JUDGMENT By the Court.—By means of the present writ petition, the petitioner company has sought the following prayers : (i) issue a writ, order or direction in the nature of certiorari quashing the explanation to Section 17 (iii) of the Krishi Utpadan Mandi Adhiniyam as ultra vires; (ii) issue a writ, order or direction in the nature of certiorari quashing the orders dated 12.8.2005 (Annexures 3 to 8) passed by the respondent No. 3; (iii) issue a writ, order or direction in the nature of mandamus directing the respondents not to intervene with working of petitioner by enforcing the provision of Mandi Adhiniyam, Rules and Bye-laws framed thereunder; (iv) issue any other writ, order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case; (v) award cost of the petition to the petitioners. 2. Briefly stated facts of the case are that the petitioner M/s. VRS Food Limited is a company registered under the Companies Act, 1956 situated at Gulawathi, District Bulandshahr. The petitioner is operating a dairy plant at Gulawathi and is engaged in the process and marketing of fluid milk which is procured by the petitioner from milk suppliers. The dairy therefore produces milk and also other milk products such as ghee, butter, paneer and skimmed milk powder. 3. It is the contention of the petitioner that the petitioner is a trader and ghee which is produced by it is only side product which is produced when there is availability of surplus milk. 4. It is also the contention of the petitioner that the business of the petitioner is regulated under the Milk and Milk Product Order, 1992 (hereinafter referred to as the MMPO Order) which is an order promulgated by the Government of India in exercise of powers under Section 3 of the Essential Commodities Act, 1955 for the purpose of regulating the production, supply and distribution of milk and milk products. 5. The petitioner thus contends that since the petitioner is regulated under the above Milk and Milk Product Order of 1992 and holds valid registration certificate under clause 5 of the MMPO Order and carries on its business under the said Order. It is not subject to regulation under any other Act. 6. 5. The petitioner thus contends that since the petitioner is regulated under the above Milk and Milk Product Order of 1992 and holds valid registration certificate under clause 5 of the MMPO Order and carries on its business under the said Order. It is not subject to regulation under any other Act. 6. In furtherance of this contention, therefore the petitioner states that the provisions of U.P. Krishi Utpadan Mandi Adhiniyam,1964 (hereinafter referred to as the Mandi Adhiniyam, 1964) have no application to the petitioner particularly in view of the provisions of Section 4 (1) of the Adhiniyam aforesaid, which is quoted hereinbelow : “4. Repugnancy with other law.—(1) Subject to the provisions of sub-section (2), the provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law, custom, usage or agreement.” 7. Such being the assertion, the petitioner therefore also contends that the provisions of Section 17 (iii) (b) of the Adhiniyam, 1964 firstly have no application to the case of the petitioner and secondly the Explanation to Section 17 (iii) of the Adhiniyam, 1964 is ultra vires the mandate of Article 19(1) (g) and Article 14 of the Constitution of India and should therefore be declared ultra vires of the same. Hence the prayers have been quoted above. 8. The first prayer of the petitioner is to declare Explanation to Section 17 (iii) of the Adhiniyam, 1964 as ultra vires. Hence the prayers have been quoted above. 8. The first prayer of the petitioner is to declare Explanation to Section 17 (iii) of the Adhiniyam, 1964 as ultra vires. Section 17 (iii) (b) of the Adhiniyam, 1964 reads as hereunder : “(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 percentum and not more than one and half percentum 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— (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 and development cess to the Committee; (3) if the produce is purchased by a trader from another trader, the trader selling the produce may realised it from the purchaser and shall be liable to pay the market fee and development cess to the Committee : Provided that notwithstanding anything to the contrary contained in any judgment, decree or order of any court, the trader selling the produce shall be liable and be deemed always to have been liable with effect from June 12, 1973 to pay the market fee to the Committee and shall not be absolved from such liability on the ground that he has not realised it from the purchaser : Provided further that the trader selling the produce shall not be absolved from the liability to pay the development fee on the ground that he has not realised it from the purchaser; (4) in any other case of sale of such produce, the purchaser shall be liable to pay the market fee and development cess to the Committee : Provided that no market fee or development cess shall be levied or collected on the retail sale of any specified agricultural produce where such sale is made to the consumer