Bombay High Court
Agriculture Produce Market ... vs State Of Mah. Thr. Secty. And 3 Ors on 12 June, 2017
Bench: B.P. Dharmadhikari
wp89.12 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 89 OF 2012
Agriculture Produce Market Committee,
Sindi through its Chairman, Tahsil -
Seloo, District - Wardha. ... PETITIONER
Versus
1. State of Maharashtra through the
Secretary, Department of Cooperation
Marketing and Textiles, Mantralaya,
Mumbai 400 032.
2. The Director of Marketing,
Maharashtra State, Pune.
3. District Deputy Registrar,
Co-operative Societies, Wardha,
Tahsil & District - Wardha.
4. Indira Sahakari Soot Girni Ltd.,
Wardha, through its President,
Wardha, Tahsil & District -
Wardha. ... RESPONDENTS
Shri Subhash Paliwal, Advocate for the petitioner.
Shri A. Madiwale, AGP for respondent Nos. 1 to 3.
Shri R.M. Karode, Advocate for respondent No. 4.
.....
CORAM : B.P. DHARMADHIKARI
ROHIT B. DEO, JJ.
JUNE 12, 2017.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
Heard Shri Paliwal, learned counsel for the
petitioner, Shri Madiwale, learned AGP for respondent Nos. 1
to 3 and Shri Karode, learned counsel for respondent No. 4.
2. The petitioner - Agriculture Produce Market
Committee (APMC) is before this Court for recovering the
market fees of Rs.10,85,120/- with interest calculated at 12%
per annum as also further amount of Rs.3,63,422/- towards
loss of market fees suffered by it.
3. Shri Paliwal, learned counsel submits that
Respondent No. 4 - Cooperative Society cannot be treated
distinctly under Section 31(1) of the Maharashtra Agricultural
Produce Marketing (Development and Regulation) Act, 1963
(hereinafter referred to as 1963 Act). It qualifies as a purchaser
and, therefore, must be treated on same lines as any other
purchaser. Hence, concession given to it and direction to the
petitioner to recover market fee @ 50 paise for every purchase
of Rs.100/- is arbitrary and unsustainable. He invites attention
to notifications under Section 31(1) of the 1963 Act, issued
earlier to urge that as per those Gazette notifications, rate of
Rs.1/- was already sanctioned and it could not have been
brought down to 50 paise, only in case of Respondent No. 4.
He contends that this direction is issued with oblique motive to
favour Respondent No. 4 under political influence and has been
given retrospective operation. It is, therefore, malafide use of a
legal provision. Lastly, he submits that if the market fees were
specified by following particular procedure and through
Gazette notification, any modification/ change therein ought to
have been through the same procedure. Otherwise, Article 166
of the Constitution of India and Section 21 of the General
Clauses Act stands violated.
4. To support his submission, he places reliance upon
the Division Bench judgment of this Court in the case of
Agriculture Produce market Committee, Ralegaon & Ors. vs. State
of Maharashtra & Ors., reported at 2010 (3) Mh. L.J. 84.
5. The petition is being opposed strongly by the
learned AGP as also by Shri Karode, learned counsel, who
appears for respondent No. 4. Shri Karode, learned counsel at
the threshold submits that he is not aware of position of
Respondent No. 4 - Cooperative Society.
6. The respective counsel for the respondents invite
attention to the Maharashtra Relief Undertakings (Special
Provisions) Act, 1958, to urge that Respondent No. 4 is already
declared as a Relief Undertaking thereunder. A relief
undertaking, therefore, is treated as Class for the purposes of
market fees under Section 31(3) of the 1963 Act and has been
accordingly given concession. Huge losses were made by it
and hence in the interest of cooperative society,
power was exercised and concession has been extended.
7. The learned AGP invites attention to paragraphs 9 &
10 of reply affidavit filed by Respondent Nos. 1 to 3 to submit
that steps taken and procedure followed, while prescribing rate
of market fee at Rs.1/-, were also followed while extending
concession. According to learned AGP, therefore, there is no
arbitrariness or malafide use of power and writ petition as filed
is without any substance.
8. Shri Karode, learned counsel has invited attention
to prayer clauses to urge that there is no express prayer and
recovery is sought only from Respondent No. 1. He, therefore,
submits that in any case petition cannot be allowed and no writ
can be issued against Respondent No. 4.
9. A perusal of the Maharashtra Relief Undertakings
(Special Provisions) Act, 1958, shows that it makes a temporary
provision for industrial relations and other matters to enable
the State Government to conduct or provide loan, guarantee or
financial assistance for the conduct of, certain undertakings as a
measure of preventing unemployment or of unemployment
relief. Its Section 2(3) contains procedure therefor. The
notification under Section 3(1) has the effect for a period of not
exceeding 12 months and it is renewable by notification from
time to time for a further period, not exceeding 12 months at a
time. The aggregate period, however, cannot exceed 15 years.
The relief contemplated to such an Undertaking under Section
4(1)(a) is from all or any of the laws mentioned in the
Schedule to this 1958 Act. The Schedule contains the Labour
laws. It does not mention 1963 Act (supra). As such, status as
Relief Undertaking has got no relevance for the purposes of
1963 Act.
10. The impugned communications dated 20.11.2007,
17.01.2008 or 20.11.2008 do not mention provisions of 1958
Act (supra) at all. The communication dated 20.11.2008 is in
fact a letter sent by the State Government to the Director of
Marketing. It states that Respondent No. 4 has in the year
2006-07 suffered loss of Rs.64,54,545/- and the mill has been
declared as sick industry since last three years by the State
Government. Hence, for last three years i.e. retrospectively
from 2004-05, market fees should be charged at 50 paise for
purchases of Rs. 100 for next three years. This letter, therefore,
does not mention Section 31(1) of 1963 Act. The
communication dated 17.01.2008 is on the same lines and to
the same authority. In nutshell it again orders levy of market
fee at 50 paise only.
