Decided on April 17,2012



- (1.) HEARD learned counsel for the parties. By means of this writ petition, the petitioners have sought a writ in the nature of certiorari quashing the notice-cum-demand dated 2- 2-2012 (Annexure No.1) and have also challenged the vires of Section 27(c)(iii) of the Uttarakhand Agricultural Produce Marketing (Development & Regulation) Act, 2011 (for short the Act) read with Section 2(xx) of the Act.
(2.) ACCORDING to the petitioners, the petitioner no.1 company is engaged in manufacturing of Maize Starch and other Starch derivatives. The raw material required for the same is Hybrid Maize. The petitioners purchase the raw material from outside the State and the raw material is brought within the Mandi area for the purposes of manufacture of Maize Starch and other starch derivatives, therefore, the petitioners are not covered by the definition given under Section 27(c)(iii) of the Act and barley is not being stored for the purposes of sale. ACCORDING to the petitioners, the petitioners are not undertaking any activity of sale of notified agricultural produce brought by them from outside the State and that the activity of storage and that of processing of the said agricultural produce which has been brought by the petitioners is not an activity in connection with or incidental to the sale of the said imported agricultural produce. ACCORDING to the petitioners, the activity of storage and processing of the said agricultural produce is directly in connection with using the same as part of manufacturing process/activity of Maize starch as also Glucose in the factory of the petitioners, which is located within the present market area. Learned counsel for the petitioners in support of his contention has placed reliance upon the judgment rendered by the Apex Court in the case of Edward Keventer Pvt. Ltd. Vs. Bihar State Agricultural Marketing Board and others [(2000) 6 Supreme Court Cases, 264], wherein the Apex Court in paragraph no.5 has inter alia held that "...It is true that "Frooti" and "Appy" are manufactured out of mango pulp and apple concentrate, but after the mango pulp and apple concentrate are processed and beverages are manufactured, the products become entirely different items and the fruits, mango and apple, lose their identity. In common parlance, these beverages are no longer known as mango and apple or as fruits. In other words, after processing mango pulp and apple concentrate, although the basic character of the mango pulp and apple concentrate may be present in beverages, but the end products are not fruits i.e. mango and apple which are specified in the Schedule." In the case before the Apex Court, the appellant company was engaged in manufacture of fruit drinks and was marketing it under the brand names of "Frooti" and "Appy" in the State of Bihar. In paragraph no.8 of the judgment it has been held that the products "Frooti" and "Appy" not being specified in the Schedule, the respondent had no authority to demand any fee from the appellant on marketing the said products.
(3.) LEARNED counsel for the petitioners has further relied upon the judgment of the Apex Court in the case of Orient Paper & Industries Ltd. Vs. State of M.P. and others [(2006) 12 Supreme Court Cases, 468], wherein the Apex Court has dealt with the definition of the words "market fee" and "processing" and it has been held in paragraph no. 22 that when after the notified agricultural produce is brought within the State into the market area from outside the State and in case the same must be used for processing and the end-user is manufacture, the levy of market fee is not attracted. In the case at hand, the stand of the petitioners is that the hybrid maize is brought from outside the State into the market-area and the same is used for processing and the end-user is "maize starch" and "glucose". Learned counsel for the respondent no.2 has stated that the agricultural produce, i.e. hybrid maize, which is being used by the petitioners to manufacture "maize starch" "glucose" etc. does not lose its character and that remains an agricultural produce. Learned counsel for the Mandi Samiti Mr. J.C.Belwal, Advocate, has also raised a preliminary objection that there is an alternate remedy under Section 28 of the Act to file an appeal before the Managing Director therefore, the writ petition is not maintainable. There is no dispute that there exists a provision of appeal under Section 28 of the Act, but before relegating the matter to the appellate authority, this is to be verified whether the petitioners are engaged in the work of sale, storage, processing or transaction and the above facts can be verified by filing counter affidavit by the respondent Mandi Samiti.;

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