1.0 As common question of law and facts arise in both these Second Appeals, they are disposed of by this common judgment and order.
2.0 Second Appeal No. 144 of 1999 has been preferred by the appellant herein original plaintiff to quash and set aside the impugned judgment and order / decree passed by the learned Appellate Court learned District Judge, Rajkot dated 6.5.1995 passed in Regular Civil Appeal No.26 of 1990 by which the learned Appellate Court has allowed the said appeal preferred by the respondent herein original defendant quashing and setting aside the judgment and decree passed by the learned trial Court learned Second Joint Civil Judge (J.D.), Rajkot passed in Regular Civil Suit No.905 of 1981, by which the learned trial Court decreed the suit preferred by the appellant hereinoriginal plaintiff Agriculture Produce Market Committee, Rajkot and passing the money decree of Rs.14,100.99 towards market cess/ fees due and payable by the respondent hereinoriginal defendant.
3.0 Second Appeal No. 148 of 1995 has been preferred by the appellant herein original plaintiff to quash and set aside the impugned judgment and order / decree passed by the learned Appellate Court learned District Judge, Rajkot dated 6.5.1995 passed in Regular Civil Appeal No.25 of 1990 by which the learned Appellate Court has allowed the said appeal preferred by the respondent herein original defendant quashing and setting aside the judgment and decree passed by the learned trial Court learned Second Joint Civil Judge (J.D.), Rajkot passed in Regular Civil Suit No.696 of 1982, by which the learned trial Court decreed the suit preferred by the appellant hereinoriginal plaintiff Agriculture Produce Market Committee, Rajkot and passing the money decree of Rs.6340/ towards market cess/ fees due and payable by the respondent hereinoriginal defendant.
4.0 That the appellant herein original plaintiff – Agriculture Produce Market Committee, Rajkot instituted Regular Civil Suit Nos.905 of 1981 & 696 of 1982 against the respondent hereinoriginal defendant for recovery of Rs. 14,100.99 & 6340/ respectively from the respective defendants towards market cess/ fees due and payable by the respondentsdefendants.
4.1. That the suit was resisted by the respective defendants by filing written statement submitting that in view of the fact that the market committee can recover market cess under the provisions of Agriculture Produce Market Committee Act and Rules (hereinafter referred to as the “Act” & “Rules”) therein Civil Suit for recovery of market cess is not maintainable and also on the ground that suit is barred by law of limitation. That the learned trial Court framed the issues in respective suits and decreed the suits in favour of the original plaintiff holding that Civil Court would have jurisdiction to entertain the suit for recovery of the market cess/ fees and the suit is not barred by law of limitation.
4.2. Being aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court passed in Regular Civil Suits Nos. 905 of 1981 & 696 of 1982 , respondents herein original defendants preferred Regular Civil Appeal Nos. 26 of 1990 & 25 of 1990 before the learned District Court, Rajkot. That the appellants hereinoriginal plaintiffs also filed cross objection. That by impugned judgment and order, the learned Appellate Court has allowed the respective appeals and dismissed the cross objections by quashing and setting aside the respective judgment and decree passed by the learned trial Court passed in Regular Civil Suits No. 905 of 1981 & 696 of 1982 on the ground that in view of the remedy available under the provisions of the Act and the Rules Civil Court has no jurisdiction, entertain the suit for recovery of the market cess/ fees. However, the learned Appellate Court confirmed the finding given by the learned trial Court that the suits are within the period of limitation.
4.3. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Appellate Court passed in Regular Civil Appeal Nos. 26 of 1990 & 25 of 1990, the appellant hereinoriginal plaintiff has preferred the Second Appeals under Section 100 of the Code of Civil Procedure.
5.0 At the outset, it is required to be noted that while admitting the present Second Appeals, the learned Single Judge has framed the following substantial question of law.
“Whether in absence of specific exclusion or ouster of the jurisdiction of the Civil Court under Section 9 of the Code of Civil Procedure, a suit to recover the dues of market fees payable under the Gujarat Agricultural Produce Market Act is impliedly barred as provision is made for recovery of the market fee by following the procedure of recovering land revenue?”
