R.M.Sahai, J. - (1.) Despite full throated argument entertained by Honble Supreme Court in Ram Chandra Kailash Kumar v. State, AIR 1980 SC 1124 even on points which were not argued in this court in anxiety to narrow down controversy and, enable Marketing Committee to implement the law as far as possible large number of traders carrying on business of sale and purcha e of specified agricultural produce within meaning of U. P. Krishi Utpadan Mandi Adhiniyam, 1964 (hereinafter referred to as Act) have approached this Court, again, under Article 226 of the Constitution of India and have claimed that the market fee at the rate of 1% does not stand validly imposed. But the main thrust or attack is founded on the observation in concluding part of Ram Chandra's (supra) judgment if in regard to any particular Market Committee it is found that services are not being rendered or in future lapses are made then it will open to prayer of fees to re agitate the matters in the High Court.
(2.) For these spate of petitions not only petitioners but Mandi Samitis are equally responsible. Anxiety of petitioners to avoid payment of fee on one or the other pretext is equally matched by opposite parties by widening their net and roping in persons, commodities and transactions which by most liberal construction may not be covered in it. May be because for more than ten years these Samitis are being run by instrumentalities of State, under Ordinance issued as lar back as 1972 and extended from time to time, instead of elective and representative body envisaged by the Act totally unaware of local conditions and primarily concerned with raising and collecting money.
(3.) But that being a matter of policy we leave it at that and proceed to examine on merits the arguments advanced by Sri S.P. Gupta, the learned Counsel for petitioners in some of the petitions on the two general aspects pointed out above which of course was adopted by all other counsel appearing for other petitioners. He urged that the Act contemplated that fee shall be imposed by the Marketing Committee in Market Area, or Market Yard or Sub-market yard on specified agricultural produce. According to him even after substitution of Section 17(iii)(b) by U. P. Amendment Act 7 of 1978 providing for rate of fee and the person from whom it has to be realised it did not bring about any change as the words, levy and collect, used in the unamended Section were continued by Legislature. According to him it is power of the Committee and not of the State Government. And in absence of exercise of this power by the Marketing Committee the fee cannot be said to have been levied as Section 17(iii)(b) is not a charging section nor does it create any liability but is an enabling provision empowering committee to discharge the function of imposing fee. The learned Counsel submitted that word levy means imposition. It may mean assessment as well. But in the Legislative back ground and setting it cannot be understood in any sense except imposition. Support was drawn from Articles 256, 268, 269 and 270 of Constitution of India. Learned Counsel developed this argument further and urged that the legislative mandate to Mandi Samitis is to realise fee, the essential element of which is rendering of service to prayer of fee. What service shall be rendered, to which class of persons and for which specified agricultural produce cannot be determined by State Government as it cannot be assumed to be aware of local conditions etc. Imposition, according to learned Counsel, in the Scheme of Act has to be by Marketing Committee otherwise uniform levy by State Government irrespective of varying facts and circumstances and requirement of different market area of different Samitis may amount to treating unequals as equals, therefore, unconstitutional as laid down in New Manek Chowk Spinning and Weaving Mills v. Municipal Corporation, AIR 1967 SC 1801.;