Orissa High Court
K K Trading Company vs State Of Orissa Represented By ... on 19 June, 2017
HIGH COURT OF ORISSA : CUTTACK
Writ Petition (C) Nos.12330, 12391 and 12392 of 2003
In the matter of applications under Articles 226 and 227 of the
Constitution of India.
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M/s.K.K.Trading Company ......... Petitioners
(In W.P.(C) No.12330/2003)
M/s.Sri Bishnu Traders
(In W.P.(C) No.12391/2003)
M/s.Shree Basuki Bhandar
(In W.P.(C) No.12392/2003)
Versus
State of Orissa represented by
Secretary, Department of Agriculture
and Cooperation and others ......... Opposite Parties
For Petitioner : Mr. Jagabandhu Sahoo, Sr. Advoate
Miss.R.Sahoo, N.K.Rout and A.Das
(In all the writ petitions)
For Opp. Parties : Mr.Amit Ku. Pattnaik
Additional Government Advocate
(For opposite parties 1 to 3 in
three writ petitions)
M/s.B.M.Pattnaik, R.Sharma,
S.R. Singh Samant and S.Nanda and
P.R.Patnaik
(For O.P.No.4 in W.P.(C)
No.12330/2003)
M/s.P.Behera and M.R.Tripathy
(For O.P.No.4 in W.P.(C) Nos.12391 &
12392/2003)
.........
PRESENT:
THE HON'BLE DR. JUSTICE D.P.CHOUDHURY
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Date of hearing:27.04.2017 Date of Judgment:19.06.2017
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Dr. D.P.Choudhury, J. Challenge has been made to the illegal action of the
Regulated Market Committee, Panposh, opposite party no.4 (hereinafter
called the "the RMC") for collecting market fee.
2. Since the above three writ petitions have got common
question of law, they are being taken up together for disposal by this
common judgment.
FACTS
3. The adumbrated facts of the petitioners are that the
petitioners, in all the three writ petitions, being trading companies have
got business dealing in wholesale and retail sale of various Dals, Pulses
etcetera having their place of business at Rourkela in the district of
Sundergarh. They used to purchase the goods from different places
outside the State of Orissa and then being transported from those places
by vehicle for delivery at the place of business of the petitioners. The
transportation of goods from outside the State and other places in
vehicles are accompanied with necessary documents such as copy of the
cash/credit bill with statutory declaration in Form-„C‟ under the Central
Sales Tax Act.
4. Be it stated that the opposite party no.4-RMC earlier was
collecting Rs.200/- per vehicle entering into Rourkela through RMC,
Panposh Check Gate in respect of different agricultural produce brought
from outside the market area, but later on the opposite party no.4-RMC
collected the market fee at RMC Check Gate, Panposh at the rate of 1%
on the value of all incoming consignments passing through the check
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gates carrying Dals, Pulses etc. Undoubtedly, the agricultural produce
were coming to the place of business of petitioners at Rouekala. As the
Dals and Pulses are being purchased from outside the Orissa and outside
the RMC area but entering the RMC area, such collection of market fee
purportedly is illegal and improper. Not only this but also the Sub-
Collector-cum-Chairman, Panposh RMC, in his letter dated 31.5.2003
informed the President of the Chamber of Commerce and Industry,
Rourkela to inform the traders bringing agricultural produce to pay the
market fee to RMC at the rate of 1% on the purchase value at gate point
with effect from 7.6.2003. Accordingly, Rourkela Chamber of Commerce
and Industries had informed the Director, Agriculture Marketing, Orissa,
opposite party nos.3 and 4 to withdraw agricultural marketing fee at
Rourkela since the impugned levy is not only undesirable and illegal but
also causes loss and embarrassment to its members.
