\q@\ & > IN THE HIGg COURT OF JUDICATURE AT BILAsPugcxm WRIT pmmon nofl‘é0'7 i2004 ‘ ié WRIT PETITION UNDER ART LE 226 r OF THE CQNSTITUTION OF INDIA FOR ISSUANCE OF EEE SUITABIE WRIT OR WRITS, DIRECTION OR DIRECTIONS; ORDER OR ORDERS: ,y A 1* 3' gig! IN»;- / WRIT IN THE NATURE OF CERTIORARI, MANDAMUS AND QE , ' "J PETITIONER /M/s. Bastar Rice Mill, ” Gourgaon, Keskal, w ,e"w District Bastar (C.G.), \ ,e’ Through its Power of Attorney .Hclder, Mohammed Tayyab, S/o. Tax Mohammed, ”I;w Aged 43 years, r f @«V \'\ ~ R/o. Main Road, Keskal, §p§§ § “"g’ ‘4 District Bastar (CG) Q' $9 ?\ z Q‘ @‘ $ VERSUS ' REsPONDEN'r Krishi Upaj Mandi Sammy I? / Keskal, District Bastar (C.G), &L \ Through its Secretaxy, Keskal, District Bastar (C.G.) M HIQH COURT OF C: :mLASPpJg WRIT PETiTlGN NO. 11-607 OF 2904 M/s. Bastar Rice Miil , Versus Krishi Upaj Mandi Samiti, Ke$kal (Wrrt Petition under Artic!e 226 of the Conetitution of India) Efsingle Bench : Hon’ble Shri $atish K. Agnihotri, J‘ Pmwm $hri Ashish $h‘rivastava, Advocate for the petitioner. ' Shri Prakash Tiwari, Advocate for the respondent. Mii {I !C)l\5....R ORDER (Paesed on 06‘“ day ofAuggs-t, 2010) ‘The brief ’facte of §he case is that the petitioner company had paischaeed paddy from Veer Trading Company, Naya’para (in Short “We Company”) and Aniket Sales Enterprises during the period from QEI’H‘HJBQt‘iO to 5/1 1/2000. The petitioner purchased quantity of 3750 r Ctuintaie of paddy from the said Company, The Company was opmatih‘g at ixiayapara, Rajim within Nayepera Mandi area hmding i‘i/Iwrdi license M11695 dated (3/4/2000. Under the provisione of (hi'iaitiegarh Krishi Upai Mandi Adhiniyam, 1972 (hereinafter referred to as “the Awiiniyem. 7972”), the first purchaeere ie the C-orripany and Rice Mitt Were'iiable to pay Mandi fee (market fee) and thereafter the subsequent purchaeer who have purchased t’irarrtriyirbi'n the first purchagers are not liable to pay the market feet in the wee on hand, theCompany and Rice Mili had aiready paid i‘narket fee in respeet of the paddy purci’raséed by the petitioner. Th V petitioner received a noticefor payment of market fee in respect of the said paddy, which were purchaeed from the Company and Aniket EBaiee Enterprises. The petitioner paid rnerke’trfee under protest and fiied an; appeal before the Managing Director of Mandi :oard at. Qaipi'rr. The Appellate Auti‘rori‘l‘y by order dated 23/12/2003 remitted ' ' ‘ C e {v back the matter to the re'$pondent Mandi to reconsider the casé 0f the petitioner on examination of all the relevant documents and pass or‘der'lhereafteh The respondent Mandi vide resolution dated .‘ 27/2/2004 (Annexure P—6) without considering the petitioner’s case reiterated the resolution passed earlier on 11/9/2001 holding that the i ’i petitionei was liable to pay market tee as the Company and Aniket oales Enterprises have not paid the market fee for the paddy, which was purchased by the petitioners. Thus, this petition. Shri Ashish Shrivastava) learned counsel appearing for the petitioner submits; that the petitioner had purchased paddy from the Company a nd Ahiket Sales Enterprises, Nayapara‘ The Company and Aniket Sales Enterprises have paid market fee to the respondent Mandi as is evident from Annexure P-t, Thus, indisputably, the petitioner is not l iable to pay market fee second time on the same items l't was further stated that since the respondent Mandi has not complied With the Clitlei passed by the Managing Diiector on 23/12/2003 by holding in the resolution dated 27/2/2004 that the Mandi did not feel to take ,c:on‘trary stand as was taken in‘ the resolution on 11/9/2001. Thus, he petitioner has preferred the writ petition directly in this Court, seeking quashing of the resolution dated 27/2/2004, Shii TIW’Jri learned counsel appearing for the respondent Mandi ubmits that so far as legal posmon is concerned there is no dispute that the market fee is payable und‘er provisions of Section 19 of the Adhiniyai‘n, 1972, on the sale of notified agricultural produce within s the State and outside the State into the market area and use for _ processing at one time in the said area. This is not contemplated to .' levy market fee twice over on the same notified agriculturalproduce. However, in the case on hand, the Company and Aniket 8alesv Enterprises had not paid market fee on the paddy. Thus, the I ‘ ‘ t petitioners were liab.le to pay the same. Thus, the respondent Mandi has; rightly decided to Ievy and c0llect market fee with penalty from .lihe petitioner. The q‘uesztion asto whether second purchaser is liable to pay market fee is not disputed. lt i5 the ca§se of the Mandi committee alsd that ‘market fee on the agricultural produce Is payable on the cale of , i notitled agricultural produce whether brought Within the State or: