JUDGMENT G.P. Mathur, J.
1. This appeal has been preferred by the defendant-respondents against the judgment and order dated 24.1.2002 of Civil Judge (Sr. Division), Allgarh, in O. S. No. 233 of 2000 by which the application 7C for grant of temporary injunction moved by the plaintiff under Order XXXIX, Rules 1 and 2 read with Section 151, Code of Civil Procedure was allowed. By the impugned order, temporary injunction was granted whereby it was directed that if the plaintiff transferred stock from its factory situate within the mandi area of Aligarh to its godown outside the mandi area by way of stock transfer, neither any gate pass would be required nor any mandi fee would be charged and the plaintiff would furnish Bank guarantee for the amount of mandi fee which it is liable to pay on each stock transfer in favour of the defendant.
2. The plaintiff, M/s. Heinz India Limited, filed the suit against the Krishl Utpadan Mandi Samiti, Aligarh and two others, praying that defendant Nos. 1 to 3 and their subordinate employees be restrained by means of prohibitory injunction from imposing and recovering any mandt fee on all those transactions of the plaintiff by which it transfers its stock of ghee to its various godowns/depots located in and outside the State of U. P. at the said places through their appointed C and F Agents which are not within the territorial jurisdiction of defendant No. 1 and, defendant Nos. 1 to 3 be further directed to issue gate passes to plaintiff on all such transactions of stock transfers without payment of any mandi fee.
3. The case set up by the plaintiff in the plaint, in brief, is as under :
"The plaintiff is a company registered under the Companies Act and is engaged in manufacture of milk foods, weaning foods, energy beverages including ghee under the brand name "Sampriti" in its factory at Aligarh. The head office of the company including its marketing department is located at Bombay. The ghee manufactured at factory in Aligarh is weighed, packed and loaded from the factory premises and sent to its various godowns maintained by C and F Agents all over the country by way of stock transfers on self-to-self basis and in this manner, the stock of ghee is maintained in the godowns outside the State of U. P. The stock is not sent from Aligarh factory in compliance of any prior order of sale received either by the C and F Agents located outside the State of U. P. or by the plaintiff at Aligarh. The C and F Agents are appointed for receiving, handling and delivery of stocks of ghee under the supervision of the marketing staff located at the various places all over the country and the C and F Agents are required to carry out all procedures for realisation of sale proceeds in the name of the plaintiff company. After the stocks of ghee are received at godowns located outside the State of U. P. prospective purchasers contact the marketing staff, and negotiate the sale. The plaintiffs factory at Aligarh has no role to play with regard to sale of ghee to various parties located outside the State of U. P. and there is no nexus between the transfer of stocks of ghee from the plaintiffs factory at Aligarh and the purchase thereof by the various purchasers. The plaintiffs factory at Aligarh does not enter into any kind of contract with regard to sale of ghee with the party or parties outside the State of U. P. or any city of U. P. Ghee conies within the purview of U. P. Krishi Utpadan Mandi Adhinlyam, 1964 (hereinafter referred to as the Act), and the plaintiff has obtained a licence as required under Section 7 of the aforesaid Act from Mandi Samlti, Aligarh. Section 17 of the Act provides for levy of market fee on the sale of scheduled agricultural produce within the market area of a Mandi Samiti and Explanation to Section 17 (iii) provides that unless the contrary is proved, any specified agricultural produce taken out or proposed to be taken out of a market area by or on behalf of a licensed trader shall be presumed to have been sold within such area and is liable to the imposition of market fee. In paragraph 16 of the plaint, the details of the documents which the plaintiff furnishes at the time of seeking a gate pass are given and in paragraph 17 details of the documents which the plaintiff furnishes after the completion of Sale outside the State of U. P. are given. The plaintiff informed the Mandi Samlti, Aligarh, vide its letter dated 4.1.1995 about the procedure of transfer of stock to other locations with a view to seek exemption as provided in Explanation to Section 17 (iii) of the Act. However, the Mandi Samiti vide their office order No. 1777, dated 22.2.1995, demanded market fee in advance at the time of issuing gage pass. The suit was accordingly filed for the relief mentioned above."
4. The plaintiff also moved an application 7C, under Order XXXIX, Rules 1 and 2 read with Section 151 Code of Civil Procedure, praying that by means of interim injunction the defendants and their subordinate employees be restrained from charging any mandi fee on all transaction of stock transfer (sending of ghee) by the plaintiff from its factory to its depots located outside the territorial Jurisdiction of defendant No. 1 in U. P. and other States and defendants be restrained from withholding Issuance of gate passes to the plaintiff for all the aforesaid transactions on nonpayment of mandi fee. The application was supported with an affidavit which was almost a reproduction of the plaint.
5. The defendant filed objection to the injunction application on the ground, inter alia, that it was wrong that the plaintiff had been transferring the stocks to their C and F Agents or that they had not entered into any agreement/contract within the market area of Mandi Samiti, Aligarh. The plaintiff had not submitted a valid rebuttal at the time when the consignment of ghee was taken outside the market area of Mandi Samiti, Aligarh. It was further pleaded that the controversy had already been settled by the Supreme Court and the directions given by the Apex Court in the case of Mohalami Sugar Works v. Krishi Utpadan Mandi Samiti, were being followed at the time of making the assessment and in absence of a valid rebuttal, the mandi fee had been levied by the Mandi Samiti and, thereafter, final assessment order had been made. The plaintiff had failed to prove by any cogent evidence that it was not selling the agricultural produce (ghee) within the market area of Mandi Samiti, Aligarh, and, therefore, final assessment orders had been passed. The suit filed by the plaintiff was not maintainable and was barred by Sections 25 and 32 of the Act. It was further pleaded that the Krishi Utpadan Mandi Samiti Adhinlyam, 1964, is a complete Code providing remedy against an order of assessment and, therefore, the plaintiff could avail of the remedy provided under the Act and the suit was not maintainable. The plaintiff had earlier filed O. S. No. 446 of 1997 seeking the same relief but as it failed to get an injunction order, the suit was got dismissed on 27.7,1998. No injunction could be granted to restrain the defendants from realising mandi fee as realisation of taxes, which are for an ascertained sum of money, cannot be stayed.
