THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HONBLE SRI JUSTICE SANJAY KUMAR Writ Appeal No.1623 of 2014 23-12-2014 M/s. Friegerio Conserva Allana Private Limited, Zaheerabad, Medak District. Hyderabad. Appellant Commissioner & Director of Agricultural Marketing, Hyderabad and others..Respondents

THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA  AND THE HONBLE SRI JUSTICE SANJAY KUMAR                

Writ Appeal No.1623 of 2014

23-12-2014

M/s. Friegerio Conserva Allana Private Limited, Zaheerabad, Medak District.
Hyderabad.        Appellant
       
Commissioner & Director of Agricultural Marketing, Hyderabad and
others..Respondents

For the Appellant  :Sri Vedula Srinivas

For Respondent Nos. 1 and 3 :G.P. for agriculture(TG)
 For Respondent No.2: Sri K.Upender Reddy
                        Standing Counsel for
                        Agricultural Market Committee

<Gist:

>Head Note:

?CITATIONS:

THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA            
 AND
THE HONBLE SRI JUSTICE SANJAY KUMAR        

Writ Appeal No.1623 of 2014

DATED:23.12.2014  


Judgment: (per the Honble the Chief Justice Sri Kalyan Jyoti Sengupta)


      Ordinarily, this sort of appeal should not have been
entertained by this Court as the learned Trial Judge found no fault in
the impugned order of Revising authority of Andhra Pradesh
(Agricultural Produce & Live Stock) Markets Act, 1966 (hereinafter
referred to as the Act). But we intervene in this matter as an
exceptional case. The Revising authority dismissed the revision
application in limine on the ground of, so to say, alternative remedy.
After hearing the learned counsel for parties, we think the approach
of the Revising Authority is incorrect for he has no option, unlike the
Constitutional writ Court, but to entertain revision application once
ground therefor is made out. We notice the power of the revising
authority is very wider as provided under Section 12-F of the Act
because it does not depend upon the decision of the appellate
authority alone. So, we set out the said provision:
       Section 12-F:  Revision by the Director of Marketing:
          1. The Director of Marketing may suo motu, or on
an application made to him call for and examine the record of
any order passed or proceeding recorded by any authority or
officer subordinate to him or by any market committee or any
authority or person authorized by it, under the provisions of
this Act for the purpose of satisfying himself as to the legality
or propriety of such order or as to the regularity of such
proceeding and may pass such order in reference thereto as he
thinks fit:
           Provided that every application for the exercise of the
powers under this section shall be preferred within thirty days
from the date on which the order or proceedings was
communicated to the applicant.
       2. In relation to an order of assessment passed under
this Act, the powers conferred by sub-section (1) shall be
exercisable only within such period not exceeding three years
from the date on which the order was served on the trader, as
may be prescribed.
       3.  No order shall be passed under sub-section (1)
enhancing any assessment unless opportunity has been given
to the assessee to show cause against the proposed
enhancement.

      It would appear, the Revising authority can call for records
and examine the propriety and legality of the order passed even by
the first authority.  Here, the appellant-writ petitioner has alleged
that the order of the first authority suffers from gross impropriety
and illegality.  So, it could be examined by the Revising authority
instead of asking to travel through appellate forum. As correctly
pointed by the learned counsel for appellant, the learned Trial
Judge, in our view, has not examined this aspect of the matter. His
Lordship thought that the concept of exhaustion of remedy in a
matter of this nature should be followed. The learned Trial Judge
seems to have doubted the bona fide of the appellant, that in order
to circumvent the provision of pre-deposit of the tax amount, the
appellant had taken such course of action.
      It is easy to doubt the conduct of any person.  But, before we
entertain such a doubt, we must examine whether there is any
material to doubt.
      While examining the papers, namely, the revision application,
we find the allegations of impropriety and illegality have been made.
Whether the said allegations are correct or not can be ascertained
only by the revising authority after hearing the other side and after
examining the material placed before it, it would be highly unjust to
deprive a person beneficial avenue provided in the law basing on
doubt. The Revising authority has mechanically passed an order
asking the appellant to prefer an appeal.  We think there are cases
where illegality and impropriety, namely, lack of jurisdiction can be
examined by the superior authority ignoring the power of the
immediately subordinate authority. The theory of exhaustion of
remedy is applicable only in case of writ jurisdiction. If it is done, in
every case then what is the use of a provision for supervisory
jurisdiction by way of revision. The learned Trial Judge in our
considered opinion overlooked this aspect of the matter presumably
because of lack of proper assistance.  However, respecting wishes of
His Lordship we decide to strike a balance to deal with this matter.
      Under the circumstances, we think that following order will
sub-serve the interest of justice.
       In the event, the appellant deposits 50% of the market fee,
as assessed by the first authority and secure balance 50% by way of
a bank guarantee in any nationalized bank of the local area, the
learned Revising authority shall decide this revision application on
merits. Such deposit and furnishing of bank guarantee shall be made
within four weeks from date. In the event, the directions are carried
out, the Revising authority shall consider the matter in accordance
with law within his power of revision, but not as an appellate
authority within a period of three months from the date of
compliance as above. In default this appeal will stand dismissed and
this order will stand recalled.
      The appeal is thus disposed of. No order as to costs.
__________________  
K.J. SENGUPTA, CJ  
_________________  
SANJAY KUMAR, J        
23rd December, 2014

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