Petitioner challenged recovery of market cess. Court directed special audit under Section 86 of GCSA. Audit report showed fee was overpaid. Petition disposed after establishing grievance compliance.
Petition disposed of; notice discharged. Petitioner allowed to challenge the audit report in appropriate forum.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C/SCA/9921/2018 ORDER DATED: 07/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9921 of 2018
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YASHWANTBHAI DEVJIBHAI PATEL & 1 other(s)
Versus STATE OF GUJARAT & 3 other(s)
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Appearance:
MR DIPEN DESAI(2481) for the Petitioner(s) No. 1,2 MS NIDHI VYAS, AGP for the Respondent(s) No. 1,4 MR NIRAJ V ASHAR(2562) for the Respondent(s) No. 2 MR VC VAGHELA(1720) for the Respondent(s) No. 3
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CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 07/07/2022
ORAL ORDER
on behalf of the petitioners, Ms.Nidhi Vyas, learned Assistant Government Pleader appearing on behalf of the respondents no.1 and 4, Mr.Niraj Ashar, learned advocate appearing on behalf of the respondent no.2 and Mr.V.C.Vaghela, learned advocate appearing on behalf of the respondent no.3.
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C/SCA/9921/2018 ORDER DATED: 07/07/2022
4.1 The respondent no.3 society was issued show-cause notice by the respondent no.4 Director for payment of outstanding market fees for the year 2004-05 to 2008-09. The said notice was challenged by way of revision application before Ld. Dy. Secretary (Appeals) which came to be rejected on 11.06.2010. The same became subject matter of challenge by way of SCA No. 11604 of 2010 and subsequently by way of LPA 2133/2011 wherein the hon’ble Division bench on 07.07.2015 remanded the matter to the Director to decide the issue of market cess in accordance with law. Pursuant thereto, the Director, upon hearing, by its order dated 17.07.2015 directed chairman/secretary of both parties to inquire and arrive at a final decision. This order of respondent no.4- Director was challenged by petitioner by way of revision
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C/SCA/9921/2018 ORDER DATED: 07/07/2022
application before Ld. Dy. Secretary(appeals) which came to be rejected on 25.01.2018. Aggrieved by same, the present petition is preferred challenging the order dated 07.07.2015 and 25.01.2018.
“The appellant has preferred Revision against the Order dated 17/07/2015 in Appeal No.21/2014 passed by the Director, wherein the respective parties have submitted as under:
After admitting the said revision, notice was issued to the appellant from time to time and the appellant remained absent on most of the hearing dates. The advocate for the respondent no.1 - organization remained present today during hearing and submitted as under.
The appellant was not the party in the matter of Appeal No.21/2014 before the Director and therefore, he has no right to prefer such revision. Moreover, the appellant has prayed to recover the amount of market cess payable as per the notice of the market committee from the Respondent No.2- Gin,
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however, the Director has partly allowed the said appeal and the respondent no.2- organization has not to pay the market fee for several transactions, as may be decided, entered into through the co-operative union by pooling the stock. Thus, the case is remanded back to decide the entire matter between the respondent no.1 and 2 and hence, the appellant has no right or authority to prefer such revision. Thus, the revision of the appellant is not tenable and the matter is decided by the various authorities, as the entire dispute is between the market committee and respondent no.2 – society, the revision application is not tenable against the remand order. It is submitted to dismiss the said revision in such circumstances.
Considering the facts of the revision of the appellant and submission of the respondents, the Director has allowed the said case partly and ordered to decide the matter perusing the records. When the appellant failed to produce any evidence showing the appellant as party in the matter of appeal before the Director and as per the Order of the Director, the matter is required to be decided as per the provision of law, it does not appear to pass any order in the matter of this revision. In these circumstances, following order is passed:
|ORDER|
Revision Application No.114/2015 is hereby rejected.”
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“7. It appears that there is nothing on record to justify a basis of resolution at Page 53 of the petition. In such circumstances, respondent no.4 is directed to conduct a special audit as per the provision of section 86 of the Gujarat Co-operative Societies Act, 1961 with the help of the Deputy Director who is a District Registrar Co-operative Societies, Bharuch, with regard to issue arising in this petition by auditing the statements of both the parties with regard to market cess/fees,if any, to paid for the period 2015-16 for direct purchase of the cotton by respondent no.3
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society. Such exercise shall be carried out by the respondent no.4 within four weeks from the date of receipt of this order and place such report on record of this petition.”
