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SCA/10628/2008 17/ 20 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10628 of 2008
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JADAR
VIBHAGIYA COOPERATIVE AGRICULTURE PRODUCE PURCHASING - Petitioner(s)
Versus
AGRICULTURE
PRODUCE MARKET COMMITTEE - IDAR & 1 - Respondent(s)
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Appearance
:
MR
GM AMIN for
Petitioner(s) : 1,
MR MANISH S SHAH for Respondent(s) : 1,
None
for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 26/08/2008
ORAL
ORDER
By
way of this petition under Articles 226 and 227 of the Constitution
of India, the petitioner has
prayed to quash and set aside the impugned orders dtd.1/8/2008
passed below application Ex.1 and order dtd. 18/8/2008 passed below
application Ex.5, by the learned Principal Senior Civil Judge, Idar
in Special Execution Petition No.1 of 2008.
The
few facts necessary for determination of the present petition, in
nutshell, are as under;
The
petitioner is a society registered under the provisions of the
Gujarat Cooperative Societies Act and is engaged in pulling cotton
i.e. collecting cotton from its members and sending it to the
Sabarkantha Cotton Union (hereinafter shall be referred as ?Sthe
Union?? for short) and the Union, in turn, sells the said good to
different traders in the entire country. The respondent No.1 is an
Agricultural Produce Market Committee (hereinafter shall be referred
as ?Sthe Market?? committee?? for convenience), having its area
of operation in Idar Taluka and having sub market committee at
Iadar. The respondent No.1 market committee demanded market cess
from the petitioner and the petitioner society was of the opinion
that in the market area, no sales and purchase are being taken
place and the said society collects cotton from its members and
sends it to the Union and therefore, they are not liable to pay the
market cess and therefore, the petitioner society preferred Special
Civil Application No.1463 of 2001 challenging the demand of market
cess by the respondent No.1 market committee from the petitioner and
at the relevant time some other Special Civil Applications and
Letters Patent Appeal was also pending. The aforesaid Special Civil
Application came up for admission hearing and for interim relief
before the learned Single Judge of this Court and following order
was passed by the learned Single Judge (Coram : P.K. Sarkar, J.)
in Special Civil Application No.1463 of 2001 on 3/5/2001:-
?SI have heard Mr.G.M.Amin, learned Counsel appearing on behalf of the petitioner. Issue Rule. Mr.H.P.Raval, learned Counsel
appearing on behalf of the respondent No.1, Agricultural Produce
Market Committee, waives service of rule. Ms.Nandini Joshi, learned
AGP is directed to accept service of rule on behalf of the State
Government. In addition, the petitioner will make
service of rule on the respondent State.
Mr.G.M.Amin, learned Counsel appearing on behalf of the petitioner submits that the Agricultural Produce Market Committee, Idar, Dist. Sabarkantha is illegally demanding market cess from the petitioner and it is also submitted by the learned Counsel that in the market area no sale or purchase are being taken place. The petitioner is a society and the members are agriculturist growing agricultural crops and mainly cotton. It is an admitted fact that the members of the Cooperative Society who are the farmers are taking the cotton in the notified market area and ginning the same, resulting into the separation of seeds and cotton and thereafter they give it to the petitioner society, who, in turn, transfers the goods to the Federation. The learned Counsel for the petitioner accordingly submits that over this issue there were litigations and out of one such litigation, a L.P.A. has been registered as No.589/2000. It is submitted by the learned Counsel that no interim order has been passed by the Division Bench, nor any interim order has been passed by any of the Civil Bench.
Mr.H.P.Raval, learned Counsel appearing on behalf of the respondent No.1, draws my attention to the judgement passed by this Court on 11-2-2000 in C.A. No.6351 of 1988 and other Group matters. In the said judgement, this Court held that in such cases of sale and purchase, the Market Committee is entitled to levy and collect fees. In view of the judgement, I am of the view that no interim relief can be granted as prayed by the petitioner. Mr.Raval further submits that the Director of Agricultural Produce Market Committee passed an order on 18-2-2000, exempting the payment of cess from such transactions. However, the Director later by his letter dated 16-5-2000 issued a direction to the petitioner to deposit the cess under protest. In pursuance of the order of the Director, the respondents are demanding the cess from the petitioner. It is submitted by Mr.Raval that unless the respondents are allowed to collect the fees, in future there may not be any scope to levy any cess on the products, which, otherwise, will be transferred from the market area and there will not be any account of such products.