5. Be it stated that the avowed object of Orissa Agricultural
Produce Markets Act, 1956 (hereinafter called as "the Act, 1956") is to
protect the interest of the agriculturists growing crops and marketing
the same to the traders, who in turn, exports them to other private and
other areas and to stop the unfair practice by the wholesale traders in
course of their transaction with the agricultural producers. In spite of
the object of the Act, 1956, the opposite party no.4 continued to collect
the market fee from the petitioners who purchased such produce from
outside the State like Madras, Bombay, Hyderabad, Madhya Pradesh and
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other places and bring the same to the area of RMC, Panposh for onward
wholesale trading.
6. Be it stated that the levy of fee is purportedly made by
virtue of the power conferred under Section 11 of the Act. Since the
agricultural produces are purchased by the petitioners from outside the
State and brought to the market area of opposite party no.4, the same
does not attract any liability whatsoever under Section 11 of the Act for
their exigibility to market fee imposed by opposite party no.4. This
matter is covered by the decision of this Court in the case of
M/s.Ganesh Rice Mills and another -V- Attabira Regulated
Market Committee and others; 1991 (II) OLR 58.
7. It is the rule of law that no fees and fiscal levy is imposable
without authority of law as in the present case, the agricultural produce
purchased by the petitioners from outside the State are not marketed
inside the market area of RMC-Panposh and more so at the point of
entry, levy and collection of market fee by opposite party no.4 is wholly
illegal and arbitrary. It is, therefore, prayed in all the three writ petitions
to declare such levy and collection of the market fee as illegal and
impermissible in law and to direct the opposite parties to refund the
market fee collected from the petitioners with interest.
8. Contradistinctions to the contentions made in the writ
petitions, the opposite party no.4-RMC filed counter affidavit refuting the
allegations made against it. It is the case of the opposite party no.4 that
the petitioners carry on business on wholesale and retail sale of various
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Dals and Pulses having their places of business at Rourkela under the
jurisdiction of RMC, Panposh. The petitioners purchased the goods from
outside the State, brought the same to the market area through the
Check Gate of RMC, Panposh and sold the same inside the market area
as defined under Sub-Section-5 of Section 4 of the Act, 1956. Since the
goods are brought through the Check Gate of RMC, Panposh to the
market area for the purpose of selling the same in the market area, the
opposite party no.4 has rightly collected the tax as provided in Clause-
13 of the Bye-Law as well as Rules.
9. Be it stated that the petitioners are licencees under the
opposite party no.4 for marketing the goods inside the RMC area. The
declaration Form „C‟ possessed by the petitioners may give relief under
the Central Sales Tax Act but cannot be used its exigibility under the
Act, 1956 because the objects of both the Acts are different. Rule-48(1)
of the Orissa Agricultural Produce Markets Rules, 1958 (hereinafter
called as "the Rules, 1958") made under the Act, 1956 states that the
market committee shall levy and collect market fees on the agricultural
produce sold or brought for sale or for storage in the market yard at
such rates as may be specified in its Bye-Law subject to the following
maxima. Since the agricultural produce are brought by the petitioners
for sale to the market yard, the opposite party no.4 has right in
collecting the market fee.
10. The ratio of the case in the case of M/s.Ganesh Rice Mills
and another (Supra) is not applicable to the facts of the present case
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because in that case, the Court decided regarding issue of levy and
collection of market fee on agricultural produce marketed outside the
market area. At the same time, the decision rendered by this Court in
the case of Shiv Prasad Shyamsundar -V- The Regulated Market
Committee, Jharsuguda; 82 (1996) CLT 436 that the market fee
collected upon the agricultural produce marketed within the market area
cannot be made refundable.
11. It is stated that Rule-51 of the Rules, 1958 provides for
collection of fees and proviso to such rule deals with the manner of
collection of fees. Under such proviso, every trader, adatya or buyer
being authorized under the Bye-Law and Market Committee to collect
the market fee, has to deposit such market fee with the paid servant of
the committee. It is further stated that since the opposite party no.4 has
been duly nominated by the State Government under Sub-Section-6 of
Section-6 of the Act, 1956 to collect market fee and the petitioners have
purchased the produces from outside the State and brought the same to
the market area of opposite party no.4 for the purpose of storage and
selling, the opposite party no.4 has justifiably levied and collected the
market fees. Hence, the writ petitions having no merit should be
dismissed.
