B. L. Yadav, J. - (1.) BY the present petition under Article 226 of the Constitution of India the petitioners have prayed for a writ ot Certiorari quashing the levy of market fee by Krishi Utpadan Mandi Samiti, Ram Nagar, Nainital on the transaction of purchase of agricultural produce, i. e. wood (timber and fire wood) and rice etc. and for a writ of Mandamus directing the respondents not to realise the market fee and not to cancel their licence and to refund the entire amount realised from them since 1972 to November 1981.
(2.) THE portrayal of the essential facts are these. THE petitioners are forest contractors engaged in purchase and sale of woods and rice etc. keeping their business inside the market area of Ram Nagar. THEy are members of the Forest Contractors' Association, a registered body under the Societies Registration Act. THE commodities in which the petitioners are dealing, i. e. wood (timber and fire wood) and rice etc., have been notified as agricultural produce under the U. P. Krishi Utpadan Mandi Adhiniyam, 1964, (for short the Adhiniyam). THE petitioners are licencees and the market fee has been levied and assessed on them on transaction of sale and purchase of specified agricultural produce in the relevant year. Sri S. P. Agarwal, learned counsel for the petitioners urged that under Section 17 of the Adhiniyam as amended by U. P. Act No. 13 of 1976, the market fee could not be levied by the Samiti (the Market Committee) as no bye-laws have been framed to that effect nor the rate specified by the State Government has been adopted by any resolution passed by the Mandi Samiti as provided under Rule 66 of the Rules or Niyamavali, 1965, framed under the Adhiniyam. Reliance was placed on the following observations in a Division Bench decision of this Court in M/s, Nand Rice and Oil Mills, Ram Nagar v. Krishi Utpadan Mandi Samiti, 1987 AWC 1473 (hereinafter referred to as the II Division Bench), on page 1474 : "In view of the law laid down in the above case each Mandi Samiti has to frame bye-laws 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." The aforesaid observations were, in fact, based on earlier Division Bench decision of this Court in Writ Petition No. 2358 of 1981 U. P. Forest Corporation v. Krishi Utpadan Mandi Samiti, (hereinafter referred to as the 1st Division Bench) to the following effect : "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 classes 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 Committees are now only to assess the fee. When the legislature while substituting section 17 (iii) did not choose to amend section 17 (iii) 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."
(3.) IN fact, the provisions of Section 17 of the Adhiniyam, as amended by U. P. Act No. 13 of 1976 was being interpreted by the 1st Division Bench. Ex-abundanti cautela the relevant statutory provisions of amended Section 17 of the Adhiniyam are set out below : "17. Power of the Committee-A Committee shall, for the purposes of this Act, have the power to- (i) issue or renew licenses under this Act ; (ii) suspend or cancel licenses issued or renewed under this Act ; (iii) levy and collect : (a) such fee as may be prescribed for the issue or renewal of licenses ; 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 per centum and not more than one and half per centum of the price of agricultural produce so sold, as the State Government may specify by notification, and such fee shall be realised in the following manner : (1) if the produce is sold through a commission, the commission agent may realise the market fee from the purchaser and shall be liable to pay the committee ; (2) if the produce 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 be liable to pay the market fee to the Committee." A bare reading of the aforesaid provision of Section 17 (iii) of the Act would make it manifest that the Committee shall have power to levy and collect the market fee which shall be payable on transaction of sale of specified agricultural produce in the market area at such rate as the State Government may specify by notification. This specification of the State Government would, however, not be less than one per centum and not more than one and half per centum of the price of agricultural produce so sold. The amended provision of Section 17 (iii) (b) is a deliberate departure from the earlier provision, by making change in the procedure as to how the market fee is to be levied and the rate of the same, it is better to quote the unamended provision of Section 17 (iii) (b) as follows : "(b) market fee on transaction of sale and purchase of specified agricultural produce in the principal market yard and sub-market yards from such persons and at such rate as may be prescribed but not exceeding one and half per centum of the price of specified agricultural produce sold or purchased therein ; Provided that no market fee shall be levied or collected on the retail sale of any specified agricultural produce where such sale is made to the consumer." ;