Second Appeal No.220 of 1993,Second Appeal No.222 of 1993

2nd June, 2008

Petitioner Counsel: Mr. UDAY DASTANE
Respondent Counsel: Mr. N. S. BHATTAD

Cases Cited:
St. Ulai High School Vs. Devendraprasad Singh, 2007(2) ALL MR 1 (F.B.)=2007(1) Mh.L.J. 597 [Para 9,14]
ONGC Vs. M/s. Jagson Intl. Limited, AIR 2005 Bombay 335 [Para 9]
Shri. Indarchand Vs. Tribunal, W.P.No.624/2005, Dt.21-12-2006 [Para 9]
Pralhad Eknath Fulkari Vs. Ramkrishna Tukaramji Dhage, 1985 Mh.L.J. 971 [Para 10,13]
M/s. K. S. Agrawal Vs. The Tribunal, 2002(3) ALL MR 830=AIR 2002 Bombay 324 [Para 10,12]
Rohtas Industries Limited Vs. Rohtas Industries Staff Union, AIR 1976 SC 425 [Para 14]

JUDGMENT

JUDGMENT :- Both these appeals under Section 100 of the Code of Civil Procedure arise out of common judgment and decree delivered on 5th November, 1992 by 8th Additional District Judge, Nagpur. By the said common judgment, the lower Appellate Court has decided Regular Civil appeal No.685 of 1984 filed by appellant Jugalkishore Kedarnath Agrawal & Sons in Second Appeal No.222 of 1993 as also Regular Civil Appeal No.691 of 1984 filed by appellant Agricultural Produce Market Committee in Second Appeal No.220 of 1993.

2. Dispute between parties is in relation to recovery of market cess and supervision charges under the provisions of the Agricultural Produce Marketing (Regulation) Act, 1963. It is not in dispute that Agricultural Produce Market Committee is a body constituted thereunder while M/s. Jugalkishore Kedarnath Agrawal and Sons is a trader duly authorised/licensed to function as such in its market yard.

3. Regular Civil Suit No.2001 of 83 came to be filed by Agricultural Produce Market Committee (APMC in short) against trader Jugalkishore Kedarnath Agrawal and Sons for rendition of accounts. APMC contended that as per the provisions of rule 20(3) of the Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967, it is empowered to take inspection of accounts of trader to compute the amount of market fee and supervision charges and to find out whether the same has been correctly paid or not. It pointed out that trader was functioning in its market yard and because of several breaches committed by him, it cancelled Firm's licence. Inspite of such cancellation, Firm continued to do business and Market Committee lodged criminal as well as civil cases against the Firm. It also obtained temporary injunction against the Firm by filing Civil Suit No.1558 of 1980. Inspite of order of temporary injunction, the Trader-Firm continued to do business and till 1977 it collected lakhs of rupees towards market fees and supervision charges, but the same were not made over to the APMC. The Firm also did not give any inspection of accounts though several demands in writing were made for that purpose.

4. All these allegations were denied by the Trader-Firm. It also took a plea that it was not transacting any business in market area of the APMC.

5. The Trial Court framed in all seven issues and answered all of them in favour of APMC. However, it held that APMC was entitled to inspection of accounts from 30th July, 1981. It held that for a period prior to said date, the claim of APMC was barred by limitation.

6. As mentioned above, both the parties then filed appeals under Section 96 of the Code of Civil Procedure. The lower Appellate Court held that APMC had right to take periodical inspection of account books of Trader-Firm for the period of three years immediately preceding the institution of suit and the Trial Court, therefore, could not have decreed suit by taking into account of date of institution of suit. It, therefore, partly allowed the appeal filed by APMC by directing Trader-Firm to give inspection of accounts for the period from 22-11-1980 onwards i.e. for a period of three years prior to accrual of cause of action. Lower Appellate Court did not accept the contention of Trader-Firm that Civil Court did not have jurisdiction at all and it, therefore, dismissed its Regular Civil Appeal No.685 of 1984.

