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1984 DIGILAW 162 (PAT)

Bishmillah Rice Mills v. State of Bihar

1984-04-20

S.SHAMSUL HASAN, UDAY SINHA

body1984
JUDGMENT : Uday Sinha and Shamsul Hasan, JJ.- These two applications under Articles 226 and 227 of the Constitution of India have been heard together as the points arising for consideration are common and same in both the applications. As the facts are identical this JUDGMENT : will, therefore, govern both the applications. Both these applications are for quashing ORDER :s contained in Annexures 5 and 6 to these applications. Annexure 5 is assessment ORDER :in regard to the sale by the petitioner within Chanpatia Market area, Annexure 6 is revisional ORDER :passed by the Chairman of the Bihar State Agricultural Marketing Board, Patna (Respondent no. 2) rejecting the petitioner's revision application against the ORDER :passed in Annexure 5 to these applications. 2. Learned counsel for the petitioners could not assail the assessment in respect of the sale of paddy and rice for the period 12.10.1976 to 31.3.1977. The grievance of the petitioner in regard to the assessment for the subsequent period from 1.4.1977 to 31.3.1978 has substance and must be conceded. 3. Both these applications are concerned with the assessment during the period 12.10.1976 to 31.3.1978. In terms of Section 27-A (5) of the Bihar Agricultural Produce Markets Act, 1960 the Assessment Committee of the Agricultural Markets Committee is required to issue notice in Form 'C'. Notice in that form was issued and served upon the petitioner for the period from 12.10.1976 to 31.10.1977. For the subsequent period, i. e. from 1.11.1977 to 31.3.1978 it is not disputed that no notice in terms of Form 'C' was served upon the petitioner. Since the petitioner had notice of the assessment in respect of the period 12.10.1976 to 31.3.1977 the petitioner cannot have any grievance in regard to the best JUDGMENT : assessment. In regard to the period from 1.4.1977 to 31.3.1978 also the petitioner had notice in Form-C. The difficulty, however, is that the Assessment Committee has assessed the petitioner's dealings in paddy and rice in a composite manner for the period from 1.4.1977 to 31.3.1978. It is thus obvious that the notice was not issued in Form 'C' for the whole of this period, although the notice was served upon the petitioner. Since the assessment was composite for the two periods it is difficult to hold that the petitioner was served with notice as required by law. It is thus obvious that the notice was not issued in Form 'C' for the whole of this period, although the notice was served upon the petitioner. Since the assessment was composite for the two periods it is difficult to hold that the petitioner was served with notice as required by law. In our view, therefore, the assessment for the period from 1.4.1977 to 31.3.1978 was illegal and did not have sanction of law. The assessment for this period must, therefore, be quashed. The assessment Committee will now assess the assessee afresh for the period from 1.4.1977 to 31.3.1978. 4. Learned counsel for the petitioner has contended that in assessing the dealings of the petitioner the Assessment Sub-committee rejected the sales of 910 quintals of rice valued at Rs. 1,15,570/-. The submission is that these were not sales but were delivery to the State Government as levy in terms of Bihar Rice and Paddy Procurement ORDER :. The assessment of this category of sale is open to objection. In this connection it has been laid down by the Supreme Court in the case of M/s Chhitter Mal Narain Das v. Commissioner of Sales Tax (AIR 1970 Supreme Court 2000) that the delivery of wheat under the Levy ORDER :is not sale. The Assessment Sub-Committee will, therefore, consider the propriety of excluding the sale of 910 quintals of rice. In regard to the assessment period from 12.10.1976 to 31.3.1977 also the Assessment Committee will consider the desirability of deleting the delivery of paddy or rice under the Bihar Rice and Paddy Procurement ORDER :from the assessment year. The question of levy of penalty will also be considered afresh, as the assessment ORDER :has to be quashed in the terms indicated above. 5. In the circumstances mentioned above, both the applications are allowed, the ORDER :s of assessment are quashed to the extent indicated above and the case is now remanded back to the Market Assessment Sub-Committee which will assess the petitioner's dealings for the period from 1.4.1977 to 31.3.1978. In the circumstances of the case, however, there will be no ORDER :as to costs. Application allowed.