Kewal Krishan Puri & ANR Vs. State
of Punjab & Ors [1979] INSC 103 (4 May 1979)
UNTWALIA, N.L.
UNTWALIA, N.L.
CHANDRACHUD, Y.V. ((CJ) BHAGWATI, P.N.
FAZALALI, SYED MURTAZA PATHAK, R.S.
CITATION: 1980 AIR 1008 1979 SCR (3)1217 1980
SCC (1) 416
CITATOR INFO:
E 1980 SC1037 (1,6) C 1980 SC1124
(3,10,11,24,36) RF 1981 SC1127 (7) E 1981 SC1863 (25) RF 1982 SC1012 (6) R 1983
SC 634 (20) R 1983 SC1246 (26,27,28,29,32,37) R 1984 SC1870 (16) F 1985 SC 218
(1,7,8,10,12,13,15) R 1989 SC 100 (16) RF 1992 SC1383 (12,13) RF 1992 SC2084
(8)
ACT:
Punjab Agricultural Produce Market. Act, 1961
Ss. 23, 26 and 28 & Punjab Agricultural Produce (General) Rules, R
29-Marketing Development Fund & fee-Validity-Principles for satisfying the
rest for a valid levy of market fees.
HEADNOTE:
Punjab Agricultural Produce Markets Act, 1961
Ss. 23, 26 and 28 & Punjab Agricultural Produce (General) Rules, R
29-Marketing Development Fund & Marketing Committee Fund- Utilisation of
market fees-Validity of purposes enumerated in clauses of Ss. 26 and 28
examined The Punjab Agricultural Produce Markets Act, 1961 which was passed by
the composite State of Punjab is an Act for the better regulation of the
purchase,sale, storage and processing of agricultural produce and the
establishment of markets for agricultural produce in the State. Section 3
envisages the establishment of the State Agricultural Marketing Board for the
entire State and it is provided in sub-sec (9) that "The Board shall
exercise superintendence and control over. the committees" Section 6(1 )
provides for "declaration of notified market area" and the State
Government is empowered to declare the area notified under s. S or any portion
thereof to be a notified market area for the purpose of the Act in respect of
the agricultural produce notified under s. 5 or any part thereof. The market
areas and market yards were declared. putting restriction on the traders to
carry on their trade under a licence granted by the various Markets Committees
established and constituted within the specified boundaries or areas. After the
declaration of the notified market area no person can establish or continue any
place for the purchase, sale, storage and processing of the agricultural
produce except under a licence granted in accordance with the provisions of the
Act, the Rules and the Bye-laws. Section 23 empowers the committee to levy the
fees subject to such rules as may be made by the State Government in this
behalf on the agricultural produce bought or sold by licensees in the notified
market area at a certain percentage. Under s. 27(1), all Moneys received by a
Committee shall be paid into a fund to be called the Market Committee Fund and
all expenditure incurred shall be defrayed out of such fund, while under s. 25
all receipts of the Board are to be credited into a fund to be called the
Marketing Development Fund and the purposes for which it may be expended are
enumerated in s. 26 viz. better marketing of agricultural produce on
co-operative lines, collection and dissemination of market rates and news.
grading and standardisation of agricultural produce etc. Section 28 catalogues
the purposes for which the Marketing Committee Fund may be utilised viz.
acquisition of sites for the market.
maintenance and improvement of the market, construction and repair of buildings
which are necessary for the purpose of the market etc.
In the composite State of Punjab and even
after the bifurcation of the State for about a period of three years the
maximum rate of market fee which could 1218 be levied by the various market
communities under s. 23 was 50 paise for every one hundred rupees. the fee was
thereafter raised from time to time.
A number of writ petitions were Filed in the
High Court challenging the power of the Board to incease the levy of fee. All
the writ petitions were heard together and the increase Ind levy of fee upto
Rs. 2/- by the various Market Committees in the State of Haryana was upheld and
the writ petition of the Haryana dealers were dismissed while those of the
Punjab dealers were allowed and the increase of u-a e brought about by Act 13
of 1974 to the extent of Rs, 2.25 Was struck down. [M/s. Hanuman Dall &
General Mills, Hisar v. State of Haryana & others AIR 1976 P & H 1] In
Punjab, by amendment Act 14 of 1975, s. 23 of the Act was again amended
authorising the imposition of market fee at a rate not exceeding Rs. 2.20 per
hundred rupee only, and this increase in the rates of fee was again challenged
in the High Court and a Full Bench upheld the increase.
[Kewai Puri & Anr. v. State of Punjab
& Ors., AIR 1977 P & H 347]. This view was challenged in the appeal to
this Court.
Both in the State of Punjab and the State of
Haryana the rate of market fee was further raised from Rs. 2/- to Rs. 3/-. It
was unsuccessfully challenged in the High Court by the dealers of each of the
States, who thereafter preferred appeals to this Court against the Judgment of
the High Court and also challenged the increases in fee, in writ petitions in
this Court.
In the appeals and writ petitions it was contended
that the levy of the market fee realised from the buyers under s.
23 of the Act could not be correlated I with
the service to be rendered to the payers of the fees, and therefore cannot be
justified and sustained on the well known concept of fee as pointed out by this
Court in several decisions, and that the items of expenditure authorised and
enumerated in ss. 26 and 28 of the Act, go beyond the scope of the purpose of
the utilisation of the market fees.
On the question of the validity of the fixation
of market fee under s. 23 of the Act from time to time and the scope and the
purpose of the utilisation of such fees:
HELD: 1. The impost of fee and the liability
to pay it is on a particular individual or a class of individuals.
They are under the obligation to submit
accounts, returns or the like to The authorities concerned in cases where
quantification of the amount of fee depends upon the same. I hey have to
undergo the botherations and harassmentss, sometimes justifiably and sometimes
even unjustifiably, in the process of discharging their liability to pay the
fee.
The authorities levying the fee deal with
them and realise the fee from them. By operation of the economic laws in
certain kinds of imposition of fee the burden may be passed on to different
other persons one after the other. [1229H- 1230B] In the instant case, the
Market Committees and the Market Board assumed to themselves the liberty of
utilising and spending the realisations from market fees to a considerable
extent. as if it was a tax, although in reality it was not so. [1240D]
2. Rendering some service, however remote the
service may be, cannot strictly speaking satisfy the element of quid pro
required to be established in cases 1219 of the impost of fee. Registration
fee, however has to be taken to stand on a different footing altogether. In the
case of such a fee the test of quid pro quo is not to be satisfied with such
direct close or proximate relationship as in the case of many other fees. By
and large registration fee is charged as a regulatory measure. [1241B]
3. This Court in a large number of cases had
the occasion to examine the nature of fee and tax and from a conspectus of the
various authorities the following, principles for satisfying the test for a
valid levy of market fees on the agricultural produce bought or sold by
licences in a notified market area are deducible :- (i) That the amount of fee
realised must be earmarked for rendering services to the licencees in the
notified market area and a good and substantial portion of it must be shown to
be expended for this purpose. [1243H] (ii) That the services rendered to the
licensees must be in relation to the transaction of purchase or sale of the
agricultural produce. [1244B] (iii) That while rendering services in the market
area for the purpose of facilitating the transactions of purchase and sale with
a view to achieve the objects of the marketing legislation it is not necessary
to confer the whole of the benefit on The licensees but some special benefits
must be conferred on them which `have a direct, close and reasonable
correlation between the licensees and the transactions.
[1244C] (iv) That while conferring some
special benefits on the licensees it is permissible to render such service in
the market which may be in the general interest of all concerned with the
transaction taking place in the market. [1244D] (v) That spending the amount of
market fees for the purpose of augmenting the agricultural produce. its
facility of transport in villages. and to provide other facilities meant mainly
or exclusively for the benefit of agriculturist is not permissible on the
ground that such in services in the long run go to increase the volume of
transaction, in the market ultimately benefiting the traders also. Such an indirect
and remote benefit to the traders is in no sense a special benefit to them.
[1244E-F] (vi) That the element of quid pro quo may not be possible, or even
necessary, to be established with arithmetical exactitude but even broadly and
reasonably I; must be established by the authorities who charge the fees that
the amount is being spent for rendering services to these on whom falls the
burden of the fee. [1244G] (vii) At least a good and substantial portion of the
amount collected on account of fees, may be in the neighbourhood of two-thirds
or three-fourths, must be shown with reasonable certainty as being spent for
rendering services of the kind mentioned above. [1244 H] The Commissioner Hindu
Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur
Mutt, [1954] SCR 1005; Matthews v. Chicorv Marketing Board, 60 CLR. 263;
Attorney General for British Columbia &
Esquimalt & Nanaimo Railway Co. & Ors., (1950) Appeal Cases. 87: H. H. 1220
Sudhundra Thirtha Swamiar v. Commissioner for Hindu Religious & Charitable
Endowment, Mysore [1963 Suppl. 2 SCR 302; Mahant Sri Jagannath Ramanuj Das
& Anr. v. The State of Orissa & Anr., [1954] SCR 1046; Ratilal
Panachand Gandhi v. The State of Bombay and ors. [1954] SCR 1055; The Hingir-
Rampur Coal Co. Ltd. & ors. v. The State of Orissa & Ors., [1961] 2 SCR
537; Parton v. Milk Board (Victoria) 80 CLR 229; Corporation of Calcutta &
Anr. v. Liberty. Cinema [1965] 2 SCR 477; Har Shankar & ors. etc. etc. v.
The Dy. Excise & Taxation Commr. & ors. [1975] 3 SCR 254; Nagar
Mahapalika Varanasi v. Durga Das Bhattacharya & ors., [1968] 3 SCR 374; The
Delhi Cloth & General Mills Co. Ltd. v. Chief Commissioner Delhi &
Ors.,1970] 2 SCR 348; Indian Mica & Micanite Industries Ltd. v State of Bihar
& Ors. [1971] Suppl. SCR 319; Secretary Government of Madras Home
Department & Anr. v. Zenith Lamp & Electrical Ltd. [1973] 2 SCR 973;
State of Maharashtra & Ors. v. The Salvation Army, Western India
Territory,[1975] 3 SCR 475; Govt. of Andhra Pradesh & Anr. v. Hindustan
Machine Tools Ltd. [1975] Suppl. SCR 394; The Municipal Council Madurai v. R.
Narayanan etc., [1976] 1 SCR 333; The Chief Commissioner Delhi and Anr. v. The
Delhi Cloth & General Mills Co. Ltd. & Anr. AIR 1978, SC 1181; P P.
Kutti Keya & Ors. v. The State of Madras & Ors., AIR 1954 Madras, 621;
MCVS Arunachala Nadar etc. v. The State of Madras & Ors., [1959] Suppl. 1
SCR 92; Mohmmad Hussain Gulam & Anr. v. State of Bombay & Ors., [1962]
2 SCR 659;Lakhan Lal & Ors. etc. v. The State of Bihar & Ors., [1968] 3
SCR 534; referred to.
4. (i) A dispute arose between the parties as
to whether the licence is granted for the whole of the area or for particular
places therein. On examining Form in the Rules meant for grant of licence under
s. 10, it is found that the licence is granted for one or more places of
business specified in col. 6 situated in a particular notified market area
named at the top of the licence. There will be no sense in specifying the place
of business in the licence if the licensee is to be permitted to establish his
place of business any where in a notified market area which is too big and
extensive for the control and supervision of a particular Market Committee.
Market yards are declared under s. 7. For each notified market area there can
be one principal market yard and one or more sub-market yards as may be
necessary. The marginal note of sec 8 is, "No private market to be opened
in or near places declared to be markets." [1246D-E] (ii) There is no
special provision in this statute for an establishment of markets or markets
proper as per the definition contained in cl. (i) and (k) of s. 2 of the Act,
it is reasonable to assume that the intention of the legislature is to
constitute the market yards as the market proper and ordinarily and generally
the market would be the same but may include some other places where
transactions of purchase of agricultural produce by the traders from the
producers has been allowed in order to avoid rush in the precincts of the
market proper. But one thing is certain that the whole of the market area in no
sense can be equated with market or market proper. Nobody can be' allowed to
establish a purchasing centre of his own at any place he likes in the market
area without there being such a permission or authority from The Market
Committee. After all the whole object of the Act is the supervision and control
of the transactions of purchase by the traders from the agriculturists in order
to prevent exploitation of the latter by the former. [1240H-1247A] 1221
5. The whole object of the Act is the
supervision and control of the transactions of purchase by the traders from the
agriculturists in order to prevent exploitation of the latter by the former.
The supervision and control can be effective only in specified localities and
places and not throughout the extensive market area. [1247B]
6. Rule 24(1) in both the States framed under
the Act provides that "all agricultural produce brought into the market
for sale shall be sold by open auction in the principal or sub-market
yard", which indicates that market is generally the principal and
sub-markets yards. The benefit of market fee, therefore, has to be correlated
with the transactions taking place at the specified place in the market area
and not in the whole of the area.[1247D]
7. The duties and powers of a market
committee are enumerated in s. 13 and this indicates that the Committee is
primarily concerned with the establishing of a market in the notified area and
with providing facilities in the market for persons visiting it and in
connection with the transactions taking place there. [1247F]
8. Reading s. 23 along with r. 29 it would be
noticed that the power of the Committee to levy fees is subject to the Rules as
may be made by the State Government. The fee is levied on ad valorem basis at a
rate which cannot exceed the maximum mentioned in s. 23 by the legislature. But
the power to fix the rate from time to time within the maximum limit has been
conferred on the Board and the Committee is merely bound to follow it.
[1248G-H]
9. Section 23 in express language controls
the power of the Committee to levy fees subject to the rules. The power given
to the Board to fix the rate of market fees from time to time under rule 29 is
not ultra vires the provisions of the Act, as sub-sec.(a) of s. 3 confers power
on the Board to exercise superintendence and control over the committees, which
power, in the context and the scheme of the marketing law, will take within its
ambit the power conferred on the Board under rule 29(1). [1249C] State of
Punjab & Anr. v. Hari Krishan Sharma, [1966] 2 SCR 982; distinguished
10. The fee levied is not on the agricultural
produce in the sense of imposing any kind of tax or duty on the agricultural
produce. Nor is it a tax on the transaction of purchase or sale. The levy is an
impost on the buyer of the agricultural produce in the market in relation to
transactions of his purchase. The agriculturists are not required to share any
portion of the burden of this fee. In case the buyer is not a licensee then the
responsibility of paying the fees is of the seller who may realise the same
from the buyer. But such a contingency cannot arise in respect of the
transactions of sale by an agriculturist of his agricultural produce in the
market to a dealer who must be a licensee. Probably such an alternative
provision was meant to be made for outside buyers who are not licensees when
they buy the agricultural produce from or through the licensees.[1249D-E] 11.
