IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.3652 to 3656 of 2007 DATE OF DECISION: February 19, 2008 Punjab State Civil Supplies Corporation Limited and another .....PETITIONERS Versus Registrar (General) Punjab and Haryana High Court Chandigarh and another ....RESPONDENTS CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE RAKESH KUMAR GARG --- Present: Ms. Deepali Puri, Advocate, for the petitioners. Mr.S.S.Rangi and Mr.H.S.Tuli, Advocates, for respondent No.2. .. SATISH KUMAR MITTAL, J. This order shall dispose of five writ petitions bearing CWP Nos.3652, 3653, 3654, 3655 and 3656 of 3007 filed by the Punjab State Civil Supplies Corporation Limited (hereinafter referred to as `the petitioner-Corporation') against the common judgment dated 13.09.2005 (Annexure P8) passed by respondent No.1 rejecting the claim petitions for refund of the excess amount of market fees paid by the petitioner- Corporation. CWP No.3652 of 2007 relates to the recovery of amount of Rs.36899.85 and Rs.542.80 which was paid excess @ 1% for the year 1978-79. CWP No.3653 of 2007 relates to the recovery of amount of Rs.6111.26 and Rs.5520.00 which was paid excess @ 1% for the years 1978-79 and 1979-80, respectively. CWP No.3654 of 2007 relates to the recovery of amount of Rs.6111.26 and Rs.5520.00 which was paid excess @ 1% for the years 1978-79 and 1979-80, respectively. C.W.P. No.3652 to 3656 of 2007 -2- CWP No.3655 of 2007 relates to the recovery of amount of Rs.42791.52 and Rs.542.80 which was paid excess @ 1% for the years 1978-79 and 1979-80, respectively. CWP No.3656 of 2007 relates to the recovery of amount of Rs.13311.91 and Rs.648.60 which was paid excess @ 1% for the years 1978-79 and 1979-80, respectively. The brief facts of the case are that the petitioner-Corporation was a licensee under the provisions of Punjab Agricultural Produce Markets Act, 1961 (hereinafter referred to as `the Act'). It had been dealing with the sale and purchase of the agriculture produce and had paid the market fees within the notified market area at the relevant time under the provisions of the Act. Prior to the year 1975, the rate of the market fees prescribed under the Act was Rs.1.50 per hundred. It was enhanced to Rs.2/- per hundred by Punjab Agricultural Produce (Amendment) Act No.14 of 1975. Subsequently, again the rate of market fee was further increased from Rs.2/- to Rs.3/- per hundred by Amendment Act No.22 of 1978. The various licensees, including the petitioner-Corporation challenged the enhancement in the market fees in bunch of writ petitions. Ultimately, the Hon'ble Supreme Court in Kewal Krishan Puri and another v. State of Punjab and others, AIR 1980 SC 1008 upheld only enhancement of fees from Rs.1.50 to Rs.2/- per hundred as valid and struck down the further increase of market fees from Rs.2/- to Rs.3/- brought vide Amendment Act No.22 of 1978 as invalid and unconstitutional. Subsequently, vide a common judgment rendered in M/s. Shiv Shankar Dal Mills etc. v. The State of Haryana and others, AIR 1980 SC 1037, the Supreme Court issued direction to the respective Market Committees to refund the enhanced market fees paid by the C.W.P. No.3652 to 3656 of 2007 -3- licensees. According to the said direction, the claims for refund were to be filed before the Registrar of this Court. In pursuance of the said decision, the petitioner-Corporation filed five claim petitions, as indicated above, for refund of the excess market fees. The respondent-Market Committee contested the claims of the petitioner-Corporation on the ground that in view of the provisions of Section 23-A of the Act, the petitioner-Corporation is not entitled to claim the refund as it had sold the agriculture produce in question to the subsequent buyers in subsequent years at a higher price and thus passed on the burden of the market fees, the refund of which has been claimed, to the subsequent buyers. Before the Registrar, the petitioner-Corporation was given full opportunity to prove that it has not passed on the burden of the enhanced market fees to the subsequent buyers. In support of its claim, the petitioner-Corporation has examined Jasbir Chand, Senior Assistant, Accounts (CW1), who had tendered into evidence his affidavit (Ex.C1), mentioning