Saryug Prasad Sah v. State of Bihar — 1994 DIGILAW 162 (PAT)

JUDGMENT Radha Mohan Prasad, J. As the question of law involved in both these writ petitions were same, they were heard together with the consent of the parties and this common judgment will govern both the cases. C.W.J.C. No. 3722 of 1993. 2. This writ application has been filed on behalf of the petitioners for issuance of a writ in the nature of writ of mandamus or any appropriate order or direction commanding the respondents to collect the market fee of Amarpur Thana Area Bazar through their own agency and to quash the appointment of collection agent, which is being done pursuant to the notice published in the daily Newspaper Hindustan dated 11.3.1993, contained in annexure 2' and notice dated 18.3.1993, contained in annexure 3'. It has also been prayed that the respondents authorities be commanded not to hold any further auction of the aforesaid Bazar besides seeking declaration that appointment of collection agent of the said Bazar through auction dated 29.3.1993 in the teeth of letter dated 28.2.1992, contained in annexure 9' and is highly arbitrary and illegal. 3. In short, the case of the petitioners is that petitioner no. 1 is a licenced trader of Barahat Agricultural Market Committee, petitioner no. 2 is a member of the said Committee, besides petitioner no. 4 being a social worker, petitioners nos. 3 and 4 are farmers. All the aforesaid petitioners claim that they transact and perform their business in Amarpur Thana Area Bazar. According to the petitioners, earlier the market fee of Amarpur Bazar used to be collected by the agent of the Market Board and not through collection-agent appointed through auction of the said Bazar. The petitioners claim that there are more than 50 licenced traders operating, transacting and performing their business in the Amarpur Thana Area Bazar and that the Bazar is a well managed and regulated Bazar and directly linked by pucca road to Barahat Market headquarters. 4. Further case of the petitioners is that the Secretary of the Agricultural Market Barahat, vide letter dated 31.1.93 issued a general notice regarding auction for appointment of collection agents of different Hats/Bazars for the year 1993-94 within their areas of operation. The names of such Hats/Bazars were specified in the notice. A photo copy of the said notice is annexure 1' to this writ petition. The names of such Hats/Bazars were specified in the notice. A photo copy of the said notice is annexure 1' to this writ petition. The auction was to be held on 24.2.1993 at 12 P.M. in the Committee's office. In the said notice name of Amarpur Bazar was not included, but subsequently, vide a notice published in the daily Newspaper Hindustan on 11.3.93 the Secretary of the Committee notified also Amarpur Bazar for auction to be held on 17.3.93 for appointment of collection agent. Later, the said auction was postponed due to unavoidable reasons and the next date for auction fixed was 29.3.93 at 11 A.M. to be held in the office of the S.D.O., Banka. A photo copy of the first notice as well as the second notice have been annexed as annexures 2 and 3 respectively. 5. Petitioner nos. 1 and 4 claim that they along with others gave a representation to the Chairman of the Bihar State Agriculture Market Board (hereinafter referred to as the 'Board') on 21.3.93 requesting him for his intervention and cancelling the auction for appointment of collection agent, besides requesting him to make arrangement for collection of market fee through departmental agency to facilitate reliefs to the farmers, labourers and traders. A photo copy of the said representation is annexure 4' to this writ petition. On the margin of the said writ petition on 22.3.93 the Chairman of the Board directed the S.D.O.-cum-Chairman, Barahat Market Committee to take necessary action on the point highlighted at 'KA' in the said representation. The said S.D.O. by letter dated 25.3.93 sought for necessary direction from the Managing Director of the Board-respondent no. 2 in the light of the direction issued by the Chairman. The petitioner no. 1 reiterated his grievance on 29.3.93 before the S.D.O. and requested for postponement of the action of Amarpur Bazar till some direction is received from respondent no. 2. However, it is stated that in spite of the aforementioned protest, the auction took place on 29.3.93 and the Dak was decided in favour of respondent no. 7, with whom the Bazar was settled for Rs. 4,76,000/- and accordingly respondent no. 7 was appointed collection agent of the said Bazar the validity of which has been challenged in the present writ petition, besides seeking other reliefs, as mentioned above. 6. Counter affidavits have been filed on behalf of respondent nos. 7, with whom the Bazar was settled for Rs. 4,76,000/- and accordingly respondent no. 7 was appointed collection agent of the said Bazar the validity of which has been challenged in the present writ petition, besides seeking other reliefs, as mentioned above. 