IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.11216 of 2006 1. The State of Bihar through the District Magistrate- cum-Administrator, Agricultural Produce Market Committee, Rosera, 2. The Sub-divisional Magistrate-cum-Special Officer, Agricultural Produce Market Committee, Rosera, … Petitioners Versus 1. The State Bank Of India, Rosera Branch, District Samastipur through its Branch Manager, District Samastipur, 2. New India Sugar Mills Ltd., Registered Office at B/1, R.N. Mukherjee Road, Culcutta, through its constituted Attorney, West Bengal, 3. Shri Ashok Kumar Gupta, a Shareholder of the Company, working for gain at B/1, R.N. Mukherjee Road, Calcutta, through its constituted Attorney, West Bengal, … .. Respondents For the Petitioner: Mr. Ashok Kumar Keshari, AAG XI Mr. Bipin Chandra, AC to AAG XI For the Respondents: Mr. K.N. Gupta, Satyendra Krishna Prasad and Mamrata Mishra, Advocates. ------- 9 20.12.2011 I have heard learned counsel for the petitioner as well as respondent nos. 1, 2 and 3. Original writ petitioner, i.e., the Rosera Agricultural Produce Market Committee through its Market Secretary, District Samastipur has sought direction to respondent no. 2 to allow the petitioner to operate the Saving Bank Account No. 01170080102 standing in the name of the petitioner in the State Bank of India, Rosera Branch, Samastipur, by modifying the ad interim order 2 granted in C.W.J.C. No. 3830 of 1992 (Annexure 1), whereby and whereunder a direction had been given that the levy amount paid by the petitioner of the aforesaid writ application, i.e., C.W.J.C. No. 3830 of 1992 (New India Sugar Mills Ltd. and another v. State of Bihar and others) shall be kept in separate account and no amount would be spent without prior leave of this Court. In view of the nature of the order which I propose to pass in this case, the short facts as under, are necessary to be stated. The Bihar Agricultural Produce Markets Act, 1960 (hereinafter to be referred to as “the Act”) came into force vide Notification no. 5(2) of the Act of 1960 declaring the premises of the Sugar Factory of the respondent nos. 2 and 3 as sub-market yard. However, the State Government exempted all the Sugar Mills from the ambit of Section 15 of the aforesaid Act. Subsequently, the State Government, in exercise of its power under section 39 of the Act exempted sugar from the schedule of the Act. However, vide a subsequent notification, on 12.05.1992 the State Government included sugar in the concerned schedule and the same was published in the 3 Bihar Gazette dated 23rd May, 1992. Such action of the State Government was challenged by filing C.W.J.C. No. 3830 of 1992. Subsequent thereof, an amendment in the Act was brought vide the Bihar Agricultural Produce Market (Amendment) Act, 1993 inserting two new sections, i.e., sections 4A and 4B from the retrospective effect with effect from 6th August, 1969. During the pendency of the aforesaid writ application ad interim order, as contained in Annexure 1, was passed and the Government Bihar Agricultural Market Committee was directed to keep the amount collected from the petitioner by way of levy on sugar in a separate account and it was not to be spent without prior leave of the Court. The writ petition was allowed on 20.01.1994 by a Division Bench of this Court holding the provisions of section 4A inserted by the aforesaid Amendment Act as arbitrary and discriminatory as the imposed restriction was found to be unreasonable. Accordingly, same was held to be ultra vires. Section 4B was partly held to be valid and partly invalid. Learned counsel for the petitioner submitted that in view of the aforesaid decision the Government was 4 not found entitled to charge levy on sugar from a retrospective date. However, the aforesaid matter travelled up to the Apex Court. The Apex Court in the case of Sasa Musa Sugar Works and others v. State of Bihar and others and other analogous matters (1996(2) Patna Law Journal Reports (S.C.) 170) has held that inclusion or deletion of an item is to be made in exercise of power under section 39 of the Act and such power can be exercised by the State Government without even the aid of the provisions of sections 3 and 4. It has been observed that where the deletion of “sugar” was in exercise of power under section 39, it being not a deletion under section 4(1), the procedure prescribed under sections 3 and 4 was not required to be followed. Section 4(3) does not contemplate inclusion or exclusion of produce under section 39 of the Act but it is applicable only to inclusion or exclusion of any