Having regard to the submissions of the learned Counsel for both the parties, I am of the view that no interim order can be passed as prayed by the petitioner. The petitioner may deposit the amount of levy in a separate account and the amount of levy to be deposited shall be on the basis of the last payment of cess made by the petitioner. After deposit in a separate account, the petitioner will furnish a statement before this Court. Since the learned Counsel for the petitioner has made the statement that he will direct the petitioner to deposit the amount of levy in a separate account, it is expected that the respondents will not adopt any coercive method for realising the cess. List this matter on 26-6-2001.??
That
thereafter the petitioner society started depositing the said amount
of cess in a separate account in Dena Bank by maintaining a separate
account. In view of the above, the respondent No.1 market committee
did not adopt any coercive method for realising cess. That
thereafter, L.P.A. No.589 of 2000 came to be dismissed by the
Division Bench vide order dtd.10/12/2001. That thereafter the
respondent No.1 market committee preferred Civil Application No.207
of 2002 in aforesaid Special Civil Application 1463 of 2001 praying
that the respondent No.1 market committee may be permitted to
withdraw the amount deposited by the petitioner society in a
separate account in pursuance of the order dtd.3/5/2001 passed in
the aforesaid Special Civil Application and the learned Single Judge
vide order dtd.19/3/2002 permitted the respondent No.1 market
Committee to withdraw the said amount on condition that if
ultimately the Market Committee succeeds in the said petition, the
amount withdrawn by the Market Committee shall be returned to the
petitioner society with simple interest at the rate of 10% p.a.
thereon within six weeks from the date of final pronouncement in the
said proceedings and accordingly the petitioner society was directed
to withdraw the said amount in question which was deposited with
Dena Bank, Jadar Branch and was directed to forward the cheque to
the respondent No.1 – Market Committee within a period of five
weeks from 19/3/2002. The learned Single Judge (Coram ; A.R. Dave,
J. as the then he was) passed the following order on 19/3/2002 in
aforesaid Civil Application No. 207 of 2002 in Special Civil
Application No.1463 of 2001:-
?SRule. Service of
rule is waived by learned advocate Shri G.M. Amin for opponent
No. 1 and learned AGP Shri K.P. Raval for opponent No. 2.
This application has been filed by original respondent No. 1 in Special Civil Application No. 1463 of 2001 praying that the amount, which has been deposited by opponent No. 1 in a separate account in pursuance of an order dated 3.5.2001 passed in Special Civil Application No. 1463 of 2001, be permitted to be withdrawn by the applicant.
In Special Civil Application No. 1463/2001,which has been filed by opponent No. 1, it has been prayed by opponent No. 1 that the present applicant is not entitled to recover any cess from opponent No. 1 petitioner. The said petition has been admitted and by an interim order, opponent No. 1 was directed to deposit the amount in a separate account.
It is the case of the present applicant i.e. original respondent No. 1 that the applicant is a Market Committee which has to incur expenditure for the purpose of providing facilities to its members and therefore the amount of cess, which has been deposited by opponent No. 1, be permitted to be withdrawn by it.
The learned advocates have been heard at length. Looking to the fact that by an interim order this court has directed opponent No. 1 to deposit the amount and as the amount is lying in a separate account, in my opinion, it would be just and proper to permit the applicant to withdraw the said amount on a condition that, if ultimately opponent No. 1 succeeds in the petition, the amount which has been withdrawn by the applicant shall be returned to opponent No. 1 with simple interest @ 10% thereon. The Chairman and Secretary of the applicant shall file an undertaking to the effect that in the event of opponent No. 1 finally succeeding in Special Civil Application No. 1463/2001, the amount in question shall be returned along with simple interest @ 10% within a period of six weeks from the date of final pronouncement in the said proceedings.
