R.A.No.276 of 2010 (O&M)in #1# CWP No.19827 of 2001 IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH R.A.No.276 of 2010 (O&M) in CWP No.19827 of 2001 Date of order: 19.11.2010 Sterling Agro Industries Limited ……Applicant-Petitioner Vs. State of Haryana and others ……Respondents CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. J.K. Sibal, Sr. Advocate with Mr. Sandeep Suri, Advocate and Ms. Manmeet Kaur, Advocate for the applicant-petitioner. JASWANT SINGH, J This order will dispose of six* review applications filed under Article 226 of the Constitution of India read with Order 47 Rules 1 and 2 of the Civil Procedure Code for recalling order/judgment dated 28.5.2010 passed by this Court in writ petition bearing CWP No.19827 of 2001, whereby aforesaid writ petition along with other connected writ petitions have been dismissed. Learned counsel has tried to re-argue the matter and has also annexed documents PA-2 to PA-6 with the review applications, the detail of which is as under: “PA-2 Sale Tax return dated 31.3.2008 PA-3 Copy of Gazette Notification dated 26.3.2002 PA-4 Copy of MMPO dated 17.9.2002 R.A.No.276 of 2010 (O&M)in #2# CWP No.19827 of 2001 PA-5 Copy of RTI Letter dated 16.8.2010 PA-6 Reply of RTI letter dated 14.9.2010” On the face of the aforesaid documents, it reveals that PA-2 to PA-4 were for the intervening period from 26.3.2002 to 31.3.2008 i.e prior to the date of impugned judgment dated 28.5.2010 but the same were not placed on record by the petitioner along with the writ petition for the reasons best known to them. So far as documents PA-5 and PA-6 are concerned, these are subsequent to the passing of the judgment and, therefore, all these documents same cannot be taken into consideration at all. Learned counsel for the petitioner has argued as under: i) that the plants not registered under the Milk and Milk Product Order, 1992 (for short “Order of 1992”) but handling more than 10,000 litres of milk are not liable to pay any cess under the Haryana Murrah Buffalo and other Milch Animal Breed (Preservation and Development of Animal Husbandry and Dairy Development Sector ) Act, 2001 (for short “2001 Act”) e.g Kurukshetra-Karnal Cooperative Milk Producers Union Ltd, Karnal at Kurukshetra is handling more than 35000 litre milk per day in the year 2008 but not registered under the MMPO and, therefore, not liable to pay any cess at all and the sale tax return in support of the same is annexed as Annexure PA/2, therefore, the levy of cess is discriminatory/arbitrary. ii) that a milk plant having a capacity of 9,999 litre per day does not fall under the category of “small dairy” as such a milk plant will have an input milk cost of more than Rs.7 crores per annum and by no means it can be termed as a “small dairy”. iii) that 2001 Act is discriminatory as the complete information regarding R.A.No.276 of 2010 (O&M)in #3# CWP No.19827 of 2001 quantity of milk utilized by each plant registered under the MMPO is available with the authorities whereas the milk plant, which is only registered having a capacity of 10000 litre and above is being held liable. Therefore when the entire data was available with the respondent, then it is discriminatory to impose cess only on the milk plants, which is or are registered under the MMPO. iv) also that the point whether the levy under 2001 Act was a Tax or Fee has not been decided by this Court while passing the impugned judgment dated 28.5.2010. After hearing learned counsel for the applicant-petitioner, we find that there is no merit in the review application and the same is liable to be dismissed for the following reasons: i) As per Section 2 (h) of 2001 Act, “milk plants” means the dairy plants owned by any person, undertaking, establishment or unit as has been registered under the Order of 1992 and operating within the limits of State of Haryana, therefore, a milk plant, which is not registered under the order of 1992 is not covered under the provisions of 2001 Act as has already been held by this Court that the milk production is an unorganized sector and the milk plants registered under the order of 1992 have been included under 2001 Act irrespective of the fact whether the same is owned by any farmer, cooperative society or any person or undertaking at a specified rate and as such the petitioner cannot raise such a plea. No such pleadings that within the State, there were other plants handling more than 10,000 litres of milk and not made amenable to the cess were made in the writ petition. A new case is sought to be made out at the stage of review, therefore, the contention of the petitioner is not acceptable and hence