P L D 1977 Lahore 115 (PLP)

Ijaz Hussain Batalvi for Petitioner. Secretary, Market Committee, Bhakkar for Respondent No.

1. Dates of hearing : 13th, 14th and 15th April 1976. This writ petition was heard alongwith W. P. No. 322/75 titled Messrs Kohinoor Sugar Mills v. Market Committee, Jauharabad etc. decided today. In addition to the points dealt with in the aforesaid judgment, learned counsel for the petitioner in this particular case further argued that Market Committee, Bhakhar, was claiming market fee from his client on the sale of molasses in pursuance of Notification No. SOA (S & II)‑XI‑16/73 (copy Annex. `A') issued under section 4 of the Punjab Agricultural Produce Markets Act V of 1939. The submission was that molasses being bye‑product of sugarcane a separate market fee on the same could not have been claimed from the petitioner especially when he pays market fee on the purchase of sugarcane. If that is so the contention of the learned counsel apparently will have force. In rule 29‑A of the Agricultural Produce Markets Rules 1940, it is laid down that "If a fee has been leviable on the sale or purchase of any quantity of agricultural produce in a notified market area and the dealer concerned has complied with the provisions of sub‑rule (2), then no fee shall be leviable on the sale or purchase within the same notified market area of any agricultural produce manufactured or extracted from the agricultural produce fn respect of which the fee has already been paid" For the purpose of understanding the system of the levy of market fee one has to refer to section 19 of the Act and rules 29 and 29‑A. A perusal of these rules will show that (a) the market fee is leviable only on transactions of sale or purchase of agricultural produce entered into within a notified market area ; (b) the fee is leviable only from licensees under section 6 and from persons who but for an exemption allowed, in their favour by rules (not by the Act) would have been required to obtain a licence under section

6. This means that a grower selling his own agricultural produce or the produce of his tenants, and a person who purchases any agricultural produce for his private use are wholly exempted from the payment of market fee, inasmuch as both of them are in view of the proviso to subsection (2) of section 4 exempt from the provision regarding licence under section 6 ; (c) the fee cannot be levied so long as delivery of the agricultural produce bought or sold is not actually made to the purchaser ; (d) the fee can be levied only from the parties to the transaction in which the delivery is actually made ; (e) the fee is to be levied only in connection with the first transaction of sale or purchase entered into within a notified market area to which a licensee under section 6, or a person exempted under rules (not under the Act) from obtaining a licence is a party, and all subsequent transactions within the same market area regarding the same agricultural produce are to be exempt ; (f )since market fee is levied on the basis of weight, when a fee has been levied on any commodity a second fee is not to be levied on the same community or any portion of it when through any manufacturing process it assumes a different form. Thus if a market fee has been levied on any quantity of kapas, no market fee will be leviable on the cotton seeds and cotton which may be extracted from such kapas, through ginning or other process. The case of unhusked and husked rice would be identical 1 (g) in cases where a kachha arhtia acts on behalf of a grower for the sale of the latter's agricultural produce, the former is not to be liable for any fee.

2. Cases may arise where different stages (agreement, weighment, delivery of the commodity and payment of price) through which a transaction of the sale or purchase of agricultural produce has to pass take place within the boundaries of different notified market areas. The question will naturally arise as to which of the different market committees constituted for these notified areas is to be entitled to the market fee. Under sub‑rule (9) of rule 29 a definite provision has been made in this respect. The different steps in connection with sale or purchase of agricultural produce may be :‑ (a) The entering into of an agreement. (b) The weighment of agricultural produce in pursuance of such agreement. (c) The delivery of agricultural produce in pursuance of such agreement. If all the three steps are taken within the boundaries of the same notified market area no difficulty arises because the market fee must be paid to the market committee constituted for such area. Where two or more of these acts have been performed at places within the jurisdiction of different market committees, the fee is to be paid to the market committee within whose jurisdiction the agricultural produce has been weighed, in pursuance of the transaction of sale. But if such weighment has not taken place within any notified market area the market fee is to be paid to the committee within whose jurisdiction delivery is made. This means that if neither of the three steps is taken within a notified market area no fee is to be levied.

3. In the aforesaid background it is clear that in order to claim exemption under rule 29‑A evidently a licensee must maintain an account of the commodities from which other commodities are extracted o manufactured. If any question arises as to whether any commodity which would otherwise be liable to the levy of a market fee has been extracted o manufactured from any other commodity, on which market fee has already been levied, evidently the licensee concerned must satisfy the market committee about his contention. If he fails to do so market fee would be leviable on the manufactured or extracted agricultural produce if it be otherwise liable to the payment of such fee. In the face of these provisions of law the mere contention of the petitioner that he is not liable to pay market fee on molasses cannot be accepted. If actually his case is that the molasses in question were manufactured from that quantity of sugarcane on purchase where of he had actually paid market‑fee he would be well‑advised to appear before market committee/authorities concerned and make out a proper case of claiming exemption under rule 29‑A by leading evidence and showing accounts etc. in accordance with law. Institution of present writ petition without laying down or establishing the condition precedent necessary to claim exemption is not justified merely on the aforesaid contention that as molasses are bye‑product of sugarcane, therefore, on that account alone they should be exempted. This aspect of the matter being of factual nature, it cannot be thrashed out in the course of writ jurisdiction especially when it involves leading of evidence and scrutiny of accounts etc. for which the petitioner has adequate departmental remedies under the Act and the rules at different levels. The result is that the present writ petition fails and ' hereby dismissed with the observations hereinbefore made. There will be n order as to costs. S. Q. Petition dismissed.