At, High Court of Bihar
By, THE HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI
For the Appearing Parties: Y.V. Giri, Vikas Ratan Bharti, Sanjeev Kumar, B.K. Singh Chauhan, Binod Kumar Singh, Advocates.
AJAY KUMAR TRIPATHI, J.
(1.) The factual matrix and the legal position are no longer in dispute since certain developments have taken place during the pendency of the writ applications.
(2.) The issue is whether the respondent Bihar State Marketing Board while exercising power under the Bihar Agriculture Produce Market Act can levy market fee on purchase of sugar cane and sale of sugar and molasses effected by the Sugar Factories
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(3.) The protracted litigation initiated at the level of High Court travelled to the Hon'ble Supreme Court. Matter was finally heard by a Constitution Bench and the opinion rendered by the Court is the case of Belsund Sugar Co. Ltd. Vs. State of Bihar and others, (1999) 9 SCC 620.
4. The Court need not delve into all the reasons which have come to be given by the Hon'ble Supreme Court as it is more concerned with the final finding. The final finding is that the Market Committee or Committees do not have the requisite power to levy market fee in so far as the Sugar Factories of Bihar are concerned, in the matter of purchase of sugar cane and sale of sugar or molasses, specially when there is a separate set of law governing them.
(4.) The Hon'ble Apex Court records in para 113 of the said decision, which is quoted herein below for ready reference as it has significance. 113. However, one rider has to be added to this direction. If any of the Market Committees has been restrained from recovering market fee from the writ petitioners in the High Court or if any of the writ petitioners in the High Court has, as an appellant before this Court, obtained stay of the payment of market fee, then for the period during which such stay has operated and consequently market fee was not paid on the transactions covered by such stay orders, there will remain no occasion for the Market Committee concerned to recover such market fee from the sugar mill concerned after the date of this judgment even for such past transactions. In other words, market fees paid in the past shall not be refunded. Similarly, market fees not collected in the past also shall not be collected hereafter. The impugned judgments of the High Court in this group of sugar matters will stand set aside as aforesaid. The writ petition directly filed before this Court also will be required to be allowed in the aforesaid terms.
(5.) In view of the above observation and finding of the Hon'ble Supreme Court the contention of the learned senior counsel representing the petitioners is that there is no occasion for the erstwhile Marketing Board to demand payment of penalty on the assessed market fee due to failure of these petitioners to pay within time.
(6.) Learned senior counsel also draws support from a Division Bench of this Court which is the case of Harinagar Sugar Mills Ltd. Vs. State of Bihar and others, 2000 (3) PLJR 419. Emphasis is on the finding recorded in para 14 of the said decision. It has been categorically held that penalty is an integral part of the fee. Penalty is to be imposed for failure to deposit the market fee. If the market fee itself was not leviable under the law as declared by the Constitution Bench, the component of penalty too cannot be recovered.
(7.) Learned counsel representing the dissolved Market Committees and the so-called Agriculture Produce Marketing Board submits that the penalty has to be deposited by the petitioners because the Hon'ble Supreme Court had held that all that was deposited was not be refunded and if what was deposited was held to be valid, then the component of the penalty also must accrue in favour of the respondents.
(8.) This Court has serious reservation in accepting the submission made at the bar on behalf of the respondents because that will be amount to violence to the decision rendered by the Constitution Bench. If the original component of market fee itself was held to be unconstitutional, then the consequences for non-compliance of payment of the same can never be recovery of penalty which has been imposed. If what has not been recovered earlier even as a component of penalty, the same cannot be allowed to be recovered now. The Constitution Bench stares in the face of the respondents.
(9.) In view of the above stated position, the imposition of penalty for non-payment of market fee for the year 1980-81, 1981-82 and 1982-83 are hereby quashed and all the writ applications are allowed but without any cost