J. N. Dubey, J.- - (1.) BY this petition under Article 226 of the Constitution the petitioners have challenged the right of Krishi Utpadan Mandi Samiti, Ram Nagar, district Nainital (hereinafter referred to as Mandi Samiti) to charge market fee from them under the provisions of U. P. Krishi Utpadan Mandi Samiti Adhiniyam (hereinafter referred to as the Act).
(2.) THE petitioners are dealing in certain notified agricultural produce within the principal market yard of Ram Nagar. THE Mandi Samiti started collecting market fee from them on the transactions of sale and purchase of the agricultural produce taking place within the principal market yard of Ram Nagar. THE petitioners claim that Mandi Samiti has been collecting market fee from them without any authority of law. The learned counsel for the petitioners raised several points during the arguments but it is not necessary for us to consider all of them as in our opinion the writ petition can be disposed of on a short point. Section 17 of the Act provides that the marketing committee shall have power to levy and collect market fee on the transactions of sale and purchase of specified agricultural produce in the principal market yard and sub-market yards. According to the petitioners, no market fee under section 17 has been levied so far upon the transaction of sale and purchase of the specified agricultural produce by the Mandi Samiti and, therefore, no market fee can be legally collected from them. In Civil Misc. Writ Petition No. 2358 of 1981 U. P. Forest Corporation, Mahanagar Lucknow v. Krishi Utpadan Mandi Samiti, Haldwani, Nainital a Division Bench of this Court held :- "A perusal of amended and unamended section 17 leaves hardly any room for doubt that the power under the Act to levy and collect fee was and is of the Marketing Committee and not of the State Government. The only change that has been effected is that the Legislature itself has fixed the rate and four class of mutually exclusive persons' from whom it could be realised. But whether in a particular Mandi Samiti a Marketing Committee shall enforce these provisions in respect of specified agricultural produce is still left to be performed by the Committee itself. If the word, 'levy' used in the section as it stood prior to 1978 had to be understood in the sense of empowering Marketing Committee to impose and not assess only then there appears no reason to hold that after amendment imposition has been done by the State Government when it issued the notification and the Marketing Committee are now only to assess the fee. When the Legislature while substituting section 17 (iii) did not choose to amend section 17 (i) and continue the words 'levy and collect' it has to be assumed that it intended that these words should be understood in the same sense in which they were understood earlier." In view of the law laid down in the above case each Mandi Samiti has to frame bye-law imposing market fee on the transactions of sale and purchase of the agricultural produce taking place within its area. The petitioners have specifically pleaded that Mandi Samiti has not framed any bye-law under section 17 of the Act for levying market fee. On the other hand the Mandi Samiti claimed that necessary resolution in this regard was duly passed on 14-7-1973. Now, it has to be determined whether the resolution dated 14-7-1973 can be considered a valid resolution for levying market fee. The resolution has been passed by the Sub-Divisional Magistrate, Kashipur in the capacity of the Chairman of the Mandi Samiti. If he was discharging functions of the Chairman of the Mandi Samiti at the relevent time the resolution passed by him would be considered to be a resolution of the Marketing Committee under section 17 (iii). The District Magistrate, Nainital was Chairman of the Mandi Samiti at the relevant time in view of the provisions of sections 2 (1) (b) of Uttar Pradesh Krishi Utpadan Mandi Samitis (Alpakalik Vyawastha) Adhiniyam, 1972. The powers of Chairman could, however, be delegated by the District Magistrate to the Sub-Divisional Magistrate -under sub-clause (c). The petitioners claim that the District Magistrate, Nainital did not delegate his powers to the Sub-Divisional Magistrate Kashipur and as such all his acts including the passing of the resolution dated 14-7-1973 were invalid. On the other hand the Mandi Samiti has filed a copy of the order dated 20-3-1980 of the District Magistrate, Nainital delegating his powers to the Sub- Divisional Magistrate, Kashipur. Inspite of our affording repeated opportunities the Mandi Samiti has failed to bring on record any evidence to prove that District Magistrate, Nainital had delegated his powers to the Sub-Divisional Magistrate, Kashipur prior to 20-3-1980. Thus, we have no option but to hold that the District Magistrate, Nainital had not delegated his powers to the Sub-Divisional Magistrate, Kashipur before 20-3-1980. According to the petitioners even the delegation of powers by the District Magistrate, Nainital in favour of the Sub- Divisional Magistrate, Kashipur made on 20-3-1980 was invalid inasmuch as he himself did not possess any such powers in view of promulgation of Ordinance 2 of 1979. It is not necessary for us to express any opinion about the validity of the delegation dated 20-3-1980 inasmuch as no resolution levying market fee under section 17 (iii) of the Act has been passed after 20-3-1980. The only resolution on record in this regard is the resolution dated 14-7-1973 of the Sub- Divisional Magistrate, Kashipur who had not been delegated with the powers of the Chairman by the District Magistrate, Nainital under sub-section (1) (c) of U. P. Krishi Utpadan Mandi Samitis (Alpkalik Vyawastha) Adhiniyam, 1972. This being so, the resolution dated 14-7-1973 of the Sub-Divisional Magistrate, Kashipur purporting to levy market fee under section 17 (iii) of the Act is invalid. Since no market fee has been validly levied under section 17 (iii) of the Act the Mandi Samiti has no authority of law to collect market fee from the petitioners.
(3.) THE petitioners have also claimed refund of the market fee paid by them under mistake of law to the Mandi Samiti. In view of our finding that the Mandi Samiti had no authority of law to collect any market fee from the petitioners they are entitled for the refund of the market fee, if any paid by them. In the result, the writ petition succeeds and is allowed. The resolution dated 14-7-1973 of the Sub-Divisional Magistrate, Kashipur is quashed and the respondents are restrained from collecting any market fee from the petitioners, until a proper resolution levying market fee is passed in this regard under section 17 (iii) of the Act. The Mandi Samiti is also directed to refund the amount of market fee, if any, collected from the petitioners We make no order as to costs. Petition allowed.;