Every Market Committee is obliged under sub-sec.
(2) (a) of s. 27 to pay out of its funds to
the Marketing Board as contribution such percentage of its income derived from
licence fee, market fee and fines levied by the 1222 courts as specified in
sub-cl. (i) and (ii). The purpose of this contribution as mentioned in
sub-sec.(2) (a) is to enable the Board to defray expenses of the office,
establishment of the Board and such other expenses incurred by it in the
interest of the Committees in general. The income of almost all the Market
Committees were several lakhs of rupees per year and, therefore, each is
required to pay 30 per centum of its income to the Board by virtue of the
amendment brought about by Punjab Act 4 of 1978. Under s. 25 all receipts of
the Board are to be credited into a fund to be called the Marketing Development
Fund. Purposes for which the Marketing Development Fund may be expended are
enumerated in s. 26 and the purposes for which the Market Committee Funds may
be expended are catalogued in s. 28[1250A-C]
12. No serious objection to the items of
expenditure mentioned in clauses (xii), (xiv), (xv) and (xvi) can be taken.
Clause (x) and clause (xi) cannot form the items of expenditure of the market
fees. The whole of the State is divided into market areas. The propaganda in
favour of agricultural improvement and expenditure for production and
betterment of agricultural produce will be in the general interest of
agriculture in the market area. So long as the concept of fee remains distinct
and limited in contrast to tax such expenditure out of the market fee cannot be
countenanced in law. [1252F-G]
13. The first part of cl. (xiii) may be
justified in the sense of imparting education in marketing to the staff of the
Market Committee. But imparting education in agriculture in general cannot be
correlated with the market fee. [1252H]
14. How ill-conceived the second part of
clause (xvii) is ? Is it permissible to spend the market fees realised from the
traders for any purpose calculated to promote the national or public interest ?
Obviously not. No market Committee can be permitted to utilise the fund for an
ulterior purpose howsoever benevolent, laudable and charitable the object may
be. The whole concept of fee will collapse if the amount realised by market
fees could be permitted to be spent in this fashion. [1253A-B] Technically and
legally, one may not have any objection to the expenditure of such money for
the purposes mentioned in clauses (x), (xi), (xiii) and (xvii). [1253D]
15. It is not necessary to strike down any
clauses of s. 28 as being unconstitutional merely on the ground that the
expenditure authorised therein goes beyond the scope of the purpose of the
utilisation of the market fees. The authorities have to bear this in mind and
on a proper occasion the matter will have to be dealt with by courts in the
light of this Judgment where a concrete case comes of raising of a loan,
spending the money so raised which cannot be reasonably connected with the
purposes for which the market fee can be spent, as to whether such a loan can
be repaid or interest on it can be paid out of the realisations of the market
fees. [1253G]
16. The Board in the State is the Central
Controlling and superintending authority over all the Market Committees, the
primary function of which is to render service in the market. Parting with 30%
income by a Market Committee in favour of the Board is not so excessive or
unreasonable so as to warrant any interference with the law in this regard on
the ground of violation of the principle of quid pro quo in the utilisation of
the market fee realised 1223 from the traders in the market area. Emphasised
that the Marketing Development Fund can only be expended for the purposes of
the Market Committees in a general way, or to be more accurate, as far as
practicable, for the purposes of the particular Market Committee which makes
the contribution. [1254C-D]
17. Section 26 of the Act provides for
purposes for which the Marketing Development Fund may be expended. The
Marketing Development Fund constituted primarily and mainly out of the
contributions by the Market Committees from realisation of market fee can also
be expended for the purposes of the market in the notified market area in
relation to the transactions of purchase and sale of agricultural produce and
for no other general purpose or in the general interest of the agriculture or
the agriculturists. The purposes mentioned in clauses (i), (ii), (iii), (iv),
first part of clause (v), clauses (vi), (vii), (viii), (ix), (xii), first part
of clause (xiii), clauses (xiv), (xv) and (xvi) held valid. The Marketing
Development Fund constituted out of the Market fees cannot be expended for the
purposes mentioned in second part of clause (v), clauses (x), (xi), second part
of clause (xiii) and clause (xvii). As the purpose of the law will be served by
restricting the operation of s. 26, it is not necessary to strike down those
provisions as being constitutionally invalid. [1254E, 1255F-1256A]
18. The High Court has extracted s. 28 of the
Act but has failed to scan the effect of the various purposes in some of the
clauses. [1256H-1257A]
19. The High Court seems to be of the view
that since transportation is very essential for the development of a market and
to enable the growers of the agricultural produce to bring the same to the
market, the construction of link roads becomes an essential purpose of the
market committees.
It may be so but the purpose cannot be
allowed to be achieved at the cost of the market fee realised from the dealers.
[1257G]
20. The impost must be correlated with the
service to be rendered to the payers of the fees in the sense and to the extent
pointed out. [1260A]
21. Everybody seems to have allowed himself
to be carried too far by the sentiment of the laudable object of the Act of
doing whatever is possible to do under it for the amelioration of the
conditions and the uplift of the villagers and the agriculturists. Undoubtedly
the Act is primarily meant for that purpose and to the extent it is permissible
under the law to achieve that object of utilising the money collected by the
market fee, it should be done. But if the law does not permit carrying on the
sentiment too far for achieving of all the laudable objects under the Act, then
primarily it becomes the duty of the Court to allow the law to have an upper
hand over the sentiment and not vice versa. [1263G-H]
22. If insecticides and pesticides are for
use at the place where actually the marketing operations are carried on it
would be a justifiable expenditure. But if they are meant to be supplied to the
agriculturists for use at their village homes or in their fields surely they
cannot be valid expenditure out of the collections of the market fee.
[1267G-H] In the instant cases the
authorities took full liberty to treat the realisation from market fee as a
general realisation of tax which they were free to spend in any manner they
liked for the purposes of the Act, the development of the area, for giving a
fillip to agricultural production and so forth and so on. The 1224 sooner the
authorities are made to realise the correct position in law the better it will
be for all concerned.
23. Taking a reasonable and practical view of
the matter and on appreciation of the true picture of justifiable and legal
expenditure in relation to the market fee income, even though it had to be done
on the basis of some reason- able guess work, the court did not disturb the
raising of an imposition of the rate of market fee upto Rs. 2/- per hundred by
the various Market Committees and the Boards both in the State of Punjab and
Haryana. After all, considerable development work seems to have been done by
many Market Committees in their respective markets. The charging of fee @ Rs.
2/- therefore, is justified and fit to be sustained. [1269G-1270A]
24. The dealers of Haryana did not feel
aggrieved when the High Court maintained the raising of the market fee to the
extent of Rs. 2/- per hundred rupees. The court did not uphold the raising of
the fee from Rs.2/- to Rs. 3/-as on the materials placed before it, it is clear
that this has been done chiefly because of the wrong impression of law that the
amount of market fee can be spent for any development work in the notified
market area and especially for the development of agriculture and the welfare
of the agriculturists. The High Court was wrong in maintaining this use on an
erroneous view of the matter.[1270B-C]
25. In future if the market fee is sought to
be raised beyond the rate of Rs.2/- per hundred rupees, proper budgets,
estimates, balance-sheets showing the balance of the money in hand and in
deposit, the estimated income and expenditure, etc. should carefully be
prepared. On drawing the correct balance sheets and framing of the correct
estimates and budgets the authorities as also the State Government will be able
to know the correct position and to decide reasonably as to what extent the
raising of the market fee can be justified taking an over-all picture of the
matter and keeping in view the reason behind the restrictions of sales tax laws
concerning the transactions of foodgrains and the other agricultural produce.
Then, and then only, there may be a legal justification for raising the rate of
the market fee further to a reasonable extent.[1270E-G]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1083 of 1977.
(Appeal by Special Leave from the Judgment
and Order dated 28-1-1977 of the Punjab Haryana High Court in Civil Writ No.
5697/75) CIVIL APPEAL NO: 1616 OF 1978 (Appeal by Special Leave from the
Judgment and Order dated 18-9-1978 of the Punjab & Haryana High Court in
CWP No. 3849/78) CIVIL APPEAL NOS;1700-1761 OF 1978 (Appeals by Special Leave
from the Judgment and Order dated 30-8-1978 of the Punjab & Haryana High
Court in Civil Writ Petition Nos. 3351, 2662, 3094, 3221, 3303, 3330, 3347,
3348, 3349, 3350, 1225 3384, 3390, 3393, 3459, 3460, 3489, 3517, 3533, 3548,
3551, 3563, 3570, 3576, 3598, 3615, 3665, 3673, 3773, 3775, 3776, 3826, 3827,
3883, 4024, 4171/77, 37/78, 178, 212, 283, 335, 381, 423, 483, 577, 666, 751,
887, 976, 1021, 1058, 1104, 1164, 1280, 1469/78, 2625/77, 1556/78, 1578/78,
1635, 1859, 1980, 1997 and 2095/78.
CIVIL APPEAL NOS. 1762-1773 OF 1978.
(Appeals by Special Leave from the Judgment
and Order dated 30-8-1978 of the Punjab & Haryana High Court in Civil Writ
Petition Nos. 45/78, 888, 1251 1451, 1556 3300, 3330, 3293/77, 3292, 3337, 3385
and 3426/77) CIVIL APPEAL NOS.1626-1627 OF 1978.
(Appeals by Special Leave from the Judgment
and Order dated 30-8-1978 of the Punjab & Haryana High Court in Civil Writ
Petition Nos. 4171/77 and 1356/78) AND WRIT PETITION NOS. 4436, 4470, 4472,
4481, 4485,4564, 4420, 4450, 4460, and 4484 OF 1978 (Under Article 32 of the
Constitution) For the Appellants in CA No. 1083/77:A. K. Sen Mr.
Ravinder Bana, and Bhal Singh Malik For the
RR. 1-2 in CA No. 1083/77: S. N. Kackar, Sol. Genl., Hardev Singh and R.
S. Sodhi, For the Intervener-State
Agricultural Market Board and Market Committee, Nai Mandi in CA No. 1083/77: V.
M. Tarkunde, and S. C. Patel. For the Applicant Intervener: in CA No. 1083/77
Mrs. Urmila Kapoor. For the Respondent No. 3 in CA No. 1083/77 H. L. Sibbal, G.
G. Garv and Mr. Atma Ram.
For the Petitioner in the W.P. except in WPs.
Nos. 4481, 4470, 4564 Bhal Singh Malik, B. Datta and K. K. Manchanda.
For the Petitioners in W.P. Nos.4481, 4564,
and for the Appellants in CA No. 1616/78 S.K. Walia, and Mr. M.P. Jha.
For the Petitioner in W.P. No.4470/78 Sarva
Mitter. For the Respondents in WP.4430, 4472, 4481, 4485/78 and CA 1616/78
W.P.4564/78: Hardev Singh, G. C. Garg and R. S. Sodhi. For the Appellants in CA
Nos. 1700-1761/78 Anil Diwan, (1703) Adarsh Kumar Goel (in all appeals) Praveen
Kumar, Adv.
(1703) Miss Bina Gupta, Adv. (1703) Madan
Gopal Gupta (1703 to 1752) Sarva Mitter (1751-1761 and all other) For the
Petitioners in W.P. Nos. 4420, 4450, 4460, 4484/78: A. K. Sen, (4420) Dr. L. M.
Singhvi, (4460) B. Dutta, K. K. Manchanda and Bhal Singh Malik, For R. 1 in
Appeal Nos.
1700-1761/78 and WP Nos. 4420, 4450, 4460 and
4484/78:
1226 P. N. Lekhi, (FP 4420) and R. N.
Sachthey, For RR. 2-3 in Appeal Nos. 1760-1761/78 and WP Nos. 4420, 4450, 4460
and 4484/78:V. M. Tarkunde, (in CA 1700 and WP 4420) Gian Singh, (WPs. 4420,
4450 4460, 4484 and CAs 1760-1761) S. C. Patel.
For the Appellants in CA Nos. 1626-1627/78:
Mrs. Urmila Kapoor, For the Appellants in CA Nos. 1762-1773/78: K. K. Mohan.
For the other appearing RR. in CA Nos.
1762-1763: S. C. Patel, The Judgment of the Court was delivered by UNTWALIA,
J.-In these groups of Civil Appeals and Writ Petitions, broadly speaking, the
question which falls for determination is the validity of certain provisions of
the Punjab Agricultural Produce Markets Act, 1961 (Punjab Act No. 23 of 1961).
hereinafter referred to as the Act, and the Rules framed by the State of Punjab
and Haryana under the said Act as also the validity of the fixation of market
fees from time to time by the various Market Committees in the States aforesaid
under the direction of the Punjab State Agricultural Produce Marketing Board
and the Haryana State Agricultural Produce Marketing Board. All these cases
have been heard together and are being disposed of by a common judgment.
In the erstwhile composite State of Punjab
the Act was passed in the year 1961 to consolidate and amend the law relating
to the better regulation of the purchase, sale, storage and processing of
agricultural produce and the establishment of markets for agricultural produce
in the State. Under section 3 of the Act the State Agricultural Marketing Board
was constituted for the entire area of the composite State, which later, in the
year 1966 came to be bifurcated into the States of Punjab and Haryana. Under
the various provisions of the Act, which will be noticed shortly hereinafter,
market areas and market yards were declared putting restrictions on the traders
to carry on their trade under a licence granted by the various Market
Committees established and constituted in accordance with sections 11 and 12,
within the specified boundaries or areas. The traders were required to take out
licences on payment of a licence fee. Under section 23 of the Act a Market
Committee was required and authorised to levy on ad-valorem basis fees on the
agricultural produce bought or sold by licensees in the notified market area at
a rate not exceeding the rate mentioned in section 23 from time to time for
every one hundred rupees.
1227 In the composite State of Punjab and
even after the bifurcation of the States for about a period of three years the
maximum rate of market fee which could be levied under section 23 was 50 paise
for every one hundred rupees.
Various Market Committees levied a fee of 50
paise per hundred rupees and no dealer made any murmur of grievance of it. In
the bifurcated State of Punjab by Act 25 of 1969 the rate of 50 paise was
raised to Re. 1/-. It was further raised to Rs. 1.50 by Act 28 of 1973.
