é? 1‘ a IN THE HIGH coUR'r OF JUDICATURE AT BILASPUR(C.G.) WRIT PETITION No. <Fé<>ié (2004 PETITIONER M/s. Tayyab 8r, Company, / / <2 V " WW Through Keskal, District its Proprietor, Bastar (C.G.), 4/ gwgyw’W Mohammed Tayyab, .. A ()4 S /o. Tar Mohammed, s"%tJ-" ....... ’1‘) Distn'ct Bastar (CG) .. ‘ I /F 6..” $5 . ( ‘ . Aged R/o. Main 43 years; Road, Keskal’ .;I©g\u$9.“ xe§v \\ @fu Q9a“ x ..... .. I 2‘44 . VI“ f . VERSUS RESPONDENT Krishi Upaj Mandi Samiti, 1/ ,Keskal, District Bastar (CG), / Through its Secretary, Keskal, Distn'ct Bastar (C.G.) \ w . / HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION NO. 4603 OF 2004 (Writ Petition under Amide 226 of ihe Constitution of India) Single Bench : Hon’bie Shri Satish K. Agnihotri‘ J. Present ;-- Shri Ashi$h Shrivastava, Advocate for the petitioneri Shri Prakash Tiwar'i, Advocate for the respondent. ORDER (Paigsed on 06‘“ day oi'August, 2010) “i The brief faota; of the case is that the petitioner company had twichased paddy from Veer Trading Company, Nayapera (in short “the Company/i arid Gautam Rice Miil during the period from 4/9/2000 to 5/9/2000. The petitioner purchased quantity of .2100 Quintais; paddy from the said Company. The Company was operating at Nayapara, Raiim within Nayapara Mandi area holding hilandi iioense No.1696 dated 6/4/2000. Under the provisions of (llhhattiagarh Krishi Upaj Mandi Adhiniyam, 1972. (hereinafter mien-ed to as “the Adhiniyam, 1072“), the first purchasers Ie the (Ziornidany and Rice l\/iill were liabie to pay Mandi fee (market fee) and thereafter the subsequent purchaser who have purchased paddy/hem the first purchasers are not iiabie to pay the market fee. in the :ase on hand, theCompany and Rice Mill had aiready paid market fee in respect of the paddy purchased by the petitioner. The petitioner received a notice for payment of market fee in respect of the said paddy, which were purchased from the Company and (Eiiautarn Rice Miii. The petitioner paid market fee under protest and filed an appeal before the Managing Director of Mandi Board at ' fitaipur The Appeliate Autl‘iority by order dated 23/12/03 remitted Bi. M/s. Tayyab & Company Versus |'QL"§|“’ONDFNT Krishi Upaj Mandi Samiti, Keskal bak the matter to the respondeml Mai o recosir rhea ase o‘ he peitioner o examination of i t elevnt documets and pass ‘ 27/2/004 (Annexur P~6) witut conoidering the peiior’e cas reemied the resolution paesed eaier on 11/9001 ldin hat he order thereafter, The rpnd Mandi vide rolion ted esut da petr p itione was liable to Rie Mill have not paid the market fee tor the ddy, whih as brol'ioeed by the etttionere. The, thie peiton. p u ti s S rnd l in fr that the ptitioner had purchased paddy from the a. The Company and Gaut submits; hish hrivastava, leae counse appearg o the petitioner Company ‘ and Gautam Rice Mitt, N Milt have paid market fee to the respondent Mandi as is Annexure market fee second time on the game ite ayapar am Rice evident from P4. Thus, indisputably, the petitioner is not liable to pay since the respondent Mandi has not complied with the order passed t12/2003 by hoiding in the resolution ms. lt was further stated that by the Managing Director on 23/ dated 27/2/2004 that the Mandi did not feet to take contrary stand as ‘ wee taken in the tee the resolution dated 27/2/2004. Shri Tiwari learned counsel appt submits that so far a3 legal position >aring for the respondent Mandi that the market fee is of notified agriculturat produce within and outside the State process r' 5 levy m l--lowever, in the cast, on h am Rice Mill Were is concerned, there is no dispute Section 19 of the payabte under provisions of Adhiniyam, 1972, on the sale the State into the market area and use for ing at one time in the said area. This is not contemplated to arket fee twice over on the same notified agricuttural produce. and, the Company and Gaut \had not paid market fee on the paddy. Thus, the petitioners c nd t nde c f t t n ai he ra n esoent 2 e ho ttne e it rl /2 hog t t c pa c w Ll e in lmh o pay tho ‘ame Thus thc reapondent Manm has uqNiy dwldwd to levy and LoHect malkut fee with penalty from the petitioner, The quegtion asl'o whether second purchaser is liable to pay market fee is noi disputed. lt ie 'lhe cage of the Mandi committee aleo that market fee on the agricultural prOduce is payable on the sale of ‘ notified agricultural produce whether brought within the State or outside the State in the market area and USe for procees‘ing. ln the ‘ came on hand, the dispute is with regard to payment 0t the market tee by first purchaeers i.e. the Company and Gautam Rice Mill and the demand of payment ol n‘tarket tee from the petitiener second time, it any, is bad on account of the fact the market fee ha already been paid by the first purchasers The dor‘uments produr‘ed by the peti loner and re pendent are not euthctent to resolve the factual dlepute as Annexure P—t is Anugya Patra, which does not disclose that the payment has been made in reepeot of. the purchase of the r Elaine paddy quantity by the petitioner and a Chart i e at Anneyure R~ ‘ also does not clarity the position even othervwse the