7. On 3rd September, 1993, Second Appeal No.220 of 1993 has been admitted by mentioning that ground no.(x) in memo of appeal raises substantial questions of law. Second Appeal No.222 of 1993 has been admitted on the very same day without formulating any substantial questions of law but by directing it to be heard along with Second Appeal No.220 of 1993.

8. Substantial questions of law which fall for determination as per said order dated 3rd September, 1993 are as under :

(A) Whether provisions of Limitation Act are applicable in case of suits for amount based on statutory liability and obligation which is a continuous one ?

(B) If the provisions of Limitation Act are applicable, then whether the date of cause of action would be from the date of refusal to give accounts on specific demand in this behalf ?

(C) If the date of cause of action is taken to be refusal to give accounts, then whether the claim for the entire period prior to such date is within limitation if the suit is filed within 3 years of such refusal ?

In addition to these questions, question whether Civil Court had jurisdiction to take cognizance of suit as filed also arises in Second Appeal 222/1993 & parties have without raising any objection addressed this Court even in that respect.

9. I have heard Mr. Uday Dastane, learned counsel for APMC and Mr. Bhattad, learned counsel for Trader-Firm on 2nd May, 5th May & 6th May, 2008 before summer vacation & today i.e. on 2nd June, 2008. Both Advocates have addressed the Court on the issue of limitation and also about the availability or otherwise of jurisdiction with Civil Court. By pointing out relevant case laws, Mr. Dastane has contended that provisions of the APMC Act and the Rules framed thereunder constitute a complete code within itself and as such, there is no question of taking recourse to the provisions of the Limitation Act. He contends that limitation is specifically not prescribed for recovery proceedings contemplated under Section 57 of the Act and as such to read the provisions of the Limitation Act as applicable for rendition of accounts as sought for by the APMC in the present matter, defeats the very purpose of not providing for limitation in Section 57 of the Act. According to him, when no limitation is prescribed under Section 57 of the Act, the Courts below have grossly erred in reading period of three years as applicable to the suit for rendition of accounts. He has further contended that recourse to Section 57 is possible and permissible only when a sum is computed or ascertained one. According to him, therefore, unless and until the demand amount is fixed, APMC cannot approach machinery under Section 57 of the Act. He points out that in the present case, APMC made efforts to obtain accounts from Trader-Firm so as to work out its entitlement to market cess & as Trader-Firm did not co-operate the amount in that respect could not be finalised and hence recourse was required to be taken to filing of civil suit. He points out that rule 20(3) of the Rules permits APMC to inspect accounts and according to him, purpose of said provision is to enable APMC to ascertain exact amount due and it also protects any trader from unnecessary persecution and roving proceedings. He, therefore, contends that in these circumstances, provisions of the APMC Act read with Rules framed thereunder itself permit filing of civil suit. According to him, bar of jurisdiction of Civil Court provided in Section 57(3) needs to be read strictly and only when an ascertained sum is being claimed by APMC from a trader, dispute in relation thereto is outside the purview of jurisdiction of Civil Court. He contends that when sum is not fixed, the jurisdiction of Civil Court is available to APMC for enforcement of its rights to inspect accounts for computing exact amount of market cess and supervision charges. He argues that in Section 57 there is nothing which takes away this jurisdiction of Civil Court. According to him, therefore, the appeal filed by Trader-Firm needs to be dismissed while the appeal filed by APMC needs to be allowed and Trader-Firm needs to be directed to produce accounts for entire period in dispute so as to enable APMC to compute exact sum due and then to move Tribunal under Section 57 of the Act. In support of his contention, Mr. Dastane placed reliance upon judgment of Full Bench of this Court in St. Ulai High School & anr. Vs. Devendraprasad (2007(1) Mh.L.J. 597 : [2007(2) ALL MR 1 (F.B.)]) and also judgment of learned Single Judge in ONGC Vs. M/s. Jagson Intl. Limited (AIR 2005 Bombay 335). Mr. Dastane has also relied upon unreported judgment of learned Single Judge of this Court in Shri. Indarchand and anr. Vs. Tribunal and ors. delivered in Writ Petition No.624 of 2005 on 21st December, 2006 wherein learned single Judge has concluded that the provisions of Limitation Act are not applicable to the proceedings before Tribunal functioning under Section 57 of the Act.