for his domestic consumption only : Provided further that notwithstanding anything contained in this Act, the Committee may at the option of, as the case may be, the commission agent, trader or purchaser, who has obtained the licence, accept a lump sum in lieu of the amount of market fee or development cess that may be payable by him for an agricultural year in respect of such specified agricultural produce, for such period, or such terms and in such manner, as the State Government may, by notified order specify : Provided also that no market fee or development cess shall be levied on transaction of sale of specified agricultural produce on which market fee or development cess has been levied in any market area if the trader furnishes in the form and manner prescribed, a declaration or certificate that on such specified agricultural produce market fee or development cess has already been levied in any other market area. (iii-a)... (iv) ..... (v) (v-a) . (v-b) .. (vi) (vii) Explanation.—For the purposes of clause (iii) unless the contrary is proved any specified agricultural produced taken out or proposed to be taken out of a market area by or on behalf of a licensed 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.” 9. The second prayer is that the assessments which have been made against the petitioner in pursuance of the provisions of Section 17 (iii) (b) Explanation of the Adhiniyam, 1964 and the orders which have passed on 12.8.2005 be quashed. By virtue of the six orders all dated 12.8.2005, the respondents Krishi Utpadan Mandi Samiti (hereinafter referred to as the Mandi Samiti) had imposed upon the petitioner mandi fee amounting to Rs. 28,33,100/-. 10. And the last prayer is that the respondent Mandi Samiti should be restrained by this Court from interfering with the working of the petitioner’s business by seeking to in force the provisions of Mandi Adhiniyam, Rules and Bye-laws framed thereunder. 11. The other fact, which is important is that the petitioner is producing the ghee in its dairy which is a specified commodity within the meaning of Adhiniyam, 1964 and is included as specified commodity at item No. 7 in the Schedule to the Adhiniyam. The respondents Mandi Samiti has therefore imposed mandi fee on the petitioner for its mandi in Gulawati and had passed the impugned orders which are appended to the writ petition as Annexures 3 to 8 to the writ petition. 12. Learned Counsel for the petitioner has argued firstly that since the petitioner is registered under the MMPO Order of 1992 and is regulated under the said Order, which has been issued under Section 3 of the Essential Commodities Act and therefore the petitioner is entitled to claim exclusion from the purview of the Mandi Adhiniyam as provided under Section 4 (1) of the Adhiniyam, 1964. In support of this argument, learned Counsel for the petitioner has placed reliance on a decision of the Hon’ble Apex Court rendered in the case of Belsund Sugar Company Ltd. v. State of Bihar and others, (1999) 9 SCC 620 . 13. In support of this argument, learned Counsel for the petitioner has placed reliance on a decision of the Hon’ble Apex Court rendered in the case of Belsund Sugar Company Ltd. v. State of Bihar and others, (1999) 9 SCC 620 . 13. The second argument of the learned Counsel for the petitioner is a challenge to the provisions of Section 17 of the Mandi Adhiniyam, 1964 with specific reference to the Explanation to Section 17. The argument is that the Explanation to Section 17 of the Mandi Adhiniyam, 1964 is ultra vires the Article 14 of the Constitution because it imposes on the petitioner mandi fee on a presumption that any product which is brought to the Mandi is presumed to be sold in the Mandi unless a valid rebuttal is given by the person dispatching the product from Mandi establishes the case that there was no sale within the Mandi. In absence of such a rebuttal, it would be presumed that any product within the provisions of the Adhiniyam is brought in the Mandi and is sold in the Mandi and thereby would invite the imposition of Mandi fee under the Adhiniyam aforesaid. 14. Learned Counsel for the petitioner has argued that since no sale was made by the petitioner in the market but because all stocks which were brought in the market were merely in the nature of stock transfer on consignment basis to agents outside the State of U.P. therefore Mandi fee could not have been charged from the petitioner. It is petitioner’s argument that to put any restriction on such transfers as stated above would result arbitrariness and placing unreasonable restrictions on the petitioner’s right to trade thereby violating Article 19 (1)(g) of the Constitution of India. In support of this argument the learned Counsel for the petitioner relied on the following three decisions of Hon’ble Apex Court : (1) Viklad Coal Merchant, Patiala and others v. Union of India and others, (1984) 1 SCC 619 , 641, 642; (2) Bishambhar Dayal Chandra Mohan and others v. State of U.P. and others, (1982) 1 SCC 39 , 62; (3) Municipal Corporation of City of Ahmedabad and others v. Jan Mohd. Usman Bhai and others, (1986) 