JUDGMENT Brishketu Saran Sinha, J. The prayer in this writ application under Articles 226 and 227 of the Constitution is to quash Annexures 1' and 2' appended to it. Annexure 1' is an order of the Assessment Sub Committee dated 26th July, 1983, and Annexure 2' is the consequential demand notice dated 28th July, 1983, for payment. 2. Messrs Chhabirani Agro Industrial Enterprises Limited is a public limited company and manufactures Vanaspati and has its factory at Durgawati in the district of Rohtas. The head office is at Calcutta, Durgawati, where the petitioner's factory is situated, is included within the local limits of the Agricultural Produce Market Committee, Mohania, district Rohtas (respondent no. 1). The Vanaspati manufactured by the company is sold either at Durgawati within the market area of respondent no. 1 or is sold through its commission agents located at various places, both in the State of Bihar as well as outside the State. The sales effected through the commission agents are known as 'consignment sales. In cases of consignment sales the company despatches Vanaspati to its commission agents who sell the same at their places of business and remit the sale proceeds after adjusting their advances, securities and commission. For the period 1982-83 the total liability of the market fee of the company, according to, its books of account was Rs. 2,81,418,67 paise which was paid. During this period the company had sold Vanaspati on consignment basis through it commission agents within the State of Bihar as well as outside it. The sales were to the tune of Rs. 3,36,827,40.00 and since these transactions did not represent sale and purchase within the local limits of the respondent, Market Committee, no fee was leviable on such transactions and, accordingly, no market fee was collected nor was to be paid, In pursuance of a notice of assessment issued to the company, all books of account and documents were produced before the Assessment Sub Committee which were duly verified and no discrepancy or irregularities were found, still according to the petitioner-company, the Assessment Sub Committee illegally and arbitrarily subjected the petitioner-company to a fee liability of Rs. 3,36,827.40 paise on the aforesaid consignment sales and also mechanically, without giving any finding with respect to mens rea or guilty intention, imposed 100 percent penalty to the tune of the same amount and thus created a total demand of Rs. 3,36,827.40 paise on the aforesaid consignment sales and also mechanically, without giving any finding with respect to mens rea or guilty intention, imposed 100 percent penalty to the tune of the same amount and thus created a total demand of Rs. 6,73,654.80 paise, A copy of this assessment order is Annexure 1'. On the basis of this assessment the demand has been made, a copy of which is Annexure 2'. 3. In the writ petition it has been urged that rule 88 of the Bihar Agricultural Produce Market Rules, 1975, is ultra vires the rule making power of the State Government as it is inconsistent with the mandatory provisions of section 27A (i) of the Bihar Agricultural Produce Market Act, 1960 (hereinafter referred to as 'the Act'). This plea has been raised on the basis that since the assessment has been made by two members only of the Assessment Sub Committee, the assessment is bad. It has further been urged in the petition that sales outside the market committee concerned are not liable to market fee. The extension of the meaning of 'sale' by inserting an explanation 2(p) (i) by the Bihar Agricultural-Produce Markets (Amendment) Act, 1983, has also been challenged. The assessment has been challenged on some other grounds as well. 4. A counter affidavit has been filed on behalf of the respondents in which apart from other statements made, it has been stated that in view of the amendment to section 9(5) of the Act, provision has been made for authorising a person to exercise all powers of the Chairman, Vice Chairman and members of the Market Committee on the expiry of their term of three years; and, as in the instant case, the term of the Agricultural Produce Market Committee, respondent no. 1 expired, the state Government authorised and empowered the Sub-divisional Officer, Bhabua, to exercise all powers and discharge all functions and duties of the market committee. Copy of this notification has been annexed as Annexure 'A’. That copy, as appended, was an incorrect one, and during the course of argument is correct copy was handed over. It is a notification bearing No. S. No. 961 dated 12th June, 1982 of the Bihar Gazette in which under serial no. 5 the person nominated with respect to Mohania Agricultural Produce Market Committee is Shri Ramchandra Chaudhary, Sub-divisional Officer, Bhabua (Rohtas). It is a notification bearing No. S. No. 961 dated 12th June, 1982 of the Bihar Gazette in which under serial no. 5 the person nominated with respect to Mohania Agricultural Produce Market Committee is Shri Ramchandra Chaudhary, Sub-divisional Officer, Bhabua (Rohtas). It has been stated that in the instant case the assessment has been done by the successor-in-office of the Sub-divisional Officer, Bhabua. It has further been stated in paragraph 16 of the counter affidavit that in exercise of the powers conferred on him by the aforesaid notification, the Sub-divisional Officer, Bhabua, made the assessment on 26th July, 1983, a copy of which is Annexure 1'. 