10. Mr. Bhattad, on the other hand, contends that none of the provisions of the Maharashtra Agricultural Produce marketing (Regulation) Act, 1963 or the Rules framed thereunder, as in force at the relevant time, clothed APMC with power to assess after holding enquiry. He points out that the relevant words enabling APMC to hold enquiry are added in sub-rule (3) of rule 20 by Notification dated 7-6-1990. He contends that if the accounts are not produced or if Trader-Firm is not co-operating, the only remedy contemplated is to approach the Tribunal under Section 57 of the Act. According to him, the provisions of Section 57(3) of the Act are very clear and dispute of any nature in relation to such demand by APMC has to be adjudicated by the Tribunal constituted under Section 57 of the Act and not by Civil Court. He points out judgments of this Court in Pralhad Vs. Ramkrishna and ors. reported in 1985 Mh.L.J. 971 and M/s. K. S. Agrawal Vs. The Tribunal and ors. reported in AIR 2002 Bombay 324 : [2002(3) ALL MR 830] in support of his contention. According to him, in view of the civil nature of dispute, provisions of the Limitation Act are very much applicable and lower Appellate Court has, therefore, correctly granted inspection only for a period of three years. However, he clarified that this contention is without prejudice to the first argument that civil suit itself was not maintainable. He contends that the provisions of Section 57 need to be given full effect and hence, civil suit filed for rendition of accounts needs to be dismissed as not maintainable.

11. In view of the arguments advanced and questions formulated, it is apparent that I am called upon to find out whether the provisions of Limitation Act are applicable to demand made by APMC for a sum due to it on account of supervision charges or market cess. During arguments both the Advocates have invited my attention to various provisions of the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963 in order to show that it is or it is not a complete Code. For the purposes of limitation, it will be necessary to find out whether Legislature was alive to the element of limitation while enacting the said Act. Proviso to Section 7(1) of the Act states that when the Market Committee fails to grant or renew or refuse a licence within a period of sixty days from the date of receipt of the application therefor, the licence shall be deemed to have been granted or renewed, as the case may be. Similarly, Section 8(1A) of the Act specifically provides that licence can be suspended for a period not exceeding 15 days by an order in writing. Section 9 permits the person aggrieved by such order to file appeal and period prescribed therefor in its clauses (a) and (b) is 30 days. Section 52-B which provides for remedy of appeal again prescribes limitation of 30 days vide its sub-section (2). It is also pointed out that rule 104 of the Rules enables aggrieved employee to file appeal before the Registrar within a period of 30 days and said rule expressly authorises the appellate authority to condone delay also. All these provisions clearly show that the Legislature was aware of the importance of time limit to be prescribed for filing of appeals or for completion of proceedings and has made provision therefor wherever it thought it fit to do so. Absence of such express provision in Section 57 is, therefore, deliberate and significant.

12. Sub-section (1) of Section 57 of the Act provides that sum due to the State Government from Market Committee is recoverable as an arrears of land revenue. Sub-section (2) then speaks of sums due to Market Committee or sum due to agriculturists. It is, therefore, apparent that special provision for recovery of certain types of sums or payments is made in Section 57 of the Act. The judgment reported at AIR 2002 Bombay 324 (supra) takes cognizance of this aspect only and proceeds to hold that sum payable to commission agent is not recoverable by taking recourse to Section 57 of the Act. It is, therefore, obvious that a special procedure for speedier recovery has been made available to the State Government or to the Market Committee or agriculturists by Legislature and the sums stipulated thereunder are made recoverable as arrears of land revenue. Because of this special procedure prescribed, obviously it was not necessary & the Legislature has intentionally not provided expressly any period of limitation independently in Section 57 of the Act. Learned single Judge of this Court has in an unreported judgment dated 21st December, 1996 (supra) considered this aspect and in paragraph 10 concluded that the Tribunal functioning under Section 57 even if presumed to be a "Court", it would follow that the provisions of the Limitation Act would not apply to the proceedings before the Tribunal as there is no provision warranting its application made either in the APMC Act or in Limitation Act. In the facts of present case, the Trial Court as also the lower Appellate Court have applied limitation period of three years. As already stated above, the amount is made recoverable as arrears of land revenue i.e. by following procedure prescribed therefor. In view of the discussion above, I find that courts below were not justified in applying period of limitation of three years to the suit as filed by APMC. The APMC was seeking production of accounts for the period from 1977 onwards in the Suit filed in November, 1983 & the Courts below ought to have granted the same, if said Suit was tenable. I, therefore, find that judgment and decree delivered by the courts below on this count are not sustainable and APMC is entitled for direction asking trader-Firm to produce accounts from 1977 onwards for its inspection.

