JUDGMENT Ashok Bhushan, J.
1. This writ petition challenges the assessment of levy of market fee under the provisions of the Krishi Utpadan Mandi Adhiniyam, 1964 and the order dated 13th October, 2004 passed by the Director, Mandi Parishad, Uttar Pradesh Lucknow deciding revision filed against the order of market committee. Prayer has been made in the writ petition to quash the order dated 13th October, 2004 passed by the Director, Mandi Parishad and the demand order dated 19th October, 2004 as well as the order dated 30th December, 2000 passed by the Krishi Utpadan Mandi Samiti, Ghaziabad. It has been prayed that a direction be issued to the respondents restraining them from demanding any market fee and development cess from the petitioner. A writ of mandamus has also been prayed commanding the respondent No. 2 to refund the petitioner the amount of Rs. 25,00,000/- (deposited in cash by the petitioner and Rs. 83,19,804/- (submitted through bank guarantee) which has been demanded by the respondent No. 2 from the petitioner.
2. Brief facts of the case as emerge from the pleadings of the parties are:
The petitioner is a registered company having its registered office at Chakala, Andheri (East), Mumbai and various branch offices including one at Hyderabad and one at Ghaziabad. The petitioner has wholly owned subsidiary Company, namely, International Tobacco Company (hereinafter referred to as "INTCO" having cigarette' manufacturing facility at Ghaziabad. The "INTCO" has been manufacturing cigarettes from 1969 on behalf of the petitioner under job work agreement. All raw materials and ingredients necessary for manufacturing are being supplied by the petitioner The Tobacco stocks are transferred by the petitioner's office or go-down at Hyderabad and other location in Karnataka and Andhra Pradesh to the petitioner's office at Ghaziabad for handing over to "INTCO". The tobacco is being procured by the petitioner through the auction plat-forms in Andhra Pradesh and Karnataka; a part of tobacco procured by the petitioner while in storage at Hyderabad is sold to the "INTCO" at Andhra Pradesh for security for bank credit purpose and after some time is repurchased by the petitioner from "INTCO" at Hyderabad itself. The tobacco was notified specified agricultural produce under the Act on 23.9.1978 The Krishi Utpadan Mandi Samiti, Ghaziabad (respondent No. 2 ) sent notice to the petitioner on 17.11.1978 asking the petitioner to take licence under the Act. The petitioner took licence and has been submitting return from time to time showing only stock transfers. The demand notice dated 24.3.1983 was issued by the respondent No. 2 claiming that the petitioner is engaged in transaction of sale and purchase and liable to pay market fee. The notice was replied by the petitioner stating that no transaction of sale of the tobacco takes place in the market area of the respondent No. 2. It was stated that the petitioner supplies only raw materials to "INTCO" and the "INTCO" only does the job work for which it is paid charges. The Krishi Utpadan Mandi Samiti accepted the aforesaid reply of the petitioner and dropped the demand of market fee in January, 1990. Again notice was issued on 3.2.1990 which was replied reiterating the claim that no sale takes place in the market area. The matter was not pursued any further by the respondent No. 2. On 18.7.1999 again a notice was issued by the respondent No. 2 calling upon the petitioner to show cause as to why the market fee be not levied on the turnover of the Company as disclosed in State Tax returns. Petitioner replied to the said notice, contesting the demand, reiterating its claim that there were no sale transaction but only job work is done by the "INTCO" on behalf of the petitioner. The respondent No. 2 passed an order on 18th February, 2000 levying market fee and development cess on the valuation of what has been described by the petitioner as the purchase of raw tobacco made by the petitioner in Andhra Pradesh and Karnataka from the years 1997-98 and 1998-99. The petitioner's application to recall the said order was rejected on 25.3.2000 against which orders the petitioner filed a writ petition No. 20582 of 2000 in this Court. The Division Bench of this Court in its interim order dated 8.5.2000 observed that the writ petition involved determination of certain facts and legal controversies. This Court further observed that as regards the factual aspects the petitioner be relegated to alternative remedy under Section 32 of the Act. This Court granted interim order staying the assessmentOrder dated 25.3.2000 provided the petitioner deposits cash of Rs. 25,00,000/- and furnish bank guarantee of the remaining amount of Rs.83,19,804/-. In pursuance of the interim order, the petitioner filed revision before the Director, Krishi Utpadan Mandi Parishad. The Director, Mandi Parishad vide its order dated 15.7.2000 set aside the order of the respondent no. 2 and remanded the matter for re-decision by the Mandi Samiti. The Mandi Samiti again passed an order dated 30th December, 2000 affirming its earlier demand. The petitioner filed an amendment application in the writ petition seeking to challenge the order dated 30th December, 2000. The High Court while passing an order on 27th February, 2002 directed that if the petitioner prefers a revision under Section 32 of the Act the same shall be entertained and shall be heard and disposed of on merits. It was also observed that the petitioner shall be entitled to lead additional evidence in support of his case. The interim order dated 8th May, 2000 was continued till the decision of the revision. The writ petition, however was kept pending. It was not disputed before the Court that against the impugned order dated 30th December, 2000 revision lies under Section 32 of the Act although the counsel for the petitioner submitted that the Court should entertain the writ petition. The Court was of the view that the legal issues under Section 54 of the Transfer of Property Act and Article 366(29-A) of the Constitution of India are involved but the petitioner should first approach the Board by filing a revision. Petitioner filed a revision and subsequently by order dated 20th January, 2004 this Court disposed of the writ petition noticing that the petitioner had already filed revision under the direction of the Court and the direction be issued to the respondent to decide the revision within a period of three months. The interim order was made operative till the decision of the revision. The final order dated 20th January, 2004 does not decide the legal issue raised in the writ petition which was noted by the Court itself in earlier order dated 27th of February, 2002.. Before the Director in the revision the additional evidence was led by the petitioner, which was taken on record and ultimately the Director exercising the power of the Board decided the revision vide its order dated 13th October, 2004 upholding the demand of the respondent No. 2. Further, direction was issued for payment of interest at the rate of 2% per mensum. The bank guarantee submitted by the petitioner in pursuance of the interim order dated 8th May, 2000 was encashed by the respondent No. 2 and further demand of payment towards interest of Rs. 1,13,86,855/- was raised by the letter dated 19th October, 2004. Feeling aggrieved against the aforesaid order of the respondent no. 2 dated 30th December, 2000 and the orders dated 13th October, 2004 and 19th October, 2004 this writ petition has been filed by the petitioner.
3. I have heard Sri Sunil Gupta, Senior Advocate for the petitioner and Sri B. D. Mandhyan, Senior Advocate appearing for the respondents.
4. The submissions raised by Sri Gupta, counsel for the petitioner are in two broad heads i.e. (i) Issue of jurisdiction of Director, Mandi Parishad and (ii) challenge to the orders of the Mandi Samiti and the Director on merit. It is convenient to consider the submissions of Sri Gupta separately along with the reply given thereto by Sri Mandhyan.
ISSUE OF JURISDICTION
5. The order of Director, Krishi Utpadan Mandi Parishad is without jurisdiction, null and void. Under the Act there does not exist any judicial remedy or legal right to remedy of revision or judicial power or power to adjudicate the dispute relating to money matters ( market fee or development cess). Conferment of any such adjudicatory power on the State agricultural produce market board would be ultra virus to the Constitution of India. Delegation of such adjudicatory power by the Board to the Director would make delegation ultra virus to the Act. In the alternative after substitution of Section 33 in the Act with effect from 1st September, 1990 the delegation of power by the Board is permissible only by regulation and no delegation having been made by making regulation the delegation made by the Board under Section 26-I to the Director, Krishi Utpadan Mandi Parishad came to an end. Elaborating the submission Sri Gupta contended that Section 32 do not either designed or intended by the Legislature to include a right of remedy (revision) which a person aggrieved would exercise and enforce for challenging an order of Mandi Samiti on money matters i.e. Demand of licence fee, market fee and development cess etc. A plain and literal reading of the provisions of the Act along with its legislative history belies the existence of any such remedy. The understanding of the department itself for more than thirty years has been that there is no such remedy under the Act. The legislature never intended to provide jurisdiction to adjudicate market fee dispute on the Board:
(a) since the Board/Director is disqualified from adjudication on account of legal, financial, pecuniary and personal interest in the subject matter;
(b) the members of the Board/Director are not required under the Act legally qualified person or to have any judicial element training or back ground; and
(c) the Board being multi-member body consisting of elected and various representative members comprising of classes having inter se conflicting vested interest could not have been entrusted with judicial functions.
6. Reading Section 32 as providing for conferment of adjudicatory powers on Board and Directors would be violative of the principles of non-arbitrariness, impartial and independent adjudication as engrained under Article 14 of the Constitution of India. Reading Section 32 as providing for conferment of adjudicatory power on the Board/Director would render the provisions violative of basic feature of the Constitution viz. separation of power, independent impartial adjudication, the rule of law and democratic process. Based on aforesaid grounds Sri Gupta contended that the order of the Director dated 13th October, 2004 is without jurisdiction and is liable to be quashed on these grounds alone.
7. Sri B. D. Mandhyan, learned counsel for the Respondents replying the above submissions of the petitioner contended that the issue of jurisdiction is no more open for the petitioner to raise in this writ petition, since this Court between the parties had twice held that the petitioner has remedy under section 32 of the Act, reliance has been placed by Sri Mandhayan on the orders dated 8.5.2000 and 7.5.2002 passed in the writ petition No.; 20552 of 2000 filed by the petitioner by which orders the petitioner was relegated to avail the remedy under Section 32 of the Act. Sri Mandhayan contended that those orders having not been challenged by the petitioner, they have become final and operate as res judicata. Sri Mandhayan further submitted that there are large number of precedents holding that Section 32 of the Act contains remedy which is to be availed by a person before invoking the jurisdiction of this Court under Article 226 of the Constitution. Apart from other decisions reliance has specifically been placed on the judgment of this Court in Writ Petition No.: 2533 of 1998 decided on February 26, 1999 "Hindustan Liver Ltd. and Ors. v. State of Uttar Pradesh and Ors." in which case there being difference of opinion between the two Hon'ble Judges the matter was referred to third Judge i.e. the Hon'ble Mr. Justice R. R. K. Trivedi who gave his opinion on 30th November, 1999 that alternative remedy is available under Section 32 of the Act against the order of Mandi Samiti levying the market fee. In the opinion of the third Hon'ble Judge the writ petition was held not legally maintainable on the ground of alternative remedy. Sri Mandhyan replying the submission of counsel for the petitioner on nature of jurisdiction exercised by the Director submitted that the Director exercising jurisdiction under Section 32 is fully competent to satisfy itself as to the legality or propriety of any decision or order passed by the market committee. The Director is to decide the lis exercising the judicial power. Similar phraseology used in the several other Acts e.g. Under section 25 of the Small Causes Court Act, Section 115 of the Code of Civil Procedure has been referred to. It was further submitted that the Director cannot be supposed to have any personal interest in the matter and he is capable of deciding the matters objectively and no personal bias, can be attributed to the Director. While exercising statutory power under Section 32 of the Act, the Director, Mandi Parishad is not acting as a Judge in his own cause. In the writ petition no foundation has been laid down for challenging the order of Director on the ground of bias or mala fide and only general allegations have been made.
8. Counsel for both the parties have cited large of cases of the apex Court and this Court which shall be considered while considering the above noted submissions.
9. I have considered the submissions of both the parties and perused the record. For considering the submission regarding issue of jurisdiction it is convenient to note the relevant provisions of the Act including Section 32. The U.P. Krishi Utpadan Mandi Adhiniyam, 1964 has been enacted by the State Legislature providing for regulation of sale and purchase of agricultural produce and for the establishment of superintendence and control of market therefor in Uttar Pradesh. Section 12 of the Act provides that for every market area there shall be a Committee to be called the Mandi Samiti of that market area. Section 13 provides for composition of the Committee. Section 16 of the Act provides for functions and duties of the Committee. Section 17 deal with the power of the Committee which includes levy and collection of market fee which shall be payable on transaction of sale of the specified agricultural produce in the market area. Chapter IV of the Act contain Heading "Officers and servants of the Committee". Section 25 of the Act as originally enacted provided for appeals by any Officer or servant of the Committee aggrieved by an order passed against him by the Committee or its Chairman to the Director. This section further provides appeal by Secretary of the Committee or any other officer appointed by the State Government against an order passed by the Director, the Committee or its Chairman to the State Government The limitation prescribed for filing the appeal was one month from the date of communication of the order. Chapter V of the Act bears Heading "External Control ". Section 27 dealt with the powers and the duties of the Director. Section 31 provided for powers of the State Government to prohibit further execution of resolution passed or order made by the Committee. Section 32 as originally enacted provided as follows :-
"32 Power of the State Government to call for the proceedings of a Committee and pass order thereon,___ The State Government may, for the purpose of satisfying itself as to the legality or propriety of any decision of, or order passed by, a Committee, at any time call and examine the proceedings of the Committee, and, where it is of the opinion that the decision or order of the Committee should be modified, annulled or reversed, pass such orders thereon as it may deem fit."
10. The power thus was originally conferred on the State Government to satisfy itself as to the legality or propriety of a decision or order passed by the Committee, which was amended by the President Act No. XIII of 1973. Amendments were made in Chapter IV and Chapter V of the Act. Section 25 which provided for appeal was substituted by new section which is quoted as below :-
"25. Appeals,_____ Subject to rules made in this behalf under this Act, any person aggrieved by an order passed by a Committee under clause (i) or clause (ii) of Section 17, may, within 30 days of such order, prefer an appeal to the Board in such manner as may be prescribed, and the Board shall decide it after giving an opportunity of hearing both to the appellant and to the Committee"
11. Section 26-A provided for establishment of the Board by the State Government by notification in the Gazette. Section 26-B provided for constitution of the Board. Section 32 of the Act was also amended and in place of the "State Government" the word "Board" was substituted. Thus the power which was earlier vested in the State Government was entrusted to the Board under. Section 32.
12. Issue raised by the counsel for the petitioner in thus writ petition is as to whether the Board can exercise any adjudicatory jurisdiction under Section 32 qua the market fee levied by a market Committee on a person. The contention raised by the counsel for the petitioner is that the Board has no such jurisdiction nor legislature intended to confer any such jurisdiction on the Board. It has further been submitted that the Director, Mandi Parishad who has been delegated the power under Section 32 is unable to adjudicate any such dispute due to bias. The submission is that the Director due to nature of duties entrusted upon him under the various provisions of the Act shall be biased, unfit to decide any such dispute and permitting jurisdiction of such dispute to Director will be permitting the Director to be Judge in his own cause. The submission is that the adjudication of any dispute pertaining to market fee by Director is without jurisdiction. It is submitted that Section 32 of the Act is to be read down to exclude adjudication of any such dispute under Section 32. The power of the Board under Section 32 is only an administrative power given as measure of external control which has never been intended to be judicial or quasi judicial.
13. Sri B. D. Mandhyan at the very out set has contended that it is not open for the petitioner to raise these submissions in this writ petition. Submission is that this Court between the parties had already passed three orders directing the Board to decide the dispute which orders were not challenged by the petitioner any further hence the issue is concluded by the principle of res judicata. Thus before proceeding to consider the submission raised by Sri Gupta on the issue of jurisdiction it is necessary to consider the objection of Sri Mandhyan based on principle of res judicata.
14. The submission of res judicata is founded on three orders of this Court passed in writ petition No. 20582 of 2000 filed by the petitioner challenging the order of the market Committee levying market fee on the petitioner. The writ petition No. 20582 of 2000 was filed by the petitioner challenging the orders dated 18.2.2000 passed by the market committee levying the market fee and development cess. Sri Mandhyan had raised a preliminary objection to the maintainability of the writ petition on the ground that there is an alternative remedy of filing a revision under Section 32 of the Act. This Court while entertaining the writ petition vide order dated 8.5.2000 observed that the writ petition involved determination of certain factual and legal controversies. Following observation was made in the order:-
"After having heard learned counsel for the parties at length we feel that the present petition involves determination of certain factual and legal controversies."
Later on in the same order the Court observed:-
"As regards factual aspect of the controversy we may relegate the petitioner to avail the alternative remedy under Section 32 of the Act.
List this case for hearing in week commencing 24 th of July, 2000. In the mean time it is directed that the petitioner shall file revision application under Section 32 of the Act against the orders of assessment within twenty days.............."
15. After the order of this Court dated 8.5.2000 in the above writ petition the revisional authority had set aside the order of Mandi Samiti dated 18.2.2000 and 25.3.2000 and remanded the matter to the market Committee for fresh decision. The market committee after the order of the Director again passed an order dated 30.12.2000 confirming the demand of market fee and development cess which order was sought to be challenged by the petitioner by filing an amendment application in the same writ petition on which this Court passed an order dated 27.2.2002. Following order was passed by this Court on 27 February, 20002. .
"We have examined the order passed by the Mandi Samiti on 30.12.2001. It is true that in the impugned order a reference has been made to Section 54 of the Transfer of Property Act Article 366(29(A) of the Constitution, which are apparently legal issues. However, the Mandi Samiti has also examined the evidence adduced by the parties and has recorded a finding that tobacco was brought within the market area of Ghaziabad and it is in the market area of Ghaziabad that the same was sold to I.T.C. The challenge to this finding would require appreciation of evidence and it is not a purely legal issue. Therefore, the petitioner should first approach the Board by filing a revision under Section 32 of the Act."
16. The third order is order of this Court dated 20.1.2004 disposing of the writ petition No. 20582 of 2000 The entire order dated 20.1.2004 is quoted below :-
"We have heard Sri Yashwant Verma learned counsel for the petitioner and Sri B. D. Mandhyan learned counsel for the respondents.
The petitioner had already filed a revision under the directions of this Court. This Court passed an interim order in favour of the petitioner and directed the petitioner to file a revision. The petitioner had already filed the revision, which is pending disposal.
This writ petition is disposed of with a direction tot he respondents to decide the revision within a period of three months from the date a certified copy of this order is produced before the respondents.
Till the decision of the revision of the petitioner', the interim order granted by this Court shall remain in operation."
17. The contention of Sri Mandhyan based on the aforesaid three orders is that this Court having already directed the petitioner to avail remedy of revision under Section 32, petitioner cannot be heard in contending that the Director has no jurisdiction to decide the revision and principle of res judicata is fully attracted. Sri Mandhayan has placed reliance on two judgments of the apex Court in support of his submission namely, A.I.R. 1960 Supreme Court 941 Satyadhvan Ghoshal and Ors. v. Smt. Deorajin Debi and Anr. and A.I.R. 1986 Supreme Court 1455 G. K. Dudhani and Ors. v. S.D. Sharma and Ors.