The amount in question has been deposited with Dena Bank, Jadar Branch and opponent No.1 shall withdraw the said amount and shall forward the cheque to the applicant Market Committee within a period of five weeks from today.
The application stands disposed of as allowed. Rule is made absolute with no order as to costs.
Direct service permitted.??
It
appears that thereafter aforesaid Special Civil Application 1463 of
2001 along with other Special Civil Applications came up for hearing
before the learned Single Judge and nobody remained present on
behalf of the petitioner and others and hence the said Special Civil
Application No.1463 of 2001 and other Special Civil Applications
came to be dismissed for want of prosecution by the learned Single
Judge vide order dtd.15/11/2005. It appears that thereafter a review
application was filed to restore the said Special Civil Application,
and the said review application also came to be dismissed, thus, the
dismissal of the aforesaid Special Civil Application 1463 of 2001
continued. It appears that even the petitioner society did not act
as per the order passed by the learned Single Judge in Civil
Application No. 207 of 2002 in Special Civil Application 1463 of
2001 withdrawing the amount of cess deposited with Dena Bank and did
not forward the cheque to the respondent No.1 ? Market Committee
and therefore, the amount of cess deposited by the petitioner
continued in Dena Bank, Jadar Branch. That thereafter in view of the
dismissal of the aforesaid Special Civil Application 1463 of 2001,
the respondent No.1 ? Market Committee initiated proceedings to
recover the said amount of cess and to withdraw the same from Dena
Bank, Jadar Branch by filing Special Execution Application No.310
of 2006 in the court of learned Civil Judge (SD), Idar to recover in
all Rs.39,03,533=00 and the learned Civil Judge (SD), Idar
entertained the said execution application and issued notice upon
the respondent No.1 ? Market Committee and in the said execution
petition, petitioner appeared before the executing court and filed
reply inter-alia submitting that such an execution petition is not
maintainable inasmuch as no decree has been passed which is sought
to be executed and even no final order came to be passed by this
Court in Special Civil Application 1463 of 2001 and therefore, it
was requested to dismiss the said execution petition. The learned
executing court passed order dtd.1/8/2008 below application Ex.1 in
Special Execution Petition No.1 of 2008 holding that the order
passed by this Court in Special Civil Application No.1463 of 2001
can be executed as if it is a decree and therefore, the said
execution petition is maintainable. That thereafter, an application
was submitted by the respondent No.1 ? Market Committee directing
Dena Bank, Jadar Branch to transmit the said amount to the Civil
Court and accordingly by order dtd.18/8/2008 the learned Civil
Judge, Idar passed order in order to relieve the Dena Bank from
the liability in exercise of the powers conferred under Order 21
Rule 46A of the Code of Civil Procedure directing the Dena Bank,
Jadar Branch to transmit the amount of Rs.21 Lacs together with
interest and the learned trial court further passed order that the
same be taken in the account of the Civil Court and retained as such
till further orders. Being aggrieved by and dissatisfied with the
orders passed below applications Ex.1 and Ex.5 dtd.1/8/2008 and
18/8/2008 respectively, the petitioner society has preferred present
petition under Article 227 of the Constitution of India. As such
the petition is term as petition under Article 226 of the
Constitution of India, but in reality it is a petition under Article
227 of the Constitution of India challenging the orders passed by
the executing Court.
Mr.S.N.
Shelat, learned senior advocate with Mr.G.M. Amin, learned
advocate, appearing on behalf of the petitioner has vehemently
submitted that the learned executing court has materially erred in
holding that the execution petition is maintainable. It is submitted
that as such neither there was any decree passed by this Court in
the aforesaid Special Civil Application nor the aforesaid Special
Civil Application was finally disposed of by this Hon’ble Court and
therefore, there was no final order passed by this Court and
therefore, as such the execution petition is not maintainable. It is
submitted that Rule 189 of the Gujarat High Court Rules would not
be applicable and even if it is applicable, the order passed by the
High Court under Article 226 of the Constitution of India cannot be
deemed to be a decree. It is submitted that in any case, conditional
order cannot be termed as a decree and therefore, the execution
petition is not maintainable and therefore, it is requested to
allow the present Special Civil Application by quashing and setting
aside the orders passed by the learned executing court below
application Ex.Nos.1 and 5 in the Special Execution Petition No.1 of
2008.
