CHOPRA, J. - (1.) THIS appeal is directed against the judgment of the learned single Judge of this Court dated 24. 3. 1982 whereby the learned single Judge has dismissed the writ petition filed by the petitioner-appellant.
(2.) THE petitioner-appellant has raised the following three contentions: - (1) that sugar is an industrial product manufactured through chemical and industrial process, so it is not an agricultural produce within the meaning of s. 2 (1) (a) of the Act and it was incompetent for the State Govt. to include sugar in the Schedule by Notification under s. 40 of the Act. THE State Govt. is competent only to add any commodity, which is agricultural produce and it is not competent to add any commodity, which is not an agricultural produce; (2) that the petitioner is a producer of sugar and is not a trader. It is not engaged in buying and selling sugar. Being a producer, it is exempted from payment of market fee under sub-rule (5) of Rule 58 of the Rajasthan Agricultural Produce Rules, 1963 (hereinafter referred to as 'the Rules'), and (3) that after production of sugar, the petitioner sends sugar to the nominees of the Central Govt. and to the licence dealers of sugar. THE petitioner does not conduct any buying and selling in any market or principal market yard or sub-market yard and no facility or services are rendered to the petitioner, so the levy of market fee on the petitioner is bad. So far as the first contention is concerned, it stands concluded by a decision of their lordships of the Supreme Court in Kishanlal vs. Omprakash (1) wherein it has been held that as per the provisions of Rajasthan Agricultural Produce Marketing Act, 1961, 'sugar' is an agricultural produce : Thus, the first contention raised by the petitioner-appellant that sugar is an industrial produce cannot be sustained and it is held that sugar is an agricultural produce. Now, we take up the second contention raised by the petitioner-appellant. It was contended that the petitioner-appellant is a producer of sugar and is not a trader. He is not engaged in buying and selling sugar and, therefore, as per r. 58 (5) of the Rajasthan Agricultural Produce Market Rules, 1963, he is not entitled to any payment of market fee. R. 58 (5) of the Rajasthan Agricultural Produce Market Produce Rules, 1963 lays down that the seller who is himself the producer of the agricultural produce offered for sale and the buyer who buys such produce for his own private and/or household use shall be exempted from payment of any fee under this rule. While discussing the provision of this rule, the learned single Judge has held that sub-r. (5) of r. 58 cannot be construed in the manner that the producers are exempted for all type of sales and buyers are exempted when they do not buy a thing for the domestic use. Only such sales are exempted, which the producers transact with the buyers for their domestic use. We are convinced that this view taken by the learned single Judge is absolutely correct. So far as the third contention of the petitioner-appellant is concerned that he is not liable to pay any market fee because no facility of market yard or sub-market yard has been provided to him. It is true that the petitioner -appellant effects its sales on its own premises by complying with the direction of the Govt. to despatch sugar to its nominees or to despatch sugar to the licenced dealers of sugar, and that may result in not providing him these facilities which are provided to the traders who sell and purchase the agricultural produce in the market yard or sub-market yard but that by itself is not sufficient to exempt him from payment of market fee because certain facilities are still provided to him by the Market Committee, it may be stated that wherever principal market yard of sub-market yards are established, those licencees, who conduct their buying and selling at these places are directly benefitted from the services rendered and the facilities provided by the market committee, but those who conduct buying and selling at places other than the principal market yard or sub-market yards, they are also to some extent benefitted by the facilities and services rendered by the market committee. This may be by way of dissemination of information and statistics relating to total buying and selling that has taken place they may also be benefitted by giving them information about prevailing prices. For the levy of market fee it is not material as to, at what price, the petitioner is required to sell and to whom. In this respect, the learned Single Judge has relied on certain authorities of Punjab & Haryana High Court as also of this Court, wherein it has been held that it cannot be said that the persons who purchase or sell the agricultural produce in their own premises and are not provided any services or facilities from the Market Committee are to be exempted from payment of market fee. In Firm Multanmal Pukhraj and another v. Agricultural Produce Market Committee 'a' Class, Paota, Jodhpur (2), it has been held by a learned single Judge of this Court that the services rendered to the entire agriculture producers, traders as a whole in the market area is to be taken note of for considering whether it is a fee or a tax. Similarly, services rendered as a whole in the market by the Market Committee would be deemed to be services rendered to the businessman, traders, agricultural producers whether they are operating in the Mandi proper where the Committee is having intensive operations and they have constructed the Mandis for that purpose or whether they are doing their business on other small places outside that Mandi proper at their own conveniences. In this view of the matter, the third contention raised by the appellant cannot be sustained and the learned single Judge has rightly repelled it. It was next contended by Mr. R. Mehta, the learned counsel for the petitioner-appellant that during the course of these proceedings , the Secretary, Krishi Upaj Mandi Samiti, Kapasan has launched the prosecution against the petitioner-appellant and that prosecution had been stayed by a learned single Judge of this Court and has also been stayed by a Division Bench of this Court in this special appeal. There was a genuine legal dispute about interpretation of the provisions and the matter has gone upto the Supreme Court. It has now been settled that sugar is not an industrial produce but it is an agricultural produce. Under these circumstances, when there was a genuine legal dispute, it was not possible for the petitioner-appellant to take a different view and to pay the market fee. If in these circumstances, the petitioner-appellant has refused to pay the market fee, his act is refusing to pay the market fee cannot be said to be malafide and, therefore, we are of the opinion that after lapse of such long time, it will not be proper to prosecute him and, therefore, the prosecution launched against the petitioner by the Secretary, Krishi Upaj Mandi Samiti, Kapasan in the court of learned Munsif & Judicial Magistrate, Kapasan deserves to be quashed. The Krishi Upaj Mandi Samiti, Kapasan will be free to recover the arrears from the appellant as per Rules.
(3.) IN this view of the matter, this appeal has no force and it is hereby dismissed. However, the prosecution launched against the petitioner-appellant by the Secretary Krishi Upaj Mandi Samiti, Kapasan in the court of learned Munsif & Judicial Magistrate, Kapasan is quashed with the aforesaid observations as regards recovery of arrears. There will be no order as to costs of this appeal. .;