M/S Sharda Dall Mill A Proprietory ... vs M. P. State Agriculture Marketinn ...
2021 Latest Caselaw 3886 MP

    HIGH COURT OF MADHYA PRADESH : JABALPUR
                  (Division Bench)

                             W.A. No.1085/2019

                    M/s Sharda Dal Mill, Katni
                             -Versus-
   M.P. State Agricultural Marketing Board, Bhopal and another

Shri Mukesh Kumar Agrawal, Advocate for the appellant.
Shri Siddharth Sharma, Advocate for the respondent No.1.
Shri Samdarshi Tiwari, Advocate for the respondent No.2.
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CORAM :

       Hon'ble Shri Justice Mohammad Rafiq, Chief Justice.
       Hon'ble Shri Justice Vijay Kumar Shukla, Judge.
 --------------------------------------------------------------------------------
Reserved for judgment on : 22-7-2021
Judgment pronounced on             : 03-8-2021

                            JUDGMENT

(Jabalpur, dtd.03.08.2021)

Per : Vijay Kumar Shukla, J.-

The present intra-court appeal has been filed under

Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand

Nyaypeeth ko Appeal) Adhiniyam, 2005, being aggrieved by the

order dated 18-6-2019 passed by the learned Single Judge in WP-

6220-2017 [M/s Sharda Dal Mill vs. M.P. State Agricultural

Marketing Board & another] whereby the writ petition filed by the

appellant/petitioner [hereinafter referred to as "the appellant"] has

been dismissed.

2. The appellant has challenged the validity of the orders

passed by the respondents on 13-9-2014, 29-12-2016 and 10-4-2017

vide Annexure-P/1, Annexure-P/14 and Annexure-P/2 respectively.

The writ petition was the second round of litigation against the

impugned order dated 13-9-2014 passed by the respondent No.2

restraining the appellant from trading (sale & purchase) within the

market area of the Krishi Upaj Mandi Samiti, Katni, affirmed in

appeal vide order dated 10-4-2017, Annexure-P/2.

3. The main plank of submission of the learned counsel for

the appellant is that the impugned order is without jurisdiction and

there is no provision under the M.P. Krishi Upaj Mandi Adhiniyam,

1972 [for short, "the Act 1972"] for restraining sale and purchase of a

licence-holder without any reason.

4. The basic order dated 13-9-2014, Annexure-P/1 has been

passed by the respondent No.2 levying market fees as per Section

19(4) of the Act 1972. The appellant preferred an appeal under

Section 34 of the Act 1972 along with an application under Section

59 of the Act to the Managing Director for setting aside the action

taken by the respondent No.2 against it, but in both the proceedings,

i.e. the appeal as well as application preferred by the appellant, the

prayer has been rejected by the appellate authority vide order dated

10-4-2017 (Annexure-P/2) and 29-12-2016 (Annexure-P/14)

respectively.

5. The facts of the case succinctly stated are that, the

appellant is a licensee of the respondent No.2 and it has the licence of

wholesale trading since 1991. Under the said licence the appellant

was engaged in the trading of the notified agriculture produce and

had a Dal Mill. The appellant has also applied for another licence of

processing and it has installed a Dal Mill at Pawai, District Panna,

but the same has been refused by the respondents without assigning

any reason. Thus, it is clear that the appellant had no licence for

processing and admittedly, it has not installed any processing unit

within the market area falling within the jurisdiction of the

respondent No.2. It is also an admitted position that the appellant has

not applied for issuance of a licence under the provisions of Section

32-A of the Act 1972.

6. According to the appellant, it has a licence under Section

32 of the Act 1972 for trading business within the jurisdiction of the

respondent No.2. It is set forth that when the application moved by it

for grant of licence under Section 32 of the Act 1972 for the purpose

of business of trading/processing within the area under the

jurisdiction of the Krishi Upaj Mandi Samiti, Pawai, was not being

decided by the respondents, then it preferred a writ petition, forming

the subject-matter of W.P. No.18590/2014 which was disposed of by

this Court vide order dated 02-12-2014, directing the Krishi Upaj

Mandi Samiti, Pawai to consider the application of the appellant and

take a suitable decision for grant of license. Eventually, the

application of the appellant was also rejected. Thus, it is clear that

the appellant without having a valid licence even for trading and

processing, installed the Dal Mill and was involved in the business of

processing of notified agricultural produce particularly, Rahar Dal.

7. It is further pleaded on behalf of the appellant that in

pursuance to the licence to be granted by the respondent No.2, the

requisite fee was being paid by it and hence, there was no

outstanding against the appellant. The appellant was aggrieved with

the action taken by the respondent No.2, as the impugned order dated

13-9-2014 was issued against the appellant restraining it to carry out

any sale and purchase business of food grains within the market area

of Krishi Upaj Mandi Samiti, Katni. It was also required to deposit a

sum of Rs.31,37,499/- towards Mandi Shulk and Nirashri Shulk.

