- (1.) O. P. Garg, J. The moot point for consideration in the present writ petition is whether 'market fee' under the charging clause- contained in the Latter Pradesh 1 Adhiniyam, 1964 ( livable on the Section 17 (iii) (b) of jishi Utpadan Mandi or short 'the Act') is ecified 'agricultural produce even though it was not produced, introduced, transported in and This controversy h; drop of the following
(2.) THE petition partnership firm hi fice at Mr. Navy which primarily car port of rice. THE me the petitioner to ex closed in the petite quirement of importicuiar quality of finds out the availab of rice in the neighb hya Pradesh, Punjab where the required dispatched to the pi Kandla or Delhionr ascertaining the and able price, the rate duced moved or on the 'market area', cot not up in the back-profile of the facts. M/s. Metal Craft is a its registered of-Market, Ghaziabad on business of ex-hodology adopted by ort the rice is, as, that on enquiry/ reing country for a par-, the petitioner-Firm lily of the said quality States of Mad- b and Haryana from uality of rice could be, namely, Mumbai, asonable price; after lability on the accept- are quoted to the importing country and after negotiations the deal becomes final that the orders Millers outside the It is only thereafter placed to the Rice date of Uttar Pradesh for sending consignments to the aforesaid ports of lading; the Rice Millers on receipt advice from he petitioner-Firm, despatch the required quantity of specified quality to the clean agents of the petition receipt of the good warding agents of t storing the goods warehouses for the and when the const the deal/invoice real the Customs Depar the required formal the shipping bill and forwarding at the ports and on the clearing and for-e petitioner keep on in the nominated particular shipment in lull as per h the concerned port, completes too and issues copy of E. P. Certificate, then only the goods are ready for loading into the ship ; when the are loaded into the ship, a bill-of-lading is prepared and signed by the master of the ship in the capacity of carrier ; acknowledging the receipt of goods ; an 1 when the goods are laden in the ship, and a bill-of-lading is given to clearing and forwarding agents of the petitioner-firm, the property in the goods is transferred to the ship and on receipt of bill-of-lading by buyer country though 'he petitioner's bankers, the goods are retired. According to the petitioner-firm, sale is effected at the port only when the goods are laden in the ship and the bill-of-lading is handed over to the petitioner's clearing and forwarding agents and, there fore, the place of sale is port of loading and not Ghaziabad where the petitioner-firm its registered office only. It is pleaded that the petitioner-firm has never made any business transaction of purchase or sale of rice notified as agriculture produce within the state of Ultar Pradesh during the year 1995-96 1996-97 and thereafter. On 12-10-1997 the Krishi Utpadan Mandi Samiti, Ghaziabad, through its Secretary- Respondent No. 2 sprang a surprise by sending an order (Annexure 3 to the peti tion) to the petitioner- firm whereby the Respondent No. 2 imposed the market fee at the rate of 2 per cent amounting to Rs. 12,94,860 on the total amount of Rs. 6,47,42,994 towards price of rice exported by it. The petitioner submitted a reply dated 28-10-1997 (annexure 4 to the peti tion) refuting the liability to pay the 'market fee' as the petitioner-firm had never made by business nor transaction of sale and purchase of rice had taken place within the State of Uttar Pradesh. The, reply filed by the petitioner-firm did not find favour with the Respondent No. 2, instead it initiated recovery proceedings and citation dated 6-12-1997 (Annexure 6 to the petition) was issued. The said recovery certificate was challenged by the petitioner before this Court by filing a Writ Petition No. 43329 of 1997 which was disposed of on 17-12-1997 (vide Annexure 6 to the petition) with the direction to the Respondent No. 2 to decide the repre sentation/objection filed by the petitioner within a period of one month and that the recovery proceedings shall remain in abeyance for a period of six weeks. Ul timately, on 25-1-1998, the impugned order (Annexure 13 to the petition) was passed by Respondent No. 2 whereby the earlier order dated 12-10-1997 (annexure 3 to the