13. This now brings to consideration of issue of jurisdiction of civil court. Section 57 of the Act reads as under :

"57. Recovery of sums due to Government or Market Committee.

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

(2) Any sum due to a market Committee or 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 arrear of land revenue.

(3) If any question arises whether a sum is due to the Market Committee or any agriculturist 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.

(4) The State Government may constitute one or more Tribunals consisting of the Collector who has jurisdiction over the market area :

Provided that, the State Government may, if in its opinion it is necessary so to do in any case constitute a Tribunal consisting of one person other than the Collector (possessing the prescribed qualification) who is not connected with the Market Committee or with the person from whom the sum is alleged to be due.

(5) Except or otherwise directed by the Tribunal in the circumstances of any case, the expenses of the Tribunal shall ordinarily be borne by the party against whom a decision is given."

Thus, it is apparent that decision of the Tribunal delivered under Section 57 of the Act has been made final expressly and it has been further added by Legislature that such decision shall not be called in question in any court or other authority. This finality given to said adjudication is recognised by learned single Judge of this Court in Pralhad Eknath Fulkari Vs. Ramkrishna Tukaramji Dhage & ors. reported at 1985 Mh.L.J. 971, where in paragraph 9 it has been expressly observed that a civil suit was not maintainable in view of Section 57 of the Act. Suit there was filed by an agriculturist for recovery of price of cotton sold by him against broker and market committee, & the suit was ultimately held to be not maintainable.

14. However, before me, by placing reliance upon judgment of Full Bench of this Court reported in St. Ulai High School & anr. Vs. Devendraprasad Singh [2007(2) ALL MR 1 (F.B.)] (supra), particularly paragraph 9, Mr. Dastane tried to contend that there can be limited exclusion of jurisdiction of civil court. In said matter before the Full Bench, the question was about maintainability of civil suit in view of the provisions of Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1978. The Full Bench has concluded that the Legislature having provided for a remedy before the Tribunal only in respect of the subjects spelt out in clauses (a) and (b) of Section 9(1), in those cases the jurisdiction of the Civil Court is impliedly barred and the jurisdiction of the Civil Court is barred to the extent to which the Legislature has spoken. The Full Bench has also relied upon judgment of Honourable Apex Court in the case of Rohtas Industries Limited Vs. Rohtas Industries Staff Union reported at AIR 1976 SC 425. It is settled law that exclusion of jurisdiction of Civil Court is not to be readily inferred and a provision which excludes such jurisdiction needs to be strictly construed. It is, therefore, obvious that insofar as provisions of the MEPS Act are concerned, in relation to matters subjected to jurisdiction of School Tribunal functioning under Section 9 of the said Act, jurisdiction of Civil Court under Section 9 of the Code of Civil Procedure has been taken away. However, here not only the decision of Tribunal under section 57 of APMC Act is made final expressly but challenge thereto is also prohibited before any court or authority. Question before this Court is the stage at which reference under sub-section (3) of Section 57 is contemplated or approach to Tribunal under Section 57 of the APMC Act is necessary. Emphasis of Advocate Mr. Dastane is upon the words "sum due to Market Committee". He contends that unless and until a particular/specific figure of amount is known, it cannot become a sum due to Market Committee. According to him, therefore, in order to arrive at such sum due, Legislature has provided machinery under rule 20(3) of the Rules. As against this, Mr. Bhattad argues that "sum due to Market Committee" does not mean that it has to be an ascertained figure. According to him, computation or quantification of such sum can be the subject-matter of enquiry under sub-section (3). He argues that bifurcation of jurisdiction between civil court and special tribunal under Section 57 in such circumstances is not envisaged by Legislature at all. He argues that even a direction to produce accounts can be given by Tribunal functioning under Section 57 of the Act.

