Orissa High Court
Sanjeeb Kumar Behera vs State Of Odisha Represented By ... on 6 September, 2017
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No.5895 of 2017
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Sanjeeb Kumar Behera ......... Petitioner
Versus
State of Odisha represented by
Commissioner-cum-Secretary to
Government, Government of Odisha,
Co-operation Department and others ......... Opp. Parties
For Petitioner : Dr.Ashok Mohapatra, Senior Advocate
Md. G.Madani
For Opp. Parties : Mr.Amit Ku. Pattnaik
Additional Government Advocate
(For O.P.No.1)
Mr.Pravash Ch. Panda
(For O.Ps.2 to 4)
M/s.S.Mishra and A.Kejirwal
(For O.P.No.5)
.........
PRESENT:
THE HON'BLE DR. JUSTICE D.P.CHOUDHURY
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Date of hearing:18.07.2017 Date of Judgment:06.09.2017
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Dr. D.P.Choudhury, J. Challenge has been made to the order dated
30.03.2017passed by the Principal Secretary to Government, Cooperation Department, Government of Odisha vide Annexure-1 abolishing all the Check Gates of Regulated Market Committee (hereinafter called as "RMC") with effect from 01.04.2017. -2-
2. FACTS The adumbrated facts leading to the writ petition is that the petitioner is a farmer and a member of Regulated Market Committee, Panposh. It is stated that the State Government in its Cooperation Department issued notification on 30.03.2017 abolishing all the RMC Check Gates of the State with effect from 01.04.2017 purportedly under Section 5 of the Orissa Agricultural Produce Act, 1956 (hereinafter called as "the Act, 1956") in every market area. The duty of Market Committee is to collect market fee in accordance with Section 11 of the Act for the development of the said market area and agriculturist.
3. Orissa Agricultural Produce Markets Rules, 1958 (hereinafter called as "the Rules, 1958") was framed by the State Legislature under the Act, 1956. Rule-48 of the Rules, 1958 specifically states about the manner of levy of fee and their collection. Similarly, Rule 48-A of the Rules, 1958 was enacted for the establishment of Check Gates by the Market Committee. The provisions in the Act, 1956 and the Rules, 1958 entrust the power to the officials of the Market Committee to search, seize and inspect any person carrying on business in the market area under the RMC. If Rules are not obeyed the very purpose of collection of market fee by establishing such Check Gates that the market fee collected from the purchaser/traders are used for the interest of the farmers and agricultural producers would be frustrated. So, Rule 48-A was inserted with bona fide intention of the Legislature to promote the -3- interest of the farmers or agriculturists and there should not be any middleman to collect the fees unauthorizedly.
4. When the RMC Check Gates were established with a very purpose of the interest of the farmers/agricultural producers, the opposite party no.1 suddenly made order vide Annexure-1 abolishing all the RMC Check Gates with effect from 01.04.2017 without affording any reasonably opportunity of being heard to the RMC and without collecting any data thereon. It is mentioned in the impugned order that for the interest of the farmers and public of the State, the RMC Check Gates are removed, but the real interest of the farmers and public of the State are not protected by such abolition of the RMC Check Gates.
5. Under the provision of the Act, 1956, any Rule or Regulation to regulate the RMC without Rules being amended in accordance with the provisions of law, said order vide Annexure-1 is bad in law. So, the issuance of the impugned order vide Annexure-1 is otherwise illegal and does not convey any meaningful intention or object to promote the interest of the agriculturists and farmers. So, it is prayed to quash the impugned order dated 30.03.2017 vide Annexure-1.
6. SUBMISSIONS Dr. Ashok Mohapatra, learned Senior Advocate for the petitioner submitted that the opposite party no.1 has shattered the hope of the agriculturists as well as farmers by issuing impugned order vide Annexure-1 inasmuch as by abolishing all the RMC Check Gates of the -4- State, the interest of the farmers is more affected. According to him, the Act, 1956 and the Rules, 1958 are framed for promoting the interest of the farmers and the agriculturists and to abolish the entry of middleman for persuading others to purchase agricultural produce.
7. Dr.Mohapatra, learned Senior Advocate for the petitioner further submitted that as per the provisions of the Act, 1956, any amendment in the Rules, 1958 must be placed before the State Assembly and after due legislative process, the amendment is to be brought into the textbooks. Since in the instant case, Rule 48-A was inserted by the provisions of the Act, 1956, any abolition whether for the interest of the farmers or not must be made by undergoing the legislative process. On the other hand, Annexure-1 being not put up before the State Assembly is against the provisions of the Act, 1956 and as such, the amended provisions are not available to the opposite parties.