6. Counter affidavits have been filed on behalf of respondent nos. 4, 5 and 6 as also on behalf of respondent no. 7. Respondent no. 4, 5 and 6 have filed a second counter affidavit also. The petitioners have filed a reply to the said counter affidavit filed on behalf of respondent no. 7. 7. In the first counter affidavit, filed on behalf of respondent no. 7, inter alia, it has been stated that petitioner no. 1 is the licenced trader and petitioner no. 2 is a member of the Committee and he was present in the meeting of the Committee which took decision to appoint an agent to collect market fee, Petitioner nos. 3 and 4 have no concern with the Market yard. It is also stated that since 1965 up to 1991 market fee used to be collected through agent appointed through the process of auction. In the year 1990-91 the turn over was 3,75,000/- whereas, it is stated that in the year 1991-92 and 1992-93 when fee was collected by the Committee through its agent, the turn-over was Rs. 80,000/- and 2 lacs respectively. On consideration of this, the Managing Director took a decision that it should be collected through other agency with which the settlement is made by auction, and accordingly, a meeting of the Board of the Barahat Agricultural Market Committee was convened, which decided that collection of the fee should be made through agent settled by auction whereafter the notice was issued and published in the newspaper inviting tender from the intending persons. At that time nobody including the petitioners raised any objection by moving this Court. The respondent no. 7 offered Rs. 4,76,000/- whereas, by petitioner no. 1 namely Anand Prasad Jain and Binod Kumar Sah only 4,75,000/- was offered and his offer was accepted. After acceptance of the offer, the respondent no. 7 deposited Rs, 2,30,000/- as earnest money and an agreement was also executed with him and he started collecting fee. It is claimed that in the year 1987-88 also the respondent no. 7 was appointed collecting agent and there was no complaint against him. After acceptance of the offer, the respondent no. 7 deposited Rs, 2,30,000/- as earnest money and an agreement was also executed with him and he started collecting fee. It is claimed that in the year 1987-88 also the respondent no. 7 was appointed collecting agent and there was no complaint against him. The further case of respondent no. 7 is that under the agreement he has been given only the power to collect fee in the market area and beyond that he has been given no power. 8. Mr. Bimlendru Mishra, learned Counsel appearing for the petitioners has placed reliance on the letter dated 28.2.92, contained in annexure 9 to the writ petition, according to which, no settlement through auction of such Hat/Bazar should be done, which are directly connected with the Market Committee Headquarters and where transaction and business are quite regularised and well managed and operated by and large, through licenced traders. He referred to the settlement made in paragraph 16 of the writ application wherein, it is stated that Amarpur Thana Area Hat/Bazar exactly conforms to the aforesaid standard and accordingly it has been submitted by him that the impugned appointment of collection agent through auction being arbitrary and illegal, is fit to be quashed. 9. Mr. Mahto, learned Senior Counsel for respondent no. 7, besides raising preliminary objection regarding maintainability of the writ application, as has been raised in the counter affidavit also made submissions on merits. On the point of maintainability he contended that petitioner no. 1 being a licenced trader is in no way concerned with the collection of market fee by the agent in view of the provisions contained in Clauses (2) and (3) of Rule 82 of the Bihar Agricultural Produce Market Rules, 1975 (hereinafter referred to as 'the Rules') framed under section 52 of the Bihar Agricultural Produce Markets Act, 1960 (hereinafter referred to as 'the Act'). In this regard, he referred to Clause (vii) of the Rule, wherein it is mentioned that if any agricultural produce is brought in the market area for the processing or export the trader bringing such produce for processing or export as the case may be, shall make declaration in Form XVIII and shall obtain certificates of exemption from the Market Committee, if necessary. 10. As regards petitioner no. 10. As regards petitioner no. 2, he submitted that he is a member of the Committee and as he was present in the meeting of the Committee, which took the decision to appoint an agent to collect market fee, he is estopped from raising any grievance against the same. So far as petitioner nos. 3 and 4 are concerned, he submitted that as they have no concern with the market yard in the management of the market, they are also not affected parties and thus, they cannot maintain the present writ petition. He also submitted that data of the turn-over of 1990-91 when the collection was made through agent and of the subsequent years when collection was made by the committee through its own agency would show that the decision taken by the Committee to appoint collection agent by auction was just and proper, more so, when clause (v) of Rule 82 itself empowers the Committee to authorise its officers or staff or any other persons to collect market fee directly from the buyer or his agent. 