Thereafter by Ordinance 4 of 1974 which was replaced by Act 13 of 1974 the rate
was raised to Rs. 2.25. Several dealers filed a number of Writ Petitions in the
High Court of Punjab and Haryana challenging the increase in the rate of market
fee from time to time, the last one being by Act 13 of 1974. Similarly in the
State of Haryana the rate of 50 paise was raised to Re. 1/- by Haryana
Amendment Act 28 of 1969. It was further raised to Rs. 1.50 by Act 21 of 1973. By
Ordinance 2 of 1974 which was replaced by Act 17 of 1974 in the State of
Haryana the fee was raised to Rs.2/- for every one hundred rupees, as against
the rise of Rs. 2.20 in the State of Punjab.
Several dealers of the State of Haryana also
challenged in the High Court the levy and increase of market fee from time to
time. All the Writ Petitions were heard together. The increase and levy of fee
upto Rs. 2/- by the various Market Committees in the State of Haryana was
upheld and the Writ Petitions of the Haryana dealers were dismissed while those
of the Punjab dealers were allowed and the increase of rate brought about by
Ordinance 4 and Act 13 of 1974 to the extent of Rs. 2.25 was struck down. This
decision of the High Court is reported in M/s. Hanuman Dall & General
Mills, Hissar v. The State of Haryana and others. The date of the decision is
November 8, 1974. In Punjab by Amendment Act 14 of 1975 section 23 of the Act
was again amended authorising the imposition of market fee at a rate not
exceeding Rs. 2.20 per hundred rupees. Telegraphic instructions were issued by
the Punjab Board to the various Market Committees directing them to charge Rs.
2/- only with effect from August 23, 1975 after the passing of the Act 14 of
1973 on August 8, 1975. The increase in the rates of fee, the last one being in
August, 1975, were again challenged in the High Court. But the Full Bench which
finally heard the Writ Petition upheld the increases by its judgment delivered
on January 28, 1977, which is reported in Kewal Krishan Puri and another v. The
State of Punjab and others. Civil Appeal 1083 of 1977 has been preferred in
this Court from the said judgment of the High Court.
1228 Both in the State of Punjab and the
State of Haryana the rate of market fee was further raised from Rs. 2/- to
Rs.3/-. It was unsuccessfully challenged in the High Court.
The dealers have preferred appeals from the
judgments of the High Court has also filed Writ Petitions in this Court. In the
State of Punjab the fee was raised to Rs. 3/-by Ordinance 2 of 1978 which must
have been replaced by an Act.
The Ordinance was promulgated on April 28,
1978. The Writ Petition 4436 of 1978 has been filed in this Court challenging
the previous increases in the fee along with the last increase of Rs. 3/-. The
High Court upheld it by its judgment dated May 18, 1978. Special Leave Petition
(Civil) 2768 of 1978 was preferred from this judgment. Writ Petition No. 3849
of 1978 was filed in the High Court by a large number of dealers, which was
dismissed in limine by order dated September 18, 1978. Civil Appeal 1616 of
1978 arises out of this Writ Petition. Several other dealers have filed
separate Writ Petitions also being Writ Petitions 4470, 4472, 4481, 4485 and
4564 of 1978 challenging in the increase of market fee in the State of Punjab.
In the State of Haryana the rate of fee was
raised from Rs. 2/- to Rs.3/- with effect from September 5, 1977 by Ordinance
12 of 1977 replaced by Act 22 of 1977. The Haryana State Marketing Board
directed all the Market Committees in that State to collect market fee @ Rs.
3/- with effect from 5-9-1977. A number of Writ Petitions were filed in the
High Court challenging the said increase and the High Court dismissed all the
Writ Petitions by its judgment dated August 30, 1978. Civil Appeals 1700 to
1773 of 1978 and Civil Appeals 1626 and 1627 of 1978 are from the judgment of
the High Court dated August 30, 1978. The said increase has also been
challenged by filing Writ Petitions in this Court and they are Writ Petitions
4420, 4450, 4460 and 4484 of 1978.
Although by now there is a catena of cases of
this Court pointing out the difference between "tax" and
"fee" with reference to the constitutional provisions and otherwise
also, the problem before us has presented some new angles and facets. We,
therefore, think it advisable and necessary to review many of the earlier
decisions to pin- point the precise difference as far as practicable in order
to resolve the rival contentions of the parties. The arguments of the learned
counsel for the parties whenever thought necessary would be referred to at the
appropriate places hereinafter in this judgment.
Clause (2) of Article 110 and clause (2) of
Article 199 of the Constitution, the former occurring in the Chapter of
Parliament and the 1229 latter in relation to the State Legislature, are in
identical terms as follows:- "A Bill shall not be deemed to be a Money
Bill by reason only that it provides...........for the demand or payment of
fees for licences or fees for services rendered.......
The Constitution, therefore, clearly draws a
distinction between the imposition of a tax by a Money Bill and the impost of
fees by any other kind of bill. So also in the Seventh Schedule both in List I
and in a distinction has been maintained in relation to the entires of tax and
fees.
In the Union List entries 82 to 92A relate to
taxes and duties and entry 96 carves out the legislative field for fees in
respect of any of the matters in the said list except the fees taken in any
Court. Similarly in the State List entries relating to taxes are entries 46 to
63 and entry 66 provides for fees in respect of any of the matters in List II
but not including fees taken in any Court. Entry relating to fees in List III
is entry 47. Our Constitution, therefore, recognises a different and distinct
connotation between taxes and fees.
The leading case of this Court which has been
referred and followed in many subsequent decisions is the case of The
Commissioner, Hindu religious Endowments, Madras v. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt. The point decided therein was that the provision
relating to the payment of annual contribution contained in section 76(1) of
the Madras Hindu Religious and Charitable Endowments Act, 1951 is a tax and not
a fee and so it was beyond the legislative competence of the Madras State
Legislature to enact such a provision. The meaning given to the word
"tax" by Latham C.J. of the High Court of Australia in Matthews v. Chicory
Marketing Board has been quoted with approval at page 1040 and has been often
repeated in many other decisions. Generally speaking a fee is defined to be a
charge for a special service rendered to individuals by some governmental
agency. A question arises-"special service" rendered to whom which
kind of individuals? Mr. V.M. Tarkunde who appeared for the Haryana Marketing
Board stressed the argument that service rendered must be correlated to those
on whom the ultimate burden of the fee falls. In our opinion this argument is
neither logical nor sound. The impost of fee and the liability to pay it is on
a particular individual or a class of individuals. They are under the obliga-
1230 tion to submit accounts, returns or the like to the authorities concerned
in cases where quantification of the amount of fees depends upon the same. They
have to undergo the botherations and harassments, sometimes justifiably and
sometimes even unjustifiably, in the process of discharging their liability to
pay the fee. The authorities levying the fee deal with them and realize the fee
from them. By operation of the economic laws in certain kinds of impositions of
fee the burden may be passed on to different other persons one after the other.
A few lines occurring at page 119 in the judgment of the Privy Council in the
case of Attorney-General for British Columbia and Esquimalt and Nanaimo Railway
Company and others may be quoted with advantage. They are as follows:- "It
is probably true of many forms of tax which are indisputably direct that the
assessee will desire, if he can, to pass the burden of the tax on to the
shoulders of another but this is only an economic tendency. The assessee's
efforts may be conscious or unconscious, successful or unsuccessful; they may
be defeated in whole or in part by other economic forces.
This type of tendency appears to their
Lordships to be something fundamentally different from the "passing
on" which is regarded as the hall-mark of an indirect tax." The
authorities, more often than not, almost invariably, will not be able to know the
individual or individuals on whom partly or wholly the ultimate burden of the
fee will fall. They are not concerned to investigate and find out the position
of the ultimate burden. It is axiomatic that the special service rendered must
be to the payer of the fee. The element of quid pro quo must be established
between the payer of the fee and the authority charging it. It may not be the
exact equivalent of the fee by a mathematical precision, yet, by and large, or
predominantly, the authority collecting the fee must show that the service
which they are rendering in lieu of fee is for some special benefit of the
payer of the fee. It may be so intimately connected or interwoven with the
service rendered to others that it may not be possible to do a complete
dichotomy and analysis as to what amount of special service was rendered to the
payer of the fee and what proportion went to others. But generally and broadly
speaking it must be shown with some amount of certainty, reasonableness or
preponderance of probability that quite a substantial portion of the amount of
fee realised is spent for the special benefit of its payers.
1231 We may now extract some very useful and
leading principles from the decision of this Court in Shirur Mutt's (1954
S.C.R., 1005, supra) pointing out the difference between tax and fee. At pages
1040-41 says Mukherjea J., as he then was:
"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 forms part of the public 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 tax-payer and the
public authority...." "a 'fee' is generally defined to be a charge
for a special service rendered to individuals by some governmental
agency." At page 1042 the learned Judge. enunciates-"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 Public interest seems to be at the basis of all impositions, but in a
fee it is some special benefit which the individual receives." After
pointing out the ordinarily there are two classes of cases where Government
imposes 'fee' upon persons, the first being the type of cases of the licence
fees for Motor Vehicles or the like and in the other class of cases ..the
Government does some positive work for the benefit of persons and the money is
taken as the return for the work done or services rendered" (vide page
1043), it is said further-"If the money thus paid is set apart and
appropriated specifically for the performance of such work and is not merged in
the public revenues for the benefit of the general public, it could be counted
as fees and not a tax. There is really no generic difference between the tax
and fees and as said by Seligman, the taxing power of a State may manifest
itself in three different forms known respectively as special assessments, fees
and taxes.
"Finally at page 1044 the striking down
by the High Court of the imposition of fee under section 76. Of the Madras Act
was upheld on the ground-"It may be noticed, however, that the
contribution that has been levied under section 76 of the Act has been made to
depend upon the capacity of the payer and not upon the quantum of benefit that
is supposed to be conferred on any particular religious institution."
Benefit conferred or any particular religious institution would have been
undoubtedly benefit conferred on the payer of the fee.
1232 After the decision of this Court in
Shirur Mutts case (supra) section 76 of the Madras Act was amended. The effect
of the amendment came to be considered by this Court in the case of H. H.
Sudhundra Thirtha Swamiar v. Commissioner for Hindu Religious & Charitable
Endowments. Mysore.(1) Pointing out the various differences between the earlier
law and the amended one at pages 320-21 the imposition of fee was upheld.
In two other cases of this Court following
the ratio of Shirur Mutt's decision the imposition of fee was upheld, vide,
Mahant Sri Jagannath Ramanuj Das and another v. The State of Orissa and another
and Ratilal Panachand Gandhi v. The State of Bombay and other . (3) We now
proceed to consider. some more decisions of this Court in which apparently some
different phrases were used for explaining the meaning of the word 'fee' and
its distinction from 'tax'. Both sides placed reliance upon those decisions.
But if the phrases are understood in the context they were used and with
reference to the facts those cases it would be noticed that the leading
principle has not basically undergone any change.
In the case of The Hingir-Rampurr Coal Co.
Ltd. & Ors. v. The State of Orissa and others(4) the challenge was to the
cess levied by the orissa Mining Areas Development Fund Act, 1952. The
petitioners' stand in the first instance was that the cess levied was not a fee
but a duty of excise on coal and hence beyond the competence of the State
Legislature. Alternatively they contended that even if it was a fee it was
beyond the competence of the State Legislature for some If other reason not
necessary to be mentioned here. The cess imposed was upheld as a 'fee'
relatable to Entry 23 of List II read with Entry 66. In other words it was
upheld as a 'fee' in respect of regulation of mines and mineral development.
Gajendragadkar J., as he then was, delivered the judgment on behalf of the
majority and discussed the point at some length. At page 545 are to be found a
few words which go directly against the contention of Mr. Tarkunde. Says the
learned Judge:-"...a fee is levied essentially for services rendered and
as such there is an element of quid pro quo between the person who pays the fee
and the public authority which imposes it." 1233 (Emphasis supplied). Mr.
Tarkunde, however, relied upon a passage at the same page which runs thus:-
"If specific services are rendered to a specific area or to a specific
class of persons or trade or business in any local area, and as a condition
precedent for the said services or in return for them cess is levied against
the said area or the said class of persons or trade or business the cess is
distinguishable from a tax and is described as a fee." The above passage
does not mean that the service rendered is unconnected with or not meant for
the payer of the fee. As pointed out earlier, service rendered to an
institution like a Math is a service rendered to the payer of the fee.
Similarly services rendered to a specific area or to a specific class of trade
or business in any local area must mean, and cannot but mean, that it is for
the special benefit of the person operating in that area. The service rendered
was to the mining area for the benefit of the mine owners at that area. The
area or trade does not pay the fee nor does it get the benefit in vacuum. The
fee is paid by the person who is liable to pay it and service to the payer does
not mean any personal or domestic service to him but it means service in
relation to the transaction, property or the institution in respect of which he
is made to pay the fee. Says the learned Judge at page 549:- "It is true
that when the Legislature levies a fee for rendering specific services to a
specified area or to a specified class of persons or trade or business, in the
last analysis such services may indirectly form part of services to the public
in general. If the special service rendered is distinctly and primarily meant
for the benefit of a specified class or area the fact that in benefitting the
specified class or area the State as a whole may ultimately and indirectly be
benefitted would not detract from the character of the levy as a fee. Where,
however, the specific service is indistinguishable from public service, and in
essence is directly a part of it, different considerations may arise. In such a
case it is necessary to enquire what is the primary object of the levy and the
essential purpose which it is intended to achieve. Its primary object and the
essential purpose must be distinguished from its ultimate or incidental results
or consequence . That is the true test in determining the character of the levy."
(underlining, ours) At pages 549-50 in the decision of The Hingir-Rampur Coal
Co. Ltd. (supra), reference has been made in passing to the decision of 1234
the Australian High Court in Patron v. Milk Board (Victoria).(1) The majority
which, amongst others, included Dixon J., held the purported levy to be invalid
because it was the imposition of a duty of excise, there being no element of
quid qua to the person on whom the levy had been imposed. Since a few lines
from the judgment of Dixon J., occurring at pages 258-259 will be very helpful
in tackling with the problem we are faced with, we may quote them. here.
They are as follows:- "It is an exaction
for the purposes of expenditure out of a Treasury fund. The expenditure is by a
government agency and the objects are governmental. It is not a charge for
service. No doubt the administration of the Board is regarded as beneficial to
what may loosely be described as the milk industry.
But the Board performs no particular service
for the dairyman or the owner of a milk depot for which his contribution may be
considered as a fee or recompense......................On the other hand it is
a trading tax. "Customs and excise duties are, in their essence, trading
taxes, and may be said to be more concerned with the commodity in respect of
which the taxation is imposed than with the particular person from whom the tax
is exacted": Attorney General for British Columbia v. Kingcome Navigation
Co [1934] A.C. 45, at p. 59.