On
the other hand, Mr.Manish Shah, learned advocate appearing on behalf
of the respondent No.1 Market Committee has submitted that this is a
petition under Article 227 of the Constitution of India,
challenging the orders passed by the executing Court below
application Ex.Nos.1 and 5 and the petitioner has prayed for
discretionary relief. It is submitted that for exercise of
discretionary power, this Hon’ble Court may consider the conduct of
the petitioner. It is submitted that in fact pursuant to the order
dtd.19/3/2002 passed by the learned Single Judge in Civil
Application No. 207 of 2002, the petitioner was required to withdraw
the amount of cess deposited in the Dena Bank, Jadar Branch pursuant
to the interim order dtd.3/5/2008 passed in Special Civil
Application 1463 of 2001 and in turn the petitioner society was
required to forward the cheque of the said amount to the respondent
No.1 Market Committee within five weeks from 19/3/2002, the
petitioner society neither withdrew the said amount nor paid the
said amount to the respondent No.1 Market Committee. It is submitted
that the aforesaid interim arrangement was during the pendency of
the Special Civil Application in which the demand of market cess
by the respondent No.1 was under challenge. It is submitted that if
the petitioner would not have preferred Special Civil Application
1463 of 2001 challenging the of market cess,
the respondent No.1 ? Market Committee would have recovered the
said amount in the year 2001 itself and as such the Market Committee
is deprived of the said market cess
which they were supposed to recover in the year 2001. It is,
therefore, submitted that it is now not open for the petitioner
society to refuse to pay the said amount having dismissal of the
aforesaid Special Civil Application. It is submitted that in the
facts and circumstances of the case, the learned Executing Court has
not committed any error in entertaining the execution. Submitting
accordingly, it is prayed to dismiss the present Special Civil
Application.
Heard
the learned advocate appearing on behalf of the respective parties.
It
is not in dispute that there was a demand by the respondent No.1 –
Market Committee of the market cess from the petitioner in the
year 2001. The petitioner challenged the said demand of market cess
by preferring Special Civil Application 1463 of 2001 contending
inter-alia that they are not liable to make the payment of market
cess to the respondent No.1 – Market Committee. The learned Single
Judge admitted the said Special Civil Application in view of the
pendency of the L.P.A. and other Special Civil Applications.
However, as no interim order was passed by the Division Bench, the
learned Single Judge did not grant any interim order, however,
permitted the petitioner to deposit the amount of levy in a separate
account and the amount of levy to be deposited shall be on the basis
of the last payment of the cess made by the petitioner and it was
further ordered that after deposit in a separate account, the
petitioner will furnish statement before this Court. The learned
Single Judge further passed an order that the petitioner to deposit
the amount of levy in a separate account and further passed an order
that it is expected that the respondent will not adopt any coercive
method for realising the cess. It is the contention on behalf of the
petitioner that there was no interim order passed by the learned
Single Judge and the interim order was specifically refused,
however, it cannot be disputed that the petitioner had taken
advantage of the order passed by this Court in the aforesaid Special
Civil Application which is reproduced hereinabove and maintained
separate account and deposited amount of levy in a separate account
in Dena Bank, Jadar Branch. Though the learned Single Judge had
observed in the said order that ?SIt is expected that the
respondent will not adopt any coercive method for realising cess as
the petitioner will deposit the amount of levy in a separate
account??, it cannot be said that it is not an interim order. It
is not in dispute that thereafter in Civil Application No. 207 of
2002 the learned Single Judge passed order on 19/3/2002 in an
application submitted by the respondent No.1 – Market Committee
permitting the Market Committee to withdraw the amount of
agricultural cess deposited by the petitioner herein in an separate
bank account on condition that if the petitioner society succeeds in
the aforesaid Special Civil Application, in that case, the Market
Committee will return the said amount within six weeks from the date
of final pronouncement along with 10% interest per annum. The
learned Single Judge further passed an order directing the
petitioner to withdraw the said amount deposited with Dena Ban,
Jadar Branch and to forward cheque to the respondent No.1 – Market
Committee within a period of five weeks. Inspite of the said order,
the petitioner society did not withdraw the said amount and did not
forward cheque to the market committee within stipulated time
provided in the order dtd.19/3/2002 passed in Civil Application No.
