ASHOK BHUSHAN, J. - (1.) HEARD Sri Rahul Agrawal, learned Counsel for the petitioner and Sri B.D. Mandhyan, learned Senior Advocate assisted by Sri Satish Mandhyan, for the respondents No. 1 and 2 as well as learned Standing Counsel representing the respondents no. 3 and 4.
(2.) COUNTER and rejoinder affidavits have been exchanged between the parties and with the consent of learned counsel for the parties, the writ petition is being finally decided. Brief facts giving rise to this writ petition are; the petitioner is a paper manufacturing unit at Saharanpur. The petitioner uses timber/wood as basic raw material for manufacturing paper. The petitioner purchased timber/wood from the U.P. Forest Corporation during the year 1986 -98. The demand of Mandi fee from the petitioner under section 17(iii)(b) was raised by Mandi Samiti in the year 1986, which demand was challenged by the petitioner by means of a writ petition being writ petition No. 6710(MB) of 1986 at Lucknow Bench of this Court. Another writ petition being writ petition No. 3290 (MB) of 1991 was filed against further demand. Both the writ petitions were dismissed by this Court vide judgment and order dated 11.12.1998 on the ground of alternative remedy available to the petitioner. After dismissal of the writ petition, recovery proceedings were initiated against the petitioner by issuing a notice dated 20.7.1999, demanding an amount of Rs. 61,55,900/ - as mandi fee for the period 1986 -98 and development cess of Rs. 1,48,238/ - along with interest. Towards satisfaction of the aforesaid recovery proceedings, the petitioner made payment by two cheques of Rs. 10,00000/ - each dated 7.12.1999 and 13.3.2000. The petitioner filed Special Leave Petition against the judgment and order dated 11.12.1998 which was disposed of by the Apex Court on 19.9.2006, affirming the judgement of the High Court with a direction to the Mandi authorities not to make any recovery till the objections preferred by the petitioner are finally adjudicated. Subsequent to the above decision of the apex court, objections of the petitioner were rejected by the Mandi Authority, against which statutory revision was filed which too was dismissed. Against the orders dismissing the revision of the petitioner and the demand of Mandi fee, the petitioner filed writ petition No. 24998 of 2008 and four other writ petitions, which were connected and heard together by Hon'ble Single Judge of this Court. Hon'ble Single Judge after hearing the petitioner, learned Counsel for the Mandi Samiti as well as learned counsel for the U.P. Forest Corporation, set aside the orders impugned in the writ petition vide judgment and order dated 1.12.2008 and held that demand of Mandi fee from the petitioner which was a purchasing trader was wholly illegal and without jurisdiction. Against the judgment dated 1.12.2008 of the Hon'ble Single Judge allowing the writ petition of the petitioner, Krishi Utpadan Mandi Samiti Nazibabad filed a Special Leave to Appeal in the Hon'ble Supreme Court which Special Leave petition was dismissed by order dated 30.10.2009. After dismissal of the Special Leave Petition of Krisi Utpadan Mandi Samiti, the petitioner wrote letters to the respondents praying for refund of amount of Rs. 20 lacs, which was recovered from the petitioner in pursuance of the demand of the payment of Mandi fee. The petitioner also wrote to the recovery officer/Sub Divisional Magistrate, Sadar, Saharanpur for refund of the amount. The Secretary of the respondent no. 2 wrote a letter dated 27.8.2010, copy of which has been filed as Annexure -6 to the writ petition to the respondent no. 1 asking his guidance on the request of the petitioner to refund amount of Rs. 17,18,076/ - from the respondent no. 2. Subsequently letters dated 12.11.2010, 23.12.2010 and 4.10.2011 were written by the Secretary to the respondent no. 1 reiterating its request that direction regarding refund has not yet been issued, whereas the Firm is repeatedly asking for refund of the amount and due to non refund, the amount of interest is increasing. The petitioner wrote to the Director Administration and Marketing State Krishi Utpadan Mandi Samiti for refund of the amount and thereafter filed the present writ petition praying for the following reliefs: "(a) issue a writ, order or direction in the nature of MANDAMUS directing the respondent No. 2 to immediately refund the sum of Rs. 17,18,076/ - to the petitioner along with interest @ 18% per annum from the year 1999 -2000 till the date of refund to the petitioner; (b) issue a writ, order or direction in the nature of MANDAMUS directing the respondent No. 2/ respondent no. 4 to immediately refund the balance sum of Rs. 2,81,924/ - to the petitioner along with interest @ 18% per annum from the year 1999 -2000 till the date of refund to the petitioner" Sri Rahul Agrawal, Learned Counsel for the petitioner in support of the writ petition contended that demand of Mandi fee from the petitioner with regard to period 1986 -98 on purchase of wood/timber from U.P. Forest Corporation having been declared illegal and without jurisdiction by the judgment of this Court dated 1.12.2008, against which Special Leave Petition filed by Krishi Utpadan Mandi Samiti was also dismissed, the petitioner was clearly entitled for the refund of the amount as a consequence to the judgment of this Court dated 1.12.2008. It is submitted that all pleas raised by Mandi Samiti justifying the levy of market fee on the petitioner were gone into and considered on merits and repelled by this court on 1.12.2008. The judgment dated 1.12.2008 has become final between the parties and the respondents are obliged to refund the amount illegally recovered from the petitioner of Rs. 20 lacs as mentioned above. It is submitted that the petitioner is also entitled for interest since the petitioner was deprived of the amount for a long period. Learned Counsel for the petitioner submitted that various pleas raised in the counter affidavit filed on behalf of the Mandi Samit justifying the demand of Mandi Fee from the petitioner, cannot be allowed to be raised since the same issues have already been adjudicated and have attained finality by judgment of this Court dated 1.12.2008. Learned Counsel for the petitioner in support of his submissions, has referred to and relied on various judgments of the apex Court, which shall be referred, while considering the submissions hereinafter.