At page 554 is to be found the final
conclusion of Gajendragadkar J., which is the crux of the matter. It runs:-
Thus the scheme of the Act shows that the cess is levied against the class of
persons owning mines in the notified area and it is levied to enable the State
Government to render specific services to the said class by developing the
notified mineral area. There is an element of quid pro quo in the scheme, the
cess collected is constituted into a specific fund and it has not become a part
of the consolidated fund, its application is regulated by a statute and is con
fined to its purposes, and there is a definite correlation between the impost
and the purpose of the Act which is to render service to the notified
area." (underlining, ours).
In the case of Corporation of Calcutta and
another v. Liberty cinema(2) the respondent was charged by the Calcutta
Corporation a 1235 very high licence fee assessed according to the sanctioned
seating capacity of the Cinema house. The High Court quashed the imposition. In
appeal to the Supreme Court the stand of the appellant Corporation was that the
levy was a tax and section 548(2) of the Calcutta Municipal Act did not suffer
from the vice of excessive delegation: while the respondent cinema contended
that the levy was a fee and had to be justified as being imposed in return for
services to be rendered. Alternatively the respondent submitted that if it was
a tax it was invalid as it amounted to an illegal delegation of legislative
functions. The majority view was expressed by Sarkar J., as he then was, and
the impost was upheld as a tax. In the minority opinion delivered by Ayyangar
J., it was held that even in the case of a licence fee a correlation between
the fee charged and the service rendered was necessary to be established. It
was, therefore, held to be a tax but invalidly imposed under a power suffering
from the vice of unconstitutional legislative delegation. In the cases before
us the licence fees charged from the various traders in the market areas are
not excessive and have not been attacked on any ground whatsoever. We are.
therefore, not concerned to find out whether an element of quid pro quo is
necessary in cases of all kinds of licence fees. Some licences are imperative
to be taken only by way of regulatory measure, some are in the nature of grant of
exclusive right or privilege of the State, such as, excise cases noticed by
this Court in the case of Har Shankar & ors. etc. etc. v. The Dy. Excise
& Taxation Commr. & Ors (1) Some may be cases of licence fees where
element of qid pro quo is necessary to be established. But what is important to
be pointed out from the case of Liberty Cinema (supra) is that in the case of a
fee of the kind with which we are concerned in this case the element of quid
pro quo must be established. Otherwise the imposition of fee will be bad. In
the majority opinion, it is stated at page 490:- "The conclusion to which
we then arrive is that the levy under s.548 is not a fee as the Act does not
provide for any service to him. No question here arises of correlating the to
the person on whom it is imposed. The work of inspection done by the
Corporation which is only to see that the terms of the licence are observed by
the licensee is not a service to him. No question here arises of correlating
the amount of the levy to the costs of any service. The levy is a tax."
1236 Ayyangar J., also said at page 526 that there being no correlation between
the fee charged and the service rendered the impugned levy was not authorised.
Mr. Tarkunde at one stage of the hearing
endeavoured to submit, although the Solicitor-General appearing for the State
of Punjab and Mr. H. L. Sibbal for the Punjab Marketing Board had made no such
submissions, that the impugned impost could be justified as a tax. There was no
lack of legislative competence in imposing a tax of the kind under issue.
Counsel further submitted that in almost all the cases in absence of quid pro
quo the levy was held to be bad and unsustainable as a tax for want of
legislative competence. On the other hand learned counsel for the appellants
and the petitioners M/s. A. K. Sen, Anil Dewan, B. S. Malik and A. K. Goel
pointed out that at no pointed of time the respondent sought to justify the
impost as a tax obviously because it would have then violated the provisions of
the Sales Tax law which did not authorise the imposition of such a tax beyond a
certain percentage, and as a tax it could not be but a sales tax. Finally this
controversy was not pursued when we pointed out that at no stage the question
was raised and no attempt any stage was made to justify it as a tax. Obviously
the Market Committees could not be competent under the Act to impose any tax:
on the sale and purchase of the agricultural produce in the market nor did it
ever purport to do so The nature of the impost and the power. under which it
was levied squarely and uniformally remained within the realm of the fee and
fee of the kind which could not but sustained on the establishment of the
element of quid pro quo between the authority charging the fee and its payer.
The next case to be considered is the
decision of this Court in Nagar Mahapalika Varanasi v. Durga Das Bhattacharya
& ors.(l) in which it was held that the annual licence fee charged from the
rickshaw owners and the drivers by the Varanasi Municipal Board could be
justified only on the basis of the element of quid pro quo. The fee was held to
be ultra vires and illegal because after excluding certain items of expenditure
the balance did not constitute sufficient quid pro quo for the amount of the
licence fee charged. It could not be sustained as a tax. Certain major items of
expenditure incurred by the Municipal Board were attributable to the discharge
of its statutory duty and, therefore, at page 386 it was said by Ramaswami
J.,-it is manifest that the licence fee cannot be imposed for reimbursing the
cost of ordinary municipal serves which the Municipal 1237 Board was bound
under the statute to provide to the general public." The expenditure
incurred by the Municipal Board for the benefit of the licensees constituted
44% of the total income of the Municipal Board and hence it was held that there
was no sufficient quid pro quo established in the circumstances of the case. In
Delhi Cloth & General Mills Co. Ltd. v. Chief Commissioner Delhi &
ors.(l) the High Court had found the 60% of the amount of licence fees charged
from the mills was actually spent on services rendered to the factory owners.
On that basis sufficient quid pro was found to exist and the impost was upheld
by this Court also. We may, however, add that the rule of 60% cannot be of
universal application. It is not a static rule.
The cases of licence fees are, generally
speaking, on some different footing. There is a substantial element of
regulatory measure involved in them. Over and above that a good portion of the
fee, may be in the neighbourhood of 60% or more, must be correlated to the
service rendered to the person from whom the fee is charged. But there may be
cases where, as in the instant one, the licence fee charged by way of
regulatory measure is not exorbitant or excessive. But the other kind of fee
charged has got to be justified on the ground of existence of sufficient quid
pro quo between the payer of the fee and the authority charging it. In such a
case from a practical point of view it may be difficult to find out with
arithmetical exactitude as to what amount of fee has gone in incurring the
expenditure for the services.
But, broadly speaking, a good and substantial
portion of it must be shown as being spent for the services rendered.
Now we come to the decision of this Court in
Indian Mica & Micanite Industries Ltd . v. State of Bihar & ors.(2)
wherein Hegde J., speaking on behalf of a Constitution Bench of this Court,
reviewed all the earlier cases and pointed out at page 323 that-"While a
tax invariably goes into the consolidated fund, a fee is earmarked for the
specified services in a fund created for the purpose." Concludes the
learned Judge at pages 324-25:- "From the above discussion it is clear
that before any levy can be upheld as a fee, it must be shown that the levy has
reasonable co-relationship with the services rendered by the Government. In
other words the levy must be proved to be a qui pro quo for the services
rendered. But in these matters it will be impossible to have an exact
co-relationship. The co- relationship expected is one of a general character
and not as of arithmetical exactitude." 1238 Difference between a licence
to regulate a trade, business or profess on in public interest and in a case
where a Government which is the owner of a particular property may grant permit
or licence to someone to exploit that property for his benefit for
consideration has been pointed out at page 325. The State of Bihar had failed
to place materials in the High Court to establish the reasonable co-
relationship between the value of the services rendered with the fee charged.
For some special reasons the case was remanded. But one thing may be
pin-pointed from a passage occurring at page 327 that the expenses of
maintaining an elaborate staff by the Excise Department were not only for the
purposes of ensuring that denaturing is done properly by the manufacturer but
also for the purpose of seeing that the subsequent possession of denatured
spirit in the hands either of a wholesale dealer or retail seller or any other
licensee or permit-holder is not misused by converting the denatured spirit
into alcohol fit for human consumption and thereby evade payment of heavy duty.
But the appellant before the Supreme Court or other similar licensees had
nothing to do with the manufacturing process. They were only the purchasers of
manufactured denatured spirit. In that context it was said-"Hence the cost
of supervising the manufacturing process or any assistance rendered to the
manufacturers cannot be recovered from the consumers like the appellant."
When we come to discuss even from the admitted facts in relation to the levy of
impugned market fees, we shall point out that the authorities concerned as also
the High Court labour under the impression that the fee realized from the
traders in the market could be spent for any purpose of development of
agriculture by providing all sorts of facilities to the agriculturists
including the facilities of link roads for the purpose of trans port of their
agricultural produce to the markets how so ever distant these link roads may be
from the market proper or any other purchasing centre in the market.
In the case of Secretary, Government of
Madras, Home Department and another v. Zenith Lamp & Electrical Ltd.(1) the
character of Court fees came up for consideration as to whether they are taxes
or fees or whether they are sui generis. Although after referring to the
various Entries of the Seventh Schedule in the different lists it was noticed
that Court fees were not taxes and they were covered by separate Entries of
fees exclusively meant for Courts, yet the broad principles of the requirement
of quid pro quo were made applicable in the cases of Court fees also. Even so,
Sikri C.J. speaking for the Court pointed out at page 982- "But even if
the meaning is the same, 1239 what is 'fees' in a particular case depends on
the subject- matter ill relation to which fees are imposed." The learned
Chief Justice further observed at the same page-"In other words, it cannot
tax litigation, and make litigations pay, say for road building or education or
other beneficial schemes that a State may have. There must be a broad co-
relationship with the fees collected and the cost of administration of civil
justice." If the view taken by the High Court in the market fee cases were
to hold good, then pushing it to the logical conclusion one will have to say
that giving all sorts of facilities to the litigants for their travel from the
village homes to the Courts would also be a service of them In cases of court
fees one has to take broad view of the matter to find out whether there exists
a broad co-relationship with the fees collected and the cause of administration
of justice. Even mixing the amount of court fee collected with the general fund
will be permissible. It may not be kept in a separate fund or earmarked
separately. The very fact that in relation to court-fees there are separate
Entries in the Seventh Schedule e.g. Entry 77 List I and Entry 3 of List II,
indicates that even though the character of the levy is not very much different
from that of the general types of fees, in the matter of approach for finding
out the element of quid pro quo quite a different test has not to be applied as
indeed, to some extent it has to be applied in many kinds of fees depending
upon the totality of the facts and circumstances. Each case has to be judged
from a reasonable and practical point of view for finding out the element of
quid pro quo.
In the case of State of Maharashtra &
ors. v. The Salvation Army, Western India Territory(1) Mathew J., speaking for
the Court after resume of some earlier decisions of this Court upheld to a
certain extent the fee charged under the Bombay Public Trust Act, 1950 on the
ground that taking precautionary measures to see that Public Trusts are
administered for the purpose intended by the authors of the Trust and
exercising control and supervision with a view to preserve the trust properties
from being wasted or misappropriated by trustees are certainly special services
for the benefit of the trust. Thus special benefits for the payer of the fee
were established, as benefits to the trust were benefits to the trustees who
are required to pay the fees out of the trust income. But then it was further
pointed out that in spite of accumulation of the surplus from 1953 onwards the
authorities went on charging the fee of 2% which has assumed the character of a
tax.
After giving certain guidelines the levy was
declared to be without the authority of law after 31st March, 1970.
1240 Observations of one of us (Chandrachud
J., as he then was), speaking for the Court in the case of Government of Andhra
Pradesh & Anr. v. Hindustan Machine Tool Ltd.(1) at page 401 are quite
apposite and may be usefully quoted here:- One cannot take into account the sum
total of the activities of a public body like a Gram Panchayat to seek
justification for the fees imposed by it. The expenses incurred by a Gram
Panchayat or a Municipality in discharging its obligatory functions, are
usually met by the imposition of a variety of taxes. For justifying the
imposition of fees the public authority has to show that services are rendered
or intended to be rendered individually to the particular person on whom the
fee is imposed. The Gram Panchayat here has not even prepared an estimate of
what the - intended services would cost it.' The levy of house-tax was held to
be lawful but the levy of Permission Fee had to be struck down as being
illegal. In the instant case also it would be noticed that the Market
Committees and the Market Boards assumed to themselves the liberty of utilizing
and spending the realizations from market fees to a consider able extent, as if
it was a tax, although in reality it was not so. In The Municipal Council
Maduri v. R. Narayanan etc.(2) endeavour was made as in the case of Nagar
Mahapalika Varanasi (supra) to justify the impost by the Municipal Council as a
tax.
Krishna Iyer J., speaking for the Court
repelled that argument and since the impost could not to justified as fee the
resolution of the Municipal Council was held to be invalid. In the Chief
Commissioner, Delhi and another v. The Delhi Cloth and General Mills Co. Ltd.
and others(3) the question for consideration was whether the registration fee
charged on the document satisfied the two conditions of fee which were
enumerated in the following language:- "(i) there must be an element of
quid pro quo that is to say the authority levying the fee must render some
service for the fee levied however remote the service may be;
(ii) that the fee realised must be spent for
the purposes of the imposition and should not form part of the general revenues
of the State." 1241 The second condition was found not to be fulfilled and
hence the impost was held to be bad. We would like to point out that the first
condition is rather couched in too broad and general a language. Rendering some
service, however remote the service may be, cannot strictly speaking satisfy
the element of quid pro quo required to be established in cases of the impost
of fee. But then, as pointed out, in some of the cases noticed earlier the
registration fee has been taken to stand on a different footing altogether. In
the case of such a fee the test of quid pro quo is not be satisfied with such
direct, close or proximate co- relationship as in the case of many other kinds
of fees. By and large registration fee is charged as a regulatory measure.
The history of the marketing legislation was
traced by Venkatarama Aiyar J. in the case of P. P. Kutti Keya and others v.
The State of Madras and others.(1) A number of Writ Petitions were disposed of
by one judgment delivered on 10-7-1953. Appeals in some of these Writ Petitions
were brought to this Court in the case of M.C.V. S. Arunachala Nadar etc. v.
