Research › Search › Judgment

Allahabad High Court · body

2009 DIGILAW 172 (ALL)

JINDAL DRUGS LTD v. STATE OF U P

2009-01-20

ARUN TANDON, DILIP GUPTA

body2009
This bunch of writ petitions has been filed by various companies duly incorporated under the Indian Companies Act, 1956 engaged in manufacture of commodities qua which Mentha and its products are the raw material. Petitioners companies have admittedly purchased Mentha and its products from various notified market yards and have their place of manufacture/ business within the irrespective Mandi Samitis in the State of Uttar Pradesh. 2. Since the basic facts, relevant for decision of the disputes are common in all the aforesaid writ petitions, and legal aspects involved are also identical, the writ petitions are being decided by this common judgment. The facts on record of Civil Misc. Writ Petition No. 54768 of 2008 are being stated for the purposes of present judgment treating the same to be the leading case. 3. Heard Sri Bharat Ji Agarwal, Senior Advocate assisted by Sri Shubham Agarwal, learned counsel for the petitioner in leading writ petition, Sri Ravi Kant, Senior Advocate assisted by Sri Tarun Agrawal, Sri K. M. Tripathi, Sri Yashwant Verma and Sri Rahul Agrawal, learned counsel for the petitioners in connected writ petitions, Sri S. D. Madhyan, Senior Advocate assisted by Sri Satish Madhyan, learned counsel for Mandi Parishad/samitis and Sri Mahesh Chandra Chaturvedi, learned Chief Standing Counsel for the State-respondents. 4. Facts in brief relevant for the dispute are: A notification dated 17th July, 2003, in exercise of power under Section 4-Aof Uttar Pradesh Krishi Utpadan Mandi Act, 1964 (hereinafter referred to as the Act, 1964), was published by the State Government for including "all types of herbs, mint, their oil, solid extracted therefrom and the residue of Mentha family in the Schedule to the Act. The notification so issued under Section 4-A is not subject matter of challenge in the present writ petition. 5. Thereafter a notification under proviso to Section 8 (1) (a) of Act, 1964 was issued on 18th July, 2003 inviting objections. This notification, which has been enclosed as Annexure-1 to the writ petition, reads as follows: "no. 2022/xii-5-2003-600 (46)-88 Dated Lucknow, July 18, 2003 WHEREAS the State Government considers it necessary and expedient in the public interest so to do. Thereafter a notification under proviso to Section 8 (1) (a) of Act, 1964 was issued on 18th July, 2003 inviting objections. This notification, which has been enclosed as Annexure-1 to the writ petition, reads as follows: "no. 2022/xii-5-2003-600 (46)-88 Dated Lucknow, July 18, 2003 WHEREAS the State Government considers it necessary and expedient in the public interest so to do. NOW, THEREFORE, in exercise of the powers under clause (a) of sub section (1) of Section 8 of the Uttar Pradesh Krishi Utpadan Mandi Adhiniyam, 1964 (U. R Act No. XXV of 1964), the Governor is pleased to exclude the agricultural produce mentioned in the schedule "a" below as the list of the agricultural produce specified in Government notification mentioned in column 4 of the Schedule "b" below as amended from time to time in respect of market area mentioned against each in column 2 thereof, above notification is published herewith a view to inviting objection against the proposed action required under the provision to the aforesaid sub-section. Any objection in regard to the above action should be sent in writing addressed to the Director Rajya Krishi Utpadan Mandi Parishad, Uttar Pradesh, Kishan Mandi Bhawan, Vibhuti Khand, Gomti Nagar, Lucknow. Only those objection shall be taken into consideration which are received within thirty days from the date of publication of this notification in the Gazette. " Schedule "a" to the notification dated 18th July, 2003 reads as follows: "all types of herbs and mints of mentha family, their oils and solid material extracted from the oils and the residue left after extraction of solid. " 6. Column 2 and Column-4 of the Schedule "b" record the name of the Market area and the number and date of notification issued under Section 6 read with Section 8 of Act, 1964 qua the same. 7. Since admittedly, Mentha and its products were not earlier included in the Schedule of specified agricultural produce issued under Section 6 of the Act, 1964 as amended from time to time, use of word "excluded" in the said notification was apparently incorrect. The State Government realising the mistake so committed, published a corrigendum on 14th August, 2003 whereby it was informed that the word excluded from the said notification dated 18th July, 2003 shall stand substituted by the word included. 8. The State Government realising the mistake so committed, published a corrigendum on 14th August, 2003 whereby it was informed that the word excluded from the said notification dated 18th July, 2003 shall stand substituted by the word included. 8. After considering the objections filed to the notification so issued, the State Government vide notification dated 15th December, 2004, in exercise of power under Section 8 (1 ) (a) of Act, 1964 decided to include "all type of herbs and mints of Mentha family, their oils and solid material extracted from the oils and the residue left after extraction of solid" as per Schedule-A in the list of specified agricultural produce in respect of market area specified in Schedule-B. With the issuance of the aforesaid notification, levy and collection of Mandi Fee and cess was enforced on the transaction of sale/ purchase of the said specified agricultural produce within the market area specified. 9. For ready reference, relevant portion of notification dated 15th December, 2004 reads as follows : No. 2131/12. 5. 2004-600 (46)-88 Lucknow, 15th Dec, 2004. 10. Notices were issued to the writ petitioners to deposit the Mandi Fee and cess on the transaction of sale/purchase of the commodity, failing which they were required to produce 9r, Gate Pass and Entry Slip. 11. Petitioners filed their objections to the notices so issued and amongst others, it was contended that the liability to pay the Mandi Fee, if any, is of the selling dealer and not of the petitioners, who were purchasing dealer. Explanation furnished by the petitioner did not find favour with the authority concerned and therefore, vide order dated 10/11th June, 2008 a demand has been raised against the petitioner to the tune of Rs. 11,16,748. 80 towards market fee and development cess of Rs. 2,79,187. 20 along with interest of Rs. 89,338. 80. The total amount of Rs. 14,85,275. 80 has been demanded from the petitioner. 12. Against the demand so raised, petitioners have approached this Court by means of the writ petition seeking quashing of the notification dated 15th December, 2004 and demand notice dated 10/11th June, 2008 and subsequent demand notice dated 27th August, 2008. 89,338. 80. The total amount of Rs. 14,85,275. 80 has been demanded from the petitioner. 12. Against the demand so raised, petitioners have approached this Court by means of the writ petition seeking quashing of the notification dated 15th December, 2004 and demand notice dated 10/11th June, 2008 and subsequent demand notice dated 27th August, 2008. As well as for a writ of mandamus commanding the respondents to publish the final notification under Section 8 of the Act, 1964 in terms of the draft sent along with letter No. VIPRAN-1 -1611/2006-2299 dated 1st September, 2006 by the Director, Krishi Utpadan Mandi Parishad, U. P. Lucknow to the State Government with reference to earlier notification dated 20th July, 2005 for exclusion of the Mentha and its products from the Schedule of specified agricultural produce. 