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2017 DIGILAW 611 (ORI)

K. K. Trading Company v. State of Orissa

2017-06-19

D.P.CHOUDHURY

body2017
JUDGMENT : Dr. D.P. Choudhury, J. 1. Challenge has been made to the illegal action of the Regulated Market Committee, Panposh, opposite party no.4 (hereinafter called the “the RMC”) for collecting market fee. 2. Since the above three writ petitions have got common question of law, they are being taken up together for disposal by this common judgment. FACTS 3. The adumbrated facts of the petitioners are that the petitioners, in all the three writ petitions, being trading companies have got business dealing in wholesale and retail sale of various Dals, Pulses etcetera having their place of business at Rourkela in the district of Sundergarh. They used to purchase the goods from different places outside the State of Orissa and then being transported from those places by vehicle for delivery at the place of business of the petitioners. The transportation of goods from outside the State and other places in vehicles are accompanied with necessary documents such as copy of the cash/credit bill with statutory declaration in Form- ‘C’ under the Central Sales Tax Act. 4. Be it stated that the opposite party no.4-RMC earlier was collecting Rs.200/- per vehicle entering into Rourkela through RMC, Panposh Check Gate in respect of different agricultural produce brought from outside the market area, but later on the opposite party no.4-RMC collected the market fee at RMC Check Gate, Panposh at the rate of 1% on the value of all incoming consignments passing through the check gates carrying Dals, Pulses etc. Undoubtedly, the agricultural produce were coming to the place of business of petitioners at Rouekala. As the Dals and Pulses are being purchased from outside the Orissa and outside the RMC area but entering the RMC area, such collection of market fee purportedly is illegal and improper. Not only this but also the Sub-Collector-cum-Chairman, Panposh RMC, in his letter dated 31.5.2003 informed the President of the Chamber of Commerce and Industry, Rourkela to inform the traders bringing agricultural produce to pay the market fee to RMC at the rate of 1% on the purchase value at gate point with effect from 7.6.2003. Accordingly, Rourkela Chamber of Commerce and Industries had informed the Director, Agriculture Marketing, Orissa, opposite party nos.3 and 4 to withdraw agricultural marketing fee at Rourkela since the impugned levy is not only undesirable and illegal but also causes loss and embarrassment to its members. 5. Accordingly, Rourkela Chamber of Commerce and Industries had informed the Director, Agriculture Marketing, Orissa, opposite party nos.3 and 4 to withdraw agricultural marketing fee at Rourkela since the impugned levy is not only undesirable and illegal but also causes loss and embarrassment to its members. 5. Be it stated that the avowed object of Orissa Agricultural Produce Markets Act, 1956 (hereinafter called as “the Act, 1956”) is to protect the interest of the agriculturists growing crops and marketing the same to the traders, who in turn, exports them to other private and other areas and to stop the unfair practice by the wholesale traders in course of their transaction with the agricultural producers. In spite of the object of the Act, 1956, the opposite party no.4 continued to collect the market fee from the petitioners who purchased such produce from outside the State like Madras, Bombay, Hyderabad, Madhya Pradesh and other places and bring the same to the area of RMC, Panposh for onward wholesale trading. 6. Be it stated that the levy of fee is purportedly made by virtue of the power conferred under Section 11 of the Act. Since the agricultural produces are purchased by the petitioners from outside the State and brought to the market area of opposite party no.4, the same does not attract any liability whatsoever under Section 11 of the Act for their exigibility to market fee imposed by opposite party no.4. This matter is covered by the decision of this Court in the case of M/s. Ganesh Rice Mills and another –V- Attabira Regulated Market Committee and others; 1991 (II) OLR 58. 7. It is the rule of law that no fees and fiscal levy is imposable without authority of law as in the present case, the agricultural produce purchased by the petitioners from outside the State are not marketed inside the market area of RMC-Panposh and more so at the point of entry, levy and collection of market fee by opposite party no.4 is wholly illegal and arbitrary. It is, therefore, prayed in all the three writ petitions to declare such levy and collection of the market fee as illegal and impermissible in law and to direct the opposite parties to refund the market fee collected from the petitioners with interest. 8. It is, therefore, prayed in all the three writ petitions to declare such levy and collection of the market fee as illegal and impermissible in law and to direct the opposite parties to refund the market fee collected from the petitioners with interest. 