11. Lastly, Mr. Mahto submitted that annexure-9, which has been relied upon by the learned counsel for the petitioner has been further clarified by subsequent circular issued by the Managing Director of the Board, contained in his letter no. 4061 dated 17.7.92 (annexure-A to the second counter affidavit) in which it is stated that on receipt of the report in the Board from its regional officers, which indicated that due to shortage of employees of the Market Committee, the arrangement made by annexure9 for collection of market fee has not been successful, the result of which is that the income, which is expected from a market is not being fetched, which aspect was considered by the Board and on overall examination of the entire matter it has been decided that such markets should be settled which are not regular and arranged and where the agricultural produces are not being regularly dealt by the licenced traders. He also referred to the statements made in paragraphs 5 and 6 of the second counter affidavit, which in extenso are reproduced hereinbelow: "5. He also referred to the statements made in paragraphs 5 and 6 of the second counter affidavit, which in extenso are reproduced hereinbelow: "5. That it is submitted by annexure 9 the restraintment of appointment of collecting agent had been made with the direction that the collecting Agent would not be appointed for collecting market fee for the market which is regular and is located on direct connection from the Committee Head quarters on which the personnel of the Committee could have full surveillance and control over the market and they could be able to check the evasion in the market. The notification did not speak about those markets which are not regular and are not the direct connection from the Committee Head quarters. 6. That the Amarpur Bazar is not located at direct connection from the committee Head quarters and also market is not regular because there is no market yard. It is further relevant to mention that for reaching the Amarpur Bazar the personnel of the Committee has to change buses." 12. Thus he emphasised that the Amarpur Bazar in question does not conform to the requirements as contained in annexure 9 for non-settlement of the same for the purpose of collection of market fee. 13. In reply, Mr. Mishra submitted that it is true that petitioner no. 2 participated in the meeting, in which the decision was taken, but he protested 'against appointment of collection agent for collection of market fee by auction, As regards the submissions on merit, Mr. Mishra in the beginning ventured to submit that the Market Committee has not been vested with the powers to authorize any other person to collect market fee directly by agent. However, in view of the provisions contained in clause (v) of Rule 82 of the Rules, he gave up the said point and placed reliance on annexure 9, read with annexure-A. According to him, the Bazar in question is arranged and regular and it is also directly connected with the Headquarters of the 'Committee by road. Thus, he submitted that according to annexure-A no settlement of this Bazar can be made and the collection of market fee and ground rent has to be done departmentally. Thus, he submitted that according to annexure-A no settlement of this Bazar can be made and the collection of market fee and ground rent has to be done departmentally. In this regard, he referred to paragraph 5 of the writ petition, wherein it is stated that there are more than 50 licenced traders operating, transacting and performing their business in Amarpur Bazar, which is well managed and regulated Bazar and directly linked by pucca road to the Barahat Market Committee Headquarters. 14. He further submitted that in any event, the fact that there are 50 licenced traders operating and transacting business in the Amarpur Bazar has been admitted by respondent nos. 4 and 6 in paragraph 7 of the second counter affidavit, which, according to him, shows that the Bazar in question is syatsmatic/arranged and regular as also the dealing in the said market is regularly done by the licenced traders. As regards the requirement that the Bazar should be directly connected with the Market Committee by road, he however, did not show any material in support of fulfilment of the said condition. 15. In this views of the matter, it is difficult to accept the submissions of Mr. Mishra that the Bazar is question fulfils all the requirements as contained in annexure A for non-settlement of the same with a collecting agent by auction. Accordingly, I do not find any merit in the writ petition and the same is dismissed. C.W.J.C. No. 2982 of 1993. 