13. On behalf of the petitioner notification dated 15th December, 2004 and the demand raised is being challenged on the following grounds: (a) Under original notification dated 18th July, 2003 objections to the proposed action under Section 8 (1) (a) proviso were required to be submitted within 30 days. Since there was an apparent mistake in the notification, a corrigendum was issued on 14th August, 2003 which did not extend the period for filing objections, therefore, the petitioners were left with only three days time to submit their objections to the notification so issued, which was contrary to Rule 130 of U. P. Krishi Utpadan Mandi Rules, 1965 (hereinafter referred to as the Rules, 1965), and even otherwise insufficient. Therefore, the entire exercise is illegal. (b) Unless the State Government first exercises its power under Section 6 of the Act, 1964 by a notification, for the Market Areas to be specified qua the product Mentha and its derivative, notification under Section 8 (1) (a) could not have been issued. Therefore, the entire exercise is illegal. (b) Unless the State Government first exercises its power under Section 6 of the Act, 1964 by a notification, for the Market Areas to be specified qua the product Mentha and its derivative, notification under Section 8 (1) (a) could not have been issued. (c) Notification dated 15th December, 2004 under Section 8 (1) (a) of the Act, 1964 has not been issued in accordance with the provisions of Section 8 (1) of Act, 1964 read with Rules 129/130 of U. P. Krishi Utpadan Mandi Rules, 1965, i. e. since no date from which Mentha and its products would be treated to have been included in the Schedule of specified agricultural produce in the notification dated 15th December, 2004, the same has not come into force, therefore, the demand of Mandi fee on the transaction of sale of Mentha and its products is legally not justified. (d) The respondents are under legal obligation to publish a final notification in terms of the draft notification submitted by respondent No. 2 i. e. , Director, Krishi Utpadan Mandi Parishad, U. P. Lucknow for withdrawing the said agricultural produce i. e. Mentha and its products from the Schedule of specified agricultural produce in accordance with notification dated 20th July, 2005 issued for inviting objections for the purpose with reference to proviso to Section 8 (1) of Act, 1964 and to which no objections were filed. The plea is based on the principle of Promissory Estoppel. (e) Lastly it is contended that the liability, if any, to pay Mandi fee on the sale of mentha and its products within the market area is of selling trader and not of the petitioner. 14. The contentions so raised on behalf of the writ petitioner are opposed by Sri B. D. Madhyan, Senior Advocate assisted by Sri Satish Madhyan, learned counsel for the Mandi Parishad/samiti and it is contended that the petitioners did not file any objections whatsoever within the period specified in the notification dated 18th July, 2003 or within 30 days or any date thereafter, of the publication of the corrigendum dated 14th August, 2003. Asa matter of fact, no objections have been filed by the petitioners. Asa matter of fact, no objections have been filed by the petitioners. As many as 50 objections were received in response to the notification referred to above, from various persons, which were considered by the concerned Authority and it was only thereafter that notification dated 15th December, 2004 was issued. 15. Sri B. D. Madhyan further points out that corrigendum dated 14th August, 2003 was neither an amendment nor modification of the earlier notification dated 17th July, 2003, it in fact was curative in nature and had retrospective effect. In support hereof he has placed reliance upon the judgment of the Gujarat High Court in the case of Ahmedabad Khangi Prathmik Shala Sanchalak Sangh v. State of Gujarat and another, AIR 1989 Guj 225 Pr. 3. 16. So far as ground (b) raised on behalf of the petitioner is concerned, it is clarified that notification in respect of market area of Chandausi was admittedly issued under Section 6 of Act, 1964, which included the list of specified agricultural produce for the purpose. The amendment in the list of specified agricultural produce so provided under the said notification is permissible with reference to Section 8 of Act, 1964. Such an amendment within its ambit permits inclusion as well as exclusion of any agricultural produce from the list of agricultural produce specified under Section 6 of Act, 1964 as amended from time to time. No fresh notification under Section 6 of Act, 1964 is required and a notification under Section 8 of Act, 1964 would suffice. He therefore, submits that the ground (b) raised on behalf of the petitioner has no legs to stand. 17. So far as ground (c) raised on behalf of petitioner is concerned, it is submitted that since the final notification under Section 8 of Act, 1964 was issued on 15th December, 2004, the same will become operative from the said date, and the commodity in question i. e. Mentha and its products stand included in the Schedule of specified agricultural produce from the said date. Reference in that regard has been made to Paragraph-39 of the Counter Affidavit filed on behalf of Mandi Parishad as well as to paragraph 43. It is pointed out that the notification dated 15th December, 2004 has been published as provided by Act, 1964 and the Rules, 1965. Reference in that regard has been made to Paragraph-39 of the Counter Affidavit filed on behalf of Mandi Parishad as well as to paragraph 43. It is pointed out that the notification dated 15th December, 2004 has been published as provided by Act, 1964 and the Rules, 1965. With reference to the Judgment of the Honble Supreme Court of India in the case of S. K. Shukla and others v. State of U. P. and others, (2006) 1 SCC 314 : AIR 2006 SC 413 and in the case of State of Andhra Pradesh and others v. Twin City Jewellers Association and others, (2005) 13 SCC 552 , it is contended that even if, no specific date is mentioned in the notification dated 15th December, 2004 qua date on which it will become operational, notification cannot be declared as invalid and it would operate from the date of publication in the official Gazette. Reliance in that regard has also been placed upon Sections 21 and 22 of U. P. General Clauses Act, 1904. He therefore, submits that the ground (c) raised on behalf of the petitioner is liable to be rejected. 18. With regard to plea of promissory estoppel as per ground (d) raised on behalf of the petitioner, qua issuance of the notification for exclusion of the agricultural produce, Mentha and its products from the list of specified agricultural produce, it is submitted that the State Government has filed a detailed counter affidavit in connected writ petitions, clearly stating that it has no intention to issue any notification for excluding the Mentha and its products from the list of specified agricultural produce as included under the Notification dated 15th December, 2004. No direction can be issued by the Writ Court to the State Government to perform its legislative function in a particular manner. Reliance in that regard has been placed upon the judgment of the Honble Supreme Court of India in the cases of Sales Tax Officer and another v. Durga Oil Mills, (1998) 1 SCC 572 , Prs. 11,19, 21 &22; Union of India andothers v. Godhawani Brothers, (1997) 11 SCC 173 Pr. 3; Rustom Khusro Saburji Gandhi and others v. Shri Amrit Abhijat, District Magistrate, Allahabad and others, 2007 (5) ADJ 97 (FB) Prs. 1,19 & 2; Common Cause v. Union of India and others, (2008) 5 SCC 511 Prs. 11,19, 21 &22; Union of India andothers v. Godhawani Brothers, (1997) 11 SCC 173 Pr. 3; Rustom Khusro Saburji Gandhi and others v. Shri Amrit Abhijat, District Magistrate, Allahabad and others, 2007 (5) ADJ 97 (FB) Prs. 1,19 & 2; Common Cause v. Union of India and others, (2008) 5 SCC 511 Prs. 19, 20, 24 & 31; and Union of India v. EID Parry India Ltd. , (2000) 2 SCC 223 Pr. 4. 