6. The learned Civil Judge, after hearing the parties, passed the impugned order dated 24.1.2002 by which it was directed that if the plaintiff transfers its stock from its factory situate within the mandi area of Aligarh to its godown outside the mandi area by way of stock transfer, then neither any gate pass would be required nor any mandi fee would be charged and the plaintiff would furnish Bank guarantee on each stock transfer for the amount of mandi fee which it is liable to pay in favour of the defendant.
7. Sri B. D. Mandhyan, learned counsel for the appellant, has submitted that Emanation to Section 17 (iii) of the Act provides that unless the contrary is proved, any specified agricultural produce taken out or proposed to be taken out of a market area by or on behalf of a licensed trader shall be presumed to have been sold within such area. The presumption raised by the Explanation is no doubt rebuttable, but whether the licensed trader has rebutted the presumption or not, has to be examined by the Market Committee and if the Market Committee comes to the conclusion that the presumption has not been rebutted, the licensed trader is liable to pay market fee before issuance of a gate pass. Learned counsel has further submitted that the procedure which is to be followed while a licensed trader is taking out his agricultural produce outside the market area and the manner for challenging the decision of the Market Committee has been settled by the decision of the Apex Court rendered on 25.3.1998 in the case of M/s. Saraswatl Cane Crusher and the said decision has to be followed. The learned Civil Judge committeed manifest error of law by directing that in the event of stock transfer the plaintiff would only be required to furnish Bank guarantee in lieu of actual payment of mandi fee. Sri Mandhyan has also submitted that the plaintiff had failed to make out any case for grant of interim injunction in its favour inasmuch as it had neither any prima facie case nor it was likely to suffer any irreparable injury in the event of refusal of injunction order as the mandi fee was being levied for an ascertained sum of money which the defendant could be ordered to repay along with interest in the event the suit was ultimately decreed. Sri Bharatji Agarwal, learned senior advocate, assisted by Sri Tarun Agarwal, who appeared for the plaintiff-respondent, has submitted that there was only a stock transfer from the factory of the plaintiff to its godowns in different States and as there was no transaction of sale, the plaintiff was not liable to pay any mandi fee. Learned counsel has submitted that the order passed by the learned Civil Judge (Sr. Division), Aligarh, is not contrary to the decisions of the Apex Court and in the facts and circumstances of the case, the injunction order had rightly been passed. It has also been urged that the plaintiff had paid more than Rs. 4 crores as mandi fee to defendant No. 1 and the revisions preferred by it under Section 32 of the Act against the assessment orders had not been decided by the appropriate authority, with the result, the plaintiff is being unnecessarily saddled with liability to pay the mandi fee. Sri Agarwal has also referred to various documents which have been filed by the plaintiff which, according to him, establish that there was no transaction of sale within the market area of Mandi Samiti, Aligarh, and it was merely a case of stock transfer to the godowns of the plaintiff.
8. Before considering the submission made by the learned counsel for the parties, it will be convenient to reproduce the provision of the Act under which the mandi fee is charged. The relevant part of Section 17 of the Act is being reproduced below :
" 17. Powers of the Committee.--A Committee shall, for the purposes of this Act, have the power to .....
(iii) levy and collect :
(a) such fees as may be prescribed for the issue or renewal of licences, and
(b) market fee, which shall be payable on transactions of sale of specified agricultural produce in the market area at such rates, being not less than one per centum and not more than two per centum of the price of the agricultural produce so sold, as the State Government may specify by notification, and such fee shall be realised in the following manner ...........
(1) if the produce is sold through a commission agent, the commission agent may realise the market fee from the purchaser and shall be liable to pay the same to the Committee ;
(2) if the produce is purchased directly by a trader from a producer the trader shall be liable to pay the market fee to the Committee ;
(3) if the produce is purchased by a trader from another trader, the trader selling the produce may realise it from the purchaser and shall be liable to pay the market fee to the Committee ; and (4) in any other case of sale of such produce, the purchaser shall be liable to pay the market fee to the Committee :
Provided that .....
Provided that .....
Explanation.--For the purpose of Clause (iii), unless the contrary is proved, any specified agricultural produce taken out or proposed to be taken out of a market area by or on behalf of a licensed trader shall be presumed to have been sold within such area and in such case, the price of such produce presumed to be sold shall be deemed to be such reasonable price as may be ascertained in the manner prescribed."
9. The vires of the Act was challenged by a large number of traders by filing writ petitions in the High Court and, finally the matter was examined by a Constitutional Bench in Ram Chandra Kailash Kumar & Co. and others v. State of U. P. and another. AIR 1980 SC 1124. It was observed therein that a machinery for adjudication of dispute is necessary to be provided under the rules for the proper functioning of the Market Committee. It was also observed that if a dispute arises then in the first instance the Market Committee itself or any sub-committee appointed by it can give its finding which would be subject to challenge in any Court of law when steps are taken for the enforcement of the provisions for realisation of the market fee. The Explanation to Section 17 (iii) of the Act was added by the U. P. Ordinance No. 4 of 1987 and the vires of this Ordinance was challenged on the ground that the same was arbitrary, illegal and violative of the fundamental right to carry on trade or business. In order to protect interest of the traders and safeguard payment of fee in accordance with law, a Division Bench of our Court in Shri Mahalaxmi Sugar Works v. State of V. P., 1987 UPLBEC 957, issued the following directions :
"(1) Every trader proposing to take out the goods manufactured or produced in the market area shall be entitled to issue of gate passes from the Mandi Samiti if he produces documents to establish that the goods were being taken out of the market area. Necessary entries shall be made by Mandi Samiti in records maintained by it.