8. Contradistinctions to the contentions made in the writ petitions, the opposite party no.4-RMC filed counter affidavit refuting the allegations made against it. It is the case of the opposite party no.4 that the petitioners carry on business on wholesale and retail sale of various Dals and Pulses having their places of business at Rourkela under the jurisdiction of RMC, Panposh. The petitioners purchased the goods from outside the State, brought the same to the market area through the Check Gate of RMC, Panposh and sold the same inside the market area as defined under Sub-Section-5 of Section 4 of the Act, 1956. Since the goods are brought through the Check Gate of RMC, Panposh to the market area for the purpose of selling the same in the market area, the opposite party no.4 has rightly collected the tax as provided in Clause-13 of the Bye-Law as well as Rules. 9. Be it stated that the petitioners are licensees under the opposite party no.4 for marketing the goods inside the RMC area. The declaration Form ‘C’ possessed by the petitioners may give relief under the Central Sales Tax Act but cannot be used its exigibility under the Act, 1956 because the objects of both the Acts are different. Rule-48(1) of the Orissa Agricultural Produce Markets Rules, 1958 (hereinafter called as “the Rules, 1958”) made under the Act, 1956 states that the market committee shall levy and collect market fees on the agricultural produce sold or brought for sale or for storage in the market yard at such rates as may be specified in its Bye-Law subject to the following maxima. Since the agricultural produce are brought by the petitioners for sale to the market yard, the opposite party no.4 has right in collecting the market fee. 10. The ratio of the case in the case of M/s. Ganesh Rice Mills and another (Supra) is not applicable to the facts of the present case because in that case, the Court decided regarding issue of levy and collection of market fee on agricultural produce marketed outside the market area. 10. The ratio of the case in the case of M/s. Ganesh Rice Mills and another (Supra) is not applicable to the facts of the present case because in that case, the Court decided regarding issue of levy and collection of market fee on agricultural produce marketed outside the market area. At the same time, the decision rendered by this Court in the case of Shiv Prasad Shyamsundar –V- The Regulated Market Committee, Jharsuguda; 82 (1996) CLT 436 that the market fee collected upon the agricultural produce marketed within the market area cannot be made refundable. 11. It is stated that Rule-51 of the Rules, 1958 provides for collection of fees and proviso to such rule deals with the manner of collection of fees. Under such proviso, every trader, adatya or buyer being authorized under the Bye-Law and Market Committee to collect the market fee, has to deposit such market fee with the paid servant of the committee. It is further stated that since the opposite party no.4 has been duly nominated by the State Government under Sub-Section-6 of Section-6 of the Act, 1956 to collect market fee and the petitioners have purchased the produces from outside the State and brought the same to the market area of opposite party no.4 for the purpose of storage and selling, the opposite party no.4 has justifiably levied and collected the market fees. Hence, the writ petitions having no merit should be dismissed. 12. SUBMISSIONS Mr. Jagabandhu Sahoo, learned Senior Advocate for the petitioners submitted that the petitioners have purchased the Dal, Pulses etcetera, which are agricultural produce from outside Orissa and brought the same to Rourkela for their sale to different dealers. The petitioners have already paid necessary fees at different Check Gates outside the State and again it is subjected to payment of market fee while entering into the area of RMC, Panposh. According to him the provisions under Section 11 of the Act, 1956, being charging Section, does not state about any collection of levy and market fee while the same being brought inside the market area after being purchased from outside the market area. According to him the provisions under Section 11 of the Act, 1956, being charging Section, does not state about any collection of levy and market fee while the same being brought inside the market area after being purchased from outside the market area. He further submitted that the avowed object of the Act, 1956 for marketing of the agricultural produce by the innocent buyers and to stop the unfair trade practice by middlemen, the opposite party no.4 has committed error by levying and collecting market fee from the petitioners. 13. Mr. Sahoo, learned counsel for the petitioners further submitted that in the instant cases, the agricultural produces enter through the Check Gate of the RMC, Panposh-opposite party no.4 and there the market fee is being collected but the Rules prescribe that while the agricultural produce are purchased, the market fee is to be collected. On the other hand, before the transaction, the market fee has been collected by the opposite party no.4-RMC, which is against the principles of law. As the Act, 1956 is silent about collection of such market fee and Section 11 is the charging section in this regard, any rule framed under the Act, 1956 prescribing the manner of collection of the market fee is de hors the law for which the levy and collection of the market fee by the opposite party no.4 be declared as illegal and improper. 