The Div Manager, Mah State Co-Op ... vs The Agricultural Produce Market ...
2018 Latest Caselaw 315 Bom

                                    1             LPA 37 of 2008

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                    Letters Patent Appeal No.37 of 2008
                                     In
                       Writ Petition No.3235 of 2007

     1)      The Divisional Manager,
             Jalgaon Division
             The Maharashtra State Co-operative
             Cotton Growers' Marketing
             Federation Ltd.
             Having office at Ashirwad Building,
             Near Natraj Theatre, Zilla Peth,
             Jalgaon.

     2)      The Sub Divisional Manager,
             Jalgaon Sub Division,
             The Maharashtra State Co-operative
             Cotton Growers' Marketing
             Federation Ltd.
             Having office at Gendalal Mill,
             Shivajinagar Jalgaon.           .. Appellants.

                      Versus

     1)      The Agricultural Produce Market
             Committee, Jalgaon,
             Through its Secretary.

     2)      The State of Maharashtra
             Through the Principal Secretary,
             Co-operation, Marketing and
             Textile Department,
             Mantralaya, Mumbai - 32.         .. Respondents.

                                  ----
     Shri. Shivaji T. Shelke, Advocate, for appellants.
     Shri. G.V. Wani, Advocate, for respondent No.1.
     Shri. S.B. Pulkundwar, Assistant Government Pleader, for
     respondent No.2.
                                  ----




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                                                2              LPA 37 of 2008

                                      Coram:       T.V. NALAWADE &
                                                   S.K. KOTWAL, JJ.

                                      Date:        11 January 2018


     JUDGMENT (Per T.V. Talawade, J.):

1) The appeal is filed against the decision given by

the learned Single Judge of this Court by which Writ

Petition No.3235/2007 is dismissed. The writ petition was

filed by the present appellant to challenge the order dated

9-5-2007 passed by the Tribunal constituted under the

provisions of the Maharashtra Agricultural Produce

Marketing (Development and Regulation) Act, 1963 (for

short, "the APMC Act"). Application No.1/2007 was filed

before the Tribunal by respondent No.1, Market

Committee, Jalgaon and it was allowed by the Tribunal.

Present appellant was directed by the Tribunal to pay

Rs.49,78,656/- as market fees and supervision fees to the

Market Committee, respondent No.1. Both the sides are

heard.

2) The appellant is the Chief Agent of the State

Government, an institution created for procurement of

3 LPA 37 of 2008

raw cotton. The institution is created to implement the

scheme of the State Government and through the

appellant, the State Government purchases raw cotton

from market. The object behind the scheme was to see

that the farmers of this State are not exploited and they

get reasonable price of cotton. The Government also

wanted to see that the farmers get minimum support price

due to such purchase by the agent of the State

Government.

3) Agricultural Produce Market Committee

Jalgaon is created under the APMC Act. The Committee

has the power to levy and collect fees from every

purchaser of agricultural produce marketed in the market

area. The appellant was expected to purchase the cotton

in the market area of the Market Committee Jalgaon. As

per the provision of the APMC Act, the purchaser is

required to make payment of cess, fees to the Market

Committee and for purchasing the raw cotton from market

the appellant was expected to pay fees to the Market

Committee, Jalgaon.

                                           4              LPA 37 of 2008

     4)               In view of the provisions of Section 31 of the

APMC Act, the minimum and maximum fees can be fixed

by the State Government by issuing notification in the

official gazette. As per this provision, the Market

Committee can levy and recover the fees within the limits

fixed by the State Government. The provision of section

31(1) of the APMC Act runs as under :

"31 - Power of Market Committee to levy fees and rates of commission (adat) : (1) It shall be competent to a market committee to levy and collect fees in the prescribed manner at such rates as may be decided by it (but subject to the minimum and maximum rates which may be fixed by the State Government by notification in the Official Gazette, in that behalf), from every purchaser of agricultural produce marketed in the market area."

5) Every year the State Government was issuing

notification as per section 31 of the APMC Act to fix the

fees in respect of raw cotton. By notification dated 10-11-

2003 the State Government had informed the decision

that for the year 2003-2004 the fees was increased from

50 paisa per hundred rupees to Re. 1 per hundred rupees.