(3.) SRI B.D. Mandhyan, leaned Senior Advocate appearing for Mandi Samiti, refuting the submissions of learned Counsel for the petitioner contended that the petitioner is not entitled for refund of the amount, which was recovered by the respondents in satisfaction of Mandi fee levied on the petitioner. It is submitted that the petitioner is fully liable to pay the Mandi fee. SRI Mandhyan Submits that in the present case, the liability to pay Mandi fee is covered by Section 17(iii)(b) sub clauses (2) and (4) and the demand is not covered by Section 17(iii) (b) sub clause (3). He submits that apex Court in its judgment in the case of Ram Chandra Kailash Kumar and Co. and others Vs. State of U.P. And another AIR 1980 S.C. 1124 has already held that petitioner which was party to those proceedings, is liable to pay market fee on the purchase of wood and timber from the Government under licence granted to it and the Government was held to be producer. He submits that Hon'ble Single Judge judgment dated 1.12.2008 is contrary to the pronouncement of the apex Court in Ram Chandra Kailash Kumar and Co. and others Vs. State of U.P. And another (supra). SRI Mandhyan further placed reliance on the judgment of the apex Court in the case of Krishi Utpadan Mandi Samiti Haldwani and others Vs. Indian Wood Products Ltd. and others, (1996) 3 SCC 321, wherein the apex Court held that liability to pay is on the purchaser and even if seller fails to realise the market fee from him in transaction of sale, the liability to pay the said fee remains on the purchaser. Reliance has also been placed on another judgment of the apex Court in the case of Krishi Utpadan Mandi Samit Dudhi and another Vs. Rajesh Kumar Jaiswal, (2005) 11 SCC 427. SRI Mandhyan further submits that Mandi Samiti was entitled to levy market fee and market fee which has been collected from the petitioner, could not be directed to be refunded since it cannot be denied that it was entitled for realisation of market fee. The fact that it has been realised from the petitioner is immaterial since in any view of the matter, the petitioner was liable to pay the market fee to U.P. Forest Corporation. It is further submitted that permitting refund of market fee shall be unjust enrichment in the hands of the petitioner and even if there is any defect in procedure of recovery i.e. instead of recovering it from U.P. Forest Corporation, it has been recovered from the petitioner, the petitioner cannot claim any refund. It is further submitted that this Court in the judgment dated 1.12.2008 did not direct for refund of the amount and it is not open for the petitioner now to claim any refund. We have heard learned counsel for the parties and perused the record. From the submissions which have been advanced by learned counsel for the parties, following issues fall for consideration in this writ petition. 1.Whether the judgment dated 1.12.2008 of this Court holding that Mandi Samiti was not entitled to recover the Mandi fee from the petitioner has become final or it is still open for the Mandi Samiti to contend that the petitioner was liable for payment of Mandi fee on purchase of wood/timber for the period 1986 -98 and the transaction was not covered under section 17(iii) (b) (3) of Krishi Utpadan Mandi Adhiniyam, 1964 and the judgment of Hon'ble Single Judge dated 1.12.1998 is incorrect in view of the judgments of apex Court in the case of Ram Chandra Kailash Kumar and Co. and others Vs. State of U.P. and another (supra), Krishi Utpadan Mandi Samiti Haldwani and others Vs. Indian Wood Products Ltd. and others and Krishi Utpadan Mandi Samit Dudhi and another Vs. Rajesh Kumar Jaiswal (supra) ? 2.Whether the petitioner is not entitled for claim of any refund in this writ petition in view of the fact that no direction for refund has been issued in the judgment dated 1.12.2008 ? 3.Whether the Mandi Samit, being entitled for realisation of Mandi fee, cannot be asked to refund the amount wrongly collected from the petitioner though it was not liable to pay? 4.Whether refund of Mandi fee realised from the petitioner amounting to Rs. 20 lacs, shall be unjust enrichment in the hands of the petitioner ?;