Gujarat High Court
Jayant Oils & Derivatives Ltd vs Agriculture Produce Market Committee ... on 10 February, 2009
Author: K.S. Radhakrishnan
Bench: K.S.Radhakrishnan
LPA/138320/2008 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 1383 of 2008 In SPECIAL CIVIL APPLICATION No. 9705 of 2008 With CIVIL APPLICATION No. 13651 of 2008 In LETTERS PATENT APPEAL No. 1383 of 2008 With SPECIAL CIVIL APPLICATION No. 9705 of 2008 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN HONOURABLE MR.JUSTICE AKIL KURESHI ============================================= Whether Reporters of Local Papers may be allowed to see the 1 judgment ?
2 To be referred to the Law Reporter or not ?
Whether their Lordships wish to see the fair copy of the 3 judgment ?
Whether this case involves a substantial question of law as to 4 the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
============================================= JAYANT OILS & DERIVATIVES LTD Appellant(s) Versus AGRICULTURE PRODUCE MARKET COMMITTEE VADODARA & 1 Respondent(s) ============================================= Appearance :
MR MIHIR THAKORE, SR. ADV. FOR SINGHI & CO for Appellant : 1 MR KG VAKHARIA, SR. ADV. with MR DILIP B RANA for Respondent : 1 MRS. MANISHA LAVKUMAR SHAH for Respondent : 2 ============================================= CORAM : HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN HONOURABLE MR.JUSTICE AKIL KURESHI Date : /02/2009 CAV JUDGMENT (Per : HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN) The question that has come up for consideration in Special Civil LPA/138320/2008 2/11 JUDGMENT Application No. 9705 of 2008 is `whether subsection (2)(a), added to Section 28 of the Gujarat Agricultural Produce Markets Act, 1963 (for short `the Act'), vide the Gujarat Agricultural Produce Markets (Amendment) Act, 2007, has the effect of taking away the substratum of the Division Bench judgment dated 24.04.2007 in Letters Patent Appeal No.139 of 2006 and connected matters'.
Respondent no.2Jayant Oils and Derivatives Limited, Vadodara, the appellant herein, is engaged in the business of manufacture and export of castor oils and its derivatives in the Industrial Units at 480483 at GIDC, Makarpura, Vadodara, within the market area of the petitioner Agricultural Produce Market Committee, Vadodara, respondent no.1 herein, within the market area of the petitionerMarket Committee. RespondentCompany was served with a demand notice dated 05.03.2008 by the Market Committee, raising a demand of Rs.
1,18,65,658/ towards market fee and further calling upon the Company to show cause why penalty of sum equal to 5 times of the demanded amount should not be imposed.
Market Committee pointed out that respondentCompany is bound to pay market fee for the market produce brought into the market area as per amended subsection (2)(a) of Section 28 of the Act. Respondent Company submitted its reply vide letter dated 08.03.2008 stating that they are not bound to pay the market fee, since they have not purchased any agricultural produce from the market area. Market Committee reiterated the demand vide letter dated 15.04.2008, demanding a sum of Rs.1,18,65,658/ along with penalty thereon of Rs.5,93,28,290/ for the period from 02.02.2008 to 15.02.2008. The abovementioned letter was replied by respondentCompany vide letter dated 25.04.2008 denying the liability. When the Market Committee took further steps to enforce LPA/138320/2008 3/11 JUDGMENT its demand, respondentCompany submitted before the Revisional Authority that Market Committee has no legal right to demand market fee from respondentCompany, since the issue is already covered by a Division Bench decision of this Court in Letters Patent Appeal No.139 of 2006 and connected matters. They have stated that the Division Bench clearly laid down the law that once industrial concern is using market produce for its own manufacturing purpose, then no market fee is leviable thereon. It is pointed out that Section 28(1) r.w. Rule 48(2) of the Gujarat Agricultural Produce Markets Rules, 1965 (for short `the Rules') would clearly indicate that respondentCompany is not legally obliged to pay any market fee for agricultural produce, which has been brought from outside the market area into the market area for their own consumption.
Market Committee, however, submitted before the Revisional Authority that the Amendment Act would rope in a processor also within the meaning of subsection (2)(a) of Section 28, and since respondent Company being a processor of the goods within the market area, Market Committee is justified in demanding market fee. Revisional Authority placed considerable reliance on the Division Bench judgment in Letters Patent Appeal No.139 of 2006 and took the view that if the Concern uses agricultural product as a rawmaterial, it is exempted from market fee as contemplated in Rule 48(2). Revisional Authority also took the view that Section 28(2)(a) is inapplicable to the case of respondentCompany, since the same is covered by Section 28(1) of the Act. Revisional Authority, therefore, by order dated 30.06.2008, allowed the application filed by respondentCompany and quashed the demand notices dated 05.03.2008 and 15.04.2008.
