JUDGMENT
N.K. Aggarwal, J.
1. This is a petition under Article 226/227 of the Constitution, for quashing demand notice dated 16.8.1973 issued by the Market Committee, Dhariwal, District Gurdaspur, and the recovery notice dated 20.11.1983 issued by the Assistant Collector (Tehsildar), Gurdaspur.
2. The petitioner is a company incorporated under the Companies Act with its registered office at Kanpur. Its shares were acquired by the Central Government in the year 1981 and thereafter it become a Government company. The petitioner had a woolen textile mill at Dhariwal known as “New Egqrton Woolen Mills”. Raw material used in the mill was purchased by the head office of the company at Kanpur. Bulk supply of raw material was also received from Australia. The material was received at the mill at Dhariwal in pursuance of contracts made by the mill at Dhariwal Branch and also through the branch transfers. A demand of Rs. 3,67,200/- was raised by the market Committee, Dhariwal, on 15.3.1971. It comprised market fee of Rs. 2,44,800/- for the period 26.5.1961 to 31.12.1970 and penalty of Rs. 1,22,400/-
3. The petitioner objected to the levy of market fee with the plea that the petitioner did not make purchases of the raw materials inside the Market Committee area and, therefore, no fee was leviable. The petitioner filed a civil writ petition (No. 4247 of 1971) which came to be withdrawn on 15.11.1972 on the undertaking given by the Market Committee to make a fresh assessment after examining the records. Another demand notice was, however, issued to the petitioner on 16.8.1973 demanding the market fee at Rs. 4,26,000/-‘and penalty at the like amount for the same period (26.5.1961 to 31.12.1970).
4. The petitioner, on the levy of the market fee and penalty, again filed a writ petition (No. 3032 of 1973) in this High Court. The demand notice was this time quashed by a learned Single Judge, vide order dated 30.1.1974. Letters Patent Appeal (LPA No. 208 of 1974) filed against the said order was disposed or by a Division Bench of this Court, vide order dated 2.9.1976. The matter was carried by the petitioner to the Supreme Court by filing a civil appeal (-No. 681 of 1978) which was, however, dismissed by the Supreme Court, vide order dated 16.12.1982.
5. The grievance of the petitioner is that the Market Committee has not examined the past transactions in the light of the directions given by the Division Bench of this Court and affirmed by the Supreme Court. It is also pointed out that an assurance had been given on behalf of the Market Committee before the Division Bench hearing the LPA to the effect that the Market Committee would reconsider the question of waiving the penalty. It is alleged by the petitioner that neither the assurance given before the Division Bench of this Court has been fulfilled nor the past transactions have been examined so as to determine if any marker fee was leviable.
6. When the matter was heard by the Division Bench of this Court, the question of leviability of market fee was examined in detail. The plea put forward by the petitioner, that the raw material was actually purchased by the head office at Kanpur and, therefore, no market fee could be levied at the time of the receipt of raw material at the Mill at Dhariwal, did not find favour with the learned Judge of this Court and it was held that, in terms of the various agreements between the Mill and the sellers, delivery of the raw material and weighment thereof were made at the premises of the Mill and, for that reason, the petitioner was liable to pay the market fee under the Provisions of the Punjab Agricultural Produce and Markets Act, 1961. The following observations made by the learned Judges of the Division Bench are relevant :-
“The terms and conditions noticed above leave no room for doubt that the property in the goods passed to the Dhariwal Mill, immediately these goods were delivered to them. The sales must, therefore, be held to have been effected at Dhariwal. The fact that these goods were received by the Dhariwal Mill in consequence of a contract entered into by the Head Office at Kanpur or that the price of the goods was also to be paid by the Head Office, would make no difference, in so far as the nature of the transaction is concerned and, for all intents and purposes, it would be a sale in favour of the licencee.”
7. It would thus appear that the petitioner cannot legitimately raise the controversy again in the present writ petition as has been endeavoured to do. When the matter has been finally settled by the Division Bench and the judgment has been confirmed by the Supreme Court, the petitioner cannot be permitted to re-agitate over the same matter.
8. What is the market-fee as well as the penalty are still said to be under dispute on the plea that the past transactions must be examined in the light of the observations made by this Court so as to determine if the delivery or the weighment of the goods did take place within the Market Committee area, it would be relevant to reproduce the operative part of the order of this Court, dated 2.9.1976, passed by the Division Bench, which is as under:-
“Mr. Bhagirath Das Seth has further questioned the competence of the Appellant Committee to impose a penalty to the tune of an amount equivalent to the assessed market fee as, according to him, no such power to impose such a heavy penalty is vested in the Committee under the parent Act. It was contended that the decision rendered in Messrs. Ram Sarup and Ors. v. The Punjab State and Ors., I.L.R. (1969) I Punjab and Haryana 756, by a Division Bench of this Court, which decision was noticed by the learned Single Judge, does not lay down correct law. We do not, however, propose to go into this matter further in view of the assurance given by Mr. Kuldip Singh on behalf of the Appellant Committee that the Committee would re-consider the question of waiving the penalty or, if necessary, the imposition of a very nominal amount in this behalf, and we are sure that the committee would honour this commitment.