19. So far as the ground (e) raised on behalf of the petitioner is concerned, Sri B. D. Madhyan submits that the petitioner had admittedly purchased the commodity in question within the notified market area of Chandausi and further that they have got an establishment within the area of Chandausi. Their liability qua payment on the said purchase of Mentha and its products is well established under the Constitution Bench judgment of the Honble Supreme Court of India in the case of Ram Chandra Kailash Kumar and Co. v. State of U. P. , AIR 1980 SC 1124 . 20. In the alternative, it is contended that if the petitioners dispute the correctness of the assessment which has been made in respect of purchase of Mentha and its products, they have an efficacious statutory alternative remedy by way of revision under Section 32 of Act, 1964. 21. Sri Mahesh Chandra Chaturvedi, learned Chief Standing Counsel has adopted all the arguments advanced by Sri B. D. Madhyan, on behalf of State-respondents. 22. We have considered the submissions made by the learned counsel for the parties and have gone through the records of the present writ petition. 23. In order to appreciate the controversy raised in the present writ petition, it is necessary to state in brief the mode and manner in which Mandi Fee and cess on the transaction of sale/purchase of specified agricultural produce is levied and realised under Section 17 of Act, 1964. 24. Section 17 of Act, 1964 is the charging Section, which confers a power of levy and collection of Mandi Fee and cess. Such Mandi Fee is attracted on transaction of sale/purchase of only specified agricultural produce within the notified market area at the rates, which the State Government may specify by notification in the manner detailed in the said Section. Section 17 of Act, 1964 is the charging Section, which confers a power of levy and collection of Mandi Fee and cess. Such Mandi Fee is attracted on transaction of sale/purchase of only specified agricultural produce within the notified market area at the rates, which the State Government may specify by notification in the manner detailed in the said Section. Thus, Mandi Fee is payable on transaction of sale/purchase of only specified agricultural produce in the notified market area at the rates notified by the State Government. 25. Section 4-Aof the Act, 1964 confers a power upon the State Government to add, amend or omit any of the items of the agricultural produce mentioned in the Schedule by way of notification. 26. Section 6 of the Act, 1964 confers a power upon the State Government to specify whole or any part or any specified area mentioned in the notification earlier issued under Section 5 of Act 1964 to be the market area in respect of such specified agricultural produce and with effect from such date, as may be specified in the declaration. Thus, declaration of the market area takes place under Section 6 of the Act, 1964 with reference to the specified agricultural produce covered thereunder at the first instance. 27. Section 7 confers a power of declaration of principal market yard and sub-market yards in respect of market areas already notified under Section 6 of the Act, 1964. 28. Section 8 of the Act, 1964 confers a power upon the State Government to alter the market area or to modify the list of specified agricultural produce as initially mentioned in the notification issued under Section 6 of the Act, 1964. 29. It is worthwhile to reproduce Section 6 and Section 8, which are relevant for our all purposes, and read as follows: "6. Declaration of Market Area.-On the expiry of the period referred to in Section 5 the State Government shall consider the objections received within the said period and may thereupon declare, by notification in the Gazette and in such other manner as may be prescribed, that the whole or any specified portion of the area mentioned in the notification under Section 5 shall be the Market Area in respect of such agricultural produce, and with effect from such date as may be specified in the declaration. 8. 8. Alteration of Market Area and Modification of the list of Agricultural produce.- (1) The State Government where it considers necessary or expedient in the public interest so to do, may by notification in the Gazette, and in such other manner as may be prescribed and with effect from the date specified in the notification. (a) include any agricultural produce in, or exclude any agricultural produce from, the list of agricultural produce specified in the notification under Section 6. (b ). . . . . (c ). . . . . (d ). . . . . (e ). . . . . PROVIDED that before action under this sub-section is taken, the State Government shall invite and consider, in the prescribed manner, objections, if any against the proposed action. " 30. Section 8 of Act, 1964 confers a power upon the State Government to either alter the market area or to modify the list of specified agricultural produce as per notification issued under Section 6 of Act, 1964 initially. The amendment can be, by way of addition to, or by deletion, from the list of agricultural produce specified in the notification under Section 6 of Act, 1964. Proviso to Section 8 requires that before any such action is taken by the State Government, in respect of either alteration of Market Area or inclusion or exclusion from the list of specified agricultural produce, objection against the proposed action shall be invited in the prescribed manner. Procedure for inviting objections has been provided under Statutory Rules, which contemplate a period of 30 days for filing of such objections. 31. On the inclusion of any agricultural produce vide notification under Section 8 of Act, 1964 to the Schedule of specified agricultural produce as notified under Section 6 of Act, 1964 initially would result in Market fee and cess being levied on the transaction of the same under Section 17 of Act, 1964 from the date to be specified in the notification. 32. From the facts, as they exist on record, it is apparently clear that the market area, which is subject matter of consideration in the present writ petition that is Chandausi, District Moradabad was so notified under Section 6 of Act, 1964 along with list of agricultural produce, (as amended from time to time) vide notification dated 23rd November, 1965. 33. From the facts, as they exist on record, it is apparently clear that the market area, which is subject matter of consideration in the present writ petition that is Chandausi, District Moradabad was so notified under Section 6 of Act, 1964 along with list of agricultural produce, (as amended from time to time) vide notification dated 23rd November, 1965. 