1 D. B. CIVIL SPECIAL APPEAL (W) NO.464/2008 IN S. B. CIVIL WRIT PETITION NO. 697/95, KRISHI UPAJ MANDI SAMITI & ANOTHER V. M/S. MADHUSUDAN INDUSTRIES LTD. & ANOTHER. DATE : 04-08-2008 HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. C. M. TOTLA, J. Mr. Vivek Shreemali ) for Appellants. Mr. Ravi Bhansali ) Heard learned counsel for the appellants. The learned Single Judge of this Court, vide order dated 6th April, 2007, following the judgment delivered in S. B. Civil Writ Petition No. 1387/95, M/s. D.V.Dal Mill v. State of Rajasthan & Others, decided on 10th September, 1996, allowed the writ petition of the petitioner-respondent on the same lines in which the D.V.Dal Mill's case was decided and the learned Single Judge issued directions to be followed in the case of the petitioner also as given in D.V.Dal Mill's case. Learned counsel for the appellants-respondent vehemently submitted that the petitioner's case was not covered by the case of D.V.Dal Mills case, referred above. It is also submitted that petitioner's writ petition was not maintainable, in view of the fact that the petitioner-respondent did not avail the alternative remedy and further petitioner suppressed the important material facts and more is that the writ petition involved disputed questions of facts and in view of the above reasons, the petitioner's writ petition should have been dismissed. We considered the submissions of the learned counsel for the appellants and perused the judgment of M/s. D.V.Dal Mills. Para 3 of the operative portion of the judgment in D.V.Dal Mills 2 case, reads as under :- “3. A plain reading of the above rule makes it clear that if the transaction of produce has been completed outsides the State or the market area then the Mandi Committee has no jurisdiction to levy the cess which is termed as fee by the respondents. The words 'bought and sold' are the incidence on the basis of which liability would be fixed and these words could be inter rated 'bought and sold'. If a commodity has only been bought but not bought within the market area then there is no liability under the provisions of Rule 8. If the buying or selling takes place within the market area only then the liability in accordance with the provisions of Rule 58 can be fixed. The question whether the particular transaction or purchase or sell is completed outside the market area or within the market area is a question of fact of fact which has to be determined by the market area committee. The prayer of the petitioner to this extent that there would be no liability of cess/fee in accordance with the provisions of Rule 58 if the transaction has already been completed outside the market area committee is accepted. The market area committee would take into consideration the above interpretation while fixing the liability.” The writ petition can be dismissed on the ground of suppression of material facts and for non availing of alternative remedy, but those restrictions are not total bar against exercise of jurisdiction of the High Court under Article 226 of the Constitution of India. When the issue on the question of fact has been left open and to be decided in the light of the earlier decision of this Court, was the order of the learned Single Judge, we do not find any reason to deny the relief to the petitioner on the ground of certain preliminary objections which did not find favour from the Single Bench decision of this Court. In totality, 3 we are in agreement with the view taken by the learned Single Judge in its impugned order. The appeal has not merit and hence dismissed. (C. M. TOTLA), J. (PRAKASH TATIA), J. scd