Research › Search › Judgment

Andhra High Court · body

2023 DIGILAW 62 (AP)

ITC Ltd. Kolkata v. A. M. C. E. G. Dist.

2023-01-05

K.MANMADHA RAO

body2023
ORDER : This Writ Petition is filed, seeking the following relief : “…..to issue a Writ, Order or direction to call for the records culminating in the purported under MRF No.17/2005-2006, dated 21.03.2009 passed by the respondent No.1 herein viz., the Agricultural Market Committee, Sampara, Nadakuduru, East Godavari District, through its Secretary, Special Grade (FAC); (b) Quash the same by the issuance of a Writ of Certiorari or any other appropriate Writ, order or direction as this Hon’ble Court may deem fit and proper and pass such other orders.” 2. Heard Mr. S. Sridharan, learned Senior Counsel for the petitioner and Mr. B. Prakasam, learned Standing Counsel for the respondents. 3. The brief facts of the case are that the petitioner/ company purchases rice from various suppliers spread over throughout the country and particularly insists on the sellers to pay the market fee wherever applicable and thereafter, supply the same to the petitioner by transporting such rice to the petitioner’s designated locations/ E & F Agents. The petitioner purchased large quantities of Raw and Boiled Rice from the various registered traders in the state of Andhra Pradesh and Orissa during the assessment year 2005-06 and filed monthly statements to that effect. As per rule 74 specifically provides and prohibits that the fees leviable under sub-section (1) of Section 12 on notified agricultural produce livestock and products of livestock, if paid, to a market committee within the State shall not be collected by any Market Committee subject to production of proof of payment of fees if already paid once. The petitioner has also submitted the proofs relating to the assessment orders of the various Market Committees. The respondent issued impugned order in a sum of Rs.65,35,366/- is illegal and arbitrary. Therefore inaction of the respondents is questioned in this Writ Petition. 4. Per contra, the 1st respondent filed counter-affidavit denying all material averments made in the writ petition and mainly contended that the petitioner is evading payment of market fee on purchase of rice showing unreasonable grounds. During financial year 2004-05 the petitioner purchased Rs.62,59,47,485/- value of rice and exported through Kakinada port to other countries. Out of which AMC permits were submitted for value of Rs.5,23,42,588/- only. During financial year 2004-05 the petitioner purchased Rs.62,59,47,485/- value of rice and exported through Kakinada port to other countries. Out of which AMC permits were submitted for value of Rs.5,23,42,588/- only. At that time the AMC, Kakinada after allowing exemption, assessed the market fee at Rs.57,36,209/- on net purchase of Rs.57,36,20,886-58 and issued assessment order directing them to pay the amount, but the petitioner failed to pay the same. Assailing the said order, the petitioner approached this Court under 12G without availing statutory appeal under Section 12E and Revision under Section 12F of A.P (AP & LS) Markets Act, without paying disputed market fee showing unreasonable clauses. The stocks were packed and exported within the jurisdiction of this respondent and the commodity and nature of business attracts the provision of the Act. As per Act it is very clear that if market fee is paid at any AMC in Andhra Pradesh, the receipt is valid throughout the state as per Act, 1966 and as per rule 74(3) of AP (AP&LS) Market rules, 1969. The responsibility for proof of payment of market fee should be on license, or else market fee is payable. The assessment order of petitioner’s sellers are not proof of payment of market fees and it is only assessment order. Further at the time of formation of AMC Sampara a market and market yard was established at Nadakuduru in Ac.21.66 cents with all infrastructure facilities. The said Nadakuduru Market yard is at a distance of 4 KM from Kakinada port. This Court also held that licensed traders cannot escape from payment of market fee on the ground that facilities are not provided by the market committee. Therefore the writ petition is liable to be dismissed. 5. During hearing learned counsel for the petitioner reiterated the contents urged in the writ petition and placed on record the decisions of the Hon’ble Apex Court in “Badat and Co., Bombay Vs. East India Trading Company”, AIR 1964 SC 538 wherein it was held at Page No. SC 545 as follows : “Order VIII R.3. it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages. R.4. it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages. R.4. Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.” In the case of “Sushil Kumar Vs. Rakesh Kumar”, AIR 2004 SC 230 , wherein it was held as follows : “73. In our opinion, the approach of the High Court was not correct. It failed to apply the legal principles as contained in Order VIII, Rules 3 and 5 of the Code of Civil Procedure. The High Court had also not analysed the evidences adduced on behalf of the appellant in this behalf in details but merely rejected the same summarily stating that the vague statements had been made by some witnesses. Once it is held that the statements made in paragraph 18 of the election petition have not been specifically denied or disputed in the written statement, the allegations made therein would be deemed to have been admitted, and, thus, no evidence contrary thereto or inconsistent therewith could have been permitted to be laid. 74……..The written statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively, but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof of necessary…..” So also, in the case of “Asha Vs. Pt.B.D.Sharma University of Health Sciences and Others”, AIR 2012 SC 3396 wherein it was held as follows : “18. In such an event, the admission itself being proof, no other proof of necessary…..” So also, in the case of “Asha Vs. Pt.B.D.Sharma University of Health Sciences and Others”, AIR 2012 SC 3396 wherein it was held as follows : “18. From a bare reading of the reply filed by the respondents, it is clear that there is no specific denial of the above-noted averments made by the appellant. It is a settled principle of the law of pleadings that an averment made by the appellant is expected to be specifically denied by the replying party. If there is no specific denial, then such averment is deemed to have been admitted by the respondent. In the present case, it is evident that the above-noted averments in the writ petition were relevant and material to the case. In fact, the entire case of the appellant hinged on these three paragraphs of the writ petition. It was thus, expected of the respondents to reply these averments specifically, in fact to make a proper reference to the records relevant to these paragraphs. In view of the omission on part of the respondents to refer to any relevant records and failure to specifically deny the averments made by the appellant, we are of the considered view that the appellant has been able to make out a case for interference”. 