- (1.) M. Katju, J. This writ petition has been filed against the impugned orders dated 31-5-95 and 21-2-97 Annexures 5 and 9 to the writ petition.
(2.) I have heard Sri K. N. Tripathi and Sri A. Wahal learned counsel for the petitioner in this case and Sri S. C. Budhwar and Sri Anil Srivastava in the connected cases and Sri Satish Mandhyan for the respondents. The facts of this case are that the petitioner claims to be commission agent who is supplied Khandsari manufactured by the Khandsari manufactures and he sells the same with in the market area concerned. A demand of mandi fee has been made to the petitioner by respondent No. 2. The petitioner filed a revision against that order which has been dismissed on 21-2-97, hence this petition. The case of the petitioner is that its principal, the khandsari manufacturer, had entered into a lump sum agreement for pay ment of market tee with the concerned mandi samiti. This lump sum agreement was entered into in pursuance of notification dated 17-11-95 annexure-1 to the writ peti tion and the subsequent clarifications dated 12-12-95 and 19-12-95.
(3.) THE argument of the learned coun sels for the petitioner is that since the petitioner's principal had already paid the market fee under the lump sum agreement after exercising its option in pursuance of the impugned notification dated 17-11-95, the petitioner, being only a commission agent, can not validity be asked to pay the mandi fee again. THE submission, therefore, is that the mandi fee is being demanded twice on the same transaction, first from the Khandsari crushing unit which has paid mandi fee in lump sumand secondly from the petitioner which is only an agent on behalf of the Khandsari unit. On the other hand, the case of the respondent No. 2 is that the petitioner purchases the Khandsari from the Khandsari Unit and then selfs it on its own behalf to the customers. THE con troversy, is therefore, as to whether there is one sale or two sales, in other words, whether the petitioner is a kuchcha arhatia or pucca arhatia. In the impugned order dated 21-2-97 it has been held that there was a sale to the petitioner by the Khandsari unit and the petitioner did not merely act as a commission agent. To reach to these find ings, the revisional authority has relied on certain circumstances, firstly that the petitioner paid the transportation charges of the goods which were sent by the Khandsari unit to the petitionerand secondly the petitioner did not charge the rent for the godown for storing the goods. In some of the connected cases a further ground is that some amount was sent by the commission agent to the Khandsari units as advances. In my opinion, the revisional authority should have considered whether there was a trade practice in this trade w here by transportation charges are paid by the commission agent and no rental is charged by him and whether advances are paid to the principle. It is not that merely because the petitioner has paid transporta tion charges and not charged rental or that he has paid some advances that he automat ically becomes a purchaser of the goods. It all depends on the trade practice prevailing in the particular business. Different busi nesses may have different kinds of practice. Hence, the revisional authority should have considered what was the particular trade practice in this business of the sale and pur chase of Khandsari, but the revisional authority has not done so. The revisional authority should also have taken into ac count the other relevant considerations in determining whether there was a sale by the Khandsari unit to the petitioner or not, but it has not done that either.;