Notices have been issued to the appellant on different dates for

depositing the said amount, but that was not done and consequently,

the order dated 13-9-2014 (Annexure-P/1) was passed restraining the

appellant from carrying out the business within the market area of

Krishi Upaj Mandi Samiti.

8. It was further argued on behalf of the appellant that

before passing the impugned order dated 13-9-2014 (Annexure-P/1),

the appellant was not afforded an opportunity of being heard and

even no show cause notice was issued. It is also contended that in

the enquiry report (Annexure-P/13), it is found that the appellant has

not committed any irregularity and it was entitled to pay the market

fees only on 9 quintals and 80 Kgs. It was further contended that the

order dated 13-9-2014 is without jurisdiction as the appellant cannot

be restrained for carrying out the sale and purchase business, as it

was holding a valid licence under Section 32 of the Act 1972 and

such, restraint can be made only under the conditions prevailing in

Section 19-B of the Act 1972, whereas such default has been made

by the appellant in paying the market fees as nothing is outstanding.

9. The respondents have filed their reply contending inter

alia, that the appellant was not entitled to get exemption, as provided

under the notification dated 13-10-2006 (Annexure-P/6), as the same

was not available for it. It is luminescent from the notification that

exemption from the market fees is provided by the State to the

licence-holder bringing agricultural produce from out of the State for

processing in the Dal Mill established in the market area. The

appellant obtained a licence under Section 32 of the Act 1972 from

the respondent No.2 - Krishi Upaj Mandi Samiti, Katni, but it

established a Dal Mill in the market area of of Krishi Upaj Mandi

Samiti, Pawai, District Panna. Thus, it is clear that the benefit of

exemption of market fees as per the notification was not available to

the appellant, but despite that it took undue advantage of the same

suppressing the material information from the authority and as such,

notices were served upon the appellant time and again, for depositing

the evaded market fees, but the same was not deposited by the

appellant. An enquiry has also been conducted giving an opportunity

to the appellant to ascertain the irregularity committed by it and also

to ascertain the quantity of agricultural produce, especially Rahar

Dal which was brought and processed by the appellant. The enquiry

report, Annexure-P/13 reveals that the appellant has committed

illegality and also evaded payment of market fees. Thus, the

respondents have argued that there was no illegality on their part

while issuing the impugned order dated 13-9-2014 (Annexure-P/1).

It is asserted that the appellant has fraudulently taken undue

advantage of the notification, Annexure-P/5, just to evade the market

fess, whereas it was not entitled to get any exemption from the

market fees.

10. Regard being had to the arguments advanced on behalf of

the parties, the learned Single Judge framed the following issue for

adjudication :

"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 13-9-2014 was justified or not ?"

11. Admittedly, the appellant is a licensee of the respondent

No.2 since 1991 and it has been granted licence under Section 32 of

the Act 1972. It is seemly to reproduce the said provision. It reads

thus :

"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 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."

12. It is also admitted that the appellant has applied for grant

of licence for processing before the Krishi Upaj Mandi Samiti,

Pawai, where it has installed a Dal Mill, but that application has been

rejected, which means that the appellant had no licence of processing

or to carry out any such process in the unit of Dal Mill installed by it

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 appellant that the appellant has unlawfully taken

advantage of the notification issued by the State Government

exercising power under Section 69 of the Act 1972 granting whole

exemption from paying the market fees to the licence-holder who

brings foodgrains from out of the State for processing in the Dal

Mill established in the market area. It is limpid clear that such

notification is not available for the appellant because it was not

processing the foodgrains 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 fall within the jurisdiction of the

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 foodgrains from out of the State.

It is also clear from the notification that exemption from paying the

market fees was provided by the State to the Dal Mills involved in

processing of foodgrains, if the unit is installed in the market area for

which licence is granted but admittedly, the appellant had no licence

granted by the Krishi Upaj Mandi Samiti, Pawai where its Dal Mill

was installed.

13. The enquiry report (Annexure-P/13) further makes it

clear that the appellant had been given an opportunity to justify its

stand, but it failed to do so. It clearly spells out the irregularity

committed by the appellant taking undue advantage of the

notification dated 13-10-2006. The enquiry report further reveals the

quantity of foodgrain for which the appellant had to pay the market

fees, which it has evaded. Under such circumstances, Section 19 of

the Act 1972 provides for penal action. At this juncture, it is condign

to reproduce Section 19 of the Act 1972, which is extracted

hereunder :

"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.

(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 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, 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)

14. The stand taken by the appellant 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

appellant is also not acceptable, because from the record it is

manifest that on 28.06.2014 (Annexure-P/7) the appellant 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 Act , 1972. The said notice

was replied by the appellant which is appended as Annexure-P/8 to

the writ petition. It is noteworthy to mention here that even from the

reply submitted by the appellant it is discernible, that nowhere it is

stated that the appellant 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 appellant

and the appellant 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, it is clear, that the respondents have not committed any

illegality while issuing order impugned dated 13.09.2014, as the

appellant 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 Act, 1972.