6. This Court perused the material papers on record. This Court is of the considered view that this issue is no longer Res Integra as the decision of the Hon’ble Apex Court in “Gujarat Ambuja Exports Limited and Another Vs. State of Uttarakhand and Others”, (2016) 3 SCC 601 held as under : “36. A perusal of the above mentioned Judgments makes it clear that List I Entry 52 governs the process of manufacture and production. Therefore, in the instant case, the State Legislature did not have the competence to enact the impugned provisions which should to levy market fee and development cess even on those agricultural produce which were not being brought into the market for the purpose of sale, but for the purpose of manufacture or further processing. Therefore, in the instant case, the State Legislature did not have the competence to enact the impugned provisions which should to levy market fee and development cess even on those agricultural produce which were not being brought into the market for the purpose of sale, but for the purpose of manufacture or further processing. Since the State Legislature was not competent to enact the impugned provision of Section 27(c)(iii) of the Act, the same is liable to be struck down as the same was enacted by the State Legislature without having the legislative competence to do so.” Further in “Krishi Utpadan Mandi Samiti, Ghaziabad and Another Vs. Metal Craft and Others”, (2008) 7 SCC 780 held as under : “14. A plain reading of Section 17(iii)(b) of the Act shows that the Committee is empowered to levy and collect market fee which shall be payable on transaction of sale of agricultural produce in the market area. The words “specified agricultural produce in the market area” have great relevance. The manner of realisation of market fee has been enumerated in sub-clauses (1), (2), (3) and (4) of Section 17(iii)(b). Reference is to “produce”. This apparently shows that physical presence of the agricultural produce within the market area is necessary for levy of market fee. The Explanation to Section 17(iii)(b) appended at the end of the section lays down that 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 the licensed traders shall be presumed to have been sold within such area. The explanation has application only if the agricultural produce is physically present within the market area. The Explanation becomes redundant if the stand of the appellant that Section 17(iii)(b) is applicable even in cases where agricultural produce is neither physically brought nor is in exitence within the market area.” In the case of “Bhadrachalam Paper Boards Ltd. Vs. Union of India”, 1994 (69) E.L.T. 482 (A.P.) held as under : “6. We shall first take up the contention of the learned Standing Counsel that the petitioner has an effective alternative remedy. We may observe that the rule that before invoking extraordinary jurisdiction of the High Court alternative remedy should be exhausted is a rule of convenience and discretion and not a rule of law. We shall first take up the contention of the learned Standing Counsel that the petitioner has an effective alternative remedy. We may observe that the rule that before invoking extraordinary jurisdiction of the High Court alternative remedy should be exhausted is a rule of convenience and discretion and not a rule of law. This rule has no application if the impugned act is without jurisdiction. Further in exercise of its jurisdiction under Article 226, the High Court will ordinarily reject a Writ Petition on the ground of alternative remedy at the earliest stage at the time of admission. But where it was admitted on merits and the matter is taken up after seven years, in our view, it will not be just and proper exercise of discretion to non-suit the petitioner on the ground of not availing the alternative remedy, particularly when the questions of fact are not in dispute”. 7. Learned counsel for the petitioner would contend that the decisions supra and also catena of decisions placed on record are squarely applies to the facts of the present writ petition. As per counter-affidavit, it clearly shows that Nadakuduru Market yard is at a distance of 4 KM from Kakinada Port. Therefore the said Market yard, where the stocks kept by the petitioner are not within the jurisdiction of the respondent and that the petitioner is not liable to pay any amount. Under these circumstances, the petitioner is entitled for the relief as claimed in the writ petition. 8. Further learned counsel for the petitioner draws the attention of this Court with regard to Section 12 of the A.P. (Agricultural Produce and Livestock) Markets Act, 1966, which reproduced hereunder : 12. Levy of fees by the Market Committee: (1) The market committee shall levy fees on any notified agricultural produce, livestock or products of livestock purchased or sold in the notified market area (at such rate, not exceeding)**(two rupees) as may be specified in the bye-laws) for every hundred rupees of the aggregate amount for which the notified agricultural produce, live stock or products of live stock is purchased or sold, whether for cash or deferred payment or other valuable consideration. Further Agricultural Produce, Livestock and Products of Livestock under Section 3 of the Andhra Pradesh (Agricultural Produce and Live stock) Markets Act, 1966 is shown as Schedule-II and shown the livestock in detail. 9. Further Agricultural Produce, Livestock and Products of Livestock under Section 3 of the Andhra Pradesh (Agricultural Produce and Live stock) Markets Act, 1966 is shown as Schedule-II and shown the livestock in detail. 9. As per Section 12(B) of the Act dealing with assessment of market fee contemplates the trader being given an opportunity of providing correctness/ completeness of the returns submitted by him and making of such enquiry as is considered necessary, before passing an assessment order which supposedly a best judgment assessment only, even when the facts and figures are clearly provided by the petitioner. Therefore, it is contended by the learned counsel for the petitioner that the petitioner had every reason to believe that as it was entitled to be heard, specifically, a request having been made, before any assessment order was made especially when such plenty of evidence had been produced apart from the contentions raised is within the purview of the 1st respondent. Further the petitioner while waiting to receive notice of hearing by the petitioner, surprisingly impugned notice dated 21.03.2009 passed by the 1st respondent without assigning proper reasons. Therefore the demand raised on the petitioner pursuant to the impugned order is highly illegal and arbitrary. 10. In view of the foregoing reasons, the Writ Petition is allowed. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall also stand closed.