(2) A trader taking out goods shall file a statement before the Mandi Samiti within six seeks indicating therein that the goods were sold by the commission agent or by the petitioners themselves inside or outside the market area.
(3) In case the traders do not file the statement the Mandi Samiti shall issue notice to the traders after expiry of six weeks to file the statement within 10 days of receipt of notice.
(4) If the return is filed the same shall be scrutinised by the Mandi Samiti and if it is satisfied about its correctness, then it shall pass appropriate orders levying fee if the sale has been made in the market area and exempting in case, it has been made outside the market area.
(5) In case the return of trader is found to be incorrect or he omits to file his return despite notice by Mandi Samiti then the Mandi Samiti shall levy market fee on trader on the goods which had been taken out and for which gate pass had been issued."
10. The aforesaid decision of the High Court was challenged before the Apex Court and a two Judge Bench in Krishi Utpadan Mandi Samtti v. Shri Mahalaxmi Sugar Works, 1995 Supp (3) SCC 433, by the order dated 2.2.1995 disposed of the appeal in the following terms :
"From this, it is clear that there is a presumption against the dealers. In view of this presumption, it is open to the appellants - Krishi Utpadan Mandi Samiti to raise demands against the dealer before passes could be issued. If there is a valid rebuttal in that the sale did not take place within the notified market area, the dealers will be entitled to the passes otherwise not. Of course, when the dealers are compelled to pay the market fee as demanded, it is open to them to challenge it in the matter provided under the Act."
11. The matter was again considered by a Bench of three Hon'ble Judges in Civil Appeal No. 1769-1773 of 1998, Krishi Utpadan Mandi Samiti v. Saraswati Cane Crusher, decided on 25.3.1998 and after referring to the earlier order dated 2.2.1995, it was observed as under:
"We are satisfied that the order of this Court afore-referred would need some repair work. We treat the said order to be conceiving of a provisional assessment whereafter doors are opened for a final assessment. We conceive that when demands are raised by the Krishi Utpadan Mandi Samiti against a trader before he could ask for transit of goods outside the market area, the trader would be entitled to tender a valid rebuttal to say that no sale had taken place within the notified area and that if the explanation is accepted there and then by the Mandi Samiti, no question of payment would arise as also of withholding the gate passes. If prima facie evidence led by the trader is not acceptable by the Mandi Samiti, the trader or the dealer can be compelled to pay the market fee as demanded before issuance of gate pass. If the trader makes the payment without demur, the matter ends and the assessment finalised. But In case he does so and raises protest, then the assessment shall be taken to be provisional in nature making it obligatory on the trader to pay the fee before obtaining the requisite gate pass. After protest has been lodged and the provisional assessment has been made, a time frame would be needed to devise making the final assessment, We, therefore, conceive that it innately be read in the order of this Court that a final assessment has to be made within a period of two months after provisional assessment so that the entire transaction in that respect is over enabling the aggrieved party, if any, to challenge the final assessment in the manner provided under the aforesaid Act or under the general law of the land in appropriate for a Having added this concept in this manner in the two Judge Bench decision of this Court, we declare that what repair has been done instantly would add to the orders of the High Court and the instant corrective decision shall be the governing rule. The civil appeals would thus stand disposed of."
12. The above-quoted order would show that the Apex Court has held that if prima facie evidence led by the trader is not accepted by the Mandi Samiti, the trader or the dealer can be compelled to pay the market fee as demanded before issuance of gate pass. It has been further held that in case the trader raises protest, the assessment shall be taken to be provisional in nature making it obligatory on the trader to pay the fee before obtaining the requisite gate pass. It is, therefore, clear that if the evidence adduced by the trader to rebut the presumption is not accepted by the Mandi Samiti, he cannot get the gate pass until he pays the mandi fee. The impugned orders passed by the learned Civil Judge (Sr. Division) is clearly contrary to the directions issued by the Supreme Court. Under the impugned order, he has held that in the case of stock transfer made by the plaintiff, it would not be required to obtain a gate pass and would merely furnish Bank guarantee for the amount of mandi fee levied upon it. The Supreme Court has nowhere provided for furnishing the Bank guarantee. On the contrary, it has been specifically held that if the evidence adduced by the trader in support of rebuttal is not accepted, it will be liable to pay mandi fee before issuance of gate pass. There is absolutely no occasion to issue a gate pass merely on furnishing a Bank guarantee. Since the directions issued by the learned Civil Judge (Sr. Division) are contrary to the directions of the Apex Court in M/s. Saraswati Cane Crusher (supra), the impugned order cannot be sustained and has to be set aside.