12. SUBMISSIONS
Mr.Jagabandhu Sahoo, learned Senior Advocate for the
petitioners submitted that the petitioners have purchased the Dal,
Pulses etcetera, which are agricultural produce from outside Orissa and
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brought the same to Rourkela for their sale to different dealers. The
petitioners have already paid necessary fees at different Check Gates
outside the State and again it is subjected to payment of market fee
while entering into the area of RMC, Panposh. According to him the
provisions under Section 11 of the Act, 1956, being charging Section,
does not state about any collection of levy and market fee while the
same being brought inside the market area after being purchased from
outside the market area. He further submitted that the avowed object of
the Act, 1956 for marketing of the agricultural produce by the innocent
buyers and to stop the unfair trade practice by middlemen, the opposite
party no.4 has committed error by levying and collecting market fee
from the petitioners.
13. Mr.Sahoo, learned counsel for the petitioners further
submitted that in the instant cases, the agricultural produces enter
through the Check Gate of the RMC, Panposh-opposite party no.4 and
there the market fee is being collected but the Rules prescribe that while
the agricultural produce are purchased, the market fee is to be
collected. On the other hand, before the transaction, the market fee has
been collected by the opposite party no.4-RMC, which is against the
principles of law. As the Act, 1956 is silent about collection of such
market fee and Section 11 is the charging section in this regard, any
rule framed under the Act, 1956 prescribing the manner of collection of
the market fee is de hors the law for which the levy and collection of the
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market fee by the opposite party no.4 be declared as illegal and
improper.
14. Mr.P.R.Patnaik, learned counsel for the opposite party no.4
submitted that the petitioners have suppressed the material facts
because it simply pleads that the goods are purchased from outside the
market area and brought to the area of RMC, Panposh but conceals
about marketing of the same inside the market area. He submitted that
actually the goods are brought by the petitioners from outside the
market area to the market area and market yard of the opposite party
no.4 for selling the same to the buyers. According to him, Section-11 of
the Act, 1956 prescribes that there should be levy of the market fee but
does not indicate the manner of levy and collection of market fee. Since
the rules have been framed under the Act, 1956 and Rule-48 prescribes
the detail manner of levy and collection of market fee, it cannot be said
that said provisions are contrary to the provisions of the Act, 1956.
Under such provision, the RMC is conferred with the power to levy and
collect market fee from the agriculturists who buy or sale the
agricultural produce. On 3.8.1996, such Rule-48 was amended
prescribing the detail procedures. Under such procedure, the collection
and levy of market fee is to be made from the purchasers or the traders
bringing the agricultural products to the market area for sale or storing
of the same. Since in the instant cases, the goods admittedly have been
brought to the area of RMC, Panposh and the same have been
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marketed, the levy and collection of fee at the Check Gate while
entering into the market area is also in accordance with law.
15. Mr.Patnaik further submitted that in the instant cases, the
agricultural produce brought by the petitioners has not been transacted
within thirty days as provided in the proviso to Sub-Section-6 of
Section-4 of the Act, 1956 so as to exempt such agricultural produce to
pay the market fee and, therefore, under the Bye-Law, the market fees
are being collected by the opposite party no.4-RMC at the Check Gate.
He further submitted that in the interim order dated 21.12.2004 passed
by this Court, there is clear discussion in this regard and accordingly the
interim order has been passed by stating that the market fee collected
so far by the opposite party no.4 be kept in a separate account. He,
therefore, submitted that there is no merit in the writ petitions and the
same should be dismissed.
16. POINT FOR CONSIDERATION
The main point for consideration is as to whether the levy
and collection of market fee by opposite party no.4-RMC from the
petitioners is legal and proper?
17. DISCUSSIONS
It is admitted that the petitioners are wholesale traders of
Dals and Pulses and they had purchased the same from the outside
market area of opposite party no.4. It is not in dispute that the
petitioners bring the goods through the Check Gate of opposite party
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no.4 to the market area and opposite party no.4 has collected the
market fee.