15. As far as the contention raised by the learned counsel for

the appellant regarding competence of the respondents restraining the

appellant to carry out the sale and purchase business within the

market area of respondent No.2 is concerned, Section 19-B of the

Act, 1972 clearly provides the competence of the respondent No.2 to

restrain the appellant 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. It is apt to refer to Section 19-B of

the Act 1972, which is extracted hereunder :-

"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 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."

16. From the record, it is clear that the appellant availed

exemption on bringing 978.13 quintals Rahar Dal in the year 2011-12

and 7410.20 quintals in the year 2012-13 in the market area of the

Market Committee, Katni and did not pay the market fees. The

appellant has failed to establish processing unit within the market

area of Katni and the agricultural produce brought within the market

area Katni should be consumed in such processing unit. Thus, the

exemption was availed over certain quantity of agricultural produce

during the period in question contrary to the conditions of exemption

notification and, therefore, the action prescribed in para 3 of the

notification itself became incumbent. As set forth in paras 5.7 to

5.10 of the petition, the appellant has operated entire business from

Katni Samiti under the licence of wholesale trading.

17. The appellant had availed exemption from market fees

despite not possessing the licence for processing to be issued by the

Market Committee. The appellant was found guilty of suppressing

such status and, therefore, the exemption availed during the aforesaid

period was not legal and the consequences stipulated in condition

No.3 of the notification dated 13-10-2006 were attracted. Further,

the appellant did not furnish any information with regard to

transportation of the aforesaid quantity of agricultural produce within

the time limit stipulated in the notification to the Market Committee.

The appellant did not obtain any licence for trading or processing

from the Market Committee, Pawai within whose jurisdiction its Dall

Mill has been established. Thus, it is luminescent, that on the one

hand the appellant is operating a Dall Mill within the market area of

the Market Committee, Pawai without any licence and on the other,

the appellant has played mischief with the Market Committee, Katni

by evading the market fees or illegally availing the exemption.

18. Further, the appellant has not opted to obtain licence for

operating in two Market Committees, prescribed under Section 32-A

of the Act 1972. The appellant has not disclosed as to even the

market fee was paid over such purchases within the market area

Pawai to the Market Committee, Pawai. The Market Committee,

Pawai has already raised demand against the appellant and action

under the provisions of sections 48 and 49 of the Act 1972 has been

initiated. The matter has been reported to the competent court of

jurisdiction, i.e., the Judicial Magistrate First Class, Pawai District

Panna under Section 48 and the application for licence has also been

rejected by the Market Committee, Pawai on 02-02-2015. Thus,

demand has been raised for illegally availing exemption over

agricultural produce during the period 2011-2013 and the appellant

failed to respond the demand notices. Therefore, consequences not

only under Section 19(4) of the Act 1972 but under Section 19-B(2)

of the Act, were also attracted.

19. By the impugned order dated 13-9-2014 the appellant

was restrained to operate business of sale & purchase of agriculture

produce as per the implications of Section 19-B of the Act 1972.

Licence of the appellant was not renewed after the year 2015 by

implication of the second proviso to Sub-section (2) of Section 32 of

the Act 1972.

20. In view of the aforesaid, it is luculent that the appellant

had to pay the market fees to the respondent No.2 for bringing

foodgrains from outside the State, but has availed the same taking

undue advantage of the notification dated 13-10-2006 and as such

notices were issued to it by the respondents, but the appellant has not

deposited the requisite Mandi fees and, therefore, there is no

illegality in the action taken by the respondents. Further, no illegality

has been committed by the appellate authority while dismissing the

appeal preferred by the appellant holding that the appellant is guilty

of illegality committed by it by defrauding the respondents and

taking undue benefit of the notification, dated 13-10-2006. The

learned Single Judge has considered all material and relevant

provisions of the Act 1972 in proper perspective and thereafter the

writ petition was dismissed.

21. In the case of Baddula Lakshmaiah and others vs. Sri

Anjaneya Swami Temple and others, (1996) 3 SCC 52, the Apex

Court ruled, that in an intra-court appeal the appellate Court is a

Court of Correction which corrects its own orders, in exercise of the

same jurisdiction as was vested in the Single Bench. Such is not an

appeal against an order of subordinate court. In such appellate

jurisdiction the High Court exercises the powers of a Court of Error.

22. We do not perceive any illegality or perversity in the

order passed by the learned Single Judge and the findings ascribed in

the impugned order are impeccable and the same do not warrant any

interference in the present intra-court appeal.

23. Ex-consequenti, the writ appeal, being sans

substratum , is dismissed without any order as to costs.

       (Mohammad Rafiq)                              (Vijay Kumar Shukla)
         Chief Justice                                      Judge


ac.

Digitally signed by AJAY KUMAR CHATURVEDI
Date: 2021.08.03 17:55:27 +05'30'