[2008] 8 S.C.R. 621

M/S. DHARAMPAL SATYAPAL LTD. AND ANOTHER A v

STATE OF BIHAR AND ORS. (Civil Appeal No. 5779 Of 2005)

MAY 14, 2008 B

[S.B. SINHA AND LOKESHWAR SINGH PANTA, JJ.]

Constitution of India, 1950 - Art. 226 - Dispute over levy of market fee on Zafrani Zarda, a manufactured form of tobacco

- Writ petition - High Court disposed of same without considerc ing significant questions raised by the parties - Hence, matter remitted back to High Court for decision afresh - Bihar Agricultural Produce Market Act, 1960 - ss.3,4 and 4A.

Dispute arose as regards the validity of levy of mar- -+ ket fee on Zafrani Zarda, a manufactured form of tobacco, D in terms of the provisions of the Bihar Agricultural Produce Market Act, 1960.

The definition of 'agricultural produce' underwent a change so as to include the 'manufactured goods' there- E from by way of amendment on 30th April, 1982. Again with effect from 30th April, 1982, Zafrani Zarda was inserted in the Schedule appended to the said Act, by reason of a Notification dated 31st July, 1991, issued by the State of ...._ Bihar. The State Government issued another Notification being S.O. 220 dated 31st August, 1992 for regulation of F sale, purchase, storage and process of all agricultural produce mentioned in the Schedule of the Act in the areas covering 122 market committees including the Respondent Market Committee.

Questioning the orders of assessment of market fee G

relying on and on the basis of the said G.Os., by the Assessing Authority, Appellants filed writ petitions before the High Court. In the said writ petitions, inter alia it was con-

621 H

tended that the market fee be assessed from the date of coming into force of the Amendment i.e. 30th April, 1982 from which date the definition of 'agricultural produce' had been amended. The High Court held that the market fee would be leviable with effect from 31st August, '1992.

Hence the present appeal.

Remitting the matter to High Court, the Court

HELD: 1. The High Court failed to take into consideration the important question raised by the petitioners that the Notifications were ultra vires the Act and/or would have no application in relation to Zafrani Zarda. It also did not take into consideration the contention of the Market Committee that having regard to the provisions of s.4-A of the Act, ss. 3 and 4 thereof were not required to be complied with. The questions raised by the parties are of significance. They should have been dealt with by the High Court. [Paras 7,8] [625-E, F, G]

2. The judgment of High Court is set aside and the matters are remitted to the High Court for consideration and disposal thereof afresh. If any application is filed by the parties heretO raising additional contentions, the same may be considered by the High Court on their own merits. [Para 9) [626~AJ

CIVILAPPELLATE JURISDICTION: Civil Appeal No. 5779 of 2005

From the final Judgment and Order dated 7.10.2002 of the High Court of Judicature at Patna in C.W.J.C. No. 10145/ 2001

WITH

Civil Appeal No. 5782 of 2005 and 5785 of 2005.

Rakesh DWidedi, Anoop G. Chaudhary, Vijay Hansaria, S.8. Sanyal, R.G. Padia, Mathai M. Paikeday, Shobha Dikshit, H K.K. Mohan, Amit Kr. Singh, Shantan':J Krishna, Mukti

MIS. DHARAMPAL ANOTHER v. STATE OF 623

BIHAR AND ORS. [S.B. SINHA, J.] >- Chowdhary, Anant Prakash, Sneha Kalita, Sanjai K. Pathak, A Vivek Narayan, Ajit Kumar Pande, Sunil Roy, Madhurima Tatia, Anil Katiyar, V.K. Verma, Shishir Pinaki, Amit Singh, P.L Jose, Pradeep Misra, Daleep Dhayani, Gopal Singh, Anukul Raj, Manish Kr. and Chandan Kr. for the Appearing parties.

The Judgment of the Court was delivered by B

"-t S.8. SINHA, J. 1. These three appeals involve a question as to whether the levy of market fee on Zafrani Zarda in terms of the provisions of Bihar Agricultural Produce Market Act, 1960 (for short the Act) is valid which arise out of a common order c dated 7th October, 2002 passed by the High Court of Patna in three writ petitions filed by the appellants.