33. All type of herbs and mints of Mentha family, their oils and solid material extracted from the oils and the residue of extraction of solid were not included within the list of specified agricultural produce upto that stage in the said list under Section 6 of Act, 1964 pertaining to the market area of Chandausi and therefore, the State Government came out with a notification dated 18th July, 2003 inviting objections qua proposal for inclusion of the aforesaid agricultural produce in the list of specified agricultural produce in exercise of powers under proviso to Section 8 of the Act, 1964. It is apparently clear that the use of word "exclude" in the notification dated 18th July, 2003, was factually incorrect and was a typographical error, inasmuch as the intention of the State Government was to include the said commodities in the list of specified agricultural produce, as upto that date the agricultural produce, Mentha and its products was not so included. It needs no clarification that what had not been included in the list of specified agricultural produce upto 18th July, 2003, could not have been proposed to be excluded under the notification dated 18th July, 2003. It is in this background that the State Government rightly came out with the corrigendum dated 14th August, 2003 permitting the deletion of the word "exclude" and by substitution of the same by the word include from notification dated 18th July, 2003. The aforesaid notification is directly referable to Proviso to Section 8 (1) of Act, 1964. Notification dated 18th July, 2003 provided 30 days time for filing of the objections from the date of the publication of the notification. Even otherwise, the period of 30 days has been provided for the purpose under the Statutory Rule 130 of Rules, 1965. The aforesaid notification is directly referable to Proviso to Section 8 (1) of Act, 1964. Notification dated 18th July, 2003 provided 30 days time for filing of the objections from the date of the publication of the notification. Even otherwise, the period of 30 days has been provided for the purpose under the Statutory Rule 130 of Rules, 1965. Thus even assuming for the sake of argument that no period for filing of objection was provided under the corrigendum notification dated 14th August, 2003, the same could have been filed within 30 days thereafter in view of Rule 130 of Rules, 1965, which has not been done by the petitioners. 34. As a matter of fact, petitioners did not file any objection whatsoever. It is not their case that objections were filed within 30 days of the issuance of the corrigendum dated 14th August, 2003 and the same had not been considered. We further find from the records of the writ petition that as many as 50 objections were received qua the inclusion of Mentha and its products within the list of specified agricultural produce in response to the notification. All such objections were considered by the concerned Authority before issuance of the final notification dated 15th December, 2004. It has not been contended by any learned counsels for the petitioners that any objections filed by the aforesaid 50 objectors had not been considered and any pleas raised therein have been ignored. 35. For appreciating the controversy raised, further it would be worthwhile to reproduce Rules 129 and 130 of Rules, 1965, which read as follows : "[129. Manner of notification under the Act-All notifications under Sections 5, 6, 8 and 11 of the Act shall also published- (a) by distribution of copies of the notification in Hindi in the Market Area concerned; and (b) by affixation of copies of the notification at prominent places in the Market Area concerned. ] [130. Objections under Section 5 and Section 8 of the Act [sections 5 and 8]-All objections under Section 5 or Section 8 of the Act shall be preferred within a period of thirty days from the date of publication of notification in the official Gazette, inviting such objections, and shall be addressed to the Director who shall forward the same with his comments to the State Government. " 36. " 36. We may record that right to file objection flows from Section 8 proviso of Act, 1964 read with Rule 130 of Rules, 1965, even if no date is mentioned in the corrigendum dated 14th August, 2003 for the purpose, it would logically follow that the objection could be filed under the Statutory Rule 130 of Rules, 1965 within 30 days thereof. Petitioners have not done so and therefore, it does not lie in their mouth to challenge the final notification issued under Section 8 (1) (a) of Act, 1964 dated 15th December, 2004 i. e. after one and half years of the draft notification dated 17th July, 2003/14th August, 2003 on the ground that sufficient opportunity was not afforded to file objections. We, therefore, hold that the first ground raised on behalf of the petitioner has no legs to stand and is accordingly turned down. 37. So far as the second ground raised on behalf of the petitioner is concerned, from the records of the present writ petition it is apparently clear that notification under Section 6 of Act, 1964, in respect of the declaration of the market area of Chandausi was issued as early as in the year 1965 along with list of specified agricultural produce, transactions whereof were to be subjected to levy of Mandi Fee under Section 17 of Act, 1964 as amended from time to time. For inclusion of a new agricultural commodity in the list of specified agricultural produce issued under Section 6 of Act, 1964, a notification under Section 8 of Act, 1964 would suffice, inasmuch as market area stands declared under Section 6 of Act, 1964 vide earlier notification. This follows from a simple reading of Section 8 of Act, 1964, which has already been quoted herein above, and therefore, no further elaboration is required. The second ground raised on behalf of the petitioner is also rejected. 38. Now coming to the most vital part of the objections raised on behalf of the petitioner, which is based on the following portion of Section 8 of Act, 1964 : "in such other manner as may be prescribed and with effect from the date specified in the notification. " 39. 38. Now coming to the most vital part of the objections raised on behalf of the petitioner, which is based on the following portion of Section 8 of Act, 1964 : "in such other manner as may be prescribed and with effect from the date specified in the notification. " 39. From a simple reading of the aforesaid, it is established that in the notification to be issued for alteration of the list of specified agricultural produce notified under Section 6 (as amended from time to time), which may be either by way of inclusion or exclusion of any agricultural produce pertaining to the particular market area (in the facts of the present Chandausi), the State Government is not only legally obliged to publish a draft notification for inviting objections but must also specifically specify the date in the final notification as to from which the inclusion/exclusion is to take effect. 40. From the notification dated 18th July, 2003 (as corrected vide notification dated 14th August, 2003), which were draft notifications inviting objection as well as from the final notification dated 15th December, 2004, we find that absolutely no date has been specified in the notification as to from which 3 date said agricultural produce, namely, "all type of herbs and mints of mentha family, their oils and solid material extracted from the oils and the residue left after extraction of solid" would stand included in the list of specified agricultural produce notified under Section 6 of Act, 1964 (as amended from time to time ). It is, thus apparently clear that no date has been specified, as to from which date such agricultural produce, namely, all types of herbs and mints of mentha family, their oils and solid material extracted from the oils and the residue of extraction of solid would stand included in the list of specified agricultural produce as notified earlier under Section 6 of Act, 1964 for the market area of Chandausi. We, therefore, hold that there has been non-compliance of the statutory provisions of Section 8 of Act, 1964 in the publication of the notification dated 15th December, 2004 because of non-specification of the date from which such commodities shall stand included in the list of specified agricultural produce of the market area concerned. 