petition) was upheld. Against the said order the petitioner filed a Revision Application No. 1 of 1998 before the Director of Mandi Parishad. The Joint Director (Administration) exercising the powers of the Director dismissed the Revision Application on 9-3-1998 (Annexure 14 to the petition ). The petitioners have challenged the order dated 12-10-1997 (Annexure 3) and 25-1-1998 (Annexure 13) and have prayed that the" aforesaid orders as well as the recovery certificate/citation dated 6-12-1997 be quashed, taking the grounds that the en tire quantity of rice exported by the petitioner was purchased from the Rice Millers in Punjab, Haryana and Madhya Pradesh and that it is directly exported outside India through the petitioner's clearing the forwarding agents on ports of loading, namely, Delhi, Mumbai and Kandla ; that no transaction of purchase, sale or export was ever done from any place within the limits of Mandi Samiti, Ghaziabad or anywhere in the State of U. P. and rice was never purchased, brought or sold in the State of U. P. and since in the instant case no sale, purchase, storage or. transportation of rice had taken place in any part of State of Uttar Pradesh, levy and collection of the market fee from the petitioner-firm is illegal and unjustified. A counter-affidavit has been filed on behalf of Respondent Nos. 1 and 2. It is stated that the petitioner purchased rice within the market area of Ghaziabad and since the petitioner firm is the licensee of Mandi Samiti, Ghaziabad, it is liable to pay the market fee It is maintained that the transaction of sale and purchase of the rice though meant for export to a foreign country took place within the market area of Ghaziabad and, therefore, the petitioner is liable to pay market fee. Ac cording to the respondents, the petitioner is engaged in sale and purchase of fine rice which is subsequently exported outside the market area and even if it may be assumed that rice is purchased from Mad hya Pradesh, Punjab and Haryana it is brought within the market area of Ghaziabad where the sale is finalized, money is received and thereafter it is ex ported to export-houses in Delhi and other places. These facts, it is alleged con stitute sale. It is further alleged that the export dealers purchase the rice from within the market area and then consign ment is booked from Ghaziabad to the destination of export. It is mentioned that the transaction of sale and purchase, in any case, takes place at Ghaziabad and, there- fore, the petitioner cannot evade the pay ment of market fee. A rejoinder-affidavit has been filed by the petitioner repelling the contentions of the respondent and it is reiterated that the rice purchased from the outside States was never brought to Ghaziabad market area nor transported from there to the ports from where the rice purchased from other States had been ex ported.
(3.) HEARD S/sri Ashok Kumar and J. P. Pandey, learned Counsel for the petitioner firm, Sri B. D. Mandhyan, learned Counsel for the Respondent Nos. 1 and 2 as well as learned standing Counsel on behalf of the Respondent Nos. 3 and 4. At the outset, it would be proper to put in plain terms the woodcut profile of the admitted facts by removing the cob webs which have clouded the true facts. In paragraph 6 of the counter-affidavit it has been asserted: ". . . . . . . . . . Assuming without admitting even if rice is purchased in Madhya Pradesh, Punjab and Haryana and thereafter it is brought within the market area of Ghaziabad and there sale is finalized, money is received, and thereafter it is exported to Export houses in Delhi and other places that constitute sale. . . . The rice export dealer purchase the rice within the market area and then consignment is booked from Ghaziabad to the destination of export other wise what is the logic for bringing the goods from Punjab, Madhya Pradesh and Haryana and then exporting the rice to Delhi and other places as that will entail despatch charges which will make it uncompetitive in the market. " In reply to contents of para 11 of the writ petition, it has been asserted in para graph 12 of the counter-affidavit that:". . . . . . Mandi Samiti rightly held that the sale took place within the market area of Ghaziabad. Besides actual sale, there was also deeming sale there. Therefore, the petitioner has rightly been, assessed and asked to deposit the amount of market fee. ";