Research › Search › Judgment

Uttarakhand High Court · body

2018 DIGILAW 141 (UTT)

BRK Commodity India Ltd. v. State of Uttarakhand

2018-03-28

SHARAD KUMAR SHARMA, V.K.BIST

body2018
JUDGMENT : Sharad Kumar Sharma, J. 1. The appellant to the present special appeal is the writ petitioner, wherein, the appellant has questioned the veracity of notice dated 24th December, 2012, as contained in Annexure No. 27 of the writ petition, whereby the Secretary Grade-II, Krishi Utpadan Mandi Samiti, Rudrapur, District Udham Singh Nagar, has directed to recover the amount of Rs. 29,11,829.53 which is said to be payable by the appellant to respondent Mandi Samiti. The amount, thus, sought to be recovered, which was said to be payable by the appellant was due towards the development cess and mandi fee. 2. At this stage, we need not to go into the propriety of the impugned order and merits and demerits of the order impugned under challenge in the writ petition. 3. At the time when the writ petition was argued, following reliefs were claimed:- “(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned notice/ letter dated 24.12.2012 (contained as annexure no. 27 to the writ petition) passed by respondent no. 4. (ii) Issue a writ, order or direction in the nature of mandamus directing to the respondents not to restrain and harass to the petitioner relating recovery of illegal dues. (iii) Issue a writ, order or direction in the nature of mandamus directing the respondent no. 4 to pay Rs. 10 Lacs as compensation to the petitioner’s company. (iv) Issue any suitable order or direction as this Hon’ble Court may deem fit and proper in the circumstances of the case. (v) To award the cost of the writ petition to the petitioner.” 4. The Mandi Samiti, i.e. the respondent to the writ petition challenged the motion of writ for the reliefs claimed therein on the ground that against the order passed by the Secretary imposing the mandi fee and development cess, as amount due to be paid by appellant before changing registration with changed name, there is remedy available to the petitioner by preferring the appeal permissible under law. Accordingly, the writ petition was disposed of by the impugned order under challenge in appeal, directing the petitioner to prefer an appeal as provided under the statute. The learned Single Judge while passing the impugned order in appeal, had rather also extended the benefit of Section 14 of the Limitation Act. Accordingly, the writ petition was disposed of by the impugned order under challenge in appeal, directing the petitioner to prefer an appeal as provided under the statute. The learned Single Judge while passing the impugned order in appeal, had rather also extended the benefit of Section 14 of the Limitation Act. It was further observed that since the appellant wanted to get licence with the changed name of the firm, the same would only be issued on presenting the receipt of deposit of licence fee, development cess alongwith the affidavit and office memorandum of the changed firm as well as Form 6 R and Form 9 F, issued in favour of the earlier firm is required to be deposited for the said purpose. 5. Under the Act of 1964, its Section 40 gives the rule making power. Under the Rules, thus framed called as U.K. Krishi Utpadan Mandi Niyamawali, 1965. Chapter VI deals with imposition of market fee and development cess. It levy is dependent on provisions of Sub-clause (b) of clause (iii) of Section 17. Similarly, levy of licence fee is provided under Rule 67 of the Rules of 1965. All the fee and cess levied under the Rules and Act, could be recovered under the procedure provided under the Rule 68. The Rule 68 provides mode of recovery to be in manner provided under Section 17 (iii) (b). Rule 68 reads as under:- “68. Recovery of fee [Section 17 (iii) 68 (1)]. (1) The market fee and development cess on specified agricultural produce shall be payable as soon as such produce is sold in the market area in accordance with the terms and conditions specified in the bye-laws. (2) The market fee and development cess shall be realized in the manner laid down in sub-clause (b) of clause (iii) of Section 17. (3) The licence fee shall be paid alongwith the application for licence: Provided that in case the Market Committee refuses to issue a licence, the fee deposited by the applicant shall be refunded to him. (4) The payment of the market fee and licence fee shall be made to the Committee in cash and in special circumstances by Bank Draft of Nationalized Bank.” 6. Hence, any mode of recovery of development cess, market fee or licence fee by virtue of order passed by any authority would be appealable under Section 25 of the Act. 7. (4) The payment of the market fee and licence fee shall be made to the Committee in cash and in special circumstances by Bank Draft of Nationalized Bank.” 6. Hence, any mode of recovery of development cess, market fee or licence fee by virtue of order passed by any authority would be appealable under Section 25 of the Act. 7. The appeal under the Act is contemplated under Section 25 of the U.P. Krishi Utpadan Maandi Adhiniyam, 1964. On account of the fact that the controversy which was sought to be agitated by the petitioner in the writ petition pertains to the scrutiny of the imposition of development cess and mandi fee said to be payable by appellant, which would entail a scrutiny of evidence and its appreciation of facts for the purpose of fixation of liability. Under these factual backdrops under which the case reached to this Court, it cannot be decided by the Writ Court under Article 226 of the Constitution of India, as appraisal of evidence is not within the permissible scope of writ courts. By the impugned order under challenge, the writ petition was disposed of on the ground of availability of statutory alternative remedy and, as a matter of fact, it will not result into deciding the case on merits, but rather the appellant has been relegated to avail statutory alternative remedy which is otherwise available to him under law. 8. Even the learned Single Judge, while dismissing the writ petition has protected the interest of the appellant by granting him benefit of Section 14 of the Limitation Act. 9. In view of the above, this Court finds no error in the impugned judgment under challenge in appeal. 10. Accordingly, the appeal is dismissed. No order as to costs.