13. Sri Bharatji Agarwal, learned counsel for the plaintiff-reapondent, has submitted that in Ram Chandra Kailash Kumar v. State of U.P., AIR 1980 SC 1124, it was observed in paragraph 10 of the reports that if a dispute arises then in the first instance the Market Committee itself or any sub-committee appointed by it can give its finding which will be subject to challenge in any Court of law when steps are taken for enforcement of provisions for realisation of market fee. He has also referred to the observations made in paragraph 36 of the reports that if there is any disputed question of fact to be decided by the Market Committee, then it should be decided as quickly as possible leaving the person concerned to agitate the matter in Court of law, preferably in the High Court. On the strength of the aforesaid observations, Sri Agarwal has submitted that it is fully open to the plaintiff to file the civil suit at the time when the Market Committee is seeking to impose or levy market fee before issuance of gate pass and in such a suit, it is open to the trial court, if a proper case is made out, to grant an interim order restraining the Mandi Samiti from levying market fee. Learned counsel has also urged that the decision in Ram Chandra Kailash Kumar (supra) has been rendered by a Constitutional Bench and, therefore, it will prevail over the decision rendered in the case of M/s. Saraswati Cane Crusher, which is by a Bench of three Hon'ble Judges. In support of his submission that a decision of a larger Bench is binding learned counsel has placed reliance on Mattu Lal v. Radhe led. AIR 1974 SC 1596, and State of U. P. v. Ram Chandra, AIR 1976 SC 2547.
14. We are unable to accept the submission made by the learned counsel for the plaintiff-respondent. It is noteworthy that Explanation to Section 17 of the Act was not in existence when the case of Ram Chandra Kailash Kumar was decided on 25.3.1980, This Explanation was inserted by U. P. Ordinance No. 4 of 1987 w.e.f. 31.3.1987. Therefore, the Constitution Bench had no occasion at all to consider the impact of the Explanation. In Mahalaxmi Sugar Works, 1987 UPLBEC 957, this Court has specifically taken note of the decision of the Constitution Bench judgment In 'Ram. Chandra Kailash Kumar (supra). It was against the said decision that appeal was preferred by the Krishi Utpadan Mandi Samiti which was decided by the Apex Court on 2.2.1995, which matter was re-considered in M/s. Saraswati Cane Crusher by a Bench of three Hon'ble Judges. Therefore, the Bench deciding the case of M/s. Saraswati Cane Crusher was fully aware of the Constitution Bench decision in Ram Chandra Kailash Kumar (supra). The said Bench was examining the scope of the Explanation appended to Section 17 (iii) of the Act and taking note of the same, it was directed that if the evidence adduced by the trader is not accepted by the Mandi Samiti, the trader or dealer can be compelled to pay the market fee as demanded before issuance of gate pass. It was further observed that the assessment made by the Mandi Samiti shall be taken to be provisional making it obligatory on the trader to pay the fee before obtaining the requisite gate pass. The contention raised by the learned counsel for the plaintiff-respondent has, therefore, no substance and it is the decision rendered in M/s. Saraswati Cane Crusher which will govern the situation.
15. A similar controversy was examined by a Division Bench (D. P. Mohapatra, C.J. and R. R. K. Trivedi, J.) in Krishi Utpadan Mandi Samiti, Kosi Kalan, District Mathura v. Mahan Proteins Ltd., 1999 (1) UPLBEC 490, and after referring to the order passed by the Apex Court in M/s. Saraswati Cane Crusher (supra), it was observed as follows, in paragraph 21 of the reports :
"Discussions in the aforementioned judgment of the Apex Court, quoted above, clearly lay down the manner and the procedure to be followed in raising a demand of market fee by Mandi Samiti on a trader. Tested on the principles laid down in the judgment, the impugned order in the case is clearly unsustainable. The learned trial Judge has granted interim injunction completely restraining the appellants from realising market fee on transactions which the respondent claims to be stock transfers. Injunction order does not even permit the Mandi Samiti to examine the papers relating to the transaction and pass a provisional order of assessment dealing with the claim of the respondent that the transaction is a mere 'stock transfer' and not a 'sale'. The injunction order, in our considered view, runs directly against the law laid down by the Supreme Court and amounts to defeating the very purpose for which the Explanation was added in Section 17 (iii) of the Act."
The impugned order dated 24.1.2002 of the learned Civil Judge also suffers from the same vice and has, therefore, to be set aside.
16. The second contention urged by Sri Mandhyan that no injunction can be granted to restrain the realisation of mandi fee may also be briefly noticed. The principles on which interim injunction can be granted under Order XXXIX, Rule 1 or 2, Code of Civil Procedure are well established. In order to obtain an 'interlocutory Injunction, it is not enough for the plaintiff to show that he has a prima facie case. He must further show that : (i) in the event of withholding the relief of temporary injunction, he will suffer an irreparable injury; (ii) in the event of his success in the suit in establishing his alleged legal right encroachment whereof is complained against, he will not have the proper remedy in being awarded adequate damages ; (Hi) the plaintiff must show a clear necessity for affording immediate protection to his legal right, if any and, (iv) lastly the Court has to take into consideration the comparative mischief or inconvenience to the parties. In Siliguri Municipality v. Amalendu Das. AIR 1984 SC 653, it was observed that the High Court should not, as a rule, in proceedings under Article 226 of the Constitution grant any stay of recovery of tax, save under very exceptional circumstances and the grant of stay in such matters should be an exception and not a rule. In Assistant Collector of Central Excise v. Dunlop India, AIR 1985 SC 330, this principle was reiterated and the practice of granting interim order staying collection of public revenues seriously jeopardising the budget of Government and local bodies was deprecated. This principle would apply with greater force in a civil suit. In paragraph 7.12 of Volume 1 of the 'Report of the National Commission to Review the working of the Constitution' it has been observed that grant of stay in taxation matters has serious impact on public exchequer. In the case in hand, defendant No. 1 seeks to levy mandi fee before issuing gate pass when it does not accept the evidence adduced by the plaintiff in rebuttal of the presumption that it is a transaction of sale within the market area. The amount realised by way of mandi fee being an ascertained sum of money can always be returned to be plaintiff along with appropriate interest in the event the plaintiff succeeds finally. No irreparable injury would have accrued to the plaintiff in the event of refusal of the injunction order. In these circumstances, one of the essential conditions for grant of injunction order under Order XXXIX, Rule 2, Code of Civil Procedure was lacking and no order could be passed in favour of the plaintiff-respondent.