207 of 2002. Thus, the respondent No.1 – Market Committee is
deprived of the amount of cess since 2001 and/or at least since
19/3/2002, no explanation is given by the petitioner why order
dtd.19/3/2002 passed in Civil Application No. 270 of 2002 was not
complied with. It is not in dispute that the main Special Civil
Application No.1463 of 2001 came to be dismissed for
non-prosecution on 15/11/2005 and thereafter application for
restoration of the said Special Civil Application came to be
dismissed and therefore, the order of dismissal continues. In view
of the disposal of the Special Civil Application No.1463 of 2001,
even the respondent No.1 – Market Committee is entitled to recover
market cess from the petitioner which was challenged by the
petitioner in Special Civil Application No.1463 of 2001. After
dismissal of the aforesaid Special Civil Application, respondent
No.1 – Market Committee has initiated proceedings for recovery of
the market cess and to recover the amount of market cess deposited
by the petitioner in the Dena Bank, Jadar Branch by filing execution
petition No.1 of 2008 and in the said petition, the petitioner
raised absolutely technical and dishonest plea of
non-maintainability of the execution petition without focusing on
the entitlement of the respondent No.1 – Market Committee and
recovery of the market cess which the petitioner society was
required to pay in the year 2001 itself, but in view of filing of
the Special Civil Application No. 1463 of 2001 and the aforesaid
interim order dtd.3/5/2001, the same was deferred. When a pointed
question was asked to the learned advocate appearing on behalf of
the petitioner as to whether even in view of the dismissal of the
Special Civil Application and even otherwise in view of the order
passed by the learned Single Judge in Civil Application No. 207 of
2002, the petitioner would like to make the payment of market cess
to the respondent No.1 – Market Committee or not, learned advocate
appearing on behalf of the petitioner has not given any specific
answer, at the same time has not shown any inclination to pay the
market cess, which even otherwise the petitioner society was
required to pay in the year 2001 itself when there was demand by
the respondent No.1 – Market Committee which ultimately came to be
challenged by way of Special Civil Application 1463 of 2001.
This
is a petition under Article 227 of the Constitution of India and
the relief prayed in the petition is discretionary relief and the
Court may not grant any discretionary relief in favour of the
petitioner, who has not approached this Court with clean hands and
who wants to defeat the legitimate rights of the other-side only on
the technical grounds. As stated above, in view of dismissal of
Special Civil Application No.1462 of 2001 even the respondent No.1 ?
Market Committee is entitled to recover the cess which they wanted
to recover in the year 2001 itself but due to filing of the Special
Civil Application No.1463 of 2001 and interim order dtd.3/5/2001,
was deferred and/or the respondent No.1 ? Market Committee could
not recover the market cess and even considering the order passed by
the learned Single Judge of this Court in Civil Application No. 207
of 2002 itself the respondent No.1 ? Market Committee was
permitted to withdraw the market cess deposited by the petitioner in
the Dena Bank, Jadar Branch and in turn pay it to the respondent
No.1 ? Market Committee, still the petitioner did not withdraw
the said amount from the Dena Bank, Jadar Branch and did not pay it
to the respondent No.1 ? Market Committee. Thus, the entitlement
of the market cess by the respondent No.1 ? Market Committee from
the petitioner cannot be now disputed. In view of the above, this
Court would not like to exercise discretionary jurisdiction in
favour of such a petitioner who has not approached with clean hands
and whose bonafides are doubted and who does not want to pay the
legitimate dues of the respondent No.1 ? Market Committee, a
public body.
For
the reasons stated above, present Special Civil Application
deserves to be dismissed and is accordingly dismissed.
[M.R.
SHAH, J.]
rafik
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