- (1.) THE plaintiffs are in appeal against the judgment and decree of lower Appellate Court by which their suit has been dismissed.
(2.) IN short, the case set up by the plaintiff is that it is a limited company having its works at village Gadaipur, Tehsil Pataudi, District Gurgaon where it is involved in manufacturing of malt. The plaintiff purchases barley as agricultural product through various dealers of various markets and use it for manufacturing malt. Respondent No.2 demanded a total sum of Rs. 66,154/ - from the plaintiffs on account of market fee which has been challenged in the civil suit. The learned trial Court decreed the suit but Ist Appellate Court dismissed the suit on the ground for want of jurisdiction of the Civil Court because of a specific remedy of appeal available under Section 31(13)(i) of the Punjab Agriculture Produce Market (General) Rules, 1962 [for short the Rules ]. The said Rule is reproduced as under: - An appeal against an assessment order made under sub -rules (8) and (9) shall lie to the Chief Administrator. No such appeal shall be entertained unless the applicant has deposited the amount of fee assessed as due from him in full with the Committee concerned. The provision of sub Rules 8 and 9, read as under: - Rule 31(8) Such member or members may after inspection prepare a return or may amend the return already furnished, on the basis of transactions, appearing in the dealers accounts books and the Committee may levy a fee or, as the case may be, an additional fee, under Section 23 on the basis of such return or amended returns, but if the account books are reported to be unreliable, or as not providing sufficient material for proper preparation or amendment of the return or if no such books are maintained or produced, the Committee may assess the amount of the dealer s business on such information as may be available on the basis of best judgment, and levy fee on the basis of such assessment. Rule 31(9) - In addition to the fee or additional fee levied under sub -rule (8) the Committee may recover from the defaulter penalty equal to the fee or additional fee so levied.
(3.) LEARNED counsel for the appellant has submitted that the remedy of Civil Court is not barred and has relied upon a decision of this Court in the case of Haryana State Agricultural Marketing Board, Panchkula Vs. Umed Singh and others,2006 2 AllLR 361. In the said case, the plaintiffs filed the suit for declaration that he is entitled to the same pay scale which is being paid to his junior. His suit was decreed by both the Courts below. In the second appeal, the Haryana State Agricultural Marketing Board raised two arguments firstly, that the suit is not maintainable without serving notice as contemplated under Section 31 of the Punjab Agricultural Produce Markets Act, 1961 [for short the Act ] and secondly the plaintiff had alternative remedy under Section 42 of the Act. It was held by this Court that issue No.7 was framed by the trial Court to the effect that whether the suit is bad for want of legal notice under Section 31 of the Act? But the said issue was not pressed or argued by the Board before the trial Court and was decided against it. It was also found that the Board did not challenge the finding recorded by the trial Court before the Ist Appellate Court. In regard to availing of the remedy before the Civil Court, it is observed that since there is neither any express or implied bar in the Act, the jurisdiction of the Civil Court cannot be ousted. The judgment relied upon by learned counsel for the appellant is not applicable because it is categorically provided in Rule 31(13)(i) of the Rules that an appeal would lie against an assessment order to the Chief Administrator and would not be entertained until and unless the appellant deposits the amount of fee assessed with the committee concerned. It appears that in order to overcome the difficulty of depositing the entire fee assessed before filing the appeal, the plaintiffs have filed the civil Suit for declaration. In this regard, the observation of learned lower Appellate Court needs to be mentioned, which reads thus: - The collective reading of these rules is that whenever notice of recovery of market fee is sent by the Committee, the dealer/purchaser must deposit the amount so assessed, to challenge such assessment order made under subrules (8) and (9), before the Chief Administrator, whose order shall be final and conclusive. This shows that the Act and the Rules of the Punjab Agricultural produce Markets (General) Rules, 1962 and the Act, 1961, provide a specific remedy of appeal against an assessment order. If this be so, in view of the provisions of Seciton 41(h) of the Specific Relief Act and the law laid down by Three Judge s bench of Hon ble apex Court in Dayaram Vs. Sudhir Batham and other, 2012 5 RCR(Civ) 8210, a remedy by way of appeal, provided expressly by a statute can t be taken away by an executive fiat or judicial order. However, exception to this rule is provided in Dula Bai Vs. State of M.P., 1968 3 SCR 662. In the quoted case, it was held that where the statute gives a finality to the orders of the special tribunals, the civil court s jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude these cases, where the provisions of the particular Act, have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure . In simple words, it may be said that even if, there is specific or implied bar on the civil court to entertain a suit pertaining to a special suit, still civil court can entertain it, if there is miscarriage of justice because of non -compliance of required statutory procedures or of fundamental principles of judicial procedure. Reverting back to the facts of the case under consideration and the law discussed above on the point of jurisdiction, this Court is of the view that the civil Court had no jurisdiction to entertain this suit as no violation of procedure by the defendants has been proved on record. As per laid down procedure, on detection of fault with dealer/purchaser, the defendants were required to issue him notice asking for deposit of amount due, which they did, and without going into appeal before Chief Administrator, the plaintiff approached the Civil Court, meaning thereby, violation of procedure is on the part of plaintiff and not on the part of defendants. Thus, it cannot be said that civil court has got jurisdiction to entertain this suit. In other words, the plaintiff was required to avail the specific remedy available with it under the Rules, to file an appeal stating therein his ground of illegality of the assessment orders in question. It is pertinent to mention here that the relief prayed before civil court, was within the ambit of Chief Administrator to grant in appeal, if the objections were justified. Here, there may not be specific bar provided but impliedly with the use of word shall in Rules 31(13)(i) of Rules, 1962, the legislature meant supremacy of special statue in respect of appeal. Thus, in totality, it is held that civil Court had no jurisdiction to entertain this suit, so, entire findings of learned trial court deserves to be set aside solely on this ground, even if, on merits, its findings are partly correct.;