Ashok Bhushan, J. - (1.) This writ petition challenges the assessment of levy of market fee under the provisions of the Krishi Utpadan Mandi Adhiniyam, 1964 and the order dated 13th October, 2004 passed by the Director, Mandi Parishad, Uttar Pradesh Lucknow deciding revision filed against the order of market committee. Prayer has been made in the writ petition to quash the order dated 13th October, 2004 passed by the Director, Mandi Parishad and the demand order dated 19th October, 2004 as well as the order dated 30th December, 2000 passed by the Krishi Utpadan Mandi Samiti, Ghaziabad. It has been prayed that a direction be issued to the respondents restraining them from demanding any market fee and development cess from the petitioner. A writ of mandamus has also been prayed commanding the respondent No. 2 to refund the petitioner the amount of Rs. 25,00,000/- (deposited in cash by the petitioner and Rs. 83,19,804/- (submitted through bank guarantee) which has been demanded by the respondent No. 2 from the petitioner.
(2.) Brief facts of the case as emerge from the pleadings of the parties are: The petitioner is a registered company having its registered office at Chakala, Andheri (East), Mumbai and various branch offices including one at Hyderabad and one at Ghaziabad. The petitioner has wholly owned subsidiary Company, namely, International Tobacco Company (hereinafter referred to as "INTCO" having cigarette' manufacturing facility at Ghaziabad. The "INTCO" has been manufacturing cigarettes from 1969 on behalf of the petitioner under job work agreement. All raw materials and ingredients necessary for manufacturing are being supplied by the petitioner The Tobacco stocks are transferred by the petitioner's office or go-down at Hyderabad and other location in Karnataka and Andhra Pradesh to the petitioner's office at Ghaziabad for handing over to "INTCO". The tobacco is being procured by the petitioner through the auction plat-forms in Andhra Pradesh and Karnataka; a part of tobacco procured by the petitioner while in storage at Hyderabad is sold to the "INTCO" at Andhra Pradesh for security for bank credit purpose and after some time is repurchased by the petitioner from "INTCO" at Hyderabad itself. The tobacco was notified specified agricultural produce under the Act on 23.9.1978 The Krishi Utpadan Mandi Samiti, Ghaziabad (respondent No. 2 ) sent notice to the petitioner on 17.11.1978 asking the petitioner to take licence under the Act. The petitioner took licence and has been submitting return from time to time showing only stock transfers. The demand notice dated 24.3.1983 was issued by the respondent No. 2 claiming that the petitioner is engaged in transaction of sale and purchase and liable to pay market fee. The notice was replied by the petitioner stating that no transaction of sale of the tobacco takes place in the market area of the respondent No. 2. It was stated that the petitioner supplies only raw materials to "INTCO" and the "INTCO" only does the job work for which it is paid charges. The Krishi Utpadan Mandi Samiti accepted the aforesaid reply of the petitioner and dropped the demand of market fee in January, 1990. Again notice was issued on 3.2.1990 which was replied reiterating the claim that no sale takes place in the market area. The matter was not pursued any further by the respondent No. 2. On 18.7.1999 again a notice was issued by the respondent No. 2 calling upon the petitioner to show cause as to why the market fee be not levied on the turnover of the Company as disclosed in State Tax returns. Petitioner replied to the said notice, contesting the demand, reiterating its claim that there were no sale transaction but only job work is done by the "INTCO" on behalf of the petitioner. The respondent No. 2 passed an order on 18th February, 2000 levying market fee and development cess on the valuation of what has been described by the petitioner as the purchase of raw tobacco made by the petitioner in Andhra Pradesh and Karnataka from the years 1997-98 and 1998-99. The petitioner's application to recall the said order was rejected on 25.3.2000 against which orders the petitioner filed a writ petition No. 20582 of 2000 in this Court. The Division Bench of this Court in its interim order dated 8.5.2000 observed that the writ petition involved determination of certain facts and legal controversies. This Court further observed that as regards the factual aspects the petitioner be relegated to alternative remedy under Section 32 of the Act. This Court granted interim order staying the assessmentOrder dated 25.3.2000 provided the petitioner deposits cash of Rs. 25,00,000/- and furnish bank guarantee of the remaining amount of Rs.83,19,804/-. In pursuance of the interim order, the petitioner filed revision before the Director, Krishi Utpadan Mandi Parishad. The Director, Mandi Parishad vide its order dated 15.7.2000 set aside the order of the respondent no. 2 and remanded the matter for re-decision by the Mandi Samiti. The Mandi Samiti again passed an order dated 30th December, 2000 affirming its earlier demand. The petitioner filed an amendment application in the writ petition seeking to challenge the order dated 30th December, 2000. The High Court while passing an order on 27th February, 2002 directed that if the petitioner prefers a revision under Section 32 of the Act the same shall be entertained and shall be heard and disposed of on merits. It was also observed that the petitioner shall be entitled to lead additional evidence in support of his case. The interim order dated 8th May, 2000 was continued till the decision of the revision. The writ petition, however was kept pending. It was not disputed before the Court that against the impugned order dated 30th December, 2000 revision lies under Section 32 of the Act although the counsel for the petitioner submitted that the Court should entertain the writ petition. The Court was of the view that the legal issues under Section 54 of the Transfer of Property Act and Article 366 (29-A) of the Constitution of India are involved but the petitioner should first approach the Board by filing a revision. Petitioner filed a revision and subsequently by order dated 20th January, 2004 this Court disposed of the writ petition noticing that the petitioner had already filed revision under the direction of the Court and the direction be issued to the respondent to decide the revision within a period of three months. The interim order was made operative till the decision of the revision. The final order dated 20th January, 2004 does not decide the legal issue raised in the writ petition which was noted by the Court itself in earlier order dated 27th of February, 2002.. Before the Director in the revision the additional evidence was led by the petitioner, which was taken on record and ultimately the Director exercising the power of the Board decided the revision vide its order dated 13th October, 2004 upholding the demand of the respondent No. 2. Further, direction was issued for payment of interest at the rate of 2% per mensum. The bank guarantee submitted by the petitioner in pursuance of the interim order dated 8th May, 2000 was encashed by the respondent No. 2 and further demand of payment towards interest of Rs. 1,13,86,855/- was raised by the letter dated 19th October, 2004. Feeling aggrieved against the aforesaid order of the respondent no. 2 dated 30th December, 2000 and the orders dated 13th October, 2004 and 19th October, 2004 this writ petition has been filed by the petitioner.
(3.) I have heard Sri Sunil Gupta, Senior Advocate for the petitioner and Sri B. D. Mandhyan, Senior Advocate appearing for the respondents.;