- (1.) Petitioner M/s. Jagatjit Industries Limited Hamira has impugned an order Annexure P-3 passed by the Secretary Punjab State Agricultural Marketing Board. The petitioner is a licencee under the Punjab Agricultural Produce Markets Act, 1961 (for short 'the Act'). It purchases wheat, barley and maize from within the State of Punjab as also from Mandis outside the State of Punjab and brings the same to its factory at Hamira within the jurisdiction of Market Committee, Dhilwan for preparing malt, malt whisky and Maltova. The petitioner was sought to be assessed to market fee by the Market Committee, Dhilwan for the purchases made during the years 1980 to 1989. A liability of about one crore rupees was created against the petitioner on account of levy of market fee and penalty. This led to filing of a writ petition being 5828 of 1991 in this Court, which was allowed by a Division Bench of this Court, on June 7, 1991. The demand notice was quashed with liberty to the Market Committee to pass a fresh order. The Market Committee thereafter took proceedings to assess the petitioner for levy of market fee by requiring it to appear on July 15, 1991. Petitioner filed objections supported by affidavits claiming therein that no market fee is leviable on purchases of agricultural produce made from outside the State of Punjab, by the Head Office of the petitioner-Company situated in Delhi. The Administrator of the Market Committee exercising the powers of the Committee by order in the form of a resolution, dated November 7, 1991 concluded that the petitioner was not liable for the payment of market fee in respect of purchases made by it from outside the State of Punjab. While coming to the above conclusion, it was observed : "It transpires that purchases by Jagatjit Industries Limited, Hamira of wheat, barley and maize from Mandis outside the State was made by the Head Office of the Company Delhi through Commission Agents. The Secretary and the Accountant of the Market Committee, Dhilwan in his report had stated that Market Committee, Dhilwan had not provided any facility and no weighment was checked by Market Committee, Dhilwan. Purchases of agricultural produce made from outside the State of Punjab by the Company were never heaped in the Market Committee, Dhilwan or in any of its yards. No weighment of that produce was ever made and no facility was given by the Market Committee, Dhilwan in respect of agricultural produce purchased from outside the State of Punjab regarding weighment, sieving and filling etc. The Company had paid market fee outside the State of Punjab in respective Mandies where facilities were provided and goods were delivered. In the aforesaid matters, opinion of Shri Anand Saroop, Advocate was also obtained and is placed on file. On aforesaid basis, I understand that M/s. Jagatjit Industries Limited, Hamira in respect of purchases made by the Company from outside the State of Punjab are not within the ambit of provision of Punjab Agricultural Produce Markets Act, 1961 and Rule 29(7) of Punjab Agricultural Produce Markets (General) Rules, 1962 and it is therefore not proper to impose market fee for the period 1980-81 to 1988-89 in respect of purchases of agricultural produce made from outside the State of Punjab. Therefore, the case is being filed." This order/resolution of the Administrator was cancelled by the Secretary, Punjab State Agricultural Marketing Board while exercising the powers of the Board under Section 33(4)(i) of the Act delegated to him by the Board with the prior approval of the Government by observing that the order/resolution was against the provisions of Section 23 of the Act read with rule 29(7) of the Punjab Agricultural Produce Markets (General) Rules, 1962 (for short 'the Rules'). Copy of the order passed by the Secretary of the Board is Annexure-3 to the writ petition. It is this order which has been impugned in the present writ petition. On notice of motion having been issued, written statement has been filed. While supporting the action, a preliminary objection has been raised by the respondent to the effect that the petitioner has not availed of the statutory remedy of revision provided under Section 42 of the Act and thus, the writ petition deserves to be dismissed on this ground alone. On merits, the order passed by the Secretary of the Board is sought to be justified, it being in accordance with law and the order/resolution passed by the Administrator of the Market Committee being contrary to law.
(2.) While impugning the order, Annexure P-3, the contentions of Shri Jagan Nath Kaushal, Senior Advocate, learned counsel for the petitioner are three- fold. The learned counsel firstly argued that no notice or opportunity of hearing was afforded to the petitioner by the Secretary of the Board before cancelling the order/resolution, Annexure P-2; secondly, the Secretary of the Board who passed order Annexure P-3 cancelling the order/resolution Annexure P-2 of the Market Committee, was not competent to pass such an order in terms of Section 33(4)(i) of the Act; and thirdly, the finding of fact as recorded by the Administrator had not been set aside by the Secretary of the Board while cancelling the order resolution, Annexure P-2.
(3.) After hearing learned counsel for the parties, we are of the opinion that this petition deserves to succeed. Section 42 of the Act provides that the Government shall have the power of reversing or modifying any order of the Board or any of its of passed or purporting to have been passed under this Act, if it considers it to be not in accordance with this Act, or the rules or bye-laws framed thereunder. In order to deal with the preliminary objection, it is necessary to notice the provisions of Section 33(4) of the Act which read thus : "33. Power to call information, inspect, enforce attendance and the suspend actions etc. of Committees : xxx xxx xxx (4)(i) The Board may, by order in writing, annul any proceedings of a committee or sub-committee or joint committee or ad hoc committee which it considers not to be in conformity with law or with the rules or bye-laws made thereunder and may do all things necessary to secure such confirmity, or may suspend any resolution which it considers likely to cause injury or annoyance to the public or is likely to affect adversely the interest of the Committee or of producers of dealers or any class of functionaries working in the notified market area concerned. (ii) The Board may, by order in writing, suspend the execution of any resolution or order of a committee or sub-committee, or joint committee or ad hoc committee, or prohibit the doing of any act which is being done or is about to be done in pursuance of or under cover of this Act or any rule or bye-law made thereunder, if in its opinion, the resolution, order or act is in excess of the powers conferred by law, or is likely to cause injury or annoyance to the public or is likely to affect adversely the interest of the Committee or of producers or of dealers or of any class of functionaries working in the notified market area concerned. (iii) When the Board makes an order under this sub-section, he shall forthwith forward a copy thereof, with a statement of reasons for making it and the explanation, if any, of the Committee concerned, to the State Government who may thereupon rescind the order or direct that it shall continue in force with or without modification, permanently or for such period as it thinks fit.";