RAYALASEEMA ROLLER FLOOR MILLS PVT LTD Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) The Petitioner is a Roller Flour Mill, in Ouddapah District. In this writ petition it is asking for a declaration that the wheat supplied to it by the Food Corporation of India, does not attract the market fee under the provisions of the Andhra Pradesh (Agricultural Produce and Livestock) Markets Act, 1966, and for a consequential direction to the market Committee to refund the market-fee collected so far from the petitioner. The petitioner's case is that, wheat is supplied to it by the Central Government, through the State Government; that, it is released through the nearest godown of the Food Corporation of India; that, the price is fixed by the State and that, even the products manufactured by it are liable to be sold only in accordance with the orders of the competent authority. It is stated that the petitioner is prohibited from purchasing any wheat from open market, or from the producers. They have to look to the Government alone for their supplies. It is stated that, from the go- downs of the Food Corporation of India, the petitioner itself has got to transport that wheat to its place of storage, or the mill, as the case may be. It is stated that, until about 1978-1979 the Food Corporation of India was collecting 1 per cent of the cost of wheat towards market fee from the petitioner and other similarly placed Flour Mills, which was challenged in this Court by way of writ petitions, viv., W. P. Nos. 4287 and 6185 of 1978, which were disposed of by me on 21st April, 1981, with certain directions and clarifications. It was held therein that, in as much as the Food Corporation of India is not proved to be a licensee under the Market Act, it has no power to collect the market-fee from the Flour Mills. It was, however, made clear that the respective market committees shall be free to proceed against the petitioners for collection of market-fees due to them. After the said judgment, it is stated, the Market Committee, Guddapah, issued notices to the petitioner proposing to prosecute it, on the ground that it is carrying on business in violation of section 7 (1), and also without paying the market-fee. These notices are challenged in the present writ petition. '

(2.) Mr. Duba Mohan Rao, the learned Counsel for the petitioner, urged the following contentions, viz:- (1) that, in as much as the petitioner's place of business is situated outside the notified market area, though within the notified area, the petitioner is not bound to take out a licence under section 7 (1) of the Act. Firstly, it may be noted that, nowhere in the writ petition has the petitioner alleged that its place of business is situated outside the notified market area. Such a contention is sought to be raised by way of a Miscellaneous Petition filed today for permission to raise an additional ground, being WPMP No. 15626 of 1983. Since the contention now sought to be raised is a question of fact, which the respondents must have an opportunity to answer, I cannot allow the said WPMP and, accordingly, dismiss the same Even otherwise, I find that, in the counter affidavit filed by the market-committee, it is stated that the petitioner-mill is established within the notified market area I have therefore to assure that it is within notified area In any event, so far as section 7 (1) of the Act is concerned, it is not necessary that the place of purchase, sale, etc., should be within the Notified market area, it is enough if it is within the Notified area. Since, admittedly, the petitione'-s place of business is within the notified area, it is liable to take out a licence under section 7 (1) of the Act. (ii) The second contention of Mr. Dub Mohan Rao is that, the petitioner cannot be said to be a 'purchaser' of wheat, in as much as wheat is allotted to it by the State Government, and is sold at the price fixed by the State. It is also submitted by him that, in as much as the petitioner does not indulge in resale of the wheat but uses it only for the manufacture of Maida, Ata, etc.; it cannot be said to be a 'purchaser' within the meaning of section 12. This contention too, in my opinion, is misconceived. Section 12 (1) levies market-fee on every sale and purchase of notified agricultural produce, taking place within the notified market area. Under section 12 (1), the fee has to be paid by the purchaser, and only where the purchaser cannot be identified, by the seller. For attracting the levy of market-fee, it is not necessary that the purchaser should have purchased the commodity for resale. Once there is a purchase of the notified agriculural produce within the notified market area, the liability to pay the market-fee arises. Rule 74 (2) of the Rules also made it clear that, the market-fee is leviable as soon as the notified agricultural produce is purchased or sold by a license. The fact that wheat is allotted by the State Government, or is purchased by him at a price fixed by the State, does not make the purchase any-the-less a pruchase. It must, therefore, be held that the petitioner is liable to pay the market-fee on its purchases of wheat, made within the notified market area. (iii) The third contention of Mr. Duba Mohan Rao is that, the wheat may be sold to the petitioner not only within the Guddapah notified market area, but outside as well and that, it is not liable to pay the market-fee on such purchases, even though it brings the same to its place of business. Now, the position ef law is clear. Market- fee has to be paid only if the sale or purchase takes place within the notified market area. Whether in a given case the sale has taken place within the Cuddapah notified market area, or outside it, is a question of fact which has to be decided by the levying authority if and when any such dispute is raised. Moreover, in this case, it is specifically stated in the counter-affidavit filed by the Market-Committee and is also not disputed by Mr. Duba Mohan Rao, that the Food Corporation of India has its office and godowns within the Cuddapah notified market area and that, mostly the supplies are made to it from the said godowns only. It is only on some occasions, it is stated, that the petitioner is obliged to draw its supplies from the godowns situate outside the Cuddapah notified market area. No material is placed before me to show that wheat, which is supplied to the petitioner, is owned by the State Government so as to hold that allotment by State Government dry itself amounts to sale. The State Government acts only as a statutory authority, regulating the distribution and supply of wheat. The petitioner remits the price into the Food Corporation of India, and takes delivery of wheat from the godowns of the Food Corporation of India. Therefore, it must be held that the sale takes place where the price is remitted and delivery is taken. If, however, in a given case the miller pays for a particular consignment and takes delivery of the same outside the notified market area, it is clear that it is not liable to pay the market-fee with respect to such purchase. As I have said earlier, this is a question of fact, and no general declaration can be made except to clarify the legal position; (iv) The next contention of the petitioner is that by virtue of section 28 of the Act, the place of business of the Food Corporation of India is exempt from the operation of the Act, and if so. the Food Corporation of India is entitled to sell the wheat outside the market established by the Market Committee; and further because no services are rendered outside tha market, the petitioner is not liable to pay the market-fee. Section 28 of the Act reads as follows :

(3.) The avpve observations have been quocted with approval by the Supreme Court in its decision in Sreentvasa General Traders v. State of Andhra Pradesh