2. Writ petitioners are manufacturers of ZafraniZarda. It .. is indisputably a manufactured form of tobacco .

-of: The question as to whether Zafrani Zarda is manufactured D

item of tobacco or not came up for consideration before this Court in Agricultural Produce Market Committee and others

v. Mis. Prabhat Zarda Factory and another, [1994 Supp (2) SCC 514]. C This Court noticed that the definition of 'agricul- E tural produce' has undergone a change so as to include the 'manufactured goods' therefrom by way of amendment on 3Qth April, 1982. This Court noticed that the judgment of the High Court did not take into consideration the changed definition of > 'agricultural produce' with effect from 3Qth April, 1982 but upheld the judgment of the High Court in respect of levy of market F fee prior thereto.

3. Indisputably again with effect from 3Qth April, 1982 Zafrani Zarda was inserted in the Schedule appended to the said Act, by reason of a Notification dated 31st July, 1991, is- G • sued by the State of Bihar which reads thus:-.

~ "No. 61Misc. 13191 - 6386 . . . . Governor of Bihar in exercise of its powers conferred under Section 39 of Bihar Agricultural Produce Marketing Act, 1980 (Bihar Act 16 of

1960) makes the following amendment in the Schedule of the H

A abovementioned Act :-

AMENDMENT

In the said list -Heading 11 - following heads should be added or included after head 1 under Narcotic- Tobacco.

Zarda

Zafrani Zarda etc.

The effect of this amendment shall be considered to be in force from the date of implementation of Bihar Agricultural Produce Marketing Act, 1960.

By order of Governor of Bihar

Nagendra Tiwari

Joint Secretary to Govt."

4. The State Government' issued another Notification being S.O. 220 dated 31•1 August, 1992 for , regulation of sale, purchase, storage and process of all agricultural produce mentioned in the Schedule of the Act in the areas covering 122 market committees including the respondent Market Committee.

5. Questioning the orders of assessment of market fee relying on and on the basis of the said G.Os., by the Assessing Authority, the Writ Petitioners filed writ applications before the Patna High Court inter alia for the following reliefs:-

"i) issue Rule NISI calling upon the respondent to show cause as to why the notice No.569 dated 08.06.2001, 638 dated 26.06.2001 and 770 dated 24.07 .2001

as contained in Annexure 6, 7, 9 and issued by the respondent Secetary, Agricultural Produce Market Committee should not be set aside and quashed and upon return of the rule and after hearing the parties make the rule absolute.

H ii) Issue rule in the nature of mandamus restraining the

')"

...It.

.... •

M/S. DHARAMPAL ANOTHER v. STATE OF 625

BIHAR AND ORS. [S.B. SINHA, J.]

respondents from enforcing the provisions of Bihar A Agriculture Produce Market Committee Act and the Rules thereunder in respect of the petitioners dealing in zafrani zarda and spices and demanding any fee in respect thereof and upon return of the rule and after hearing the parties make the rule absolute.

iii) Issue Rule NISI in the nature of writ of mandamus calling upon the respondents to show cause as to why the notification issued under section 39 published . in the Bihar Gazette Extra Ordinary dated 31.07.2001

(Annexure-2) be not declared invalid, illegal without C jurisdiction and unenforceable and upon return of the rule and after hearing the parties make the rule absolute.

iv) Issue such other writ(s) order(s) direction(s) as your 0 Lordships may deem fit and proper."

6. In the said writ petitions, inter alia it was contended on behalf of the respondent-Market Committee, that the market fee would be assessed from the date of coming into force of the Amendment i.e. 301h April, 1982 from which date the definition E of 'agricultural produce' had been amended.

7. The High Court by reason of the impugned judgment did not go into other contentions raised by the parties. It was held that the market fee would be leviable with effect from 31•1

August, 1992. It failed to take into consideration the important F question raised by the petitioners that the Notifications were ultra vi res the Act and/or would have no application in relation to Zafrani Zarda. It also did not take into consideration the contention of the Market Committee that having regard to the provisions of Section 4-A of the Act, Sections 3 and 4 thereof were G not required to be complied with.

8. The questions raised by the parties are of significance.

They should have been dealt with by the High Court.

9. We, therefore, are of the opinion that the impugned judgment cannot be sustained. They are set aside accordingly and the matters are remitted to the High Court for consideration and disposal thereof afresh as expeditiously as possible and preferably within a period of six months from the date of 8 receipt of a copy of this order.

If any application is filed by the parties hereto raising additional contentions, the same may be considered by the High Court on their own merits. c

10. The appeals are disposed of accordingly with no order as to costs .

. 8.8.B.

Matter remitted to High Court