CWP No. 2708 of 2009 1 In the High Court of Punjab and Haryana, Chandigarh. CWP No. 2708 of 2009 (O&M) Date of Decision: 05.03.2010 M/s. Satnam Overseas Limited, Sonepat ....Appellants. Versus State of Haryana and another ....Respondent. Coram:- Hon'ble Mr. Justice Adarsh Kumar Goel Hon'ble Mr. Justice Alok Singh 1.Whether reporters of local news papers may be allowed to see judgement ? 2. To be referred to reporters or not ? 3. Whether the judgement should be reported in the Digest ? Present: Mr. G.C. Dhuriwala, Advocate for the petitioner. Mr. R.S. Kundu, Advocate Mr. M.S. Sindhu, Addl. A.G., Haryana. ... Alok Singh, J. 1. Present writ petitions is filed assailing the order dated 24.5.2002 (Annexure P-1) passed by the Assessing Authority, Notified Market Area, Sonepat - respondent No.3 and order dated 10.11.2008 passed by the appellate authority under the Haryana Rural Development Act, 1986 (hereinafter referred to as the Act). 2. Brief facts of the present case are that the petitioner bought the agricultural produce for processing from outside the State of Haryana CWP No. 2708 of 2009 2 during the year 1996-97 to 1999-2000. The Market Committee raised demand of Rs.57,84,841/- on account of Haryana Rural Development Fee (hereinafter referred to as HRDF) with effect from June, 1999. As per the petitioner, since the petitioner purchased all the agricultural produce in Delhi and delivery of the produce was handed over by the seller in Delhi and after paying market fee in Delhi, he bought agriculture produce for processing in Haryana, hence, he is not liable to pay any HRDF. The petitioner further submitted that no notice was ever issued before the assessment order, hence the order passed by the Assessing Authority and thereafter, by the appellate authority cannot stay in the eye of law and must be quashed. 3. The respondents refuted the claim of the petitioner and took the stand that the petitioner failed to prove that sale took place outside Haryana and delivery was handed over to the petitioner by the seller of the agricultural produce in Delhi. Hence, the petitioner is liable to pay HRDF. Further case of the respondents is that the petitioner was afforded sufficient opportunity. Not only this, show cause notice was also issued and the petitioner most of the time requested the authority to check the official record. The assessment order was passed after full opportunity to the petitioner. 4. We have heard learned counsel for the parties and perused the record. 5. In our humble opinion, following two questions require consideration/adjudication: - (i) As to whether impugned assessment order dated 24.5.2002 and consequently the appellate order dated 10.11.2008 were CWP No. 2708 of 2009 3 passed without affording an opportunity of hearing to the petitioner? If so, its effect. (ii) As to whether HRDF can be levied only when purchase is made within the territory of Haryana, even although, agriculture produce was bought in Haryana for the purpose of processing? Answer to question No.1:- 6. It is revealed from the record that undisputedly notice dated 20.12.1999 was served and the petitioner was directed to deposit the HRDF. Again, notice No.121 dated 31.3.2000 was served requesting the petitioner to deposit the HRDF. Again, notice No.163 dated 3.4.2000 was sent to the petitioner. Again, notice was sent dated 1.5.2000. The petitioner – firm vide letter dated 10.1.2001 requested the department to check up the record saying no amount is due against and is payable by the petitioner. The petitioner was informed by the Department vide letter dated 29.6.2001 that fee has been worked out on the basis of the returns of the firm and directed the petitioner to deposit the fee. Thereafter, vide notice dated 4.12.2001, the petitioner was directed to appear in person on 27.12.2001 and produce the documents together with objections. Undisputedly, Surender Kumar, representative of the petitioner appeared on 27.12.2001 and sought more time. On his request, 15.1.2002 was fixed. Vide letter dated 30.1.2002, again the petitioner was directed to appear in person or through an authorised representative on 19.3.2002 along with evidence. Not only this, on 19.3.2002, the petitioner was directed to appear on 5.4.2002 along with evidence and documents. The petitioner submitted an application seeking more time. On this, the petitioner-firm was asked to appear on 24.5.2002 CWP No. 2708 of 2009 4 with complete record with the stipulation that no further opportunity shall be granted. 8. After the impugned assessment order, the petitioner preferred CWP No.8164 of 2002 before this Court challenging assessment order dated 24.5.2002. This Court vide order dated 23.9.2003 dismissed the writ petition giving liberty to the petitioner to avail alternative remedy of appeal against the assessment order. Thereafter, the petitioner preferred an appeal, which was heard and decided by the impugned order dated 10.11.2008. 9. From the material discussed hereinabove, we are satisfied that the petitioner was afforded adequate opportunities to appear in person and to produce evidence by the Assessing Authority. We are of the opinion that since assessment order was put under challenge before this Court and this Court declined to interfere with the impugned order on the ground of alternative remedy available to the petitioner to file appeal and thereafter, appeal was filed and heard on merits, hence, now it is not open to the petitioner to challenge assessment order and the appellate order saying no opportunity was given to the petitioner. In our view, the petitioner was granted ample opportunities and the impugned orders do not require any interference on the ground of non-grant of an opportunity of being heard. Answer to question No.2: 10. Learned counsel for the petitioner argued that sale/purchase and delivery or possession of the agricultural produce within the territory of Haryana is sine-quo-non to impose HRDF, which was not done within the territory of Haryana. Section 5 of the Haryana Rural Development Act, 1986 reads as under: - “5. Imposition and Collection of Fee:- (1) With effect from CWP No. 2708 of 2009 5 such date, as the State Government may by notification appoint in this behalf, there shall be levied on the dealer for the purposes of this Act, a fee on ad-valorem basis, at the rate of two percentum of the sale-proceeds of agricultural produce bought or sold or bough for processing in the notified market area: Provided that except in case of agricultural produce brought for processing:- (a) no fee shall be leviable in respect of any transaction in which delivery of the agricultural produce bought or sold is not actually made: and (b) the fee shall be leviable on the dealer only in respect of a transaction in which delivery is actually made. (2) The fee as hereinfore provided shall be paid by the dealer in such manner as may be prescribed to such officer or person, as may be appointed or designated by the Board in this behalf. (3) Since the burden of fee imposed by sub-section (1) is not intended to be put on the dealer, the dealer shall be under a statutory obligation to add the amount of fee in the purchase price recoverable by him from the next purchaser of agricultural produce or the goods processed or manufactured out of it. (4) The arrears of fee shall be recoverable as arrears of land revenue.” 11. From the perusal of Section 5 of the Act, it can safely be held that condition Nos. (a) and (b) of the proviso to Section 5 of the Act are applicable only when agricultural produce is bought not for processing. CWP No. 2708 of 2009 6 From the opening language of the aforesaid provision, it is clear that if agricultural produce is brought within the territory of Haryana for processing then proviso is not applicable. 12. Undisputedly, the petitioner's case is that the petitioner bought agricultural produce at a different point of time from Delhi for processing in Haryana. Once it is admitted to the petitioner that agricultural produce were bought in Haryana for processing, hence place of purchase and place of delivery or possession of agriculture produce becomes immaterial. 13. In view of the above, we hold that if agriculture produce is bought for processing in Haryana, then HRDF is payable thereon irrespective of the fact that the sale/purchase and delivery of agriculture produce is made beyond the territory of Haryana. We answer question No.2 accordingly. 14. In view of the above, we find no merit in the writ petition. The writ petition is devoid of merit and hence is dismissed. No order as to costs. ( Alok Singh ) Judge ( Adarsh Kumar Goel ) Judge 05.03.2010 sk.