CIVIL WRIT JURISDICTION CASE No.7375 OF 1994 01. M/S MADANLAL SULTANIA, A PROPRIETORSHIP FIRM THROUGH ITS PROPRIETOR MADANLAL SULTANIA 02. M/S SHYAM SUNDAR SULTANIA A PROPRIETORSHIP FIRM THROUGH ITS PROPRIETOR SHYAM SUNDAR SULTANIA 03. M/S RAMAN KUMAR KAMALIA, A PROPRIETORSHIP FIRM THROUGH ITS PROPRIETOR RAMAN KUMAR KAMALIA 04. M/S SATISH KUMAR KAMALIA, A PROPRIETORSHIP FIRM THROUGH ITS PROPRIETOR SATISH KUMAR KAMALIA ALL HAVING THEIR PLACE OF BUSINESS AT WARISALIGANJ, P.O. & P.S.- WARISALIGANJ, DISTRICT- NAWADAH -----------------(PETITIONERS) Versus 01. THE STATE OF BIHAR 02. THE BIHAR STATE AGRICULTURAL MARKETING BOARD, PANT BHAWAN, BAILY ROAD, PATNA THROUGH ITS MANAGING DIRECTOR 03. THE DIRECTOR, BIHAR STATE AGRICULTURAL MARKETING BOARD, PANT BHAWAN, BAILEY ROAD, PATNA 04. AGRICULTURAL PRODUCE MARKET COMMITTEE, WARISALIGANJ, (NAWADAH) THROUGH ITS SECRETARY 05. THE SECRETARY, AGRICULTURAL PRODUCE MARKET COMMITTEE, WARISALIGANJ, (NAWADAH) -----------------(Respondents) ----------- For The Petitioners: MR. RAMESH KUMAR AGRAWAL, Mr. Vishnu Kumar Sharma, Mr. Vikas Kumar Singh, Advocates For the Marketing Board: Mr. B.K. Singh Chouhan, Advocate For The State: Mr. Rana Ishwar Chandra J.C. to G.P.-13 P R E S E N T THE HON'BLE MR. JUSTICE NAVIN SINHA THE HON'BLE MR. JUSTICE JYOTI SARAN Navin Sinha & Jyoti Saran, J.J. This writ petition filed on 25.8.1994 questioned a directive to levy market fee on paddy 2 straw by order dated 17.8.1993 of the erstwhile Bihar State Agricultural Marketing Board (hereinafter referred to as the Board) addressed to the Bazar Samati, Warisaliganj, District- Nawadah. This led to individual notices levying market fee upon the petitioners by individual notices at Annexure-5 series of the petition for the period specified therein. A counter affidavit and a supplementary counter affidavit have been filed on behalf of the Board. No counter affidavit has been filed by the State of Bihar. The matter was admitted for hearing on 23.5.1995. In the interregnum, the Board has been superseded on 1.9.2006 by a repeal Act and is under the control of the Administrator appointed by the State Government. The matter was taken up for hearing on 15.7.2010 and adjourned on the submission of the petitioner that the matter stood covered by certain judgments of the Supreme Court as also of this Court, so as to enable the State and the Board to assist us appropriately. In view of the supersession of the Board, if there was an artificial distinction between the State Government and its instrumentality, the Board, even that survives no 3 more. Sixteen years after the writ petition was filed, and hearing had commenced, prayer was made on behalf of the State to seek instructions and file counter affidavit. It is an extremely unfortunate situation to say the least. If the State was not vigilant in contesting matters before this Court to protect its own interest, we decline to give it any latitude. It is for the State to find the answer within its own portals by fixing answerability or accountability on its own officer. Mr. Ramesh Aggarwal appearing on behalf the petitioners very fairly stated that insofar as the addition of paddy straw to the schedule of items leviable to market fee under Section 39 by the notification dated 8.12.1993 is concerned, he cannot have any grievance in law. He fairly concedes that the question of applicability of Sections 3 and 4 of the Bihar Agricultural Produce Markets Act, 1960 (hereinafter called the Market Act) does not arise at the stage of addition to the schedule of items leviable to market fee, in view of the pronouncement of the Supreme Court on the issue especially in light of the amendment made by the Market Act by insertion of Section 4A having been upheld. 4 Mr. Aggarwal, however, submits that addition to the schedule of items leviable to market fee is one aspect of the matter and its applicability to a particular market yard is an entirely different issue. Relying on Section 3 of the Market Act, he submits that it talks of application of item in the schedule to the specified area which is nothing than the market area concerned. After the draft notification is issued, inviting objections to the levying of market fee on an item in the schedule in specified market area as distinct from addition to the schedule for levy of market fee, such fee can be levied only after final notification under Section 4 is issued. Mr. Aggarwal, next submits that earlier paddy straw was added to the schedule by a notification dated 27.10.1967 which never came to be published in the gazette. In absence of such publication there really was no addition to the schedule. Therefore the need for fresh notification dated 8.12.1993, including paddy straw in the schedule to the Market Act. Any draft notification under Sections 3 or final notification under Section 4 with regard to the paddy straw before that date is therefore inconsequent and irrelevant. He further 5 submits that the draft notification under Section 3 dated 26.5.1971 in any event is of no relevance, as it does not specify the market area of Warisaliganj at Nawadah. Therefore, the publication of a final notification on 18.12.1974 with respect to all items in the schedule, thereby including paddy straw also, to the market area of Warisaliganj at Nawadah is irrelevant in law, in absence of any draft notification for the market area of Warisaliganj at Nawadah. Learned counsel for the State and learned counsel for the Board sought to persuade the Court that by another notification dated 12.5.1992, all items in the schedule to the Market Act were made amenable to market fee in the market area of Warisaliganj. That still leaves the question unanswered of the distinction between addition to the schedule and the enforceability of market fee in any such market area, subject to the compliance of the regulatory provisions of Sections 3 and 4 of the Market Act. The issue needs no further discussion in view of the pronouncement of the Supreme Court in 1996 (9) SCC 681 (SASA MUSA SUGAR WORKS AND OTHERS VERSUS STATE OF BIHAR AND OTHERS) 6 followed in 2003 (4) PLJR 217 (SHREE PRAKASH SINGH VERSUS THE STATE OF BIHAR AND OTHERS) by a Division Bench on the issue limited to the present controversy with regard to the need for compliance with the regulatory provisions Sections 3 and 4 of the Market Act, even after the amendment made by virtue of insertion of Section 4A, when even the State of Bihar and the Board before the Supreme Court did not contest the legal position that addition to the schedule is one aspect of the matter and compliance with the regulatory provisions of Sections 3 and 4 thereafter to specified market area for an item in the schedule is another matter. The impugned order dated 17.8.1993 and the consequent demand notices at Annexure-5 issued individually to the petitioners is therefore not sustainable and is quashed. The application is allowed. Patna High Court, Dated 19th July, 2010 N.A.F.R., P.K. (Navin Sinha, J.) (Jyoti Saran, J.)