out ide the State in the market area and use for processing ln the case on hand, the dispute is With regard to payment of the market ‘fee by first purchasers i.e. the Company and Aniket Sales ' > Enterprises and the demand of payment of market fee from the petitioner second time if‘ any _ is bad on account of the factthe market fee has already been paid by the first purchasers The documents produced by the petitioner and respondent are not a 1 sufficrent to resolve the factual dispute as Annexure P-t is Anugya . Patra, which does not disclose that the payment has been made in i irespect of the purchase of the same paddy quantity by the petitioner i , and a chart i.e. at Annexure R—t also does not clarify the position even othenNise the disputed facts-cannot be resolved on the basis 0f ‘ incomplete documents as the same does not disclose sack wise pat/meet; . G ' Looking from other angle as the market fee and the penalty paid by the petitioner have passed on to the subsequent purchasers i /consumers. Thus granting return of the market fee and penalty " X ‘ would amount to unjust enrichment at this stage. The petitioner has failed to establish that the Mandi fee and the penalty have not passed on to the Subsequent purchasers/ consumers except mere statement that the'same was paid by the petitioner from its account. ‘ 0 'ln Mafatlal Industries Ltdvv. Union of lndia1, 9 Judges Bench of the Supreme Court, by majority, in respect-of principle of unjust enrichment observed as Under : “108 (iii) A claim for refund, whether made under the provisions of the Act‘as‘contempiated in Proposition (i) above or in a suit or writ petition in the situations contemplated by Proposition (ii) above, can succeed ionly if the petitioner/piaintiff alleges and establishes that he has not passed Ion the burden of‘duty to another person/other persons. His refund claim shall be 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 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 thathe 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 th‘e burden and it is only that erson who Can legitimately claim‘ its refund. Bu V ' where such person does not come fonNard or'where it p t is not possible to refund the amount to him for one or the other‘reason, it is just and appropriate that that amount is retained by the State, i.e., by the people. There is no immorality or impropriety involved in such a proposition. . . ‘_ 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 lawl The power of the Court is not meant to be exercised for unjustly enriching a per‘sOn. The doctrine of unjus ,orichment is, however, inapplicable to the State. State represehtsthe people of the country. No on can speak of the people being unjustly enriched”. In the matter of SahakariKhand Udyog Mandal Ltd. v. Commissioner of Central Excise & Customs2, principle of unjust enrichment has been explained by the Supreme Court as under: 1 “31. Stated simply, “unjust enrichment” means retention of a benefit by a person that is unjust or inequitable. “Unjust enrichment” occurs when a erson retains money 9r benefits which in justice, equity andrgood conscience, belong to someone else. (fit-197) 5 SCC 536 (2905) 3 SCC 738 $ t e e , p f ‘ 32,. The doctrine of “unjust enrichment”, therefore, is that no person can be all0wedto enrich inequitably at the expense of another. A right of recovery under the doctrine of ”unjust enrichment” arises where retention of a benefit is considered contrary to justice .or against equity, 42. in Mafatlal Industries Ltd. also, this Court held that refund of tax/duty wrongfully paid can be claimed. on the basis of doctrine of equity and a person demanding such restitution must ple‘adand prove tha the had paid such tax/duty and had suffered loss/injury. The burden is on the petitioner to prov that the tax/duty paid by him is‘not passed on to customers or third party and that he is entitled-t restitution, ' ‘ 45. From the above discussion, it is clear that the doctrine of “unjust enrichment" is based on equity an has been acceptedy‘and applied in several cases. l our opinion, therefore, irrespective of applicability o Section 11—B of the Act, the doctrine can be invoked to deny the benefit to which a person is not otherwise entitled. Section 'l1~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 petitioner—appellant to show that he ‘ has paid the amount for which relief is sought, he has not passed on the burden on consumers and if su‘ch 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 u e njust enrichment that the petitioner has passed on th : 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 on to the subsequent purchasers / consumers. Accordingly, the matter is disposed of. No order asto costs. RV ' Sd/- sansh K- Agnihoui Judge asltoli t e o d n f , r , W