41. We, therefore, hold that there has been non-compliance of the statutory provisions of Section 8 of Act, 1964 in the publication of the notification dated 15th December, 2004 because of non-specification of the date from which such commodities shall stand included in the list of specified agricultural produce of the market area concerned. 41. We may take note of the plea raised by Sri B. D. Madhyan, Senior Advocate on behalf of the Mandi Parishad/samiti, namely, that in case no date is specified in the notification, the inclusion will take effect from the date the notification was published in the official Gazette in facts of the present case 15th December, 2004. Reliance in support of the said contention has been placed upon the judgment of the Honble Supreme Court in the cases of S. K. Shukla (supra) and Ahmedabad Khangi Prathmik Shala Sanchalak Sangh (supra) as well as upon the provisions of Sections 21 to 23-Aof the U. P. General Clauses Act. The aforesaid contention on the face of it appears to be attractive, however, on examination in detail of the plea, we find that the same is legally not tenable for following reasons : 42. General Clauses Act, 1897 has absolutely no application in respect of the Acts of State Legislature like Act, 1964. So far as the State Acts are concerned, the provisions of U. P. General Clauses Act, 1904 willy apply. 43. It is not in dispute that U. P. Krishi Utpadan Mandi Act, 1964 has been promulgated by the U. P. State Legislature being U. P. Act No. XXV of 1964. To such an Act of the State Legislature the provisions of U. P. General Clauses Act, 1904 would apply. For adjudicating upon the issue in question it would be relevant to refer to Sections 5 (1) (b), 5 (2), 20, 21, 22, 23 and Section 23-Aof the U. P. General Clauses Act. For ready reference the aforesaid Sections are being quoted herein below: "5. For adjudicating upon the issue in question it would be relevant to refer to Sections 5 (1) (b), 5 (2), 20, 21, 22, 23 and Section 23-Aof the U. P. General Clauses Act. For ready reference the aforesaid Sections are being quoted herein below: "5. Coming into operation of enactments.-{1) Where any Uttar Pradesh Act is not expressed to come into force on a particular day, then,- 4 (a) in the case of an Uttar Pradesh Act made before the commencement of the Constitution, it shall come into operation, if it is an Act of the Legislature, on the day on which the assent thereto of the Governor, the Governor General of His Majesty, as the case may require, is first published in the official Gazette, and, if it is an act of the Governor, on the day on which it is first published as an Act in the official Gazette; (b) in the case of an Uttar Pradesh Act made after the commencement of the Constitution, it shall come into operation on the day on which the assent thereto of the Governor or the President, as the case may require, is first published in the official Gazette]. (2) Unless the contrary is expressed, an (Uttar Pradesh) Act shall be construed as coming into operation immediately on the expiration of the day proceeding its commencement. 20. Construction of orders, etc. issued under enactments.-[ (1) Where, by any [uttar Pradesh] Act a power to issue any [statutory instruments] is conferred, then expressions used in the [statutory instrument] shall, unless there is anything repugnant in the subject or context, have the same respective meanings as in the Act conferring the power. (2) The provisions of Sections 4, 4-A, 6, 6-A, 6-5, 7, 8, 9, 10, 10-A, 10-C, 11, 12, 13, 14, 15, 16, 17, 18, 19, 19-A and 28 shall mutatis mutandis apply in relation to any statutory instrument issued under any Uttar Pradesh Act as they apply in relation to any Uttar Pradesh Act]. " "21. Power to make to include power to add to, amend, vary or rescind, orders, rules or bye-laws.- Where, by any [uttar Pradesh] Act, a power to issue [statutory instrument] is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add, amend, vary, or rescind any [statutory instrument] so issued. 22. 22. Making of rules or bye-laws and issuing of orders and notifications between publication and commencement of enactment.-Where by any [uttar Pradesh] Act, which is not to come into force on the day on which it is first published in the official Gazette a power is conferred [to issue statutory instruments]. With respect to the application of the Act or in exercise of any power exercisable thereunder or under any enactment thereby amended, or with respect to the establishment of any court or office, or the appointment of any Judge or officer thereunder, or with respect to the person by whom, or the time when, or the place where, or the manner in which, or the fees, taxes, cess or other 5 dues for which, anything is to be done under the Act, then that power may be exercised at any time after the Act has been published as aforesaid; but [statutory instruments so issued] shall not take effect till the commencement of the Act. " "23. " "23. Provision applicable to making of rules or bye-laws after previous publication.-[ (1)] Where, by any [uttar Pradesh] Act, a power to make rules or bye-laws is expressed to be given subject to the condition of the rules or bye-laws being made after previous publication, then the following provisions shall apply, namely: (a) the authority having power to make the rules or bye-laws shall, before making them publish a draft of the proposed rules or bye-laws for the information of persons likely to be affected thereby; (b) the publication shall be made in such manner as that authority deems to be sufficient, or, if the condition with respect to previous publication so requires, in such manner as the [government concerned] prescribes; (c) there shall be published with the draft a notice specifying a date on or after which the draft will be taken into consideration; (d) the authority having power to make the rules or bye-laws, and, where the rules or bye-laws are to be made with the sanction, approval or concurrence of another authority, that authority also, shall consider any objection or suggestion which may be received by the authority having power to make the rules or bye-laws from any person with respect to the draft before the date so specified; (e) the publication in the [official Gazette] of a rule or bye-law purporting to have been made in exercise of a power to make rules or bye-laws after previous publication shall be conclusive proof that the rule or bye-law has been duly made. [ (2) The date referred to in clause (c) of sub-section (1) shall not be a date earlier than the day of expiration of a period one month from the date of publication of the draft of the proposed rules or bye- laws under clause (a) of that sub-section. [ (2) The date referred to in clause (c) of sub-section (1) shall not be a date earlier than the day of expiration of a period one month from the date of publication of the draft of the proposed rules or bye- laws under clause (a) of that sub-section. 