druputed facts t armoi be resolved on the hams of incompiete dorumenb a, the ame does not disclose sack Wise payment. lookinq irom other angle as the market fee and the penalty p'tid by he petitioner have paescd on to the subsequent purchasers monetimers. Thus granting return of the market tee and penalty would amount to unjust enrichment at this stages The petitioner has failed to estabiish that the Mandi fee and the penalty have not passed on to the subsequent purchasers/ consumers except mere statement that the same wits paid oy the pantioner from i s account \ s 4 m Mafatiai industries Ltd‘ v. Unicn of mdia1, 9 Judges Bench of the $3upreme Court, by majority, in respect of principle o unjust enrichment observed as under : ”108 (iii) A claim for refund, whether made under the provisions of the Act as contemplated in Proposition (i) above or in a suit or writ petition in the situations contemplated by Proposition (ii) above, can succeed only if the petitioner/pitain‘tiff alleges and establishes; that he has not passed on the burden of duty to another person/other pert-5on3 His refund claim shall e allowed/decreed only when he establishes that he has not passed on the burden of the duty or to the extent he has not so passed on, as the case may be Whether the claim for restitution is treated as a constitutional imperative or as a t statutory requirement, it is neither an absolute right nor an unconditional obligation but is subject to the above requirement as *explained in the body of the judgment. Where the burden of the duty has been passed on, the claimant cannot say that he has suffered any real loss or prejudice. The real loss or prejudice is suffered in such a case by the person who has ultimately borne the burden and it is only that person who can legitimately claim its refund. But where su‘ch person does not cometorward or where it is not possible to refund the‘amount to him for one or “the other reason, it is iust and appropriate that that amount is retained by the State ie by the people There is no immorallty or impropriety involved in such a proposmon The doctrine of unjust enrichment is a just and salutary doctrine. No person can seek to collect the duty from both ends. ln other words, he cannot collect the duty from his purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law The power of the Court i not meant to be exeict ed ior unjustly enriching a person. The doctrine of unjust nrichment is, however, inapplicable to the State. State represents the people of the country. No one can speak of the people being unjustly enriched". in the matter of Sanakari Khand Udyog Mandel Ltd. v. Commissioner of Central Excise 8t Customsz, principle of unjustqenrichrrient has been explained by the Supreme Court as under: @5 “31. Stated simply, “unjust enrichment" means retention of a benefit by a person that is unjust or ‘nequitable “Unjust eniichment" occurs when a peison retains money or benefits which in justice eqwty and good consmonce belong to someone el )ascr a36 acr rsa f b e . i w 32. The doctrine of ”unjust enrichment”, therefore, is that no person cam be aHowed to enrich inequitably at the expense of ahother. A right of recovery under the doctrine of “unjust enrichment” arises where retention of a benefit i5 considered contrary to justice or against equity, d 42. In Mafatlal Industries Ltd. also, this Court hel that refund of tax/duty wrongfuily paid can be claimed on the basis of doctrine of equity and a person demanding such restitution must plead and prove that he had paid such tax/duty and had suffered Ides/injury. The burden is on the petitioner to prove that the tax/duty paid by him is not passed on l:o customers or third party and that he is entitled to restitution. 5, From the above discussion, it is clear that the doctrine of “unjust enrichment” is based on equity and has been accepted and applied in several cases. in our opinion, therefore, irrespective of applicability of Section ’l1—B of the Act, the doctrine can be invoked to deny the benefit to which a person is not otherwise entitled. Section 11—B of the Act or similar provision merely gives legislative recognition to this doctrine. "that, however, does not mean that in the absence of statutory provision, a person can claim, or retain undue benefit. Before claiming a relief of refund, it is necessary for the peittitioner—appeiiant to show that he has paid the amount for which relief is sought, he has not passed on the burden on consumers and if such relief is not granted, he would suffer loss". For the reasons mentioned hereinabove, it cannot be held that there was levy of market fee second time for the same specified agricultural produce within the market area. Even if, it is so, the refund cannot be allowed on the principle of unjust enrichment that the petitioner has passed on the burden of paying market fee and penalty to the consumers as the petitioner has failed to establish the fact that the market fee and penalty was not passed or? to the subsequent purchasers / consumers. Accordingly, the matter is disposed of. No order asto costs. Sd/- Sau'sh K. Agnihotri Judge amhoir dart 4