the amount of market fees paid and claim made in the claim petition on the basis of statements of accounts (Ex.C3 and Ex.C4). However, in cross-examination, the said witness inter-alia stated that he had no record of total sale and purchase of the commodity during the relevant period. Besides, the petitioner-Corporation has also placed on record certain documents. The Registrar while taking into consideration the aforesaid evidence and the provisions of Section 23 of the Act, has come to the conclusion that the petitioner-Corporation has failed to discharge the onus to prove that it has not passed on the burden of the enhanced market fees on the subsequent buyers and, thus, dismissed the claim petitions C.W.P. No.3652 to 3656 of 2007 -4- filed by the petitioner-Corporation. Against the said judgment, the instant petitions have been filed. After hearing the learned counsel for the parties and going through the impugned order, we do not find any merit in these petitions. In these writ petitions, the petitioner-Corporation with the help of letter dated 15.10.1980 written by the Under Secretary to Government of India, Ministry of Agriculture, Department of Food, New Delhi to the Secretary to Government, Punjab, Food & Supplies Department, Chandigarh, has tried to convince this court that actually the Food Corporation of India, to whom the agriculture produce was supplied by the petitioner- Corporation, did not reimburse the enhanced market fees to the petitioner-Corporation. Undisputedly, the said document was not placed by the petitioner-Corporation before the Registrar. Even otherwise, from the reading of this document, it is not clear that actually the entire market fees was paid by the Food Corporation of India to the petitioner- Corporation or not. The petitioner-Corporation also failed to discharge the onus lies on it by producing cogent evidence, therefore, it is not entitled for any refund as presumption against it is fully applicable as envisaged under Section 23-A of the Act, which provides as under:- “23-A. Saving of excess fee charged.-(1) Notwithstanding anything contained in any judgement, decree or order of any court, it shall be lawful for a Committee to retain the fee levied and collected by it from a licensee in excess of that leviable under Section 23, if the burden of such fee was passed on by the licensee to the next purchaser of the agricultural produce in respect whereof such fee was levied and collected. (2) No suit or other proceedings shall be instituted, C.W.P. No.3652 to 3656 of 2007 -5- maintained or continued in any court for the refund of whole or any part of the fee retained by a Committee under sub- section (1) and no court shall enforce any decree or order directing the refund of whole or any part of such fee. (3) If any dispute arises as to the refund of any fee retained by a Committee by virtue of sub-section (1) and the question is whether the burden of such fee was passed on by the licensee to the next purchaser of the concerned agricultural produce, it shall be presumed unless proved otherwise that such burden was so passed on by the licensee. (4) If any amount of fee retainable by a Committee under sub-section (1) has been refunded to any licensee, the same shall be recoverable by the Committee in the manner indicated in sub-section (2) of Section 41. (5) The provisions of this Section shall not affect the operation of Section 6 of the Punjab Agricultural Produce Markets (Amendment and Validation) Act, 1976.” (Emphasis added) The Registrar while taking into consideration the evidence led by the petitioner-Corporation has recorded a finding of fact to the effect that the petitioner-Corporation has failed to prove that it has not passed on the burden of the enhanced market fees collected by it to the subsequent buyers. Therefore, we are not inclined to entertain the dispute raised by the petitioner-Corporation that actually it has not passed on the burden of the enhanced market fees collected by it to the subsequent buyers. Since a pure finding of fact has been recorded by the Registrar, therefore, we are not inclined to entertain these petitions and the same are hereby dismissed. (SATISH KUMAR MITTAL) JUDGE February 19, 2008 (RAKESH KUMAR GARG) vkg JUDGE