JUDGMENT R. M. Sahai, J. - Various producers and manufacturers of gur and khandsari sugar have challenged validity of U.P. Ordinance No. 4 of 1987 adding explanation to Section 17 (iii) of U.P. Krishi Utpadan Mandi Adhiniyam, 1964 (hereinafter referred as the Act) as arbitrary, illegal, and violative of the right to carry on business. 2. What is the steppe of this explanation, what mischief it attempts to remedy and how far it has succeeded shall to adverted after noticing the background, in brief, in which it has been issued. In 1984 a Circular was issued by the Mandi Parishad constituted under the Act to charge market fee on transactions of sale and purchase in the Market Area in accordance with rule 66 of the Rules framed, under the Act, The explanation to the Rule created a fiction by providing that Sale of specified agricultural produce shall be deemed to have been effected in market area if it has been weighed or measured by a licencee in the market yard for the purposes of sale, notwithstanding the fact that the proprietorship of such agricultural produce has by reason of such sale passed to a person in a place out side the market yard, in Civil Misc. Writ No. 2004 of 1985, decided on 20th May, 1985 it was held that explanation to rule 66 was ultra vires. In 1986 another circular was issued by the Parisad relating to issue of Gate passes to the traders taking out their goods outside the market area. Clause (7) provided that if the traders to who the gate pass was issued did not produce satisfactory evidence including documents of sales - tax department of sale of goods within 30 days in state and 45 days outside State then it shall be deemed that sale had been made in the market area from which the Gate pass was issued. Needless to say that if rule making authority could not explain the meaning of sale, or create the fictional sale then the Chairman or the Mandi Parisad could not have done so. Consequently it was struck down by this Bench on 16th April, 1987. When that petition was argued it appears the learned counsel for Mandi Samiti was not aware that an ordinance had already been issued on 31st March, 1987. 3. Consequently it was struck down by this Bench on 16th April, 1987. When that petition was argued it appears the learned counsel for Mandi Samiti was not aware that an ordinance had already been issued on 31st March, 1987. 3. The objective of the ordinance obviously is to remora the lacuna pointed out by this court in Civil Misc. Writ Petition No. 2004 of 1985. But the purpose according to learned counsel for Mandi Samiti based on instruction given by a letter from Parishad is to check evasion. In some of the petitions the issuance of ordinance has been challenged for violation of Article 213 of Constitution but for reason which shall be set out later it was not considered necessary to call for any counter affidavit from the State and decide if circumstances existed justifying issuing of Ordinance after nearly two years. 4. Market fee in the Act is levied under Section 17 of the Act on transactions on sale and purchases of specified agricultural produce in the market area. The sale is defined by clause (r) of Section 3 as including barter or deposit of goods by way of pledge or as security for the amount received as advance. The Act thus does not define sale. It has, therefore, to be understood, in its (sic) G. Dunkleey and Company (AIR 1959 SC. 560), the Hon'ble Court had occasion to consider both the popular and legal meaning of word sale. It was held, now in popular sense, a sale is said to take place when the bargain is settled between parties though property in the goods may not pass at that stage. and the legal sense of the word sale was explained. Thus, according to law both of England and India, in order to constitute sale it is necessary that there should be an agreement between the parties for the purpose of transferring title to goods which of course presuppose capacity to contract that it must be supported by money consideration, and that as a result of the transaction of property must actually pass in the goods. Unless all these elements are present, there can be no sale. It was re-Affirmed in Vishnu Agencies v. Commercial Tax Officer (AIR. 1978 SC. 449). 5. Sale in the Act has also to be understood in the sense in which it has been explained in these decisions. Unless all these elements are present, there can be no sale. It was re-Affirmed in Vishnu Agencies v. Commercial Tax Officer (AIR. 1978 SC. 449). 5. Sale in the Act has also to be understood in the sense in which it has been explained in these decisions. Section 17 (iii) alongwith the Explanation added by Ordinance is extracted below s (iii) levy and collect: (a) such fee as may be prescribed for the issue or renewal of licences, and (b) Market - fee, which shall be payable on transaction of sale of specified agricultural produce in the market area at such rates, being not less than one per centum and not more than one and half 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 s (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 ; Explanation : for the purpose of clause (iii), unless the contrary is proved, any specified agricultural produced taken or proposed to be taken out of a market area by or on behalf of a licenced 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." 