6 (3) Notwithstanding the provisions of sub-sections (1) and (2), where the State Government is satisfied that circumstances exist which render it necessary for it to make rules or bye-laws with immediate effect or with effect from a date earlier than a period of one month, it may make any such rules or bye- laws without previous publication or, as the case may be, fix a date referred to in clause (c) of sub- section (1) earlier than the day of expiration of a period of one month from the publication of the draft of the proposed rules or bye-laws. ] [23-A. Date of coming into effect of rules and the control of Legislature over them.- (1) All rules made by the State Government under an Uttar Pradesh Act shall as soon as may be after they are made, be laid before each House of the State Legislature, while it is in session, for a total period of not less than thirty days, which may be comprised in one session or two or more successive sessions, and shall, unless some later date is appointed, take effect from the date of their publication in the Gazette subject to such modifications or annulments as the two Houses of the Legislaturemay, during the said period, agree to make, so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done thereunder. (2) Where any Central Act, in force or applicable to Uttar Pradesh and relating to matters with respect to which the State Legislature has power to make laws for Uttar Pradesh, confers power on the State Government to make rules thereunder, then subject to any express provisions to the contrary in such Act, the provisions of sub-section (1) shall mutatis mutandis apply to the rules made by the State Government in exercise of that power. ]" 44. ]" 44. It is no doubt true that Section 5 of the U. P. General Clauses Act provides that in case no day is specified in the notification published in the official Gazette qua enforcement of Uttar Pradesh Act, the same would come in operation on the day on which the assent of the Governor or the President, as the case may require, is first published in the official Gazette. It is, thus, clear that Uttar Pradesh Act would come into operation (in case no other particular day is specified) on the day it is published in the official Gazette. 45. The said section will have no application, so far as the notifications to be issued by the Uttar Pradesh Government in exercise of power under Section 8 of Act, 1964, is concerned. The distinction between the Act of Uttar Pradesh Legislature referable to Section 5 of U. P. General Clauses Act and the Statutory Instruments to be issued in exercise of power under such an State Act needs no clarification in view of the definition of the Uttar Pradesh Act as contained in Section 4 (46) of U. P. General Clauses Act vis-a-vis the definition of statutory instruments as contained in Section 4 (46) (b) of U. P. General Clauses Act. 7 Suffice is to reproduce the said definitions as contained in U. P. General Clauses Act, which reads as follows: "4. Definitions. -. . . . . . . . . . . . . . . . . . . . (42-8) "statutory instrument" shall mean any notification, order, scheme, rule or bye-law issued under any enactment and having the force of law. (46) "uttar Pradesh Act" shall mean- (a ). . . . . (b) as respects any law made after the commencement of the Constitution, an Act passed by the State Legislature, and shall include any law made in exercise of the powers of the State Legislature by the President or other authority referred to in sub-clause (a) of clause (1) of Article 357 of the Constitution;]" 46. . . . . (b) as respects any law made after the commencement of the Constitution, an Act passed by the State Legislature, and shall include any law made in exercise of the powers of the State Legislature by the President or other authority referred to in sub-clause (a) of clause (1) of Article 357 of the Constitution;]" 46. We, therefore, have no hesitation to record that the provisions of Section 5 of the U. P. General Clauses Act will have no application in respect of notification to be issued under Section 8 of Act, 1964 by the State Government in respect of inclusion or exclusion of specified agricultural produce to the existing list of specified agricultural produce notified under Section 6 of Act, 1964. 47. The aforesaid conclusion is further supported from a reading of Section 20 of the U. P. General Clauses Act, which provides that the expression used in the Statutory Instruments shall unless there is anything repugnant in the subject or context, have the same respective meanings as in the Act conferring the power. But what is to be taken note of is sub-section (2) of Section 20, which although makes the provisions of various sections of the U. P. General Clauses Act applicable to statutory instruments (including the notification to be issued under the Act), but the said sub-section (2) of Section 20 does not include within its ambit Section 5 of the U. P. General Clauses Act. Meaning thereby that the legislature has deliberately not provided that provisions of Section 5 would apply in respect of commencement of statutory instruments. Therefore, the principle qua enforcement of the State Acts i. e. the date of publication in the official Gazette will have no application in respect of the statutory notification to be issued under the enactment. Therefore, it can be safely said that notification issued under Section 8 of Act, 1964 would not become operational immediately on the day it is published in the official Gazette. 48. We may now examine Sections 21, 22, 23 and 23-A of the U. P. General Clauses Act, reliance whereof has been placed by Sri B. D. Madhyan. At the very outset, it may be mentioned that Sections 21 and 22 have no application in the facts of the case. 48. We may now examine Sections 21, 22, 23 and 23-A of the U. P. General Clauses Act, reliance whereof has been placed by Sri B. D. Madhyan. At the very outset, it may be mentioned that Sections 21 and 22 have no application in the facts of the case. Sections 23 and 23-A talk of rules and bye-laws only to be made under an Enactment in contradistinction to the use of word statutory notification under Section 20. The definition of Rules has been provided for under Section 4 (37) of the U. P. General Clauses Act, which reads as follows : "rule". . . . . . "rule" shall mean a rule made in exercise of a power conferred by any enactment, and shall include a regulation made as a rule under any enactment. " 49. Notifications to be issued under the enactments like one in hand are not covered therein. The position is further made clear by the definition of statutory instruments as quoted above, which within its ambit, includes notification, rules or bye-laws issued under the enactments. Meaning thereby that the Legislature itself makes the distinction between notifications to be issued under the enactments and the rules or bye-laws to be framed thereunder. Description of statutory instruments as per Section 20 may include Rules and Regulations but the converse that Rules and Bye-laws will include notification is not true in view of the specific language of the definition clauses read with Sections-20, 23 and 23-A of the General Clauses Act. The intention of the State Legislature to not to include the notifications to be issued under the statutory enactments within the provisions of Sections 23 and 23-A of the U. P. General Clauses Act is clear from the simple reading of the aforesaid provisions of the U. P. General Clauses Act. 50. We may also refer to the judgment of this Court in the case of State v. Banshidhar, AIR 1969 All 184 . It is an opinion of the Honble Third Judge on the issue in respect of which there was difference of opinion between two Honble Judges. The relevant portions of the aforesaid judgment are contained in