Writ Petition No.1926 of 1988

28th August, 2002

Petitioner Counsel: SUBHASH PALIWAL
Respondent Counsel: S. P. HEDAOO

Cases Cited:
M/s. K.S. Agarwal Vs. The Tribunal and Assistant Registrar, Co-operative Societies, Yeotmal, 2002(3) ALL MR 830=2002(2) Mh.L.J. 522,AIR 2002 Bombay 324 [Para 13]

JUDGMENT

R. K. BATTA, J.:- The petitioners have approached this Court for quashing and setting aside of order dated 31-5-1988 passed by respondent No.3 Assistant Registrar, Co-operative Societies. Interim stay of the recovery of the amount under the said order was granted at the time of issuing of rule.

2. The case of the petitioners is that their father Narayandas Rajaram Asati was doing business of grain; respondent No.2 was also doing business of grain and is also commission agent. There was some money dispute between the father of the petitioners and the respondent No.2. The father of the respondent No.2 was the Vice-Chairman of the Agriculture Produce Market Committee, Tiroda. According to the petitioners, the father of the respondent No.2 taking advantage of his position as Vice-Chairman of Agriculture Produce Market Committee, Tiroda, moved a resolution in the meeting of the market committee on 12-8-1982 by which the market committee resolved to recover the disputed amount between the son of the Vice-Chairman i.e. respondent No.2 and the father of the petitioners by taking recourse to section 57 of the Agriculture Produce Marketing Regulation Act, 1963 (hereinafter referred to as APMC Act). The A.P.M.C., Tiroda approached the District Deputy Registrar, Co-operative Societies, Bhandara and filed an application for recovery of an amount of Rs.28,592.35 ps. The petitioners' father raised a preliminary objection as to the jurisdiction and maintainability of the application under section 57 of the APMC Act on the ground that the dispute is between two traders and section 57 of the APMC Act is not applicable and the remedy in the matter is Civil Suit. In fact, respondent No.2 also filed Civil Suit for the recovery of the said amount. The said Civil Suit is being Regular Civil Suit No.34 of 1985. In the civil proceeding, the respondent No.2 moved an application under Order 38, Rule 5 of the Code of Civil Procedure for attachment of immovable property, which was allowed and the property was attached. During the pendency of the Civil Suit, the father of petitioners died and the petitioners were substituted as his legal heirs.

3. The application filed by respondent No.2 under section 57 of the APMC, Act was transferred by the District Deputy Registrar, Bhandara to the Assistant Registrar, Co-operative Societies, Tumsar, who was nominated as Tribunal for settlement of dispute in the jurisdiction of APMC, Tiroda, in these proceedings the impugned order which is the subject matter of the challenge in this petition was passed.

4. In the return filed on behalf of respondent No.1, it is submitted that the petitioners' father had taken a licence of Trader from the marketing committee and he used to purchase the agriculture produce in the market yard through commission agent. According to the respondent No.1 the agriculturist brings his produce to the market yard and engages the services of a commission agent and the agricultural produce is purchased by the Trader through the commission agent. The commission agent collects the sale price from the Trader and after deducting his commission pays it to the agriculturist concerned. It is further stated that in the year 1981-82 a total number of five commission agents including respondent No.2 had made a complaint to the Market Committee that the Trader had purchased the produce of agriculturist through them, but had not made the payment of the price. Notices were issued to the Trader concerned by the Market Committee calling upon him to make immediate payment. It is further pointed out by respondent No.1 that according to the provisions of the Rules framed under the Act, a Trader is under a duty to make payment of the price within twenty-four hours of purchase. Pursuant to the notice, the Trader Narayandas father of the petitioners, informed the Marketing Committee that he has made payment to three commission agents and the remaining two commission agents would be paid within a period of a month or two and he requested the market committee not to take any further action. In spite of this, the Trader did not make payment and the Market Committee after passing resolution approached the Assistant Registrar under section 57 of the APMC Act for recovery of the amount. The respondent No.1 has further stated in the return that the goods in relation to which the price is being claimed are of the agriculturists and it is the duty of the commission agent under the Act to recover the purchase price from the Trader. It is then pointed out that even if commission agent without waiting for the trader to make the payment, pays to the agriculturist the price of the goods, still the dues continue to be that of the agriculturist. Lastly it is urged that it is nobody's case that the agricultural produce that was purchased was not of the agriculturist, and that the commission agent was claiming the price on behalf of the agriculturist and not on their own account.