18. A perusal of the orders passed by this Court dated 8.5.2000 and 27.2.2000 in writ petition filed by the petitioner reveal that those orders were interlocutory orders directing the petitioner to avail the remedy of revision in so far as the factual aspect of the controversy is concerned, The last order dated 20 1.2004 simply disposed of the writ petition directing for decision of the pending revision within three months. The issue of jurisdiction of Director, Krishi Utpadan Mandi Parishad under Section 32 of the Act has neither been raised nor finally decided by this Court in the aforesaid three orders. When it is said that the previous order is res judicata, it is meant that the right claimed has been adjudicated upon and cannot again be raised in contest between the same parties. The orders of this Court as quoted above relegated the petitioner to avail the remedy of revision under Section 32 but without adjudication of any issue. As noted above earlier two orders of this Court dated 8.5.2000 and 27.2.2000 were only interlocutory orders which did not adjudicate any issue and the last order was an order disposing of the writ petition directing for decision of the revision within three months. The judgment of the apex Court in Satyadhyan Goshal's case (supra ) lays down that the principle of res judicata applies between the two parties in the same litigation to this extent that a court, whether the trial court or the higher court having at an earlier stage decided the matter in one way will not allow the parties to reagitate the matter again at subsequent stage in the same proceedings From the order of this Court dated 8.5.2000 it is clear that the contention of the petitioner's counsel was not to the effect that Section 32 of the Act is not an alternative remedy but the contention was that the writ petition be entertained despite the remedy. According to the judgment of Satvadhvhan Ghoshal's case (supra ) the principle of res judicata shall be attracted when a previous decision is final in the strict sense of term. Following was laid down in paragraph 13:-
"(13) There can be little doubt the salutary effect of the rule as laid down in the above cases on the administration of justice. The very fact that in future litigation it will not be open to either of the parties to challenge the correctness of the decision on a matter finally decided in a past litigation makes it important that in the earlier litigation the decision must be final in the strict sense of the term. When a court has decided the matter it is certainly final as regards that court. Should it always be treated as final in later stages of the proceeding in a higher court which had not considered it at all merely on the ground that no appeal lay or no appeal was preferred? As was pointed out by the Privy Council in Moheshur Singh's case, 7 Moo Ind App 283, the effect of the rule that at every stage of the litigation a decision not appealed from must be held to be finally decided even in respect of the superior courts, will put on every litigant against whom an interlocutory order is decided, the burden of running to the higher courts for redress of the grievances, even though it may very well be that though the interlocutory order is against him, the final order will be in his favour and so it may not be necessary for him to go to the appeal court at all. Apart from the inevitable delay in the progress of the litigation that such a rule would cause, the interests of the other party to the litigation would also generally suffer by such repeated recourse to the higher courts in respect of every interlocutory order alleged to have been wrongly made. It is in recognition of the importance of preventing this mischief that the Legislature included in the Code of Civil Procedure from the very beginning a provision that in an appeal from a decree it will be open to a party to challenge the correctness of any interlocutory order which had not been appealed from but which has affected the decision of the case."
19. The case of G. K. Dudhani (supra ) relied by the counsel for the respondent laid down that the principle of res judicata will apply to the proceedings under Article 226 of the Constitution even though Section 11 of the Code of Civil procedure does not in terms apply to proceedings under Article 226 of the Constitution. There cannot be any dispute with the proposition as laid down in the above case. The contention of the counsel for the petitioner is not that the principle of res judicata is not applicable in writ proceedings but the submission is that res judicata is not applicable since there was no final decision. The judgment of the apex Court in 1970 (1) Supreme Court Cases 613 Mathura Prasad Bajoo Jaiswal and Ors. v. Dossibai N.B. Jeeieebhov fully support the contention of the petitioner. Moreover the submissions which have been raised by the counsel for the petitioner in this case to establish that the Board/ Director cannot exercise any adjudicatory function of a market fee dispute, were neither raised nor considered in the earlier orders. It is, however, necessary to clarify that in the present writ petition the petitioner cannot be permitted to raise an issue with regard to orders passed by this Court in earlier writ petition relegating the petitioner to avail the remedy under Section 32 of the Act. The consideration of the submissions of the petitioner has to confine to the issue of jurisdiction of Board/ Director to adjudicate the dispute of market fee only. In this view of the matter the objection of Sri Mandhyan that the issue of jurisdiction raised in this writ petition is barred by principle of res judicata, cannot be accepted.
20. The first limb of submission of the counsel for the petitioner on issue of jurisdiction is that there is no judicial remedy or legal right to remedy of revision or judicial power to adjudicate dispute relating to money matters under the Act. Conferment of any such power on the Board would have been ultra vires to the Constitution. Sri Sunil Gupta counsel for the petitioner has referred to the Legislative history of the Act, the principle of Contemporanea Exposito and lack of legislative intention in support of his argument. Elaborating his submission Sri Gupta submitted that conferment delegation of such power would be in breach of principle of bias since the Board/ Director stand automatically disqualified from adjudication on account of legal, financial, pecuniary and personal interest in the subject matter. The member of the Board Director are not required under the Act to be legally qualified or to have judicial element, training or background and reading Section 32 as providing for conferment of power, would render the provision violative of Article 14 of the Constitution and further reading Section 32 as providing for conferment of all adjudicatory powers on Board/ Director would render, said provision violative of basic feature of Constitution, the separation of power, independent and impartial adjudication, the rule of law and democratic process. Coming to the provisions of the Act as noted above, Section 32 of the Act as originally enacted conferred the power on the State Government and by amending Act No. XIII of 1973 the "State Government" has been substituted by the word "Board" in Section 32. The emphasis of Sri Gupta is that the power of adjudication cannot be conferred on administrative authority. The Board/ Director at best are only an administrative authority. Before proceeding further, it is necessary to examine the nature of power given to the Board under Section 32 of the Act. The judicial function has been traditionally treated to be attribute of the courts. The quasi judicial functions are functions which are not exactly judicial but it has some of trappings of court. The quasi judicial function is one which stands in mid way between the judicial and administrative functions. An authority or body exercises quasi judicial functions when it has statutory authority to discharge the function in question. What distinguishes a judicial decision from administrative decision is that a judicial decision is objectively arrived at by application of fixed standard and the decision of the administrative authority are usually subjective. As soon as function is held quasi judicial the law requires that the rules of natural justice must be observed. An administrative function is called quasi judicial when there is application to adopt the judicial approach and to comply the basic requirement of justice. The apex Court considered the distinction between the administrative and quasi judicial function. In A.I.R. 1950 Supreme Court, 222 Province of Bombay v. Khushbaldas S. Advani following was laid down in paragraphs 5 and 6 by the apex Court.
"(5) A discussion about the distinction between judicial and quasi judicial functions is not useful in this case as the point for determination is whether the order in question is a quasi-judicial order or an administrative or ministerial order. In Regina (John M' Evoy ) v. Dublin Corporation, (1878) 2 L.R.I.R 371 at p. 376. May C. J. In dealing with this point observed as follows :-
"it is established that the writ of certiorari does not lie to remove an order merely ministerial, such as a warrant, but it lies to remove and adjudicate upon the validity of acts judicial. In this connection the term "judicial" does not necessarily mean acts of a judge or legal tribunal sitting for the determination of matters of law, but for the purpose of this question a judicial act seems to be an act done by competent authority, upon consideration of facts and circumstances, and imposing liability or affecting the "rights of Ors.
This definition was approved by Lord Atkinson in Froms United B'everies Co., Ltd. v. Bath Justices (1926), A. C. 586 at p.602, as the best definition o' a judicial act as distinguished from an administrative act.
(6) A distinction between the nature of the two acts has been noticed in a series of decisions. This Irish case is one of the very early decisions. On behalf of the respondent it was contended that as stated by May C.J., whenever there is the determination of a fact which affects the rights of parties, that determination is a quasi-judicial decision and, if so, a writ of certiorari will lie against the body entrusted with the work of making such decision. As against this, it was pointed out that in several English cases emphasis is laid on the fact that the decision should be a judicial decision and the obligation to act judicially is to be found in the Act establishing the body which makes the decision. This point appears to have been brought out clearly in The King v. The Electricity Commissioners, (1924) I.KB. 171: (98 L.J.K.B. 390), where Atkin L.J. (as he then was) laid down the following test:
"Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs."
It was further observed in paragraph 7;
"......... It seems to me that the true position is that which the law under which the authority is making a decision, itself requires a judicial approach, the decision will be quasi-judicial . Prescribed forms of procedure are not necessary to make an inquiry judicial, provided in coming to the decision the well-recognised principles of approach are required to be followed..........."
21. The apex Court in A.I.R. 1961 Supreme Court 1669 Harinagar Sugar Mills Ltd. v. Shvam Sunder Jhunjhunwala and Ors. had considered the power of the Central Government under Section 111 of the Companies Act, 1956. The apex Court held in paragraph 10, that the power of the Central Government is judicial. Following was laid down in paragraph 10 :
"10...........................Therespondents however submit____and they are supported by the Union of India that the authority of the Central Government under Section 111 is nevertheless purely administrative. But that in an appeal under Section 111 Clause (3) there is a lis or dispute between the contesting parties relating to their civil rights, and the Central Government is invested with the power to determine that dispute according to law, i.e. it has to consider an decide the proposal and the objections in the light of the evidence, and not on grounds of policy or expediency. The extent of the power which may be exercised by the Central Government is not delimited by express enactment, but the power is not on that account unrestricted. The power in appeal to order registration of transfers has to be exercised subject to the limitations similar to those imposed upon the exercise of the power of the court in a petition for that relief under SECTION 155: the restrictions which in here the exercise of the power of the court also apply to the exercise of the appellate power by the Central Government, i. e. the Central Government has to decide whether in exercising their power, the directors are acting oppressively, capriciously or corruptly, or in some way mala fide. The decision has manifestly to stand those objective tests, and has not merely to be founded on the subjective satisfaction of the authority deciding the question. The authority cannot proceed to decide the question posed for its determination on grounds of expediency: the statute empowers the Central Government to decide the disputes arising out of the empowers the Central Government to decide the disputes arising out of the claims made by the transferor or transferee which claim is opposed by the company, and by rendering a decision upon the respective contentions, the rights of the contesting parties are directly affected. Pri9ma facie, the exercise of such authority would be judicial. It is immaterial that the statute which confers the power upon the Central Government does not expressly set out the extent of the power: but the every nature of the jurisdiction requires that it is to be exercised subject to limitations which apply to the court under Section 155. The proviso to Sub. Section(8) of SECTION 111 clearly indicate that in circumstances specified therein reasonable compensation may be awarded in lieu of the shares. This compensation which is to be reasonable has to be ascertained by the Central Government, and reasonable compensation cannot be ascertained eccept by the application of some objective standards of what is just having regard to all the circumstances of the case."
22. In A.I.R. 1963 Supreme Court 677 Jaswant Sugar Mills Ltd. Meerut v. Lakshml Chand and Ors. the apex Court had occasion to consider the order passed by the Conciliation Officer under the U.P. Industrial Disputes Act, 1947 and the order was held not to be purely an administrative order. The apex Court in Jaswant Sugar Mills Ltd. (supra) has also observed that the duty to act judicially imposed upon an authority by statute does not necessarily clothe the authority with the juridical power of the State. Even administrative or executive authorities are required to act judicially in dealing with the question affecting the rights of citizens. Following was laid down in paragraph 19:-
"(19) The duty to act judicially imposed upon an authority by statute does not necessarily clothe the authority with the juridical power of the State. Even administrative or executive authorities are often by virtue of their constitution, required to act judicially in dealing with question affecting the rights of citizens. Boards of Revenue, Customs Authorities, Motor Vehicles Authorities, Income Tax and Sales Tax Officers are illustrations prima facie of such administrative authorities, who though under a duty to act judicially, either by the express provisions of the statutes constituting them or by the rules framed thereunder or by the implication either of the statutes or the powers conferred upon them are still not delegates of the judicial power of the State............."
23. The apex Court in A.I.R. 1964 Supreme Court 436 Laxman Purshottam Pimputkar v. The State of Bombay and Ors. has laid down that whenever the authority exercises its revisional power it necessary act in a quasi judicial capacity. The nature of power of the Government under Section 79 of the Bombay Hereditary Offices Act was considered by the apex Court. In paragraph 11 following was observed :-
"When an authority exercises the revisional powers it necessarily acts in a judicial or quasi-judicial capacity."
24. A plain reading of Section 32 shows that the Board has been clothed with the jurisdiction to look into the legality or propriety of any decision or order passed by the Committee and is empowered to modify, a null or reverse the said order as it may deem fit. When the Board has to consider the legality and propriety of any decision or order it is required to objectively consider the order or decision in accordance wan the provision as laid down in the Act and the decision has to be based on objective consideration. The power under Section 32 is in nature of revisional power and as laid down by the apex Court the said power has to be held to be quasi judicial. The object of the power given to the Board is to set right any illegal or improper order passed by the market Committee with the object of faithful and true observance of the statutory provision.
25. Sri Gupta relying on separation of power contended that the Legislature can never be intended to confer any adjudicatory power on administrative authority. Entrustment of adjudicatory power, quasi-judicial function on administrative authority is neither uncommon nor prohibited under any principle of law. Our Constitution is although based on principle of separation of power but there is no rigid separation of power, in various Central Acts as well as Acts of State legislature quasi-judicial and judicial powers have been entrusted to the administrative authorities which are neither court nor tribunal . There is no such preposition that the judicial or quasi judicial power can only be conferred to court or a tribunal. The constitution Bench of the apex Court in A.I.R. 1964 Supreme Court 648 Javantilal Amratlal Shodhan v. F. N. Rana and Ors. laid down following in paragraph 11 :-
"(11)....................................... It cannot however, be assumed that the legislative functions are exclusively performed by the Legislature, executive functions by the executive and judicial functions by the judiciary alone. The Constitution has not made an absolute or rigid division of functions between the three agencies of the State. To the executive, exercise of functions legislative or judicial are often entrusted. For instance power to frame rules, regulations and notifications which are essentially legislative in character is frequently entrusted to the executive. Similarly judicial authority is also entrusted by legislation to the executive authority: Harinagar Sugar Mills Ltd. v. Shyam sunder, (1962) 2 SCR 339: A.I.R. 1961 SC 1669). In the performance of the executive functions, public authorities issue orders which are not far removed from legislation and make decisions affecting the personal and proprietary rights of individuals which are quasi-judicial in character. In addition to these quasi-judicial and quasi legislative functions, the executive has also been empowered by statute to exercise functions which are legislative and judicial in character, and in certain instances, powers are exercised which appear to partake at the same moment of legislative, executive and judicial characteristics. In the complexity of problems which modern government have to face and the plethora of parliamentary business to which it inevitably leads, it becomes necessary that the executive should often exercise powers of subordinate legislation: Halsbury's Laws of England, Vol. 7, Article 409. It is indeed possible to characterise with precision that an agency of the State is executive, legislative or judicial, but it cannot be predicated that a particular function exercised by any individual agency is necessarily of the character which the agency bears."
26. The submission of the petitioner next to be considered is as to whether Section 32 can be treated as a remedy for a trader The contention is that it has never been contemplated as any remedy of aggrieved person under the Act and thus the order passed by the Director is without jurisdiction. A perusal of Section 32 Jo indicate that the said is an enabling provision enabling the Board to satisfy itself to the legality or propriety of the decision of the order passed by the Committee. The question is as to whether when the power is enabling and entrusted to the Board to act on its own whether any person can be asked to invoke the jurisdiction of the authority. As observed above, in the present case the issue is whether the Board had jurisdiction to pass order under Section 32 with regard to dispute of market fee. In the present case the petitioner has already been relegated to secure remedy under Section 32 of the Act by orders of this Court noted above. The apex Court in the case of Everest Apartments Co-operative Housing Society Ltd, Bombay v. State of Maharashtra and Ors.A.R. 1966 Supreme Court 1449 had occasion to consider Section 154 of the Maharastra Co-operative Societies Act, 1960 which provision was almost similar. The said provision enabled the State Government and the Registrar to call for and examine the record or inquire any proceeding and pass appropriate order. Section 154 of the Act as quoted in paragraph 3 of the judgment is extracted below:-
"154. Power of State Government and Registrar to call for proceedings of subordinate officer and to pass orders thereon."
The State Government and the Registrar may call for and examine the record of any inquiry or the proceedings of any other matter of any officer subordinate to them, except those referred to in sub Section(9) of Section 149 for the purpose of satisfying themselves as to the legality or propriety of any decision or order passed and so to the regularity of the proceedings of such officer . If in any case, it appears to the State Government, or the Registrar, that any decision or order proceedings so called for should be modified annulled or reversed, the State Government or the Registrar, as the case may be, may after giving persons affected thereby an opportunity of being heard pass such order thereon as to it or him may seem just. The State Government held that it had no jurisdiction as orders given under Section 23. (3) were final. Two questions arise here: (i) Is the finality under Section 23 (3) subject to Section 154 and (ii) Has a party a right to move the State Government under Section 154
27. A submission was made before the apex Court as to whether the party had right to move to the Government. Answering the said question the apex Court held that party is not prohibited from moving to the Government under Section 154 and the Government had jurisdiction. Following was laid down in paragraph 6:-
"(6) There remains the question whether a party has a right to move Government. The Tribune Trust case is distinguishable and cannot help the submission that Government cannot be moved at all. The words of the two enactments are not materially equal. The Income Tax Act used the words 'suo moto' which do not figure here. It is, of course, true that the words "on an application of a party" which occur in Section 150 of the Act and in similar enactments in other Acts, are also not to be found. But that does not mean that a party is prohibited from moving Government. As Government is not compelled to take action unless it thinks fit, the party who moves Government cannot claim that he has a right of appeal or revision. On the other hand, Government should welcome such applications because they draw the attention of Government to cases in some of which, Government may be interested to intervene. In many statutes, as for example the two major procedural Codes, such language has not only not inhibited the making of applications to the High Court, but has been considered to give a right to obtain intervention, although the mere making of the application has not clothed a party with any rights beyond bringing a matter to the notice of the Court. After this is done, it is for the Court to consider whether to act or not. The extreme position does not obtain here because there is no right to interference in the same way as in a judicial proceeding. Government may act or may not act, the choice is of Government. There is no right to relief as in an appeal or revision under the two Codes. But to say that Government has no jurisdiction at all in the matter is to err, and that is what Government did in this case."