The State of Madras & others.(2) Al- though the Courts were concerned
mainly with the question of the constitutional validity of the marketing law
which is beyond any pale of challenge now, it would be interesting to note that
the Madras High Court had taken the view that the funds raised from the
merchants for construction of a market in substance amounted to an exaction of
a tax. We are not going to approve such a narrow view in relation to the
application of the amounts realized by market fees, yet we are not going to make
it too broad either, so as to take within its sweep any remote service which
may ultimately or tangentically be of some benefit to the grain trade in the
market. Subba Rao J., as he then was, speaking for the Court in Arunachala
Nadar's. case (supra) traced the history of the marketing legislation at pages
95-96 and pointed out at page 98:-"The Act, therefore, was the result of a
long exploratory investigation by experts in the field, conceived and enacted
to regulate the buying and selling of commercial crops by providing suitable
and regulated markets by eliminating middlemen and bringing face to face to the
producer and the buyer so that they may meet on equal terms, thereby
eradicating or at any rate reducing the scope for exploitation in dealings."
At page 102 is to be found some discussion with regard to the licence fees
which, says the learned Judge, "do not appear to be so high as to cripple
the trader's business." The question of charge of the market fee apart
from the licence fee did not fall for consideration in this case. The Bombay
1242 Marketing Statute came to be considered in the case of Mohammad Hussain
Gulam Mohammad and another v. The State of Bombay and another.(1) Wanchoo J.,
as he then was, speaking for the Court repelled the attack at page 669 on
section 11 of the Bombay Act which gives power to the Market Committee subject
to the provisions of the rules and subject to such maxima as may be prescribed
to levy fees on the agricultural produce bought and sold by licensees in the
market area. The attack was that the impost was in the nature of sales tax.
It was repelled on the ground that:-
"Now there is no doubt that the market committee which is authorised to
levy this fee renders services to the licensees, particularly when the market
is established. Under the circumstances it cannot be held that the fee charged
for services rendered by the market committee in connection with the
enforcement of the various provisions of the Act and the provisions for various
facilities in the various markets established by it, is in the nature of sales
tax. It is true that the fee is calculated on the amount of produce bought and
sold but that in our opinion is only a method of realising fees for the
facilities provided by the Committee." Since the market was not found to
have been properly established it was held that the market committee could not
enforce any of the pro visions of the Act or the Rules or the bye-laws.
Therefore, the question of the rate of market fee did not fall for
consideration. The Bihar Statute came up for consideration of this Court in the
case of Lakhan Lal and others etc. v. The State of Bihar and others.
Bachawat J., upheld the validity of the
various actions taken by the State Government under the Act and the Rules and
finally said at page 539:-"But there is no material on the record to show
that the Government acted unreasonably or that the market is so wide that the
sale and purchase of agricultural produce within it cannot be effectively
controlled by the market committee or that the growers within the area cannot
conveniently bring their produce to the market yards." In contrast in the
present case the whole of the State has been divided into different market
areas, although the principal market yard is only one in one area with some sub
market yards appertaining to it. We do not mean to suggest in pointing out this
difference that the declaration of the whole market area is unreasonable. But
the market fee has to be realized from the traders on the purchase of the
agricultural produce in the market which consists of the market yards and some
purchas- 1243 ing centres established at some other places in the area due to
the urgency or exigency of the situation. Such a fee cannot be utilised for the
purpose of rendering all sorts of facilities and services for the benefit of
the agriculturists throughout the area. It may be very necessary to render such
services to the agriculturists; rather, they must be rendered. But the laudable
and in itself cannot justify the means to achieve that end if the means have
got no sanction of the law. In the Bihar case it was found at page 540:-
"The market committee has appointed a dispute subcommittee for quick
settlement of disputes. It has set up a market intelligence unit for collecting
and publishing the daily prices and information regarding the stock, arrival
and despatches of agricultural produce. It has provided a grading unit where
the techniques of grading agricultural produce is taught.
the contract form for purchase and sale is
standardised. The provisions of the Act and the Rules are enforced through
inspectors and other staff appointed by the market committee. The fees charged
by the market committee are correlated to the expenses incurred by it for
rendering these services. The market fee, of 25 naya paise per Rs. 100/ worth
of agricultural produce and the licence fees prescribed by Rules 71 and 73 are
not excessive. The fees collected by the market committee form part of the
market committee fund which is set apart and earmarked for the purposes of the
Act. There is sufficient quid pro quo for the levies and they satisfy the test
of "fee" as laid down in Commissioner Hindu Religious Endowments
Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt-[954] S.C.R.,
1005." It would be noticed that even the rate of 25 paise per hundred
rupees had to satisfy all these tests. In the instant cases we are concerned
with the rates of market fee which are much higher than the Bihar rate.
Correlative service also, therefore, must satisfy the tests of rendering more
services in the market area. The fund cannot be permitted to be utilised for an
end, such as, augmenting the agricultural produce etc., if it has no reasonably
direct or close connection with the services rendered to the payers of the fee.
From a conspectus of the various authorities
of this Court we deduce the following principles for satisfying the tests for a
valid levy of market fees on the agricultural produce bought or sold by
licensees in a notified market area:- (1) That the amount of fee realised must
be earmarked for rendering services to the licensees in the notified 1244
market area and a good and substantial portion of it must be shown to be
expanded for this purpose.
(2) That the services rendered to the
licensees must be in relation to the transaction of purchase or sale of the
agricultural produce.
(3) That while rendering services in the
market area for the purpose of facilitating the transactions of purchase and
sale with a view to achieve the objects of the marketing legislation it is not
necessary to confer the whole of the benefit on the licensees but some special
benefits must be conferred on them which have a direct, close and reasonable
correlation between the licensees and the transactions.
(4) That while conferring some special
benefits on the licensees it in permissible to render such service in the
market which may be in the general interest of all concerned with the
transactions taking place in the market.
(5) That spending the amount of market fees
for the purpose of augmenting the agricultural produce, its facility of
transport in villages and to provide other facilities meant mainly or
exclusively for the benefit of the agriculturists is not permissible on the
ground that such service in the long run go to increase the volume of
transactions in the market ultimately benefitting the traders also. Such an
indirect and remote benefit to the traders is in no sense a special benefit to
them.
(6) That the element of quid pro quo may not
be possible, or even necessary, to be established with arithmetical exactitude
but even broadly and reasonably it must be established by the authorities who
charge the fees that the amount is being spent for rendering services to those
on whom falls the burden of the fee.
(7) At least a good and substantial portion
of the amount collected on account of fees, may be in the neighbourhood of
two-thirds or three-fourths, must be shown with reasonable certainty as being
spent for rendering services of the kind mentioned above.
1245 In the light of the principles culled
out and enunciated above, we now proceed to examine the relevant provisions of
the Act and the rules framed thereunder as in force in the States of Punjab and
Haryana. We shall examine the relevant provisions with reference to the Punjab
Act and the Rules and will only refer to those of Haryana when some difference
of some significance or consequence has got to be pointed out.
Under clause (f) of section 2 of the Act
"dealer" is defined to mean :- "any person who within the
notified market area sets up, establishes or continues or allows to be
continued any place for the purchase, sale, storage or processing of
agricultural produce notified under sub- section (l) of section 6 or purchases,
sells, stores or processes such agricultural produce." Clause (hh)
inserted by Punjab Act 4O of 1976 says:- "licensee" means a person to
whom a licence is granted under section 10 and the rules made under this Act
and includes any person who buys or sells agricultural produce and to whom a
licence is granted as Kacha Arhtia or commission agent or otherwise but does
not include a person licensed under section 13." As per clause (i):-
market" means a market established and regulated under this Act for the
notified market area, and includes a market proper, a principal market yard and
sub-market yard." The definition of "market proper" is to be
found in clause (k) to mean:- "any area including all lands with the
buildings thereon, within such distance of the principal market or sub-market
yard, as may be notified in the official gazette by the State Government, to be
a market proper." "Notified market area" in clause (b) means any
area notified under section 6 and clause (n) provides:- " "Principal
market yard" and "sub-market yard" mean an enclosure, building
or locality declared to be a principal market yard and sub-market yard under
section 7." As already stated the State Agricultural Marketing Board is
constituted under section 3 and while enumerating the powers and duties of the
1246 Board it is provided in sub-section (9) that "The Board shall
exercise superintendence and control over the Committees." The provision
of "Declaration of notified market area" is to be found in section
6(1) which empowers the State Government to declare the area notified under
section 5 or any portion thereof to be a notified market area for the purposes
of the Act in respect of the agricultural produce notified under section 5 or
any part thereof. As already pointed out the whole of the State was intended to
be divided in various market areas and was also declared as such under section
6. Under sub-section (3) of section 6 after the declaration of the notified
market area no person can establish or continue any place for the purchase,
sale, storage and processing of the agricultural produce except under a licence
granted in accordance with the provisions of the Act, the Rules and the
byelaws. A dispute arose between the parties before us as to whether the
licence is granted for the whole of the area or for particular places therein.
On examining Form in the Rules meant for grant of licence under section 10 we
find that the licence is granted for one or more places of business specified
in column 6 situated in a particular notified market area named at the top of
the licence. There will be no sense in specifying the place of business in the
licence if the licensee is to be permitted to establish his place of business anywhere
in a notified market area which is too big and extensive for the control and
supervision of a particular market committee. Market yards are declared under
section 7 and for each notified market area there can be one principal market
yard and one or more sub-market yards as may be necessary. The marginal note of
section 8 is "No private market to be opened in or near places declared to
be markets." There is some difference in the provisions of the Act as
introduced by the Haryana Amendment in relation to the establishment of
notified market area, declaration of market yards and the inhibition on any
person to establish or continue any place for the purchase "sale, storage
and processing of any agricultural produce." There was also a controversy
before us as to the exact interpretation of the language of the two Statutes in
relation to such inhibition.
But for the purposes of the cases before us
it is not necessary to further encumber the judgment by attempting to reconcile
by harmonious construction the various provisions of the two Acts in relation
to this matter. Suffice it to say that there is no special provision in the
Statute for establishment of markets or markets proper as per the definition
contained in clauses (i) and (k) of section 2 of the Act, yet it is reasonable
to assume that the intention of the legislature is to constitute the market
yards as the market proper and ordinarily and generally the market would be the
same but may 1247 include some other places where transactions of purchase of
agricultural produce by the traders from the producers has been allowed in
order to avoid rush in the precincts of the market proper. But one thing is
certain that the whole of the market area in no sense can be equated with
market or market proper. Nobody can be allowed to establish a purchasing centre
of his own at any place he likes in the market area without there being such a
permission or authority from the Market Committees. After all the whole object
of the Act is the supervision and control of the transactions of purchase by
the traders from the agriculturists in order to prevent exploitation of the
latter by the former. The supervision and control can be effective only in
specified localities and places and not throughout the extensive market area.
We have already pointed out that there is no
separate notification or declaration establishing a market or market proper.
But Rule 24(1) in both the States framed under the Act provides that:-"All
agricultural produce brought into the market for sale shall be sold by open
auction in the principal or sub-market yard." This also indicates that
market is generally the principal and sub-market yards. The benefit of market
fee, therefore, has to be correlated with the transactions taking place at the
specified place in the market area and not in the whole of the area.
Sections 9 to 10A deal with the procedure of
taking out licences, The State Government is empowered under section ll to
establish a market committee for every notified market area and to specify its
headquarters. The question of constitution of committees is dealt with in
section 12. The duties and powers of a market committee are enumerated in
section 13. It would be seen from clause (a) of subsection (l) of section 13
that it is the duty of the committee to establish a market in the notified
market area "providing such facilities for persons visiting it in
connection with the purchase, sale, storage, weighment and processing of
agricultural produce concerned as the Board may from time to time direct."
This also indicates that the Committee is primarily concerned with providing facilities
in the market for persons visiting it and in connection with the transactions
taking place there.
Now we come to the most important section viz
section
23. It read as follows:- "A Committee
shall, subject to such rules as may be made by the State Government in this
behalf, levy on ad-valorem basis fees on the agricultural produce bought or
sold by licensees in the notified market area at a rate not exceeding three
rupees for every one hundred rupees:- 1248 Provided that- (a) no fee shall be
leviable in respect of any transaction in which delivery of the agricultural
produce bought or section in which delivery is actually made." (b) a fee
shall be leviable only on the parties to a transaction in which delivery is
actually made." There is a slight variation in section 23 as amended by
Haryana Act 21 of 1973. Therein some market fee may be charged on the
agricultural produce even brought for processing by licensees in the notified
area. But we are not concerned with the charge of such a fee in any of these
cases.
Rule 29 of the Punjab Rules says:- "Levy
and collection of fees on the sale and purchase of agricultural produce.
(1) Under section 23 a Committee shall levy
fees on the agricultural produce bought or sold by licensees in the notified
market area at the rate to be fixed by the Board from time to time.
Provided that no such fees shall be levied on
the same agricultural produce more than once in the same notified market area.
A list of such fees shall be exhibited in some conspicuous place at the office
of the Committee concerned:
........................................................
(2) The responsibility of paying the fees
prescribed under sub-rule (l) shall be of the buyer and if he is not a licensee
then of the seller who may realise the same from the buyer. Such fees shall be
leviable as soon as an agricultural produce is bought or sold by a
licensee." The Haryana Rule is substantially the same.
Reading section 23 along with Rule 29 it
would be noticed that the power of the Committee to levy fees is subject to the
Rules as may be made by the State Government.
The fee is levied on ad-valorem basis at a
rate which cannot exceed the maximum, mentioned in section 23 by the
legislature. But the power to fix the rate from time to time within the maximum
limit has been conferred on the Board and the Committee is merely bound to
follow it. One of the arguments before us on behalf of the appellants and the
petitioners was that it was the Board which fixed the rate of Rs. 2/- first and
thereafter Rs. 3/- 1249 per hundred rupees. The Committee abdicated its
function in this regard and, therefore, the levy of fee is contrary to the
principle of law laid down by this Court in the case of State of Punjab and
another v. Hari Krishan Sharma(l). But the distinction between the said case
and the present one is that under the former there was no provision in section
5(l) of the Punjab Cinemas (Regulation) Act of 1952 that the power of the
licensing authority to grant licence was subject to any rule, the rule in its
turn providing an overriding power in the State Government in the matter of
grant of licence. The control of the Government provided in sub- section (2)
was of a limited kind. On the other hand section 23 in express language
controls the power of Committee to levy fees subject to the rules. The power
given to the Board to fix the rate of market fees from time to time under rule
29 is not ultra vires the provisions of the Act, as in our opinion sub-section
(9) of section 3 confers power on the Board to exercise superintendence and
control over the Committees, which power, in the context and the scheme of the
marketing law will take within its ambit the power conferred on the Board under
rule 29(1).
It is further to be pointed out that the fee
levied is not on the agricultural produce in the sense of imposing any kind of
tax or duty on the agricultural produce Nor is it a tax on the transaction of
purchase or sale. The levy is an impost on the buyer of the agricultural
produce in the market in relation to transactions of his purchase. The
agriculturists are not required to share any portion of the burden of this fee.
