The main legal point established in the judgment is that the exclusion of jurisdiction of the Civil Court is to be strictly construed, and a civil suit challenging the recovery of market fee will lie if the right of assessment or recovery is challenged, and if the produce is not taxable at all.

S.K. Dubey, J.

1. Krishi Upaj Mandi Samiti, Shivpuri and its Chief Executive Officer have preferred this appeal Under Order 43, Rule l(u), Civil Procedure Code, against the judgment and decree dated 6-12-1979, passed by Additional District Judge, Shivpuri, in Misc. Appeal No. 10/1979, which was against the judgment and decree dated 18-1-1979, passed by Civil Judge, Class II, Shivpuri, C.S. No. 29-A/1977, whereby the suit of the plaintiffs for declaration and permanent injunction in relation to the recovery of market fee was dismissed.

2. Brief facts leading to this appeal are that the plaintiffs instituted a suit for declaration and permanent injunction against the appellants that the Krishi Upaj Mandi Samiti, Shivpuri (for short, the 'Samiti') has no right or competence to collect and levy the market fee on the allegation that the levy of market fee of Rs. 2,434.24 p. by order dated 22-12-1976 is without jurisdiction, as the agricultural produce Was not purchased in the Mandi nor was Brought for sale. It was averred that the action of the Samiti is not only arbitrary but the order of the Samiti is null and void and the recovery is against the provisions of law. The appellants filed their written statement and raised several pleas including bar of jurisdiction of the Civil Court in view of Section 61 of the Madhya Pradesh Krishi Upaj Mandi Adhiniyam, 1973 (for short, the 'Adhiniyam'). The trial Court in view of Section 61 held that the dispute between the plaintiffs and the defendants is in relation to any sum due, which, in the present case, relates to fees, and the question arises whether a sum is due under Sub-section (1) of Section 61, which ought to have been referred to the Director, whose decision after making an enquiry under Sub-section (2) of Section 61 is final which cannot be called in question in any Court of law; as a specific machinery and a special forum are provided for dealing with the question of liability of a person in the matter of payment of fee, the jurisdiction of the Civil Court is barred and, as such, the suit was dismissed. The plaintiffs preferred an appeal. The lower appellate Court held that as the basic right of recovery has been challenged and that the defendants have taken part in the proceedings, the suit cannot be dismissed; hence, the suit was remitted to the trial Court for trying the same on merits. Against this order of remand the appellants have come up in appeal.

3. Shri K. N. Gupta, learned counsel for the appellants, referred to the Scheme of the Adhiniyam and Section 61 and placing reliance on a Single Bench decision of this Court in Krishi Upaj Mandi Samiti, Shivpuri v. Shri Govind Oil Mills, Shivpuri, 1980 MPLJ 687 1981JLJ 313, contended that the lower appellate Court committed an illegality in holding that the Civil Court has jurisdiction to entertain the suit.

4. Shri K. K. Lahoti, learned counsel for the plaintiffs/respondents, contended that it was not merely a dispute or a question in relation to the recovery of tax or refund of tax, but the jurisdiction of the Samiti was challenged to recover the market fee; the action was wholly ultra vires, arbitrary and the order of recovery is null and void. Moreover, there is no specific exclusion in the Adhiniyam of the Civil Court's jurisdiction; therefore, the lower appellate Court rightly held that the Civil Court has jurisdiction to entertain the suit. Learned counsel placed reliance on Dhulabhai v. State of M. P., 1969 MPLJ 1 (SC) AIR 1969 SC 78; Firm I. S. Chetty and Sons v. State of A. P., AIR 1964 SC 322; Goyindprasad v. Pawankumar, AIR 1952 Nag. 278 and Tilakraj Taneja v. State of M. P., 1979 (II) MPWN 255.

5. It is true that in case of Shri Govind Oil Mills (supra), J. P. Bajpai, J., after considering the Scheme, the provisions of Section 61 of the Act and Rules 56(4) and 57 of the M. P. Agricultural Produce Market Rules, 1968, has held that if a party questions its liability towards payment of market fees, it has to refer