11. The communication dated 20.11.2007 is almost
identical with communication dated 20.11.2008 already
mentioned supra.
12. The notification issued under Section 31(1) on
04.02.2004 by and in the name of Governor of Maharashtra
mentions rate of Rs.1/- as market fee for season 2003-04. That
rate is applicable to Cooperative as also Textile Mills. On
21.09.2005, identical notification has been issued with rate of
50 paise. On 22.01.2008, again a notification has been issued
in relation to purchases under Cotton Monopoly Scheme and
for Cotton purchased under that Scheme, market fee has been
stipulated to be 50 paise. The period mentioned is from the
year 2004-05 onwards up to 2007-08. On 17.06.2010, a
notification has been issued under Section 31(1) stipulating
rate of market fee to be Rs.1/- for the year 2008-09.
13. On 18.10.1998, District Deputy Registrar sent a
letter to the petitioner pointing out that Respondent No. 4 was
declared as a sick unit and the State Government has asked to
recover market fee @ 50 paise. The contents of communication
dated 20.11.2007 mentioned in this letter are already briefly
reproduced by us supra.
14. The petitioner has also produced before the Court a
communication dated 30.07.2008 sent by the Director of
Marketing to Respondent No. 3. This communication states
that a proposal was put up before the State Government on
29.08.2007 and it has been approved on 17.01.2008.
Accordingly, sick industries in Vidarbha Region were to be
given concession in Market cess and market fees was to be
charged at 50 paise on purchase of Rs.100/- for the year 2006-
07. In this communication at Sr. No. 1, letter sent by the Vice
Chairman of Legislative Assembly of Maharashtra to the
Minister In-charge on 24.07.2007 and the orders of the Hon'ble
Minister upon it are also mentioned.
15. The documents supra, therefore, clearly show that
rate has been brought down from Rs.1/- to 50 paisa
retrospectively and it has not been through any Gazette
notification insofar as for the years 2005-06, 2006-07, 2007-08
or 2008-09 and 2009-10 are concerned.
16. The Gazette notification dated 21.09.2005 mentions
rate of 50 paise for every purchase of Rs.100/- only for the year
2004-05 that too if purchase is under Cotton Monopoly
Scheme.
17. A perusal of Section 31(1) of 1963 Act shows that
Market Committee is competent to levy and collect fees in the
prescribed manner but rate therefor is to be decided by it
before hand. The minimum and maximum rate is to be fixed
by the State Government by notification in the Official Gazette.
The market fee accordingly can be recovered from every
purchaser of agricultural produce marketed in the area. Thus,
minimum and maximum rate of market fee is to be decided by
the State Government and published in the Official Gazette.
Here, no such Gazette notification has been pointed out by any
of the respondents.
18. The petitioner has taken a ground specifically in this
respect. The petitioner has also relied upon Article 166 of the
Constitution of India and Section 21 of the General Clauses Act.
Respondent Nos. 1 to 3 have in their reply in paragraph 9
submitted that letters dated 20.11.2007, 17.01.2008 and
20.11.2008 are issued by following similar procedure.
However, publication of those letters in the Official Gazette has
nowhere been demonstrated.
19. In view of this finding, it is not necessary for us to
consider the arguments of Shri Paliwal, learned counsel, who
urged that rate prescribed under Section 31(1) must apply
uniformly to all purchasers and there cannot be any
discrimination amongst them on the basis of their status.
20. The prayer clauses in the petition read as under :
"(i) quashing and setting aside the
communications/ orders dated 20.11.2007 (Annex. 3),
dated 17.01.2008 (Annex. 4) and dated 20.11.2008
(Annex. 7) having been issued by Additional Secretary,
Government of Maharashtra without authority of law
and being discriminatory.
(ii) direct the respondent No. 1 to compensate
the petitioner Marketing Committee for the loss of
market fee Rs.10,85,120/- and 12% interest on the
said amount Rs.3,63,422/- which the petitioner
Marketing Committee has incurred by way of loss of
market fee due to illegal and actions without authority
of law favouring the respondent No. 4.
(iii) any other relief which this Hon'ble High
Court may deem fit in the facts and circumstances of
the case including case."
21. Thus, though the petitioner has sought
compensation only from Respondent No. 1, it is obvious that it
has to recover market fee from the purchaser i.e. Respondent
No. 4. The residuary prayer clause empowers it to claim
recovery from respondent No. 4 itself. If the act of Respondent
Nos. 1 to 3 in granting concession to Respondent No. 4 is
unsustainable, that by itself does not mean that the petitioner
can claim compensation from respondent Nos. 1 to 3.
22. We, therefore, find the petitioner entitled to recover
its dues towards market fees from respondent No. 4 with
interest as per law. The provisions contained in 1963 Act do
not stipulate any rate of interest. In this situation, we grant
interest @ 8% per annum to the petitioner - APMC.
23. Accordingly, we quash and set aside the orders/
communications dated 20.11.2007, 17.01.2008 and
20.11.2008. Respondent No. 4 is directed to pay dues of
market fee to the petitioner calculated @ Rs.1/- for every
purchase of Rs.100/- within four months from today with
interest calculated at 8% on the balance amount. If the amount
is not so paid, it is open to the petitioner to recover it from
respondent No. 4 as per law by executing the orders of this
Court.
24. Writ Petition is thus partly allowed and disposed of.
However, in the facts and circumstances of the case, there shall
be no order as to costs.
JUDGE JUDGE
*******
*GS.