28. The apex Court in A.I.R. 1971 Supreme Court 33 L. Hirday Narain v. Income Tax Officer, Bareilly had occasion to consider Section 35 of the Indian Income Tax Act, 1922. The High Court had held that the decision under Section 35 of the Indian Income Tax Act, 1922 was discretionary and the Income Tax Officer has discretion to exercise or not to exercise the power to rectify. The above view of the High Court was disapproved and it was held by the apex Court that if a statute invests a public officer with authority to do an act in a specified set of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the case Following was observed in paragraph 12, 13 and 14:-
"12. An order under Section 35 of the. Income Tax Act is not appealable. It is true that a petition to revise, the order could be moved before the Commissioner of Income Tax. But Hirday Narain moved a petition in the High Court of Allahabad and the High Court entertained that petition. If the High Court had not entertained his petition, Hirday Narain could have moved the Commissioner in revision, because at the date on which the petition was moved the period prescribed by Section 33-A of the Act had not expired. We are unable to hold that because a revision application cold have been moved for an order correcting the order of the Income Tax officer under Section 35, but was not moved, the High Court would be justified in dismissing as not maintainable the petition, which was entertained and was heard on the merits.
The High Court observed that under Section 35 of the Indian Income Tax Act, 1922, the jurisdiction of the Income Tax Officer is discretionary. If thereby it is intended that the Income Tax Officer has discretion to exercise or not to exercise the power to rectify, that view is in our judgment erroneous. Section 35 enacts that the Commissioner or Appellate Assistant Commissioner or the Income Tax Officer may rectify any mistake apparent from the record. If a statute invests a public Officer with authority to do an act in a specified set of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the case when a party interested and having a right to apply moves in that behalf and circumstances for exercise of authority are shown to exist. Even if the words used in the statute are prima facie enabling, the Courts will readily infer a duty to exercise power which is invested in aid of enforcement of a right-public or private-of a citizen In Julius v. Bishop of Oxford, (1990) 5 Additional Commissioner 214 it was observed by Cairns L.C. at pp. 222-2323 that "the words "it shall be lawful" conferred a faculty of power, and they did not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so". Lord Blackburn observed in the same case at pp. 244-245 that the enabling words give a power which prima facie might be exercised oi not, but if the object for which the power is conferred is for the purpose of effectuating a right there may be a duty cast upon the donee of the power to exercise it for the benefit of whose who have that right when required on their behalf. Lord Penzance and Lord Selborne made similar observations at pp. 229 and 235.
Exercise of power to rectify an error apparent from the record is conferred upon the Income Tax Officer in aid of enforcement of a right. The Income Tax Officer is an officer concerned with assessment and collection of revenue, and the power to rectify the order of assessment conferred upon him is to ensure that injustice to the assessee or to the Revenue may be avoided. It is implicit in the nature of the power and Its entrustment to the authority invested with quasi-judicial functions under the Act, that to do justice it shall be exercised when a mistake apparent from the record is brought to his notice by a person concerned with or interested in the proceeding."
29. From the above pronouncement of the apex Court it is clear that when it is brought to the notice of the Board by any person concerned with or interested, it is obligatory on the Board to exercise the quasi judicial function entrusted under Section 32 of the Act. Thus there can be no lack of jurisdiction in Board/Director while deciding the revision filed by the interested or concerned person.
30. Sri Gupta has fairly submitted that in the present writ petition there is no challenge to Section 32 and exercise of power by the Board m appropriate case but the submission pressed by Sri Gupta is to read down the provision excluding adjudication of dispute pertaining to money matters (market fee) which submission carves out exception to be read in Section 32 with regard to dispute pertaining to market fee which exception is not actually there in the Section The interpretation suggested by the petitioner cannot be accepted except by reading certain words m the Section which are not actually there. Thus the argument of Sri Gupta that Section 32 has to be read as excluding dispute of the market fee cannot be accepted. When the language of Section 32 is wide and does not contain any exception to the jurisdiction of the Board to satisfy itself as to legality or propriety of any decision or order passed by the Committee, the decision of the Committee pertaining to the assessment of market fee cannot be taken out of the purview of Section 32 The submission of the petitioner's counsel that there are no legal or judicial qualification prescribed for Board/Director on whom the duties are entrusted under Section 32 of the Act hence they cannot be treated to be conferred the adjudicatory power has also to be rejected. Entrustmerit of quasi judicial power/power of the revision on administrative body and authority is well accepted principle. The U.P. Krishi Utpadan Mandi Samiti Adhiniyam is a self contained Code and entrustment of quasi judicial function of review of any order passed by the market Committee is a fair provision with object of remedying the illegalities if any, crept in any decision or order. The provision is enacted for the benefit of the persons with whom the market Committee interact and the Board is not created as a tribunal so as to insist upon prescription of legal qualification or training. There is no violation of Article 14 of the Constitution of India also in the present case. The Board Director having exercising quasi judicial power it has to conform to the principle of natural justice. Order passed by the Board/Director has to be non arbitrary and should conform the principle of bias. The provision of Section 32 is neither unconstitutional nor void nor it suffer with any legal lacuna. Sri Gupta has also contended that although the appeal has been provided under Section 25 against an order passed by the market Committee under Clause (i) or clause (ii) of Section 17 whereas no appeal has been provided under an order passed under Section 17 (iii) (b) which suggests that the Legislature intended not providing for any corrective machinery under the Act against the market fee assessment. The mere fact that the appeal has been provided only against the order passed under Section 17 (i) (ii) does not support the contention of the petitioner that under Section 32 also the Board/Director cannot revise any order passed under Section 17 (iii)(b). The power exercised by the appellate authority under Section 25 is also subject to scrutiny under Section 32. Any order passed by any administrative authority exercising quasi judicial power under any statute are also subject to judicial review. The apex Court in A.I.R. 1985 Supreme Court 613 M/s. Babulbhal & Co. and Ors. v. State of Gujarat and Ors. held that Section 54 and Rule 27 of the Bombay Town Planning Rules, 1955 are not ultra vires to the Constitution nd mere absence of corrective machinery by way of appeal would not render the provision invalid. Following was laid down in paragraph 6.
"6. It cannot be disputed that the absence of a provision for a corrective machinery by way of appeal or revision to a superior authority to rectify an adverse order passed by an authority or body on whom the power is conferred may indicate that the power so conferred is unreasonable or arbitrary but it is obvious that providing such corrective machinery is only one of the several ways in which the power could be checked or controlled and' its absence will be one of the factor to be considered along with several others before coming to the conclusion that the power so conferred is unreasonable or arbitrary. In other words mere absence of a corrective machinery by way of appeal or revision by itself would not make the power unreasonable or arbitrary, much less would render the provision invalid. Regard will have to be had to several factors, such as, on whom the power is conferred, whether on a high official or a petty officer, what is the nature of the power____whether the exercise thereof depends upon the subjective satisfaction of the authority or body on whom it is conferred or is it to be exercised objectively by reference to some existing facts or tests, whether or not it is a quasi judicial power requiring that authority or body to observe principles of natural justice and make a speaking order etc.; the last mentioned factor particularly ensures application of mind on the part of the authority or body only to pertinent or germane material on the record excluding the extraneous and irrelevant and also subjects the order of the authority or body to a judicial review under the writ jurisdiction of the Court on grounds of perversity, extraneous influence, mala fides and other blatant infirmities.. Moreover all these factors will have to be considered in the light of the scheme of the enactment and the purpose intended to be achieved by the concerned provision. If on an examination of the scheme of the enactment as also the purpose of the concerned provision it is found that the power to decide or do a particular thing is conferred on a very minor or petty officer, that the exercise thereof by him depends on his subjective satisfaction, that he is expected to exercise the power administratively without any obligation to make a speaking order then, of course, the absence of a correct the machinery will render the provision conferring such absolute and unfettered power invalid. But it is the cumulative effect of all these factors that will render the provision unreasonable or arbitrary and liable to be struck down. In three of the decisions referred to by counsel where the concerned provision was struck down the cumulative effect of several factors that were present in each was taken into consideration by the Court, while in C. R. H. Readymoney's case the provision was held to be valid."
31. From the forgoing discussions it is clear that in enacting Section 32 there is no violation of Article 14 of the Constitution nor providing for adjudicatory power on the Board/Director violates any basic nature of the Constitution! The contention of the petitioner that the Director has no jurisdiction to pass order under Section 32 of the Act, cannot be accepted.
32. The discussion on the question will not complete without referring to three judgments of the apex Court arising out of the provisions of the Uttar Pradesh Krishi Utpadan Mandi Adhiniyam, 1964. The first judgment is Ram Chandra Kailash Kumar and Company and Ors. v. State of Uttar Pradesh and Anr. 1980 Supp. Supreme Court Cases 27. Sri Gupta has placed much reliance on paragraphs 2, 7, and 36, The apex Court in paragraph 2 observed :
"Of course even in our judgment at palaces it would be indicated, and even apart from that, some genuine and tactual disputes may crop up which in (he first instance may be decided by the market committees, preferably a Board constituted by a particular committee for deciding such disputes and then, if necessary, by the High Court."
Further following was observed in paragraph 7 :-
"7. From the rules no provision is necessary to be specifically referred here except to point out that the State Government will be well advised to provide a machinery in the rules for the adjudication of disputes which may be raised by the persons liable to pay the market fee in relation to their factum or quantum of liability. We are not impressed with the argument advanced on behalf of the market committees that no such disputes actually exist or are likely to exist which require any machinery of the market committee for its adjudication. At places hereinafter in this judgment we shall point out the nature of disputes which are likely to arise and which have got to be decided in the first instance by a machinery of the market committee such as a Board or the like. It would be just and proper and also convenient for all concerned if the disputes are thereafter taken to any court of law."
Lastly in paragraph 36 the conclusion was given in following words :-
"36.................If there is any disputed question of fact to be decided by the market committee then it should be decided as quickly as possible leaving the person concerned to agitate the matter in a court of law prefer ably in the High Court, within a short time thereafter. The High Court will proceed to decide the matter in the light of our judgment..................."
33. The submission pressed by the counsel for the petitioner is that in the aforesaid judgment the apex Court did not refer to Section 32 of the Act nor accepted Section 32 as any adjudicatory forum! The observations of the apex Court in the aforesaid judgment were with regard to machinery for deciding the dispute at the market committee level. In paragraph 7 of the judgment the apex Court referred to rules and observed that the State Government will be well advised to provide a machinery under the rules for adjudication of the disputes. The judgment did not lay down that there is no revisional power in the State Government/Board for correcting any error if committed at the level of market committee.
34. The next judgment of the apex Court is 1995 Supp. (3) SCC 433 Krishi Utpadan Mandl Samlti and Ors. v. Shree Mahalaxmi Sugar Works and Ors. The observations made in the judgment by the apex Court after referring to Section 17 of the Act, was that it is open to the dealer to challenge the demand of the market fee in the manner provided under the Act. In subsequent three Judge judgment of the apex Court dated 25.3.1998 passed in Civil Appeal No. 1769-1773 of 1998 Krishi Utpadan Mandi Samiti v. Saraswatl Cane and Ors., it was observed that "We therefore, conceive that it innately be read in the order of this Court that a final assessment has to be made within a period of two months after provisional assessment so that the entire transaction in that respect is over enabling the aggrieved party, if any, to challenge the final assessment in the manner provided under the above or under the general law of the land in appropriate forum". The apex Court further observed that the repair work has been done in the two Judge Bench decision in Shree Mahalaxmi Sugar Works and Ors. case (supra) by the said corrective decision which shall be a governing rule. The observation of the apex Court in Krishi Utpadan Mandi Samiti v. Sarawati Cane's (supra) thus was to the effect that after the final assessment aggrieved party, if any, may challenge the same in the manner provided under the Act or under the general law of the land in appropriate forum.
35. The above observation of the apex Court clearly lays down that both the courses are available for aggrieved person. Thus after final assessment the aggrieved person may invoke jurisdiction under Section 32 of the Act or challenge the assessment under the general law of the land The two Judge judgment in Mahalaxmi Sugar's case (supra) stood clarified by three judge judgment in Sarawati Cane's case (supra) which recognised both the forum for aggrieved person i.e. one under the Act and the other under the general law. The above judgment also does not help the petitioner's contention that the Director has no jurisdiction under Section 32 of the Act to interfere with the decision of the market Committee regarding assessment of market fee. The submission of Sri Gupta that three Judge judgment in Sarawati Cane's case (supra) gave a choice to an aggrieved person to either take recourse of general law of land or the forum under the Act, needs no consideration in this case since the Division Bench by Hs order mentioned above in the writ petition already relegated the petitioner to avail remedy under Section 32 of the Act Sri Gupta has placed reliance on several other judgments of the apex Court in support of the contention that Section 32 of the Act cannot be treated to be an adjudicatory forum Reliance has been placed on AIR 1958 S.C. 86 State of Uttar Pradesh v. Mohammad Noon In the said judgment the apex Court made the following observations in paragraph 9:-
"(9) In the first plane it must be noted that the two observations quoted from the decision order dated this Court on which reliance is placed on behalf of the appellant State were made in a case where the alleged error, irregularity or illegality was committed by a special tribunal which had not merely the trappings of a court but was a court of law presided over by a Judge with legal training and background and bound by rules of evidence and procedure laid down for it and the appeal from its decision lay before the highest and final court of the State__a superior court of record. But orders made on departmental "trial" held by an officer in the department without any legal training and orders, passed by his superior officers in the name department on appeal or in revision which, in the words of Harries, C. J., in Assistant Collector of Customs v. Soorajmull Nagarmull, 56 Cal. WN 453 at p. 467: (AIR 1952 Cal. 656 at p. 663) (D) were only in the nature of an appeal from Caesar to Caesar and which might not be regarded with any great confidence by persons brought before them can hardly be equated with reasonable property with the orders passed by the Special Tribunal and an appeal there from by the Hyderabad High Court with reference to which bodies alone the said observations had been made."
36. The above observation was made by the apex Court while meeting the submission of the appellant that the jurisdiction under Article 226 could not have been used for challenging the departmental trial against police constable. The apex Court observed that the departmental trial has been held by the Officer in the department and an order passed by the superior Officers in the same department of appeal and revision can hardly be equated with reasonable proprietary with the orders passed by the Special Tribunal and an appeal there from to the Hyderabad High Court. The said observations were made repelling the argument of the appellant in which reliance was placed on the earlier judgment of the apex Court in A.I.R (38) 1951 Supreme Court 217 Janardhan Reddy and Ors. v. The State of Hayderabad and Ors. where the apex Court refused to issue writ under Article 32 of the Constitution against the trial by the Special Tribunal and confirmation by the Hyderabad High Court on conviction of appellant. In the said judgment the apex Court had not considered nor laid down that the adjudication by departmental authorities while exercising quasi judicial function, is without jurisdiction. The said case does not help the petitioner.
37. The next case relied by the counsel for the petitioner is A.I.R. 1984 Supreme Court 1572 M/s. J. Mohapatra & Co. and Anr. v. State of Orissa and Anr. Reliance has been placed on paragraph 17 (1) of the judgment in which the apex Court issued guide lines to be adopted by the State Government, governmental authorities and all Committees constituted for the selection of text books as also books for libraries of educational institutions. The apex Court observed that the Committee should not consist merely of Government officials or have a preponderance of Government officials on it, for Government Officials, with few exceptions, have by and large only administrative experience. The said directions and observations were on the facts of that case. The apex Court in the said judgment has set aside the decision on the ground of personal bias. The apex Court noted that m the decision of sub committee persons sitting were those persons whose books were selected. The said judgment does not also support the contention raised by the counsel for the petitioner. Much emphasis has been laid down by Sri Gupta on the observation of the apex Court in the case of R.K. Jain Vs. Union of India and Ors. reported in (1993) 4 Supreme Court Cases 119. The apex Court laid down following in paragraph 67 of the said judgment.
"67. The tribunal set up under Articles 323A and 323B of the Constitution or under an Act of legislature are creatures of the statute and in no case can claim the status as Judges of the High Court or parity or as substitutes. However, the personnel appointed to hold those offices under the State are called upon to discharge judicial or quasi-judicial powers. So they must have judicial approach and also knowledge and expertise in that particular branch of constitutional, administrative and tax laws. The legal input would undeniably be more important and sacrificing the legal input and not giving it sufficient weightage and teeth would definitely impair the efficacy and effectiveness of the judicial adjudication. It is, therefore, necessary that those who adjudicate upon these matters should have legal expertise, judicial experience and modicum of legal training as on many an occasion different and complex questions of law which baffle the minds of even trained, judges in the High Court and Supreme Court would arise for discussion and decision."
38. Relying on the observations made by the apex Court Sri Gupta contended that since the Board/Director who exercises power of revision under Section 32 have no legal expertise judicial experience and modicum of legal training, the adjudication, if any, made by such authority is without jurisdiction. It is to be noted that the apex Court in two case of R.K. Jain v. Union of India and Ors. (supra) was considering the question of qualification for appointment of the President Custom Excise and Gold Control Appellate Tribunal. The observations made by the apex Court confined to the Tribunal created under Articles 323A and 323B of the Constitution of India. The Tribunal contemplated under Articles 323A and 323B are tribunal created by the appropriate legislature for adjudication of a trial and has trappings of court. Legal expertise, judicial experience and modicum of legal training have been insisted for the personal manning the above tribunal which is essential for effective discharge of function by the said Presiding Officer. The principles and requirement of legal training and legal experience contemplated for tribunal under Articles 323A and 323B of the Constitution of India cannot be insisted for an administrative body entrusted statutory quasi judicial power under the Act. line above judgment has no application in the facts of the present case.
39. The counsel for the petitioner has also cited several judgments of the apex Court for the proposition that the principles of natural justice including bias are part of guarantee under Article 14 of the Constitution of India. It is not necessary to refer any such decision since it is well settled that the principles of natural justice flow from Article 14 of the Constitution of India and any administrative body while exercising quasi, judicial functions has to conform to the principles of natural justice.