14. Mr. P.R. Patnaik, learned counsel for the opposite party no.4 submitted that the petitioners have suppressed the material facts because it simply pleads that the goods are purchased from outside the market area and brought to the area of RMC, Panposh but conceals about marketing of the same inside the market area. He submitted that actually the goods are brought by the petitioners from outside the market area to the market area and market yard of the opposite party no.4 for selling the same to the buyers. According to him, Section-11 of the Act, 1956 prescribes that there should be levy of the market fee but does not indicate the manner of levy and collection of market fee. Since the rules have been framed under the Act, 1956 and Rule-48 prescribes the detail manner of levy and collection of market fee, it cannot be said that said provisions are contrary to the provisions of the Act, 1956. Since the rules have been framed under the Act, 1956 and Rule-48 prescribes the detail manner of levy and collection of market fee, it cannot be said that said provisions are contrary to the provisions of the Act, 1956. Under such provision, the RMC is conferred with the power to levy and collect market fee from the agriculturists who buy or sale the agricultural produce. On 3.8.1996, such Rule-48 was amended prescribing the detail procedures. Under such procedure, the collection and levy of market fee is to be made from the purchasers or the traders bringing the agricultural products to the market area for sale or storing of the same. Since in the instant cases, the goods admittedly have been brought to the area of RMC, Panposh and the same have been marketed, the levy and collection of fee at the Check Gate while entering into the market area is also in accordance with law. 15. Mr. Patnaik further submitted that in the instant cases, the agricultural produce brought by the petitioners has not been transacted within thirty days as provided in the proviso to Sub-Section-6 of Section-4 of the Act, 1956 so as to exempt such agricultural produce to pay the market fee and, therefore, under the Bye-Law, the market fees are being collected by the opposite party no.4-RMC at the Check Gate. He further submitted that in the interim order dated 21.12.2004 passed by this Court, there is clear discussion in this regard and accordingly the interim order has been passed by stating that the market fee collected so far by the opposite party no.4 be kept in a separate account. He, therefore, submitted that there is no merit in the writ petitions and the same should be dismissed. 16. POINT FOR CONSIDERATION The main point for consideration is as to whether the levy and collection of market fee by opposite party no.4-RMC from the petitioners is legal and proper? 17. DISCUSSIONS It is admitted that the petitioners are wholesale traders of Dals and Pulses and they had purchased the same from the outside market area of opposite party no. 4. It is not in dispute that the petitioners bring the goods through the Check Gate of opposite party no. 4 to the market area and opposite party no.4 has collected the market fee. 18. The contention of Mr. 4. It is not in dispute that the petitioners bring the goods through the Check Gate of opposite party no. 4 to the market area and opposite party no.4 has collected the market fee. 18. The contention of Mr. Sahoo, learned Senior Advocate for the petitioners to the effect that the agricultural produce being marketed outside the market area and thereafter being brought from such places to the market area of the opposite party no.4., the same is not exigible to market fee under the Act, 1956. On the other hand, the opposite party no.4-RMC claims that the petitioners use to sell the goods brought to the market to the buyers for which the opposite party no.4 is correct in its approach to levy and collect the market fee. 19. In the writ petitions, the petitioners have admitted that the petitioners having purchased the agricultural produce from outside the Orissa, brought the same for its business at RMC, Panposh. The dictionary meaning of “business” as per Webster’s Encyclopedic Unabridged Dictionary is that the purchase and sale of goods in an attempt to make a profit. So, the petitioners admit that the goods so procured from outside Orissa are brought to the market area of opposite party no.4-RMC for sale. 20. The distinction between a ‘tax’ and a ‘fee’ is of particular importance lies under our Constitution in connection with the question of their application varies inasmuch as the power exists to levy different kinds of imposition by the various Entries in the Legislative Lists, so that the validity of the imposition made by a particular Legislature has to be determined with reference to those Entries. A “tax” is a compulsory