In case the buyer is not a licensee then the responsibility of paying the fees
is of the seller who may realise the same from the buyer. But such a
contingency cannot arise in respect of the transactions of sale by an
agriculturist of his agricultural produce in the market to a dealer who must be
a licensee. Nor was any such eventuality occurring in any of the cases before
us was brought to our notice. Probably such an alternative provision was meant
to be made for outside buyers who are not licensees when they buy the
agricultural produce from or through the licensees.
Any way we are not concerned with that
question.
Under section 27(1):- "All moneys
received by a Committee shall be paid into a fund to be called the Market
Committee Fund and all expenditure incurred by the Committee under or for the
purposes of this Act shall be defrayed out of such fund, and any surplus
remaining after such expenditure has been met shall be invested in such manner
as may be prescribed." 1250 Every Market Committee, is obliged under
sub-section section (2) (a) of section 27 to pay out of its fund to the
Marketing Board as contribution such percentage of its income derived from
licence fee, market fee and fines levied by the courts as specified in
sub-clause(i) and (ii). The purpose of this contribution as mentioned in
sub-section 2(a) is to enable the Board to defray expenses of the office
establishment of the Board and such other expenses incurred by it in the
interest of Committees in general. The income of almost all the Market
Committees were several lakhs of rupees per year and, therefore, each is
required to pay 30 per centum of its income to the Board by virtue of the
amendment brought about by Punjab Act 4 of 1978 Under section 25 all receipts
of the Board are to be credited into a fund to be called the Marketing
Development Fund. Purposes for which the Marketing Development Fund. Purposes
for which the Marketing Development Fund may be expanded are enumerated in
section 26 and the purposes for which the Market Committee Funds may be
expended are catalogued in section 28 We think we shall have to read both the
sections in full one by one. First we refer to section 28 which runs as
follows:- Subject to the provisions of section 27 the Market Committee Funds
shall be expended for the following purposes:- (i) acquisition of sites for the
market;
(ii) maintenance and improvement of the
market;
(iii)construction and repair of buildings
which are necessary for the purposes of the market and for the health
convenience and safety of the persons using it.
(iv) provision and maintenance of standard
weights and measures;
(v) pay. leave allowances, gratuities, compassionate
allowances and contributions towards leave allowances, compensation for
injuries and death resulting from accidents while on duty, medical aid, pension
or provident fund of the persons employed by the Committee.
(vi) payment of interest on loans that may be
raised for purpose of the market and the provisions of a sinking fund in
respect of such loans;
(vii)collection and dissemination of
information regarding all matters relating to crop statistics and marketing in
respect of the agricultural produce concerned' 1251 (viii)providing comforts
and facilities, such as shelter, shade, parking accommodation and water for the
persons, draught cattle, vehicles and pack animals coming or being brought to
the market or on construction and repair of approach roads; culverts, bridges
and other such purposes;
(ix) expenses incurred in the maintenance of
the offices and in auditing the accounts of the Committees;
(x) propaganda in favour of agricultural
improvements, and thrift;
(xi) production and betterment of
agricultural produce;
(xii)meeting any legal expenses incurred by
the Committee;
(xiii)imparting education in marketing or
agriculture;
(xiv)payments of travelling and other
allowances to the members and employees of the Committee, as prescribed:
(xv) loans and advances to the employees;
(xvi)expenses of and incidental to elections;
and (xvii)with the previous sanction of the Board, any other purpose which is
calculated to promote the general interests of the Committee or the notified
market area or with the previous sanction of the State Government, any purpose
calculated to promote the national or public interest." Let us first scan
these clauses one by one on the footing that the Market Committee Fund will
ordinarily and generally and almost wholly will be created out of the income of
a particular Market Committee on account of market fees realised by it from the
traders in the market. A portion of it may be on account of fines, licence
fees, from weighment, arbitration fees etc. But those amounts compared to the
huge realisations on account of market fees would be almost negligible. By and
large the purposes enumerated in clauses (i) to (ix) are relatable to the
service to be rendered in the market in relation to the transactions of
purchase and sale of the agricultural produce. We shall deal with the problem
of payment of interest on loans that may be raised for purposes of the market
as mentioned in clause (vi) shortly hereinafter. Apropos clause (viii) the
attention of all concerned must be focussed here because the last part of this
clause had led the autho- 1252 rities and also the High Court to think that
construction of link roads, culverts and bridges anywhere in a notified market
area is covered by this clause. In our opinion it is not so. In the context of
the language of all the clauses preceding clause (viii) and clause (viii)
itself it is plain that what is meant by "construction and repair of
approach roads; culverts, bridges" is only for the purpose of the facility
of going into the market from the nearest public road. Supposing a market has
been established consisting of principal market yard or sub-market yards at a
particular place where there is no facility for the carts or the trucks and
other vehicles to go, then approach roads, and if necessary even culverts and
bridges may be constructed, or repaired out of the Market Committee Fund. Such
an expenditure within the limited limit will be with the object of facilitating
the taking place of the transactions of purchase and sale in the market and
will confer some special benefits to the traders apart from a share of the
benefit going to the agriculturists who are not required to share any burden of
the market fee. But as we have pointed out above, if one were to give a very
wide meaning to this phrase of construction and repair of approach roads,
culverts and bridges to say that such construction can be permitted anywhere in
the market area for the facility of the agriculturists which ultimately will
benefit the traders also, then the whole concept of correlation of fee and its
character of having an element of quid pro quo will dwindle down and become an
empty formality. Uplift of villages and helping the agriculturists by all means
is the duty and the obligation of the State no doubt and it has to do it by
incurring expenses out of the public exchequer consisting of the income from
various kinds of taxes etc.
One may not have any serious objection to the
items of expenditure mentioned in clauses (xii), (xiv), (xv) and (xvi). But the
other clauses do require some careful examination. Obviously clause (x) and
clause (xi) cannot form the items of expenditure out of the market fees. In
face of the view of the law expressed by us above the propaganda in favour of
the agricultural improvement and expenditure for production and betterment of
agricultural produce will be in the general interest of agriculture in the
market area. The whole of the State is divided into market areas. So long as
the concept of fee under our Constitution remains distinct and limited in
contrast to tax such expenditure out of the market fee cannot be countenanced
in law. The first part of clause (xiii) may be justified in the sense of
imparting education in marketing to the staff of the Market Committee. But
imparting education in agriculture in general cannot be correlated with the
market fee. The first part of clause (xvii) is too vague to merit any 1253
discussion on the language of the clause itself until and unless we are faced
with concrete examples of such expenditure. But how ill-conceived the second
part of clause (xvii) is, is abundantly clear from the decisions of the Punjab
High Court mentioned above and to be discussed shortly hereinafter. Is it
permissible to spend the market fees realised from the traders for any purpose
calculated to promote the national or public interest ? Obviously not. No
Market Committee can be permitted to utilise the fund for an ulterior purpose
howsoever benevolent, laudable and charitable the object may be. The whole
concept of fee will collapse if the amount realised by market fees could be
permitted to be spent in this fashion. We may, however, mention one matter
pointedly in connection with the Market Committee Fund. Under section 32 the
Committee may borrow money for carrying on the purposes for which it is
established on the security of any property vested in and belonging to the
Committee. It may obtain a loan from the State Government or the Board. In the
various figures and charts submitted before us it was shown that the Market
Committees had raised money by loan and other methods. That also will form the
market committee fund. Technically and legally, therefore, one may not have any
objection to the expenditure of such money for the purposes mentioned in
clauses (x), (xi) (xiii) and (xvii). As we indicated above clause (vi) provides
for payment of interest on loans, but that is confined to loans that may be
raised for purposes of the market and not for any other purpose, whereas, the
power of the Committee to raise loans under section 32 is very wide. The Act,
however, is silent as to where from interest will be paid or the principal will
be returned in regard to the amount of loan raised for a purpose other than the
purpose of the market. Since we find that the matter has proceeded at various
stages in the High Court as also in this Court under a great confusion of the
correct position of law, we do not propose to express any opinion in this
regard at this stage. Nor do we propose to strike any clause of section 28 as
being unconstitutional merely on the ground that the expenditure authorised
therein goes beyond the scope of the purpose of the utilisation of the market
fees.
The authorities have to bear this in mind and
on a proper occasion the matter will have to be dealt with by courts in the
light of this judgment where a concrete case comes of raising of a loan,
spending the money so raised which cannot be reasonably connected with the
purposes for which the market fee can be spent, as to whether such a loan can
be repaid or interest on it can be paid out of the realizations of the market
fees.
One of the points mooted before us was as to
how far the market committees can be compelled to part with 30% of their income
in favour of the Marketing Board. If so, for what purposes the Board 1254 fund,
namely, the Marketing Development Fund can be expanded. It is to be remembered
that market fee is levied by each and every Market Committee separately in its
own area and if a good and substantial portion of this fee has got to be
expanded for rendering services in the area to the payers of the fee in
relation to the transactions taking place therein, then logically speaking it
flows from it that any money paid to the Board out of the collections of the
market fee has also got to be expended in the very same area of the particular
Market Committee. But such a strict construction from a practical point of view
is not possible.
The Board in the State is the Central
Controlling and superintending authority over all the Market Committees, the
primary function of which is to render service in the market. Parting with 30%
income by a Market Committee in favour of the Board is not so excessive or
unreasonable so as to warrant any interference with the law in this regard on
the ground of violation of the principle of quid pro quo in the utilisation of
the market fee realised from the traders in the market area. We would, however,
like to emphasise that the Marketing Development Fund can only be expended for
the purposes of the Market Committees in a general way, or to be more accurate,
as far as practicable, for the purposes of the particular Market Committee
which makes the contribution.
We shall now read section 26 of the Act
providing for purposes for which the Marketing Development Fund may be
expended. It reads as follows:- "The Marketing Development Fund shall be
utilised for the following purposes:-
(i) better marketing of agricultural produce;
(ii) marketing of agricultural produce on
cooperative lines;
(iii)collection and dissemination of market
rates and news;
(iv) grading and standardisation of
agricultural produce;
(v) general improvements in the markets or
their respective notified market areas;
(vi) maintenance of the office of the Board
and construction and repair of its office buildings, rest-house and staff
quarters;
1255 (vii)giving aid to financially weak
Committees in the shape of loans and grants;
(viii)payment of salary, leave allowance,
gratuity, compassionate allowance, compensation for, injuries or death resulting
from accidents while on duty, medical aid, pension or provident fund to the
persons employed by the Board and leave and pension contribution to Government
servants on deputation;
(ix) travelling and other allowances to the
employees of the Board, its members and members of Advisory Committees;
(x) propaganda, demonstration and publicity
in favour of agricultural improvements;
(xi) production and betterment of
agricultural produce;
(xii)meeting any legal expenses incurred by
the Board;
(xiii) imparting education in marketing or
agriculture;
(xiv)construction of godowns;
(xv) loans and advances to the employees;
(xvi)expenses incurred in auditing the
accounts of the Board; and (xvii)with the previous sanction of the State
Government, any other purpose which is calculated to promote the general
interests of the Board and the Committee; or the national or public interest.
On a parity of the reasoning which we have
applied in the case of Market Committee Fund we may point out that the Market
Development Fund constituted primarily and mainly out of the contributions by
the Market Committees from realisations of market fees, can also be expended
for the purposes of the market in the notified market area in relation to the
transactions of purchase and sale of the agricultural produce and for no other
general purpose or in the general interests of the agriculture or the
agriculturists. On that basis we may, as at present advised hold as valid the
purposes mentioned in clauses (i), (ii), (iii), (iv), first part of clause (v)
clauses (vi), (vii), (viii), (ix), (xii), first part of clause (xiii), clauses
(xiv), (xv) and (xvi). At the same time we hold that the Marketing Development
Fund constituted out of the Market fees cannot be expended for the purposes
mentioned in second part of clause (v), clauses (x), (xi), second part of
clause (xiii) and clause (xvii). We do not propose to strike down these
provisions as being constitutionally invalid as the purpose of the 1256 law
will be served by restricting the operation of section 26 in the manner we have
done.
We now proceed to examine the decisions of
the High Court in the light of the principles of law enunciated above. The
first decision in the case of M/s Hanuman Dall & General Mills (supra) is
the decision of a Division Bench of the High Court. It should be recalled that
by this judgment delivered on 8-11-1974 the High Court maintained the raising
of the market fee from Rs. 1.50 to Rs. 2/- in Haryana but struck down the rise
from Rs. 1.50 to Rs. 2.25 in Punjab. In the cases before us a lot of new
materials contained in new statements and charts were filed before us on either
side.
We shall examine only a few of those
materials and that too very cursorily as in our view no useful purpose will be
served, nor is it possible to do so for the first time in this Court, by their
thorough examination. The very basis of the materials submitted on either side
seems to be not well grounded on a correct appreciation of law. Too many
disputes of facts have been raised before us. It is not possible to resolve all
of them nor do we find that it will be useful to do that exercise. We shall
presently show that even on the materials placed before the High Court and on
the findings recorded by it, many of which do not seem to be in dispute, the
requirement of law is not satisfied to the extent it is essential in a case of
this nature.
In the case of Hanuman Dall and General Mills
(supra) the High Court examined many of the leading and important judgments of
this Court which we have reviewed, earlier and also placed reliance upon an
earlier Division Bench decision of the same High Court in Ram Sarup v. The
Punjab State. In para 31 of the judgment at page 12 the view of the High
Court-"that the amount of fees so collected are not to be spent
exclusively for rendering services to the payers of the fees but can also be
utilised for carrying out the purposes or objects of the Act under which they
are levied," is not quite correct. In the same paragraph the High Court
felt constrained to add that the amount cannot, however, be utilised for
purposes which have no connection with the main purposes of the Act for which
fee is levied, nor can it be spent for carrying out the governmental functions
of the State. If many of the purposes mentioned in the Act, as we have shown
above, are outside the ambit of the service element and fall within the realm
of the governmental functions, then it is plain that to say by generalisation
that the fee money can be spent for the purposes or objects of the Act is not
quite correct. The High Court has extracted section 1257 28 of the Act but has
failed to scan the effect of the various purposes in some of the clauses.