“The organisation (Jin) has paid Market Cess Fees of Rs.8,80,278/- against the payable Market Cess Fees
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C/SCA/9921/2018 ORDER DATED: 07/07/2022
of Rs.3,07,360/- on direct purchase from the year 2013-14 to the year 2015-16. In which the market cess fee of Rs.1,48,673/- is included, which is payable on direct purchase of 2015-16 as decided in the proceedings of the meeting of their joint committee dated 25.08.2015. On looking to the reports, it appears that, in addition to South Gujarat Cooperative Cotton Marketing Union Ltd., Surat, the sale of Rs.1,94,46,693/- have (also been done to the traders / commission agents by the organisation (Jin) during the year from 2013-14 to 2015-16. Upon which the market cess fees of Rs.1,94,667/- is payable @ 1%. Hence, it is the opinion that the market cess fees payable from the year 2013-14 to 2015-16 is Rs.5,02,027/-. Against which the market cess fees of Rs.8,80,278/- has been paid during these years (i.e. from 2013-14 to 2015-16).
Annexure
| S | Page no. | |
|---|---|---|
| r. no. |
Details | From … to…. |
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C/SCA/9921/2018 ORDER DATED: 07/07/2022
| 1 | Copy of Proceedings of the meeting of Joint Committee held on 25/08/2015 |
1 to 4 |
|---|---|---|
| 2 | Copy of letter (dtd. 18/05/2022) of A.P.M.C. – Hansot |
5 to 8 |
| 3 | Copy of letter (Dtd. 12/05/2022) of Yashwanrai Joshi Co. Op. Agriculture Producing and Marketing Soc. Ltd. |
9 to 10 |
| 4 | Report showing pooling and direct purchase among the inward (purchase) of cotton as well as paddy from the year 2004-05 to the year 2014-15 byYashwanrai Joshi Co. Op. Agriculture Producing and Marketing Soc. Ltd. |
11 to 12 |
| 5 | Copy of letter dtd. 17/05/2022 ofYashwanrai Joshi Co. Op. Agriculture Producing and Marketing Soc. Ltd. |
13 to 16 |
| 6 | Certificate showing year wise details of the transactions done by South Gujarat Cooperative Cotton Marketing Union Ltd., Surat, from the year 2004-05 to the year 2014-15. |
17 to 18 |
| 7 | Calculation sheet of Market Cess Fees on believing (assuming) that the sale of remaining amount (might) have been done through the Trader/ Commission Agent. By deducting the amount of the Certificate showing the details of transactions done by South Gujarat Co- operative Cotton Marketing Union Ltd. – Surat from the year 2004-05 to 2014-15 as shown in the above para. from the amount shown in the Reports of Sale details of the processed goods of paddy and cotton as like cotton (bale of cotton), cotton seeds, cotton seeds cakes, cotton seed oil etc. from the year 2004-05 to 2014- 15. |
19 to 22 |
| 8 | Demand of Rs. 1,02,77,275/- found to be decided bytheMarketing Committee after |
23 to 24 |
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| counting 1% of Market Cees Fees on all the purchase of the aforesaid organization from its Annual Reports of the year 2004-05 till the year 2012-13. |
||
|---|---|---|
| 9 | Letter about not producing the evidences about the counting of Market Cess Fees of last (3) years. i.e. 2009-10, 2010-11, 2011- 12 |
25 to 26 |
Sd/- illegible Spl. Auditor, Co-op. Soc. (3), Bharuch
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be inferred that the aforesaid orders would not survive in view of the present report filed by the respondent No.4 dated 19.5.2022. In the present report also the respondent authority has opined that no cess is due and payable by the respondent No.3 as stated above.
(VAIBHAVI D. NANAVATI,J)
K.K. SAIYED
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2 issues framed by the court
Whether the petition survives in light of the expiration of one of the respondents.
Whether a fresh audit ordered by the Court was duly complied with by the authority.
1 provisions across 1 enactments
YASHWANTBHAI DEVJIBHAI PATEL
STATE OF GUJARAT
YASHWANRAI JOSHI CO OP AGRICULTURE PRODUCING AND MARKETING SOC LTD
VAIBHAVI D NANAVATI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