17. For the reasons mentioned above, the appeal succeeds and is hereby allowed. The impugned order dated 24.1.2002, passed by the learned Civil Judge (Sr. Division), Aligarh, is set aside. It is ordered that the demand and collection of market fee by the appellants from the respondent will be made strictly in accordance with law and the judgment of the Supreme Court in Krishi Utpadan Mandi Samiti v. Saraswati Cane Crusher and others (supra). It is further directed that if the plaintiff challenges the final assessment order by filing revision under Section 32 of the Act, the defendants will make every endeavour for expeditious disposal of the same.
Vineet Saran, J.
18. I have gone through the considered judgment of brother G. P. Mathur, J. While agreeing with the conclusion arrived at by my esteemed brother, I would like to add a few words of my own.
19. Facts with regard to the case, as mentioned in the plaint which have already been given by brother G. P. Mathur, J., need not be repeated by me. However, further facts mentioned in the plaint which led to the filing of the suit in question may be added.
20. From para 16 of the plaint onwards, it has been stated that the plaintiff-respondent, while sending each consignment of stocks outside Aligarh, furnishes the requisite documents before the appellant No. 1 (Mandi Samiti, Aligarh) for seeking gate passes for transfer of stocks. The documents furnished included an application , Forms 'A' and '48' as prescribed under Rules, Transporters G. C. note and Transfer Invoices. Thereafter, on completion of sale outside the market area (in and outside the State of U. P.) the plaintiff-respondent furnish the sale invoice, mandi fee receipt and Form 'F' of the Trade Tax Department in support of the assertion that the sale of consignment had taken place outside the mandi area of the defendant-appellant No. 1. Till 21.2.1995, the gate passes were issued by the Mandi Samiti, Aligarh, without realising the mandi fee in advance. However, after 2.2.1995, when the Supreme Court passed the judgment in the case of Krishi Utpadan Mandi Samiti v. Shree Mahalaxmi Sugar Works, 1995 Supp (3) SCC 433, holding that the Explanation to Section 17 (iii) of the Adhiniyam provided for rebuttal of presumption of deemed sale, the Mandi Samiti issued an office order dated 22.2.1995 demanding the mandi fee in advance at the time of issuing the gate pass.
21. After the office order dated 22.2.1995 was issued by the appellant No. 1, the plaintiff objected to the same vide letter dated 23.2.1995 seeking relaxation under the said order of the Supreme Court dated 2.2.1995. However on 25.2.1995, the defendant-appellant No. 1 passed orders for realising mandi fee in advance at the time of issuing the gate pass.
22. Against the said order of the Mandi Samiti, Aligarh, the plaintiff-respondent filed Writ Petition No. 6483 of 1995 wherein this Court on 21.3.1995 issued directions that a revision under Section 32 of the Act should be filed before the Director. Mandi Parishad, who would pass necessary orders within one month and if the Director holds that the mandi fee is not payable by the plaintiff on the stock transfer, then the amount deposited shall be refunded along with 12% interest per annum. Accordingly, the plaintiff filed revisions under Section 32 of the Act before the defendant-appellant No. 2 which were turned down. Hence, the plaintiff amended its Writ Petition No, 6483 of 1995 and challenged the aforesaid decision also. By order dated 10.10.1996, this Court dismissed the writ petition.
23. Against the decisions of the Mandi Parishad in revision and the High Court in writ petition, the plaintiff filed a special leave petition before the Supreme Court which was decided on 25.3.1998 along with the leading case of Krishi Utpadan Mandt Samiti v. Saraswati Cane Crusher.
24. In such circumstances, the suit in question was filed by the plaintiff in September, 2002, praying that the defendant-appellant be restrained by means of a prohibitory injunction, from imposing and recovering any mandi fee on transfer of stocks of ghee to the various depots located in and outside the State of U. P., and further the defendants be directed to issue gate passes to the plaintiff without payment of mandi fee on all such transactions. Along with the suit, the plaintiff also filed an application. The averments in the plaint were more or less repeated in the affidavit accompanying the said application. However, with the affidavit, the plaintiff had filed various documents in support of the assertion that the sale of the transferred stocks do not take place within the mandi area of defendant No. 1.
25. The defendant-appellants filed their reply/objections to the said injunction application mainly on the ground that the transaction of the plaintiff did not amount to stock transfer, in view of the direction given by the Apex Court in the case of Krishi Utpadan Mandi Samiti v. Shree Mahalaxmi Sugar Works, the plaintiff was required to pay the mandi fee in advance, in the absence of a valid rebuttal that the sale did not take place in the market area. The defendants also raised the plea that the suit of the plaintiff was not maintainable. It was barred by Sections 25 and 32 of the Act. It was also submitted that in case if the plaintiff was aggrieved, remedy provided under the Act should have been available and suit before the civil court was not the proper remedy. It was further pleaded that the plaintiff had earlier also filed a suit which was dismissed. In the said circumstances, no injunction could be granted in favour of the plaintiff.
26. After hearing the parties and considering the evidence adduced, the learned Civil Judge passed the impugned injunction order dated 24.1.2002 holding that a prima facie case was made out and the balance of convenience was in favour of the plaintiff and in case if the interim Injunction was not granted, the plaintiff would suffer irreparable loss.
27. Sri B. D. Mandhyan, learned counsel appeared for the appellants ; Sri Bharatji Agarwal, learned senior counsel along with Sri Tarun Agarwal, for the plaintiff-respondent were heard at considerable length.