40. The next limb of argument of the petitioner counsel is that the judicial review and remedy are basic features of the Constitution and fundamental right of the citizen. Relying on 1975 (Supp.) Supreme Court Cases 1 Smt. Indira Nehru Gandhi v. Shrl Ral Naraln and Anr.; (1977) 4 Supreme Court Cases 608 State of Karnataka v. Union of India and Anr.; (2000) 1 Supreme Court Cases 168 Indra Sawhnnev v. Union of India and Ors.; (2001 2 Supreme Court Cases 666 M. G. Badappanavar and Anr. v. State of Karnataka and Ors., it his been submitted that the Parliament or State Legislature cannot maho law and the executive or the Government cannot take any action which violates the basic feature of the institution. The proposition laid down by the apex Court in the above noted judgment is well settled. However, in the present case Section 32 of the Act does not violate any basic feature of the Constitution. Remedy of judicial review is not denied to the petitioner No finality is attached to the order passed under Section 32 of the Act nor it excludes judicial review As laid down by the apex Court in L. Chandra Kumar v. Union of India reported in A I.R. 1997 SC 1127 the jurisdiction conferred upon the High Court under Articles 226 and 227 of the Constitution of India is part of basic structure of our Constitution which jurisdiction cannot be ousted; other courts and tribunal may perform supplemental role. The apex Court laid down that even the Tribunal created under Articles 323A and 323B of the Constitution, cannot exclude the jurisdiction of the High Court. After the decision of the Board /Director under Section 32 of the Act remedy of judicial review is fully available to the petitioner and there is no question of violation of any basic feature or denial of the judicial review to the petitioner. Various judgment of this Court has been referred to by both the parties m support of their contentions regarding non availability/availability of remedy under Section 32 of the Act. The judgment of this Court in writ petition No 25333 of 1998 Hindustan Lever Ltd. (Formerly known as Lipton India Ltd.) and Anr. v. State of Uttar Pradesh and Ors. has been specifically referred by Sri B. D Mandhyan. In the said case there was difference of opinion of two learned Judges who initially heard the matter. One Hon'ble Judge had entertained the writ petition challenging the order of Krishi Utpadan Mandi Samiti without' relegating the petitioner to avail remedy of revision whereas the other Hon'ble Judge dismissed the writ petition on the ground of availability of remedy under Section 32 of the Act. The matter was re erred for opinion of the third Judge who vide its judgment dated 30.11.1999 held that there is alternative remedy available to the petitioner under the Act. From the perusal of the opinion of two Hon'ble Judges which isolated in reference to third Judge it is clear that it was not contended before the Court that there is no remedy under Section 32 of the Act. The contention before the writ Court was that the petitioner is entitled to invoke jurisdiction of this Court under Article 226 of the Constitution of India in view of the observations of the apex Court in its order dated 25 3 1998 in Civil Appeal No. 1769 to 1773 of 1998 and connected appeals. While delivering the opinion by the third learned Judge it was noted that the parties are not in dispute about the fact that alternative remedy by way of revision under Section 32 of the Act is available.
Following observation was made by the Hon'ble R. R. K. Triveci, J.
"From perusal of the points of difference noted earlier and also from the perusal of this opinion expressed by both Hon'ble Judges, it is clear that both the learned Judges were seriously divided in opinion with regard to the maintainability of the writ petition under Article 226 in view of the alternative remedy available to petitioners before the Board under section 32 of the Act. Parties are not in dispute about the fact that the alternative remedy by way of revision under Section 32 of the Act is available.. In order to appropriate the question regarding the maintainability of the writ petition on the ground of alternative remedy available under the Act, it is necessary, to mention the facts giving rise to the present writ petition."
41. It is not necessary to refer the various judgments cited by both the parties regarding availability or non availability of remedy under Section 32 of the Act since the Court had proceeded to examine the contention of the petitioner on merit regarding non existence of jurisdiction of the Director/Board under Section 32 of the Act in earlier part of the judgment. In the judgment of the apex Court in Krishi Utpadan Mandi Samiti v. Sarawati Cane (supra) the apex Court has also made observations that it is open for the aggrieved party to seek remedy provided under the Act or under the general law of the land. The above judgment also does not support the submission of the petitioner that there is no remedy under Section 32 of the Act. Large number of Division Bench judgments have been relied by Sri Mandhayan. To make reference of only some of them are 1996 Allahabad Civil Journal 577 Madan Sugar Works v. Chairman Krishl Utpadan Mandi Samiti Klchcha and Anr.; judgment dated 31.1.1994 passed in writ petition No Nil of 1994 Lalkhan Lal Sanjay Kumar v. Krishi Utpadan Mandi Samiti and the judgment dated 14.8.1997 passed in writ petition No. 7883 of 1991 Lipton India Ltd. v. State of Uttar Pradesh and Ors. In above judgments the Division Bench of this Court held that there is alternative remedy under Section 32 of the Act.
42. Sri Sunil Gupta has placed reliance on the judgment of the Division Bench dated 17.9.1992 in writ petition No. 39866 of 1992 Raj Narayan Aqarwal Cane Crusher and Anr. v. Krishl Utpadan Mandi Samiti and Ors. In the said judgment the Division Bench observed that in the Act there is no provision of appeal as against this orders of the market committee regarding market fee. The said Division Bench judgment was considered by subsequent Division Bench in Lalkhan Lal Sanjav Kumar v. Krishi Utpadan Mandi Samiti (supra) and it was observed that Section 32 of the Act was not considered by the Division Bench in the case of Raj Naravan Aaarwal Cane Crusher and Anr. v. Krishi Utpadan Mandi Samiti and Ors. (supra) hence the same is not binding precedent.
43. The next submission of the petitioner is that the legislature cannot be credited to have intended to provide for conferment /delegation of power and jurisdiction to adjudicate money dispute or dispute relating to market fee on the Board/ Director since such confirmation /delegation would be in breach of principle of bias. The Board/ Director would stood automatically disqualified from adjudication on account of legal, financial and pecuniary as well as personal interest in the subject matter. Elaborating the submission the counsel for the petitioner submitted that the basic principle of rule of bias is that no man shall be judge in his own cause. The Board/ Director itself is in-charge of the whole affairs and is to ensure smooth functioning of the Mandi Samiti under the Act and it is totally and completely identified with the cause of Mandi Samiti and who is expected under the Act to have on its agenda at all time the welfare of Mandi Samiti and more and more empowerment and enrichment of the Mandi Samiti. Referring to the various provisions of the Act it has been submitted that the Act confers enormous power of superintendence and control over the working of the market Committee. Reference has been made to Section 16(1), 23, 23-A, 24, 25-A, 26 (I), 27 to 32 which provisions provide for various powers and measures of control by the Board over the Committee. It is contended that the Board has financial and pecuniary interest which is shown by provisions of Section 16(1), 16(2) (x), 17 (v), 19, 19A, 19B, 26L, 26P, 26PP, and 26PPP. Special emphasis has been given on Section 26P which provides for establishment of the Board fund to which all moneys received by or on behalf of the Board are credited . Section 26 PP provide for establishment of Uttar Pradesh State Marketing Development Fund under which all contributions received by the Board from the various Committees under Section 19 (5) are credited . Section 26PPP provides for establishment of the Central Mandi Fund to be utilized by the Board under which all moneys paid by the Committee to the Board. It is contended that the members of the Board and the Director have also personal interest as they on the administration side supervise and control and guide entire operations and functions of the Committee. It is further contended that under Section 26P payment of salary, leave allowance, gratuity, other allowances and advance and provident fund to the officials and servants employed by the Board is made from the Board Fund and payment of traveling and other allowances is also made to the members of the Board. From the above provision it is contended that the members of the Board including the Director has personal interest in the moneys credited to the Board. Submission is that on account of the aforementioned, kinds of interest i. e. legal, financial and pecuniary as well as personal interest the legislature could never intend to provide remedy or legal right of remedy or adjudicatory power and jurisdiction over any decision of the market committee on the question of market fee it is submitted that the Director while deciding any dispute regarding the market fee shall be disqualified due to above interest and the principle of bias will be attracted making any such order without jurisdiction. Several decisions of the apex Court in support of its contention has been relied by the counsel for the petitioner. As observed above every quasi judicial authority has to conform to the principle of atural justice. Rule against bias is one of the facet of principles of natural justice. It is well settled that no one can be Jrudge in his own cause and justice must not only be done but seen to be done. Bias is preconceived opinion or a pre disposition or pre determination to decide a case or an issue in a particular manner so much so fiat pre disposition does not leave the mind open to conviction. It is a condition of mind which sways judgment and renders the Judge unable to exercise impartiality in a particular case as was held by the apex Court in A.I.R. 1998 Supreme Court 2050 State of West Bengal and Ors. v. Shivananda Pathak and Ors. During his submission Sri Gutpa has clarified that the grounds on which bias is pleaded in this cas3 are not grounds of personal bias against individual officer deciding the case. He submitted that the order passed by the Director is not being challenged on any ground of personal bias of the officer concerned. The thrust of his submission is that in view of the scheme of the Act as noted above, the Director cannot decide the dispute of market fee impartially arid he will be biased on account of clash of interest with a trader since the Board has to act in the manner to strengthen the functioning of the Committee including its financial recourses. The bias pleaded in this case is thus policy bias/ bias which has been referred to as policy bias/official bias. The issue to be considered is as to whether the decision of the director is without jurisdiction on account of any official / policy bias. Before considering the submission of the petitioner any further it is necessary to note the various cases relied by the counsel for the petitioner in; support of his submission. Much reliance has been placed by the counsel for the petitioner on a judgment of House of Lords in (1999) 1 All England Law Report page 577 R. v. Bow Street Metropolitan Stipendiary Magistrate and Ors. In the case before the House of Lords one of the Law Lord was Director and Chairperson of Amnesty International Charity Ltd. whereas the Amnesty International was granted leave to intervene in the proceedings. A petition was made to the House of Lords i-to set aside the order. The House of Lords in its judgment held Lord Hoffmann disqualified to participate in the proceedings sinua the Amnesty International Charity Ltd. which was granted leave to intervene had interest in achieving the prayer and conviction of Senator Pinochet and Lord Hoffmann being Director of Amnesty International Chctrity Ltd. Which was constituent part of Amnesty International Charity Ltd. . It was noted in the judgment that there was no allegation that Lord Hoffmann was m fact bias but due to his association with Amnesty International Charity Ltd. he was disqualified to hear the matter. Principle of b as was pressed in the above judgment on the fact that one of the Law lord was identified by party to litigation who had intervened in the matter and had an interest. In the present case we are faced with fact situation whether the Director, who is an important Officer, an administrative authority under the Act and have been entrusted the duties under the Act shall be disqualified to hear the revision petition alleging that a particular decision of market committee is improper, illegal and deserves to be set aside. The Director is discharging statutory function under the statute to hear the revision. The principle of bias pplied by the House Lords Jn the above case was in facts of that particular case and no such proposition was laid down that even if the statutory authority is entrusted a function under a statute on the principle of bias it is disqualified to hear any dispute in which one of the functionary under the Act is party.
44. The next case relied by the counsel for the petitioner is A I R 1959 Supreme Court 308 Gullapalli Naqeshwara Rao and Ors. v. Andhra Pradesh State Road Transport Corporation and Anr. In the case before the apex court scheme proposed by the Transport undertaking under Section 68C of Motor Vehicle Act, 1939 was approved by the Secretary in-charge. The hearing of the objections filed against the scheme was conducted by the Secretary in-charge of the Transport Department. One of the contentions raised before the apex Court was that the hearing given by the secretary of the Transport Department was vitiated on account of principle of bias since the Secretary in Transport Department was made Judge of his own cause. Accepting the submission the apex Court held that one of the parties to the dispute before the State Government was a Transport Department functioning as an statutory authority under the Act and the head of the Department having received the objections heard the parties, It was a case of hearing given by one of the parties to the dispute. Following was laid down in paragraph 30:--
"(30) With this background we shall proceed to consider the validity of the three alleged deviations of the State Government from the fundamental judicial procedure. In the present case, the officer who received the objections of the parties and heard them, personally or through their representatives, was the Secretary of the Transport Department. Under the 'Madras Government Business Rules and Secretariat Instructions' made by the Governor under Article 166 of the Constitution, the Secretary of a department is its head. One of the parties to the dispute before the State Government was the Transport Department functioning as a statutory authority under the Act. The head of that department received the objections, heard the parties, recorded the entire proceedings and presumably discussed the matter with the Chief Minister before the latter approved the scheme. Though the formal orders were made by the Chief Minister, in effect and substance, the enquiry was conducted and personal hearing was given by one of the fundamental principles of judicial procedure that the person or persons who are are entrusted with the duty of hearing a case judicially should be those who have no personal bias in the matter."
45. The breach of principle of natural justice was upheld on the ground that the person who gave hearing was himself party to the dispute The above judgment does not help the petitioner in this case since the Director who decided the dispute in the present case cannot be said to be party to the dispute before him. It is relevant to rote the second judgment of Gullappalli Naqeshwar Rao and Ors. v. State of Andhra Pradesh and Ors. reported in A.I.R.1959 Supreme Court 1376. After quashing of the scheme by the judgment of the apex Court in the case of Gullapalli Nageshwara Rao and Ors. v. Andhra Pradesh State Road Transport Corporation and Anr. (supra) the matter was again heard by the Chief Minister. Again the argument was pressed that the decision suffers from bias. The argument on the ground of bias was rejected and following was laid down in paragraph 7:-
"(7) In the instant case the relevant provisions of the Act do not sanction any dereliction of the principles of natural justice. Under the Act a statutory authority, called the Transport Undertaking is created and specified statutory functions are conferred on it. The said undertaking prepares a scheme providing for road transport service in relation to an area to be run or operated by the said Undertaking. Any person affected by the scheme is required to file objections before the State Government, and the State Government, after receiving the objections and representations, gives a personal hearing to the objectors as well as to the Undertaking and approves or modified the scheme as the case may be. The provisions of the Act, therefore, do not authorize the Government to initiate the scheme and thereafter constitute itself a judge in its own cause. The entire scheme of the Act visualizes, in case of conflict between the Undertaking and the operators of private buses, that the State Government should sit in judgment and resolve the conflict. The Act, therefore, does not authorize the State Government to act in derogation of the principles of natural justice.
46. The judgment of A.K. Kraipak and Ors. v. Union of India and Ors. reported in 1969 (2) Supreme Court Cases 262 was where the Acting Inspector General of Forest of J.& K. State who was a candidate for selection to the Indian Forest Service was a member of the Selection Board constituted under Regulation 5 for preparing a list of officers of State Forest Service. The Acting Inspector General of Forest, however, did not sit in the Selection Board at the time when his name was considered by the Board but the selection was held to be vitiated on the ground of bias. It was held that the said member of the Board was Judge in his own cause since even if he did not participate in the deliberation of the Committee when his name was considered, the fact that he was a member of the Selection Board must have its own impact on the decision of the Board particularly when he participated in the deliberations when the names of his rivals were considered. The said case was a case of personal bias and does not help the petitioner in the present case. The case of M/s. J. Mohapatra & Co. and Anr. v. State of Orissa and Anr. reported in A.I.R. 1984 Supreme Court, 1572 was again a case of personal bias. The person whose books were selected was member of the assessment sub Committee and the book being selected a member was to receive financial benefit The said judgment has also no application on the facts of the present case.
47. The next case relied by the counsel for the petitioner is (1985) 3 Supreme Court Cases 711 Krishna Bus Service Pvt. Ltd. v. State of Harvana and Ors. In the above case the General Manager of the Haryana Roadways was a notified as Deputy Superintendent of Police under the Motor Vehicle Act, 1939 whose duties was to ensure compliance of provisions of the Act which included prosecution of those who are found guilty. Haryana Roadways was also carrying business of private passenger transport facility. Following was laid down in paragraph 10:-
"10. The powers of stopping the motor vehicles and the powers of inspection, search, seizure and detention exercised under the Act are serious restrictions on the fundamental right of the operators of motor vehicles guaranteed under Article 19(1)(g) of the Constitution. These powers can be considered as reasonable restrictions only when they are exercised property in the interests of the general public. They should be reasonable both from the substantive as well as the procedural standpoint. Such powers should, therefore, be entrusted to a person who is expected to exercise them fairly and without bias. The General Manager of Haryana Roadways who is a rival in business to the private operators of motor vehicles in the State and is intimately connected with the running of motor vehicles cannot be expected to discharge his duties in a fair and reasonable manner. An unobstructed, operation or the motor vehicles by private owners operating along the same route or routes would naturally affect the earnings of the Haryana Roadways. There is, therefore, every likelihood of his being overzealous in discharging his duties of stopping a vehicle and in searching, seizing and detaining motor vehicles belonging to Ors. and at the same time excessively lenient in the case of vehicles belonging to his own department. If in discharging his duties in the case of vehicles belonging to Ors. he fails to give due regard to the interests of the owners thereof he would be violating their fundamental right to carry on business in a reasonable way. If he is too lenient in inspecting the vehicles belonging to his own department, the interests of the owners thereof he would be violating their fundamental right to carry on business in a reasonable way. If he is too lenient in inspecting the vehicles belonging to his own department the interests of the travelling public at large would be in peril. In both the cases there is a conflict between his duty on the one hand and his interest on the other. Moreover, administration must be rooted in confidence and that confidence is destroyed when people begin to think that the officer concerned is biased. This is not a case which is governed by the rule of necessity. As it is, there are many other officers who are entrusted with the powers of the police officers under the Act. There was, therefore, no necessity to appoint of the General Manager of Haryana Roadways also to exercise the said powers. We are, therefore, of the opinion that the appointment of the General Manager, Haryana Roadways who is directly responsible for running its motor vehicles is one of the officers who can exercise the powers of a Deputy Superintendent of Police under the Act imposes an unreasonable restriction on the fundamental right, of the private motor vehicles operators and is therefore violative of Article 19(1)(g) of the Constitution. We however make it clear that the appointment of other officers of the State Government is not bad even though the government is the owner of the vehicles as their connection with the running of the vehicles is too remote. The appointment of the General Manager as an officer who can exercise the powers of the Deputy Superintendent of Police under the Act is also not in the interests of the general public since the large number of motor vehicles owned by the Haryana Roadways could not be subject to inspection and checking by an independent agency. Can we expect a fair investigation by a police officer into riminal case in which is own kith and kin are involved as the accused? The position is not different in this case. The Legislature could not have intended while enacting Section 133-A of the Act that person who was himself directly responsible for the proper running of the motor vehicles according to law could be appointed as the inspecting and investigating officer by the State Government for the purpose of enforcing the Act."
