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1992 DIGILAW 485 (PAT)

Saraogi Paper Mills v. State of Bihar

1992-12-21

G.S.SHARMA, S.HODA

body1992
Order In this writ application under Articles 226 and 227 of the Constitution of India, the petitioner has prayed that the respondents Agriculture Produce Market Committees are not entitled to levy and to collect market fee on the sale and purchase of paddy straw (Dhan Ka Puwal) under the provisions of the Bihar Agricultural Produce Markets Act, 1960 (hereinafter referred to as the Act) as the same have not been notified in terms of section 3 of the Act and rules framed therein. 2. The petitioner is a partnership firm having its factory and place of business in Dinapur, Kishanganj Town and its place of business is situated within the jurisdiction of the respondent nos. 1 to 3. The petitioner firm inter alia bas establisbed a factory for manufacturing the craft papers in Kishanganj town and is using paddy straw (Dhan Ka Puwal) in its factory as the raw material for manufacturing craft papers. To the best of the knowledge of the petitioner firm the State Government bas not issued any notification in the official Gazette under section 3 and/or section 4 of the Act with respect to the paddy straw for the respondent Market Committee. In the Schedule of the Act paddy straw was not incorporated and the State Government has also not added the same in the Schedule of the Act by publishing notification in the Official Gazette as required under the Act. 3. The State Government issued notification dated 29.19.1984 bearing S. O. 1187 under section 4 of the Act for 108 market committees including the respondent Market Committees for the purpose of regularisation of sale, purchase, storage and processing of agricultural Produce only mentioned in Schedule of the Act. By memo no. 14841 dated 27.10.1967 the State Government bad added paddy straw in the Schedule of the Act but the same bas not been published in the official Gazette as per requirement of section 39 of the. Act till date. It has been stated that as the paddy straw has not been added in schedule of the Act by publication in the official Gazette the same is not a schedule item. Therefore, no fee can be realised on its transaction. Paddy straw has not been notified as agricultural produce in terms of sections 3 and 4 of the Act and hence no fee can be realised on its transaction. 4. Therefore, no fee can be realised on its transaction. Paddy straw has not been notified as agricultural produce in terms of sections 3 and 4 of the Act and hence no fee can be realised on its transaction. 4. No counter affidavit has been filed in this case inspite of the opportunity given to the respondent. 5. Mr. Ramesh Kumar Agrawal, the counsel for the petitioner, in order to substantiate his arguments, has referred to several provisions of the Act. Section 2 (1) (a) of the Act defines the terms "agricultural produce" as the produce specified in the schedule of the Act. Section 3 empowers the State Government to declare its intention by notification of exercising control over purchase, sale, storage and the processing of agricultural produce in such area as may be specified by notifying such objections/suggestion within the period of not less than two months and it reads as follows: "(1) Notwithstanding anything to the contrary contained in any other Act for the time being in force, the State Government may, be notification, declare its intention of regulating the purchase sale, storage and processing of such agricultural produce and in such area, as may be specified in the notification. (2) A notification under sub-section (1) shall state that any objection or suggestion which may be received by the State Government within "period of not less than two months to be specified in the notification, shall be considered by the State Government." 6. Section 4 provide for declaration of market area after consideration of objections and suggestions received and runs as under :- (1) After the expiry of the period specified in the notification issued under section 3 and after considering such objections and suggestions as may be received before such expiry and after holding such enquiry as it may consider necessary, the State Government may by notifications, declare the area specified in the notification under section 3 or any porting thereof to be a market area for the puposes of this Act, in respect of all or any of the kinds or agricultural produce specified in the notification under section 3. (3) Subject to the provisions of section 3, the State Government may at any time, by notification exclude from a market area any areas or any agricultural produce specified therein or include in any market area any area or agricultural produce included in a notification issued under subsection (1). 7. Under section 5 of the Act by notification the details of principal market yard and the sub-market yard are to be declared. Section 6 provides for establishment of market committee by notification. Section 27 gives power to the market committee to law and collect fees on the agricultural produce brought or sold in market area at a given rate. Section 39 gives the power to the State Government to amend the Schedule of the Act by notification. 8. Relying on the aforesaid provisions, the counsel has submitted only on such agricultural produce which are included in schedule of the Act. The paddy straw was neither included in the Schedule of the Act, nor memo no. 14841 dated 27.10.1976 was published in the Official Gazette as required under section 39 of the Act and as such, paddy straw cannot b said to have been included in the schedule. 