exaction of money by a public authority for public purposes enforceable by law and is not payment “for services rendered”. The Constitution Bench of the Hon’ble Supreme Court in the case of The Commissioner, Hindu Religious Endowments, Madras –V- Sri Lakshmindra Thirtha Swaminar of Sri Shirur Mutt; AIR 1954 SC 282 , at paragraphs-43, 44 and 45, have observed as under: “43. A neat definition of what "tax" means has been given by Latham C. J. of the High Court of Australia in- “Matthews v. Chicory Marketing Board”, 60 CLR 263 at P.276 (M). A neat definition of what "tax" means has been given by Latham C. J. of the High Court of Australia in- “Matthews v. Chicory Marketing Board”, 60 CLR 263 at P.276 (M). A “tax”, according to the learned Chief Justice, "is a compulsory exaction of money by public authority for public purposes enforceable by law and is not payment “for services rendered". This definition brings out, in our opinion, the essential characteristics of a tax as distinguished from other forms of imposition which, in a general sense, are included within it. It is said that the essence of taxation is compulsion, that is to say, it is imposed under statutory power without the taxpayer's consent and the payment is enforced by law vide - “Lower Mainland Diary –V- Orystal Diary Ltd: 1933 AC 168 (N). The second characteristic of tax is that it is an imposition made for public purpose without reference to any special benefit to be conferred on the payer of the tax. This is expressed by saying that the levy of tax is for the purposes of general revenue, which when collected revenues of the State. As the object of a tax is not to confer any special benefit upon any particular individual, there is, as it is said, no element of “quid pro quo” between the taxpayer and the public authority, see Findiay Shirras on ‘Science of Public Finance’, Vol.1 P.203. Another feature of taxation it; that as it is a part of the common burden, the quantum of imposition upon the taxpayer depends generally upon his capacity to pay. 44. Coming now to fees, a 'fee' is generally defined to be a charge for a special service rendered to individuals by some governmental agency. The amount of fee levied is supposed to be based on the expenses incurred by the Government in rendering the service, though in many cases the costs are arbitrarily assessed. Ordinarily, the fees are uniform and no account is taken of the varying abilities of different recipients to pay, Vide Lutz on “Public Finance” P.215. These are undoubtedly some of the general characteristics, but as there may be various kinds of fees, it is not possible to formulate a definition that would be applicable to all cases. 45. Ordinarily, the fees are uniform and no account is taken of the varying abilities of different recipients to pay, Vide Lutz on “Public Finance” P.215. These are undoubtedly some of the general characteristics, but as there may be various kinds of fees, it is not possible to formulate a definition that would be applicable to all cases. 45. As regards the distinction between a tax and a fee, it, is argued in the first place on behalf of the respondent that a fee is something voluntary which a person has got to pay if he wants certain services from the Government; but there is no obligation on his part to seek such services and if he does not want the services, he can avoid the obligation. The example given is of a licence fee. If a man wants a licence that is entirely his own choice and then only he has to pay the fees, but not otherwise. We think that a careful examination will reveal that the element of compulsion or coerciveness is present in all kinds of imposition, though in different degrees and that it is not totally absent in fees. This, therefore, cannot be made the sole or even a material criterion for distinguishing a tax from fees. It is difficult, we think, to conceive of a tax except, it be something like a poll tax, the incidence of which falls on all persons within a State. The house tax has to be paid only by those who own houses, the land tax by those who possess lands, municipal taxes or rates will fall on those who have properties within a municipality. Persons, who do not have houses, land or Properties within municipalities, would not have to pay these taxes, but nevertheless these impositions come within the category of taxes and nobody can say that it is a choice of these people to own lands or houses or specified kinds of properties, so that there is no compulsion on them to pay taxes at all. Compulsion lies in the fact that payment is enforceable by law against a man in spite of his unwillingness or want of consent; and this element is present in taxes as well as in fees. Compulsion lies in the fact that payment is enforceable by law against a man in spite of his unwillingness or want of consent; and this element is present in taxes as well as in fees. Of course, in some cases whether a man would come within the category of a service receiver may be a matter of his choice, but that by itself would not constitute a major test which can be taken as the criterion of this species of