paragraphs-5,6 and 8, which read as follows: "5. It is an opinion of the Honble Third Judge on the issue in respect of which there was difference of opinion between two Honble Judges. The relevant portions of the aforesaid judgment are contained in paragraphs-5,6 and 8, which read as follows: "5. The main argument advanced on behalf of the State was that the Order having been published in the Government Gazette on the 1st March, 1963 it should be deemed to have come into force from that date. It was said that the principle underlying Section 5 of the General Clauses Act was applicable to the Order, even though it was not applicable in terms of Orders of this kind but only to Central Acts and Regulations. It will be noticed that neither in the Defence of India Rules nor in the impugned Order made in pursuance of Rule 125 is there anything which would suggest that an Order made by the Central Government was to come into force immediately on the publication of the said Order in the Government Gazette. Rule 141 merely provides for publication of the Order in such manner as may appear to the authority, officer or person to be best adopted for informing persons likely to be affected 9 by the Order. It merely gives discretion to the authority making the order to publish the same in the manner best adapted for informing persons whom the Order concerns. Whether the mode adopted is by publication in the Government Gazette or by beat of drum or by effecting personal service of the notice on the individuals concerned, is a matter left to the discretion of the authority making the Order. The Rule does not say that the Order shall become effective and come into operation immediately on its publication in the gazette. 6. The only consequence of the impugned Order being published in the official Gazette was thatitcame into being as a piece of subordinate legislation on the Statute Book. From this it would not follow that it became law with immediate effect. Indeed, there are no words express or implied in the Order itself that it was intended to enforce its provisions from the date of its publication. 8. From this it would not follow that it became law with immediate effect. Indeed, there are no words express or implied in the Order itself that it was intended to enforce its provisions from the date of its publication. 8. The argument that an Order of this kind should be placed on the same footing as an Act made by Parliament by importing the provisions of Section 5 of the General Clauses Act for construing such Orders needs to be mentioned only to be rejected. In Harpal Singh v. State, AIR 1950 All 562 it had been urged that an Order passed by the President should be deemed to be a law made by Parliament. Raghubar Dayal J. , delivering the judgment of the Court, observed that it was not possible to consider an executive Order made by the President as principle of law passed by the Central Legislature should not be placed on the same footing as an Order made by a subordinate authority. 51. In view of the aforesaid opinion of the Honble Third Judge, the Division Bench of this Court held that the Order issued had not come into force on the date it was published in the official Gazette. 52. So far as the judgment of the Honble Supreme Court relied upon by Sri B. D. Madhyan, learned counsel for Mandi Parishad in the case of S. K. Shuwa (supra) is concerned, we may only reproduce paragraph-17 of the said judgment, which reads as follows: "17. Therefore, it became effective from the date of its publication. Normally under the State General Clauses Act, an Act comes into force on the date when the assent of the Governor or the President as the case maybe, is first published in the official Gazette of the State. Therefore, publication in the Gazette is essential as it affects the rights of the public. Since this prohibitory notification notifying that the possession of certain kinds of arms in the notified area is prohibited, therefore, it would come into effect from the date when it was published in the official Gazette. " 0 53. It is thus, apparently clear that the Honble Supreme Court had only stated as to what was normally the position qua enforcement of Acts of State Legislative under State General Clauses Act. " 0 53. It is thus, apparently clear that the Honble Supreme Court had only stated as to what was normally the position qua enforcement of Acts of State Legislative under State General Clauses Act. The Judgment had not refer to any of the provisions of the U. P. General Clauses Act with reference to the issuance of notification by the State in exercise of statutory power. Therefore, the said judgment does not support the case of the Mandi Samiti. As already stated above that U. P. General Clauses Act, does not provide that all statutory instruments shall take effect from the date on which they are published in the official Gazette. 54. Similarly, so far as the judgment of the Honble Supreme Court in the case of Rakesh Vij v. Dr. Raminder Pal Singh Sethi and others, AIR 2005 SC 3593 is concerned, the same has no application in the facts of the case, inasmuch as it was a case dealing with the General Clauses Act (Central ). Paragraph-15 of the judgment provides that if the meaning of the words of a Statute are plain and simple, it is not the duty of the Courts to busy themselves with supposed intentions. Paragraph-15 of the said judgment reads as follows: "15. In State of Haryana and others v. Ch. Bhajan lal and others, AIR 1992 SC 604 in paragraph 42, this Court quoted with approval the following passage from the judgment of Lord Atkin in Pakala Narayanaswami V. Emperor, AIR 1939 PC 47: "when the meaning of the words is plain, it is not the duty of Courts to busy themselves with supposed intentions. . . . . . . . . . It, therefore, appears inadmissible to consider the advantages or disadvantages of applying the plain meaning whether in the interests of the prosecution or accused. In Emperor v. Benoari lal Sarma and others, AIR 1945 PC 48, Lord Chancellor Viscount Simon said, "in construing enacted words the Court is not concerned with the policy involved or with the results, injurious or otherwise, ; which may follow from giving effect to the language used. " Therefore, any supposed intention of the Parliament cannot be taken into consideration for interpretation of the Chandigarh Extension Act, 1974. " 55. " Therefore, any supposed intention of the Parliament cannot be taken into consideration for interpretation of the Chandigarh Extension Act, 1974. " 55. In view of the aforesaid discussion, we have no hesitation to hold that there is no normal general principle under the U. P. General Clauses Act, which provides that the notifications issued in exercise of statutory powers under the State Act would take effect from the date they are published in the official Gazette and therefore, unless a date is specified for bringing the said notification into force in the official Gazette itself, it cannot be presumed that the same would become operational from the date it is so published in the official Gazette. 