5. When the matter was called, no one appeared for the respondents.

6. Learned advocate for the petitioners urged before us that under section of the APMC Act, the recovery of sum due to an agriculturist for any agricultural produce sold by him in the market area which is not paid to him shall be referred to the competent authority. However, in the case under consideration, the dispute which has been raised is by the commission agent and not by any agriculturist for agricultural produce sold by him in the market area. He, therefore, contends that the reference in question was not tenable and consequently the impugned order is without jurisdiction.

7. He took us through section 57 of the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963 and the relevant provisions of section 57 are as under:

"Section 57.(1) Every sum due from a Market Committee to the State Government shall be recoverable as an arrears of land revenue.

(2) Any sum due to a Market Committee on account of any charge, costs, expenses, fees, rent, or on any other account under the provisions of this Act or any rule or bye-law made thereunder or any sum due to an agriculturist for any agricultural produce sold by him in the market area which is not paid to him as provided by or under this Act, shall be recoverable from the person from whom such sum is due, in the same manner as an arrears of land revenue.

(3) If any question arises whether a sum is due to the Market Committee or any agriculturist within the meaning of sub-section (2), it shall be referred to a Tribunal constituted for the purpose which shall after making such enquiry as it may deem fit, and after giving to the person from whom it is alleged to be due an opportunity of being heard, decide the question; and the decision of the Tribunal shall be final and shall not be called in question in any court or other authority."

8. He then pointed out the definition of "agriculturist" under section 2(b), which reads as under :

"agriculturist" means a person who ordinarily by himself or by hired labour or otherwise is engaged in the production or growth of agricultural produce which has not been processed, but does not include a trader, commission agent, processor or broker, an employee of Government or of any co-operative society or of a Market Committee, or a partner in trading firm or an industrial concern in or in relation to agricultural produce although such trader, commission agent, processor or broker, an employee of Government or of any co-operative society or of any Market Committee or a partner in trading firm or an industrial concern; may also be engaged in the production or growth of agricultural produce;

9. He also took us through the definition of "commission agent" under section 2(e) as also "trader" under section 2(t) which read as under :

2(e) "commission agent" means a person who by himself or through his servants buys and sells agricultural produce for another person, keeps it in his custody and controls it during the process of its sale or purchase, and collects payment therefor from the buyer and pays it to the seller, and receives by way of remuneration a commission or percentage upon the amount involved in each transaction;

2(t) "trader" means a person who buys or sells agricultural produce, a principal or a duly authorised agent of one or more persons;

10. He specifically pointed out that in the definition of agriculturist, it is specifically provided that it does not include a trader, commission agent etc. He, therefore, contends that the impugned order of the Tribunal being without jurisdiction is liable to be set aside.

11. At this stage of dictation of judgment, learned advocate for the respondent No.1 appeared and as a matter of concession only we heard him though he was not entitled to be heard. Learned advocate for the respondent No.1 submits that as per the market practice, the agriculturist brings his produce to the market yard and engages the services of commission agent. The agricultural produce is purchased by the trader through the commission agent. The commission agent collects the sale price from the trader and after deducting the same pays to the agriculturist. It is further submitted that even if the commission agent without waiting for the trader to make the payment, pays to the agriculturist the price of agricultural produce, still the dues continue to be that of the agriculturist. Therefore, it is market practice that as the trader does not make the payment immediately and the agriculturist is always in need of money, the commission agent make the payment to agriculturist and then recover the same from traders. Therefore, respondent No.2 being commission agent is entitled to recover the same under section 57(2) of the APMC Act. He took us through the evidence of commission agent and pointed out that the job of commission agent is to buy and sell agricultural produce for another person and also collects the payment from the buyer and pay it to the seller. In this view of the matter, learned advocate for the respondent No.1 states that the matter is covered by section 57(2) of the APMC, Act.