48. In the above case principle of bias was held to be attracted due to the reason that the General Manager of Haryana Roadways was also running the Passenger transport facility as well as other private operators. The entrustment of duties to ensure compliance of the Motor Vehicle Act,1939 on a person whose department itself was engaged in Transport, was held to infringe principles of natural justice. The basis of attracting the principle of bias was found that there was conflict between the duty of the General Manager in the Roadways on the one hand and his interest on the other hand. In the present case the Director while exercising the revisional power under Section 32 has to satisfy himself with regard to legality and propriety of decision or order passed by the market Committee in discharge of quasi judicial function under Section 32 of the Act . None of the interest of the Director shall come in conflict. The case of Krishna Bus Service Pvt. Ltd. (supra) also is not attracted in the facts of the present case.
49. Sri B. D. Mandhyan, learned counsel for the respondents has placed much reliance on the judgment of the apex Court on A.I.R. 1991 Supreme Court 933 Hindustan Petroteum Corporation Ltd. v. Yashwant Gajanan Joshi and Ors. In the above case one Mrs. A. R. Gadre who was working as Special Land Acquisition Officer, was appointed as competent authority by Government of India in Petroleum and Mineral Pipeline (Acquisition of Right of User in Land) Act,. 1962. A writ petition was filed in the High Court for removal of Mrs. A. R. Gadre as competent authority on the ground that she was an employee of the Corporation and biased. High Court allowed the writ petition and a direction was issued that any suitable person be appointed as a competent authority but he shall not be an employee of the Corporation. Hindustan Petroleum Corporation Ltd. filed Special leave petition in the apex Court challenging the judgment of the High Court. The apex Court did not approve the broad opposition laid down by the High Court that merely because a person is an employee of the Corporation he cannot be appointed as a competent authority. Following was laid down in paragraph 13 :-
" 13. A party is entitled to raise the ground of bias against an appointment of an individual officer as competent authority on sufficient material placed on record in this regard, but not merely because such competent authority is an employee of the corporation. It cannot be a ground for any disability or disqualification in appointing such person as competent authority. If we take the matter to its logical conclusion the result would be that no employee of the State Government or the Central Government as the case may be will be appointed as competent authority where petroleum and minerals pipelines are to be laid for a project initiated by the State Government or the Central Government respectively. It would be too broad a proposition to extend the theory of bias to exclude persons only because such person draws the salary from the bodies like public corporation. State government or central Government.
50. The apex Court although upheld the challange of bias out on different ground that Mrs. A. R. Gadre was biased while determining the amount of compensation as she was herself a litigating party against the respondent. Following was observed in paragraph 14 :-
"14......................... Thus taking in view the entire facts and circumstances of the case we are inclined to take the view that the respondent was right in contending that Mrs. A. R. Gadre may have bias while determining the amount of compensation as she herself is a litigating party in this very matter in the High Court against the respondent. An apprehension thus in the mind of the respondent is well founded and on this ground we do not find any justification to interfere with the order of the Bombay High Court holding that the appointment of Mrs. Gadre was not valid. We however, wish to make it clear that we do not agree with the general proposition of the High Court that the officer of the corporation cannot be appointed as a "competent authority" because he may be biased in favour of the Corporation by reason of his employment. In the result we find no force in this appeal and it is accordingly dismissed with no order as to costs."
51. The observations of the apex Court as quoted above that only because a person was employee of the Corporation he or she was not disqualified to determination the compensation, clearly support the case of the respondent.
52. It is relevant to note two more judgments of the apex Court on the subject. A.I.R. 1961 Supreme Court 82 J. Y.
Kondala Rao and Ors. v. Andhra Pradesh State Road Transport Corporation and Ors., The above case arose under the Motor Vehicle Act, 1939: The contention raised before the apex Court in the above case challenging the scheme approved by the Government was that the Government had complete control over the Road Transport Corporation and the Government itself was made a Judge of its own cause hence the decision was vitiated by legal bias. Repelling the said contention following was held by the apex Court in paragraph 14 :-
"(14) Re.(4): By the next contention the learned counsel attacks the validity of the scheme on the ground that the Government is actuated by bias against the private operators of buses in West Godavari District, and indeed had pre-determined the issue. In the petitions it was alleged that the Government had complete control over the Road Transport Corporator that the entire administration and control over such road transport undertaking vested in the Government that the Chief Secretary to the Government of Andhra Pradesh was its chairman and that, therefore, the entire scheme, from its inception to its final approval, was really the act of the Government. On this hypothesis it was contended that the Government itself was made a Judge in its own cause and that therefore, its decision was vitiated by legal bias That apart, it was also pleaded that sub-committee consisting of Minister Secretaries and officers of commerce department departments and presided over by the Minister in charge of Transport, decided in its meeting of January 28, 1960, that under the scheme of nationalization of bus service, the State. Government would take over the bus services in West Godavari Distric and Guntur District before the end on that year and therefore, the Minister in charge of the portfolio of transport he having pre-determined the issue, disqualified himself to decide the dispute between the State Transport Undertaking and the petitioners. The self made questions were raised in Nageswara Rao v. State of Andhra Pradesh 1960 1 SCR 580: (AIR 1959 SC 1376). There as in this case, it was contended that the Chief Minister who was in charge of the portfolio of transport, could not be a judge in his own cause, as he was biased against the private operators. This "Court pointed out the distinction between official bias of an authority which is inherent in a statutory duty imposed on it and personal bias of the said authority in favour of, or against, one of the parties. In dealing with official bias this Court , after considering the relevant English decisions observed at p.587 (of SCR):(at p. 1379 of AIR), thus "These decisions show that in England a statutory invasion of the common law objection on the ground of bias is tolerated by decisions, but the invasion is confined strictly to the limits of the statutory exception. It is not out of place here to notice that in England the Parliament is supreme and therefore a statutory law, however, repugnant to the principles of natural justice, is valid, whereas in India the law made by Parliament or a State Legislature should stand the test of fundamental rights declared in Part III of the Constitution."
Then this Court proceeded to state that the provisions of the Act did not sanction any dereliction of the principles of natural justice , for the Act visualized in case of conflict between the undertaking and the operators of private buses that the State Government should sit in judgment and resolve the conflict."
53. The next judgment relevant to note is A.I.R. 1961 SC 1743 The Registrar, Cooperative Societies v. Dharm Chand and Ors. The decision of Registrar, Cooperative Societies was challenged in the above case on the ground of official bias of the Registrar. It was contended that the Registrar being administrative head of the Department will have bias. The above contention was repelled by the apex Court and the following was held in paragraph 5 :-
"(5) The next contention is that the Registrar being the administrative head of the Department is in control of all the Cooperative Societies in Ajmer, including the Bank. It is said that because of that administrative control which the Registrar exercises through his subordinates in the Department, he is interested to see that the blame is put on the managing committee and that his Department is freed from all blame. In particular our attention has been drawn to Section 17 which enjoins that the Registrar shall audit or cause to be audited by some person authorised by him the accounts of every registered society once at least in every year. It is said that under this provision the Registrar has been appointing Chartered Accountants to audit the accounts of the Bank and that nothing wrong was discovered in the annual audits till the paid manager Nandlal absconded and the defalcations came to light. We fail to appreciate how this general supervision of the Registrar over all Cooperative Societies can be said to amount to a bias in him so as to disentitle him to act as a judge or arbitrator under R. 18. It is not the respondent's case that the Registrar is in any way responsible for the day to day working of the Bank. All that he is concerned with is to see that the accounts of the Bank are audited yearly, and if necessary, to make inspections of the Bank, if so authorised by the Act and the Rules. That, however, does not mean that the Registrar is bound to shield the auditors or his subordinates who might have made the inspection of the Bank and would so conduct the proceedings as to put the blame on the members of the managing committee. Even if some blame attaches to the auditors appointed by the Registrar or to his subordinates who might have inspected the Bank, their fault would be that they failed to detect the embezzlement till the paid manager absconded. That, however, does not mean that the Registrar, was at any time a party to the fraud which resulted in the embezzlement. Even the judicial Commissioner recognises that the Registrar has no personal interest in the matter and that he would but for the bias found by the Judicial Commissioner, have been a most proper person to decide the dispute. Therefore even if we bear in mind the fact that the Registrar is the administrative head of the Department, we see nothing inherent in the situation which shows any official bias whatsoever in him so far as adjudication of this dispute is concerned. We have no reason to suppose that if any of his subordinates or the auditors appointed by him are in any way found to be connected with the fraud he would not put the responsibility where it should lie. We are, therefore of opinion that the Judicial Commissioner was wrong in the view that there was any thing inherent in the situation which made the Registrar a biased person who could not act as a judge or an arbitrator in this case."
54. From the judgments of the apex Court in Hindustan Petrolleum Corporation Ltd.
v. Yashwam Gajanan Joshi and Ors. (supra); J. Y. Kondala Rao and Ors.
v. Andhra Pradesh State Road Transport Corporation and Ors. (supra) and The Registrar, Cooperative Societies v. Dharm Chand and Ors. (supra) as quoted above, it is clear that merely because of administrative authorities having been entrusted statutory duty to perform a quasi judicial function, it shall not be treated to be suffering from any official bias in performance of duty even though it is administrative authority of the Department having supervision and control over the departmental functions
55. In the present case it is true that the Director has supervision and control over the functions of the market Committee and other affairs. Board Funds have also been created in which the contribution received from the market Committees under sub Section (5) of Section 19 of the Act is received and credited. The payment of salary and other travelling allowances Jo the officials and servants employed by the Board is made out of the Board's Fund but all these provisions and other provisions of the Act have been enacted for carrying out the object and purpose of the Act and for smooth functioning of the Committee, Board and other functionaries of the Act. The Director having general supervision and control has also to see that all the authorities including the market committee functions in accordance with the Act. The provisions of the Act contemplate exercise of the power in accordance with the purpose and object of the Act. The power under Section 32 of the Act is quasi judicial power entrusted to the Board/ Director which has to be performed in accordance with the principles as laid down under the Act. When duty is entrusted to public authority it is expected to be performed fairly, honestly and in true obedience of the Act, the contention of the petitioner cannot be accepted that merely because the Director has control, supervision on the Committee and is also interested to improve the functioning of the Committee he will suffer from bias while deciding revision under Section 32 of the Act. It is true that in a particular case when an officer entrusted with quasi judicial function does not decide the matter fairly and in accordance with the norms and shows undue leaning in favour of the department, the decision may be vitiated but that is a matter of individual case and the general ground of bias which are pressed by the petitioner in this case cannot be held to be sufficient for holding that the Director deciding the revision, is disqualified by principle of bias rendering decision, as without jurisdiction. Thus the submission of the petitioner that the decision of the Director is without jurisdiction due to principle of bias, cannot be accepted
56. Now remains the alternative submission of the petitioner on issue of jurisdiction. The submission is that the delegation made by the Board to the Director to exercise jurisdiction under Section 32 of the Act came to an end and cease to be operative with effect from 1.9.1990 in consequence of amendment of Section 33 by the U.P. Act No. X of 1991. It is contended that after the amendment in Section 33 the power can be delegated to the Director only by making regulation. Reliance has also been placed on the judgment of Justice R. R. K. Trivedi dated 1.12.1999 in writ petition No. 5915 of 1999 I.T.C. Ltd v. Director , Mandi Parishad and Anr. For appreciating the above submission it is relevant to note the relevant provision conferring the power to delegate.
57. The U.P. Krishi Utpadan Mandi Adhiniyam, 1964 when initially enacted provided for delegation of powers by the State Government by notification. Section 33 as contained in original enactment was:-
"33. Delegation of powers,____The State Government may, by notification in the Gazette, delegate subject to such conditions and restrictions as may be specified therein, any of its power or the powers of any other authority under this Act, to any officer or authority subordinate to it."
58. The Act was amended by the U.P. Krishi Utpadan Mandi Adhiniyam (Sanshodhan) Act, 1973 by which Section 26-A to 26-X was inserted in the Act. Section 26-A provided for establishment of the Board. The said amendment came into force with effect from 2.9.1973 when it was published in U.P. Gazette Section 26-I provided for delegation of powers by the Board Section 26-I is extracted below:-
"26-1. Delegation of powers, _____Subject to the provisions of this Act, the Board may, by general or special order, delegate, either unconditionally or subject to such conditions as may be specified in the order, to any sub-committee appointed by it or to the Member-Secretary or any other officer of the Board such of its powers and duties under this Act, as it may deem fit."
By the same amendment of 1973 Section 33 was also amended. Section 25 of the Amending Act is extracted below:-
"25. Amendment of Section 33 In Section 33 of the principal Act, for the words "or the powers of any other authority under this Act, to any officer or authority subordinate to it", the words "under this Act, to the Board or to any of its officers" shall be substituted."
59. In the present case exercising the powers under Section 26-I the Board delegated its power vide its decision dated 26.11.1973 delegating the power of hearing revision under Section 32 of the Act tot he Director and the Director in exercise of said delegation has been hearing the revision under Section 32 after the said delegation.
60. By the U.P. Krishi Utpadan Mandi (Amendment) Act, 1991 ( U. P. Act No. 10 of 1999) Section 33 of the principal Act was substituted in following manner:-
"9. Substitution of Section 33,______ For Section 33 of the principal Act the following Sections shall be substituted, namely______ "33. Delegation of powers, _____The Board may, by regulations, delegate subject to such conditions and restrictions and in such manner, as may be specified therein, any of its powers to the Director.
61. There was no amendment made in Section 26-I and the provisions of Section 26-1 remains as it is as amended by the U. P. Krishi Utpadan Mandi Adhiniyam (Sanshodhan) Act, 1973. Section 33 as amended by the U.P. Act No. 10 of 1991 was enforced with effect from 1.9.1990. The question is as to whether after 1.9.1990 the delegation earlier made to the Director in exercise of power under Section 26-I shall come to an end and fresh delegation is necessary by making regulation under Section 33. In the Act, there are two provisions regarding delegation of powers by the Board i.e. 26-1 and Section 33. The delegation made by the Board on 26.11.1973/21.3.1974 under Section 26-I was perfectly valid and was in accordance with and in conformity to other provisions of the Act. No one has contended that there was any infirmity in the said delegation. A submission can very well be made that after Section 33 was substituted with effect from 1.9.1990 for any delegation by Board to the Director framing of regulation may be necessary Both Sections 26-I and 33 has to be given harmonious construction A bare reading of the above two provisions it is clear that Section 33 confines to the delegation of its powers by the Board to the Director Delegation of any of its power by the Board to any sub committee or to Principal Secretary or any other Officer of the Board has to be still carried out in accordance with Section 26-I. There is nothing to read under Section 33 that delegation earlier made by the Board to the Director came to an end and fresh delegation shall be required by the Board to the Director. At best Section 33 has to be followed for any delegation made by the Board after 1st September, 1990. In the present case which is not a case of any fresh delegation after 1st September, 1990 hence Section 33 is not attracted in the present case. Section 33 is prospective in operation and cannot affect the delegation made earlier. Sri Gupta has placed reliance on the judgment in the case of I. T. C. Ltd (Supra) in which judgment the learned Single Judge of this Court held that the delegation made by the Board vide resolution dated 22.11.1973 could not be available after 1991 and the power of revision contemplated under Section 32 of the Act vested with the Board having not been delegated to the Director in terms of Section 33 the Director could not exercise the power of revision. The contention of Sri Mandhyan is that the said judgment cannot be relied by the petitioner in view of the fact that against the said judgment special leave petition has been filed in the apex Court being Special Leave to Appeal (Civil ) No. 3161 of 2000 in which the apex Court has passed the following order on 28th August, 2000 :-
"Leave granted.
Meanwhile we direct the respondent - Company to furnish relevant materials in inspect of transaction w. e. f. 1st August, 1998 to the Mandi Samiti and the Mandi Samiti after considering the materials may pass orders, but the same shall not be implemented without leave of this Court. We may clarify that any direction given by the Director or contained in the judgment of the High Court shall confined to the case of the petitioner only."
62. The submission of Sri Mandhyan is that in view of the order dated 28" August, 2000 the judgment and directions passed in the case of I. T. C. Ltd. ( supra ) is confined to the parties to the said case only. Sri Mandhyan has further placed reliance on a Division Bench judgment in the case of Madan Sugar Works v. Chairman Krishi Utpadan Mandi Samitil Kichcha and Anr. reported in 1996 Allahabad Civil journal 577. The Division Bench while considering the question of delegation made following observations:-
"Till the full machinery provisions are provided by the State Government, the Board will be well advised to delegate its power for adjudication of disputes arising out of levy and collection of fees as provided under Section 26-I or Section 33 of the Adhiniyam."
63. In the above observation only this much has been stated that the power of delegation by the Board can be exercised both under Sections 26-1 and Section 33 of this Act. The Division bench has not adverted to the issue raised in this writ petition. As observed above Section 33 being only prospective applicable for delegations to be made after 1st of October, 1990. The delegation made under Section 26-I by the Board prior to 1 st of October, 1990 did not come to an end merely on account of amendment of Section 33. The alternative submission of the petitioner that the Director has no jurisdiction to pass impugned order due to lack of valid delegation under Section 33 also cannot be accepted.
In view of forgoing discussions none of the submissions raised by the counsel for the petitioner on the lack of jurisdiction of the Director to pass impugned order dated 13.10.2004 exercising revisional jurisdiction, can be accepted.
ON MERITS
64. Before considering the respective submissions on merits and issues which have arisen in this writ petition, it is necessary to note the respective case of both the parties. The registered office of the petitioner's Company is at Chakala Andheri (East), Mumbai and it carries its own manufacturing at its factory at Andheri, Mumbai. The petitioner has its branch offices and storage godowns at various places in India including at Hyderabad and other places in Andhra Pradesh and a godown at Gukjhar, Ghaziabad. Petitioner's office at Ghaziabad is located at the premises of International Tobacco Co. Ltd. Guldhar, Ghaziabad. The International Tobacco Co. Ltd. Has its registered office at Kermani Building, Mumbai and manufacturing factory at Guldhar, Ghaziabad. In June, 1969 the "INTCO" became a wholly owned subsidiary of the petitioner. The "INTCO" has office but no godown at Hyderabad or at any other place in Andhra Pradesh, since 1969 the said subsidiary Company under job agreement entered with the petitioner from time to time has been manufacturing at its Ghaziabad factory cigarettes of various brands owned by the petitioner by converting the raw materials including Tobacco supplied by the petitioner under the Machine rolled cigarettes in accordance with the specification and quality standards supplied by the petitioner. "INTCO" has an office at Guntur and Hyderabad ( Andhra Pradesh ) where it buys certain limited stock and raw tobacco from the petitioner for keeping the same as security with the Bankers for the purpose of availing Bank Credit. The said stock are bought while they remain in storage in the godown of the petitioner and they did not need to move and the said tobacco is repurchased by the petitioner in Hyderabad itself at periodical intervals as and when the tobacco is needed for manufacturing purposes. The sale/purchase between the petitioner and "INTCO" stands completed at Hyderabad upon appropriation of the goods by the concerned party at Hyderabad itself. The sale and purchase of raw tobacco at Hyderabad is duly reflected in the assessment order of the relevant year of the Commercial Tax Officer, Hyderabad. The sale of tobacco by GPI and INTCO" at Hyderabad is reflected in sale note LP-4 prepared by the revisionist for sale and delivery of each consignment of Tobacco. In the sale note both seller and buyer are located at Hyderabad and sale is by name, grade, variety and weight of the tobacco which prove that the transaction is completed at Hyderabad. Debit.note on "INTCO" against the aforesaid sale through LP-4 are raised by the petitioner at Mumbai office. These debit notes depicts the total quantity of tobacco sold to "INTCO" during the month at Hyderabad. To the valuation of he tobacco mentioned in these debit notes transportation charges are added which represent the cost of the transportation charges from the place of purchase by the petitioner upto the place of storage at Hyderabad. The above sale and purchase are duly entered and confirmed by the audited Balance sheet of the "INTCO" as well as of the petitioner of the relevant years.
