The Market Committee vs Ganda Ram Kewal Krishan, Commission Agent

Hemant Gupta, J.—Following substantial question of law arises in this appeal for consideration :-

Whether the plaintiff is entitled to recover market fee which was declared illegal without proof of passing of burden to the next purchaser in terms of Section 23-A of the Punjab Agricultural Produce Markets Act, 1961?

The plaintiff-respondent filed a suit for recovery of Rs. 37067/- i.e. Rs. 27255.72 as principal amount and Rs. 9811.28 as interest, on the ground that the plaintiffs a licensee of the defendant under the Punjab Agricultural Produce Markets Act, 1961 (hereinafter to be referred as "the Act"). The market fee was Rs. 1.50 on a transaction of Rs. 100/-. However, the said market fee was raised to Rs. 2.25 per hundred rupees by Ordinance No. 4 of 1974. The said Ordinance was replaced by Act No. 13 of 1974 w.e.f. 30.4.1974.

Enhancement of market was struck down by this Court on 8.11.1974. However, the plaintiff has paid market fee at the rate of Rs. 2.25 whereas on Rs. 1.50 was payable and, thus, Market Committee has realised Rs. 27255.72 in excess.

The suit filed by the plaintiff was resisted by the defendant. It was stated that the plaintiff has not paid the amount of market fee from his own funds. It has realised market fee from other persons as the plaintiff is a commission agent who deals in sale and purchase of agriculture produce on behalf of other persons. However, the learned Court passed a decree for the recovery of the amount claimed. The appeal against the said judgment and decree was dismissed.

The State Legislature has inserted Section 23-A of the Act vide Punjab Act No. 7 of 1981. The provisions of Sub-section (1) of the said Act contemplate that notwithstanding anything contained in any judgment, 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 u/s 23, if the burden of such fee was passed on by the licensee to the next purchaser. Sub-section (2) contemplates that no suit or other proceedings shall be instituted, maintained or continued in any court for the refund of whole of any part of the fee retained by a Committee. Sub-section (3) contemplates that 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, it shall be presumed unless proved otherwise that such burden was so passed on by the licensee.

Amendment to Section 23-A of the Act was challenged before this Court in the case reported as Walaiti Ram Mahavir Parshad v. State of Punjab (1984)86 P.L.R. 625 wherein the said amendment was upheld. The decision in Walaiti Ram Mahavir Parshad''s case (supra) was upheld by the Supreme Court in the case reported as Amar Nath Om Prakash and Others Vs. State of Punjab and Others, . Similar question has arisen before this Court in the case of The Market Committee Vs. Bakhtawar Mal Amin Chand, and The Market Committee Mukatsar v. Des Rai Mohan Lal, Mukatsar (2000)124 P.L.R. 2237. The plaintiff has not rebutted the presumption introduced u/s 23-A of the Act and, thus, the burden of market fee would be presumed to have been passed on by the licensee. Therefore, the plaintiff is not entitled to refund of enhanced amount of market fee deposited.

In view of the above, the impugned judgment and decree are not sustainable.Consequently, the impugned judgment and decree are set aside and the suit filed by the plaintiff is dismissed.