3 SCC 20 , 30; 15. Usman Bhai and others, (1986) 3 SCC 20 , 30; 15. In furtherance of the above argument, the learned Counsel for the petitioner has also feebly argued that no guidelines are provided under the said Adhiniyam as to how the provisions of Explanation are to be carried out. 16. Sri B.D. Madhyan learned Counsel for the respondent Mandi Samiti has countered the argument of the learned Counsel for the petitioner - firstly by saying that the orders which have been passed by six orders all dated 12.8.2005 (Annexures 3 to 8 to the writ petition) are all assessment orders which have been passed under Section 17 (iii) (b) Explanation and the petitioner has equally efficacious alternative remedy of filing a revision under Section 32 of the Adhiniyam and in fact has placed on record a letter dated 29.8.2005 (Annexure CA-1 to the counter-affidavit) by which the petitioner has sought extension of time for filing of the revision under Section 32 of the Adhiniyam. 17. Learned Counsel for the respondents has argued that while the petitioner’s business is regulated under the MMPO Order that in itself would not prevent the respondent Mandi Samiti to regulate the sale and purchase of the agricultural produce such as ghee as the Mandi Adhiniyam, 1964 has been made for the purpose of sale and purchase of agricultural produce. He has argued that there is no conflict between the MMPO order, which regulates the business of milk products and Mandi Adhiniyam, which regulates sale and purchase of agricultural products. 18. Learned Counsel for the respondents has argued that the provisions of Section 4 (2) of the Mandi Adhiniyam, 1964 providing exclusion of all other Acts, rules and bye-laws. The MMPO order however operates in a different field from the Mandi Adhiniyam and the two do not impinge upon one another. There is no conflict between the Mandi Adhiniyam and the MMPO Order. The MMPO Order regulates the business of milk and milk products whereas the Mandi Adhiniyam simply seeks to levy a fee on an agricultural product/specified commodity, under the Adhiniyam for the use of its Mandi. 19. There is no conflict between the Mandi Adhiniyam and the MMPO Order. The MMPO Order regulates the business of milk and milk products whereas the Mandi Adhiniyam simply seeks to levy a fee on an agricultural product/specified commodity, under the Adhiniyam for the use of its Mandi. 19. In support of his argument, the learned Counsel for the respondents has relied on a decision of the Hon’ble Apex Court rendered in the case of Krishi Utpadan Mandi Samiti v. M/s. Saraswati Cane Crusher and others, decided on 25.3.1998 by a Three Judge Bench of the Hon’ble Supreme Court wherein the Hon’ble Apex Court has clearly upheld the rights of Mandi Samiti to impose mandi fee on the sale and purchase of ghee within the market area. 20. In fact the Hon’ble Apex Court has taken care to further explain the Explanation to Section 17 (iii) has been done by the High Court in its decision in the case of Sri Mahalaxmi Sugar Works and others v. State of U.P. and others, 1987 (2) UPLBEC 957, in which this Court had given the following directions : (1) Every trader proposing to take out the goods manufactured or produced in the market area shall 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 Samiti shall issue notice to the traders after expiry of six weeks to file the statement within ten 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. (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. 21. In Krishi Utpadan Mandi Samiti v. M/s. Saraswati Cane Crushers and others, the Hon’ble Apex Court while examining the directions given by this Court and by the Division Bench of the Hon’ble Supreme Court earlier, further explained which reads as under : “From this it is clear that there is no presumption against the dealers. In view of this presumption, it is open to the appellants-Krishi Utpadan Mandi Samiti to raise demands against the dealer before passes could be issued. If there is a valid rebuttal in that the sale did not take place within the notified market area, the dealers will be entitled to the passes otherwise not. Of course, when the dealers are compelled to pay the market fee as demanded, it is open to them to challenge it in the matter provided under the Act. The Krishi Utpadan Mandi Samiti prays that on the basis of the afore-decision of this Court, these matters can be disposed of. Objection thereto has been raised by the traders on the ground that the procedure devised by this Court does not satisfy the requirement of a bearing and of an adjudication, which could facilitate challenge being made to the assessment in the manner provided under the Act and that the matter seems to be resting on presumptions alone. It is perhaps for this reason that these matters when coming up before a two Member Bench were ordered to be laid for consideration before a three-Member Bench, has been done. And this has made us to do the exercise in delving deep into the matters and evolve a solution. We are satisfied that the orders of this Court afore-referred to would need some repair work. And