M/S Vipin And Sons And 6 Others vs Rajya Krishi Utapadan Mandi ...
2021 Latest Caselaw 8093 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 39
 

 
Case :- WRIT - C No. - 9710 of 2021
 

 
Petitioner :- M/S Vipin And Sons And 6 Others
 
Respondent :- Rajya Krishi Utapadan Mandi Parishad And 2 Others
 
Counsel for Petitioner :- Awadh Sharma
 
Counsel for Respondent :- Archit Mandhyan,Adarsh Bhushan
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Mrs. Sadhna Rani (Thakur),J.

Heard learned counsels for the parties and perused the record.

By means of the present writ petition, the petitioners seeks to challenge the order dated 13.1.2021 passed by respondent no. 2, i.e. the Secretary, Krishi Utpadan Mandi Samiti, NOIDA (Gautam Budh Nagar).

The order impugned records that by virtue of the provision of Rule 67(2)(d) of the Uttar Pradesh Krishi Utpadan Mandi Niyamawali, 1965 (In short as "the Niyamawali, 1965"), for the reason of not carrying out business for a period of two consecutive years, the licence had been automatically revoked.

The order of cancellation of licence, according to the counsel for the respondents, is appelable before the Board under Section 25 of the U.P. Krishi Utpadan Mandi Adhiniyam, 1964 (In short as "the Adhiniyam, 1964").

Learned counsel for the petitioners, however, submits that the appeal is not available against an order of revocation of licence under Rule 67(2)(d) of the Niyamawali, 1965 as only against an order of cancellation of licence by invoking provision of Section 17 of the Adhiniyam, 1964, the appeal is maintainable.

The relevant provisions of Sections 17 and 25 of the Adhiniyam, 1964 and Rule 67(2)(d) of the Niyamawali, 1965 are noted hereunder:-

Section 17. Powers of the Committee:- A Committee shall, for the purposes of this Act, have the power to-

(i) issue or renew licences under this Act on such terms and conditions and subject to such restrictions as may be prescribed, or, after recording reasons therefor , refuse to issue or renew any such licence;

(ii) suspend or cancel licences issued or renewed under this Act:

Provided that before cancelling a licence except on the ground of conduct which has led to the conviction of the licensee under section 37, the Committee shall afford reasonable opportunity to him to show cause against the action proposed ;

(iii) levy and collect-

(a) such fees as may be prescribed for the issue or renewal of licences; and

(b) market fees, which shall be payable by purchasers, on transactions of sale of specified agricultural produce in the market area at such rates, being not less than one percentum and [not more than two and a half percentum] of the price of the agricultural produce so sold as the state Government may specify by notification in the Gazette; and development cess which shall be payable on such transactions of sale at the rate of half per centum of the price of the agricultural produce so sold, and such fee or development cess shall be realized in the following manner-

(1) if the produce is sold through a commission agent, the commission agent may realize the market fee and the development cess from the purchaser and shall be liable to pay the same to the Committee;

(2) if the produce is purchased directly by a trader from a producer, the trader shall be liable to pay the market fee and development cess to the Committee;

(3) if the produce is purchased by a trader from another trader, the trader, selling the produce may realize it from the purchaser and shall be liable to pay the market fee and development cess to the Committee :

Provided that notwithstanding anything to the contrary contained in any judgment, decree or order of any court, the trader selling the produce shall be liable and be deemed always to have been liable with effect from June 12, 1973 to pay the market fee to the Committee and shall not be absolved from such liability on the ground that he has not realized it from the purchaser : Provided further that the trader selling the produce shall not be absolved from the liability to pay the development cess on the ground that he has not realized it from the purchaser;

(4) in any other case of sale of such produce, the purchaser shall be liable to pay the market fee and development cess to the Committee;

Provided, that no market fee or development cess shall be levied or collected on the retail sale of any specified agricultural produce where such sale is made to the consumer for his domestic consumption only:

Provided further that notwithstanding anything contained in this Act, the Committee may at the option of, as the case may be, the commission agent, trader or purchaser, who has obtained the licence, accept a lump sum in lieu of the amount of market fee or development cess that may be payable by him for an agricultural year in respect of such specified agricultural produce, for such period, or such terms, and in such manner as the State Government may, by notified order specify:

[Provided also that [***], no market fee or development cess shall be levied on transactions of sale of specified agricultural produce on which market fee or development cess has been levied in any market area if the trader furnishes in the form and manner prescribed, a declaration certificate that on such specified agricultural produce market fee or development cess has already been levied in any other Market area;]

[iii-a) realise interest calculated in the manner prescribed in the bye- laws at the rate of two percent per mensem on the unpaid amount of market fee from the date immediately following the period prescribed for payment of market fee in the bye laws;]

(iv) operate and utilize be Market Committee Fund for all or any of the purposes of this Act ;

[(5) raise from the State Government or the Board or, subject to previous sanction by the Board, from any other Committee or a recognized financial institution, moneys required for discharging its functions under this Act;

"(v-a)" advance loans to the Board on such terms and conditions as may be mutually agreed upon between the Board and the Committee;

(v-b) advance loans to any other Committee subject to previous sanction of the Director on such terms and conditions as the Board may determine;]

(vi) employ, subject to the provisions of section 23, officers and servants of the Committee;

(vii) appoint Sub-Committees, each consisting of two or more of its members, for exercising such powers, performing such duties and discharging such functions as may be assigned to them by the Committee; and

(viii) exercise such other powers as may be prescribed.

[Explanation. - For the purpose of clause (iii), unless the contrary is proved, any specified agricultural produce taken out or proposed to be taken out of a market area by or on behalf of a licenced trader shall be presumed to have been sold within such area and in such case, the price of such produce presumed to be sold shall be deemed to be such reasonable price as may be ascertained in the manner prescribed.]

Section 25. Appeals. - Subject to rules made in this behalf under this Act, any person aggrieved by an order passed by a Committee under clause (i) or clause (ii) of section 17 may, within 30 days of such order, prefer an appeal to the Board in such manner as may be prescribed and the Board shall decide it after giving an opportunity of hearing both to the appellant and to the committee.]

Rule 67(2)(d):- In case the business or the work under the licence is not carried on for a consecutive period of two years, the licence shall stand revoked and if the applicant desires to carry it on again he shall have to obtain a fresh licence."

Section 17(ii) provides that the Committee constituted for the purpose of Act, has power to cancel licence issued under the Act and against the order of cancellation of licence, appeal can be preferred before the Board within a period of 30 days, wherein opportunity of hearing has to be granted to both the appellant and to the Committee.

Rule 67 of Niyamawali, 1965 has been framed for providing procedure for exercise of power under Section 17(a). Rule 67(2)(d) provides that in case the business or the work under the licence is not carried on for a period of consecutive two years, the licence shall stand revoked and the applicant, if desires to carry it on again shall have to obtain a fresh licence.

The order of cancellation of licence having been passed by the Committee in exercise of power under Clause (ii) of Section 17 for the circumstances arising out of Rule 27 is appelable under Section 25 before the Board.

At this stage, learned counsel for the petitioner submits that the petitioner is ready to file an appeal within a short period but the time period of 30 days given under Section 25 has already expired on account of pendency of the present writ petition.

In view of the said submission, the present writ petition is being disposed of with the following observation:-

In case, the petitioner files an appeal within a period of three weeks alongwith the copy of this order before the Board, it shall consider the appeal on merits without insisting upon the limitation in filing the appeal.

Order Date :- 16.7.2021

Brijesh