1 56. It would be relevant to refer to the other notifications issued in exercise of power under Section 8 of Act, 1964 being Notification No. 6852/xii-8-298-72, dated 1 April, 1978, Notification No. 6854/xii-8-298- 72, dated April, 1978 as well as Notification No. 4602/xii-8-277-72, dated July 10, 1980. All these notifications specifically provided the date on which the subject matter of the notification would become operational. In the first case, it was 15th May, 1978, in the second case it was also 15th May, 1978 and in third case, it was 16th July, 1980. No notifications issued under Section 8 of Act, 1964, which did not mention the specific date on which the same would take effect has been brought to the knowledge of the Court. Thus it can be presumed that in all notifications issued under Section 8 of Act, 1964 the State had specified the date on which it was to take effect except the one in hand. 57. There is another reason for arriving at the same conclusion, namely, if law/statute requires something to be done in a particular manner, it must be done in that manner alone or not at all. Reference Tailor v. Taylor, (1876) 1 Ch. D. 426; State of Bihar and another v. J. A. C. Saldanna and others, AIR 1980 SC 326 ; Haresh Dayaram Thakur v. State of Maharashtra and others, AIR 2000 SC 2281 ; Dhananjaya Reddy v. State of Karnataka, AIR 2001 SC 1512 ; and Ram Phal Kundu v. Kamal Sharma, AIR 2004 SC 1657 . 58. D. 426; State of Bihar and another v. J. A. C. Saldanna and others, AIR 1980 SC 326 ; Haresh Dayaram Thakur v. State of Maharashtra and others, AIR 2000 SC 2281 ; Dhananjaya Reddy v. State of Karnataka, AIR 2001 SC 1512 ; and Ram Phal Kundu v. Kamal Sharma, AIR 2004 SC 1657 . 58. In view of the aforesaid, we find that in the facts of the present case, notifications dated 18th July, 2003, dated 14th August, 2003 and dated 15th December, 2004 do not specify any date from which the said specified agricultural produce, namely, "all type of herbs and mints of Mentha family, their oils and solid material extracted from the oils and the residue left after extraction of solid" shall stand included in the list of specified agricultural produce provided earlier under Section 6 of Act, 1964 as amended from time to time. Therefore, so long as such date is not notified the said commodities cannot be said to be included as specified agricultural produce for being subjected to levy of any Mandi fee on transaction thereof. We have, therefore, no other option but to hold that notification dated 15th December, 2004 by it self will not render the transaction of agricultural produce, namely Mentha and its products to be subjected to levy under Section 17 of Act, 1964. Consequently, the demand raised against the petitioner on transaction of such agricultural produce vide notices dated 10/11th June, 2008 and dated 27th August, 2008 cannot be legally sustained, for want of competence to charge Mandi fee on the transaction of such agricultural produce. 59. So far as the ground (d) is concerned, we may clarify that plea of promissory estoppel raised on behalf of the petitioner is totally misconceived. The Competent Authority under the Act, 1964 to include or exclude any agricultural produce form the list of specified agricultural produce under Section 8 of Act, 1964 is the State Government. Merely because the State Government had published a draft notification in the year 2005 proposing exclusion of the commodities in question from the list of specified 2 agricultural produce, it will not mean that if no objections are filed to the said draft notification, the State is obliged to issue final notification under Section 8 to exclude such commodities from list notified under Section 6 of Act, 1964. It is always open to the State to change its opinion even after issuance of draft notification referable to proviso to Section 8 of Act, 1964. 60. Writ Court under Article 226 of the Constitution of India cannot force the State Government to exercise the statutory power either directly or by delegatee in a particular manner. It is settled legal proposition that neither the Court can legislate nor it can issue direction to the State Government to legislate a law in a particular manner. At the most, if the Court comes to the conclusion that a particular provision is ultra-vires or unconstitutional, it can simply strike down the same, or in a particular case, write down a particular law to meet a particular situation. But this case does not fall in that category. 61. In Union of India v. Deoki Nandan Aggarwal, AIR 1992 SC 96 , the Honble Supreme Court observed as under: "it is not the duty of the Court either to enlarge the scope of legislation or the intention of the legislature when the nature of the provision is plain and unambiguous. The Court cannot re-write, re- cast or re-frame the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Courts. " 62. More so, the Court does not have the power to issue a direction to the legislature to enact in a particular manner. 63. In Mullikarjuna Rao and others etc. etc. v. State of Andhra Pradesh and others, AIR 1990 SC 1251 , the Honble Apex Court has held that Writ Court, in exercise of its power under Article 226, has no power even indirectly require the Executive to exercise its law-making power. 64. Even otherwise we may record that absolutely no assurance had been held out by the State Government for withdrawing of such commodities from the list of specified agricultural produce nor the petitioner had altered their position in any manner on the basis of such assurance. The plea that the petitioner did not pay Mandi Fee because of issuance of the draft notification in the year 2005 is neither here nor there. The plea that the petitioner did not pay Mandi Fee because of issuance of the draft notification in the year 2005 is neither here nor there. The levy of market fee on the transaction in respect of specified agricultural produce is not adversely affected merely because of any draft notification proposing to withdraw the commodities from the list of specified agricultural produce is published for inviting objections. Such withdrawal will 3 take effect only when final notification is issued under Section 8 of Act, 1964, which has not been done by the State Government in the facts of the present case. The State Government on the contrary has come out with a categorical case that it does not propose to issue any final notification under Section 8 of Act, 1964 for withdrawing the Mentha and its products from the list of specified agricultural produce. So long as a valid notification under Section 8 is in operation, no Assessee can evade the payment of Mandi Fee, if chargeable on the transaction of the specified agricultural produce, the plea raised on the principle of promissory estoppel has therefore, to be turned down. 65. So far as the ground (e) is concerned, we are not expressing any final opinion on this issue because we find that no notification as contemplated by Section 8 of Act, 1964 read with Rule-130 of Rules, 1965 specifying the date on which Mentha and its products would stand included in the list of specified agricultural produce has been issued. Therefore, the transaction thereof within the market area, cannot be subjected to levy of any Mandi Fee. Moreover we are of the view that such issues of fact can always be questioned and decided by way of Revision under Section 32 of Act, 1964 before the Director, Krishi Utpadan Mandi Parishad. 66. In view of the aforesaid the writ petition is allowed only to the extent that because of non- specification of the date from which all types of herbs and mints of mentha family, their oils and solid material extracted from the oils and the residue left after extraction of solid shall stand included in the list of such specified agricultural produce in the notification dated 15th December, 2004, the demand notices dated 10/11th June, 2008 and dated 27th August, 2008 cannot be legally sustained and are hereby quashed. Similar demands under challenge in the connected writ petitions are also quashed. 67. However, no order is passed as to cost. .