Calcutta High Court (Appellete Side)
Ruchi Soya Industries Ltd. & Anr vs The State Of W.B. & Ors on 18 March, 2014
Author: Dipankar Datta
Bench: Dipankar Datta
1
18.03.2014
Item No.45
SB
W.P. 7650 (W) of 2014
Ruchi Soya Industries Ltd. & Anr.
Vs.
The State of W.B. & Ors.
Mr. S. Guhathakurata......for the petitioners.
Mr. P. K. Roy,
Mr. D. Karmakar,
Mr. J. Roy,
Mr. K. Agarwal...........for the respondents 2, 4 and 6.
The basic issue raised in this writ petition is similar to the one that was considered by me while dealing with W.P.19233 (W) of 2012. By order dated 10.01.2013, I had stayed the demand for licence fees being prima facie satisfied that the Kolkata Regulated Market Committee had not been constituted in terms of the provisions contained in Section 5(3) of the West Bengal Agricultural Produce Marketing (Regulation), Act 1972.
I intended to pass a similar order here.
At this stage, Mr. Roy, learned advocate appearing for the respondents has invited my attention to a judgment dated 29.07.2013 passed by an Hon'ble Division Bench of this Court while disposing of a batch of writ appeals preferred by the West Bengal Marketing Board & Ors., questioning the common interim order of a learned single Judge of this Court dated 20.06.2013 passed on four writ petitions. It appears from perusal of the judgment of the Hon'ble Division Bench, insofar as it is relevant for the purpose of the present case, that 2 the Hon'ble Division Bench was satisfied that there was a valid Market Committee constituted in terms of Section 5 of the Act. The relevant observations of the Hon'ble Division Bench are quoted hereunder:
".................It is also not correct that there is no notification under Section 5 of the Act of 1972. Alternative submission raised that in case there is notification under Section 5(3), the same is violative of section 5(3)(dd), is equally not acceptable as there is constitution of Market Committee and same is functioning in the area in question."
If indeed there has been a valid Market Committee constituted in terms of Section 5(3) of the Act, the decision of the Hon'ble Division Bench would be binding on me and the interim relief prayed for by the petitioners has to be refused.
Let me now consider as to whether the Howrah Zilla Regulated Market Committee has been validly constituted in accordance with the provision of Section 5 or not.
By a notification dated 23.11.2006 issued in pursuance of provisions contained in Section 1(3) of the Act, 23.11.2006 was appointed as the date on which the Act would come into force in the area noted in column 3 of the table with the District and the Sub-Divisions noted in columns 1 and 2 respectively of such table. The Act was made applicable to Uluberia Sub-Division in the district of Howrah and two police station areas within the limits of Uluberia Sub-Division. By a further notification dated 23.11.2006 issued in exercise of power conferred by Section 5 of the Act, a market committee by the name of Howrah Zilla Regulated Market Committee was constituted in respect of the market areas mentioned in the table. The said notification further ordained that in exercise of powers conferred by Section 3(4) of 3 the Act, the Uluberia Regulated Market Committee constituted under notification 20.02.1982 stood dissolved and incorporated in the 'newly formed Market Committee as mentioned in column (4) of the Table below' i.e. the Howrah Zilla Regulated Market Committee. It was also ordained that all the assets and liabilities of the dissolved Uluberia Regulated Market Committee would come under the purview and control of the newly constituted market committee i.e. Howrah Zilla Regulated Market Committee.
According to Mr. Roy, learned advocate appearing for the respondents, this notification was introduced to constitute the Howrah Zilla Regulated Market Committee and licence fees demanded by the Secretary of the said committee cannot be questioned on the ground that the Howrah Zilla Regulated Market Committee has not been constituted in accordance with law.
I am afraid, I cannot agree with Mr. Roy. Section 5(3) of the Act makes it clear that the State Government shall, by a notification, constitute a market committee consisting of the members mentioned in several clauses of such sub-section. No notification has been produced before the Court to establish that the Howrah Zilla Regulated Market Committee was ever constituted with members of the nature mentioned in such clauses. Licence fees in terms of the Act can be claimed by a market committee duly constituted in accordance with law. If there has been no valid constitution of the market committee, no demand for licence fees could be raised on behalf of such committee by its Secretary. Mr. Roy has referred to Section 11 of the Act, which reads as follows: 4
"Validity of action of a Market Committee.- No action of a Market Committee shall be called in question merely by reason of the existence of any vacancy in, or any defect in the constitution of, the Market Committee at the time of taking such action."
The provisions of the said section do not apply in the present case. It is not a question of a vacancy or any defect in the constitution of a market committee. The point that squarely falls for consideration of the Court is as to whether the Howrah Zilla Regulated Market Committee has been constituted in terms of the provision of Section 5(3) of the Act or not. If it were so that two officers of the State Government are appointed to comprise the committee [as per clause (a) of Section 5(3)] and none of them is an officer of the Directorate of Agricultural Marketing, it would be a defect in the constitution of the committee. There is no question of defect here, but it is a plain case of non- constitution since no member has been appointed by the State Government in terms of Section 5(3) to comprise the Howrah Regulated Market Committee.
While passing the order dated 29.07.2013, the Hon'ble Division Bench did not have the occasion to consider the point that has arisen for consideration here and the decision is distinguishable. The next point urged by Mr. Roy is that in cases relating to imposition of tax, fee, levy, etc., no interim order ought to be passed and the realization should be allowed to be made subject to final outcome of the proceedings.
I am not aware of any decision, which lays down the law that is no case should the Court grant interim relief. If what Mr. Roy has argued is the correct position of law, the Hon'ble Division Bench would have 5 stayed the order on such ground without anything more and it would not have been necessary to examine the matter on merits as to who could be classified as a 'trader'. Realization must be in accordance with law and if the Court in an exceptional case finds that law has not been followed at all, in its discretion it may pass suitable interim order. This being an exceptional case, that is what I propose to do.
It has been ascertained that the respondents did not prefer any appeal against the order that I passed on 10.01.2013 in W.P.19233 (W) of 2012. I have no hesitation but to follow such interim order. Accordingly, I stay the impugned demand for licence fees prima facie being of the view that the demand is indefensible on the ground of non- constitution of the Howrah Zilla Regulated Market Committee Let affidavit-in-opposition be filed by the respondents by four weeks from date; reply, if any, thereto may be filed within two weeks thereafter. The writ petition shall be treated as ready for hearing on expiry of the period fixed above for exchange of affidavits and the parties shall be at liberty to mention it for consideration before the appropriate bench. Pendency of the writ petition shall, however, not preclude the State Government to constitute the Howrah Zilla Regulated Market Committee in accordance with law and if such committee is at all constituted, it may exercise the powers that are conferred on it in terms of the provisions of the Act.
(DIPANKAR DATTA, J.)