Sahota Seeds Limited & Others vs State Of Uttarakhand & Others

Alok Singh, J

As all the above-mentioned petitions have arisen out of the common issue, hence, all petitions are being taken up together and are being decided by this common verdict.

For the sake of convenience, the facts of Writ Petition No.3938 of 2018 (M/S) is being taken as a leading case. The petitioner seeks following relief, among others:-

"(a) issue a writ, order or direction in the nature of certiorari and may kindly be pleased to quash the impugned order dated 27.04.2018 (contained in Annexure No.1 to writ petition), so far as it relates to petitioner herein.

(b) issue a writ, order or direction in the nature of mandamus commanding the respondent no.3 herein to return the amount, which the petitioner herein has deposited with the respondent no.3 as mandi fees and development cess under protest i.e. Rs.1,00,000/- (Rupees One Lakh only) along with the interest @ 12% per annum."

Heard Mr. Atul Kumar Bansal, Advocate for the petitioners, Mr. Yogesh Pandey, Addl. Chief Standing Counsel with Mr. M. S. Bisht, Brief Holder for the State of Uttarakhand and Mr. V. B. S. Negi, Senior Advocate assisted by Mr. Nathi Singh Pundir, Advocate for the respondent nos.2 & 3.

The moot question involved in the bunch of writ petitions is - whether the 'mandi fee and development cess' deposited by the petitioners before the respondent authority (Mandi Samiti) are liable to be refunded to them or not?

Before proceeding further, it is pertinent to mention here that perusal of paras 1 & 2 of the judgment dated 16.05.2017 of Coordinate Bench of this Court in Writ Petition No.2440 of 2016 (Sheel Chand Flour Mills Pvt. Ltd. & another vs. State of Uttarakhand & others) and bunch matters reveals that vide judgment dated 09.12.2015, Hon'ble Supreme Court in Gujarat Ambuja Exports Limited vs. State of Uttarakhand & others, 2016 (3) SCC held that the Mandi Fee is unconstitutional and not validly imposed and the amount in normal course is liable to be returned to the petitioners. The Coordinate Bench of this Court relied upon a leading case of Hon'ble Supreme Court in Mafatlal Industries Ltd. & others vs. Union of India & others reported in (1997) 5 SCC 536, wherein it was held that there would always be a presumption that the taxpayer has passed on the liability to the consumer, and therefore, a person who claims that there is no unjust enrichment has to rebut this presumption of unjust enrichment, therefore, the burden is caste, not upon the revenue authority but upon a person who is claiming refund of the mandi fee, which he has already deposited with the Mandi Samiti. Eventually, the Coordinate Bench while disposing of the above-mentioned WPMS No.2440 of 2016 and bunch matters gave a direction that the petitioners shall make representation before the State Government and discharge their liability proving that they have not passed on the liability to the consumer and Mandi Fee and the Development Cess, which they had deposited with the Samiti, be refunded to them and it would not be a case of unjust enrichment. It was further directed that the State Government shall pass appropriate orders, in accordance with law, with regard to the refund of money.

Pursuant to above, the petitioners had submitted their representation(s) along with entire evidence, i.e., all credit memos and 9-R of the period to which the Mandi Fee and Development Cess had been charged. The Committee consisting of the Chief Secretary, Principal Secretary (Law-cum-L.R.), Secretary (Finance), Secretary (Agriculture) of the State of Uttarakhand and the Managing Director, Mandi Board passed the impugned orders, whereby the claim of the petitioners has been rejected on the ground that the Mandi Fee and Development Fee along with Aarat, Tulai, Dalali, Palledari, Bharai and Silai have been charged in total at one place.

It is an admitted case of the parties that all the petitioners have deposited the Mandi Fee and Development Cess under protest. For the sake of convenience, the relevant portion of form 9-R (annexed at Annexure-9 to WPMS No.3938/2018) is being reproduced hereinbelow:-

कृषि उत्पादन का नाम

कृषि उत्पादन की किस्म

बंण्डल/

माप/

तौल की

संख्या

दर

(रुपया)

उत्पादन

का मूल्य

(रुपया)

व्यापारिक परिव्यय

(रुपया)

कुल

धनराशि

(5+6)

अभ्युकि्

त

1

2

3

4

5

6

7

8

जसपुर

चावल

गे्ड वन

1275/-

36750/-

4% वैट

1 आढत ........

2 तौलाई .......

3 दलाली .......

4 पल्लेदारी .......

5 भराई तथा

सिलाई .........

6 मण्डी शुल्क ........

7 विकास सेस .......

8 अन्य व्यय........

1470/-

योग

38220/-

Perusal of aforesaid form 9-R clearly depicts that in column no.5, the production value of the rice has been mentioned as Rs.36,750/- along with 4% VAT; in column no.6, the commercial expenses have been shown as Aarat, Tulai, Dalali, Palledari, Bharai & Silai, Mandi Shulk, Vikas Cess (sl.no.1 to 7 respectively) and at sl. no.8 of column no.6, other expenses have been shown as Rs.1470/-. The respondent authority has given its finding that the Mandi Fee and Development Cess along with Aarat, Tulai, Dalali, Palledari, Bharai & Silai have been charged in total as Rs.1470/-, which has been mentioned at one place, but, as a matter of fact, the amount of Rs.1470/- mentioned at sl.no.8 of column no.6 is the amount of VAT (i.e. 4% of Rs.36,750 = Rs.1470/-). In Column no.7, the total amount has been shown as Rs.38,220/-, which is total of column nos.5 & 6, i.e. Rs.36,750/- plus Rs.1470 (i.e. 4% VAT on the amount Rs.36,750/-).

Apart from this, when an information was sought by the petitioner from the Mandi Samiti under the Right to Information Act, it has been informed to the petitioner, vide communication dated 29.06.2017 (enclosed at Annexure-11 to WPMS No.3938/2018) at point no.6 that as per the documents available in office and copy of 9R, the seller has not recovered any Mandi Fee and Development Cess from the consumer.

Be that as it may. This Court cannot see by any stretch of imagination as to how a rice miller can produce a record, which shows that he has not recovered any mandi fee and development cess from its consumers (as the same is not in existence). If the Mandi Samiti asks a rice miller to produce a record, which shows that the rice miller has recovered mandi fee and development cess from the consumer, the rice miller can produce such statement of account because it (record) is in existence. Perusal of the record, it clearly transpires that the petitioners have deposited mandi fee and development cess with the Samiti by way of various cheques.

Keeping in view the above, it is abundantly proved that the petitioners have not passed on the liability to the consumer and the Mandi Fee and Development Cess should be refunded to the petitioners forthwith.

In view thereof, the impugned order is quashed and the respondent authorities are directed to refund Mandi Fee and Development Cess to the petitioners concerned within a period of two weeks from the date of production of a copy of this order. Accordingly, the writ petitions are allowed leaving the parties to bear their own costs.