6. If the Explanation is understood as widening meaning sale and including in its ambit any and every Government of goods outside the market area and sold either in State or outside State irrespective of the fact whether it was moving in pursuance of an agreement of sale as argued by learned counsel for Mandi Samiti then it runs the risk of being ultra-vires the Legislative power under entry 28 of Second list of Vll Schedule. The learned counsel went to the length of arguing that even if the goods were moving out of market area for sale at Calcutta and Bombay it could be exigible to market - fee under the Explanation. It was suggested that barring those exceptional case, where the goods were taken say for charitable distribution every movement of goods either for actual or intended sale has to be deemed sale. Learned counsel submitted that similar Explanation was added in Bihar Act. Its validity was up held by Hon'ble Supreme Court in State of Bihar v. M/S Ashok Industries ( AIR 1987 SC. 838 ). Therefore, this Court was precluded from examining validity of the Explanation added by the Ordinance. The learned counsel urged on strength of certain observations in the judgment, for instance. But this presumption is rebuttable because the Explanation gives the affected party an opportunity to satisfy the assessing authorities that there was neither buying nor selling in a given case, and that when goods are transferred from the principal to his selling agent or are that in a market a are or outside the market area, a sale takes place ; that if there was element of buying or selling at any point of time in future in any place in side or outside the market area or even State it be came sale by virtue of Explanation. We must confess our inability to accept this argument. The sentences picked up by learned counsel have been pressed in service without appreciating their context. If the argument of learned counsel is correct then the expression unless contrary is proved looses all significance. If mere movement of goods out of the market area is sale then the Ordinance has unnecessarily used the words unless the contrary is proved and that is not the import of the decision in Ashok Agencies case. If the argument of learned counsel is correct then the expression unless contrary is proved looses all significance. If mere movement of goods out of the market area is sale then the Ordinance has unnecessarily used the words unless the contrary is proved and that is not the import of the decision in Ashok Agencies case. Even there the Hon'ble court felt difficulty in respect of Explanation added to sale which purported to create deemed sale where the goods were transferred from Principal to the Selling Agent or from Arhatia, either inside the market area or outside market area. The Hon'ble court expressed its doubt if the sale was given such wide meaning whether it could be upheld or not but it did not examine the validity because the two Explanations could be permitted to stand by construing them in such a manner that the purpose of enactment was achieved. We have no hesitation, therefore, in rejecting the submission of learned counsel for Mandi Samiti. it ignores the very purpose of Explanation which is manifest from the use of expression, unless the contrary is proved. In M/S Sondhi Transport Co. v. State (AIR. 1986 SC. 1099) it was held, "In our opinion a statutory provision which creates a rebuttable a presumption as regards the proof of a set of circumstance which would make a transaction liable to tax with the object of preventing evasion of the tax cannot be considered as conferring on the authority concerned the power to levy a tax which the Legislature cannot other wise levy." 7. In S. Sundram v. P. P. Palliboremion (AIR. 1985 SC 582), it was held, "It is now well settled that an explanation added to a statutory provision is not a substantive provision in any senese of the. term, but as the plain meaning of the word itself shows it is merely meant to explain or clarify certain ambiguities which may have crept in the statutory provision." 8. From bare perusal of the Explanation and the back ground in which it has been enacted it is apparent that the effort was to check evasion or avoidance of a payment of market fee on transactions of sale or purchase of specified agricultural produce by placing the 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 widen or alter the meaning of sale. If the person concerned fails to discharge the burden on him by the explanation then it, shall be deemed that the goods have been sold within such area. To put it conversely if the person concerned proves that the goods are being taken out for sale outside the market area then he shall have discharged his burden. It was held in Sondhi Transport Co, (supra). But when it (presumption) is rebuttable it only points out the party on whom the burden lies the duty of going for ward with evidence on the fact presumed, and when the party has produced evidence fairly and reasonable tendency to show that the ceil fact is not as presumed the purpose of presumption over. 9. But this exercise or the burden has to be discharged by the trader at what point of time When the goods are being taken out or at some other point. For that it is necessary to mention that goods are sold either directly or through Commission agent. Where the sale is direct either in the Market or Sub-Market yard or the goods move outside the market area in pursuance of sale or agreement of sale then they are exigible to fee of under the Act. That cannot be disputed. But the other common practice prevailing is to sell the goods through Commission