65. The second category of transaction is stock transfer by the petitioner of tobacco from Hyderabad and other places in the state of Andhra Pradesh to its office at Ghaziabad. Each stock transfer made by the petitioner is duly entered in LP-5 receipts which LP-5 ( tobacco transfer note ) shows transfer from various godowns from petitioner's Company or from various godowns taken by the petitioner's Company to the petitioner's office at Ghaziabad. LP-5 records the number of truck, transfer code, variety code and description and weight of tobacco transfer. The monthly debit note is issued by the Mumbai office of the petitioner with regard to cost of tobacco transferred to the petitioner's office in some of the debit notes the mention of "INTCO" has also been made which is nothing but mention of address of the petitioner's office at Ghaziabad which is situated in "INTCO" premises. The goods which are transferred by the petitioner's office at Hyderabad or its various godowns are insured by the petitioner for which premium is paid by the petitioner. Relevant insurance policies were brought on record. Freight charges are also paid by the petitioner. The petitioner's office after receiving tobacco by stock transfer, transfers it to "INTCO" for manufacturing of the Machine rolled cigarettes. Records of the petitioner with regard to tobacco receipts and transfer to "INTCO" for manufacture are maintained by the petitioner's office. The "INTCO" manufactures the cigarettes after following the requirements to be completed by the manufacturer under the Central Excise and Salt Act. 1944. The excise duty is also paid by the "INTCO" by statutory Chalans which is reimbursed by the petitioner from Citybank account. The relevant statement of Bank account of the petitioner from the Citybank and the account of "INTCO" maintained at Punjab National Bank from which excise duty was paid were brought on record which show the reimbursement of entire excise duty by the petitioner. In the carton of cigarettes manufactured by the "INTCO", the name of "INTCO" as manufacturer and the name of the petitioner as brand name and distributor is shown. The raw tobacco transferred to "INTCO" for manufacturing is duly insured by the petitioner for which premium is paid by the petitioner and property in goods always remains with the petitioner. Under the job work agreement dated 30.11.193 the "INTCO" was entitled to receive manufacturing charges from the petitioner. Manufacturing charges has been paid by the petitioner from time to time to the "INTCO" It is duly shown in the Balance sheet and other statutory records of the petitioner as well as of the "INTCO". In the annual report the payment of manufacturing charges to subsidiary Company "INTCO" was of Rs 1622.82 lacks (1998-1999) which tally with the income of the "INTCO" by way of manufacturing fee from holding Company. For manufacturing charges paid by the GPI for every month there is also Income Tax TDS certificates on the record. Similarly in the annual report 1997-1998 the manufacturing charges paid by the petitioner to subsidiary Company is of Rs.1575.19 lacks which tally with the income of the "INTCO" by way of manufacturing charges. In sales tax assessment order under the U.P. Trade Tax Act, 1948 of the petitioner manufacture of cigarettes by "INTCO" on job work is accepted for which raw tobacco is supplied by the petitioner There is no evidence led by the market Committee to establish the transaction of sale in the market area. The presumption in the explanation to Section 17 is not applicable in petitioner's case since it was not a case of taking out or proposed to be taking out any agricultural produce out of the market area. The Mandi Samiti had earlier issued notices to the petitioner in the year 1983-1990 but on submission of reply the Mandi Samiti was fully satisfied that no transaction of sale take place in the market area and there is no liability to pay the market fee. The proceedings were dropped and no action was taken and it was only in the year 1999 i.e. after 21 years, of the acceptance of the petitioner's case again notices were issued.
66. The case of the market Committee on the other hand is that there is a presumption of sale under Section 17 Explanation and transaction of sale does take place in the market area. The definition of sale for levy of tax under Article 366(29A) of the Constitution of India is also applicable for levy of market fee. From the debit notes issued by the Mumbai office of the petitioner it is proved that the sale is made in favour of "INTCO" at Ghaziabad. Various debit notes with regard to LP-4 issued for sale of tobacco to "INTCO" at Hyderabad has been relied. In LP-5 stock transfer has been shown but the value of the tobacco has also been shown. In LP-5 only transfer note is relied and the printed sale note has been scored out. The case of the petitioner cannot be accepted that by LP-5 only stock from godowns from GPI has been transferred; since other Companies are also shown to be sending tobacco. The job agreement between the parties and the "INTCO" is completely one sided and it has been arranged in a manner so that market fee be not paid. The case of the petitioner that the "INTCO" does only job work, cannot be accepted since it makes payment of excise duty also. The definition of sale under the Sales of Goods Act, 1930 is relevant only for transfer under Section 54 of the Transfer of Property Act. From the documents LP-4 and LP-5 filed by the petitioner it is clear that the tobacco is brought in the Mandi area, Ghaziabad and GPI has sold tobacco to "INTCO" hence there is liability of the petitioner to pay market fee. It was further stated that in the manufacture of cigarettes manufacturing seal is of "INTCO". The petitioner itself has taken licence under the Act and their case that it was taken under pressure, cannot be accepted since they have not filed any objection to any higher authority. The "INTCO" has been selling tobacco dust as owner and "INTCO" has been paying Mandi fee on sale of tobacco dust which also shows that the "INTCO" is the owner of tobacco. Further, it is also proved that the "INTCO" is not the subsidiary Company of the petitioner but is an independent Company.
67. After noticing the case of both the parties it is also relevant to note the findings and reasons given by the market Committee and the Director for upholding the liability of payment of market fee on the petitioner. The market Committee has passed its order dated 30.12.2000 basically on following reasons and findings:-
The explanation under Section 17 (iii-b) of the Act is applicable and the sale in question will be treated as deemed sale under the said explanation. The extended definition of sale as contained under Article 366(29A) of the Constitution of India shall also be applicable for levying of market fee. From the documents LP-4 and LP-5 it is proved that tobacco has been brought in the market area Ghaziabad, and has been soled by the GPI to "INTCO" hence the petitioner is liable to pay the market fee. On manufactured cigarettes "INTCO" puts its seal and also pays excise duty. Petitioner has failed to prove that the sale has taken place in Hyderabad to "INTCO" whereas the sale took place at Ghaziabad. The "INTCO" is paying the market fee on tobacco dust which shows that "INTCO" is owner of tobacco. It is not proved that "INTCO" is a subsidiary Company of the petitioner but is an independent Company.
68. The Director while hearing the revision filed by the petitioner against the order of Mandi Samiti did not confine himself to examine the propriety and the legality of the order passed by the Mandi Samiti but proceeded to frame several new issues and passed detailed order discussing ten issues including their sub issues. The Director in his order himself has observed that on several issues neither of the parties had raised any submission but he is proceeding to consider the issues on his own. Following are the main reasons and findings given by the Director for upholding the levy of the market fee:-
(i)The Market Committee is entitled to ,levy market fee treating the tobacco entrusted to the "INTCO" as deemed sale under sub clause (d) and (f) of Article 366(29A) of the Constitution of India
(ii)From the purchase of tobacco by the petitioner from the auction plate form in Hyderabad, sale of part of such tobacco in Hyderabad and after some time re-purchase and transfer of the said tobacco to Ghaziabad in pursuance of the agreement dated 9.12.1993 the transaction of sale is made out in market area of Ghaziabad.
(iii)According to the definition of sale under Section 2 (h) of the Central Excise Act. 1944 applied to the definition of sale under the Act liability to pay market fee is made out on the petitioner.
(iv)The transaction of giving raw tobacco to "INTCO" and in its place taking cigarettes from the "INTCO" is barter which can be treated as sale. Transfer of sale from GPI Hyderabad to GPI Ghaziabad for giving it to "INTCO" for manufacture of cigarettes is deemed sale establishing the liability to pay the market fee and development cess
(v)On sale of cigarettes containing tobacco the liability under Section 17 (iii-b) to the explanation is made out.
69. Sri Sunil Gupta raised several submissions challenging the orders passed by the market Committee as well as by the Director impugned in the writ petition. Briefly noted the submissions are; the authorities below have not considered the direct and relevant evidence which goes to show that "INTCO" is subsidiary Company of GPI and has been manufacturing the cigarettes for GPI under job work agreement for several years, long standing correspondence and conduct of the Mandi Samiti itself proved that the Mandi Samiti has accepted for all the period that "INTCO" has been manufacturing the cigarettes under the job work agreement. Company's records and the annual reports under the Companies Act, 1956 clarity proves that the "INTCO" is a subsidiary Company of the petitioner and further the subsidiary Company has been manufacturing cigarettes on the basis of the job work agreement. Annual reports of GPI along with the detailed audit report confirms the relationship of the subsidiary Company. The payment of manufacturing charges by the petitioner to subsidiary Company for both the years is duty reflected in the annual reports. Manufacturing of cigarettes under the job work agreement is also proved by the assessment orders for the relevant years of the petitioner under the U P Trade Tax Act, 1948. Records under the Income Tax Act, 1961 specifically TDS certificate in Form 16A for the relevant years showing the deduction of income tax from the manufacturing charges paid by the petitioner to "INTCO" proves me manufacturing by job work. The records under the Central Excise Act, 1944 also proves manufacture of cigarettes by "INTCO" as job work. The concept of sale under the Act has to be the concept of sale as contained under the Sales of Goods Act, 1930 Mandi Samiti cannot import any other concept of sale for judging the liability of payment of market fee under the Act. The definition under the Central Excise & Salt Act 1944 nor any other Act is applicable The explanation under Section 17 (iii) (b) of the Act is not attracted in the present case and no presumption of sale can be drawn. The Mandi Samiti had not filed any material to establish any sals within the market area of Ghaziabad. Both the authorities committed error in relying on extended definition of "sale" under Article 366(29A) of the Constitution of India, which is applicable only with regard to levy of tax. The definition of 'sale' in Article 366(29-A) of the Constitution of India cannot be applied for levy of the market fee. Tax and market fee are two different concept All relevant materials pertaining to stock transfer by the petitioner to its Ghaziabad office of tobacco and sale of tobacco in Ghaziabad to "INTCO" has been produced by the petitioner including the relevant ledger, account books, stock register which overwhelmingly proved that no sale takes place in market area of Ghaziabad. The petitioner has also filed detailed affidavit before the Director dated 2.7.2002 and 13. 12. 2002 of Sri R. P. Gupta explaining in details all the relevant documents produced which conclusively prove that no sale takes placed in the market area of Ghaziabad The Mandi Samiti and the Director has recorded rerverse finding ignoring the relevant material evidence on record in holding that sale takes place in the market area. There is no occasion to consider the liability to pay market fee on cigarettes, the Mandi Samiti has neither claimed nor charged market fee on cigarettes. The director while hearing the revision cannot take up the issue of charging of market fee on Cigarettes which was not even claimed by the assessing authority. The findings of the Director holding the transaction as barter is misconceived and misplaced. No barter takes place In the job work agreement manufacturer is under duty to follow and conform to all the responsibilities as laid down in the Central Excise. Act. 1944 including paying the excise duty. The excise duty paid by the "INTCO" is reimbursed by the petitioner which is proved from the day to day bank accounts of the petitioner and the "INTCO" maintained at the Citybank and the Punjab National Bank respectively. The statements of the bank accounts were filed and are on record which proves the reimbursement of the entire excise duty by the petitioner.
70. The sale of tobacco dust is made by the "INTCO" as agent of the petitioner and the amount received from, the sale of the tobacco dust is credited to the petitioner after deducting the market fee.
71. Sri B. D. Mandhyan learned Senior Advocate appearing for the respondents refuting the submissions of counsel for the petitioner, contended that the market fee has rightly been levied against the petitioner by the market Committee. While construing the sate under the Act the definition of 'sale' as contained under Article 366(29A) of the Constitution is fully attracted. The word 'sale' has not been defined under the Act hence the definition of 'sale1 as contained in other statutes can be relied by the Mandi Samiti. No error has been committed by the authorities in applying the definition of 'sale' as contained under the Central Excise & Salt Act. 1944. It cannot be denied that no activity takes place at Ghaziabad! The petitioner has not brought credible evidence regarding purchase of Tobacco by the petitioner at auction plate forms at Hyderabad. The raw tobacco is received at Ghaziabad by "INTCO" hence for ail purposes sale takes place at Ghaziabad. No account books kept at Hyderabad has been filed to prove that tobacco is purchased at Hyderabad by the petitioner. In the debit note issued by the Mumbai office of the petitioner the words "tobacco sold" has been clearly mentioned oned which prove that the tobacco was sold to "INTCO" at Ghaziabad. Sri Mandhyan has referred to debit notes issued from the petitioner's Mumbai office to the INTCO" Ghaziabad being debit note 460 to debit note 561 which mentions the costs of packed re-dried tobacco sola It is not clear from the debit note and LP5 that who placed the order and where from the money was sent to Hyderabad for purchase of tobacco. The tobacco being costly item there must be policy decision by the Board of Directors. Excise documents show payment of excise duty by the "INTCO", if it was job work then the excise duty ought to have been paid by the petitioner. The sale of tobacco being in the special knowledge of the petitioner burden was on the petitioner to establish that no sale took place in the market area Ghaziabad. Presumption can rightly be drawn under Section 114(g) of the Evidence Act against the petitioner. Relying on the decision of the apex Court in AIR 1991 Supreme Court 454 Indore Municipal Corporation v. Caltex (India) Ltd. It is contended that the burden of proof that the goods were not sold, shall lie on the Company who has special knowledge. The provisions of the Central Sales Tax Act, 1956 are also relevant for finding out the situs of sale. There is no stock transfer by LP5 and it is sale ,to "INTCO" and the petitioner being selling trader is liable to pay market fee. The revisional authority has rightly proceeded to examine the liability of payment of market fee on cigarettes since cigarettes after manufacture is transferred out of the market area raising a presumption of sale under Explanation to Section 17. Cigarettes is nothing but processed tobacco rapped in paper, In support of his submission Sri Mandhyan has placed reliance on the judgment of the apex Court in AIR 1976 Supreme Court 1016 Balabhagas Hulaschand v. State of Orissa; (2003) (53) ALR 478 M/s. Kesarwani Zarda Bhandar v. State of U.P. and Ors.; (1997) 7 Supreme Court Cases 190 State of Maharahtra v. Embee Corporationk, Bombay; the judgment of Lucknow Bench of this Court in writ Petition No. 2323 (M/S) of 1997 Heinz India (P) Ltd. & Ors. v. State of UP. and Ors. ; the judgment of the learned Single Judge of this Court in M/s. Shyam Sunder Baldeo Raj v. Director Rajya Krishi Utpadan Mandi Parishad UP. and Ors. reported in 1995 All L J 978 and (2004) 3 Supreme Court Cases 1 Ashok Leyiand Ltd. v. State of Tamil Nadu and Anr.. The market Committee and the Director after examining the materials on record has recorded finding that the sale has taken place in the market area. No interference is called for by this Court under Article 226 with such findings of fact
72. From the case set up by both the parties and submissions raised by counsel for both the parties following questions arises for consideration in this writ petition:-
1. What is concept of sale under the Act? Whether there is any concept of deemed sale?
2. Whether the explanation to Section 17 of the Act is applicable in the present case and has been rightly relied by the Mandi Samiti for levying the market fee on the petitioner?
3. Whether the definition of "Tax on the sale or purchase of goods" under Article 366(29A) of the the Constitution of India is applicable for levy of market fee on sale of agricultural produce under the Act
4. Whether by the evidence on record the sale of raw tobacco in market area Ghaziabad was made out ?
5. Whether the director rightly proceeded to examine the question of levy of market fee fee on machine rolled cigarettes?
6. Whether the definition of sale under Central Excise & Salt Act, 1944 can be relied for levying market fee under the Act?
73. Before examining the concept of sale in the Act it is necessary to note the definition of sale as contained in Section 2 (r) of the Act which is as follows :-
1. (r) "sale" includes barter or deposit of goods by way of pledge or as security for the amount received as advance;
73. Section 17(iii) (b) provides that market fee shall be payable on transaction of sale of specified agricultural produce in the market area. From the definition of sale as given in Section 2 (r) of the Act it is clear that the concept of sale itself has not been defined except making the sale inclusive of barter or deposit of goods by way of pledge or of security. The sale in the present case is sale of moveable goods. The meaning of sale under the Sales of Goods Act, 1930 has to be looked into to find out the nature of sale contemplated in the Act. Relevant provision for knowing the concept of sale can be found out from Sections 4, 5 and 6 of the Sales of Goods Act, 1930 which is as follows:-
" 4. Sale and agreement to sell,_______(1) A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price. There may be a contract of sale between one part-owner and Anr..
1. A contract of sale may be absolute or condition.
2. Where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale, but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled, the contact is called an agreement to sell.
3. An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred.
2. Contract of sale how (1) a contract of sale is made by an offer to buy or sell goods for a price 2nd the acceptance of such offer. The contract may provide for the immediate delivery of the goods or immediate payment of the price or both, or for the delivery or payment by installments, or that the delivery or payment or both shall be postponed.
(2) Subject to the provisions of any law for the time being in force, a contract of sale may be made in writing or by word of mouth, or partly in writing and partly by word of mouth or may be implied from the conduct of the parties.
1. Existing or future goods,____ (1) The goods which form the subject of a contract of sale may be o=either existing goods, owned or possossed by the seller, or future goods.