8. Dr.Mohapatra, learned counsel for the petitioner, referring to the impugned order dated 30.03.2017 vide Annexure-1, submitted that the plea of the opposite party no.1 to the effect that the impugned order has been issued for the interest of the farmers and agriculturists is not correct as the very purpose of establishing the RMC Check Gates was for the interest of the farmers and development of market yard. So, he submitted that Annexure-1 is illegal and improper. In support of his submissions, he cited the decision of the Hon‟ble Supreme Court in the case of Agriculture Market Committee, Rajam and another -V- -5- Rajam Jute and Oil Millers Association, Rajam; AIR 2003 SC 1742 and relying on the said decision, he submitted that it is for the Market Committee to decide the manner of levying market fee. He also cited the decision of the Hon‟ble Supreme Court in the case of Vinod Kumar Koul -V- State of Jammu and Kashmir and others; AIR 2012 SC 3149 where Their Lordships have observed that administrative decision cannot override the statute. He also relied upon the decision of this Court rendered in the case of Radhashyam Panigrahi -V- Registrar (Administration), Orissa High Court and another; 2009 (Supp.I) OLR 682 where this Court have held that when statutory rules govern the field, prior executive instructions cease to apply. So, he submitted that the impugned order dated 30.03.2017 vide Annexure-1 is illegal and should be set aside.
9. Mr.Amit Kumar Patnaik, learned Additional Government Advocate for the State submits that Rule 48-A of the Rules, 1958 was inserted for the interest of the agriculturists and the farmers, but it is not a fact that Rule 48-A has been violated by issuing such notification vide Annexure-1. He drew the attention of the Court to the language used in the Rule and submitted that according to Rules, the RMC is to establish the RMC Check Gates with approval of Government, but not otherwise. As the Goods and Services Tax has been introduced recently, there is no necessity of RMC Check Gates. He also cited the decision of this Court reported in the case of Amit Kumar Saa -V- State of Odisha and others; 2016 (I) ILR-CUT-631 where Their Lordships -6- have refused to strike down the decision of the State Government in abolishing the Check Gates with effect from 01.04.2017 under the Commercial Tax and the Transport Organization. By relying upon the said decision, he submitted that in view of the said decision, the present writ petition has no merit and the same should be rejected.
10. Mr.P.C.Panda, learned counsel for the opposite parties 2 to 4 submitted that the petitioner has not come to the Court with clean hand. According to him, the purpose of establishing of RMC Check Gates has been frustrated by not being used properly. He also cited that the RMC Check Gates have been opened illegally by RMC without previous approval of the Government in accordance with Rule 48-A of the Rules, 1958. He also relied upon the judgment of this Court dated 19.06.2017 passed in W.P.(C) Nos.12330, 12391 and 12392 of 2003 wherein at paragraph-28 of the said judgment, it is observed that collection of the market fee at Check Gate is not necessary as Rule 51 of the Rules, 1958 is clear that it is the trader or buyer, who can collect the market fee and deposit the same with the RMC. On the other hand, he submitted that the petitioner has got ulterior motive to allege about keeping open of the Check Gates not for the interest of the farmers but for their interest. So, he submitted to dismiss the writ petition.
11. POINTS FOR CONSIDERATION The main point for consideration is as to whether the impugned order dated 30.03.2017 vide Annexure-1 is not in consonance with Rule 48-A of the Rules, 1958 and the same is liable to be set aside? -7-
12. DISCUSSIONS The main object of the Act, 1956 is to protect the agricultural producers from the unfair practice and undue exactions of a host of middlemen on whom he has to depend for marketing his surplus produce. So, the twin object of the Act, 1956 in one hand is to protect the agricultural producers from any unholy business transactions and secondly to have his direct contact with the consumer to sell his agricultural produce. The unfair practices that are commonly practised by the wholesale traders in the course of their transactions with the agricultural producers are unfair deductions, non-use of standard weights and measures, unfair manipulation of weighing and measurement, taking very large quantities of free samples, levy of excessive market charges etc. So, the Act, 1956 and the Rules framed thereunder in 1958 are to avoid the unfair practice practised upon the agricultural producers or farmers. The middleman earlier was engaged between the agricultural producers and the consumer, but by this Act, 1956, the agricultural producer himself comes to the market area or market yard and directly used to sell to the buyers all the agricultural produce. The small amount of market fee is collected for facilitating buying and selling agricultural produce by the farmers or agriculturists for the development of the market area and to give more breathing space to the agriculturists for the transactions. The Act, 1956 and the Rules made thereunder also amended from time to time. -8-
13. Section-11 of the Act, 1956, which has been amended on 24.11.1984 is quoted hereunder for reference:
"11. Levy of fees-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.
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-Laws.
14. 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 of 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 -9-
(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 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."