agents. They may have their place of business outside the market area or even outside the State. When the goods are sent to such agent they are not sale. They may be meant fee sale. But under section 15 (iii) what is exigible to fee is transaction of sale and purchase. To take out such goods the traders need gate pass from the Mandi Samiti, otherwise it may lead to inference that the goods have been clandestinely brought out of market area. Therefore, according to Mandi Samiti it is at this point that the trader must discharge the burden. Letters of some of the Secretaries of Samiti have been attached to show that they insist that in view of explanation no gate pass can be issued unless market fee is paid. and that has been the argument of learned counsel for Mandi Samiti. Letters of some of the Secretaries of Samiti have been attached to show that they insist that in view of explanation no gate pass can be issued unless market fee is paid. and that has been the argument of learned counsel for Mandi Samiti. It was urged that the goods taken out for sale through commission agent or even otherwise being meant for sale the fee was leviable. If this be correct then evidence or no evidence the mere taking out of foods becomes transaction of sale. Such wide sweep of explanation as explained earlier cannot be accepted. This difficulty arises because unfortunately there is no machinery provision in the Act. It is a defect in the Act which should have been set right long ago, because it is trite that provisions of fiscal statute in absence of machinery provision are not liable to be enforced. In Ram Chandra Kailash Kumar and Co. v. State of U.P., AIR 1980 SC 1124 , the Hon'ble Court did not invalidate the levy for lack of machinery provision in the hope of that steps shall be taken to evolve a proper forum immediately. But the hope has not materialised till how fore reasons best known to the Opp. parties but that cannot be avoided now otherwise the working of Explanation shall become unworkable. The reason is that the burden to prove that the goods have not been sold in the market area has to be a time latter than when the goods are taken out. When the goods are moving out of market area a trader can only produce the documents disclosing the name of commission agent, the place of his business, the volume of goods, the truck number, etc. to demonstrate that they are not meant for sale, Prima-facie this disclosure has to be accepted as correct. But it may be that it was subserve and a manoevening to avoid payment of market fee. To check this the expiation intervenes The burden can be discharge by producing evidence that the goods which had been taken out had in fact been sold out side the market area. If than evidence is furnished then Section 17 (iii) becomes inoperative. But if the trader fails lo produce evidence then the Mandi Samiti shall be entitled by virtue of explanation to demand market fee on the goods which had been taken out. If than evidence is furnished then Section 17 (iii) becomes inoperative. But if the trader fails lo produce evidence then the Mandi Samiti shall be entitled by virtue of explanation to demand market fee on the goods which had been taken out. That is how the Explanation to the Charging section has been construed in Ashok Industries (supra) by the Hon'ble Court by directing marketing Committee to make assessment of fee only after giving opportunity to traders to show cause as laid down in Section 27 of the Act. To allow any doubt the Bihar Agricultural Markets Act, 1960 was sent for which t shows that Section 27-A is a machinery provision entitling a trader to file its return showing purchase and sale and empowering the Committee to assess the fee. 10. What should be done that On the one hand are traders who if the construction of the Explanation added by the orders by Secretaries or as argued by learned counsel for Mandi Samiti is accepted may be subjected to untold hardship and misery as they may not be liable to pay only market fee but once mere movement of goods is deemed to be sale by Statute then they may be liable for payment sales tax as well. During arguments it was suggested that it was device to bring in those transactions and levy sale - tax on them which otherwise were stock transfer or meant for sale by Commission agents. On the other hand is the anxiety of State to avoid any evasion of market fee. 11. For this purpose we are constrained to observe that due to apathy of State Government in framing the necessary rules and making provision for assessment etc. this Court considers it appropriate to issue following directions to protect the interest of traders and safeguard payment of fee in accordance with law. (1) Every trader proposing to take out the goods manufactured or produced in the market area shad 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. (1) Every trader proposing to take out the goods manufactured or produced in the market area shad 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 weeks 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 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. 12. Since this construction of Explanation sub-serves the general interest consider it unnecessary to examine the larger issues raised by petitioners that the explanation violates Article 19 of that it is hit by Article 301 or 304 (d) or the circumstances did not exist for issue of the Ordinance under Article 213. 13. With these directions the petitions are disposed of.