R.S.A.No. 3359 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3359 of 2009 (O&M) Date of decision: 18.9.2009 M/s Pooja Roller Flour Mill Private Limited, Panipat ......Appellants Versus Haryana State and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Arun Singla, Advocate, for the appellant. **** SABINA, J. Plaintiff M/s Pooja Roller Flour Mill Private Limited, Panipat filed a suit for declaration and permanent injunction, which was dismissed by the Civil Judge (Jr.Divn.), Panipat vide judgment and decree dated 4.4.2008. In appeal, the said judgment and decree were upheld by the Additional District Judge, Panipat vide judgment and decree dated 22.5.2009. Hence, the present appeal. R.S.A.No. 3359 of 2009 (O&M) 2 Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “2. Briefly stated that the plaintiff with a legal personality, being a limited company, has brought this action through an authorized person while acting as the Assessing Authority under the provisions of Haryana Rural Development Act, defendant No.2, without affording any opportunity whatsoever, arbitrarily levied fee to the tune of Rs.34,833.84 P on the plaintiff company and raised the demand through impugned letter dated 18.9.1989. The company, in terms of its letter dated 28.9.1998 asked for the reasons of such levy and details therefore, however, instead of justifying its earlier demand, defendant No.2, in terms of impugned letter dated 7.10.1998, raised a demand of Rs.1,52,936.55 P. The company, in terms of its letters dated 30.10.1998 and 18.12.1998, again asked for the details and reasons of such a heavy levy. Without affording any opportunity, defendant No.2 procured a recovery certificate from the defendant No.4 and attachment order from defendant No.3. The assessing authority by not affording any opportunity, has not only violated the mandatory provisions of the Haryana Rural Development Act, but R.S.A.No. 3359 of 2009 (O&M) 3 has also acted unfairly and arbitrarily. Had the assessing authority provided details of the impugned levy, the plaintiff company would certainly have preferred an appeal. Moreover, there is no provision in the said Act, for charging any interest on the amount levied thereunder. Still, the said amount being time barred is not legally recoverable. The review petition filed by the company against the attachment order is still pending. Since a valuable property is under attachment, therefore, as a measure of abundant caution, the plaintiff company, just to avoid unpleasant consequences, deposited a cheque in the sum of Rs.34,833.84 P with the defendant, however, the same was returned back. As such, the need for filing the present suit. 3. Defendants appeared and defendant No.1 filed written statement submitting therein that the present suit is not maintainable; suit being bad for want of statutory notice, availability of alternative efficacious remedy of statutory appeal, limitation, cause of action, improper valuation, jurisdiction, estoppels, concealment of real and material facts and the plaintiff having approached the Court with the soiled hands. It has also been pleaded that as per negotiations held on 25.6.1990 R.S.A.No. 3359 of 2009 (O&M) 4 between the State Government and the dealers, the levy fee was payable up to 14.9.1990 without any interest and penalty and in case of default, the levy fee was payable with penalty in twelve equated instalments. On default of the plaintiff, demand notices dated 16.8.1994 and 15.4.1995 were duly issued. Since, the plaintiff failed to make the payment of demanded amount with in the prescribed period, therefore, recovery proceedings have been rightly initiated against it. However, the Collector, in the year 1997, sent the recovery certificate back to the defendant Board, with a direction to recover the amount at its own. Thereafter, notices dated 31.12.1997, 10.3.1998 and 18.9.1998 were duly served upon the plaintiff company, whereby it was requested to make the payment of levy fee along with interest and penalty, but to of no avail. Since, the law requires a dealer to pay an amount equal to 21 of its purchaser, in the shape of market fee and one percent therefore, in the shape of HRD fee, therefore, there was no requirement of assigning any reasons or details of the levy. The plaintiff, very clandestinely paid the market fee but adopted tactics for avoiding payment of HRD fee. Even then, requisite information was sent to the plaintiff company through letter dated 7.10.1998 and when the amount remained R.S.A.No. 3359 of 2009 (O&M) 5 unpaid for quite a sufficient time, the Collector concerned was again requested to recover the same as arrears of land revenue. All other allegations have been disputed and controverted. With this broad defence, dismissal of the suit, with costs, has been prayed for. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether letter reference No.764 dated 18.9.1998, 862 dated 7.10.1998 and recovery certificate dated 10.7.2002, attachment order dated 24.4.2003 are illegal, null and void as alleged? OPP 2. Whether defendants are not entitled to recover Rs. 1,52,936.55 paise from the plaintiff? OPP 3. Whether the plaintiff is entitled to injunction as prayed for? OPP 4. Whether the suit is not maintainable? OPD 5. Whether suit is bad for want of notice u/s 37 of Punjab Agriculture Marketing Produce Act, 1961? OPD 6. Whether the plaintiff has not availed the efficacious remedy of appeal? If so, its effect? OPD 7. Whether the suit is time barred ? OPD 8. Relief. ” After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit and R.S.A.No. 3359 of 2009 (O&M) 6 deserves dismissal. Plaintiff had filed a suit for declaration and permanent injunction questioning the authority of the defendant-Board to levy impugned fee on it and to recover the same with interest. Both the Courts below have held against the plaintiff. During the course of arguments, learned counsel for the appellant has restricted his argument only to the extent of imposition of interest on the levy fee. Learned counsel has submitted that there was no provision in the Act for imposition of interest on the levy fee. The instructions relied upon by the Courts below were mere administrative in nature and could not override the provisions of the Act. In support of his arguments, learned counsel for the appellant has placed reliance on the decision of the