Dismissed

Mr. Vijesh Kumar Tayal, v. the Mandal Revenue Officer

Telangana HC27 Sept 2012WP/2100/2003

Case brief

AI extract

What is this about?

The High Court dismissed the writ petition challenging a distraint order for market fee recovery. The Court held that the petitioner concealed material facts regarding prior litigation by the mill's proprietrix and failed to approach the Court with clean hands, rejecting defenses based on limitation and lack of prior determination.

What did the court decide?

The writ petition was dismissed; respondents are entitled to recover arrears of market fee.

Mr. Vijesh Kumar Tayal, Vs the Mandal Revenue Officer — Cheque Dishonour | Telangana HC (2012)

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HON’BLE THE ACTING CHIEF JUSTICE SRI PINAKI CHANDRA GHOSE

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WRIT PETITION No.2100 OF 2003

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27^th September, 2012

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Between:

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Vijesh Kumar Tayal … Petitioner

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And

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The Mandal Revenue Officer, Tadepalligudem and another. … Respondents

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HON’BLE THE ACTING CHIEF JUSTICE SRI PINAKI CHANDRA GHOSE

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WRIT PETITION No.2100 OF 2003

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ORDER:

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Whether the distraint order purported to be issued under Section

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8 of the Andhra Pradesh Revenue Recovery Act, 1864 towards recovery of dues payable to the Agricultural Market Committee is bad in law is the question that arises for consideration in this writ petition. 2) Learned counsel for the petitioner contends that the distraint order issued by the first respondent purported to be under Section 8 of th e Andhra Pradesh Revenue Recovery Act, 1864 (for short, ‘the Revenue Recovery Act) is illegal inasmuch as the same is barred by limitation as the period of dues has been shown as from 1.4.1978 to 31.3.1987 and the date on which the amount became due as 28.6.1997, and it does not satisfy the requirements of Section 8. The alleged dues relate to the period from 1.4.1978 to 31.3.1987, but the date on which they became due was shown as 28.6.1997 and, therefore, the learned counsel contends that the same is unsustainable. He further contends that there is no prior determination of the liability and actual amount due towards such liability, in that, no opportunity was given to the petitioner to make representations and to produce the relevant material to substantiate the same. The learned counsel submits that by virtue of Section 12B of the Andhra Pradesh (Agricultural Produce & Livestock Markets) Act, 1966 (for brevity ‘the Markets Act’), the assessment of market fee shall be only within a period of three years from the expiry of the year to which the assessment relates. In support of the contentions, the learned counsel has placed reliance on the judgments of this Court in V.K. Roy v. Commissioner, Municipal Corporation of Hyd .^[1] and B.C. Muljakar v. Govt. of Andhra Pradesh^[2] and of the Supreme Court in State of Kerala v. V.R. Kalliyanikutty^[3] .

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3) On the other hand, learned Standing Counsel for the Market Committee (second respondent), while taking the Court through the counter affidavit, submits that the original owner of M/s. Krishna Rice Mill i.e. the grandmother of the petitioner herein, had filed cases before this Court and the Supreme Court questioning the levy of market fee

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on paddy and rice so also legality of Section 7(6) of the Markets Act, and the same were dismissed. As early as on 26.4.1984, the Market Committee issued a notice to the rice mill of the petitioner demanding to file returns and to produce books of accounts, but the same was challenged by the rice mill by filing O.S.No.267 of 1984 on the file of the Principal District Munsif, Tadepalligudem, however, the said suit was dismissed by judgment and decree dated 25.3.1991. Thereupon, the rice mill preferred A.S.No.10 of 1991 on the file of the Senior Civil Judge, Tadepalligudem, which was also dismissed. In view of the recalcitrant attitude of the proprietrix of the rice mill, the Market Committee had to procure the turnover particulars from the Commercial Tax Officer, Tadepalligudem and determined the market fee to the tune of Rs.5,66,597/-. After the demise of the proprietrix, the Market Committee had sent another notice on 1.3.1995 to the son of the proprietrix, Padma Kumar Gupta, calling upon him to remit the market fee and duly cautioning him that the said amount would be recovered by resorting to the provisions of the Revenue Recovery Act. By a letter dated 20.5.1997, the Market Committee had furnished details of turnover particulars also to the petitioner. Ultimately, the Market Committee had requested the District Collector to initiate steps under the Revenue Recovery Act for recovery of the amount due from the rice mill. Pursuant thereto, the impugned distraint order had been issued under Section 8 of the Revenue Recovery Act as provided in Section 26(2) of the Markets Act. The learned Standing Counsel submits that the rice mill has been dragging the matter allthrough by filing cases in different courts in order to avoid payment of market fee due to the Market Committee and, therefore, the same is not barred by limitation. Under Article 112 of the Limitation Act also, the limitation specified is 30 years. Therefore, there is no illegality in the impugned distraint order. To substantiate that Article 112 of the Limitation Act is applicable in this case, the learned Standing Counsel has placed reliance on an un-reported judgment of a Division Bench of

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this Court in Writ Appeal No.513 of 2003, disposed of on 15.4.2001, another judgment of a Division Bench of this Court reported in Devi Dayal Marwah v. The State of A.P .^[4] and of the Supreme Court in Nav Rattanmal v. State of Rajasthan^[5] and Accountant General (A&E) v. V. Sethumadhavan Nai r^[6] , and also a judgment of a Single Judge of Madhya Pradesh High Court in Central Bank of India v. Madhya Pradesh Rajya Pashudhan Avam Kukut Vikas Niga m^[7] . 4) I have heard the learned counsel for the parties and perused the record. I have also gone through the judgments relied on by both the learned counsel. 5) Admittedly, M/s. Krishna Rice Mill has due of a sum of Rs.5,66,597/- to the Market Committee towards arrears of market fee. This is evident from the turnover particulars furnished by the Commercial Tax Officer, Tadepalligudem for the period from 1978-79 to 1986-87, basing on which the market fee had been determined at Rs.5,66,597/-. The rice mill had been trying to evade the payment of market fee by instituting cases in different courts. Nowhere in the writ affidavit or the reply affidavit, the petitioner denied the liability to pay the market fee, except saying that to his knowledge there are no such arrears. However, the petitioner has tried to grapple on technicalities like limitation, determination of liability by giving reasonably opportunity etc. In the writ affidavit, the petitioner did not also disclose the factum of filing of cases by the proprietrix of the rice mill and subsequent issuance of notices by the Market Committee demanding payment of arrears of market fee. In the reply affidavit also, the petitioner did not rebut the averments made by the Market Committee in its counter that the proprietrix had filed cases in different courts. The petitioner has concealed the material facts and has not approached this Court with clean hands. On this ground alone, the writ petition is liable to be dismissed. Therefore, the judgments relied on by the learned counsel for the petitioner cannot come to the rescue of the

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petitioner.

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6) The writ petition is accordingly dismissed. No costs. The respondents are entitled to recover the arrears of market fee from the petitioner as above.

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___________________________ PINAKI CHANDRA GHOSE, ACJ

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27^th September, 2012.

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ARS

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