imposition. The distinction between a tax and a fee lies primarily in the fact that a tax is levied as a part of a common burden, while a fee is a payment for a special benefit or privilege. Fees confer a special capacity, although the special advantage, as for example in the case of registration fees for documents or marriage licenses, is secondary to the primary motive of regulation in the public interest, vide Finlay Shiras on ‘Science of Public Finance’, Vo.I, page 202. Public interest seems to be at the basis of all impositions, but in a fee it is some special benefit which the individual receives. As seligman says it is the special benefit accruing to the individual which is the reason for payment in the case of fees; in the case of a tax, the particular advantage if it exists at all is an incidental result of State action, vide Seligman’s Essays on Taxation, P.408.” With due respect to the aforesaid decision, when there is clear distinction between a ‘tax’ and a ‘fee’, primary object of a tax is not to confer any special benefit upon any particular individual, there is no element of “quid pro quo” between the taxpayer and the public authority. Another feature of taxation is that as it is a part of common burden, the quantum of imposition upon the taxpayer depends generally upon his capacity to pay. On the other hand, the “fee” is generally defined to be a charge for a special service rendered to individuals by some Government agency. But the traditional view that there must be actual “quid pro quo” in the strict sense but is not a sine qua non for collection of fee. On the other hand, the “fee” is generally defined to be a charge for a special service rendered to individuals by some Government agency. But the traditional view that there must be actual “quid pro quo” in the strict sense but is not a sine qua non for collection of fee. Although the tax and fee appear to be same burden on the public but there is basic difference which in the present cases, make it clear that the exemption of the sales tax to the petitioners could not exempt the petitioners from paying the market fee. 21. Section-11 of the Act, 1956, which has been amended on 24.11.1984 is quoted hereunder for reference: “11.It shall be competent for a Market Committee to levy and collect such fees (hereinafter referred to as the market fees) not being less than one rupee from every purchaser for every hundred rupees worth of agricultural produce marketed in the market area in such manner as may be prescribed and at such rate as may be specified in the bye-laws : Provided that the rate of fees to be specified in the bye-laws shall not exceed three percent of the value of agricultural produce sold in the markets within the market area Provided further that no such fees shall be levied and collected in the same market area in relation to any agricultural produce in respect of which fees under this section have already been levied and collected therein. Explanation- For the purpose of this section all notified agricultural produce leaving a market yard shall unless the contrary is proved, be presumed to have been brought within such yard by the person in possession of such produce. From the aforesaid Section, it appears that the provisions have allowed the Market Committee to levy and collect fees at the rate not being less than one rupee from each purchaser for every hundred rupees worth of agricultural produce marketed in the market area, in the manner as may be ‘prescribed’ and specified in the Bye-Law. 22. Under Chapter-VI, Rule 48 of the Rules, 1958 has been amended on 3.8.1996, which is reproduced as under: “48. 22. Under Chapter-VI, Rule 48 of the Rules, 1958 has been amended on 3.8.1996, which is reproduced as under: “48. (1) The Market Committee shall levy and collect market fees from: (a) A purchaser notified agricultural produces marketed in the market area; (b) The person deemed to be a purchaser under the explanation to Section 11 of the Act in respect of the notified agricultural produce; and (c) The persons bringing any notified agricultural produce into the market area for the purpose of processing or for export only, but not processing it therein or exporting it therefrom within the period of thirty days as provided in the provisos to Sub-section(6) of Section 4 of the Act, at such rates as may be specified in its bye-laws, subject to the minima and the maxima specified in Section 11 of the Act; (2) The Market Committee shall levy and collect licence fees from traders, adatyas, brokers, weighmen, measures, surveyors and warehousemen operating in the market area at such rates as may be fixed in its bye-laws. (3) A person brining any notified agricultural produce from outside the market area into the market area, for the purpose of processing by his industrial concern situated within the market area, if any, or for export from such area, shall be subject to levy of market fee unless he furnishes a declaration in respect of the produce and the certificate in Form-IV, to any Officer or servant of the Market Committee specifically authorized by the Committee in that behalf