Apex Court in Municipal Corporation, Amritsar v. The Senior Superintendent of Post Offices, Amritsar Division and another Vol.CXXXVII-(2004- 2) PLR 787, wherein it was held that the Corporation could not collect tax from the general public for water supply, street lighting, drainage and approach roads etc. because the said tax was being sought to be imposed in the garb of “service charges”. There was no provision in the Municipal Corporation Act, 1976 for leving “service charges”. In the present case, the plaintiff was required to deposit market fee of Haryana Rural Development Fund as per the R.S.A.No. 3359 of 2009 (O&M) 7 provisions of the Haryana Rural Development Act, 1986 (for short 'the Act'). It has been observed by the learned Additional District Judge in the impugned judgment that the plaintiff had admitted that the payment of market fee for the years 1988 to 1992 had been made by the plaintiff firm under protest and the same was returned back to it. The plaintiff also admitted that the firm was responsible to pay market fee as per Rules on the sale and purchase. A sum of Rs.34,833.84 P was to be paid up to 1.4.1990 without interest and penalty. Thereafter, the same was to be paid with penalty in twelve equal instalments as per the negotiations held on 25.6.1990 between the State Government and the dealers. The written notices dated 16.8.1994 and 15.4.1995 were served on the plaintiff requesting it to make the payment of the amount along with interest and penalty. However, the plaintiff did not pay the said amount. The case was then sent to Collector for recovery of the amount as arrears of land revenue on 28.7.1995. The case was, however, sent back by the Collector to Market committee in the year 1997 for making recovery at their own level. Again notices were issued to the plaintiff for necessary payment but the amount was not paid. The relevant paras of Rule 4 of the Rules with regard to the Haryana Rural Development Fund and other consequential penalties and payments as reproduced in para 15 of the impugned judgment passed by the learned Additional District Judge read as R.S.A.No. 3359 of 2009 (O&M) 8 under:- “1. Every dealer shall submit to the assessing authority a return in form A showing his purchases and sales of each transaction of agricultural produce or each transaction of agricultural produce brought for processing, on then following day, but not late than four days from the day of transaction. If the dealer fails to submit the said return in time, the assessing authority may, after affording him a reasonable opportunity of being beard, impose a fine which may extend to rupees five hundred or up to twenty five per cent of the amount of fee whichever is more. The fine imposed shall be deposited within seven days of the order passed by the assessing authority in this behalf. 2. The dealer shall deposit in cash with the assessing authority or the person authorized by him in this behalf in writing, the fee that has become due from him on the basis of the return submitted by him under sub rule (10) of the following day of the filing of the return. The assessing authority may condone delay up to four days after imposing a fine not exceeding twenty five per cent of the fee recoverable. 3. The assessing authority or the person duly authorized by him in writing in this behalf shall issue a R.S.A.No. 3359 of 2009 (O&M) 9 receipt to the dealer in form B in token of having received the amount of the fee. 8. The Assessing authority shall scrutinize the returns submitted in form A on the basis of the register maintained by the Market Committee or the account books of the dealer or otherwise. If he detects non payment or underpayment of the fee, he shall issue a notice to the dealer and after affording him a reasonable opportunity of being heard, call upon him to deposit the balance amount within fifteen days. 9. If the dealer fails to deposit the amount of fee within the extended period under sub rule (2) or the period prescribed under sub rule (8), the assessing authority may after affording him a reasonable opportunity of being heard impose a fine which may extend to five hundred rupees or up to 20 per cent the amount of fee due whichever is more. The fine shall be deposited with the assessing authority within seven days of the orders passed by him in this regard. 11 If the dealer fails to deposit the monthly fee or the arrears of fee or the fine imposed by the dates specified under sub rule (1), (2), (8) or (9) as the case may be, the same shall be recovered as arrears of land Revenue.” R.S.A.No. 3359 of 2009 (O&M) 10 Thus, as per the Rules in case, the return was not submitted within four days of the transaction then a fine could be imposed, which may extend up to Rs.500/- or 25% of the amount of the fee whichever was more. The fine has to be deposited within seven days of the order passed by the assessing authority. However, the plaintiff firm had failed to file any return or deposit the necessary fee. The company was ultimately permitted to deposit the fee within seven days vide letter dated 21.7.1994 for the period from 1987-1988 to 1991-92 and a show cause notice was also served with regard to imposition of penalty as per the Rules. Vide letter dated 9.3.2004, plaintiff firm was again asked to make the payment of Rs.80,297.81 P within seven days including the initial fee and penalty along with interest. Although there is no specific provision regarding interest in the Act and the Rules but a circular was issued by the Government dated 20.8.1990 Ex.D-16, as per which interest could be charged on the delayed payment of requisite fee. The said instructions are with a view to assure effective implementation of the provisions of the Act and cannot be said to be contrary to the provisions of the Act. In these circumstances, the judgment relied upon by the learned counsel for the appellant fails to advance the case of the appellant as the same is based on different facts. The plaintiff has failed to pay the market fee in time and hence, the said amount could not be utilized by the defendants for the welfare of public. Hence, both the R.S.A.No. 3359 of 2009 (O&M) 11 Courts below rightly held that the penal interest could be charged on the fee which was liable to be recovered from the plaintiff. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE September 18, 2009 anita