rejected. As regards R.A.No.276 of 2010 (O&M)in #4# CWP No.19827 of 2001 the solitary example of Kurukshetra-Karnal Cooperative Milk Producers Union Ltd Karnal at Kurukshetra allegedly handling more than 35000 litre milk per day in the year 2008 but not registered under the MMPO is concerned, it is an acknowledged fact that this contention of the petitioner was neither pleaded nor argued by the petitioner at the time of arguments in the main writ petition, which otherwise could have been ascertained after providing full opportunity to the State to rebut the same and therefore, the petitioner cannot be permitted to re-argue the matter in the present review application. ii) The petitioner has picked up few lines from para 15 of the judgment and has tried to build up his argument No.(ii) by chosen the words “small dairy” into inverted commas to put emphasis thereon. After reading of paragraph 15 of the judgment in continuity, it is apparently clear that the petitioner is trying to assail our finding like in a court of appeal, which is not permissible in review application. Iii) As regard the contention no.(iii) is concerned, the imposition of tax on the licensed capacity is discriminatory as the same will not depend upon the quantity of milk processed by a plant but on the capacity of a licence granted to a milk plant and as such the same is arbitrary. This point has already been considered in para 20 of the judgment that the adopted manner of imposition of cess on licensed capacity is only a measure of the levy as a matter of legislative policy and convenience for the effective implementation of 2001 Act in a wholly unorganised sector and the same is thus not arbitrary or discriminatory. The alleged data projected is purportedly available only with the petitioner/milk plants operating under a license under MMPO whereas the levy if otherwise operated, the R.A.No.276 of 2010 (O&M)in #5# CWP No.19827 of 2001 collection/administration would not be benefited of such a data, which cannot possibly be available with other/every milk handler. iv) It is relevant to mention that the plea urged herein regarding levy to be determined as Tax or Fee was not even raised at the time of arguments as the petitioner was mainly relying upon the Punjab Dairy’s case wherein the judgment dated 20.11.2001 passed by this Court was upheld by Hon’ble the Supreme Court regarding the Punjab Act being arbitrary and discriminatory but the point whether levy was a tax or a fee was left open. Under Entry 66 read with Entry 15 of List (ii) of the Seventh Schedule of the Constitution of India, the State has the power to impose cess. The scope of the review is very limited as held by Hon’ble the Supreme Court in its judgment titled Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, AIR 1979 SC 1047 and being consistently followed. Para 16 of this judgment is as under: “It is true as observed by this Court in Shivdeo Singh v. State of Punjab (AIR 1963 SC 1908) there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter of evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made, it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power of review is not to be R.A.No.276 of 2010 (O&M)in #6# CWP No.19827 of 2001 confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court.” Keeping in view the law laid down by Hon’ble the Supreme Court and taking into account the facts and circumstances of the present case, we find no justification to consider the documents PA-2 to PA-6 at this stage as the petitioner has not given any plausible explanation that these documents were not within their knowledge and the same could not be produced despite exercising due diligence at the time of passing the impugned judgment dated 28.5.2010 and, therefore, the same will be beyond the scope of review as settled by Hon’ble the Supreme Court. Accordingly, the review applications are dismissed. A photo copy of this order shall be placed on the files of connected Review Applications. ( M.M. KUMAR ) ( JASWANT SINGH ) JUDGE JUDGE November 19, 2010 manoj *1. RA No.276 of 2010 in CWP No.19827 of 2001 Sterling Agro Industries Limited v. State of Haryana and others 2. RA No.277 of 2010 in CWP No.19154 of 2003 Kwality Dairy (India Limited v. State of Haryana and others 3. RA No.278 of 2010 in CWP No.1072 of 2002 Daily Foods (India v. State of Haryana and others 4. RA No.279 of 2010 in CWP No.19828 of 2001 M/s Modern Dairy Limited v. State of Haryana and others 5. RA No.280 of 2010 in CWP No.332 of 2002 Bharat Dairy Udyog v. State of Haryana and others 6. RA No.297 of 2010 in CWP No.19829 of 2001 M/s Haryana Milk Food Limited v. State of Haryana and others