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15. Rule 48-A was thus inserted facilitating the Market Committee to place check points so that the market fee can be collected smoothly. The collection of market fee is not only organized at check point but also market fee is collected at the market area or market yard of the RMC. This provision was not there before 1996 and when the markets were multiplied, the agriculturists are more motivated and the traders started trading at the market area, such provision is made to give more hands to the RMC to enhance the buying and selling of the agricultural produce and at the same time, to collect the market fee for the interest of the farmers and agriculturists and for enhancing the market activities so that no unscrupulous person can enter the market area to exploit the agricultural producer and take away the agricultural produce by evading payment of the market fee.
16. Dr.Mohapatra, learned Senior Advocate for the petitioner submitted that when Rule 48-A was inserted in the Rules by placing the same in the sessions of State Assembly, the impugned order vide Annexure-1 issued by the opposite party no.1 was unlawful being without the knowledge of the State Legislatures and as thus beyond the jurisdiction of the State Government to issue same. On going through the provisions of the Act, 1956 and Rule 48-A, it is clear that the Market Committee, for the purpose of duty of discharge of collection of market fee and to discharge the responsibility for such purpose may establish check points or check posts with the previous approval of the Government. So, the facility of establishing all check points or check
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posts is provided under Rule 48-A but it is not absolute right of RMC but an option given to him, which can be exercised with the previous approval of the Government.
17. The impugned order dated 30.03.2017 vide Annexurs-1 reads as under:
"GOVERNMENT OF ODISHA COOPERATION DEPARTMENT No.Agm-S-03/2017/2944/Coop. Date:30.03.2017 From:
Shri Manoj Ahuja, IAS Principal Secretary to Government To All Collectors The Director, Agriculture Marketing, Odisha The Member Secretary, OSAM Board All Chairman, Regulated Market Committee in the State Sub: Abolition of all RMC check gates with effect from 1 st April, 2017 Sir, I am to say that Government have decided at the level of Hon‟ble Chief Minister to abolish RMC check gates with effect from 1st April, 2017 in the interest of farmers as well as the public of the State.
It is, therefore, requested to take immediate follow up action for abolition of all RMC check gates with effect from 1 st April, 2017.
Yours faithfully
Sd/-Principal Secretary
to Government
Xx xx xx xx"
The aforesaid impugned order dated 30.03.2017 vide
Annexure-1 states that for the interest of the farmers and public, the Government have decided to abolish the RMC Check Gates with effect from 01.04.2017 and accordingly directed the RMCs to abolish such Check Gates. On the other hand, the Government has withdrawn the
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approval, which the Government has extended to the RMCs. So, it is not an act of any amendment to Rule 48-A. The contention of petitioner that Rule 48-A of Rules, 1958 was amended by abolishing the RMC Check Gates is untenable. At the same time, the submission of Mr.Patnaik, learned Additional Government Advocate that the check points have been directed to be abolished for the interest of the farmers and agriculturists as in the meantime Goods and Services Tax has been made to operate by the Central Government as well as by the State Government is acceptable.
18. Every statute/rule/regulation/office order should have purposive interpretation. The question arises if at all the RMC Check Gates are established for the interest of the farmers, how can it be abolished again for the farmers? The submission of the learned counsel for the opposite parties 2 to 4 cannot be lost sight of because the purpose of establishing the RMC Check Gates if at all not properly implemented and the RMCs started to open the Check Gates without any approval of the State Government, such illegal activities can be well checked if no Check Gate exists. When the very purpose of the Check Gates to facilitate agricultural producers to have more buying and selling and enhancement of the market fee but if the RMC Check Gates have been misutilized, such RMC Check Gates should hardly remain to meet the very purpose for which it is created. The abolition of the RMC Check Gates would do more welfare to the agriculturists or farmers than to establish the same. So, rightly Mr.Patnaik, learned Additional
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Government Advocate supporting the amendment, has submitted that for the interest of the farmers and public, the RMC Check Gates should be abolished.
19. By relying on the decision of the Hon‟ble Supreme Court reported in the case of Vinod Kumar Koul -V- State of Jammu and Kashmir and others (Supra), Dr.Mohapatra, learned Senior Advocate for the petitioner submitted that issuance of the impugned order dated 30.03.2017 vide Annexure-1 being not consistent with Rule 48-A of the Rules, 1958 should be scrapped. On going through the said decision, it appears that the fact of said decision is not applicable to the facts of the case in hand because in that case, the Board has taken a decision contrary to the statutory rule and such Office Order having been issued, contravening the provisions of the Constitution was struck down. Similarly, in the decision reported in the case of Union of India and others -V- S. Srinivasan with Union of India and others -V- Saroj Kumar Shukla and others; AIR 2012 SC 3791 Their Lordships have observed that if a rule goes beyond the rule making power conferred by the statute, the same has to be declared ultra vires. If a rule supplants any provision for which power has not been conferred, it becomes ultra vires. The basic test is to determine and consider the source of power, which is relatable to the rule.
