K. C. Agrawal, J. - (1.) THIS petition under Article 226 of the Constitution has been filed by M/s. Mittan Lal Suresh Chandra and two others for declaration that the impost of additional market fee is repugnant to section 17 (iii) (b) of the Krishi Utpadan Mandi Adhiniyam and for Mandamus restraining the respondents not to realise any amount of additional market fee from the petitioners.
(2.) THE petitioners are carrying on business of sale and purchase of specified agricultural produce at Shahjahanpur. THEse petitioners hold licence under the Krishi Utpadan Mandi Adhiniyam (hereinafter called the 'Adhiniyam'). In October 1983, when the State Legislature was not in session, the Governor of Uttar Pradesh promulgated an Ordinance known as U. P. Krishi Utpadan Mandi (Amendment) Ordinance (U. P. Ordinance 40 of 1983). By section 3 of the aforesaid Ordinance sub clause (c) was inserted in section 17 (iii) which reads as follows : "(c) Additional market fee which shall be payable by the producer on transactions of sale of specified agricultural produce in the market area at the rate of one percentum of the price of the agricultural produce so sold, and shall be realised in the following manner-" Subsequently, the Ordinance was not converted into an Act and, as such, it lapsed. The recovery of additional market fee continued as against the petitioners. It was this recovery that has been challenged by the petitioners on the ground of being without due authority of law. Before us, it was admitted by the petitioners' counsel that a Division Bench of this Court has upheld the validity of levy of additional market fee under sub-clause (b) of clause (iii) of section 17 of the Adhiniyam. This decision has been given by a Division Bench. Counsel did not challenge the validity of that provision before us.
(3.) WHAT was challenged by the learned counsel for the petitioners was that the Ordinance was since a temporary statute and had not been converted into an Act, it lapsed on the expiry of the period mentioned in Article 213 of the Constitution. As a result, additional market fee could not be realised after the expiry of the same. To be precise, the argument was that as the levy or assessment of the additional market fee had not been started, under the Ordinance when it was in force, recovery proceedings are wholly illegal. In that connection, counsel urged that levy was a condition precedent for valid imposition and without there being imposition, recovery would be against Article 265 of the Constitution. Clause (3) of section 6 of the General Clauses Act, as amended by U. P. Legislature, reads : "Where any (Uttar Pradesh) Act repeals any enactment hereto made or hereafter to be made, then unless a different intention appears, the repeal shall not- (c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under any enactment or so repealed......" ;