6.0 Shri Chirag Patel, learned advocate for the appellant original plaintiff has heavily relied upon the recent decision of this Court in Second Appeal No. 159 of 1990, by which, in the similar set of facts and circumstances and answering similar question of law which is framed in the present Second Appeal, this Court has held that as there is no specific bar under the provisions of the Act and Rules, by which, there is bar to entertain the suit by the Civil Court for recovery of market fees and therefore Civil Court would have jurisdiction. Shri Patel, learned advocate for the appellant has also relied upon the decision of the Hon'ble Supreme Court in the case of Raja Jagdish Pratap Sahi vs. State of U.P reported in AIR 1973 SC 1059 as well as decision of the Full Bench of this Court in the case of State of Gujarat vs. Godhara Borough Municipality reported in 1977 GLR 636. By making above submissions and relied upon the above decisions, it is requested to allow the present Second Appeals.
7.0 Shri Jay Thakkar, learned advocate for the respondents hereinoriginal defendants has tried to oppose the present Second Appeals, however is not in a position to point out any contrary decision to the decisions relied upon by the learned advocate appearing on behalf of the appellant referred to hereinabove. He is also not in a position to dispute that as such the controversy raised in the present Second Appeals is squarely covered by the decision of this Court in Second Appeal No. 159 of 1990.
8.0 Heard the learned advocates for the respective parties at length and considered the impugned judgment and order passed by both the Courts below as well as substantial question of law framed by the learned Single Judge while admitting the present Second Appeals.
9.0 The substantial question of law which is framed by the learned Single Judge is Whether in absence of specific exclusion or ouster of the jurisdiction of the Civil Court under Section 9 of the Code of Civil Procedure, a suit to recover the dues of market fees payable under the Gujarat Agricultural Produce Market Act is impliedly barred as provision is made for recovery of the market fee by following the procedure of recovering land revenue ? Now so far as aforesaid substantial question of law is concerned, it is now not res integra in view of the decision of this Court in Second Appeal No.159 of 1990. Identical question came to be considered by this Court and with respect to same substantial question of law which is raised in the present Second Appeals and after considering various decisions of the Hon'ble Supreme Court in the case of ITI Ltd vs. Siemens Public Communications Network Ltd reported in (2002)5 SCC 510; in the case of S.Vanathan Muthuraja vs. Ramalingam @ Krishnamurthy Gurukkal and Others reported in (1997) 6 SCC 143; Ramkanya Bai & Another vs. Jagdish & Others reported in (2011) 7 SCC 452; Kamala Mills Ltd vs. State of Bombay reported in AIR 1969 SC 78 and in the case of Dhulabhai vs. State of M.P reported in AIR 1965 SC 1942, this Court has held that as there is no specific bar under the Act and Rules to entertain the suit by the Civil Court for recovery of the market fees/cess, there is no ouster of jurisdiction of the Civil Court and therefore, the Civil Court would have jurisdiction to entertain the suit by the Market Committee for recovery of the market fees. Even in the case of Raja Jagdish Pratap Sahi (supra) it is held that despite the summary remedy as provided in Section 32 of the U.P. Act, suit by State of Uttar Pradesh for recovery of Agricultural Income Tax dues for assessment under the aforesaid Act the suit is maintainable. A similar view has been expressed by the Full Bench of this Court in the case of Godhra Borough Municipality (supra) also.
10. In view of the aforesaid facts and circumstances of the case and aforesaid decisions of the Hon'ble Supreme Court as well as this Court, the finding given by the learned Appellate Court that suit for recovery of market fees by the Market Committee would not be maintainable before the Civil Court cannot be sustained and impugned judgment and order passed by the learned Appellate Court are required to be quashed and set aside and the judgment and decree passed by the learned trial Court are to be restored.
11. In view of the above and for the reasons stated above, both the Appeals succeed. The impugned judgment and order / decree passed by the learned Appellate Court learned District Judge, Rajkot dated 6.5.1995 passed in Regular Civil Appeal Nos. 25 of 1990 and 26 of 1990 are hereby quashed and set aside and the judgment and decree passed by the learned trial Court passed in Regular Civil Suit Nos. 905 of 1981 & 696 of 1982 are hereby restored. No costs.
“kaushik”
sd/ ( M. R. Shah, J. )