Calcutta High Court (Appellete Side)
Kaybee Industrial House Pvt. Ltd vs Howrah Zilla Regulated Market ... on 24 November, 2017
Author: Debangsu Basak
Bench: Debangsu Basak
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24‐11‐2017
S.D.
W.P. 28262 (W) of 2017
Kaybee Industrial House Pvt. Ltd.
Vs.
Howrah Zilla Regulated Market Committee & Ors.
Mr. Uday Chandra Jha
Mrs. Maheswari Sharma
Mrs. Tulika Roy
....For the Petitioner.
Mr. Pradip Kumar Roy
Ms. Shraboni Sarkar
Mr. Joydip Roy
...For the Respondent Nos. 1 & 2.
The requirement to obtain a licence under Section 13(1) of the West Bengal Agricultural Produce Marketing (Regulation) Act, 1972 by a Manufacturer of biscuit is the issue raised in the writ petition.
Learned Advocate appearing on behalf of the petitioner submits that, a Manufacturer of biscuit does not come within the purview of the Act, 1972. A manufacturer processes the flour and sugar for the purpose of manufacturing of biscuits. It is outside the scope and ambit of the Section 13 (1) of the Act, 1972. He refers to the definition of "agricultural produces" as obtaining in the Act, 1972 in 2 support of the contention that, a manufacturer does not come within the purview of the Act, 1972. He relies upon 2000 (9) SCC 68 (Britannia Industries Limited vs. Tamil Nadu Pollution Control Board), (2006) 12 SCC 468 (Orient Paper and Industries Ltd. vs. The State of M.P. & Ors.), unreported decision of the Hon'ble Court, dated September 4, 2013 passed in W.P. 17967 (W) of 2013 (Shree Renuka Sugars Limited and Anr. Vs. The State of West Bengal and Ors.), judgment and order dated May 6, 2014 passed in W.P. 9466 (W) of 2017 (Aurangadabad Biri Merchants' Association & Ors. vs. The State of West Bengal & Ors.) in support of his contentions.
The respondents are represented.
Learned Advocate appearing on behalf of the Marketing Committee submits that, a manufacturer comes within the purview of the Act, 1972. He relies upon two decisions of the Division Bench rendered in M.A.T. 574 of 2014 (The Howrah Zilla Regulated Market Committee & Anr. Vs. Ruchi Soya Industries Limited & Ors.), dated May 14, 2014 and M.A.T. 1046 of 2013 (The West Bengal Marketing Board & Ors. vs. Ram Gopal Poddar and Ors.) in support of his contention that, the Writ Court need not pass any interim order as prayed for.
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I have considered the rival contentions of the parties and the materials made available on record.
The issues raised in the writ petition are such that, an opportunity should be afforded to the respondents to file affidavits.
Let affidavit‐in‐opposition be filed within three weeks from date. Reply thereto, if any, be filed within a week thereafter.
The writ petition will be treated as ready for hearing immediately on completion of the time stipulated for filing affidavits.
Liberty is given to the parties to mention for early hearing. So far as the interim order is concerned, I find the petitioner has made out a prima facie case.
Britannia Industries Ltd. (supra) is of the view that, manufacturer of biscuits using wheat flour and milk powder is not processing the wheat flour and milk powder. Orient Paper and Industries Ltd. (supra) is of the view that, manufacture is a transformation of an article, which is commercially different from the one, which is converted. It notes that, the essence of manufacturer is the change of one object to another for the purpose of making it marketable. The applicability of the Act of 1972 to the import of raw sugar and sale of refined sugar was considered in Shree Renuka 4 Sugars Mills (supra). The decision in such case is in favour of the writ petitioner. An appeal is pending therefrom. There is no order of stay. The issue as to whether the petitioner is liable to pay market fee in relation to transaction of tobacco and kendu leaves was considered in the Aurangadabad Biri Merchants' Association (supra). The Court found in favour of the petitioners there.
The Division Bench in Howrah Zilla Regulated Market Committee (supra) was concerned with the constitution of a Market Committee in terms of Section 5(3) of the Act, 1972. The facts scenario obtaining in the present case is different. The Division Bench in West Bengal Marketing Board & Ors. (supra) was concerned with the stay of recovery of market fees sought to be levied by Assansol Market Committee constituted under the Act of 1972. A stay was granted by the Writ Court on the issue that, the writ petitioners as traders were not within the ambit of the Act, 1972. Considering the position in law, the Appeal Court vacated the order of stay. Both the decisions of the Division Bench are with regard to interim orders of stay granted.
On the strength of Britannia Industries Limited (supra), the petitioner as a manufacturer of biscuits cannot be said to be indulging 5 in a manufacturing activity. Prima facie, it appears that, the petitioner as a manufacturer does not come within the meaning of the persons required to obtain licence under Section 13 (1) of the Act, 1972. The direction by the Market Committee that, the petitioner should obtain a licence under the Act, 1972 is, therefore, misplaced.
In such circumstances, there will be a stay on the direction issued by the Market Committee or any person purporting to act under the Act of 1972 requiring the petitioner to obtain a licence under the Act of 1972 for a period of six months from date or until further orders, whichever is earlier.
Urgent website certified copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
(Debangsu Basak, J.) 6 7 8 9 10