Aggrieved by the said order dated 30.06.2008 of the Revisional LPA/138320/2008 4/11 JUDGMENT Authority, Market Committee has come up before this Court with the present Special Civil Application. Learned Single Judge of this Court passed a conditional order on 13.11.2008, directing respondent Company to make partpayment of market fee, and to give an undertaking. Challenging the interim order dated 13.11.2008, respondentCompany preferred Letters Patent Appeal No. 1383 of 2009. When Letters Patent Appeal came up for hearing, by consent of the parties, we posted the Special Civil Application itself for final hearing and accordingly the matters were finally heard.
Shri K.G. Vakharia, learned Senior Counsel appearing for the Market Committee, submitted that the Revisional Authority committed an error in coming to the conclusion that respondentCompany is entitled for exemption under Rule 48(2) ignoring the amended provisions of Section 28 of the Act. Learned Senior Counsel submitted that the provisions of Rule 48(2) of the Rules have become redundant in view of the amended provisions of Section 28 of the Act. Learned Counsel also submitted that the principle laid down in the Division Bench judgement in Letters Patent Appeal No.139 of 2006 is no more applicable to the facts of the present case, in view of amendment effected to Section 28 of the Act.
Learned Counsel referring to subsection (2)(a) of Section 28 contended that a strict construction of the said provisions, the buyer, who is a processor, and buys agricultural produce from any market other than the market area, is also liable to pay market fee. Learned Counsel submitted that such processor will not be levied market fee, if fees is paid in the market from where the market produce was bought and produces a proof regarding payment of fee. Learned Counsel submitted that Section 28(2)(c) puts an obligation upon the buyer purchasing from LPA/138320/2008 5/11 JUDGMENT other market area to pay market fees to Market Committee, in whose area agriculture produce is brought for the purpose of processing, irrespective of the fact that the event of buying or selling has not taken place in the market area of the Market Committee, where market fee is required to be paid. Learned Counsel submitted that subsections (2)(b),
(c) and (a) to Section 28 have to be read together, in the event of which, respondentCompany, who is a processor, is bound to pay market fee. Learned Counsel also submitted that interpretation given by Division Bench on Rule 48(2) is also incorrect. It is submitted that Rule 48(2) nowhere prescribes that agriculture produce brought from outside market area has to be by the industrial concern itself. Learned Counsel submitted that Division Bench has omitted to consider Explanation to Rule 48(1). In support of the above proposition, learned Counsel placed reliance on the judgment in M/s. Doshi Kantilal Ratilal & Ors. v. State of Gujarat & Ors 1994 (2) GLR 1706 of this Court, Government of the Province of Bombay v. Hormusji Manekji - 1947 Privy Council 200 and Visitor, AMU and others v. K.S. Misra - (2007) 8 SCC 593.
Shri Mihir Thakore, learned Senior Counsel appearing for the respondentCompany, placed considerable reliance on the Division Bench judgment of this Court in Letters Patent Appeal No.139 of 2006. It is pointed out that though Special Leave Petition was filed against the judgment, no stay has been granted by the Apex Court, therefore, the judgment still holds good. Learned Counsel further submitted that the Amendment Act has not brought any change to Section 28(1) of the Act and so also to Rule 48(2) of the Rules. Learned Counsel submitted that the only question is whether there is any element of sale or purchase in the market area, so far as respondentCompany is concerned. RespondentCompany has not bought or sold any agricultural produce within the market area, therefore, Market Committee is not entitled to LPA/138320/2008 6/11 JUDGMENT claim any market fee from respondentCompany. RespondentCompany has only brought agricultural produce from outside market area into the market area for its own use and the same, therefore, it is clearly exempted from market fee under Section 48(2) of the Rules, and the judgment of the Division Bench squarely applies to the facts of the present case. Learned Counsel submitted that the Revisional Authority, therefore, rightly held that the Market Committee has no legal right to levy market fee on the respondentCompany.