15. Rule 20(3) of the Maharashtra APM (Regulation) Rules, 1967 reads as under:

"20. Payment in respect of agricultural produce sold to be made immediately after weighment or sale thereof. -

(1) ....

(2) ....

(3) For the purpose of ascertaining that payment for the declared agricultural produce sold at any place in the market area are made to the seller as required by this rule, the Market Committee shall through its Secretary or any officer specially empowered by it in this behalf, arrange for the periodical inspection of the books of account of traders and commission agents operating in the market area or shall make enquiry, as the case may be, whereas a result of such inspection or enquiry, it is found that the payment has not been made within the time limit as mentioned in sub-rules (1) and (2), the Market Committee shall be competent to recover the amount from the deposit kept by the purchaser or commission agent wit the Market Committee and pay the same to the seller or direct the Bank which has given guarantee on behalf of such purchaser or commission agent to pay the amount to the seller."

16. It is obvious that the said rule has been enacted to realise payment due from trader. Contention of Mr. Bhattad that before 7-6-1990 APMC had no power to make enquiry into assessment needs to be considered at this stage. The provision expressly authorising APMC to hold enquiry has been added on 7th June, 1990 and admittedly, dispute in the present matter is for period from 1977 & institution of suit is in 1983. Thus, the said provision was not in existence at the relevant time. However, even in absence of said provision, the language of sub-rule (3) clearly enables APMC to hold enquiry because it empowers the Market Committee through its Secretary or any officer to take periodical inspection of books of account of trader operating in market area. The said inspection is for the purpose of ascertaining that payments for declared agricultural produce at any place in market area are made to the seller. In the Scheme, it is inherent that correctness or otherwise of the payments effected can be verified by scrutiny of the books of accounts. It is not in dispute before me that even before 7-6-1990 and for that purpose during relevant period APMC had power to assess market fees/cess or supervision charges. Assessment of market cess or supervision charges cannot be done without going through the accounts of Trader-Firm and it is, therefore, apparent that an enquiry was also contemplated even in absence of express provisions in the Act or Rules for that purpose. The subsequent amendments made in the Act vide Sections 29(2)(xxi), 32-A and 31 are all the provisions subsequently added or amended by the Legislature only after recognising the need to have express provision therefor. Having accepted that APMC has power to levy/assess market fee/cess and supervision charges, the Trader-Firm cannot be heard to contend that the market committee did not have power of inspection or enquiry and whatever it pays must be accepted as correct. In present case carrying of business has been accepted by the Firm but liability to pay was only being denied. In other words trader firm accepts that it has not paid anything to APMC under these heads.