After referring to the income and expenditure
statements of Market Committee, Hissar from 1969-70 to 1973- 74 the conclusion
of fact drawn at page 15 is that the market fee constitutes more than 80% of
the income of the Market Committee and the amount spent on "works" is
nearly one-half of the total expenditure. The further finding is "the
major item on which the amount has been spent under the head 'works' consists
of the amount deposited with the public works department, Hissar, as
contribution for construction of village link roads." On that finding
itself it is manifest that Public Works Department was carrying out the
governmental functions of construction of roads including village link roads
spread throughout the whole of the notified market area of Hissar. The said
link roads could not be taken to be approach roads within the meaning of clause
(viii) of section 28 of the Act as seems to be the view of the High Court. The
error of law becomes writ large in the last sentence occurring in paragraph 34
of the judgment at page 15 which says:- "In any case, the construction of
roads within the notified market area is a work of Public importance and
promotes the general interest of the committee and the notified market area
which is one of the purposes enumerated in Cl. (xvii) of Section 26 of the
Act." The High Court further proceeds to say:- "After giving my
careful consideration, I am of the opinion that the expenditure on the
construction of link roads for which amounts were deposited with the Public
Works Department is fully justified as it is for the benefit of the growers,
the licensed dealers and the general public and promotes the interests of the
notified market area." The High Court seems to be of the view that since
transportation is very essential for the development of a market and to enable
the growers of the agricultural produce to bring the same to the market; the
construction of link roads becomes an essential purposes of the market
committees. It may be so but the purpose cannot be allowed to be achieved at
the cost of the market fee we realised from the dealers. The High Court point
out that the money cannot be spent in construction of the government activities
for providing main roads in the State. How, then, the Market Committees can be
made to contribute a very big chunk of their market fee income in construction
of the link roads throughout all villages ? To push the matter logically, 1258
if a link road is to be constructed from a village to the main road for
enabling an agriculturist to transport his produce upto the main road then the
Market Committee should be under an obligation to construct or at least to
maintain the main road also in order to enable that agriculturist to react the
market which may be at distance of say 20 miles from the link road. It is plain
that construction of such link road is as much a part of the governmental
activity as that of the main roads.
It is interesting to find out from paragraph
36 of the judgment that the Market Committees were made to pay donations to
educational institutions imparting general education. The Market Committee,
Hissar, spent Rs. 1,07,794/- on the water supply scheme for a village. Even the
High Court was constrained to disapprove of this. It also spent a sum of Rs.
6,00,000/- for the construction of a Panchayat Bhawan. Many other instances are
mentioned in paragraph 37 of the judgment which show that the Market Committees
were getting enormous income from market fees and they were made to squander
away a good portion of that money unauthorisedly, although none of the purposes
in itself was objectionable or bad. Rather, they were very laudable. But taking
an overall view of the matter the High Court felt persuaded in the case of
Haryana to uphold the maximum limit of Rs. 2/- by adding "no interference
seems to be called for at this time." In the case of Punjab, however, the
allegation of the petitioners before the High Court was that the market
committees were collecting lakhs of rupees every month and the Marketing Board
was collecting crores of rupees. The Marketing Board was asked to contribute
one crore of rupees to the Guru Gobind Singh Medical College which had been
recently established at Faridkot. A good portion of the money was already paid
and the High Court was constrained to observe that "the State Government
shall be well advised to compensate the Agricultural Marketing Board and the
Market Committees for the misutilisation of their funds for this unauthorised
purposes". The High Court held at page 19, column 2:- "In the
historical background, set out above, I am convinced that the enhancement in
the amount of fee from one rupee and fifty paise to two rupees and twenty-five
paise per one hundred rupees was not genuine and it was made with a view to
enable the market committees and the Agricultural Marketing Board to reimburse
themselves for the amounts which they were directed to contribute to Guru
Govind Singh Medical College at Faridkot. The Market Committees were having
enough income and could meet their legitimate requirements from the amounts of
fees which were being realised prior to the enhancement." 1259 The enhancement
of fee from Re. 1/- to Rs. 1.50 was upheld but the further increase to Rs. 2.25
was knocked down.
We may note here that in the batch of appeals
we heard there was no appeal from the judgment of the High Court in the case of
Hanuman Dall & General Mills. We may reasonably assume, therefore, that the
dealers of Haryana were reconciled for payment of the market fees upto the
maximum limit of two rupees per hundred rupees. In the case of Punjab, as we
traced the history at the very outset, the maximum fixed later was Rs. 2.20 by
Act 14 of 1975. But by telegraphic instructions issued by the Board the Market
Committees were asked to charge Rs. 2/- only with effect from 23-8-1975. This
was challenged before the High Court but unsuccessfully in the case of Kewal
Krishan Puri and another v. The State of Punjab and others (supra). Civil
Appeal 1083 of 1977 is from this judgment of the High Court.
The Full Bench judgment in this case also
suffers more or less from the same kind of error in the approach of the legal
problem as is to be found in the earlier Division Bench decision. In paragraph
13 of the judgment at page 352 the High Court repelled the attack on clauses
(x), (xi) and (xiv) of section 26 of the Act on the ground:- "The broad
object of the legislation like the present one is only to protect the producers
of agricultural produce from being exploited by middlemen and profiteers and to
enable them to secure a fair return of their produce. The Legislation like the
present one has its root in the attempt on the part of the nation to provide a
fair deal to the growers of crops and also to find a market for its sale at
proper rates without reasonable chances of exploitation. If this object is kept
in view, then the clauses of which the constitutionality has been challenged,
would certainly fall within the ambit of Entry 28. Clauses (x), (xiii) and
(xiv) would help the growers to make improvements in the production of
agricultural produce with the result that their agricultural produce would find
a better market resulting in getting them high price for their agricultural
produce." It is to be emphasised at this stage that the question is not of
the legislative competence to enact those clauses, nor is there a question of
the fee assuming the character of a tax and therefore, its imposition being
beyond the legislative competence of the State Legislature. The precise and the
short question is whether the Market Committees and the Board can be authorised
to spend the amount realised by market fees, as fee and fee alone for achieving
all the objects of the Act when such expenditure cannot be justified and
sustained on the well-known 1260 concept of fee as pointed out by this Court in
several decisions. The impost must be correlated with the service to be
rendered to the payers of the fees in the sense and to the extent we have
pointed out above. Again the High Court fell into an error in paragraph 15 of
the judgment when, while upholding the construction and repair of approach
roads, culverts and bridges in the larger sense of the term it said:- "If
the approach roads, culverts or bridges are in such a bad shape that they would
become hindrance in the mobility of the produce from one part of the notified
market area to the principal market yard, then the worst sufferer would be the
grower for whose benefit the Act has been enacted." The Full Bench
approved the view of the Division Bench in the earlier case as is apparent from
paras 17 and 18 of the judgment at pages 352 and 353.
We have said a bit earlier that the Market
Committee and the Board laboured under a mistaken notion that they could spend
the income from the market fee for all good purposes and objects of the Act in
the general interest of agriculture and agriculturists in the village. We are
going to extract some of the averments made in the affidavit of the Secretary
of the Market Committee of Moga from the judgment of the High Court at pages
354 and 355:- "Besides the above, the answering-respondent has undertaken
the cleaning of mandis, lining of village khals (water courses), link roads;
constructions of culverts and bridges; supply of pesticides and spray pumps on
subsidized basis as also the electrification of villages. All these activities
are going to cost the answering-respondent an amount of several lakhs of
rupees." "Para 8 of the writ petition is denied. It is wrong to
suggest that the Board and the answering- respondent have already given Rs. 5
crores to the Markfed without charging any interest. The fact of the matter is
that on account of the withdrawal of the Cotton Corporation of India from the
various markets, the price of cotton came down suddenly. In order to provide
and ensure a reasonable price to the farmer, the Government asked the Markfed
to enter the market.
For this purpose, the Board contributed some
amount of money. So far as the answering-respondent is concerned, it has not
contributed any money at all. The answering- respondent believes that the Board
has contributed only an amount of Rs. 1.43 crores and not 5 crores." 1261 "It
may, however, be submitted that the entire money collected by the Market
Committees is being used for the purposes envisaged under the Act."
"The Market Committees have to provide facilities as envisaged under the
Act. The petitioners had asked for the copies of balance sheets. The balance
sheets were originally prepared when the accounts of the Committees were being
audited by "the Chartered Accountants." Now, the accounts are being
audited by the Examiner, Local Fund Accounts which is a Government Agency. The
preparation of balance sheets involved unnecessary expenditure and wastage of
time and energy.
Consequently, the practice of preparing
balance sheets was given up a few years back." These paragraphs were
placed before us also from the records of Civil Appeal 1083 of 1977. After
quoting the various paragraphs from counter-affidavit the High Court says in
paragraph 20 of the judgment at page 355:- "From the aforesaid specific
averments made in the written statement, referred to above, it is clear that to
carry out the purposes of the Act it had become necessary to enhance the rate
of the market fee and such an enhancement stands fully justified." When
certain documents were placed before the High Court to show that the Board was
indulging in activities which had no correlation to the object to be achieved
under the Act and that the enhancement of the market fee could not be justified
the High Court, in the first instance, did not feel inclined to put absolute
reliance upon those documents as they were filed with the replication of the
petitioners.
But it did not stop there. It proceeded
further at page 356, para 22 to say, on an impression of law which we have not
countenanced, that:- "So far as Annexures W-11 and W-12 are concerned, any
expenditure incurred by the Marketing Board on the setting up of the rice
shellers or ginning factories or by the Market Committees on the construction
of the link roads would not be inconsistent with the provisions of the Act and
the object to be achieved under the Act. The setting up of the rice shellers
would be for the benefit of the producers and, as earlier observed,
construction of the link roads also would be for their advantage. So far as
Annexure W-10 1262 is concerned, there can be no gainsaying that giving of donation
for the Chief Minister's Flood Relief Fund by the Board or the Market Committee
would not be justified as the same has no correlation with the object to be
achieved under the Act and in case any respect, it would certainly be
unauthorised and illegal. But, in the instant case, the petitioners have failed
to show that any amount was contributed towards the Chief Minister's Flood
Relief Fund and that the enhancement in the fee had any correlation with such a
contribution. In this view of the matter, on the basis of Annexures W-10, W-11
and W-12, the enhancement in the fee to be levied by the Committees cannot be
struck down." In several Civil Writ Petitions filed in the High Court by
the dealers of the various Market Committees of Haryana the challenge, was to
the raising of the rate of market fee from Rs. 2/- to Rs.3/-. The High Court
rejected all those petitions by the judgment dated 30-8-1978 which is the
subject matter of appeal in Civil Appeal No. 1708 of 1978 and the analogous
ones. After referring to the earlier judgments of the Court this judgment of
the Division Bench also proceeds on the same lines at it was bound to. To a
large extent we are saved from the unnecessary botheration of examining the
voluminously new materials placed before us in view of the counter filed on
behalf of the Haryana Marketing Board in the High Court portions of which are
extracted in the judgment. It will be useful to give the whole of the extract
from the judgment of the High Court. It runs as follows:- "It is well
known to everyone that the recent floods in Haryana were unprecedented and
created havoc in the State Almost one-third of Haryana was submerged under
water damaging the standing crops and uprooting the inhabitants making them
homeless. The State has to resort to quick measures, for removing the miseries
of the people and to rehabilitate them ..............................................................................................................
The projected income from market-fee in the
year 1977- 78 was Rs. 9 crores. But due to the floods at the old rate of 2% it
is expected to be Rs. 7.77 crores. The Committees will only be able to achieve
the projected income of 1977-78 as anticipated in the beginning of the year
only if the fee is charged at enhanced rate of 3%. Only with the projected
income the Board will be able to provide the services envisaged by it to the
farmers of the area. The Board allot- 1263 ted works amounting to Rs. 8.53
crores in the year 1976-77, out of which the Board will be able to complete the
development works worth Rs. 5.62 crores upto 31st March, 1978, leaving a spillover
of Rs. 2.91 crores for the year 1978-79. In addition to this spill- over, Board
also anticipated to take new development works amounting to Rs. 3 crores during
1978-79. The projected income during the year 1978-79 taking into account the
enhanced rate of market-fee will be Rs. 6.20 crores whereas the expenditure
will be to the tune of Rs. 8.97 crores including the development works,
miscellaneous other services and the cost of establishment. The deficit of Rs.
2.77 crores had to be met by the Board by raising loan from other sources.
Thus even this enhanced fee will not be
sufficient to meet the expenditure which the Board proposes to incur for the
purposes under the Act. Thus the enhancement of market-fee from 2% to 3% is
wholly reasonable and justified and has a reasonable correlation with the
services rendered or to be rendered." Quoting passages from the earlier
judgments of the High Court, it upheld the levy of the fee @ Rs. 3/- per
hundred rupees and dismissed all the writ petitions.
The challenge by the dealers of the Moga
Market Committee by Civil Writ Petition No. 2015 of 1978 filed in the High
Court failed as per the judgment of the High Court delivered on 18-5-1978
wherein the Full Bench decision was followed. Special Leave Petition No. 2768
of 1978 has been filed from the said judgment. The purposes enumerated in the
Full Bench decision and repeated in this judgment also for the purpose of
justifying the increase in the rate of fee from Rs. 2/- to Rs. 3/- per hundred
rupees are the stereo- type ones including Rural Integrated Development Scheme,
night-shelter, link roads and bridges. Everybody seems to have allowed himself
to be carried too far by the sentiment of the laudable object of the Act of
doing whatever is possible to do under it for the amelioration of the
conditions and the uplift of the villagers and the agriculturists. Undoubtedly
the Act is primarily meant for that purpose and to the extent it is permissible
under the law to achieve that object of utilising the money collected by the
market fee, it should be done. But if the law does not permit carrying on of
the sentiment too far for achieving of all the laudable objects under the Act,
then primarily it becomes the duty of the Court to allow the law to have an
upper hand over the sentiment and not vice versa.
We must not be misunderstood to say that we
are against the sentiment expressed in the interests of the 1264
agriculturists. Nor are we opposed in the least to the achievement of all the
laudable objects envisaged under the Act. Let them all be achieved by all means
known to law by meeting the expenses after augmenting the public revenue or by
diverting the expenditure from wasteful or unimportant channel to the more
important one under the Act. But surely we cannot countenance the achievement
of all those objects by utilising a good and substantial portion of the market
fee collections when the utilisation goes against the concept of quid pro quo
which is very essential in case of fees. As we have already stated Civil Appeal
1616 of 1978 arised from the order of the High Court dated 18-9-1978 dismissing
the connected Writ Petition filed by a few hundred dealers of various Market
Committees in the State of Punjab challenging the increase of the market fee
from Rs. 2/- to Rs. 3/-. Before us in the Writ Petitions not only the increase
of the rate from Rs. 2/- to Rs. 3/- has been challenged but the previous
increases have also been challenged. For the reasons to be briefly stated
hereinafter we do not feel persuaded to interfere with the charging of the
market fee Rs. 2/- per hundred rupees by the various Market Committees in the
States of Punjab and Haryana. But surely on the facts as they are, the increase
of the rate from Rs. 2/- to Rs. 3/- is not justified in law by any of the
Market Committees in either of the two States.
