A. N. Gupta, J. - (1.) SINCE common questions are involved for decision (a this bunch of 12 writ petitions, they are being disposed of by one judgment.
(2.) THE petitioners in all these writ petitions are rice millers of Saharanpur in the State of Uttar Pradesh and the sole opposite party is Krishi Utpadan Mandi Samiti, Saharanpur (hereinafter referred to as 'Mandi Samiti). THEse rice millers purchase paddy from inside as well as outside the market area of (he Mandi Samiti after paying market fee. Rice is produced by the petitioners out of the paddy so purchased. Sixty per cent of the rice so produced is given by the petitioners to the State Govt, as levy in accordance with the provisions of U. P. Rice and Paddy (Levy and Regulations of Trade) Order, 1985 and the remaining: 40%, retained by them called the released share' is sold by the petitioners :in the open market. In accordance with the decision given by the Supreme Court in the case of M/s Ram Chandra Kailash Kumar v. State of U. P., AIR 1980 SC 1124 maket fee is not payable by the petitioners on the said rice sold by them in the market area of the Mandi Samiti as it was held in that case that the market fee is a single point levy in one market area. In the said case it has further been held that in case paddy is purchased from outside the market area and if the rice produced out of it is sold within the market area of the Mandi Samiti, the traders shall be liable to pay the market f>';e to the Mandi Samiti It is not disputed that in case the paddy is purchased from outside the market area and the rice produced out of it is also sold or sent outside the market area of the Mandi Samiti, no market fee would be payable to it. THE dispute in these petitions is confined to that part of l:he rice which was produced out of the paddy purchased by the petitioners from outside the maket area of the Mandi Samiti and its sale or despatch, according to the petitioners, was made outside the market area of the Mandi Samiti. The contention of the petitioners is that out of the paddy purchased by them from outside the market area of the Mandi Samiti, they produced rice some of which was sent or sold by them outside market area of the Mandi Samiti and, therefore, no market fee is payable by them to it on the said despatches/sales. On the other hand, the contention of the Mandi Samiti is that since the petitioners failed to furnish the proof of despatch or sale of rice outside its market area, it shall be presumed that they sold the said rice within its market area according to the provisions contained in Explanation to section 17 of the Uttar Pradesh Krishi Uipadau Mandi Adhiniyam, 1964 (hereinafter called the 'Adhiniyam) which may be extracted here :- "Explanation-For the purpose of clause (iii), unless the contrary is proved, any specified agricultural produce taken out or proposed to be taken out of a market area by or on behalf of a [licenced trader shall be presumed to have been sold within such area and in such case, the, price of such produce presumed to be sold shall be deemed to be such reasonable price as may be ascertained in the manner prescribed." This explanation lays down a presumption that unless the contrary Is proved, any specified agricultural produce (rice is also one of the specified agricultural produce) taken out of the market area shall be presumed to have been gold within such area. The vires of this explanation was challenged through a writ petition in this Court in the case of Sri Mahalaxmi Sugar Works, Farid Nagar, v. State of U. P. 1987 UP LB EC 957 but this Court did not declare the said explanation as ultra vires but instead of doing so issued following directions in order to mitigate the hardship caused to the traders and to safeguard payment of market fee to Mandi Samiti in accordance with law. "(1) Every trader proposing to take out the goods manufactured or produced in the market area shall be entitled to issue of gate passes from the Mandi Samiti if he produces documents to establish that the goods were being taken out of the market area. Necessary entries shall be made by Mandi Samiti in records maintained by it ; (2) A trader taking out goods shall file a statement before the Mandi Samiti within six weeks indicating therein that the goods "were sold by the Commission agent or by the petitioners themselves inside or outside the market area ; (3) In case the traders do not fits the statement the Mandi shall issue notice to the traders after expiry of six weeks to file the statement within 10 days of receipt of notice ; (4) If the return is filed the same shall be scrutinised by the Mandi Samiti and if it is satisfied about its correctness, then it shall pass appropriate orders levying fee. If the sale haz been made in the market area and exempting in case, it has been made outside the market, area ; (5) In case the return of trader is found to be incorrect or he omits to file his return despite notice by Mandii Samiti then the Mandi Samiti shall levy market fee on trader on the goods which had been taken out and for which gate pass had been issued."
