- (1.) WRIT petition No. 607 of 1996 has been filed by M/s. Madan Sugar Works through its partner Gulshan Kumar and the other writ petition No. 6808 of 1996 has been filed by M/s. Madan Sugar Indus tries. In both the petitions, the Chairman Krishi Utpadan Mandi Samiti Kichha (Udham Singh Nagar) District Udham Singh Nagar and Sachiv, Krishi Utpadan Mandi Samiti are the two Opp. parties. Except the differ ence in the dates and years and the amount called upon to be paid, the subject-matter of the orders impugned in the two writ petitions are also identical. Consequently these two writ petitions are being disposed of together at the admission stage as prayed by the learned counsel for the parties. 7. Sri Subodh Kumar, learned counsel for the petitioners has been heard at length in support of these two petitions, who is opposed by Sri B. D, Mandhyan, learned counsel for the Mandi Samiti. 3. The assessment order dated 15-1-1996 three in each of the petitions, are challenged in these writ petitions on various grounds. Sri Subodh Kumar vehemently argued that these writ petitions may be enter tained even at this stage for two grounds : First, there is no Board in exist ence as is envisaged by Section 26-A of the U. P. Krishi Utpadan Mandi Adhitiiyam, 1964 (for short The Act ). Second, Section 25 of the Act being not attracted to the instant three orders in each of the writ petitions, the provisions of Section 32 could not bar the writ petitions on the ground of availability of alternative remedy. 4. After hearing for the parties, both these grounds are not sustain able. Section 26-A talk of the establishment of the Board, which has been conferred the power under Section 32 to call for the proceedings of a committee and pass orders thereon. The petitioners' counsel relied upon Paragraphs 9 and 10 of the writ petitions, which are to the following effect : "that it is further made clear that no Board has been established under the Uttar Pradesh Krishi Utpadan Mandi Adhiniyam, 1964 (hereinafter referred to as the Act)". These paragraphs (two) of the writ petitions have been sworn by personal knowledge by the deponent. It is not known as two how the deponent has personal knowledge of these facts. Sri B. D. Mandhyan has stated as of fact that the Board is in existence ever since the matters were finalised and all necessary steps to establish the Board has been taken by the State Government several years ago. However, if the petitioners so feel still that the Board has not been formed, he will lay the facts before the Board or the alleged delegated authority where the revisions are directed to be filed. If such a question is raised, finding shall be recorded by the Board or the delegated authority concerned under the Constitution of the Board. Section 32 of the Act reads as under : "32. Powers of the Board to call for the proceedings of a Com mittee pass orders thereon.-The Board may, for the purpose of satisfying itself as to the legality or propriety of any decision of, or order passed by, a Committee, at any time call and exa mine the proceedings of the Committee and, where it is of the opinion that the decision or order of the Committee should be modified, annulled or reversed, pass such orders thereon as it may deem fit. " 5. Learned counsel for the petitioners wanted to argue that the language used in Section 32 is quite different from what has been used in Section 25 of the Act. For appreciating the said argument, Section 25 i; also quoted hereinafter for ready reference : "25. Appeals.-Subject to rules made in this behalf under this Act. any person aggrieved by an order passed by a Committee under clause (i) or clause (ii) of Section 17 may, within 30 days of such order, prefer an appeal to the Board in such manner, ma> be prescribed, and the Board shall decide it after giving an opportunity of hearing both to the appellant and to the Committee. " 6. Keeping the two sections in view, the argument proceeded just as Section 25 confirm a right on any person aggrieved by an order passed by a Committee under Clause (i) or Clause (ii) of the Section 17 to file an appeal, while Section 32 in terms does not confer such a right of revision as is conferred on the Board by Section 32. 7. In this connection, however, it was emphasised that Section 32 can be invoked by the Board alone that too suo moto. It was the exclusiveness of the power under Section 32, which allegedly prompted the learned counsel to argue that the petitioners do not have the right to file the revision before the Board. 8. A look on sub-section (1) of Section 115, C. P. C. will, however, clear the doubts in the learned counsel's argument. For ready reference let a look be had to the language contained in sub-section (1) of Section 115, C. P. C. "115. Revision.