JUDGMENT
M.H.S. Ansari, J.
1. The petitioner is a company carrying on business of manufacturing cooling tower components and accessories. The petitioner states that it imports pine-wood. It has its factory within the area of Alipore Sadar Regulated Market Committee.
2. According to the petitioner the pine-wood is purchased by the petitioner’s firm from timber importers at Gandhidham, State of Gujarat and/or at the place outside the said market area and brought from time to time at its factory premises for manufacturing of cooling tower components and accessories.
3. In the instant writ application, petitioner has questioned the memo being No. 01(8)1/ASRMC/98 dated October 14, 1988 issued by the Secretary, Alipore Sadar Regulated Market Committee, the respondent No. 4, asking the petitioner’s firm to submit return on fortnight basis for calculation of market levy payable to the Regulated Market Committee for conducting business of manufacturing of cooling tower components and accessories from imported pine-wood.
4. According to the petitioner, the purported attempt on the part of the respondent-Market Committee to levy fees on cooling tower components and accessories, which are being manufactured from “imported pine-wood” and sold by the petitioners’ firm in the Alipore Sadar Regulated Market Committee area is illegal. Petitioner has prayed for reliefs, inter alia, as under :
“(a) An order or orders and/or direction or directions declaring that ‘cooling tower components and accessories’ which are being manufactured by the petitioners’ firm from imported pine-wood do not fall within the meaning of ‘agricultural produce’ as defined under Section 2(1)(a) of the said Act, 1972 ;
(b) A writ and/or order or orders and/or directions in the nature of mandamus directing the respondents and each of them to forbear from collecting levy fees on ‘cooling tower components and accessories’ which are being manufactured by the petitioners’ firm from imported ‘pine wood’ in purview of the provision of the said Act, 1972 ;
(c) A writ and/or order or orders and/or directions in the nature of mandamus directing the respondents and each of them to forbear from giving effect to and/or further effect to and/or cancel, rescind, recall, set aside the impugned notice dated October 14, 1998 issued by the Secretary, Alipore Sadar Regulated Market Committee, the respondent No. 4, being annexure ‘C’ to the writ application or any subsequent action in relation thereto ;
(d) A writ and/or order or orders and/or directions in the nature of mandamus directing the respondents and each of them to forbear from collecting levy fees on pine round logs which are being purchased by the petitioners’ firm from the timber importers at any place outside the area of the said Market Committee and brought at its factory premises for manufacture of ‘cooling tower components and accessories’.”
5. In the affidavit-in-opposition filed by the Chairman of the respondent Regulated Market Committee, it is stated that by Notification Nos. 6303-MW & C/IM-4/91 dated November 12, 1991 and 5364-MW & C/IM-4/91 dated August 23, 1993, the Market Committee was constituted and its market area under Section 3 of the West Bengal Agricultural Produce Marketing (Regulation) Act, 1972 (for short “the Act”) was notified. The factory of the petitioner is situated within the said notified market area. It is further stated that on July 10, 1998, a notice was issued by respondent No. 3 upon the petitioner-company calling upon it to apply for licence in accordance with Sub-section (4) of Section 13 of the Act and pay levy in terms of the said Act and the rules framed thereunder. The petitioner-company on July 13, 1998 applied for licence under Section 13(2) of the Act in the prescribed form No. 1 under Rule 3. In the said application in Clause (6), petitioner-company stated that the petitioner-company wishes to get licence for purchasing, processing and selling of timber.
6. The timber is an agricultural produce and has been so notified in the Calcutta Gazette, dated December 11, 1991 being annexure “A” to the supplementary affidavit-in-opposition.
7. The petitioner-firm was issued a licence in form 4 under Rule 6(1) of the Rules for operating as trader/commission agent/bro-ker/surveyor/weighman/measurer/warehouseman/seller or producer or for processing and preservation of agricultural produce. The said licence was valid with effect from April 1, 1998 up to March 31, 1999.
8. By the impugned notice dated October 14, 1998, the petitioner was called upon to submit return.
9. Mr. Subodh Ukil appearing along with Mr. C. Ray on behalf of State respondents contended that the petitioner is a trader within the meaning of Section 2(t) and is engaged in the process of manufacturing products out of a notified agricultural produce and is, therefore, liable for payment of the levy under Section 17(2)(i) of the Act. It was further contended by Mr. Ukil that the petitioner is carrying on business of processing and selling of timber within the notified market area and has, therefore, to comply with the provisions of the Act and the Rules framed thereunder. Reliance was placed upon the application filed by the petitioner and in particular to Clause (6) thereof, whereby the petitioner stated that the petitioner wishes to get licence for “purchaser, processor and seller of timber”. (Annexure “A” to the affidavit-in-opposition).
10. Mr. Ukil further contended that in affidavit-in-opposition, it has been denied that the cooling tower components and accessories manufactured or processed by the petitioner in the area of the Regulated Market Committee do not fall within the meaning of agricultural produce. It was strenuously urged by Mr. Ukil that the petitioner is a trader and is, therefore, bound in law to comply with the provisions of the Act and the Rules framed thereunder and the respondent Market Committee is entitled to realise market fee under Section 17(1) of the Act.
11. On the other hand, the contention of Mr. Ashok Banerjee, learned counsel for the petitioner, is that cooling tower components and accessories which are being manufactured from imported pine-wood do not fall squarely within the meaning of agricultural produce as defined under Section 2(1)(a) of the Act, 1972 and, therefore, there is no legal or valid basis on which the respondents can ask the petitioner to submit return on fortnight basis for the market levy payable to the Market Committee by the petitioners’ firm. The impugned action, it was strenuously urged is patently illegal, arbitrary, without jurisdiction and abuse of exercise of the statutory power.