1. There may be a contract for the sale of goods the acquisition of which by the seller depends upon a contingency which may or may not happen
2. Where by a contract of sale the seller purports to effect a p;reseni sale of future goods, the contract operat5es as an agreement to sell the good...
Other relevant provisions required to be noted are Sections 18, 19 and 20 of the Sale of Goods Act. Section 18 provides that the goods must be ascertained. Section 19 provides that the property passes when intended to pass. Section 20 deals with deliverable state. The apex Court had occasion to consider the ingredients of sale in various decisions. The definition of sale as given under the Sales of Goods Act, 1930 came for consideration by the apex Court in A.I.R.1958 S.C. 560 The State of Madras v. M/s. Gannon Dunkerlev and Co., (Madras) Ltd. Which case was relied upon and reiterated by the apex Court in AIR 1965 Supreme Court 1396 Government of Andhra Pradesh v. Guntur Tobaccos Ltd, In paragraph 19 of the judgment the apex Court in Government of Andhra Pradesh (supra) held :-
"(19) It is true that in business transactions the work contracts are frequently not recorded in writing setting out all the covenants and conditions thereof, and the terms and incidents of the contract have to be gathered from the evidence and attendant circumstances. The question in each case is one about the true agreement between the parties and the terms of the agreement must be deduced from a review of all the attendant circumstances. But one fundamental fact has to be borne in mind that from the mere passing of title to goods either as integral part of or independent of goods it cannot be interfered that the goods were agreed to be sold, and the price was liable to sales tax. In 1959 SCR 379: (AIR 1958 SC 560) this Court held that the expression " sale of goods" was at the time when the Government of India Act, 1935, was enacted, a term of well-recognised legal import in the general law relating to sale of goods and in the legislative practice relating to that topic, and must be interpreted in Entry 48 in List II in Schedule VII of the Act as having the same meaning as in the Sale of Goods Act, 1930. Therefore, under a statute enacted in exercise of power under the Government of India Act, 1935, and in pursuance of the power reserved in Entry 48, in List II, Sch. VII of the Government of India Act, 1935 a taxable sale is one which amounts to sale of goods under the Sale of Goods Act, 1930. Venkatarama Aiyar, J., delivering the judgment of this Court in Gannon Dunkerny's case, 1959 SCR 379: (AIR 1958 SC 560), observed at p. 397 (of SCR): (at p. 567 of AIR):
"Thus, according to the law both of the England and of India, in order to constitute a sale it is necessary that there should be an agreement between the parties for the purpose of transferring title to goods which of course presupposes capacity to contract, that it must be supported by money consideration, and that as a result of the transaction property must actually pass in the goods. Unless all these elements are present, them can be no sale. Thus, if merely title to the goods passes but not as a result of any contract between the parties, express or implied, there is no sale. So also if the consideration for the transfer was not money but other valuable consideration, it may then be exchange or barter but not a sale. And if under the contract of sale, title to the goods has not passed, then there is ah agreement to sell and not a completed sale."
It was again observed at p. (4) (of SCR): (at p. 573 of AIR):
"If the words "sale of goods' have to be interpreted in their legal sense, that sense can only be hat it has in the law relating to sale of goods.:
* * * both under the common law and the statute law relating to sale of goods in England and in India, to constitute a transaction of sale there should be an agreement, express or implied, relating to goods to be completed by passing of title in those goods. It is of the essance of this concept that both the agreement and the sale should relate to the same subject-matter. Where the goods delivered under the contract are not the goods contracted for, the purchaser has got a right to reject them, or to accept them and claim damage for breach of warranty. Under the law, therefore, there cannot be an agreement relating to one kino of property and a sale its regards another. We are according of opinion that on the true interpretation of. the expression "sale of goods" there must be an agreement between the parties for the sale of the very goods in which eventually property passes."
The authority of State Legislatures, under the Constitution to enact legislation in respect of taxes on sale of goods, remains the same as it was under the Government of India Act."
In the above case in paragraph 28 the-apex Court also laid down that whether the contract involves taxable sale of goods must be decided on the facts and circumstances of the case and the burden in such a case lies upon the Taxing authority to show that there was a taxable sale. Another judgment of the apex Court which is relevant on the issue is the judgment of A.I.R. 1997 Supreme Court 2502 Agricultural Market Committee v. Shalimar Chemical Works Ltd. In the above case the Supreme Court was considering the concept of sale in Andhra Pradesh (Agricultural Produce and Livestock) Markets Act, 1966. There was similar case of presumption under the Andhra Pradesh Act as contained in Explanation to Section 17 of the Act. The apex Court held in the above judgment that the legal Action was limited to the moving of the commodity from within the market area to a place- out side the market area. Paragraph 27 is quoted below :-
"27. Applying the above principles to the instant case, it will be seen that the market fee can be levied under the Act only on the sales and purchase of notified agricultural produce within the notified area. Explanation 1 to Section 12 creates a legal fiction and provides that if any notified agricultural produce is taken out of a notified market area, it shall be presumed to have been purchased or sold within such area. The presumption is a rebuttable presumption and can be shown to be not correct. The policy in enacting this provision is only to cover such transactions of sale and purchase for which direct evidence may not be available. Since a notified agricultural produce can be sold only within the notified market area, and, that too, by a trader having a licence issued to him by the Committee, it is obvious that if such commodity is moved out of the notified area, it would mean either that it has been sold or purchased. Otherwise, there would be no occasion to move such commodity out of the notified market area. The legal fiction was thus limited to the "moving" of the commodity from within the market area to a place out side the market area."
The apex Court in the said judgment applied the provisions of sales of Goods Act, 1930 for ascertaining as to whether the sale took place within the market area or not. The apex Court held that the relevant factor for determination whether the sale took place is the intention of the parties. Following was laid down in paragraph 42 :-
42. In the instant case, the goods which were the subject matter of sale were ascertained goods. They were also in a deliverable state. On the order being placed by the respondent the seller in the State of Kerala, loaded the goods on the lorry, and dispatched the same to Hyderabad. It is at this stage that the conduct of the parties becomes extremely relevant. It was one of the terms of the contract between the parties that the seller would not be liable for any future loss of goods and that the goods were being dispatched at the risk of the respondent. The respondent had also obtained insurance of the goods and . paid the policy premium. He, therefore, intended the goods to be treated as his own so that if there was any loss of goods in transit, he could validly claim the insurance money. The weighment of the goods at Hyderabad or the collection of documents from the banker payment of price through the bank at Hyderabad were immaterial, inasmuch as the property in the goods had already passed at Kerala and it was not dependants upon the payment of price or the delivery of goods to the respondent."
The Division Bench of this Court ( of which I was also a member) in (2001 ) 3 UPLBEC 2130 Metal Craft (M/s.) v. Rahya Krishi Utpadan Mandi Parishad, Lucknow and Ors. considering the question of sale under Section 17 (iii) (b) of the Act including the explanation applied the provision of Sales of Goods Act for determining the sale under the Act. The Division Bench held in the said judgment that the market fee can be levied only when there is complete transaction of sale or concluded sale.
From the above discussion the three ingredients of sale must be present for completion of the sale for holding that the sale has taken place in the market area which are: (i) there should be an agreement between the parties showing the intention for transfer of title to the goods; (ii) There should be value or consideration paid; and (iii) there should be actual passing of the property into goods as a result of transaction.
Thus the above three ingredients must be shown to be present in holding the transaction, the concept to sale as contained in the Sales of Goods Act, 1930 has to be applied while determining as to whether the sale has taken place under the Act or not. The market committee has erroneously held the definition of sale under the Sale of Goods Act is relevant only for sale under Section 54 of the Transfer of Property Act . The wide observation made by the Director in the impugned order that there is no definition of sale under the Act hence the definition of sale as contained under the different Acts can be applied for finding out sale under the Act cannot be approved. The sale of agricultural produce being the sale of movable property, the definition of sale under the Sales of Goods Act, has to be looked into. The definition of sale or concept of sale under other Acts e.g sale as contained in Central Excise & Salt Act. 1944 is not relevant for finding out sale under the Act. The presumption as available under Explanation to Section 17 (iii) (b) of the Act is also not attracted in the present case. Present is not a case of raw tobacco being taken out of market area but it is a case of raw tobacco coming in the market area from another State i.e. Andhra Pradesh The apex Court in the case of Agricultural Market Committee v. Shalimar Chemical Works Ltd. (supra) held while examining the similar provision in the Andhra Pradesh Act that the explanation is not attracted when goods come into the market area. The explanation has been added under Section 17 by the amendment Act U.P. Act No. XII of 1987 for raising presumption of sale when agricultural produce is taken out or proposed to be taken out from the market area on behalf of the licence trader The presumption of sale has to be confined to the condition as laid down in the Explanation and in no other manner. The market Committee. has erroneously observed that by virtue of F xpianation to Section 17 there is concept of deemed sale under the Act. The presumption which is raised in the Explanation is presumption of actual sale and there is no concept of any deemed sale. Under the Act the market fee is leviable on a transaction of sale held in the market area. Thus under the provisions of the Act no concept of deemed sale is found out nor in the present case any presumption can be raised under Explanation to Section 17 of the sale of raw tobacco. At this very juncture it is relevant to consider the question as to whether the definition of sale in the Central Excise & Salt Act. 1944 can be relied for holding that there is sale of raw tobacco in the market area. The Central Excise & Salt Act. 1944 is an Act to consolidate the law relating to Central duty of excise on goods manufactured or produced. The definition of sale under Section 2(h) of the Central Excise & Salt Act. 1944 is as follows :-
"2(h) "sale" and "purchase" with their grammatical variations and cognate expressions, mean any transfer of the possession of goods by one person to another in the ordinary course of trade or business for cash or deferred payment or other valuable consideration."
The definition of sale under the Central Excise & Salt Act." 1944 is for different purpose and object. The said definition cannot be applied for determining the sale under the Act. The Director has erroneously applied the definition of sale in the Central Excise & Salt Act. 1944 for holding that there is sale of raw tobacco in the market area since the raw tobacco received by the Stock transfer by the petitioner at Ghaziabad is transferred to "INTCO" for manufacture of cigarettes. The Director relying on the definition of sale under the Central Excise & Salt Act 1944 proceeded to hold that there is transfer of possession of raw tobacco to the "INTCO" , the sale shall be deemed to have taken place on the strength of the definition under the Central Excise & Salt Act. 1944 The above view of the Director is wholly erroneous and contrary to the concept of sale which is applicable under the Act.
The decisions cited by Sri Mandhayan are now to be considered. The judgment of the apex Court in Balabhagas Hulaschand v. State of Orissa (supra) was a case in which the apex Court had considered the definition of 'sale' under the Central Sales Tax Act ,1956. The definition of 'sale' as contained under the Central Sales Tax Act, 1956 is a definition for the purposes of levy of the Central Sales Tax and the said definition cannot be applied while determining the sale under the market area under the Act. Another judgment of the apex Court in State of Maharahtra v. Embee Corporation, Bombay (supra) was also a judgment considering sale in course of import under Section 5(2) of the Central Sales Tax Act. Both the above judgments does not help the petitioner for establishing the sale under the Act. The judgment in Heinz India (P) Ltd. & rs. v. State of U.P. and Ors. (supra) was a casein which goods were transferred outside the market area. It was claimed in that case that goods are transferred out of the market area Aligarh to outside State of Uttar Pradesh which was not accepted. The aforesaid case was a case of taking out the goods out side the market area hence the explanation to Section 17 was rightly applied. From the materials on record presumption was raised of "sale" which could not be rebutted by the trader. The present is the case in which the goods came to the market area from the State of Andhra Pradesh. There is no applicability of presumption of sale as envisaged under Explanation to Section 17 of the Act It was held by this Court in the said judgment that the petitioners who were under obligation to rebut the presumption failed in rebutting the said presumption. The said judgment also does not help the petitioner in the facts of the present case. Another judgment of this Court relied by the counsel for the petitioner is Shyam Sunder Baldeo Raj v. Director. Ralva Krlshi Utpadan Mandi Parishad U.P. and Ors. (supra). In the said case also agricultural produce were taken out of the market area Kashipur therefore the burden to rebut the presumption that despite movement of the goods out of the market area no transaction of sale had taken place, was on the petitioner and the petitioner failed to rebut the presumption. The learned Judge of this Court upheld the order 6f the Director which found the sale proved in the market area since the petitioner failed to rebut the presumption as envisaged in Explanation to Section 17 of the Act. The judgment of the apex Court in Ashok Leyland Ltd. v. State of Tamil Nadu and Anr. (supra) was also a case under the Central Sales Tax Act, 1956. The apex Court considered various provisions of the Central Sales Tax Act, 1956 and in that context the question of stock transfer in inter-state trade was gone into. The judgment of the apex Court was on interpretation of various provisions of the Central Sales Tax Act and confines to the definition of sale under the Central Sales Tax Act. As observed above, the concept of sale under the Central Sales Tax Act, 1956 cannot be imported under the concept of the sale under the Act. The said judgment is also distinguishable and does not help the petitioner.
The above discussion disposes of the questions No.1 ,2 and 6, The next question requires for consideration is as to whether the definition of tax on sale and purchase of the goods under Article 366(29A) of the Constitution of India is applicable for levy of market fee under the Act. The market fee is levied in pursuance of the powers of the State Legislature on the topic market and fairs in entry 28 of List 2. VII Schedule of the Constitution. The market fee is not levied under any law by the State Legislature in pursuance of entry 54 List 2 , VII Schedule i. e. " tax on the sale or purchase of goods . Sri B. D. Mandhayan, learned counsel for the respondents has supported the impugned orders applying Article 366(29A) for imposing the market fee.
Reliance has also been placed on Article 366(28) of the Constitution of India. The submission is that under clause (28 ) "taxation" include the imposition of any tax or impost , whether general or local or special, and "tax" shall be construed accordingly. Sri Mandhayan contended that the market fee can be covered by the word "impost". The above submission of Sri Mandhyan cannot be accepted for more than one reasons. The taxation under Article 366(28) of the Constitution of India includes tax and impost and not fee. Word "impost" used under Article 366(28) has to be construed ejusdem generis. The word "impost" used has to be a kind of tax and not market fee. The market fee is levied by the legislature under entry 66 read With entry 28 of list 2. The Director has placed reliance on the judgment of the apex Court in 2000 (6) S.C.C. 12 20th Century Finance Corporation Limited and Anr. v. State of Maharashtra and a judgment of the learned Single Judge of this Court dated 20'" August, 2004 in the matter of Heinz India (P) Ltd. and Anr. v. State of U.P. and Ors. on which judgment Sri Mandhyan has also placed reliance. The reliance of the Director on the judgment of 20th Century Finance Corporation Limited and Anr. v. State of Maharashtra (supra) is misplaced since the said judgment was a judgment relating to tax on transfer of right to use goods and the said judgment was not a judgment laying down any proposition that for levy of market fee also the extended definition of sale as contained under Article 333(29A) can be applied. The second judgment of Heinz India (P) Ltd. and Anr. v. State of U.P. and Ors. (supra) has been relied by Sri Mandhyan also. The judgment of this Court in Heinz India (P) Ltd. and Anr. v. State of U.P. and Ors. (supra) was a case construing the levy of market fee under the Act The learned Single Judge has also placed reliance on the judgment of the apex Court in 20th Century Finance Corporation Limited and Anr. v. State of Maharashtra (supra). The relevant observation of the learned Single Judge while construing the applicability of Article 366(29-A) is quoted below :-
" It may be observed that the extended definition of sale is applicable for the purpose of any kind of tax including the fee. By virtue of its majority view in "20 Century Finance Corporation Limited and Anr. v. State of Maharashtra {2000, 6 SCCC 12", the Supreme Court held that the situs of sale is relevant for the purposes of payment all kinds of taxes. The same analogy would be attracted in the case for payment of Mandi fee. The Hon'ble Court while dealing with the phrase, "deemed sale" under Article 366(29-A) observed in para 27 of the judgment that if the goods are available irrespective of the fact where the goods are located and written contract' is entered into between the parties, the taxable event on such a deemed sale would be the execution of the contract for the transfer of right to use goods. But in case of an oral or implied transfer of the right to use goods it may be effected by the delivery of the goods.
In the case in hand, it is proved from the material on record "hat the manufacturing unit at Manjoorgerhi, Aligarh would be attracted irrespective of the fact as to whether the petitioner intended to transport the consignments to their C & F agents for factual sale at the 'destination stations or in other States. Article 366(29-A) postulated in clear and unambiguous terms that tax on the sale or purchase of goods includes a tax on such transfer, delivery or supply of any goods as it will be a deemed sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made. The same analogy of deemed sale would be attracted to the cases in hand. Therefore, the contention that the provisions of the aforesaid Article will have no relevant bearing has no merit, hence rejected."
Before considering the said judgment it is relevant 10 note that the question of applicability of Article 366(29-A) of the Constitution of India on levy of market fee has earlier been considered by the learned Single Judge of this Court in 1997 (2) UP LBEC 953 Glaxo India Ltd. And Anr. v. State of Uttar Pradesh and Ors. In the said judgment following was laid down in paragraph 22 by the learned Single Judge of this Court which is quoted below :-
"22. The Director has relied on Article 366(29-A) of the Constitution, but I fail to understand what relevance does that provision have with the case. Article 366(29-A) deals with taxes on sale and purchase of goods. Mandi fee is not a tax, and hence Article 366(29-A) has no relevance to the present case."