at the time of entry of the said produce into the market area Provided that if the agricultural produce is not used by the industrial concern and is removed from the market or if it is not exported within twenty days of the purchase, the Market Committee shall levy and collect fees on such agricultural produce from the industrial concern or the persons furnishing the certificate at such rates as may be specified in its bye-laws. (4) Retail sale of agricultural produce by the producer shall be exempted from any fees. Explanation-“Retail Sale” in respect of any agricultural produce means the sale of such agricultural produce in any calendar day not exceeding the quantity or value specified in the bye-laws of the Market Committee. (4) Retail sale of agricultural produce by the producer shall be exempted from any fees. Explanation-“Retail Sale” in respect of any agricultural produce means the sale of such agricultural produce in any calendar day not exceeding the quantity or value specified in the bye-laws of the Market Committee. (5) Purchase of any agricultural produce in any calendar day not exceeding the quantity or value specified in the bye-laws of the Market Committee, by a buyer for his domestic or household consumption shall be exempted from the payment of any fee. 48-A. Establishment of Check Points by the Market Committee- The Market Committee may, for the purpose of due discharge of its responsibilities, under the Act, Rules and Bye-laws, establish check points at such locations as may be notified by it from time to time, with the previous approval of the Government.” 23. From the aforesaid provision, it is clear that Rule 48 is the prescribed method as required under Section 11 of the Act, 1956. So, the contention of the learned counsel for the petitioners that Section 11 is the charging Section and Rule 48 cannot be read without Section 11 is incorrect because Section 11 read with Section 27 of the Act direct the State Government to frame Rule and accordingly Rule 48 has been framed prescribing the manner of levy and collection of market fee. Thus, the market fee is to be collected in the manner prescribed in Rule 48 of the Rules, 1958. 24. In the instant cases, there is no document produced by the petitioners to show that the petitioners have exported or processed agricultural produce within thirty days. Rather, it is admitted by the petitioners that the goods purchased from outside the market area are brought to the market area for business and as such, the entire marketing of the agricultural goods by the petitioners takes place in the market area of the RMC, Panposh. The petitioners bringing the agricultural produce into the market area either for process or for export and for being not exported within thirty days, has to pay market fee in accordance with Clause-13 of the Bye-Law, as submitted by the learned counsel for the opposite party-RMC. The petitioners bringing the agricultural produce into the market area either for process or for export and for being not exported within thirty days, has to pay market fee in accordance with Clause-13 of the Bye-Law, as submitted by the learned counsel for the opposite party-RMC. Not only this but also Rule-51 prescribes in the following manner: “51.Collection of fees-The fees shall be collected by the paid servants of the Market Committee and the right to collect the fees shall not be formed out. Provided that the collection of fees through a trader, adatya or buyer shall, if such collection is authorized in the bye-laws of the Market Committee and, is deposited with a paid servant of the Committee in the manner specified in the said bye-laws, be deemed to be a collection by the paid servants of the Committee.” Thus, it is made clear that a trader, Aditya or buyer can be authorized by the Market Committee to deposit the market fee collected by him with the paid servant of the Committee. When in these cases, the petitioners have got their business inside the market area and also they are the licences to do the business inside the market area, they can be authorized to collect market fee from buyer and pay the same to the opposite party no.4 as per the aforesaid provisions of law. 25. From the aforesaid discussion, it is clear that the petitioners even if purchased the agricultural produce outside the market area but have brought the same to the market area for buying and selling including export of the same as they are the wholesale dealer. Thus, the petitioners have brought such agricultural products for the purpose of marketing. The definition of “marketing” has been introduced in 2007 but prior to that, the word “marketing” in common parlance includes buying and selling of the agricultural produce. So, the petitioners have brought the said agricultural produce to the market area for marketing of the same and as such, under Section 11 of the Act, 1956, they are liable to pay the market fee as per the amount fixed in the Bye-Law of the RMC-opposite party no.4. On the other hand, opposite party no.4 is entitled to levy and collect market fee under Section 11 of the Act, 1956 from the petitioners for the marketing of said agricultural produce. The point is answered accordingly. 