16. In the second writ petition also prayer has been made for issuance of appropriate writ/ order/direction for quashing the general notification dated 31.1.93 issued from the office of the Secretary, Market Committee, Barahat Banka inviting auction for collecting/ realising the market fee on agricultural produce by the person succeeding in auction. 17. It has been contended by Mr. Ram Kumar Sharma learned senior Counsel appearing for the petitioners that the Secretary of the Committee has no power/right to settle or realise the market fee on the agricultural produce by auction through any individual/ private agency. Thus, it has been submitted by him that the impugned notice is wholly without jurisdiction, illegal and arbitrary and the same is fit to be quashed. He referred to various provisions of the Act namely Section 27, which relates to power to levy fee. Thus, it has been submitted by him that the impugned notice is wholly without jurisdiction, illegal and arbitrary and the same is fit to be quashed. He referred to various provisions of the Act namely Section 27, which relates to power to levy fee. Then he referred to Clauses (3) and (4) of section 31 B of the Act, which provides the power to order production of accounts, register or documents and seizure. He also referred to clause (1) and (2) of section 310 of the Act, which is in relation to powers to stop vehicles etc. 18. In my opinion, from reading of the aforementioned provisions of the Act there is nothing to indicate that the Market Committee does not have the power to settle the market to realise the market fee from agricultural produce through outsiders by auction. 19. On the other hand, Mr. Rajeshwar Prasad, learned Advocate appearing for respondent no. 5, the Secretary of the Board, has submitted that regarding levy and collection of fee, the provision has been made in the Rules framed under section 52 of the Act, In this regard, he referred to clause (v) of Rule 82, which provides that the Market Committee may authorise any of its officers or staff or any other person to collect market fee directly from the buyer or his agent. According to him 'any other person' is quite enough to include even the person, with whom settlement is made by auction for collection of the market fee. On the other hand, however, Mr. Sharma submitted that there is a similar provision in the Motor Vehicles Act and while interpreting the said provision, the Supreme Court in the case of Ishwar Singh vs. State of Rajasthan : AIR 1987 S.C. 628 held as follows: "...A reading of Section 129-A and Section 133-A of the Act together shows that the "other person" referred to in Section 129A of the Act, who may be empowered to discharge the powers under the section only mean an officer of the Government, such as the Motor Vehicles Officer appointed under Section 133-A of the Act or of any other department. It could never have been the intention of the Central Legislature, while enacting Section 129-A and Section 133A of the Act that the powers exercisable under section 128-A of the Act could be conferred on persons who were not officers of the Government. If the Central Legislature intended that such powers could be entrusted to private persons or employees of any statutory Corporation the section would have expressly provided in that regard. Ordinarily, whenever a statute empowers the State Government to appoint persons to administer any of the provisions of the Statute, the person who may be appointed by the State Government under such provision can only be persons appointed in connection with the affairs of the State. In other words they should be employees or officers of the State Government, who are subject to the administrative and disciplinary control of the State Government directly. The powers of search, seizure and detention of vehicles belonging to private parties and of launching prosecutions are incidental to the sovereign powers of the State and they cannot ordinarily be entrusted to private persons unless the statute concerned makes express provisions in that regard. It is a different matter if a private person on his own files and complaint before a magistrate and wishes to establish a criminal charge. In such a case the private person would not be investigating into the crime with the aid of the powers of search, seizure or detention. The Magistrate may, if he so desires direct a police officer to investigate into the allegations and report to him. In order to illustrate the above point reference may be made to Section 43 of the Code of Criminal Procedure, 1973. It provides that any private person may arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence, or proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station. We are of the view that the expression "other person" mentioned in Section 129-A of the Act which has to be read ejusdem generis with the words "any police