- (1.) Petitioner, Krishi Utpadan Mandi Samiti, Bareilly has preferred this writ petition under Art.226 of the Constitution of India for issuing a writ of certiorari for quashing the orders dated 4-7-87 and 14-8-87 passed by the respondents nos.1 and 2 respectively.
(2.) The facts, in detail, are that respondents 3 to 10 filed a civil suit No.293 of 87 in the Court of respondent No.1 for an injunction restraining the petitioner from suspending or cancelling the licence or refusing to renew their licence in pursuance of the order dated 24-4-87 and for the realisation of the market fee as demanded by the petitioner w.e.f. 1-4-80 to 30th June, 84 : An application under O.39, Rr.1 and 2 of the Civil P.C. was also filed. In the affidavit filed in support of this application, it was alleged that respondents held valid licences issued by the petitioner under Section 9 of the U. P. Krishi Utpadan Mandi Samiti Adhiniyam, 1964 (hereinafter referred to as the Adhiniyam) and in pursuance thereof, are entitled to carry on the wholesale business in Dal within the area of the Mandi Samiti. It was also contended in the affidavit that the respondents are entitled to realise market fee from the purchaser on the sale of the specified agricultural produce sold by them in the market area and after collecting the same it is to be paid to the petitioner. It was asserted that the sale of the agricultural produce made on the basis of Form 9-R which are issued from the office of the petitioner showed the amount collected from the purchaser for the petitioners. The respondents alleged that prior to 25-9-84 there was a general understanding throughout the State that Dal did not fall within the category of specified agricultural produce and no market fee was leviable and thus the market fee was collected by the respondents from the purchasers nor was it demanded by the petitioner nor even Form 9-R issued to them for the collection of the market fee. The respondents further alleged that a notice demanding the market fee on the transaction of pulses was quashed by this Court on 28-1-83 and as such, there was no question of making any payment of market fee to the petitioner by the purchaser nor there was any occasion for the respondents to ask or demand any amount of market fee from the purchaser. However, the order of the High Court was set aside by the Supreme Court on an appeal by the petitioner on 25-9-84 (reported in AIR 1984 SC 1870) and it was held that the pulses also included legume and market fee is leviable on the sale of pulses.
(3.) In view of the judgment of Supreme Court dated 25-9-84, the petitioner issued demand notice dated 20-2-87 calling upon the respondents to deposit the market fee for the year 1985-86 and subsequently vide order dated 6-4-87 the petitioner suspended the licences of the respondents 9 and 10, which, however, on their representation, was recalled by the order dated 24-4-87 on the condition that respondents would furnish sale and purchase records from 1-4-80 to 30-6-84 and deposit such market fee in the first week of May, 1987, failing which, their licences would again be suspended. The respondents thus alleged that such a threat was absolutely illegal, uncalled for and bad in law. It was also alleged by respondents that a threat was advanced that after the expiry of 30th June, 1987, the licenses of the respondents would not be issued. With such allegations, an ad interim injunction was prayed. Objections to this application filed by the respondents under O.39, Rr. 1 and 2 were filed by the petitioner duly supported by a counter-affidavit of one Sai Prakash, Secretary of the Mandi Samiti, Bareilly the allegations as contained in the affidavit were repudiated. It was shown on behalf of petitioner that the respondents are liable to pay the market fee as per S.17(iii) of the Adhiniyam on the sale of agricultural produce including pulses irrespective of the fact that form 9-R was issued by the licensee to the purchaser under S.17 and Rule 76(12) of the Rules framed under the Adhiniyam. It had been categorically asserted that respondents realised the market fee from the trader and in any case the respondents cannot escape the liability of payment of market fee irrespective of the fact whether it was been realised or not from the purchaser. The petitioner contended that vide notification dated 11-4-78 issued by the State Government, Dal was included as specified agricultural produce on which market fee was payable on transaction. The High Court vide order dated 28-1-83 held that the market fee was not payable on the transaction of Dal but, however, this judgment was set aside by the Supreme Court and it was contended on behalf of the petitioner that the market fee was liable to be paid by the respondents. The Supreme Court while laying the controversy to rest held the liability of the respondents to pay the market fee from 1980 to 1984 holding that legume included split Dal as well. Even the High Court has held on 16-4-87 that respondents shall produce their accounts for the said period and pay the amount demanded within one month from the date of intimation. However, the respondents did not deposit the amount in utter disregard of the order dated 16-4-87. The petitioner has contended that the respondents are under statutory obligation within the postulates of S.17(iii) of the Act read with Rule 71 of the Rules and the bye-laws to deposit the market fee within three days from the date of sale. The petitioner is thus competent and entitled to realise the market fee. The petitioner also showed in the affidavit that the respondents filed writ petition No.18068 of 84 and 10555 of 84 in the High Court which had been dismissed on 24-3-87. It was thus contended that the matter cannot be reagitated again by the respondents. The petitioner further alleged that there is no limitation for the realisation of the market fee. The order dated 24-3-87 is binding on the parties and the civil courts have no jurisdiction to go behind that order and if they feel aggrieved by the order of the High Court, the proper remedy for them is to approach the Supreme Court. The petitioner had submitted that the respondents have failed to set out a prima facie case nor the balance of convenience was in their favour and in any case, no irreparable injury was likely to be caused to the respondents which cannot be compensated in terms of money. It was further submitted on behalf of the petitioner that in case ultimately the suit failed, it would be hazardous to the petitioner to realise the amount while the Mandi Samiti being a corporate body would refund the amount as per the directions of the Court.;