Mr. Tarkunde drew our attention to the report
of the Royal Commission submitted in 1928 and the recent Report of the National
Commission on Agriculture. It has been emphasised in those reports that in
order to make the marketing system efficient and useful link and village roads
should be constructed providing transport facilities for the transport of the
agricultural produce to the marketing centres. There cannot be any doubt that
in any scheme of development of Agriculture and marketing in a wide sense, a
chain of connections may be found between one activity or the other. It is not
only in regard to agriculture but it is so in any other kind of production,
distribution and marketing. Our attention was drawn also to the use of the word
"secondary" or "indirect" in some of the decisions in
relation to the element of quid pro quo. But in our opinion there is a
misconception in understanding the true scope of the matter and not drawing the
dividing line at the appropriate place for determining the real controversy.
Examples of trust cases were given before us
that control of the trustees is not for the personal benefit of the trustees
but for the beneficiaries, although the liability to pay the fee is of the
trustees. The misconception lies in the fact that the impost of fee is not a
personal impost on any person in the sense that unconnected with any
undertaking or property or the like, it is just an impost on his person. It is
not so. When the trustee is charged fee for the benefit of the 1265 religious
institutions and the beneficiaries it is a benefit to the trustee. Similarly,
as pointed out in the Mining Act and the factory cases charge of fee from the
mine owners in the area or the factory owners in the factory for the purpose of
developing and protecting the mines and the factories is a service to the
owners. If one were to push the example of a factory beyond the limit of the
conception of fee, one could say that the fee charged from the factory owners
can be utilised for pushing end augmenting the output of the raw-materials
required in the manufacturing process in the factory, it is also a benefit to
the factory owner.
Is it reasonably possible to travel as wide
as that? Neither the Royal Commission nor the National Commission suggested as
to how the integrated development of marketing and the agricultural produce is
to be financed. They were not concerned with that aspect of the matter. None
can have any objection to the carrying out of the integrated development but it
must be carried out by legal means raising the finance in a way known to law.
The improvements, checks, controls and
regulations must be carried out in the market or in its vicinity. Much of the
facilities provided in the market yards or around it will also be for the
direct benefit of the producers. But then, being intimately connected with
marketing operations the benefit to the producers must be deemed to be special
or direct benefit to the traders also. Under the Marketing Rules the auction
cannot be conducted by any person other than the person engaged by the
Committee. [Rule 24(5)], and weighments and measurements of agricultural
produce intended for sale are to be made through licensed weighments or
measures in the principal or a sub-market yard [vide Rule 28(2)]. Reading these
Rules in the background of the recommendations of the Commissions, and even
otherwise, it is plain they are meant for the protection of the agriculturists.
But since they are intimately connected with the marketing operations, just
like factory cases, they are also meant for the special benefit of the traders.
The literal meaning of the phrase "quid pro quo" is "one for the
other" meaning thereby-"you charge the fee for the service."
Service to the mining area, factory, market or marketing operations are
services to the payer of the fee.
Mr. P.N. Lekhi, learned counsel for the State
of Haryana placed some new materials before us to show that big projects of
development of marketing had been undertaken in India with the help of the
World Bank loans. All very good, we wish God speed to all these projects. The
only check which the law has to put is-"please don't spread your net too
wide only on the traders. Keep it within bounds so long your levy has got the
character of fee. You may raise funds by any other means known to law or to the
economic world." 1266 Now we refer to some additional documents placed
before us. But before we do so we repeat what we have said above that the
materials placed on either side before us is so voluminous and cumbersome that
no definite finding with any accuracy could be arrived at on that basis as
there seems to be disputes in regard to the nature and accuracy of many of the
figures either on the receipt side or on the expenditure side. We have,
however, referred to some of the admitted facts even from the judgments of the
High Court. We may refer to a few more.
In the affidavit of Shri R. K. Singh,
Director of Marketing, Punjab and Secretary of Punjab State Agricultural Board
filed in the High Court giving rise to Civil Appeal No. 1083/77, which is not a
new material in that sense. It was stated in paragraph 6:- "It is
submitted that respondent No. 3 is duty bound to bring about general
improvement of a notified market area, production and betterment of agriculture
etc. Under the Act and the answering-respondent is duty bound to approve such
expenditure under the Act. It is also submitted that electricity plays a major
role in the production and betterment of agriculture and for the general
improvement of area. In view of its importance respondent No. 3 sought and
respondent No.2 approved the expenditure on the electrification of the villages
situate within the jurisdiction of respondent No. 3." In the Writ
Petition, respondent No. 2 was the Marketing Board and respondent No. 3 was the
concerned Marketing Committee. In the same case in the High Court additional
affidavit was filed by Shri Tirath Singh, Chairman of the Punjab Board. It is
stated in paragraph 7 that apart from development works in the budget estimates
in the year 1975-76, there were other development projects to be taken in hand
some of which were enumerated in that paragraph. We may take up only two or
three items out of the same to show in contrast how one will be within the
limits of law and the others will widely beyond it. Item No. (iii) reads as
follows:- "To provide Rest Houses, Cattle Sheds, Cart Sheds, Light and
Water arrangements in all the market yards." A good portion of these
facilities will be utilised by the agriculturists who would be coming to the
market yards for sale of their produce. Yet in the view we have expressed above
it will be a service to the trader directly connected with the marketing
operations. In contrast we quote items (x) and (xii):- 1267 (x) Continuation of
programme of link-roads.
(xii) Improvement of agricultural production
by providing improved seeds, green manuring seeds, plant protection equipment
insecticides and pesticides." One has to stretch one's imagination almost
to a breaking point to say that the programme of link roads and improvement of
agricultural say production by the means mentioned in item (xii) can all be
carried out by the impost of fee in the market.
In a new affidavit of Shri N. S. Bakshi filed
in this Court in Civil Appeal 1083 of 1977 it is stated in paragraph 6 that in
the entire Khanna market notified area there is one principal yard; two
sub-yards and only two purchase centres and no weighing bridge or any weighing
facilities has been provided by the Committee. It is stated in paragraph 7 that
"amount of Rs. 3/- lacs lying with the Khanna Market Committee during
March, 1978 in Banks was got deposited in the Government Treasury under the
orders and directions of the Board." These facts are disputed. But we are
merely stating them for the future guidance of the authorities that they should
proceed in the matter cautiously keeping in view the law laid down by this
Court in earlier cases, such as, Salvation Army case, and in the light of this
judgment. In the additional affidavit of Shri K. K. Puri it is stated that from
the information gathered it was learnt that the Punjab Board had spent about a
crore of rupees by way of subsidy @ 75% for the metallic bins for the use of
the villagers for their domestic use; a crore for air spray; five crores to the
Punjab State Electricity Board, one crore given to MARKFED, one and a half
crore to Soil Conservation Department and yet nine crores were lying surplus
with the various Market Committees. The figure may be exaggerated but are not
quite groundless. We are merely quoting them for the future caution of the
authorities concerned. Puri has further pointed out in paragraph 17 of his affidavit
that in the Estimated Expenditure in the proposed Budget of the Moga Committee
for the years 1976-77 and 1977-78 several lakhs of rupees were shown for
insecticides and pesticides apart from other inadmissible expenses. We may
again pin-point the difference. If insecticides and pesticides are for use at
the place where actually the marketing operations are carried on it would be a
justifiable expenditure. But if they are meant to be supplied to the
agriculturists for use at their village homes or in their fields surely they
cannot be valid expenditure out of the collections of the market fee.
Mr. Tarkunde filed an abstract of the
statement of income from market fee and licence fee and expenditure incurred
therefrom by 1268 the Market Committee, Hissar as worked out from Annexure R-I
to R-V filed in the High Court. It would be seen from this abstract that in the
year 1974-75 the income from market fee was Rs. 24,08,141/- and from licence
fee about Rs. 6,000/- only. A sum of Rs. 7,89,670/- was contributed under
section 27 of the Act to the Board and a sum of Rs. 14,73,732/- was spent on
Works including link roads. Similar was the position in the year 1975-76. In
1976-77 income from licence fee was only Rs. 16,000/- and odd and incomes from
market fee was Rs. 38,27,233 /-. A big chunk to the tune of Rs. 12,19,383/-
went as contribution to the Board and Rs. 24,47,408/- were spent on works
including link roads.
Similar abstracts were given in respect of
other Market Committees showing exactly the same position. Abstracts were also
given to us by Mr. Tarkunde showing the income of the Haryana Board by
contribution made by the various Market Committees and the expenditure incurred
therefrom. In the abstract statement figures of expenditure both of admissible
and inadmissible items had been clubbed together. It is, therefore, not
possible to get any correct picture from these abstracts.
How admittedly the authorities concerned have
travelled wide beyond limit for the application of the fee money will be
apparent from the counter affidavit of the Haryana Board filed in the High
Court giving rise to Civil Appeal 1700 of 1978. In paragraph 10(i) it is
stated:- "The construction of link roads within the notified market area
is a work of public importance and promotes the general interest of the
farmers, traders and the notified market area which is one of the purposes
enumerated in clause XVII of section 28 of the Act." In para 10(ii) it is
admitted:- "Thus the enhancement of market fee from 2% to 3% is wholly
reasonable and has co-relation with the services rendered or to be rendered.
65% of its income had to be rightly deposited with the P.W.D. and the
Government, as the Committee had got its link roads constructed through
Government Agency and is still getting so constructed." It is thus a clear
admission that 65% of the income has gone by way of contribution to the P.W.D.
fund for construction of the link roads. It is in substance a contribution to
the Public Exchequer for helping the Government Agency in performing its
governmental functions and duties. In no way such a contribution can be
justified out of the market fee income. From Annexure R-II appended to the
aforesaid affidavit of the Board it would be seen that in the year 1974-75 a
sum of Rs. 1,07,338/- was given as aid to animal husbandry for the uplift of
cattle wealth and its product.
This illustrates to what extent the concept
of fee in lieu of service has been stretched. A sum of Rs. 6,00,000/- and odd
was spent for improving the quality of cotton seeds for seeds purposes. In a
Gober Gas Plant Rs. 15,55,000/- were invested. This item was sought to be
explained before us by Mr. Tarkunde that this expenditure was incurred with the
help of the subsidy received from the State and the Central Governments. The
scheme of the Gober Gas Plant was launched for the promotion of interest of
market area. It is not explained as to how it was connected with the marketing
operations in the area and how much was the subsidy and what portion of the
amount was spent out of the market fee Income. Similarly in Annexure R-III from
the statement of income and expenditure of the Haryana Board for the year
1975-76 it would appear that a sum of Rs. 1,28,70,662/- was spent "on
general improvement in M.C. and other notified area and construction of
F.A.C.C." Apart from that the other items of expenditure are a sum of Rs.
20,00,000/- in purchase and acquisition of land for new mandies and Rs. 10,00,000/-
and odd for purchase of land, construction of building for Board's office and
staff quarters in the mandies. Again in this year a sum of Rs. 95,00,000/- and
odd is shown to have been spent on Gober Gas plant. It may be inclusive of the
figure of the earlier year. Then from Annexure R-IV, the statement for the year
1976-77, it will be found that a sum of rupees one crore was given as loan to
Haryana Electricity Board. We have taken some of these items just by way of
example to illustrate that the authorities took full liberty to treat the
realisation from market fee as a general realisation of tax which they were
free to spent in any manner they liked for the purposes of the Act, the
development of the area, for giving a filling to agricultural production and so
forth and so on. The sooner the authorities are made to realise the correct
position in law the better it will be for all concerned.
But taking a reasonable and practical view of
the matter and on appreciation of the true picture of justifiable and legal
expenditure in relation to the market fee income, even though it had to be done
on the basis of some reasonable guess work, we are not inclined to disturb the
raising of an imposition of the rate of market fee upto Rs. 2/- per hundred
rupees by the various Market Committees and the Boards both in the State of
Punjab and Haryana.
After all, considerable development work
seems to have been done by many Market 1270 Committees in their respective
markets. The charging of fee @ Rs. 2/-, therefore, is justified and fit to be
sustained.
We accordingly do it. As pointed out earlier
the dealers of Haryana did not feel aggrieved when the High Court maintained
the raising of market fee to the extent of Rs. 2/- per hundred rupees. We are,
however, not inclined to uphold the raising of the fee from Rs. 2/- to Rs. 3/-,
as on the materials placed before us it is clear that this has been done
chiefly because of the wrong impression of law that the amount of market fee
can be spent for any development work in the notified market area and specially
for the development of agriculture and the welfare of the agriculturists. On
the basis of the facts and figures placed before us from the High Court records
and also some new materials filed here we have come to the conclusion that
there was no justification in raising the fee from Rs. 2/- to Rs. 3/-. The High
Court was wrong in maintaining this rise on an erroneous view of the matter.
We, therefore, allow the appeals and the writ Petitions to the extent and in
the manner indicated above and direct the Market Committees and the State
Marketing Boards not to realize market fee at the rate of Rs. 3/- per hundred
rupees on the basis of their impugned decisions and actions which have been
found to be invalid by us. We leave the parties to bear their own costs
throughout Before we part with these cases we would like to observe that in
future if the market fee is sought to be raised beyond the rate of Rs. 2/-per
hundred rupees, proper budgets, estimates, balance-sheets showing the balance
of the money in hand and in deposit, the estimated income and expenditure, etc.
should carefully be prepared in the light of this judgment. It may be, as was
submitted before us, that it is not imperative either for the Market Committees
or the Board to prepare balance-sheets because their accounts are audited by
government auditors but for the purposes of raising the market fee any further,
the balance- sheets will give a true picture of the position also with the
budgets and estimates. Then, and then only there may be a legal justification
for raising the rate of the market fee further to a reasonable extent. On
drawing of the correct balance-sheets and framing of the correct estimates and
budgets the authorities as also the State Government will be able to know the
correct position and to decide reasonably as to what extent the raising of the
market fee can be justified taking on overall picture of the matter and keeping
in view the reason behind the restrictions of sales tax law concerning the
transactions of food-grains and the other agricultural produce.
N.V.K. Appeals and petitions allowed.
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