area from the area of market or any produce specified therein as have been notified for control in specified market already by notification issued under sections 3 and 4 of the Act. However, section 4A was also held to be valid as it has been held that the same does not intend to overrule or annul any decision of the court but 5 the amending Act brought in change in the requirement of following the procedure under sections 3 and 4 of the Act. It has also been held that section 4A does not offend Article 14 of the Constitution of India. During the pendency of this case I.A. No. 4437 of 2011 had been filed by the State of Bihar through the District Magistrate-cum-Administrator, Agricultural Produce Market Committee, Rosera, and the Sub- divisional Magistrate-cum-Special Officer, Agricultural Produce Market Committee, Rosera, stating therein that by the Bihar Agriculture Produce Market (Repeal) Act, 2006(Bihar Act 23, 2006) the Agriculture Produce Market Committee, Rosera stood dissolved and the same is now being represented by the aforesaid authority. A substitution in place of the original petitioner was sought. The application was allowed and the District Magistrate- cum-Administrator, Agricultural Produce Market Committee, Rosera, and the Sub-divisional Magistrate- cum-Special Officer, Agricultural Produce Market Committee, Rosera, were directed to be substituted in place of the Rosera Agricultural Produce Market Committee as all the Market Committees stood dissolved 6 and the entire earlier Act stood repealed in view of the repealing Act with certain saving clauses. It is also noticed that in view of the provisions as contained in section 4A of the repealed Act, all the assets and liabilities of the Board were vested in the State of Bihar. In above view of the matter, it has been urged on behalf of the petitioners that since the writ applications, which were allowed in part by the Division Bench of this Court and finally the matter having been disposed of by the Apex Court after holding that the State Government was empowered to insert „sugar‟ in the schedule after rescinding the earlier notification and also declaring the provisions under sections 4A and 4B of the Act to be valid, the petitioners should be held to be entitled to operate the concerned Savings Bank Account by modifying the direction of the Division Bench of this Court given in C.W.J.C. No. 3830 of 1992. However, in my considered opinion, any interim relief granted, if unprotected, evaporates after passing of the final order in the concerned case. In the present case, though the Division Bench has passed the order that separate 7 account would be opened for keeping the amount collected by the State Government from the respondent no. 2 by way of levy upon sugar and also that the same would not be spent without the leave of this Court, the same would definitely mean till the prior leave of this Court during the pendency of the concerned writ application. In my opinion, the interim order had not been protected by this Court by recording that the same would it will stand irrespective of the result of the writ application. Secondly, since subsequently the Apex Court has found the amendment inserting sections 4A and 4B of the Act as intra vires and also that the State Government was empowered to rescind the earlier notification made under section 39 of the Act regarding removal of sugar in the schedule by again introducing the same in the schedule of the Act, the relevant finding of the Division Bench of this Court in C.W.J.C. No. 3830 of 1992 filed by the respondent no. 2 would amount to have been overruled and as such the interim order dated 04.11.1993 would also amount to have evaporated. Learned counsel for the respondent nos. 2 and 3 has also fairly submitted that in view of the final decision of the Apex Court in Sasa Musa Sugar Works (supra), the 8 respondent nos. 2 and 3 would not have any claim over the amount which has been kept in the concerned Saving Bank Account as per the interim order dated 04.11.1993 passed in C.W.J.C. No. 3830 of 1992. In view of the aforesaid discussion, this Court would have no difficulty in allowing the petitioners to operate the relevant Saving Bank Account that was opened in view of the order dated 04.11.1993 passed in C.W.J.C. No. 3830 of 1992. In above view of the matter, it is held that the petitioners are entitled to operate the relevant Saving Bank Account that was opened in view of the order dated 04.11.1993 passed in C.W.J.C. No. 3830 of 1992. Accordingly, this writ application stands allowed. SC ( Dr. Ravi Ranjan, J.)