In the result, the judgment of the learned Single Judge dated January 30, 1974, is set aside. It would, however be open to the respondent-Mill to satisfy the Appellant Committee in respect “of any particular transaction which does not fall within the scope of this judgment. In view of the alternate success of the parties at the two tiers, we make no order as to costs.”
9. Shri Ramesh Kumar, learned counsel for the petitioner, has argued that the Market Committee has failed to fulfil the assurance given before the Division Bench and that is why the present writ petition has been filed. The assurance given on behalf of the Market Committee must be honoured either by waiving the entire amount of penalty or imposing a very nominal amount. It is also pointed out by Shri Ramesh Kumar that the Market Committee was also supposed to examine the past transactions in the light of the judgment but that has not been done so. Since demand for the recovery of market fee as well as penalty has been revived and attempt is being made to recover the entire amount of Rs. 8,52,000/-, the petitioner had no option but to come to this Court by way of a fresh writ petition.
10. Shri P.S. Patwalia, learned counsel for the Market Committee, Dhariwal, has challenged the maintainability of this writ petition on the ground that the present petition is barred by the principles of res judicata inasmuch as the petitioner had no right to challenge the levy of market fee after this Court had decided the matter against the petitioner. It is argued by Shri Patwalia that the decision of the Division Bench of this Court stands affirmed by the Supreme Court, vide order dated 16.12.1982. The petitioner failed to appear before the Market Committee in pursuance of the directions given by the Division Bench of this Court in order to show which transactions did not fall within the scope of the Division Bench judgment dated 2.9.1976. Since the petitioner was purchasing wool and was liable to pay the market fee at the time of delivery or weighment, it was for the petitioner to show as to -which transactions did not fall within the scope of the judgment. Since the petitioner failed to satisfy the Market Committee in respect of any particular transaction that it was not subjected to market fee and penalty was made. Shri Patwalia has argued that the petitioner was adopting delaying tactics and had avoided the payment of market fee since the year 1961. The petitioner’s appeal was dismissed by the Supreme Court on 16.12.1982 and the petitioner found it convenient to file the present writ petition in December, 1983, in order to delay payments of the dues. The Market Committee has been put to a great loss on account of non-payment of the market fee which was due and outstanding in respect of the period of about 9 years from 1961 to 1970. The petitioner has deliberately withheld the money and has utilized it for its own business.
11. It may be noticed that both the petitioner as well as respondent No. 1 have not, in all fairness complied with the directions of this Court. There is no dispute to the fact that an assurance was given at the time of hearing of the letters patent appeal that the Committee would reconsider the question of waiving the penalty or, if necessary, the imposition of a very nominal amount in that behalf. Therefore, it was expected that respondent No. 1 (Market Committee, Dhariwal) should have honoured its assurance and commitment given before this Court. That has not been done. The question about examining the past transactions so as to determine in the delivery or weighment of goods took place inside the Market Committee area, still remains to be determined in the light of the observations of this Court. It was clearly the responsibility of the petitioner to indicate if any transaction did not fall within the scope of the judgment of this Court dated 2.9.1976. There is no ambiguity in the order of this Court which the petitioner tries to raise through the present writ petition that the respondent-Market Committee was required and supposed to examine all the past transactions. It is difficult to agree with the petitioner that it was for the Market Committee to summon the petitioner for examining all the past transactions for the entire period. The operative part of the judgment dated 2.9.1976, as reproduced above, leaves no room for doubt that it was for the petitioner-Mill to satisfy the Market Committee in respect of any particular transaction which did not fall within the scope of the judgment. It is clear that the petitioner has to show to the Committee if any transaction is claimed to be outside the scope of the judgment.
12. While examining the prayer of the petitioner during the course of hearing of the present writ petition, Division Bench of this Court passed the following order on 12.3.1984 :-
“The petitioner should deposit the due amount of the market fee, i.e. Rs. 4,26,000/- within two months from today. In case the said amount paid within this period, the stay order shall be deemed as vacated automatically.
In the meantime, as directed by the Division Bench in Letters Patent Appeal No. 208 of 1974, the petitioner shall satisfy the respondent-Committee that a particular transaction does not fall within the scope of that judgment.”
It is apparent that the order passed by the Division Bench in letters patent appeal was again made clear by this Court and the petitioner was directed to satisfy the respondent-Committee if a particular transaction did not fall within the scope of the judgment in the letters patent appeal.
13. Keeping in view the short controversy sought to be settled between the parties, the following directions are given below :-
(i) Respondent No. 1 (Market Committee, Dhariwal) shall, within a period of three months from the date of this order, fulfil the assurance given before the Division Bench hearing the letter patent appeal to reconsider the question of waiving the penalty or, if necessary, the imposition of a very nominal amount.
(ii) The petitioner shall, within a period of three months from the date of this order, satisfy respondent No. 1 (Market Committee, Dhariwal), if any particular transaction relating to the period 26.5.1961 to 31.12.1970 did not fall within the scope of the judgment dated 2.9.1976.
14. The writ petition stands disposed of above terms. No order as to costs.