(3.) IT is common case of the parities that ever since the aforesaid directions were given by this Court, the traders as well as all the Mandi Samiti in the State have been acting in accordance with the said directions. In accordance with the aforesaid direction No. (2) same of the petitioners in respect of the years 1988-89 to 1991-92 furnished statements to the Mandi Samiti on the proforma prescribed by it. In the said statement quality and quantity of paddy purchased from outside and inside the market area of the Mandi Samiti, quantity of rice produced out of it, quantity of rice given in levy, quantity of released rice left with the petitioners, quantity of rice sold inside the market area of the Samiti and quantity of rice despatched outside the market area of the Mandi Samiti were given. Some of the petitioners, who did not voluntarily furnish the said satements, furnished the same on the notice given to it by the Mandi Samiti. An official of the Mandi Samiti verified some of these statements. Thereafter. Secretary of the Mandi Samiti sent communication to the petitioners levying market fee. In the said communication sent in the year 1990-91 in respect of the said assessment years, it was mentioned that after mixing the paddy purchased from inside the market area with the paddy purchased from outside the market area and after giving levy rice, market fee is being levied on the local sales of the rice in accordance with the decision given by the Supreme Court/High Court. The petitioners were called upon to deposit the market fee within three days otherwise a threat was given to realise the same as arrears of land revenue under section 20 of the Adhiniyam. The petitioners paid the said market fee. However, after change of the Secretary communications in January and February, 1993 were sent to the petitioners by the new Secretary of the Samiti alleging that the petitioners after mixing the paddy purchased inside the market area with the paddy purchased outside the market area and after giving levy rice to the Govt. the petitioners 'possibly' would have sold the released rice but market fee has not been paid by them on the sale of such rice. The petitioners were called upon to furnish the statements in the prescribed proforma for the years 1988-89 to 1991-92 within ten days. These communications were duly replied to on behalf of the petitioners by their Association called Foodgrains Dealers' and Rice Millers Association, Saharanpur vide their letter dated 22-3-1993 contending, inter alia, that the assessment of market fee had already been made which was paid accordingly and, therefore, reassessment cannot be roadie. IT was further mentioned that the required documents and proofs were now not available in respect of the said years and in case it was necessary, the same can be traced out if time of three months was given. At the end, a request was made for discharging the notice, Thereafter, the Secretary of the Mandi Samiti sent a communication in March, 1993 to the petitioners informing them that they failed to produce the required evidence and documents within ten days as required to prove that the sale of rice as alleged by the petitioners, was made outside the market area and, therefore, the petitioners were liable to pay the market fee as if the sales were made inside the market area and market fee was levied therein which is considerable. The petitioners were called upon to pay the market fee within three days otherwise action,, according to law, including suspension of licence and realisation as arrears of land revenue shall be Initiated. After receipt of tine said notices the petitioners have filed these writ petitions with the prayers that the second demand notices be quashed and to declare reasessment of market: fee as illegal. Before proceeding further it may be mentioned that Sub-clause (b) of Clause (iii) of Section 17 of the Adhiniyam which lays down powers of the Committee, empowers the Mandi Samiti to 'levy and collect' market fee which runs as follows : "17. Powers of the Committee-A Committee shall, for the purpose of this Act, have the power to- (i)................... (ii).................. (iii) levy and collect; (a) such fees as may be prescribed for the issue or renewal of licences, and (b) market fee, which shall be payable on transactions of sale of specified agricultural produce in the market area at such rates, being not less than one percentum and not more than (two) percentum of the price of the agricultural produce so sold, as the State Govt may specify by notification, and such fee shall be realised in the following manner- (1) if the produce is so?d through a commission agent, the commission agent may realise the market fee from the purchaser and shall be liable to pay the same to the Committee; (2) if the prodnce is purchased directly by a trader from a producer the trader shall be liable to pay the [market fee to the Committee: (3) if the produce is purchased by a trader from another trader, the trader selling the produce may realise it from the purchaser and shall be liable to pay the market fee to the Committee; and (4) in any other case of sale of such produce, the purchaser shall bo liable to pay the market fee to the Committee; Provided that no maket fee shall be levied of collected on the retail sale of any specified agricultural produce where such sale is made to 4he consumer for his domestic consumption only;......" ;