(SANJAY DWIVEDI) JUDGE Priya.P Digitally signed by Priyanka Pithawe Date: 2019.06.26 15:16:27 +05'30'