9. The Advocate General. appearing on behalf of the respondents relied on Annexure 2 of the writ application submitted that in view of the Bihar Agricultural Produce Market (Validation) Act, 1982 thereinafter referred to as the 'Validation Act') no further 'publication in the Official Gazette is required and by virtue of the said Validation Act paddy straw would be deemed to have been included in the Schedule and as such, market fee is payable on the sale, and purchase of the paddy straw, Section 2 of the Validation Act reads as follows :- "Notwithstanding the non-publication of the notification nos. 14841 dated the 27th October 1967 in the Bihar Gazette and 2028, dated the 12th February 1971. in the Bihar Gazette in time, the orders made for regulating the market with respect to such items, and market fees levied, collected or to be levied and collected shall not be illegal and invalid merely on the ground, and notwithstanding' anything contained to the contrary in any judgment, decree or order of any Court the Schedule of notification nos. in the Bihar Gazette in time, the orders made for regulating the market with respect to such items, and market fees levied, collected or to be levied and collected shall not be illegal and invalid merely on the ground, and notwithstanding' anything contained to the contrary in any judgment, decree or order of any Court the Schedule of notification nos. 14841, dated the 27th October, 1967 and 2028, dated the 12th February 1972 shall always be deemed to be valid and effective and all levies made or market fees collected shall be deemed to have been validly lea Used. taken, done and issued as if the provisions of this Act were in force at all material times when such realisation was made, action taken, things done and orders issued and no suit or proceeding shall be maintainable for refund of the levies made on fee collected or actions taken under those notifications." 10. Unless the agricultural produce is notified and included in Schedule in accordance with law no court (sic) fee can be levied on the said agricultural produce. In the present case, nothing has been brought on the record that the procedure laid down in Sections 3,4(3) and 39 of the Act have been observed in respect of paddy straw. 11. In the case of M/s Sree Bihariji Mills Ltd and others v. State of Bihar and others reported in AIR 1983 Patna 311 : 1983 PLJR 408 this very question in issue in respect of SUJJI and MAIDA and the provisions of the provisions of the Validation Act which was at the stage of the Ordinance being Ordinance no. 35 of 1982 was noticed and the Division Bench held as follows :- "7. The question as to when the schedule to the Act got amended appears to be simple. The power in this regard has to be exercised under sec. 39 only by a notification. The expression 'notification' bas been defined by S. 4 (36) of the Bihar and Orissa General Clauses Act, 1917 to mean "a notification in the Gazette'." Sections 28 of the General Clauses Act provides that where in any Bihar Act, it is directed that any notification shall be issued, such notification shall be deemed to be duly made if it is published in the Gazette unless the Act otherwise provides. Sec. 39 is not suggesting any alternative method and, therefore, it must be held that until the order was published in the Bihar Gazette, the Schedule was not amended. The lenguage of Section 39 does not suggest that the schedule could be amended with retrospective effect by a later notification. I, therefore, bold that the schedule stood amended on 15th May, 1980 when the order in this regard dt. 12th Aug. 1972 was published in the Bihar Gazette and not earlier. 9. It was contended on behalf of the respondents that items applicable to the Market Committee automatically stood amended by inclusion of Sujji and Maida with effect from the date on which the schedule of the Act stood amended. There does not appear to be any merit in this argument. either, Sect. 4 (3) of the Act permiting the amendment in the list of Schedule of agricultural produce has been subjected to the provisions of Sec. 3 which enjoins a notification to be issued declaring the inten of the State Government in this regardtion Sub-sec, (2) of Section 3 makes it obligatory for the notification to state that any objection or suggestion to the proposed step would be considered by the Government. Section 4 reiterates the duty of considering the objections and suggestions received from public. Holding of an enquiry in this connection is also contemplated by the section. valuable right has therefore, been granted by the Statute to the' traders, agriculturists and other effected persons to offer objections and suggestions which have to be decided on merits before taking final decision, admittedly, no notification under S. 3 was issued with reference to Atta, Sujji and Maida. By holding that the list of agricultural produce in regard to the Market Committee stood amended without resorting to the aforesaid procedure, the right of raising objection by concerned persons bestowed by the Act would stand forfeited and this cannot be allowed. The observations of the Supreme Court in Govind Lal v. Agricultural Produce Market Committee ( AIR 1976 SC 263 ) relied on by Mr. Shreenath Singh, learned counsel for the petitioners supports this view. 10. The learned counsel for the respondents alternatively contended that in view of the Bihar Ordinance No. 35 of 1982 referred to earlier, the petitioner's case must be rejected and the writ application dismissed. Shreenath Singh, learned counsel for the petitioners supports this view. 10. The learned counsel for the respondents alternatively contended that in view of the Bihar Ordinance No. 35 of 1982 referred to earlier, the petitioner's case must be rejected and the writ application dismissed. The relevant portion of the Ordinance has been quoted in paragraph 6 above. It may be noted that Sec. 3, 4 and 39 or any other provision including the schedule of the Act has not been amended and the right of objection of the concerned members of the public to addition of items of produce has not been disturbed. It must, therefore, be held that unless the necessary notifications mentioned and discussed above are issued, the objections filed to the proposed modification of the Schedule are considered and a final decision in this regard is taken thereafter, the lists of agricultural produce in regard to the particular market committees cannot be deemed to have been amended by reason of the Ordinance. The Market Committee are therefore not entitled to the fee on the disputed items. The demands in this respect cannot be upheld." 12. In view of the provisions of the Act noticed above and the decision of this Court as mentioned above, the Market Committees are, therefore, not entitled to the fees on the paddy straw and the demand in this respect cannot be upheld. 13. In the result, this writ application is allowed and the respondent are directed not to demand or collect any fee on the paddy straw.