18. The contention of Mr.Sahoo, learned Senior Advocate for the
petitioners to the effect that the agricultural produce being marketed
outside the market area and thereafter being brought from such places
to the market area of the opposite party no.4., the same is not exigible
to market fee under the Act, 1956. On the other hand, the opposite
party no.4-RMC claims that the petitioners use to sell the goods brought
to the market to the buyers for which the opposite party no.4 is correct
in its approach to levy and collect the market fee.
19. In the writ petitions, the petitioners have admitted that the
petitioners having purchased the agricultural produce from outside the
Orissa, brought the same for its business at RMC, Panposh. The
dictionary meaning of "business" as per Webster‟s Encyclopedic
Unabridged Dictionary is that the purchase and sale of goods in an
attempt to make a profit. So, the petitioners admit that the goods so
procured from outside Orissa are brought to the market area of opposite
party no.4-RMC for sale.
20. The distinction between a „tax‟ and a „fee‟ is of particular
importance lies under our Constitution in connection with the question of
their application varies inasmuch as the power exists to levy different
kinds of imposition by the various Entries in the Legislative Lists, so that
the validity of the imposition made by a particular Legislature has to be
determined with reference to those Entries. A "tax" is a compulsory
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exaction of money by a public authority for public purposes enforceable
by law and is not payment "for services rendered". The Constitution
Bench of the Hon‟ble Supreme Court in the case of The Commissioner,
Hindu Religious Endowments, Madras -V- Sri Lakshmindra
Thirtha Swaminar of Sri Shirur Mutt; AIR 1954 SC 282, at
paragraphs-43, 44 and 45, have observed as under:
"43. A neat definition of what "tax" means has been given by
Latham C. J. of the High Court of Australia in-"Matthews v.
Chicory Marketing Board", 60 CLR 263 at P.276 (M).
A "tax", according to the learned Chief Justice, "is a
compulsory exaction of money by public authority for
public purposes enforceable by law and is not
payment "for services rendered".
This definition brings out, in our opinion, the
essential characteristics of a tax as distinguished
from other forms of imposition which, in a general
sense, are included within it. It is said that the
essence of taxation is compulsion, that is to say, it is
imposed under statutory power without the
taxpayer's consent and the payment is enforced by
law vide - "Lower Mainland Diary -V- Orystal Diary
Ltd: 1933 AC 168 (N).
The second characteristic of tax is that it is an
imposition made for public purpose without
reference to any special benefit to be conferred on
the payer of the tax. This is expressed by saying that
the levy of tax is for the purposes of general
revenue, which when collected revenues of the
State. As the object of a tax is not to confer any
special benefit upon any particular individual, there
is, as it is said, no element of "quid pro quo"
between the taxpayer and the public authority, see
Findiay Shirras on „Science of Public Finance‟, Vol.1
P.203. Another feature of taxation it; that as it is a
part of the common burden, the quantum of
imposition upon the taxpayer depends generally
upon his capacity to pay.
44. Coming now to fees, a 'fee' is generally defined to be a
charge for a special service rendered to individuals by some
governmental agency. The amount of fee levied is supposed to
be based on the expenses incurred by the Government in
rendering the service, though in many cases the costs are
arbitrarily assessed. Ordinarily, the fees are uniform and no
account is taken of the varying abilities of different recipients to
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pay, Vide Lutz on "Public Finance" P.215. These are undoubtedly
some of the general characteristics, but as there may be various
kinds of fees, it is not possible to formulate a definition that
would be applicable to all cases.
45. As regards the distinction between a tax and a fee, it, is
argued in the first place on behalf of the respondent that a fee
is something voluntary which a person has got to pay if he
wants certain services from the Government; but there is no
obligation on his part to seek such services and if he does not
want the services, he can avoid the obligation. The example
given is of a licence fee. If a man wants a licence that is entirely
his own choice and then only he has to pay the fees, but not
otherwise. We think that a careful examination will reveal that
the element of compulsion or coerciveness is present in all kinds
of imposition, though in different degrees and that it is not
totally absent in fees. This, therefore, cannot be made the sole
or even a material criterion for distinguishing a tax from fees.