17. The sums which are payable under the APMC Act and recoverable under Section 57 include supervision charges and market cess. If the amount is payable to agriculturist, it can be the costs of agricultural produce sold by him. It is, therefore, obvious that when Market Committee complains of non-payment of any such charge or costs, expenses etc. as contemplated under sub-section (2), it is complaining that "sum due" has not been paid. Word "sum" is therefore used to represent demands of various types or nature envisaged under APMC Act. Quantification of such sum at that stage is not contemplated by Legislature because in certain circumstances, there may be dispute even about liability to pay apart from correctness or otherwise of demand. Sub-section (3), therefore, expressly permits the Tribunal to hold enquiry as it may deem fit when question arises whether a sum is due to market committee or not. It is further clear that upon enquiry, Tribunal may find that amount less than what is claimed by APMC is due to it. Section 57(3) requires the Tribunal to give person from whom the amount is alleged to be due opportunity of being heard before taking any decision. The Tribunal therefore has authority to inspect records of trader as also APMC before deciding the question. It is to be noted that Section 57(1) and (2) of the Act only declares that sums mentioned therein are recoverable as arrears of land revenue. There is no express provision which permits filing of any application either by APMC or by person from whom the amount is sought to be recovered. From the scheme of Act and Rules, it is apparent that after amount is demanded by the APMC and it is not paid, APMC is required to approach the Tribunal under Section 57(3) of the Act for procuring recovery certificate. It is also obvious that after a demand is made and the same is denied by a person from whom the same was made, he can also approach Tribunal under Section 57(3) of the Act. Thus, dispute in this respect can reach Tribunal either at the instance of APMC or at the instance of aggrieved person and then the Tribunal is obliged to make enquiry and in the course of enquiry, it can call upon the Trader-Firm or APMC to produce accounts or other documents in order to determine exact amount due from him to APMC. The contention that unless and until a quantified figure i.e. sum is claimed as due by the Market Committee, Market Committee cannot take recourse to Section 57 is, therefore, unacceptable. It is to be noted that if argument as advanced on behalf of APMC is accepted, it results into two-tier system of adjudication. In first adjudication, the Civil Court is required to give direction only to produce accounts for inspection of APMC and after such inspection of accounts, APMC is expected to quantify the demand and then to approach the Tribunal under Section 57 for its recovery. No other mode of recovery or provision in the Act enabling the Market Committee to directly attach property or assets of Trader-Firm, is pointed out to this Court. Even the perusal of scheme of entire Act leaves no manner of doubt that APMC has no other course but to proceed for recovery as arrears of land revenue. In these circumstances, when enquiry is contemplated by Tribunal and in that enquiry, Tribunal is obliged to give opportunity to the aggrieved party, it is apparent that Tribunal can also call upon the Trader-Firm to produce accounts and Tribunal can then find out whether the claim of APMC is justified or not. In a given case, APMC can complain that it is not aware of exact quantum of business undertaken by the Trader-Firm for particular period and it can point out, as in the present case, that the Trader-Firm has continued to operate inspite of cancellation of licence and, therefore, seek assistance of Tribunal itself for production of accounts. Determination of liability by Tribunal under Section 57(3) is made final and unassailable by the Legislature. I, therefore, find it difficult to hold that approach to Civil Court can be encouraged by accepting argument that Tribunal is not competent to order production of accounts or to undertake an enquiry for quantification of liability. When Tribunal has been authorised and empowered by Legislature to hold enquiry to find out whether a "sum" is due, it also clothed Tribunal with power to quantify it. Manner of holding enquiry is as Tribunal may deem fit as quick recovery is contemplated. It is apparent that Tribunal can do all that which is necessary to resolve the dispute before it. Two tier remedy would defeat the very purpose of providing speedy mode of recovery, of express finality to decision of Tribunal or of barring challenge to it before any court or authority.

18. I, therefore, find that civil suit for rendition of accounts as filed by APMC before the Civil Court was not maintainable because of bar under Section 57(3). In other words, Civil Court could not have taken cognizance of said civil suit.

19. In view of this, Second Appeal No.222 of 1993 filed by Trader-Firm needs to be allowed and it is accordingly allowed by holding that civil court had no jurisdiction to entertain Regular Civil Suit No.2001 of 1983 and to grant any relief in it.

20. In the circumstances, though Second Appeal No.220 of 1993 filed by APMC needs to be partly allowed by holding that the courts below were not right in applying period of limitation of three years to the prayer for production of accounts as made by APMC in Regular Civil Suit No.2001 of 1983, still practically it becomes infructous as S.A.222/1993 of Trader Firm has been allowed.

21. In the result, in view of above discussion and answers; Regular Civil Suit No.2001 of 1983 filed by Agricultural Produce Market Committee is hereby dismissed. However, in the circumstances of the case, there shall be no order as to costs.

Ordered accordingly.