- (1) The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears- (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with the material irregularity, the High Court may make such order in the case as it thinks fit: Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceedings, except where- (a) the order if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings, or (b) the order, if allowed to stand, would occasion a failure of justice cause irreparable injury to the party against whom it was made. " 9. In fact the language of sub-section (1) of Section 115, O. P. C. is more or less similar to language used in Section 32 of the Act. Thus, an aggrieved person, therefore, has right to challenge an order on the question of jurisdiction etc. under Section 11 "5, C. P. C. by invoking the revisional jurisdiction of High Court, a person aggrieved can obviously invoke the jurisdiction of the Board for the purpose of satisfying itself as to the legality or propriety of any decision or order passed by the Committee. Therefore, since no appeal is maintainable against such assessment orders as are under challeng in these two writ petitions because neither Sec tion 17 (i) nor 17 (ii) is attracted to such order, it will be governed by Sec tion 17 (iii) of the Act, the petitioner shall have the right to approach the Board under Section 32 of the Act. 10. Learned counsel for the petitioner has relied upon the observa tion contained in the decision of "ram Koran v. Krishi Utpadan Mandi Samiti, Saharanpur, (1994) 2 UPLBEC 1405. Reliance was placed on paragraph 9 of the said Judgment, which is quoted below for ready reference : 9. It is no doubt true that under Section 32 of the Adhiniyam the Board has been vested with the powers of revision so as to satisfy itself as to the legality and propriety of any decision or order passed by the Mandi Samiti but this provision in isola tion is insufficient. Undoubtedly, there is a provision of appeal before the Board under Section 25 of the Adhiniyam but this power of appeal relates to Section 17 (ii) and not Section 17 (iii) which empowers the Mandi Samiti to levy and collect fees and therefore, power of appeal under Section 25 is not avail able to the traders on whom fees is imposed. The Board consists of 16 persons but it may delegate its powers to any sub-commitee appointed by it or to the Director or to the Member-Secretary or any other officer of the Board. Similarly, under Section 33 of the Adhiniyam, the Board may delegate any of its powers subject to such conditions and restrictions and in such manner as may be specified therein, by regulations to the Director. Till the full machinery provisions are provided by the State Government, the Board will be well advised to dele gate its powers for adjudication of disputes arising out of levy and collection of fees as provided under Section 26-1 or Section 33 of the Adhiniyam. 11. Sri B. D. Mandhyan, however, relied upon another Division Bench decision of the Supreme Court arising out of S. L. P. (C) Nos. 11295, 11874/87, 1301/88 14537/8 -Krishi Utpadan Mandi Samiti and Others. v. Sh. Mahalaxmi Sugar Works and Others. etc. " which has not agreed with the decision in Ram Karon's case (supra) for two reasons. First, that the decision of this Court reported in "shri Mahalaxmi Sugar Works Farid Nagarand Others. y. State of Uttar Pradesh and Others. , 1987 UPLBEC 957, has not been sustained in toto by Supreme Court. Second, that in substance the powers under Section 32 have been supervisory in nature and the aggrieved party should be held to have right to approached the Board against alleged illegality of any decisions of Committee. 12. Though there was attempt on the part of Sri Subodh Kumar, learned counsel for the petitioners to distinguish the observations aforesaid in reported case noted above, it may be mentioned that, the said attempt was futile. Hon'ble the Supreme Court has in aforesaid S. L. P. made the following observations : "the explanation to Section 17 of the Uttar Pradesh Krishi Utpadan Mandi Adhiniyam, 1964 reads as follows : 'explanation-For the purpose of clause (iii) unless the contrary is proved, any specific to agricultural produce taken on proposed to be taken out of a market area by or on behalf of a licenced trader shall be presumed to have been sold within such area and in such case, the price of such produce presumed. to be sold shall be deemed to be such reasonable price as may be ascertained in the matter prescribed. ' From this it is clear that there is a presumption against the dealers, In view of that presumption, it open to the appellants Krishi Utpadan Mandi Samiti to raise demands against the dealers before passes could be issue. If there is a valid rebuttal in that the sale did not take place within the notified market area, the dealers will be entitled to the passes otherwise not. Of course, even the dealers are compelled to pay the market fee as demanded, it is open to them to challenge it in the manner provided under the Act. The appeals are disposed of in the above terms. " 13. There is no room for doubt now after the observations of the Hon'ble Supreme Court that, it is open to them to challenge it in the manner provided under Act", would not empower the aggrieved persons to invoke the jurisdiction of the Board concerning the alleged illegal order of its committees, just as in the present case. 14. In view of the aforesaid detailed discussions the two writ peti tions are premature. The petitioners, should be relegated to challenge the order of each of the assessment year in each of the terms in both the writ petitions by filing a revision before the Board, it is settled law that unless the alternative remedy is exhausted, the petition should and cannot be entertained. In view of the aforesaid observations it will be appropriate for the petitioners to avail the alternative remedy available to them. 15. It was then argued by Sri Subodh Kumar that in such matters long time is consumed in deciding the matters before the Board. It is here by directed that if revisions are filed before the Board, they shall be decided expeditiously preferably within two months of the date of filing of certified copy of this order alongwith the revisions. 16. With the aforesaid observations, the writ petitions stand finally disposed of. 17. Copy of this order be furnished to the learned counsel for the parties on payment of usual charges within three days. Petition disposed of. .;