- (1.) R. B. Mehrotra, J. In both the aforesaid !first Appeal From Orders similar facts are up for consideration and similar question of law are involved, as such both the appeals have been heard and are being decided together. First Appeal From Order No. 857 of 1995 has been treated as leading case.
(2.) AGRAWAL Khandsari Udyog and 9 others filed Civil Suit No. 177 of 1995 in the court of the Civil Judge, Bijnor impleading Krishi Utpadau Mandi Samiti, Chandpur, district Bijnor through its secretary as defendant No. 1, Secretary, Krishi Utpadan Mandi Samiti, Chandpur, district Bijnor as defendant No. 2 and Sabhapati Krishi Utpadan Mandi Samiti Chandpur, district Bijnor as defendant No. 3. The plaintiffs' case as stated in the plaint of original Suit No. 177 of 1995 are : The plaintiffs are the partnership concerns and the Units of the plaintiffs are situate within the limits of Krishi Utpadan Mandi Samiti, district Bijnor. The plaintiffs are carrying out business of manufacturing Gur, Gur Badla, Rab, Salawat and Khandsari. It was further stated that the plaintiffs are doing business of manufacturing the aforesaid products by processing sugarcane and are purchasing the sugarcane for the purposes of production. Sugarcane is not a specified agricultural produce on which the market fees should be levied. It was further stated that the plaintiffs are not purchasing or selling any material within the market area of defendant No. 1. The plaint alleged that the plaintiffs used to send their own produce to various Mandis for sale on commission basis through commission agents. As such the plaintiffs are neither selling nor purchasing any specified agricultural Produce within the market area and it was further contended that on the aforesaid basis, no licence fee is imposable on the plaintiffs under the provisions of U. P. Krishi Utpadan Mandi Adhiniyam, 1964 (hereinafter referred as the Act. ). Paragraph '14' of the plaint of the aforesaid suit is relevant for the purposes of the present case, as such the same is reproduce herein : "that the defendant No. 1 is not compent to charge, assess and levy and market fee on the Produce of the plaintiffs. But in spite of this the defendant Nos. 2 and 3 -have sent the alleged orders dated 5-1- 1995 to the plaintiffs. Through. These orders the defendants Nos. 2 and 3 informed the plaintiffs that they are liable to pay the market fee on the transactions, as demanded by the said alleged orders, details where of are given in Annexured B attached to this plaint. In fact the produce of the plaintiff regarding the aforesaid transactions has been sent on commission basis outside the market yard of defendants No. 1. As such the defendant No. 1 is not entitled to charge, assess and levy any market fee on the plaintiffs. "
(3.) PARAGRAPHS'15','16'and 17 of the plaint stated that the details of the transactions of the products are given in Annexures 'b', 'c' and 'd'. The market fee has been challenged on the grounds in the plaint wherein it is contended that:- (1) The sale of the Products of the plaintiffs have taken place outside the market Yard of the defendant No. 1, in spite of it defendant No. 1 is levying the market fee on the plaintiffs illegally and that the plaintiffs has sent their products to commission agent and the commission agents had disposed of these products on commission to various Mandis outside the market yard of defendant No. 1. (2) That the sale has not taken place within the market yard of the defendant No. 1 and products were directly sent, to the commission agents by the plaintiffs. (3) the plaintiffs had not disposed of their products to any person but they are sending their products to the commission agents, consequently the commission agents are liable to pay market fee in view of the provisions of the Section '17' of the Act. That the transactions details of which have been given Annexure 'c' took place outside the area of operation defendant No. 1 and outside the State of Uttar Pradesh. Grounds No. (d) and (f) of the grounds are only repetition the grounds, as such are not being mentioned. Thereafter it was contended that since there is no procedure provided for assessment of the market fee, therefore, the defendant No. 1 is imposing the market fee which is wholly illegal, unauthorised and without jurisdiction. Mainly on the aforesaid basis, the plaintiffs claimed relief that the defendants, their agents, servants and employees be permanent restrained by means of a permanent prohibitory injunction from realising market fee on the basis of illegal assessment order, dated 5-1-1995, details whereof are given in Annexure 'a'. Annexure 'a' attached to the plaint gives details to as many as on orders passed by the Mandi Samiti in respect of various plaintiffs. All these orders are, dated 24-1-1995. None of the transactions attached to the plaint relate to the order, dated 5-1-1995 against which the relief to claimed in the plaint. The copy of the plaint which has been filed along with the counter-affidavit does not contain Annexures B C and D. However that is not relevant for the purposes of decision of the present First Appeal From Order. The copy of the application for temporary injunction filed the plainttiffs before the trial court has also been filed as Annexure '3' to the counter affidavit (filed in reply to interim application filed in this appeal ). In the application filed for temporary injunction, in Paragraph '7' therefore, it is again reiterated that the defendant No. 1 has illegally issued demands against the plaintiffs for recovery of the market fee in the tune of Rs. 6,77,952. 37 on the basis of the orders, dated 5-1-1995, details whereof are given in Annexure 'a' to the plaint need not to reiterate that Annexure 'a' did not contain the details of the order passed on 5-1-1195 instead it contained only the substance of the order passed on 24-1-1995.;