officer' which precede that expression in Section 129-A of the Act can only refer to an officer of the Government and not to any officer or employees of any statutory Corporation or any other private person. We have a similar provision in section 129 of the Act. That section authorises the State Government to empower any police officer or other person to exercise the powers under that section. Such police officer or other person may, if he has reason to believe that any identification mark carried on a motor vehicle or any licance, permit certificate of registration, certificate of issurance or other document produced to him by the driver or person incharge of a motor vehicle is a false document within the meaning of Section 464 of the Indian Penal Code (45 of 1860), seize the mark or document and call upon the driver or owner of the vehicle to account for his possession of or the presence in the vehicle of such mark or document. That section also provides that any police officer authorised in that behalf by the State Government may, if he has reason to believe that the driver of a motor vehicle who is charged with any offence under the Act may abscond or otherwise avoid the service of a summons, seize any licence held by such driver and forward it to the court taking cognizance of the offence and the said Court shall on the first appearance of such driver before it, return the licence to him to exchange for the temporary acknowledgement given under subsection (3) of Section 129 of the Act. Having regard to the nature of the power, the expression "other person" in Section 129 also will have to be interpreted as meaning any other person appointed in connection with the affairs of the State Government and not any private person or officer of a Corporation." (Para 9) 20. Having regard to the nature of the power, the expression "other person" in Section 129 also will have to be interpreted as meaning any other person appointed in connection with the affairs of the State Government and not any private person or officer of a Corporation." (Para 9) 20. He also submitted that instructions issued by the State Government or by Board which provides for settlement of the collection of market fee by auction with outsiders, the same cannot be enforced if the Statute does not provide for the same inasmuch as, an instruction issued by the authority cannot enlarge the scope of the provisions of the Statute. In the case of Ishwar Singh (supra) the Supreme Court was dealing with the expression "other person" under section 129 and section 129-A of the Motor Vehicles Act (4 of 1939) and in the context of the nature of the provision, which empowers to detain vehicles used without certificate of registration or permit, held that the said expression mentioned in Section 129-A has to be read ejusdem generis with the words "any police officer" which precede that expression in Section 129-A and the same can only refer to an officer of the Government and not to any officer or employee of any statutory Corporation or to any other private persons. 21. In my opinion, the said decision of the Supreme Court is of no help to the petitioners for the reasons; firstly, that the said provision of the Motor Vehicles Act relates to realisation of tax, whereas, Rule 82 of the Rules relates to levy of fee and secondly, the said provision of the Motor Vehicles Act deals with the power to detain vehicles without certificate of registration or permit whereas, Rule 82 of the Rules deals with collection of market fee from the buyers and/or sellers in the market area on sale and purchase of the agricultural produce. The Supreme Court while considering the scope of Section 129 of the Motor Vehicles Act, held that the powers of such seizure and detention of vehicle belonging to private party and of launching prosecution are incidental to the sovereign powers of the State and they can not ordinarily be entrusted to private person unless the Statute concerned makes express provision in that regard, and further having regard to the nature of the power, the expression 'other person' in Section 129 was interpreted by the Supreme Court as meaning any other person appointed in connection with affairs of the State Government and not any private person or officer of a Corporation. In the present case, the Market Committee is only empowered to authorise any of its officers or staff or any other person to collect market fee directly from the buyers or its agent, which has nothing to do in connection with other affairs of the Committee as contained in various provisions of the Act, such as establishment" of check post, power to order production of accounts and power of entry, inspection and seizure, power to stop vehicles etc. 22. Thus, in my opinion, the aforesaid decision of the Supreme Court is of no help to the petitioners. Accordingly I do not find any merit in the second writ application also and the same is dismissed, but without costs. Binod Kumar Roy, J. - I agree.