We find no reason to take a different view from the view expressed in the judgment of the Division Bench in Letters Patent Appeal No.139 of 2006 and connected matters on the interpretation of Section 28(1) of the Act r.w. Rule 48(2) of the Rules. In this connection, it is profitable to reiterate the interpretation given by the earlier Bench of this Court on Section 28(1) of the Act r.w. subrule (2) of Rule 48:
"8 Section 28 of the Act empowers the Market Committee to levy and collect fees on notified agricultural produce bought or sold in the market area, subject to the provisions of the Rules and at the rate maxima and minima, from time to time prescribed. Thus, the power of the Market Committee to levy prescribed fees is envisaged in the above section. In juxtaposition to the above section, it is necessary to refer to Rule 48 of the Rules, and more particularly Rules 48 and 49, placed in Part VI with heading 'Fees,Levy and Collections', pertaining to market fees. Rule 48, subrule (1) and the explanation is highlighted by the learned Single Judge and discussion has taken place on the basis of certain material available on record with regard to sale of castor seeds by one Manish Trader of Ahmedabad to the Company and after relying upon Sections 19 to 22 of the Sale of Goods Act, the learned Single Judge found that sale does take place within the market area and, therefore, the Company is liable to pay market fees. However, subrule (2) of Rule 48 of Part VI of the Rules clearly prescribes that no fee shall be levied on agricultural produce brought from outside the market area into the market area for use therein by the industrial concerns situated in the market area or for export and, in respect of which declaration has been made and a certificate has been obtained in Form V. Thus, the above subrule (2) of Rule 48 nowhere prescribes that agricultural produce brought from outside the area of market committee has to be by the industrial LPA/138320/2008 7/11 JUDGMENT concern itself. The preceding word is 'brought' and not 'bought'. Even the facts of the present case are examined, nowhere it is mentioned that purchase took place within the area of the market committee. In the affidavitinreply filed by the Company, it is clearly mentioned that purchase of castor seeds did take place outside the market area and no sale takes place within the market area. Even, weighment, etc. is also done outside the market area and bills are prepared accordingly and, that too, after selection by the representative of the Company. Not only that, but, the Company has produced bills of one Manish Traders at page 109 of Letters Patent Appeal No.195 of 2006, having numbered as Bill No.93, dated 3 rd May 2004, is clearly indicative of the fact that sale does not take place within the area of Market Committee, Baroda. Besides, the octroi paid to the Baroda Municipal Corporation on the goods, namely, castor seeds imported and produced at page 107 is also suggestive of the fact that sale does not take place within the area of market committee. Even, the Company has produced number of forms prescribed under Rule 48, subrule (2) from page 79 to 86, the fact not denied by the Market Committee, which also establishes the case of the Company with sufficient declaration and a certificate that the abovementioned agricultural produce, namely, castor seeds, has been brought from outside the limits of the market area and brought within the limits of market area for industrial purpose, and for production of castor oil and other byproducts. Thus, the Company fully complied with the requirement of Rule 48 of the Rules and is entitled for exemption from payment of market fees. Therefore, exercise undertaken by the learned Single Judge to find out the place of sale, so as to bring the case of the Company under Rule 48, subrule (1) of the Rules, is of no help and the finding, on that basis, arrived at by the learned Single Judge, will have to be quashed and set aside in the backdrop of the above discussion and the factsituation."
We are of the view that the Amendment Act No.17 of 2007 has not brought any change in subsection (1) of Section 28 of the Act. Subsection (2)(a) added to Section 28 reads as follows:
"28. (1) xx xx (2)(a) The market fee specified in subsec. (1) shall not be levied for the second time in any market area from the buyer who is a processor, grader, packer, value addition centre or exporter of an agriculture produce and market fee has already been paid on that agricultural produce in any market and the information in this context has been furnished, as prescribed, by the person concerned that the payment of market fee has already been made in other market, provided such proof as may be prescribed is furnished to the Director by the buyer who is doing processing, grading, packing, value addition or export within such period as may be prescribed by the LPA/138320/2008 8/11 JUDGMENT Government."
Section 28A was also inserted in the amended Act, which reads as follows: "28A.Power to grant exemption from payment of market fee. The State Government may, by notification published in the Official Gazette, and subject to such conditions and restrictions, if any, as may be specified therein exempt in whole or part any agricultural produce brought for sale or bought or sold in the market area specified in such notification, from the payment of market fee for such period as may be specified."
Section 31D has also some relevance which was also added by the Amending Act, which is also extracted herein below for easy reference:
"31D. Levy of market fees. (1) The managing body of the private market, emarket and the markets established under Sec.31M shall levy and collect the fees on the agricultural produce referred to in clause (a) of subsec. (1) of Sec. 31C brought or transacted in the private market, emarket and the markets established under Sec.31M at such rate and in such manner as may be prescribed. (2) No market fee shall be levied for second time in any market area for agricultural produce on which market fee has been paid in a private market, emarket and the markets established under Sec. 31 M on production of such proof as may be prescribed. (3) The private market, emarket and the markets established under Sec. 31M which has collected the fee under subsec. (1), shall contribute to the Development Fund established under Sec. 34L, such percentage of fees in such manner, as may be prescribed. (4) In case of emarket, the market fee shall be paid by the buyer on the purchase of goods at such rate and in such manner, as may be prescribed. Out of the fees so collected, such percentage of fees as may be prescribed shall be contributed to the Development Fund established under Sec. 34L. (5) Where the agricultural produce is purchased directly from the agriculturist, the market fee shall be paid to the market committee constituted under Sec. 11 from whose market area the agricultural produce has been bought and removed."