28. The main thrust of the arguments of learned counsel for the appellant was in two folds. It was firstly contended that the civil court has no jurisdiction to entertain the suit as the remedy was available under Sections 25 and 32 of the Act itself. In view of Section 34 of the Act also, the suit was not maintainable. It was only the Mandi Samiti and not the civil court which could decide whether the sale had taken place in its mandi area or not. In the alternative, Sri Mandhyan argued that on the merits of the case also, no injunction ought to have been granted as the market fee is a money matter, as such the trader should be required to deposit the amount in advance before raising any dispute.
29. In support of his first contention, Sri Mandhyan has submitted that since the Act itself provides for the remedy of an appeal and revision under Sections 25 and 32 recourse to filing a suit would not be permissible. He vehemently argued that a revision under Section 32 of the Act was the only alternative for the plaintiff in case a final assessment is made by the market committee against them. Further in view of the provisions of Section 34 of the Act also, it was contended that no suit would lie against the orders passed by the Mandi Samiti.
30. In support of his second contention that even on merits (in the facts and circumstances of the case), the injunction could not have been granted, Sri Mandhyan has relied on the decision of the Apex Court in the case of Saraswati Cane Crusher (supra) wherein it has been held that if the plea of rebuttal is not accepted, it is obligatory for the traders to pay the market fee before obtaining the requisite gate pass. In support of his contention that no Injunction should be granted restraining realisation of mandi fee, which is in the form of tax for an ascertained amount of money he has mainly relied on two decisions of the Apex Court, namely, Siliguri Municipality v. Amalendu Das, AIR 1984 SC 653 and Assistant Collector of Central Excise v. Dunlop India Ltd., AIR 1985 SC 330. Further relying on a Division Bench decision of this Court in Krishi Utpadan Mandi Samiti v. Mahan Proteins Ltd., 1999 (1) UPLBEC 490, Sri Mandhyan urged that the impugned injunction should not have been granted by the trial court. He submitted that the facts of that case were similar to the ones in the present case and since the injunction granted by the trial court restraining the traders from realising the market fee on the transactions which were claimed to be only stock transfer, was set aside by the High Court in the case of Mahan Proteins Ltd. (supra), the same should be followed and the impugned injunction order granted in the present case should also be set aside.
31. Sri Bharatji Agarwal, learned senior counsel appearing for the plaintiff-respondent, submitted that payment of mandi fee would arise only if the 'sale' takes place within the "market area". It has been submitted that in the present case, although sale has taken place but not within the market area of the Mandi Samiti, Aligarh, defendant-appellant No. 1. In support of the sale having taken place outside the market area, learned counsel submits that the plaintiff supplied the requisite documents like the sale invoice, the proof of the mandi fee having been paid on such goods to the Mandi Samiti where the sale took place, the requisite trade tax receipt, etc. Counsel submits that the plaintiff can only produce a positive evidence of the fact that the goods have been sold at a place outside the territorial limits of the market area of defendant No. 1 and it is not possible for them to prove something in the negative, Le., the sale has not taken place in the said market area. In support of this, he submits that relying on a Supreme Court decision, a single Judge of this Court in Civil Misc. Writ Petition No. 595 of 1999, I.T.C. Ltd. v. Director, Mandi Parishad and another, has explained in what circumstances a presumption can be arrived at. The relevant portion of the said judgment is quoted below :
"In respect of such presumption, Hon'ble Supreme Court in the case of Sodhi Transport Co. v. State of U. P., AIR 1985 SC 1099, after examining in detail the legal position regarding such presumption, held in paragraph 14 as under :
14. A presumption is not in itself evidence but only makes a prima facie case for party in whose favour it exists. It indicates the person on whom the burden of proof lies. When presumption is conclusive, it obviates the production of any other evidence, to dislodge the conclusion to be drawn on proof of certain facts. But when it is rebuttable, it only points out the party on whom lies the duty of going forward with evidence on the fact presumed and when that party had produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of presumption is over. Then the evidence will determine the true nature of the fact to be established. The rule of presumption are deduced from enlightened human knowledge and experience and are drawn from the connection, relation and coincidence of facts and circumstances."
32. While further dealing with the presumption of sale as set out in the Explanation to Section 17 (iii) of the Act, the learned single Judge has further observed :
"The objection behind providing Explanation was to check evasion or avoidance of payment of market fee on transaction of sale or purchase of specified agricultural produce by placing burden on the person, who is taking out the goods to prove that it was not to be sold in the market area. It was not intended to create hurdle in free flow of business activities. It appears that explanation is being misused and abused for extracting mandi fee even in the case like present one where the material was sufficient to indicate that no sale was involved in the market area, such an attitude may not be in the interest of trade and business which is the lifeline for economic upliftment of the State."
33. The learned counsel submits that the rebuttal of the sale not having taken place within the territorial jurisdiction of the market area, as given by the plaintiff, was sufficient to establish that it was a case of stock transfer. Further, he has submitted that in the absence of any proof furnished on behalf of the Mandi Samiti that the sale has actually taken place within its area, the evidence submitted by the plaintiff ought to be accepted. He further submitted that this attitude of the Mandi Samiti, which is statutory body, amounts to harassment of the traders, and for this reason the big businessmen of the country are moving out of this State, judicial notice of which can be taken by the Court.