this has made us to do the exercise in delving deep into the matters and evolve a solution. We are satisfied that the orders of this Court afore-referred to would need some repair work. We trust the said order to be conceiving of a provisional assessment whereafter doors are opened for a final assessment. We conceive that when demands are raised by the Krishi Utpadan Mandi Samiti against a trader before he could ask for transit of goods outside the market area, the trader would be entitled to tender a valid rebuttal to say that no sale had taken place within the notified area and that if the explanation is accepted there and then by the Mandi Samiti, no question of payment would arise as also of withholding the gate passes. If prima facie evidence led by the trader is not acceptable by the Mandi Samiti, the trader or the dealer can be compelled to pay the market fee as demanded before issuance of gate pass. If the trader makes the payment without demur, the matter ends and the assessment finalised. But in case he does so and raises protest, then the assessment shall be taken to be provisional in nature making it obligatory on the trader to pay the fee before obtaining the requisite gate pass. After protest has been lodged and the provisional assessment has been made, a time frame would be needed to devise making the final assessment. We, therefore, conceive that it innately be read in the order of this Court that a final assessment has to be made within a period of two months after provisional assessment so that the entire transaction in that respect is over enabling the aggrieved party, if any, to challenge the final assessment in the manner provided under the aforesaid Act or under the general law of the land in appropriate form. Having added this concept in this manner in the two Judge Bench decision of this Court, we declare that what repair has been done, instantly would add to the orders of the High Court and the instant corrective decision shall be the governing rule. The Civil Appeals would thus stand disposed of. Having added this concept in this manner in the two Judge Bench decision of this Court, we declare that what repair has been done, instantly would add to the orders of the High Court and the instant corrective decision shall be the governing rule. The Civil Appeals would thus stand disposed of. Since the assessments thus are made against the traders who are involved in the instant appeals, would have to be treated as provisional awaiting final assessment, we permit the concerned traders to move the respective Mandi Samiti within two months from today to hear their objections and proceedings onward be regulated in accordance with procedure devised hereinbefore. Nonetheless we add that should the basis of provisional assessment be knocked off, the Samiti would refund the market fee to the traders/dealers within two months thereafter." 22. Learned Counsel for the respondents has also brought to the notice of this Hon’ble Court the decision of the Hon,ble Apex Court in the case of Star Paper Mills Ltd. v. State of U.P. and others, JT 2006 (12) SC 92 wherein the Hon’ble Court has held that unless it is fully established that the rules of natural justice have not been violated or where it is fully established that the provision itself is ultra vires the provisions of the Adhiniyam, 1964 or of the Constitution. The alternative remedy should not be by-passed. 23. Learned Counsel for the respondents has next argued that in this particular case, the petitioner has fully established that he was denied opportunity of hearing or has been able to fully established that the provision of Section 17 (iii) (b) Explanation are ultra vires the provisions of the Constitution. Therefore the alternative remedy of revision should not be bypassed. 24. Having heard learned Counsel for the petitioner, learned Counsel for the respondents and having perused the material on record, we are of the considered opinion that the Explanation to Section 17(iii) of the Adhiniyam 1964 contains an inbuilt safety mechanism. It has provision for making a rebuttal in case the transaction completed by a person or dealer does not amount to sale within the Mandi. The presumption of sale is rebuttable one, so therefore, if a dealer establishes by way of evidence that the transaction does not amount to a sale within the Mandi, then the Mandi fee is not attracted or become payable. The presumption of sale is rebuttable one, so therefore, if a dealer establishes by way of evidence that the transaction does not amount to a sale within the Mandi, then the Mandi fee is not attracted or become payable. The provision of such a safety mechanism, therefore, saves the application of the Explanation from turning into an unreasonable restriction, rather the Explanation contains ample provision for reasonable regulation and provides to everyone who has to follow it a process of adjudication/an opportunity of hearing and establishing his case and thus saves the provision from the vice of arbitrariness and, therefore, there does not result in violation of either Articles 14 or 19 (1)(g) of the Constitution. 