MAM CHAND ROLLER FLOUR MILLS PRIVATE LIMITED Vs. CHIEF ADMINISTRATOR HARYANA STATE AGRICULTURAL MARKETING BOARD

JUDGEMENT

(1.) The petitioner is a registered dealer under the Punjab Agricultural Produce Markets Act, 1961, (for short "the Act") and is dealing in the sale, purchase, storage and processing of agricultural produce within the notified market area of the Market Committee, Sadhaura in the State of Haryana. The Administrator, Market Committee Sadhaura made an assessment for the period 1-4-1996 to 31-3-1997 and determined the total market fee leviable on the petitioner at Rs. 1, 62,836.89 out of which the petitioner had deposited a sum of Rs. 38,139.74. Thus, a sum of Rs. 1,24,697.15 was determined as recoverable from the petitioner. The petitioner was also held liable for payment of an equal amount as penalty for submitting a false return. The petitioner filed CWP 15384 of 1997 before this Court challenging the assessment order dated 12-9-1997. The said writ petition was dismissed on 13-10-1997 as not maintainable on the ground that an appeal was competent against the order of assessment and the petitioner had not availed of the remedy. The petitioner thereafter filed an appeal before the Chairman, Haryana State Agricultural Marketing Board, Panchkula. The appeal was accompanied by an application dated 14-10-1997 wherein it had been prayed that the recovery of the amount of market fee and penalty be stayed during the pendency of the appeal. The stay application and the appeal were dismissed by the Chief Administrator vide his order dated 22-10-1998 in the following terms :-

(2.) It is against this order that the present writ petition has been filed. Shri Rajesh Bindal learned counsel appeared on behalf of the petitioner and contended that the Chief Administrator was not justified in dismissing the appeal and the stay application without granting an opportunity of being heard to the petitioner. According to him even though sub-rule (13)( i) of Rule 31 of the Punjab Agricultural Produce Markets (General) Rules, 1962, (for short "the Rules") provides that no appeal shall be entertained unless the amount of fee assessed has been deposited in full, yet when an application had been filed along with the appeal with a prayer to stay the recovery of the disputed demand, it was incumbent upon the Chief Administrator to first dispose of the stay application after affording an opportunity of being heard to the petitioner. In case he was not inclined to accept the prayer, he ought to have afforded an opportunity to the petitioner to deposit the fee. It was argued that the action of the Chief Administrator in dismissing the stay application and the appeal simultaneously was therefore, against the principles of equity and natural justice. For this purpose the learned counsel for the petitioner placed reliance on the decision of the Supreme Court in Shyam Kishore v. Municipal Corporation of Delhi, AIR 1992 SC 2279 and also on the decisions of this Court in ANZ Grindlays Bank Ltd., Amritsar v. Municipal Corporation, Amritsar, (1999) 121 Punj LR 254 and Shree Markande Metal (India) Pvt. Ltd. v. The State of Haryana 1995 (2) AIJ 743. It was then contended that the assessment had been framed for levy of tax and penalty under sub-rules (8) and (9) of Rule 31 read with Section 23 of the Act and such an order being not appealable could be validly challenged in the present writ petition. He referred to the provisions of Section 40 of the Act to contend that an appeal was provided only against an order passed by a Committee under Section 13 whereas the assessment order had been framed under Section 23 of the Act. It was then contended that sub-rule (13)(i) of Rule 31 is ultra vires as it overrides the provisions of the Act itself. According to him Section 40 of the Act, which provides for the filing of an appeal, contains no condition about the pre-deposit of the fee, and, therefore, while prescribing the procedure for filing the appeal, in the rules, no such condition could be incorporated.

(3.) Sh. K.K.Gupta, learned counsel for the respondents, refuted the arguments advanced on behalf of the petitioner. According to him the provisions of sub-rule (13)(i) of Rule 31 are unequivocal and do not leave any discretion with the Chief Administrator to entertain an appeal unless the amount of fee assessed had been deposited in full nor do they confer any right on the petitioner to make an application for entertaining the appeal without payment of the fee. It was also contended that the application for stay dated 14-10-1997 (Annexure P-7) did not even contain a prayer for entertainment of the appeal without payment of tax. It was merely a prayer for stay of demand during the pendency of the appeal. Thus, according to him, the Chief Administrator was justified in not entertaining the appeal. The learned counsel also pointed out that after the dismissal of the earlier civil writ petition No. 15384 of 1997 on 13-10-1997 the petitioner could not contend that the assessment order was not appealable. While dismissing the writ petition this Court had clearly observed that admittedly an appeal is competent against the impugned order of assessment and that the petitioner should first avail the remedy in appeal. The learned counsel also pointed out that the provisions of sub-rule (13)(i) of Rule 31 could not be said to be ultra vires as Section 40 of the Act clearly provides that the procedure for appeal was to be prescribed and this sub-rule lays down such procedure. Further, the requirements of payment of the assessed fee cannot be said to be unduly onerous so as to render the right of appeal totally illusory.