Direction was given to the appellant to start purchasing

the cotton in that notification from 10-11-2003. Thus, for

the year 2003-2004 the State Government had allowed to

5 LPA 37 of 2008

levy fees of Re.1 per hundred rupees of the purchase

price. As per the definition given in section 2(f) of the

Maharashtra Raw Cotton (Procurement, Processing and

Marketing) Act, 1971, "cotton season" means the period

from the 1st day of July of any year to the 30th day of June

of the next year (both days inclusive). As per the practice,

the appellant was to start purchase of the cotton only

after receiving direction from the State Government.

6) For the year 2004-2005 the State Government

issued notification on 21-9-2005 and fixed the aforesaid

fees as 50 paise per hundred rupees. The appellant paid

the fees to the Market Committee Jalgaon at this rate for

the year 2004-2005.

7) In the meeting dated 11-11-2004 the Market

Committee Jalgaon had passed resolution to levy and

recover the fees at the rate of Re.1 per hundred rupees in

view of the previous notification of the year 2003-2004. By

notice dated 20-2-2007 the Market Committee Jalgaon

informed to the appellant that the appellant was liable to

pay the fees at the rate of Re.1 per hundred rupees and it

6 LPA 37 of 2008

was informed that the notification of the State

Government dated 21-9-2005 which was issued by the

State Government for the year 2004-2005 was not

applicable for the purchases made by the present

appellant for that year. It was also informed that if the

remaining amount was not paid, the Market Committee

Jalgaon would take the matter to the Tribunal constituted

under the APMC Act.

8) When the matter was taken before the Tribunal ,

the appellant produced copy of the notification dated 21-9-

2005 and contended that the Market Committee Jalgaon

had no power to levy and recover the fees at the rate of

Re.1 per hundred rupees as the State Government had

fixed the the fees at the rate of fifty paisa per hundred

rupees. The Tribunal rejected this contention and

accepted the proposition made by the Market Committee

Jalgaon. This decision was challenged by the appellant by

filing aforesaid writ petition. The learned Single Judge of

this Court also held that in view of the resolution of the

Market Committee Jalgaon which had the basis of the

previous notification of the State Government, the

7 LPA 37 of 2008

appellant was liable to pay the amount demanded by the

Market Committee Jalgaon, at the rate of Re.1 per

hundred rupees.

9) The learned Single Judge of this Court has

considered the provision of section 31 of the APMC Act.

The learned Single Judge has held that the bye-laws were

framed by the Market Committee Jalgaon on the basis of

the previous notification and so as per the bye-laws the

present appellant was liable to pay the fees. Section 31

has put restriction on the power of the Market Committee

to levy and recover the fees and so the Market Committee

cannot recover the fees at higher rate on the basis of the

notification which was issued for the previous year.

Provision of section 31 shows that the power is kept with

the State Government to fix the fees and that power

includes the power to change the fees also. In view of the

restriction given by section 31 of the APMC Act it was not

possible for the Market Committee Jalgaon to recover the

fees at higher rate. As per the practice also the State

Government was issuing notification for every year,

season. Thus, the rate fixed on the basis of the previous

8 LPA 37 of 2008

notification by the Market Committee could not have been

made applicable in view of the subsequent notification

dated 21-9-2005. In the notice of demand issued by the

Market Committee dated 20-2-2007 the year in which the

purchase was made is specifically mentioned as 2004-

2005 and this year is covered by the notification dated 21-

9-2005. In view of this position of law and as the bye-laws

of the Market Committee cannot supersede the provisions

of the APMC Act, this Court holds that both the Tribunal

and the learned Single Judge of this Court have committed

error in holding that the present appellant is liable to pay

the fees at the rate of Re.1 per hundred rupees of the

purchase price.

10) In the result, the appeal is allowed. The orders

of the Tribunal and the learned Single Judge mentioned

above are hereby set aside.

            Sd/-                                     Sd/-
     (S.K. KOTWAL, J.)                       (T.V. NALAWADE, J.)




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