25. The Hon’ble Apex Court in the case of Saraswati Cane Crushers (supra) has adequately explained as to how the Explanation to Section 17(iii) of the Adhiniyam, 1964 contains/contemplated in it a process of adjudication. The relevant protion in the case of Saraswati Cane Crushers (supra) is reproduced below : “We are satisfied that the orders of this Court afore-referred to would need some repair work. We trust the said order to be conceiving of a provisional assessment whereafter doors are opened for a final assessment. We conceive that when demands are raised by the Krishi Utpadan Mandi Samiti against a trader before he could ask for transit of goods outside the market area, the trader would be entitled to tender a valid rebuttal to say that no sale had taken place within the notified area and that if the explanation is accepted there and then by the Mandi Samiti, no question of payment would arise as also of withholding the gate passes. If prima facie evidence led by the trader is not acceptable by the Mandi Samiti, the trader or the dealer can be compelled to pay the market fee as demanded before issuance of gate pass. If the trader makes the payment without demur, the matter ends and the assessment finalised. But in case he does so and raises protest, then the assessment shall be taken to be provisional in nature making it obligatory on the trader to pay the fee before obtaining the requisite gate pass. After protest has been lodged and the provisional assessment has been made, a time-frame would be needed to devise making the final assessment. But in case he does so and raises protest, then the assessment shall be taken to be provisional in nature making it obligatory on the trader to pay the fee before obtaining the requisite gate pass. After protest has been lodged and the provisional assessment has been made, a time-frame would be needed to devise making the final assessment. We, therefore, conceive that it innately be read in the order of this Court that a final assessment has to be made within a period of two months after provisional assessment so that entire transaction in that respect is over enabling the aggrieved party, if any, to challenge the final assessment in the manner provided under the afore Act or under the general law of the land in appropriate form. Having added this concept in this manner in the two-Judge Bench decision of this Court, we declare that what repair has been done, instantly would add to the orders of the High Court and the instant corrective decision shall be the governing rule. The Civil Appeals would thus stand disposed of. Since the assessments thus far made against the traders who are involved in the instant appeals, would have to be treated as provisional awaiting final assessment, we permit the concerned traders to move the respective Mandi Samiti within two months from today to hear their objections and proceedings onward be regulated in accordance with procedure devised hereinbefore. Nonetheless we add that should the basis of provisional assessment be knocked off, the Samiti would refund the market fee to the traders/dealers within two months thereafter.” 26. As such, it is abundantly clear that the present matter is squarely covered by the decision of the Hon’ble Apex Court in the case of Saraswati Cane Crushers (supra), the orders dated 12.8.2005 impugned in the present writ petition are only in the nature of final assessment under Section 17 of the Adhiniyam 1964. The orders dated 12.8.2005 had been passed after affording an apportunity of hearing to the petitioner and it is still open to the petitioner to file a revision under Section 32 of the Adhiniyam, 1964. The orders dated 12.8.2005 had been passed after affording an apportunity of hearing to the petitioner and it is still open to the petitioner to file a revision under Section 32 of the Adhiniyam, 1964. So firstly the petitioner has a full fledged remedy by way of revision under Section 32 of the Adhiniyam and secondly the petitioner has failed to establish as to how the provisions of Section 17 (iii) Explanation is ultra vires Article 14 of the Constitution and in what manner it imposes unreasonable restrictions on its rights to trade and do business. 27. Since the controversy involved in the present writ petition requires a decision on factual aspect of the matter, which is to be proved by way of pleadings and proofs, there is no doubt in our mind that revision is not only an alternative remedy but it is also the best remedy available to the petitioner in the facts and circumstances of the case. Thus the extraordinary and discretionary relief sought by the petitioner under Article 226 of the Constitution of India cannot be granted. 28. The petition is thus without merit and is dismissed. We leave it open to the petitioner to avail the alternative remedy available to it under Section 32 of the Adhiniyam. In case the petitioner avails alternative remedy under Section 32 within a period of 30 days from the date of issuance of a certified copy of this judgment, limitation, if any, will not be held against the petitioner. ————