The learned Single Judge deciding the case of Heinz India (P) Ltd. and Anr.
v. State of U.P. and Ors. ((supra)) has not even referred to the earlier judgment of the learned Single Judge in which it was held that Article 366(29-A) deals with tax of sale and purchase of goods and has no relevance on market fee under the Act. Thus the judgment in Heinz India (P) Ltd. and Anr. v. State of U.P. and Ors. ((supra)) was given by the learned Single Judge Ignoring the binding precedent. Moreover, from the observation of the learned Single Judge in the case of Heinz India (P) Ltd. and Anr. v. State of U.P. and Ors. ((supra)) as quoted above, it is clear that Article 366(29-A) has been applied only by one observation that the same analogy of deemed sale would be attracted to the case of market fee. The above observation of the learned Single Judge in Heinz India (P) Ltd. and Anr. v. State of U.P. and Ors. (supra) cannot be held to be a precedent and can at best only be construed as an observation made by the learned Single Judge. It is also pointed out by the counsel for the petitioner that against the judgment of Heinz India (P) Ltd. and Anr. v. State of U.P. and Ors. (supra) special leave petition to appeal has been filed in which the apex Court has issued notice on 11th October, 2004. Thus the argument of the learned counsel for the respondents that Article 366(29-A) can be applied for levying market fee, cannot be accepted. At this juncture it is also necessary to note that the concept of "tax" and u fee" are entirely different concepts and the legislation on both subjects are covered under different entities. The difference between "tax" and "fee" was pointed out in celebrated judgment, of the apex Court in AIR 1954 Supreme Court 282 The Commissioner, Hindu Religious Endowments. Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shlrur Mutt. The said judgment has been quoted with approval by the apex Court in several cases; namely, 1971 (2) Supreme Court Cases 236 lndian Mica Micanite Industries v. The State of Bihar and Ors. and (1986) 1 Supreme Court Cases 722 Om Prakash Aqrawal and Ors. v. Giri Raj Kiashori and Ors. and 2004 in Supreme Court Cases 225 State of U.P. and Ors. v. Vam Organic Chemicals Ltd. And Ors. In the case of Om Prakash Aqrawal and Ors. v. Giri Raj Kiashori and Ors. (supra) the apex Court was considering the provisions of Haryana Rural Development Fund Act, 1983 which was also an Act enacted under the p m, denting, with "market and fairs" It was held that the levy of cess under Section 3 of the above Act was of tax and not foe Following was laid down in paragraph 7 :-
"7. The fact that the Act is claimed to have been enacted pursuant to the Directive Principles of State Policy contained in Article 46, 47, 48 and 48A of the Constitution and that the dealers are permitted by the Act to pass on the cess to the purchase of the agricultural produce from him have no bearing en the question involved here. In these appeals we are relieved of the necessity of finding out whether the cess in question is a tax leviable by the State, since such a claim is not made before us. The only question which remains to be considered is whether the cess levied under the Act is of the nature of a fee levied or leviable on a dealer in a market area. The distinction between a tax and a fee is recognised by the Constitution which while empowering Parliament and the State legislature to levy taxes under the relevant entries in List I and List II respectively also refers to the power of the appropriate legislature to levy fee in respect of matters specified in the said list and also in the Concurrent List and tests have been laid down by this Court for determining the true character of a levy. In determining a levy as a fee the true test must be whether its primary and essential purpose is to render specific service to a specified area or class it being of no consequence that the State may ultimately and indirectly be benefited by it. As observed in M.P.v. Sundararamier and Co. v. State of Andhra Pradesh (AIR 1958 subsidiary Company 468). In List II of the Seventh Schedule to the Constitution Entries 1 to 44 form one group mentioning the subjects on which the States can legislate and Entries 45 to 63 in that list form another group dealing with taxes that may be levied by States. Entry 64 relers to offences against laws with respect to any of the matters in List II and Entry 65 refers to jurisdiction of courts. Entry 66 empowers the State to levy fee in respect of any of the matters in Lit II. Unless the cess in question can be brought under any of the entries from 45 to 63 it cannot be levied as a tax at all. It is no doubt true that under Entry 66 of List II it is permissible for the State to levy any amount by way of fees in respect of any of the matters in that list.; The relevant entry in the present case is Entry 28 dealing with Markets and Fairs' but the amount so levied sh9oudo be truly a fee and not a tax with the mask of a fee. The primary meaning of taxation is raising money for purposes of government by means of contributions from individual persons, a compulsory exaction of money by a public authority for public purposes enforceable at law and not a payment for services rendered. "A tax is a compulsory exaction of money by public authority for public purposes enforceable by law and is not a payment for services rendered" is a famous statement of Latham, CJ. In Matthews v. Chicory Marketing Board (60 CLR 263, 276), The above statement truly brings cut the essential characteristics of a tax. This statement has been quoted with approval by our Court in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954 SCR 1005). Muherjea, J. who delivered the opinion of the Constitution Bench in the above case observed at page 1040-41 thus:
" A neat definition of what 'tax' means has been given by Latham, CJ. Of the High Court of Australia in Matthews v. Chicory Marketing Board (60 CLR 263, 276). "A tax", according to the learned Chief Justice, " is a compulsory exaction of money by public authority for public purposes enforceable by law and is not payment for service rendered". This definition brings out, int our opinion, the essential characteristics ot a tax as distinguished from other forms of imposition which, in a general sense, are included within it. It is said that the essence of taxation is compulsion, that is to say, it is imposed under statutory power without the taxpayer's consent and the payment is enforced by law. The second characteristic of tax is that it is an imposition made for public purpose without reference to any special benefit to be enforced 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 tr confer any special benefit upon any particular individual, there is , as it is said, no element of quid pro quo between the taxpayer and the public authority. Another feature of taxation is that as it is a part of the common burden, the quantum of imposition upon the taxpayer depends generally upon his capacity to pay."
From the above discussion it is clear that the levy of market fee cannot be treated to be levy of any kind of tax hence the definition of 'tax' on sale and purchase of goods cannot be applied. Both the Director and Mandi Samiti have erroneously applied the extended definition of sale under Article 366(29-A) of the Constitution of India for coming to the conclusion of sale which is clearly erroneous and against the provisions of the Act. The constitutional provision of Article 366(29-A) has been wrongly applied.
In view of the above discussion the decision of both the Market Committee and the Director levying the market fee after holding sale falls on the ground. Both market Committee and the Director proceeded to determine the question of sale while applying wrong concept of sale under the Act and applying' the definition of extended sale for purposes of tax as contained under Article 366(29-A). However, since both the authorities have also proceeded to record finding (,¦) the basis of various documents filed by the petitioners themselves namely LP4, LP5 and various credit notes, it is necessary also to look into the materials brought by the petitioner on record to find out as to whether from those materials any reasonable person can arrive at a conclusion that sale has taken place in the market area. It is relevant to note that the matter has been decided by the Director twice and the Mandi Samiti has also decided the issue twice under the orders of this Court. The Mandi Samiti on both the occasions i.e. by the order dated 18.2.2000 and 30.12.2000 has upheld the levy of market fee. The Director under the orders of this Court dated 8.5.2000 by the order dated 3.7.2000 has set aside the order of the Mandi Samiti. This Court vide its order dated 8.5.2000 relegated the petitioner to avail remedy of revision under Section 32 on which the Director passed an order on 15.7.2000 setting aside the order of the Mandi Samiti and remitted for reconsideration. Mandi Samiti reconsidered and again upheld the levy vide order dated 30.12.2000 against which order petitioner was again asked to file revision which was decided by the order dated 13.10.2004.
In view of above facts it is not appropriate to again ask the Mandi Samiti or the Director to determine the question of sale on available materials and ends of justice be served in considering the said question by this Court in this writ petition.
From the pleadings of the parties it is clear that two kind of transactions have been claimed by the writ petitioner. First transaction is a transaction of sale of raw tobacco by the petitioner to "INTCO" at Hyderabad. Petitioner has its office and godowns in Hyderabad and other places in Andhra Pradesh. "INTCO" has also an office at Hyderabad but not godown. The petitioner purchased raw tobacco from various auction platforms in the State of Andhra Pradesh. It has been argued by Sri Mandhyan that no document showing purchase of petitioner from various auction platforms has been filed. It has been contended that the petitioner has not shown documents of purchase of tobacco from auction platforms. The said observations were also made by the Director in the order. Before the Director the petitioner has filed a large number of documents including seven bags full of original documents, details of documents which were filed before the Director itself has been noted in the order of the Director dated 13.10.2004 which also contained the documents namely , Tobacco brand invoice and account books of Guntur office and tobacco purchase ledger. There was sufficient materials to establish purchase of tobacco by the petitioner from auction platforms. Moreover, the tobacco has been brought in the market area claiming to be stock transfer by the petitioner. It is the owner alone who can affect the movement of goods and in the event petitioner is not the owner of the raw tobacco no benefit can be claimed by the Mandi Samiti. The question before the Mandi Samiti was as to whether sale takes place within the market area of Ghaziabad. It has not even been suggested by the Mandi Samiti who else other than the petitioner is owner of raw tobacco. It is admitted case of the petitioner that the raw tobacco is sold by the petitioner to "INTCO" in Hyderabad and the said purchase is made by the "INTCO" of the raw tobacco to hypothicate the stock of tobacco for obtaining bank credit facility from the Union Bank of India The hypothecation document executed by the "INTCO" in favour of the Union Bank of India showing stock of tobacco in godown at Hyderabad are on record, under the said hypothecation credit facility is given by the Bank. The "INTCO" in the said hypothecation document has claimed its ownership of the tobacco laying in godowns at Hyderabad. All these sale by the petitioner to "INTCO" is recorded in series of documents titled LP4. The document LP4 which is also on the record shows that the sale is of the tobacco of particular grade, quantity, quality from the petitioner's office at Hyderabad to "INTCO" at Hyderabad. The monthly credit note issued by the Mumbai office of the petitioner by LP4 sale is also on the record which shows issue of credit note to the "INTCO". The credit note has been issued by the Account Officer of the Mumbai office of the petitioner which is accounting document. The mere fact that the credit note has been issued addressing the "INTCO" at Ghaziabad cannot mean that the tobacco is sold at Ghaziabad. Credit note has to be read alongwith LP4; document which is basic document of sale. Further the sale of tobacco by the petitioner is shown in the audited Balance Sheet and annual report of the petitioner which are statutory Company documents. The quantity of tobacco sold to "INTCO" tallies from the quantity given in the annual report. The assessment order passed by the Commercial Tax officer, Hyderabad has also been filed by the petitioner on record which accepts the sale of tobacco likewise in the annual report of the subsidiary Company and the balance sheet the quantity purchased by the "INTCO" at Hyderabad is also shown and tallies. Sri B. D. Mandhyan, learned counsel for the respondents has placed reliance on the credit note issued by the Mumbai office of the petitioner showing that the said credit note shows the cost of tobacco sold to "INTCO". Copy of the credit notes have bee.. tiled as Annexure C. A. I. to the counter affidavit. The credit notes which have been filed by the Mandi Samiti. Annexure-1 to the counter affidavit are credit notes issued in reference to LP4 i.e. documents of sale made by the petitioner at Hyderabad and neither the credit note nor LP4 documents lead to conclusion that the sale has taken place at Ghaziabad.
Coming to the other set of documents i.e. LP5 which is stock transfer receipt. The said document shows that it is stock transfer from the petitioner's office from Hyderabad to the petitioner's office at Ghaziabad. All the LP5 documents are also accompanied by Transporters Bill which is payable by the petitioner's office at Ghaziabad which includes the freight charges. The valuation of the tobacco transferred by LP5 has been given for purpose of insurance , octroi etc. The insurance of the goods transferred by LP5 is by the petitioner who is owner of the goods. The tobacco which is transferred by LP5 is received by the petitioner's office which is in the premises of "INTCO" and thereafter transferred to "INTCO". LP5 documents for both the years 1997-98 and 1998-99 are contained in Vol 1-A (as submitted before the Director from pages 49 to 95). LP5 which is tobacco transfer note shows the name of the sender as well as the destination. The name of the sender is M/s. Godfrey Philips India Limited, Hyderabad from godown No. B-56. The name of receiver as shown in LP5 is M/s. Godfrey Philips India Limited, Meerut Road, Ghaziabad. Each LP5 document shows the date of sending and date of receiving, the details of variety, grade, description. The debit notes have been issued with regard to the tobacco transferred to the "INTCO", Ghaziabad with regard to each month during the relevant year. The debit note issued by the Mumbai office of the petitioner is referable to LP5 i.e. tobacco transfer note. The debit notes are issued by the account Officer from the head Office Mumbai which is basically an accounting document. One of debit notes 404 dated 30.4.1997 has been much relied by the respondents. The debit note No. 404 mentionod, "the cost of tobacco sold to "INTCO". Ghaziabad during the month of April, 1997 as per annexure attached". The counsel for the petitioner has referred to the debit notes issued in the year 1997-98 and submitted that in all the debit notes the words mentioned are cost of tobacco transferred and it was due to inadvertent mistake that in one of the note 404 the word cost of tobacco sold was mentioned. An affidavit explaining the mistake has been filed before the Director by a responsible officer. Nothing much turns only on debit note No. 404. In large number of debit notes which were issued in reference to LP5 document the word cost of tobacco transferred has been mentioned and mention of the words "
cost of tobacco sold is only in one debit note, which is not decisive. Further more the debit note No. 404 itself mention "being cost of tobacco sold to "INTCO" Ghaziabad during the month of April, 1997, as per annexure attached". The annexure attached to the said debit note which is cost of tobacco during April, 1997 mentions "transfers to "INTCO". The copy of the debit note number 404 as well as the annexure is on the record at page 15 and 16 in the Compilation title "sample document". The case of the respondents that in some LP5 document name of other Companies have been mentioned hence it is not proved that the tobacco was sent by the petitioner's Hyderabad office also cannot be accepted. In LP5 document in place of sender's name. Go-down code, has been mentioned. In most of LP5 documents the name of M/s. Godfrey Philips India Limited, Hyderabad with go-down code B56 is mentioned in some of the LP5 different godown code have been mentioned. It has been pleaded by the petitioner that other go downs mentioned in LP5 documents were also go downs taken by the petitioner and the mention of some of other go-downs was not relevant. The submission that in some of LP5 documents the word sale note has been scored off, is also immaterial. In some of LP5 documents the word tobacco transfer note/sale note has been mentioned under which words 'sale note' has been scored because the document describes itself as tobacco transfer note. Nothing turns out on scoring of sale note from the said document. As observed above, the LP5 documents were accompanied by the transporters Bill, documents which proves that the goods were owned by the petitioner and were transferred to petitioner's office at Ghaziabad in the premises of "INTCO". From the materials brought on record by the petitioner no reasonable person could have formed an opinion that, there is sale in the market area of Ghaziabad in favour of "INTCO" of raw tobacco. The "INTCO" manufactures cigarettes under the job agreement. The observation of the authorities that the job agreement is one sided and has been prepared by both the parties for not paying the market fee, is without any basis. The job agreement, a copy of which is on the record, cannot be said to be one sided. "INTCO" is free to manufacture the cigarettes of any other Company. "INTCO" is entitled to charge Rs.29/- as manufacturing charges for each one thousand cigarettes. Manufacturing charges has been paid by the petitioner to "INTCO" which are shown in the annual report and the Balance sheet of the petitioner as well as the "INTCO" . The TDS certificates in form 16-A are also on the record to show the deduction of income tax by the petitioner towards payment of manufacturing charges. In the assessment order of the "INTCO" under the U.P. Trade Tax Act, 1948 the manufacturing charges have been shown to be the income of the "INTCO". Both the authorities committed error in ignoring the job agreement.
The most important fact to be taken note of in the present case is that there is neither any material nor any pleading to show that at any point of time any payment of consideration has been made by the "INTCO" to the petitioner. One of the ingredients for sale is payment of consideration. There is no material or pleadings to establish that the "INTCO" ever paid any consideration to the petitioner. Without there being any consideration paid by the "INTCO" to the petitioner, the sale cannot be accepted in the market area of Ghaziabad. It is to be noted hat market fee has been levied on the value of tobacco which has been brought in the market area under documents LP5 i.e. Stock transfers.
One more relevant fact to be noticed is that in the present case no material of any kind was filed by the Mandi Samiti to establish sale of raw tobacco in the market area. The Mandi Samiti has tried to use the documents filed by the petitioner which documents were fully and clearly explained in the affidavits dated 2.7.2002 and 13.7.2002 of Sri R. P. Gupta filed before the Director. Without adverting to the averments of the affidavit which clearly explained the documents it was not open to the Mandi Samiti to jump on the conclusion of sale.
From the materials brought on the record by the petitioner ingredients of sale as contained in the Sales of Goods Act are not made out. As noted above, presumption under Explanation to Section 17 is not attracted in the present case. No material was brought by the Mandi Samiti to prove any sale and the documents, ledgers and statutory records maintained under the Companies Act, 1956 filed by the petitioner, did prove that no sale of tobacco was made by the petitioner to "INTCO" and the "INTCO" has been manufacturing the cigarettes under job agreement and has been realising the manufacturing charges.
The payment of excise duty by the "INTCO" was in accordance with the requirement of the Central Excise & Salt Act. 1944 and under the job agreement the said excise duty was fully reimbursed by the petitioner. The bank statements of the City Bank and Punjab National Bank brought on the record, clearly proves the day to day reimbursement of the excise duty by the petitioner. The payment of excise duty by the petitioner , the insurance policy of the raw tobacco taken by the petitioner while the goods are given to the "INTCO" for manufacture of cigarettes proves that the ownership remains with the petitioner throughout. The observations of the Director that on the manufacture of cigarettes there is seal of manufacturer , hence the "INTCO" is owner of the cigarettes , is erroneous under the Excise Act, the manufacture seal has to be there on every processed goods apart from the name of the manufacturer, the name of brand Company and distributor i.e. the petitioner is also there as pleaded by the petitioner.
From the above discussion it is fully established that there was no material to come to the conclusion that any sale of raw tobacco took place in market area in favour of the "INTCO" by the petitioner. There being no sale within the market area of Ghaziabad, market fee under Section on 17 (iii) (b) cannot be levied and both the authorities committed error in levying the market fee.
There remains only one question to be considered i.e. as to whether the Director was justified in proceeding to examine the liability of payment of market fee on manufacture of cigarettes. Suffice it to say that Mandi Samiti has not levied any market fee on manufacture of cigarettes. The market fee was levied on the stock of raw tobacco brought in the market area by LP5 as stock transfer. The Director was exercising his jurisdiction under Section 32 which was only with regard to examining the legality and propriety of the order of the Mandi Samiti. Under this jurisdiction it was not open for the Director to proceed to examine the question of levying the market fee on manufactured cigarettes which was not even claimed by the market Committee. The exercise by the Director was wholly uncalled for. There was no occasion to examine the question by the Director as to whether the market fee is leviable on Machine rolled cigarettes and the decision on the said issue by the Director can also not be sustained.
In view of foregoing discussions the order dated 30.12.2000 of the Market Committee, the order dated 13.10.2004 of the Director impugned in the writ petition and the demand letter dated 19.10.2004 cannot be sustained and are hereby quashed. The respondents are also directed to refund the amount of Rs.25,00,000/-(Twenty five lacs) deposited in cash and amount of the Bank guarantee of Rs 83 19,804/- (Rupees eighty three lacs nineteen thousand, eight hundred four) which was in pursuance of the levy of the market fee by the Market Committee. Parties shall bear their own costs. The writ petition is allowed accordingly.