The Division Bench has already noticed that subsection (1) of Section 28 used the expression `bought or sold'. Bought means, some agricultural product has to be purchased or bought from the market area. Sold means, some agricultural product has to be sold within the LPA/138320/2008 9/11 JUDGMENT market area. Division Bench has categorically found that respondent Company has not bought or purchased or sold any agricultural produce within the market area, therefore, there is no question of levy of any market fee from respondentCompany under Section 28(1) of the Act. Further, subrule (2) of Rule 48 clearly says that no fees shall be levied on agricultural produce brought from outside market area into market area for use therein by industrial Concerns situated in the market area. In subrule (2) of Rule 48, expression used is `brought'. Facts clearly indicate that respondentCompany has brought agricultural produce from outside market area into market area. Therefore, reading sub section (1) of Section 28 with subrule (2) of Rule 48, we are clearly of the view that the castor seeds brought by the respondentCompany from outside market area into market area for its own use cannot be subjected to any levy of market fee by the Market Committee. We are, therefore, in agreement with the view expressed by the Division Bench and hence no reference is called for to the Full Bench.
We are also of the view that the Amendment Act, by which sub section (2)(a) was added to Section 28, would no way rope buyers of agricultural produce brought from outside market area into market area for own consumption. Subsection (2)(a) specifically refer to market fee specified in subsection (1). Subsection (1) will apply only in case goods are bought or sold in the market area and in that process, market fee shall not be levied for the second time from a buyer, who has purchased the agricultural produce from the market area. Such a buyer may be a processor, grader, packer, value addition centre or exporter of an agriculture produce. RespondentCompany has not bought anything from the market area, therefore, it is not a buyer within the meaning of subsection (2)(a) of Section 28 of the Act. Only those buy goods from the market area are exempted from levy of market fee, provided they LPA/138320/2008 10/11 JUDGMENT show a certificate that the product had already been subjected to a levy outside the market area. Subsection (2)(b) to Section 28 provides a different fact situation, which says that on the agricultural produce brought into market area for commercial transaction or for a processing, market fee shall be deposited by the buyer or processor, as the case may be, in the office of market committee, within fourteen days, but, before sale or resale or processing or export outside the market area, permit issued under clause (e) has not been submitted. Clause (e) says that any agricultural produce shall be removed out of market area only in the manner and in accordance with the permit issued in such form, as may be prescribed. The vehicle carrying agricultural produce shall be accompanied by such proofs as may be prescribed. It is also stated that the purchaser of the agricultural produce must himself remove the agricultural produce from one place to another, without such permit, within such market. Respondent company would not fall under the above category since no goods are bought for sale or resale or export outside the market area.
In the demand notice issued by the Market Committee also there is no case for the Market Committee that the respondentCompany would fall under subsection (2)(b) of Section 28.
Section 28A deals with the powers of the Government to grant exemption from payment of market fee. Power is conferred by State Government by notification to exempt agricultural produce brought for sale or bought or sold to those agricultural produce brought for sale or bought or sold. If intention was to levy market fee from people who brought agricultural produce from outside the market area into the market area, power also would have been given to the Government to exempt them. Since Legislature never intended to demand or levy LPA/138320/2008 11/11 JUDGMENT market fee for produce brought from outside market area into the market area for own consumption, the question of granting exemption under Section 28A does not arise. Section 31D deals with private market, emarket and markets established under Section 31M. There is nothing to show that the Market Committee is a private market or e market. Establishment of private market is referred to in Section 31C. The petitionerMarket Committee is not private market committee within the meaning of Section 31C and therefore Section 31D, as such, would not apply.
Above being the factual and legal situation, we are of the view that the Revisional Authority has rightly interfered with the demand notices issued by the Market Committee. Special Civil Application, therefore, lacks merit and the same is dismissed as also interim relief granted. Rule is discharged.
Since we have dismissed the Special Civil Application, Letters Patent Appeal and Civil Application are disposed of accordingly.
(K.S. RADHAKRISHNAN, C.J.) (AKIL KURESHI, J.) [sn devu] pps