Debangsu Basak, J. - (1.) Petitioners have challenged a notice dated March 20, 2015 issued by the respondent No. 3. According to the petitioners, apart from anything else, by the impugned notice, the respondent No. 3 is seeking to foist a liability of market fee upon the petitioners, that too, retrospectively from January 18, 2006. The claim of the respondent No. 3 is barred by limitation. The respondent No. 3 cannot make a claim which has no nexus with the present contract. There are two writ petitions involving similar issues and as such they have been taken up for hearing analogously.
(2.) Learned Senior Advocate appearing for the petitioners has submitted that, the petitioners are traders. They had participated in electronic auction of coal undertaken by the respondents Nos.1 and 3. The respondent No. 3 is a subsidiary of the respondent No.1. The petitioners had participated in diverse electronic auctions of coal undertaken by the respondent Nos.1 and 3 from time to time. The petitioner Nos.2, 5, 6, 7 and 9 had participated in respect of an electronic auction dated March 24, 2015 and they became the highest bidders therein. Thereafter, such petitioners learned about the impugned notice dated March 20, 2015 on March 31, 2015. By the impugned notice dated March 20, 2015, the respondent Nos.1 and 3 are purporting to realise market fee at the rate of 1% of basic price from the writ petitioners with effect from January 18, 2006. The respondent No. 3 is not entitled to demand the same.
(3.) Learned Senior Advocate appearing for the petitioners has referred to the impugned letter dated March 20, 2015. He has submitted that, by the impugned notice, the respondent No. 3 is giving retrospective effect to the imposition of market fee from January 18, 2006. He has submitted that, the market fee is a liability of the respondent No. 3. Such liability cannot be shifted to any of the petitioners or a participant of the coal auctions. He has referred to the provisions of the Bihar Mining Area Development Authority (Amendment) Act, 1992 as adopted by the Jharkhand State. He has referred to Section 8 of the amending Act by which, Section 89 of the Act of 1992 was amended. He has also relied upon Section 9 of the amending Act, amending Section 90 A of the Act of 1992. He has submitted that, a person who is not selling coal cannot be charged under section 90 A of the Act of 1992. The Act of 1992 does not require any of the petitioners to be registered thereunder. The Act of 1992 requires the respondent No. 3 to pay the market fee. The respondent no. 3 is the trader which is doing business within the market area and is therefore liable to pay the market fee. The respondent No. 3 cannot pass on the liability of payment of the market fee on the petitioners or any of them and that too, retrospectively from January 18, 2006. The present contract between the petitioners and the respondent No. 3 does not permit the respondent No. 3 to recover alleged dues of the petitioners for the period from January 18, 2006, assuming though not admitting that, payment of market fee is a liability of any of the petitioners. He has drawn the analogy of the West Bengal Agricultural Produce Marketing (Regulation) Act, 1972. He has submitted that, the chargeable provision under the Act of 1992 is attracted in respect of a business undertaken within the market area at the relevant point of time. He has relied upon (Dena Bank, Ahmednagar v. Prakash Birbhan Kataria & Ors., 1994 AIR(Bom) 343) in support of his contention that, the petitioners are not liable. He has submitted that, the meaning of word 'trade' was explained by the Bombay High Court. The petitioner cannot be said to have undertaken a trade to be liable to pay the market fee. He has relied upon (State of Orissa & Ors. v. Mangalam Timber Products Ltd., 2004 1 SCC 139) in support of his contention that, the impugned notice cannot have retrospective effect. He has submitted that, the claim now sought to be foisted by the respondent No. 3 upon the petitioners were not known to any of the parties to the contract, that is to say that, the petitioners and the respondent No. 3 on January 18, 2006. Those contracts stood concluded long time ago by the parties discharging their reciprocal obligations. Those contracts cannot now be reopened to foist any liability upon any of the petitioners. None of the petitioners are liable to pay the market fee under the charging statute. Even if the petitioners or any of them are liable to pay the market fee under the charging statute, then also, the respondent No. 3 cannot recover such market fee from the petitioners in respect of worked out and concluded contracts. He has relied upon (Federation of Indian Mineral Industries & Ors. v. Union of India, 2017 16 SCC 186) in support of his contentions.;