34. With regard to the rebuttal before the committee which was to be submitted by the plaintiff to negate the presumption of sale having taken place within the market area, the learned counsel for the plaintiff-respondent has further submitted that for deciding the rebuttal under Section 17 (iii) of the Act, there is no properly constituted committee as provided under Section 13 of the Act and in the absence of the same, it is the Chairman/Secretary who performs the functions of the committee. Sri B. D. Mandhyan has not disputed this factual position. Sri Agarwal also submitted that these officers are officers of the samiti and any amount of documents that may be submitted in support of rebuttal are not accepted by them as they do not work as an independent body. The constitution of the committee, as provided and contemplated under Section 13 of the Act, is very wide and consists of representatives of local bodies; Co-operative Marketing Societies; Food Corporation of India, commission agents, traders and producers of the market area, etc. which goes to show that the committee is expected to be a representative body which would look into the matter of imposition of market fee independently. It is true that a constitution Bench of the Apex Court in Ram Chandra Kailash Kumar v. State of U. P., 198O SC 1124, has held that in the absence of machinery under the Act and Rules for adjudication of disputes would not mean that the market fee cannot be levied and collected. However, in the same judgment, the Supreme Court had also held that :
"Market Committees have not been constituted yet in accordance with the provisions contained in Section 13 of the Act. They have been constituted temporarily under Uttar Pradesh Krishi Utpadan Mandi Samitis (Alpakalik Vyawastha) Adhlniyam, 1972, which Act was a temporary Act and has been extended from year to year. But it is high time that Market Committees should be constituted in a regular manner on a permanent basis in accordance with the provisions contained in Chapter III of the Act. But the levy and collection of fee by the temporary Market Committees is not illegal as argued on behalf of the appellants. A machinery for adjudication of disputes is necessary to be provided under the rules for the proper functioning of the Market Committees. We have already observed and expressed our hope for bringing into existence such machinery in one form or the other. But it is not correct to say that In absence of such a machinery no market fee can be levied or collected. If a dispute arises then in the first instance the Market Committee itself or any sub-committee appointed by it can give its finding which will be subject to challenge in any Court of law when steps are taken for enforcement of the provisions for realization of the market fee."
35. Learned counsel for the plaintiff-respondent has stated that despite such observation by the Apex Court more than 22 years back, the Market Committees have yet not been constituted and they still function through nominated officers appointed by the State Government. In such a situation, it has been submitted that the Mandi Samiti is imposing market fee and deciding the disputes itself through its own officer, rather than an independent body. Section 17 (iii) categorically mentions that a committee shall have the power to levy and collect market fee and the presumption would thus be arrived at by the committee which is expected under the Act, to be a representative body functioning independently.
36. With regard to the maintainability of the suit, Sri Bharatji Agarwal submitted that after the final assessment had been made in earlier cases, the plaintiff-respondent had approached various authorities which included Mandi Samiti at Allgarh, the Mandi Parishad at Lucknow in revision, this Court in writ petition and thereafter the Supreme Court (as given out in details in the plaint) the plaintiff-respondent was left with no other alternative but to file a suit where alone the dispute could be resolved independently after considering all the evidence. He has relied on the observations of the Apex Court made in the case of Ram Chandra Kailash Kumar (supra) which is quoted below :
"If there is any disputed question of fact to be decided by the Market Committee, then it should be decided as quickly as possible leaving the person concerned to agitate the matter in a court of law, preferably in the High Court, within a short time thereafter.
37. Further, the Supreme Court while dealing with the case of Saraswati Carte Crusher (supra) has "observed that after the final assessment is made by the Mandi Samiti, the aggrieved party should be able "to challenge the final assessment in the manner provided under the aforesaid Act or under the general law of the land in appropriate fora." He thus submitted that in view of the aforesaid observations of the Supreme Court, the suit of the plaintiff was maintainable.
38. In reply to the contention of the learned counsel for the appellants that the remedy provided under Sections 25 and 32 of the Act ought to have been availed by the plaintiff, Sri Agarwal has submitted that the provision of appeal under Section 25 of the Act is only for orders passed under Section 17 (i) and (ii) of the Act and not under Section 17 (iii). As regards the revision under Section 32 of Act, he submits that the same is maintainable before a "Board". "Board" as defined under Section 2 (A-1) of this' Act means the State Agricultural Produce Market Board constituted under Section 26A. He submitted that the board has not been constituted as contemplated under the Act, and the revisions are being heard and decided by the Director, Mandi Parishad, who is not competent to hear the revision. However, this controversy is not before us but on being asked by the Court, the counsel for both the parties stated that 26 revisions of the plaintiff are pending since long and have not been decided because of which crores of rupees of the plaintiff still remains in deposit with the Mandl Samiti, Aligarh. It was also submitted that since 23.2.1995, plaintiff has been depositing the mandi fee on each transaction of stock transfer outside the mandi area of the defendant appellant No. 1 and despite no sale having been made within the territorial jurisdiction of the mandi area of the defendant No. 1, the plaintiff had already deposited about 4.5 crores till the filing of the suit which remains with the Mandl Samiti till date. Even thereafter, during the pendency of the suit, it is submitted that they have deposited a further sum of about Rs. 0.50 crores. This fact has not been controverted by the learned counsel for the appellant. It has been argued that the Injury which has been caused to them because of being compelled to pay the mandi fee in advance (on the transfer of stocks) is being perpetuated and the plaintiff was left with no alternative but to approach the civil court under the general law of the land by way of filing a suit for injunction.
39. Further, in reply to the arguments of the defendant-appellants that the suit was barred under Section 34 of the Act. Sri Agarwal relies on the provisions of Section 34 itself, which are reproduced below :
"34. Suit against the committee.--(1) No suit shall be instituted against any committee, its Chairman, Vice-Chairman or any member officer or servant thereof, for anything done, or purported to be done in its or his official capacity until the expiration of two months from the date of service of a notice in writing, stating that cause of action, the name and place of abode of the plaintiff and the relief claimed."
40. Learned counsel has submitted that the suit has been filed more than two months after having given the required notice as provided under the Act. He also urged that the suit is maintainable for anything done or even purported to be done by the Samiti. As such the counsel submitted that his client was entitled to file a suit against the committee by virtue of the said provisions of Section 34 of the Act.