It is difficult, we think, to conceive of a tax except, it be
something like a poll tax, the incidence of which falls on
all persons within a State. The house tax has to be paid
only by those who own houses, the land tax by those
who possess lands, municipal taxes or rates will fall on
those who have properties within a municipality.
Persons, who do not have houses, land or Properties
within municipalities, would not have to pay these
taxes, but nevertheless these impositions come within
the category of taxes and nobody can say that it is a
choice of these people to own lands or houses or
specified kinds of properties, so that there is no
compulsion on them to pay taxes at all. Compulsion lies
in the fact that payment is enforceable by law against a
man in spite of his unwillingness or want of consent;
and this element is present in taxes as well as in fees.
Of course, in some cases whether a man would come
within the category of a service receiver may be a
matter of his choice, but that by itself would not
constitute a major test which can be taken as the
criterion of this species of imposition. The distinction
between a tax and a fee lies primarily in the fact that a
tax is levied as a part of a common burden, while a fee
is a payment for a special benefit or privilege. Fees
confer a special capacity, although the special
advantage, as for example in the case of registration
fees for documents or marriage licences, is secondary
to the primary motive of regulation in the public
interest, vide Finlay Shiras on „Science of Public
Finance‟, Vo.I, page 202. Public interest seems to be at
the basis of all impositions, but in a fee it is some
special benefit which the individual receives. As
seligman says it is the special benefit accruing to the
individual which is the reason for payment in the case
of fees; in the case of a tax, the particular advantage if
it exists at all is an incidental result of State action,
vide Seligman‟s Essays on Taxation, P.408."
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With due respect to the aforesaid decision, when there is
clear distinction between a „tax‟ and a „fee‟, primary object of a tax is
not to confer any special benefit upon any particular individual, there is
no element of "quid pro quo" between the taxpayer and the public
authority. Another feature of taxation is that as it is a part of common
burden, the quantum of imposition upon the taxpayer depends generally
upon his capacity to pay. On the other hand, the "fee" is generally
defined to be a charge for a special service rendered to individuals by
some Government agency. But the traditional view that there must be
actual "quid pro quo" in the strict sense but is not a sine qua non for
collection of fee. Although the tax and fee appear to be same burden on
the public but there is basic difference which in the present cases, make
it clear that the exemption of the sales tax to the petitioners could not
exempt the petitioners from paying the market fee.
21. Section-11 of the Act, 1956, which has been amended on
24.11.1984is quoted hereunder for reference:
"11.It shall be competent for a Market Committee to levy and collect such fees (hereinafter referred to as the market fees) not being less than one rupee from every purchaser for every hundred rupees worth of agricultural produce marketed in the market area in such manner as may be prescribed and at such rate as may be specified in the bye-laws :
Provided that the rate of fees to be specified in the bye-laws shall not exceed three percent of the value of agricultural produce sold in the markets within the market area Provided further that no such fees shall be levied and collected in the same market area in relation to any agricultural produce in respect of which fees under this section have already been levied and collected therein.
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Explanation-For the purpose of this section all notified agricultural produce leaving a market yard shall unless the contrary is proved, be presumed to have been brought within such yard by the person in possession of such produce.
From the aforesaid Section, it appears that the provisions have allowed the Market Committee to levy and collect fees at the rate not being less than one rupee from each purchaser for every hundred rupees worth of agricultural produce marketed in the market area, in the manner as may be „prescribed‟ and specified in the Bye-Law.
