K.C. Agarwal, B.L. Yadav, J. - (1.) In this petition the controversy involved is whether the levy of market-fee on tobacco was beyond the legislative competence of the State Legislature.
(2.) Shri Arun Kumar Gupta counsel for the petitioner contended that since tobacco is an 'Industry', falling within the declaration made by the Parliament, the control of which has been declared by it, the Law, pertaining to tobacco, would be made only by the Parliament, and not by the State Legislature, hence it is an occupied field.
(3.) Counsel for the respondent submitted that the doctrine of occupied field does not totally deprive the State Legislature from making any law, hence the law living market-fee by the State Legislature under the U.P.K.U.M.S. Adhiniyam, 1964 is not beyond its competence. In support of his proposition, the respondents' counsel relied and a decision of the Supreme Court, reported in Ram Chandra Kailash Chandra and Co. v. State of U. P. and another, AIR 1980 SC 1124, wherein it has been observed : "Market fee can be charged on transaction of tobacco as it is included in group A. V. of the notification. As in the case of other items. So in this case, also the fee will be leviable if tobacco is purchased in the same market area from an agriculturist in accordance with sub-clause (2), otherwise it should be leviable under sub-clause (3).";