5. In view of the counter affidavit filed on behalf of the respondents, Mr. Shree Nath Singh, appearing for the petitioner, has submitted that in the instant case it is not necessary for him to make subroissio'1s on the basis of the writ petition and he would confine himself to make submissions on the basis of the counter affidavit filed by the respondents. 6. The amended section 9(5) reads as follows : ^^9¼5½&bl vf/kfu;e es vFkok micfU/kr fLFkfr ds flok;] fuokZfpr cktkj lfefr ds v/;{k vkSj mik/;{k lfgr mlds lnL;ks dh inkof/k /kkjk 13 ds v/khu lnL;ks ds :i es muds uke izdkf’kr gksus dh rkfj[k ls 3 o”kZ dk gksxk vkSj 3 o”kZ dh vof/k lekIr gksus ij vkSj blds ckn ;fn N% eghus ds Hkhrj fuokZpu ugh gks ik, rks lfefr lekIr gks tk,xkA vkSj bl vf/kfu;e rFkk blds v/khu cuk, x, fu;eks ds micU/kks ds v/khu lfefr dh lHkh ‘kfDr;ks ,os drZO; tSls O;fDr n~okjk iz;qDr rFkk fu”ikfnr fd, tk,xsa ftls jkT; ljdkj uke funsZf’kr djs vkSj ,sls uke funsZ’ku dh rkjh[k ds N% eghus ds Hkhrj u;h cktkj lfefr dk xBu dj fy;k tk;xkA ijUrq ;fn fdlh vko’;drk ds dkj.k N% eghus ds Hkhrj fuokZpu ugh gks lds] rks jkT; ljdkj fuokZpu vof/k vkSj N% eghus ds fy, c<k ldsxhA^^ From the above it is clear that the prescribed authority will exercise/all the power and perform all the duties of the Market Committee in regard to the provisions of the Act, or the Rules framed thereunder. It is obvious from the above provision that if there is no market committee in existence because of the efflux of time, then under a 'notification under section 9(5) - issued by the State Government, the prescribed authority will discharge the functions of the market committee. Under section 27 A the market committee has to appoint an assessment Sub Committee which comprises of the Chairman, the Vice Chairman and the Secretary of the market committee. Therefore, if the market committee itself is not in existence, the assessment sub committee, as contemplated under section 27 A of the Act', also becomes non-existent. 7. In the instant case Mr. Shree Nath Singh has submitted that as on the date of assessment there was no assessment sub committee as contemplated under section 27A, the impugned assessment by the sub committee is illegal. He has further submitted that the averment in the counter affidavit that the assessment has been made by the prescribed authority in terms of the notification in the Bihar Gazette under section 9(5) of the Act, cannot be sustained inasmuch as it is not by the prescribed authority. 8. The impugned assessment (Annexure 1' ) has been signed by two persons, namely, Shri N. K. Sinha, Chairman, Agricultural Produce Market Committee, Mohania, and Shri Sadhu Singh, Secretary of the aforesaid" Marht Committee. In paragraph 3 of the assessment order it has been said that certain facts on behalf of the Company were urged before the Assessment Sub Committee and the said committee considered those matter. In conclusion in the aforesaid paragraph, it has further been stated that on a consideration of the materials, the Assessment Sub Committee was of the view that the following fee was payable and consequential penalty was also leviable. It is obvious, therefore, that the assessment was made by the Sub Committee and not by the person prescribed in terms of the aforesaid notification. 9. In a Bench decision of this Court in C.W.J.C. No. 217 of 1983 (Ramautar Chaudhary) v. The Managing Director, Bihar Agricultural Marketing Board, Patna and others), decided on 10th January, 1984, it has been held, that where the tenor of the assessment order shows that the assessment has been made by a Sub Committee when the market committee itself is not in existence, then the assessment has been made by unauthorised person. In the instant case the assessment has been made by the person prescribed under the aforesaid notification who has, however, signed as the Chairman of the Agricultural Produce Market Committee as also by the Secretary of that Committee. It is obvious, therefore, that at least Shri Sadhu Singh was an unauthorised person who participated in the assessment, which is the performance of a duty quasi judicial in nature, the consequence of which would be that the order is invalid, having been influenced by an unauthorised person. As held in the aforesaid decision, I have no option but to quash the order of assessment which is Annexure 1' and the consequential demand notice, Annexure 2 with liberty to the proper authorities to pass a fresh order of assessment in accordance with law. 10. In the result, the application is allowed and the impugned order and demand notice, as contained in Annexures 1 and 2 are hereby quashed, but, in the circumstance, there would be no order as to costs. I agree. Application allowed.