22. Under Chapter-VI, Rule 48 of the Rules, 1958 has been amended on 3.8.1996, which is reproduced as under:
"48. (1) The Market Committee shall levy and collect market fees from:
(a) a purchaser notified agricultural produces marketed in the market area;
(b) The person deemed to be a purchaser under the explanation to Section 11 of the Act in respect of the notified agricultural produce; and
(c) The persons bringing any notified agricultural produce into the market area for the purpose of processing or for export only, but not processing it therein or exporting it therefrom within the period of thirty days as provided in the provisos to Sub-section(6) of Section 4 of the Act, at such rates as may be specified in its bye-
laws, subject to the minima and the maxima specified in Section 11 of the Act;
(2) The Market Committee shall levy and collect licence fees from traders, adatyas, brokers, weighmen, measures, surveyors and warehousemen operating in the market area at such rates as may be fixed in its bye-laws. (3) A person brining any notified agricultural produce from outside the market area into the market area, for the purpose of processing by his industrial concern situated within the market area, if any, or for export from such area, shall be subject to levy of market fee unless he furnishes a declaration in respect of the produce and the certificate in Form-IV, to any Officer or servant of the Market Committee specifically authorized by the Committee in that behalf at the time of entry of the said produce into the market area
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Provided that if the agricultural produce is not used by the industrial concern and is removed from the market or if it is not exported within twenty days of the purchase, the Market Committee shall levy and collect fees on such agricultural produce from the industrial concern or the persons furnishing the certificate at such rates as may be specified in its bye-laws.
(4) Retail sale of agricultural produce by the producer shall be exempted from any fees.
Explanation-"Retail Sale" in respect of any agricultural produce means the sale of such agricultural produce in any calendar day not exceeding the quantity or value specified in the bye-laws of the Market Committee. (5) Purchase of any agricultural produce in any calendar day not exceeding the quantity or value specified in the bye-laws of the Market Committee, by a buyer for his domestic or household consumption shall be exempted from the payment of any fee.
48-A.Establishment of Check Points by the Market Committee- The Market Committee may, for the purpose of due discharge of its responsibilities, under the Act, Rules and Bye-laws, establish check points at such locations as may be notified by it from time to time, with the previous approval of the Government."
23. From the aforesaid provision, it is clear that Rule 48 is the prescribed method as required under Section 11 of the Act, 1956. So, the contention of the learned counsel for the petitioners that Section 11 is the charging Section and Rule 48 cannot be read without Section 11 is incorrect because Section 11 read with Section 27 of the Act direct the State Government to frame Rule and accordingly Rule 48 has been framed prescribing the manner of levy and collection of market fee. Thus, the market fee is to be collected in the manner prescribed in Rule 48 of the Rules, 1958.
24. In the instant cases, there is no document produced by the petitioners to show that the petitioners have exported or processed agricultural produce within thirty days. Rather, it is admitted by the
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petitioners that the goods purchased from outside the market area are brought to the market area for business and as such, the entire marketing of the agricultural goods by the petitioners takes place in the market area of the RMC, Panposh. The petitioners bringing the agricultural produce into the market area either for process or for export and for being not exported within thirty days, has to pay market fee in accordance with Clause-13 of the Bye-Law, as submitted by the learned counsel for the opposite party-RMC. Not only this but also Rule-51 prescribes in the following manner:
"51.Collection of fees-The fees shall be collected by the paid servants of the Market Committee and the right to collect the fees shall not be formed out.
Provided that the collection of fees through a trader, adatya or buyer shall, if such collection is authorized in the bye-laws of the Market Committee and, is deposited with a paid servant of the Committee in the manner specified in the said bye-laws, be deemed to be a collection by the paid servants of the Committee."
Thus, it is made clear that a trader, adatya or buyer can be authorized by the Market Committee to deposit the market fee collected by him with the paid servant of the Committee. When in these cases, the petitioners have got their business inside the market area and also they are the licences to do the business inside the market area, they can be authorized to collect market fee from buyer and pay the same to the opposite party no.4 as per the aforesaid provisions of law.
