R.S.A.No.1901 of 1989 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No. 1901 of 1989 Date of decision: 26.11.2011. M/s Piara Lal Sohan Lal Firm, Samana Mandi. Appellant Versus Market Committee, Samana Mandi. ...Respondent CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA. Present: Mr. R.L. Batta, Sr. Advocate with Mr. J.S. Saggi, Advocate for the appellant. Mr. P.K.S. Gill, Advocate for the respondent. ***** G.S.SANDHAWALIA, J (ORAL). The plaintiff has filed an appeal having been unsuccessful in both the Courts below whereby its suit has been dismissed. The appellant had filed a suit for declaration and permanent injunction challenging the assessment made by the defendant for the year 1978-79, 1979-80 and 1980-81 vide letter no.19 received by the plaintiff on 03.04.1982 to the tune of Rs.17849.69. The said assessment has been made on the basis of resolution No.5(c) dated 16.1.1984 received by the plaintiff firm on 28.2.1984. It was pleaded that the assessment in dispute had been made ex-parte against the provisions of law and beyond the jurisdiction of defendant, on the ground, they have purchased Gur, R.S.A.No.1901 of 1989 -2- **** Shakker and Khandsari from outside the market area and then brought the same at Samana to sell it on retail sale. It was alleged that the plaintiff firm did not indulge in sale and purchase in open auction in Samana notified area and the defendant committee was informed about the purchase from outside area and there is no violation of the rules and regulations of the defendant committee. The defendant had contested the suit and contended that they checked the accounts of the plaintiff and on that basis, demand notices had been issued and the assessment was made accordingly and resolution was passed on 16.01.1984 vide resolution No.5(c) and the plaintiff had neither filed any return nor replied to any notices issued by the defendant. It had further mentioned that the firm had done business for Rs.4,17,559.74 for the year 1978-79 and Rs.7,38,388.01 in the year 1979-80 and the market fee on the said business comes to Rs.23018.90 which was recoverable from the plaintiff firm. On the basis of pleadings of the parties, the following issues were framed:- “1. Whether plaintiff is entitled to the declaration prayed for ? OPP. 2. Whether this court has got no jurisdiction? OPD. 3. Relief. “ The trial Court, after taking into consideration the evidence adduced by both the parties, came to the conclusion that the plaintiff had not filed the returns for the assessment years and neither filed any appeal against the assessment made by the R.S.A.No.1901 of 1989 -3- **** defendant and that there was admission that it was a licencee of the Market Committee. Accordingly, it was held that the plaintiff was bound to pay the market fee to the defendant committee and that there was also an admission that they have been paying the market fee to the defendant committee subsequently. Reference was also made of writ petition filed by the plaintiff challenging the levy of the market fee which had been dismissed by the Hon'ble Supreme Court. Accordingly, it was held that there was no illegality in the assessment and the plaintiff was not entitled for injunction. Regarding issue no.2 on the question of jurisdiction, it was held that when there is dispute about the legality or illegality of any order passed, the civil Court has jurisdiction to decide the controversy. Resultantly, the suit of the plaintiff was dismissed vide judgment and decree dated 31.08.1987. Against the impugned judgment and decree, the plaintiff had preferred an appeal which was dismissed by holding that since no return had been filed and there was no reason to hold that the market fee / licence fee under Punjab Agricultural Produce Market Act, 1961 was not payable and the order of assessment was appealable but the plaintiff firm did not file any appeal against the assessment order. It is in such circumstances that the appellant has filed the present appeal before this Court, which was admitted on 17th October, 1989 and stay was declined. That Mr. R.L. Batta, Senior Advocate appearing with Mr. J.S. Saggi has pleaded lack of instructions as earlier the appeal was filed through Mr. Gian Chand, Advocate who has expired and R.S.A.No.1901 of 1989 -4- **** similarly, Mr. S.K. Pabbi, Advocate who is no longer practicing in this High Court, though the present appeal was filed through his office and he had appeared at the time of admission of appeal. On perusal of Rule 31 (4) (8) & (13) of the Punjab Agricultural Produce Market Act, 1962 it is clear that if a dealer fails to submit return and if the committee has reason to believe that such return is incorrect, after such inquiry as it may consider necessary proceed to assess the amount of the dealers business during the period in question. The said order of assessment is an appealable order under sub-clause 13, and an appeal shall lie to the Secretary of the Board. The plaintiff did not avail the alternative and efficacious remedy of filing an appeal against the said assessment order and has wrongly chosen to file the present civil suit which has been decided against him as noticed above. The Hon'ble Supreme Court in Chandrakant Tukaram Nikam and others Vs. Municipal Corporation of Ahmedabad and another AIR 2002 Supreme Court 997 has held that the statute confers the right and in the same breath provide for a remedy for enforcement of such right then the remedy provided by the Statute is an exclusive one. In other words, the Apex Court while holding that the Civil Courts have exclusive jurisdiction to decide issues but where there is a remedy provided then such jurisdiction is impliedly barred and by Statute expressly barred also in some cases. The Apex Court was dealing with the situation where the workmen of the Corporation were challenging orders of dismissal/removal from R.S.A.No.1901 of 1989 -5- **** service by filing a civil suit whereas they had a special right under the Industrial Disputes Act to approach the Labour Court/Industrial Tribunal. In such circumstances, the Hon'ble Apex Court held that the jurisdiction of the Civil Court was impliedly barred. The concluding part of such judgment reads as under:- “In the aforesaid premises and having regard to the relief sought for in the suits filed in the Civil Court, we have no manner of hesitation to come to the conclusion that in such cases the jurisdiction of the Civil Court must be held to have been impliedly barred and the appropriate forum for resolution of such dispute is the forum constituted under the Industrial Disputes Act. We, therefore, do not find any infirmity with the impugned judgment of the High Court requiring our interference. The appeals accordingly fail and are dismissed. We would, however, observe that it would be open for the appellant-workmen to approach the appropriate industrial forum and such forum if approached, will dispose of the matter on its own merits. There will be no order as to costs.” Both the courts have concurrently decided against the plaintiff that he was a licencee in the marketing area and had paid market fee to defendant committee subsequently. That no question of law has been framed by the counsel for the appellant which may require consideration by the Court and which may arise from the facts and circumstances of the case as enumerated above and in the R.S.A.No.1901 of 1989 -6- **** absence of any substantial question of law arising from the present appeal the same is liable to be dismissed without any costs. Ordered accordingly. November 26, 2011 (G.S.SANDHAWALIA) hemlata/Pka JUDGE