S.B.MAJMUDAR - (1.) LEAVE granted in the Special Leave Petitions.
(2.) THESE appeals and writ petitions mainly raise the question regarding the legality of the levy of market fee under the provisions of Bihar Agricultural Produce Markets Act, 1960 (hereinafter referred to as the 'Market Act' for short). The grievance made by the appellants/writ petitioners pertained to the following commodities with which the respective proceedings are concerned. 1. Sugarcane, Sugar and Molasses (briefly referred to as 'Sugar matters'); 2. Wheat products Atta, Maida, Suzi, Bran etc.; 3.Vegetable Oil; 4.Rice milling; 5.Milk and milk products; 6.Tea.It will, therefore, be appropriate to deal seriatim the grievances centering round the levy of market fee on transactions concerning the aforesaid commodities. GRIEVANCES IN CONNECTION WITH MARKET FEE CONCERNING SUGAR MATTERS So far as this group of matters is concerned, first two Civil Appeal Nos. 398 and 399 of 1977 arise out of certificates of fitness granted by the High Court of Judicature at Patna under Articles 132(1) and 133(1) of the Constitution of India. The said certificates pertain to a common judgment of the High Court rendered in two writ petitions of two sugar mills located in the State of Bihar. By the common judgment dated 20/04/1976 the High Court dismissed both the writ petitions. The said judgment of the High Court is reported in The Belsund Sugar Co. Ltd., Riga v. The State of Bihar, AIR 1977 Patna 136. By the impugned common judgment, the imposition of market fee under the Market Act on the transactions of purchase of sugarcane by the sugar mills concerned and also on their transactions covering sale of sugar and molasses manufactured by utilising the purchased sugarcane was upheld by the High Court. In view of the fact that the certificates of fitness were granted by the High Court as aforesaid this group of matters was directed to be placed before a Constitution Bench of this Court as per Article 145 of the Constitution of India. Though initially they were directed to be placed before a Bench of seven Judges, subsequently by a latter order dated 9/12/1998, these appeals were directed to be placed before a five-Judge Bench and that is how these appeals and other cognate matters were placed before this Bench for final hearing.
(3.) THOUGH the certificates of fitness granted by the High Court were on the basis that the cases involved a substantial question of law as to the interpretation of Article 254(1) of the Constitution of India, at the time when these appeals and the cognate matters reached final hearing before us, learned senior counsel Shri Shanti Bhushan and Shri Gupta appearing for the appellants, raised mainly two contentions for our consideration : 1. Whether the Market Act can apply to the transactions of purchase of sugarcane and sale of sugar and molasses by the appellant- sugar mills in view of the fact that regulation of these transactions is already effected by Bihar Sugarcane (Regulation of Supply and Purchase) Act, 1981 (for short 'Sugarcane Act') as well as by the Sugarcane (Control) Order, 1966 and Sugar (Control) Order, 1966 both issued under Section 3 of the Essential Commodities Act, 1955 (hereinafter referred to as the 'Essential Commodities Act') and also under the provisions of Bihar Molasses (Control) Act, 1947. 2. In the alternative, whether imposition of market fee under the Market Act by the respective market committees is justified in the absence of any service rendered to the appellant-sugar mills under the provisions of the Market Act and consequently the levy of market fee can be said to be not supported by any quid pro quo. RIVAL CONTENTIONS : Learned senior counsel for the appellants vehemently submitted in support of the aforesaid twin contentions that the Market Act which was enacted by the Bihar Legislature under Entries 26 and 27 of the State List read with Entry 28 therein had to be read subject to Entry 33 of the Concurrent List and as the Bihar Legislature itself had enacted the Sugar Act in exercise of its legislative powers under Entry 33 of the Concurrent List, there was no occasion left for the State of Bihar to get satisfied about the need to regulate the production and sale of sugarcane as well as manufactured items therefrom as per the Market Act. In short, the invocation of Section 3 read with Section 4 of the Market Act was totally misconceived and uncalled for. It was further contended that once the State of Bihar in exercise of its power of exemption under Section 42 of the Market Act had exempted the appellant-sugar factories from applicability of Section 18 of the Market Act, the entire machinery under the Market Act became inapplicable to regulate the sale and purchase of transactions concerning sugarcane, sugar and molasses as entered into by the appellant-sugar factories. Consequently, there remained no occasion for the authorities functioning under the Market Act for demanding any market fee from the appellants under Section 27 of the Market Act. It was also contended in further support of this submission that the Sugarcane Control Order, 1966 as well as the Sugar (Control) Order of the same year issued under Section 3 of the Essential Commodities Act, 1955 and also the provisions of the Bihar Molasses (Control) Act, 1947 fully occupied the field of regulation of sale and purchase of sugarcane, sugar and molasses and on that ground also the provisions of the Market Act could not be pressed in service against the appellant-sugar factories undertaking the purchase and sale of the concerned transactions. In the alternative, it was contended that once Section 15 of the Market Act is out of picture and once it remains an admitted position that the appellant-sugar factories have to purchase sugarcane from purchase centres, there remains no occasion for the market committees to give any services under the Market Act to the appellant-sugar factories. Hence the market committees were not entitled to recover any market fee from the appellants as there was no return benefit or quid pro quo made available to the appellants by the market committees and hence the impugned market fee in substance became a tax which could not be recovered under the Market Act by the market committees.;