26. On the other hand, opposite party no.4 is entitled to levy and collect market fee under Section 11 of the Act, 1956 from the petitioners for the marketing of said agricultural produce. The point is answered accordingly. 26. CONCLUSION In terms of the above discussions, the Court is of the view that the agricultural produce procured by the petitioners from the outside the State are being brought to the market area of opposite party no.4 for the purpose of marketing including export of same and as such, the opposite party no.4-RMC is justified in levying and collecting the market fee. 27. The contention of the learned Senior Advocate for the petitioners about the applicability of the decision of this Court reported in M/s.Ganesh Rice Mills and another (Supra) is not applicable because in that case, there was no marketing of the agricultural produce in the market area and in that case, this Court observed that where there is no marketing inside the market area of the RMC, the RMC has no authority to levy and collect market fee even if the agricultural produce passes through the market area without the same being marketed. So, the ratio of that case is not applicable to the present cases at hand in view of the different facts and circumstances of that case. 28. Rule-51 of the Rules, 1958, as discussed above, specifies about the collection of fees and the interim order dated 21.12.2004 of this Court also discussed about the same and following two paragraphs are relevant for coming to the conclusion of this case, which are reproduced as under: “We find on a reading of the bye-laws of the opp. party no.4 Market Committee annexed to the counter affdiavit of opp. Party no.4 as Annexure-A/4 in W.P.(C) No.13116 of 2003 that the bye-laws authorize collection of such market fee by every trader, adatya or buyer for agricultural produce brought to him for sale @ Rs.1/- per cent and for which he shall have to maintain a separate account. Hence it is clear that although market fee is to be levied and collected from the purchaser of agricultural produce in the market area, a trader, adatya or buyer is authorized to collect such market fee from the purchasers and such collection by the trader, adatya or buyer is deemed to be collected by the paid servants to the Committee. Hence it is clear that although market fee is to be levied and collected from the purchaser of agricultural produce in the market area, a trader, adatya or buyer is authorized to collect such market fee from the purchasers and such collection by the trader, adatya or buyer is deemed to be collected by the paid servants to the Committee. In view of the said provisions of the Act, Rules and the bye-laws of opp. Party no.4, we vacate the interim order dated 9.2.2004 and direct that a separate account will be maintained by the opp. Party no.4 for any market fee collected from the petitioner and in case, the petitioner succeeds in the writ petition, appropriate order will be passed for refund of the amounts so deposited with the Market Committee. Xx xx xx xx” From the aforesaid paragraphs of the above order, it is clear that a trader or a adatya or a buyer can collect and deposit the same with the RMC. Also, there is a decision of this Court passed in W.P.(C) No.12392 of 2003 (M/s.Shree Basuki Bhandar –V- State of Orissa and others) where Their Lordships have observed in the same manner. Hence, in the instant cases, even if the opposite party no.4 is entitled to levy and collect market fee from the petitioners, the petitioners should be authorized by opposite party no.4 to collect the market fee from the purchasers and deposit the same with the RMC-opposite party no.4. In that context, there is no necessity of collection of market fee at the Check Gate. So, the market fee is to be collected by the opposite party no.4 from the petitioners who have collected the same from the purchasers of the goods. Thus, the Court is of the opinion that the levy and collection of market fee by the opposite party no.4-RMC although is allowed but the same would not be collected at the entrance of Check Gate of RMC but it would be collected from the petitioners at market area after the same has been collected by the petitioners from the purchasers of the goods. Accordingly, the writ petitions are disposed of with a direction to the opposite party no.4-RMC to levy and collect market fee from the petitioners at the rate prescribed under the Bye-Law after market fee being collected from the purchasers by the petitioners as observed above. Accordingly, the writ petitions are disposed of with a direction to the opposite party no.4-RMC to levy and collect market fee from the petitioners at the rate prescribed under the Bye-Law after market fee being collected from the purchasers by the petitioners as observed above. The market fee collected by the opposite party no.4-RMC vide interim order dated 21.12.2004 shall not be refunded to the petitioners and would go to the account of opposite party no.4-RMC. The writ petitions are disposed of accordingly.