- (1.) S. R. Singh, J. Both these petitions being grounded on identical facts may be disposed by a common order. Sri B. D. Mandhyan learned counsel appearing for the respondents in both the petitions stated at the very outset that the writ petitions may be heard and disposed of at the motion-hearing stage itself without inviting any formal counter affidavit. The learned counsel for the parties were heard accordingly.
(2.) THE petitioner in each of the writ petitions is engaged in the business of sale/purchase of fooagrains as 'dealer' and 'commission agent' at Kashipur, Nainital and for that purpose it has been issued licences under the provisions of the U. P. Scheduled Commodities Dealers (Licensing and Restrictions on Hoarding) Order, 1989 and those of the U. P. Krishi Utpadan Mandi Adhi niyam, 1964 (in short 'the Adhiniyam' ). THE notice dated 23-6-1993 and the orders dated 29-7-1993 and 15-9-1994 are sought to be quashed in these petitions. It was by means of the impugned notice dated 23-6-1993 that the Mandi Samiti, Kashipur, district Nainital had called upon the petitioner to pay market fee on the sale/purchase of specified agricultural produce which were admittedly brought within the Mandi area of Kashipur. The notice was contested by the petitioner on the ground that the specified agricultural pro duce in fact was purchased outside the market area of Kashipur and it was brought in Kashipur Mandi for and on behalf of Ex-U. P. Principals for the purposes of transportation only and no transaction of sale/purchase had, in fact, taken place in the Mandi area of Kashipur. The Secretary, Mandi Samiti, Kashipur passed an order of assessment dated 29- 7-1993, whereby market fee amounting to Rs. 43,984-60 was levied in the case of writ petition No. 34160 of 1994 and Rs. 20,455. 65 in the case of writ petition No. 34161 of 1994. The orders of assessment in each of the two cases having been affirmed by the revisional authority vide order dated 15-9-1994, the petitioner i. e. the concerned commission agent has approached this Court under Article 226 of the Constitution for quashing the aforesaid orders. The main thrust of argument advanced by Sri Sunil Ambwani, learned counsel appearing for the petitioners was that no transaction of sale of the specified agricultural produce had, in fact, taken place in the market area of Kashipur and the goods were brought there only for the purposes of transportation to Ex-U. P. Principals on whose behalf they were purchased by the petitioner as commission agent at other Mandies, for which the market fee had already been paid. It was urged by Sri Ambwani that due to lack of transportation facility in or near the Mandi area, where the goods were purchased, the petitioner had to bring the goods in Kashipur Mandi for the purposes of loading and despatching them to the Ex-U. P. Principals by rail which facility Is admittedly available at Kashipur Mandi. Sri B. D. Mandhyan, learned counsel appearing for the respondents refuted the submis sion made by Sri Ambwani and urged that the petitioner failed to prove that the specified agricultural produce brought inside market area of Kashipur was taken out of it not in pursuance of any transaction of sale having taken place in the market area of Kashipur but in pursuance of a sale transaction which took place, as alleged by the petitioner, at the point of purchase out side Kashipur Mandi. Sri Mandhyan relied upon the Explanation of Sec tion 17 of the Adhiniyam and submitted that the impugned order passed by the revisional authority being based on consideration of material on record is not liable to be quashed by this Court in its extraordinary certiorari juris diction under Article 226 of the Constitution.
(3.) A bare perusal of Section 17 (iii) (b) of the Adhiniyam would indicate that a Committee is vested with the power to levy and collect market fee on transaction of sale of specified agricultural produce in the market area on such rates, being not less than one percentum and not more than two per-centum of the price of the agricultural produce so sold, as the State Govern ment may specify by Notification and that such fee is liable to be realised from the commission agent if the produce is sold through a commission agent. The commission agent may, however, realise the same from the purchaser. According to the Explanation appended to Section 17, any specified agricultural produce taken out of a market area, by or on behalf of a licenced trader, is presumed to have been sold within such area, The presumption is, however, rebuttable, as is clear fro01 the expression "unless the contrary is proved" occurring in the Explanation. The Explanation has the effect neither of enlarging nor of diminishing the scops of the charging clause. It only lays down a rule of evidence in that it visualises that "unless the contrary is proved", the movement-actual or proposed-of specified agricultural produce out of market area would be 'presumed' to have taken place as a result of a transaction of sale materialised within such area. In view of this statutory presumption the burden to prove that no transaction of sale took place within the market area is on the commission agent and if he fails to rebut the presumption, the authorities under the Adhiniyam would be well within their jurisdiction to take any movement of specified agricul tural produce from Mandi area to an outside place, whether within or without the State, to have taken place as a result of a transaction of sale having materialised within the market area so as to attract the charging clause i. e. Section 17 (iiii) (b) of the Adhiniyam. It may be pertinently observed that the onus of proof in its primary sense means duty of establishing a case and in this sense it remains constant and never shifts through out the proceeding. It is a question of law, but in its secondary sense, onus is no more than the duty of adducing evidence being led in the case. This involves no question of law but only of fact. It may also be observed that the Explanation of Section 17 of the Adhiniyam raises a presumption of law, it being statutory in nature, but since the statutory pre sumption under the Explanation pertains to a question of fact, the question whether the presumption has or has not been rebutted, depends on the facts and circumstances of each case and if the authorities under the Adhiniyara have, on a proper self-direction to the facts and circumstances of the case, arrived at the conclusion that the statutory presumption has not been rebucted, this Court, in exercise of its certiorari jurisdiction, would be loathe to inter fere with the view taken by the statutory authorities except where the Statutory Authority is found to have acted arbitrarily and unreasonably. It is well settled that judicial review under Article 226 of the Constitution cannot be converted into an appeal in that it is directed not against the decisions rendered by the statutory authority, but has to be confined to the examination of the decision making process. Accordingly if the conclusions reached by the revisional authority, are found to be based on consideration of valid material on record 'after according fair treatment' to the parties, then it is not for this Court, sitting in certiorari jurisdiction under Article 226 of the Constitution, to say that the conclusion arrived at by the revisional authority is incorrect and or to supplant the same by its own- (See State of U. P. v. Dharmander Prasad Singh, AIR 1989 SC 997 ).;