41. With regard to the second issue regarding the merits of the case in granting the injunction, Sri Bharatji Agarwal submitted that as the injury was being perpetrated since 1995 and although all proof had been furnished by the plaintiff regarding the sale of the transferred stocks outside the market area of the defendant No. 1 and since the same was not being considered objectively and independently, the trial court after considering the entire evidence and the documents submitted by the plaintiff rightly granted the Injunction order. Counsel submits that all the Ingredients of Injunction had been thoroughly examined and considered by the trial court and after detailed discussions, since the learned Civil Judge found that there was a prima facie case in favour of the plaintiff and that the balance of convenience also lay in their favour and that irreparable loss would be caused to the plaintiff in case if they were further required to continue to deposit the mandi fee in advance as they had already deposited crores of rupees which remains with the Mandi Samiti (defendant No. 1), the learned Civil Judge was absolutely justified in granting the injunction order. It was urged that the trial court did not grant a blanket order in favour of the plaintiff and had imposed a condition that the plaintiff was to furnish Bank guarantee for the amount of fee which could be leviable on them, if it was later found that the goods were sold within the mandi area of the defendant No. 1.
42. While distinguishing the Division Bench decision of this Court in Mahan Proteins Limited (supra) wherein, as contended by learned counsel for the appellant, the facts were similar to that of the present case, Sri Bharatji Agarwal submitted that in the case of Mahan Proteins Limited, a blanket injunction had been granted by the trial court which did not even permit the Mandi Samiti to examine the papers, relating to transactions and pass a provisional assessment order. Sri Agarwal submitted that in the present case, the trial court has directed that the plaintiff would be required to furnish all the requisite papers of enable the Mandi Samiti to pass provisional assessment and further the plaintiff has been required to furnish the Bank guarantee of the amount of mandi fee based on the value of the goods, before the gate passes were required to be issued by the Mandi Samiti. Counsel also submitted that the Bank guarantee could be encashed by the Mandi Samiti, if ultimately the decision was made in their favour.
43. In reply to the contention of the learned counsel for the appellant that no such Injunction should be granted in money matters where tax and fee Is involved as held by the Apex Court in the case of Assistant Collector of Central Excise v. Dunlop India Limited (supra). Sri Bharatji Agarwal relied on certain observation made by the Supreme Court in the same case which are quoted below :
"All this is not to say that interim orders may never be made against public authorities. There are, of course, cases which demand that interim orders should be made in the interests of justice. Where gross violations of the law and injustices are perpetrated or are about to be perpetrated, it is the bounden duty of the Court to intervene and give appropriate interim relief. In cases where denial of interim relief may lead to public mischief, grave irreparable private Injury or shake a citizen's faith in the impartiality of public administration, a Court may well be justified in granting interim relief against public authority."
44. Learned counsel has submitted that this was a fit case for the Court to interfere and grant the injunction in the interest of justice as gross violation of law was being perpetrated. Thus, the interim injunction granted was perfectly justified and if denied the same would cause grave injury to the plaintiff-respondent.
45. The aforesaid submissions of the learned counsel for the plaintiff-respondent may have some force and 1 may have been inclined to consider the same but for the categorical observations made by the Apex Court In the case of Saraswati Cane Crusher (supra), wherein it has been held that:
"If prima facie evidence led by the traders is not acceptable by the Mandi Samiti, the trader or the dealer can be compelled to pay the market fee as demanded before issuance of gate-pass. If the trader makes the payment without demur, the matter ends and the assessment finalised. But in case he does so and raises protest, then the assessment shall be taken to be provisional in nature making it obligatory on the trader to pay the fee before obtaining the requisite gate pass."
46. Although, Sri Bharatji Agarwal has further argued that in the same judgment while dealing with the earlier judgment of the Supreme Court in the case of Krishi Utpadan Mandi Samiti v. Shree Mahalaxmi Sugar Works, (1995) Supp (3) SCC 433 and the decision of the High Court in Shree Mahalaxmi Sugar Works v. Krishi Utpadan Mandi Samiti, (1987) UPLBEC 957, the Supreme Court has thus observed :
"Having added this concept in this manner in the two Judge Bench decision of this Court, we declare that what repair has been . done instantly would add to the orders of the High Court and the instant corrective decision shall be the governing rule."
47. The learned counsel thus submitted that the Apex Court did not overrule the Division Bench decision of the High Court in the case of Mahalaxmi Sugar Works and the same still holds good. For this, he has also relied on the Division Bench decision of this Court given in Krishi Utpadan Mandi Samiti v. Mohon Proteins Limited (supra), wherein it has been observed that the demand and collection of the market fee by the appellants from the respondent should be made strictly in accordance with law and Judgment of this Court in the case of Shree Mahalaxmi Sugar Works v. State of V. P.. (1987) UPLBEC 957 and the Judgment of the Supreme Court in Krishi Utpadan Mandt Samiti v. Saraswati Cane Crusher.
48. It is true that the Supreme Court has in Haryana Financial Corporation v. Jagdamba Oil Mills, JT 2002 (1) SC 482, held that judgments are passed in regard to the facts and circumstances of particular cases and sometimes even a single fact can change the entire complexion of the case. In para 19 of the said judgment, the Apex Court has observed :
"19. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. There observations must be read in context in which they appear. Judges of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not Interpret judgments.
One additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper."
49. Be that as it may, since it has been held by the Apex Court in the case of Saraswati Cane Crusher (supra) that it was obligatory on the trader to pay the market fee before obtaining the requisite gate pass, however strong the circumstances may have been, it was not for the learned Civil Judge to interpret the law laid down by the Apex Court or for us to do so in appeal. With the aforesaid observation, I would agree with final order proposed by brother G. P. Mathur, J.