12. Section 57(2) of the APMC Act inter alia provides for recovery of any sum due to an agriculturist for any agricultural produce sold by him in the market area which is not paid to him. The purpose of making the said provision is that a sum due to an agriculturist in respect of any agricultural produce sold by him in the market area and which is not paid be recovered in the manner as arrears of land revenue and in case if any question arises that sum is due to any agriculturist, it shall be referred to a Tribunal constituted for the purpose which shall after making such enquiry and after giving an opportunity to be heard, decide the question; and the decision of the Tribunal shall be final and shall not be called in question in any court or other authority. Thus a quick remedy, without undergoing normal rigour of law, has been provided to an agriculturist, under section 57 of the Act which cannot be questioned in any court. The definition of "agriculturist" as contained in section 2(b) specifically provides that the said definition does not include a trader, commission agent etc. Therefore, by an indirect method or stretched reasoning, the commission agent cannot resort to section 57(2) of the APMC Act though an agriculturist to whom the sum is due is entitled to take recourse to section 57(2) of the APMC Act.

13. The matter before the Market Committee was not raised by any agriculturist but it was raised by the commission agents. This fact is clear from para 2 of the return of respondent No.1 that in the year 1981-82 a total number of five commission agents including the respondent No.2 had made a complaint to the Market Committee that the trader i.e. father of the petitioners had purchased the produce of agriculturist through them but had not made the payment of the price. It appears that the respondent No.2 took advantage of his father being Vice-Chairman of respondent No.1, on account of which, the complaint was entertained by the Market Committee and a resolution was passed to refer the same to the Tribunal under section 57 of the APMC Act. In the circumstances, this should not have happened since the commission agent does not fall within the scope and ambit of section 57(2) of the APMC Act for the recovery of any sum due to him. It would have been a different matter if an agriculturist had come to the Agricultural Produce Market Committee for the amount due to him and in such eventuality a reference would have been made under section 57(2) of the Act. The reference was thus totally without jurisdiction. We may refer to the Judgment of the Division Bench of this Court, in the case of M/s K. S. Agarwal vs. The Tribunal and Assistant Registrar, Co-operative Societies, Yeotmal, reported in 2002(2} Mh.L.J. 522 : AIR 2002 Bombay 324 : (2002(3) ALL MR 830), to which one of us (brother V. M. Kanade, J) was a party, where also a similar view has been taken and it would suffice to refer to the following observations therein.

"What is recoverable as land revenue under section 57 is any sum due to an agriculturist for any agricultural produce sold by him in the market area, which is not paid to him. It is, therefore, obvious that the sum must be payable to an agriculturist for it being recovered as land revenue. A sum payable to a Commission Agent cannot, by very plain reading of the provisions of section 57(2), be recovered via a Tribunal. Therefore, reference of dispute between Commission agent and partnership firm regarding sum payable to such agent to Tribunal would be void and proceedings before Tribunal would be without jurisdiction and void ab initio. Further order of Tribunal being passed without giving an opportunity to the firm against whom due was claimed, it was vitiated for violation of principles of natural justice also."

14. In view of the above, we do not find any merit whatsoever either in the submission advanced by the learned advocate for the respondent No.1 or in the contentions advanced in the return of respondent No.1. The impugned order passed by the Tribunal under section 57(2) of the Act, in the circumstances, is liable to be quashed and set aside. For the aforesaid reasons, the writ petition is allowed. The impugned order dated 31-5-1988 passed by the respondent No.3 is quashed and set aside. Rule is accordingly made absolute. The costs in the petition shall be borne by respondent Nos.1 and 2 which are fixed at Rs.2,500/- (Rs. Two Thousand Five Hundred only) and the costs shall be shared by respondent Nos.1 and 2 in equal proportion. The writ petition is allowed in aforesaid terms.

Petition allowed.