20. With due regards to the aforesaid decisions, it appears that in the instant case, Rule 48-A of the Rules, 1958 has not been taken out from the statute. The Hon‟ble Supreme Court, in the case of Grid
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Corporation of Orissa Limited and Others -V- Eastern Metals and Ferro Alloys and Others; (2011) 11 SCC 334 at paragraph-25, have observed in the following manner:
"25.xx xx xx ........The golden rule of interpretation is that the words of a statute have to be read and understood in their natural, ordinary and popular sense. Where however the words used are capable of bearing two or more constructions, it is necessary to adopt purposive construction, to identify the construction to be preferred......
Xx xx xx"
With due regard to the aforesaid decision, it appears that Rule 48-A of the Rules, 1958 has got natural interpretation. Even if the Rule is diagnosized, it is clear that the RMC has been facilitated to open the check points but subject to approval of the State Government for the larger interest of the farmers and agriculturists. So, the purpose of construction of such legislation is for the welfare of the farmers and agriculturists. All said to have been done under the power of the State Government.
21. Since issuance of Annexure-1 does not question the legislative process and also it does not add or alter any provisions of law but has performed its sovereign duty by directing abolition of the RMC Check Gates promoting the object of the Act, Annexure-1 cannot said to be illegal and improper. It is reiterated that the decision of the State Government for issuing Annexure-1 being act of withdrawal of approval to establish Check Gates for the interest of the farmers and agriculturists within the meaning of Rule 48-A of the Rules, 1958 having purposive interpretation, contention of the learned Senior Advocate of the petitioner is unacceptable.
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22. It is the domain of State Government to exercise control over the RMC even if the RMC is created under the Act. In the meantime, the Goods and Services Tax has been introduced with the aim to collect the tax or fee at one point so as to save the small agriculturists or farmers and other stake holders in society. In a similar situation, the State Government in Finance Department has considered the proposal of abolition of the Check Gates of the Commercial Tax and Transport Department purportedly issued under Section 74 of the Odisha VAT Act, 2004 and this Court, in the case of Amit Kumar Saa - V- State of Odisha and others;(Supra), at paragraph-8 of the said judgment, has observed as follows:
"6.xx xx xx The officials dealing with the matter would the appropriate authority to take a decision, and merely because there is a provision for establishment of such check posts or barriers, it would not mean that the Act mandates establishment of such check posts. The appropriate authority has taken a conscious decision in the matter after considering all the relevant aspects, which, in our considered view, does not call for any interference. The writ petition is dismissed accordingly."
With due respect to the aforesaid decision, it is be observed that in this case also, establishment of RMC Check Gates is the discretion of the RMC of course subject to approval of the State Government. It is the inherent power of such authority subject to reasonable grounds, may withdraw such approval at any point of time. There is no hard and fast rule that the State Government would continue to extend the approval from time to time. In the instant case, the State Government has simply vide Annexure-1 has directed for abolition of the Check Points/Check Gates, that means had withdrawn the earlier
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approval extended to install Check Gates by the RMC. When many commuters of goods vehicles enter the market area and Goods and Services Tax (GST) has already been implemented in the meantime, the concerned decision of the State Government to abolish Check Points by RMC cannot be taken as a surprise but has been taken for the benefit of the farmers or agriculturists. As the RMC has still power to collect market fee from the traders and Agriculture producers at market area and market yard, abolition of Check Points do not create any hurdle either for RMC or for agricultural producers.
23. When there is no infraction of the Rules or no departure from the legislative process and it is open for the State Government to revoke the approval for the benefit of the farmers, as discussed above, the submission Dr.Mohapatra, learned Senior Advocate for the petitioner that the impugned order dated 30.03.2017 (Annexure-10) is smack of travesty of justice is indefensible. At the same time, the submission of Mr.Patnaik, learned Additional Government Advocate and Mr.Panda, leaned counsel for the opposite parties 2 to 4 gained momentum. In the result, the impugned order dated 30.03.2017 vide Annexure-1 cannot be said to have been issued contravening the provisions of the Act, 1956 and the Rules, 1958. The point for consideration is answered accordingly.
24. CONCLUSION In the writ petition, the petitioner has prayed to quash the impugned order dated 30.03.2017 vide Annexure-1 under which all the
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RMC Check Gates of the State have been abolished. It has been already held above that issuance of Annexure-1 does neither violate the provisions of the Act, 1956 and the Rules, 1958 nor it is against the interest of agriculturists or farmers. Therefore, as the impugned order dated 30.03.2017 vide Anneuxre-1 passed by the opposite party no.1 stands good being legal and proper, the Court is reluctant to quash the same. Hence, the writ petition being devoid of merit stands dismissed.
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Dr.D.P.Choudhury,J Orissa High Court, Cuttack Dated the 6th Day of September, 2017/B.Nayak