C.W.P. No.16767 of 1991 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.16767 of 1991 Date of Decision. 09.09.2011 M/s Bahadur Chand Rajinder Kumar, Partnership Firm (registered under Indian Partnership Act), Gohana Mandi, Gohana, District Sonepat through its Partner Rajinder Kumar .....Petitioner Versus Market Committee, Gohana, District Sonepat through the Administration and another .....Respondents Present: Mr. Jaideep Verma, Advocate for the petitioner. Ms. Surabhi Jain, Advocate for Mr. Ravi Kapur, Advocate for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? No 2. To be referred to the Reporters or not ? No 3. Whether the judgment should be reported in the Digest? No -.- K. KANNAN J.(ORAL) 1. The petitioner challenges the order issued under the Punjab Agricultural Produce Markets Act, 1961 making an assessment of a certain sum as payable towards market fee. The demand has come through a volley of notices and all those notices Annexures P-1, P-3, P-5, P-7, P-8, P-9 are sought to be quashed. The petitioner admits that as registered firm carrying on its business within the market area, it is amenable for control under the Punjab Agricultural Produce Markets Act, 1961 but the demand for market fee, the manner of assessment and the way the collection could be effected are all controlled by distinct procedures and the impugned notices flouted the procedures laid down C.W.P. No.16767 of 1991 -2- under the Act. The petitioner's contention, inter alia, is that demand of Rs.1,03,451.70 made through several notices, has not followed the procedure laid down under the Rules. According to him, the notice calling for Account Books etc. on 18.09.1991 issued under Section 33-A (1) of the Act was done simultaneously with yet another demand said to have been issued on the very same day to show cause why an amount of Rs.1,03,451.70 cannot be realized from him. The petitioner would point out that the Forms of notices prescribed under the Act require that first a notice shall be issued calling upon a person to furnish the necessary details and later in Form O giving an opportunity to the licencee to come present with documents of account etc. and show cause against assessment and then in Form P that would contain the actual assessment. In this case, no notice under Form O or P had been issued and straight-away a demand had been made and reminders had been sent calling upon the petitioner to pay the amount without setting out the details as to how the amount was assessed. 2. The respondent would file a statement contending, inter alia, that the writ petition itself is not maintainable since under Sub Rule 13 of Rule 31(1), there is a provision for an appeal to the Chief Administrator of the Board against every assessment made and a writ petition filed directly against the assessment, was not maintainable. On the issue of merits, the contention is that there was no requirement to issue notices under Form O or P, for they would apply only in cases where documents have not been produced at all but in this case, on a proper appraisal of the documents produced for the period between 01.04.1991 to 15.09.1991, it became clear that the petitioner had not C.W.P. No.16767 of 1991 -3- been making the market fee as payable and therefore, when the notice had been given, making the demand for payment, the petitioner was bound to satisfy the same. In any event, those details of how the amount had been arrived at, had also been given to the petitioner along with letter dated 11.10.1991 and in spite of several opportunities granted on 18.10.1991, 19.10.1991, the petitioner did not make the payment but was merely engaging the respondents in meaningless communications seeking for withdrawal of the notices. No amount has been paid during the relevant period and the petitioner is not entitled to have the notices quashed. 3. There is a clear scheme laid down under the Act as to how there is a duty for licencee to submit returns periodically and in the absence of such returns, the Market Committee, would have a right to demand the production of records and then involve the licencee in enquiry in person if ever there is a discrepancy between the return already submitted and the data collected from the documents. Only after such an enquiry, an assessment could be made. The complaint of the petitioner that there had been no notices in Form O or P, is correct in some way but the issue in this case is whether the absence of these notices in that particular Form violate principles of natural justice, for the content of very same notices and the opportunity have been granted to the petitioner as the following details would show. 4. It is surely a matter of intrigue as to how a notice calling for production of records on 18.09.1991 could be given along with yet another notice issued on the same day complaining of violation of the relevant rules and evasion of a sum to the tune of Rs.1,03,451.70. If the C.W.P. No.16767 of 1991 -4- petitioner was aggrieved that the amount could not have been assessed without proper notice, he was justified in saying so but when the petitioner demanded through a notice as to how the amount had been assessed, the Market Committe had issued a reply on 28.09.1991 pointing out that the market fee had not been paid and had given an opportunity to make the said payment and when the petitioner was persisting that the asseement could not have been made without an eqnuiry, the Market Committee had sent a communication on 11.10.1991 giving the details of calculation as to how the amount was reckoned and photopcy of the Bahi on which the market fee had been calculated containing 9 pages, amounting to Rs.51,72,585.15 with the market fee calculated at Rs.1,03,451.70. This surely contains details of how the amount was arrived at. The petitioner had the opportunity to explain that the amount was not properly calculated and could have refused to make the payment or join issues in the writ petition or in an appeal which he had an opportunity to file. Deliberately, the petitioner has suppressed the details, which were said to have been sent along with the respondent's letter dated 11.10.1991. There is also a reason why the petitioner had come by means of a writ petition without filing an appeal, for the proceure for an appeal requires payment of 50% of the amount and he has found a reason not to comply with the same by means of filing a writ petition. 5. The availment of alternative remedy could always be explained if there is a serious violation of the statutory provisions shown and principles of natural justice are shown to have been flouted. In this case, the petitioner had an opportunity to explain as to how he was not C.W.P. No.16767 of 1991 -5- liable to make the payment when a notice was issued by the respondents with all those details. The petitioner has taken an issue of procedural violation by suppressing important facts through the notice issued by the respondents. The petitioner is guilty of fraudulent suppression and he is not entitled to any assistance from Court. 6. There is no merit in the writ petition and it is accordingly dismissed. (K. KANNAN) JUDGE September 09, 2011 Pankaj*