25. From the aforesaid discussion, it is clear that the petitioners even if purchased the agricultural produce outside the market area but have brought the same to the market area for buying and selling including export of the same as they are the wholesale dealer. Thus, the
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petitioners have brought such agricultural products for the purpose of marketing. The definition of "marketing" has been introduced in 2007 but prior to that, the word "marketing" in common parlance includes buying and selling of the agricultural produce. So, the petitioners have brought the said agricultural produce to the market area for marketing of the same and as such, under Section 11 of the Act, 1956, they are liable to pay the market fee as per the amount fixed in the Bye-Law of the RMC-opposite party no.4. On the other hand, opposite party no.4 is entitled to levy and collect market fee under Section 11 of the Act, 1956 from the petitioners for the marketing of said agricultural produce. The point is answered accordingly.
26. CONCLUSION In terms of the above discussions, the Court is of the view that the agricultural produce procured by the petitioners from the outside the State are being brought to the market area of opposite party no.4 for the purpose of marketing including export of same and as such, the opposite party no.4-RMC is justified in levying and collecting the market fee.
27. The contention of the learned Senior Advocate for the petitioners about the applicability of the decision of this Court reported in M/s.Ganesh Rice Mills and another (Supra) is not applicable because in that case, there was no marketing of the agricultural produce in the market area and in that case, this Court observed that where there is no marketing inside the market area of the RMC, the RMC has
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no authority to levy and collect market fee even if the agricultural produce passes through the market area without the same being marketed. So, the ratio of that case is not applicable to the present cases at hand in view of the different facts and circumstances of that case.
28. Rule-51 of the Rules, 1958, as discussed above, specifies about the collection of fees and the interim order dated 21.12.2004 of this Court also discussed about the same and following two paragraphs are relevant for coming to the conclusion of this case, which are reproduced as under:
"We find on a reading of the bye-laws of the opp. party no.4 Market Committee annexed to the counter affdiavit of opp. Party no.4 as Annexure-A/4 in W.P.(C) No.13116 of 2003 that the bye-laws authorize collection of such market fee by every trader, adatya or buyer for agricultural produce brought to him for sale @ Rs.1/- per cent and for which he shall have to maintain a separate account. Hence it is clear that although market fee is to be levied and collected from the purchaser of agricultural produce in the market area, a trader, adatya or buyer is authorized to collect such market fee from the purchasers and such collection by the trader, adatya or buyer is deemed to be collected by the paid servants to the Committee.
In view of the said provisions of the Act, Rules and the bye-laws of opp. Party no.4, we vacate the interim order dated 9.2.2004 and direct that a separate account will be maintained by the opp. Party no.4 for any market fee collected from the petitioner and in case, the petitioner succeeds in the writ petition, appropriate order will be passed for refund of the amounts so deposited with the Market Committee.
Xx xx xx xx"
From the aforesaid paragraphs of the above order, it is clear that a trader or a adatya or a buyer can collect and deposit the same with the RMC. Also, there is a decision of this Court passed in W.P.(C) No.12392 of 2003 (M/s.Shree Basuki Bhandar -V- State of Orissa and others) where Their Lordships have observed in the same
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manner. Hence, in the instant cases, even if the opposite party no.4 is entitled to levy and collect market fee from the petitioners, the petitioners should be authorized by opposite party no.4 to collect the market fee from the purchasers and deposit the same with the RMC-
opposite party no.4. In that context, there is no necessity of collection of market fee at the Check Gate. So, the market fee is to be collected by the opposite party no.4 from the petitioners who have collected the same from the purchasers of the goods. Thus, the Court is of the opinion that the levy and collection of market fee by the opposite party no.4- RMC although is allowed but the same would not be collected at the entrance of Check Gate of RMC but it would be collected from the petitioners at market area after the same has been collected by the petitioners from the purchasers of the goods. Accordingly, the writ petitions are disposed of with a direction to the opposite party no.4-RMC to levy and collect market fee from the petitioners at the rate prescribed under the Bye-Law after market fee being collected from the purchasers by the petitioners as observed above. The market fee collected by the opposite party no.4-RMC vide interim order dated 21.12.2004 shall not be refunded to the petitioners and would go to the account of opposite party no.4-RMC.
The writ petitions are disposed of accordingly.
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Dr.D.P.Choudhury,J Orissa High Court, Cuttack Dated the 19th Day of June, 2017/B.Nayak