12. Definition Section 2(1)(a) of the Act defines agricultural produce as under :
“(a) ‘agricultural produce’ means any produce of agriculture, horticulture, pisciculture, sericulture, forestry or animal husbandry and includes any related product specified in the Schedule to this Act:
Provided that the State Government may, by notification, include any item of agricultural produce in the Schedule or exclude any such item from it ;”
Trader is defined under Section 2(t) as under :
“(t) ‘trader’ means a person ordinarily engaged in the business of purchasing and selling agricultural produce as a principal or as a duly authorised agent of one or more principals and includes a person ordinarily engaged in the business of processing or preservation of agricultural produce;”.
13. As already noticed supra, timber is an agricultural produce and has been included in the Schedule by the notification dated December 11, 1991.
14. It is not in dispute that the petitioners’ factory is within the notified market area within the meaning of Section 3 of the Act. Therefore, the processing of timber (pine-wood in the instant case) takes place within the notified market area.
15. Though in a different context the Supreme Court in G. Giridhar Prabhu v. Agricultural Produce Market Committee has considered the term “trader”:
“…..It is only when a person buys for the purpose of selling or processing or manufacturing that he would become a trader. Thus a person may buy, process or manufacture and then sell. When he processes or manufactures notified agricultural produce which he had bought, it may change its character and become another notified agricultural produce. Thus, by way of examples, a person may buy milk and through processes makes them it into butter and/or cheese or a person may buy hides and skins and by a process make it into leather. However, merely because a distinct and separate notified agricultural produce comes into existence does not mean that the person who bought, processed and sold ceases to be a trader. The term ‘trader’ encumbrances (sic embraces) not just the purchase transaction but the entire transaction of purchase, processing, manufacturing and selling.”
16. Under Section 13, it has been specifically laid down that no person shall within the market area carry on business or act as a trader, commission agent, broker, weighman, measurer, warehouseman or surveyor, or sale or purchase agricultural produce, or engage in processing or preservation of agricultural produce, or set up, establish or continue a place for storage, sale or purchase of any agricultural produce, except under and in accordance with the prescribed terms and conditions of a licence issued in this behalf by the Market Committee.
17. The manner of levy of fee by the Market Committee is prescribed under Section 17 of the Act. Sub-section (2) of Section 17 prescribes the manner in which the fees are to be paid. Section 17 is extracted hereunder :
“17(1) Notwithstanding anything contained in the Bengal Finance (Sales Tax) Act, 1941 or any other law relating to taxation of agricultural produce in force, the market committee shall levy fees on any agricultural produce sold in the market area, at a rate which shall not be more than two rupees per one hundred rupees of the amount for which the agricultural produce is sold, whether for cash or for deferred payment or for other valuable consideration, irrespective of the fact that the buyer of the produce is the Central Government or the State Government or an agent or undertaking of either of them or a Corporation constituted under any law for the time being in force :
Provided that no fee shall be levied in the same market area, more than once, in relation to the same agricultural produce irrespective of the number of transactions.
Explanation I.–For the purpose of this section all agricultural produce taken out, or proposed to be taken out of a market area shall, unless the contrary is proved, be presumed to have been sold within such area.
Explanation II.–In the determination of the amount of the fees payable under this sub-section any fraction of ten paise less then five paise shall be disregarded and any fraction of ten paise equal to or exceeding five paise shall be regarded as ten paise.
Explanation III.–For the purpose of this sub-section all agricultural produce stored in the cold storages within the market area shall, unless the contrary is proved, be presumed to have been stored for the purpose of sale.
(2) The fees referred to in Sub-section (1) shall be paid by the purchaser of the agricultural produce concerned in the following manner, namely :
(i) When a licensed trader is the buyer of any agricultural produce, he shall pay the fees to the market committee in the prescribed manner within a week from the day of the transaction ;
(ii) When a licensed trader is the seller of any agricultural produce and the buyer is not licensed, the trader shall recover the fees from the buyer and deposit the same in the prescribed manner with the market committee within a week from the day of the transaction ;
(iii) The market committee may authorise its officers or staff or any other person to realise the fees directly from the buyer.”
18. Section 17(1) is attracted when any agricultural produce, in the instant case timber, is sold in market area, assuming that the goods processed/manufactured therefrom are not notified agricultural produce, as contended by Mr. Banerjee.
19. In Clause (i) of Sub-section (2), it is laid down that when a licensed trader is the buyer of any agricultural produce, he shall pay the fees to the Market Committee in the prescribed manner within a week from the day of the transaction.
20. Under Section 17-A every licensed trader is required to submit returns of turnover and pay to the Market Committee fund amount of fees due under the Act according to the such return. If the trader fails to submit any return of the turnover as required under Sub-section (1) or fails to comply with the terms of a notice issued under Sub-section (4), the assessment is to be made according to the “best of judgment” after giving the trader an opportunity of being heard and determine the amount payable by the trader on the basis of such assessment. An appeal is provided for against an order under Section 17-A in terms of Section 17-D.
21. Under Rule 18, the form in which the return is to be submitted has been prescribed and the documents to accompany such return are specified.
22. In G. Giridhar Prabhu’s case , the Supreme Court was dealing with the Karnataka Agricultural Produce Marketing (Regulation) Act, 1966. Therein cashewnut and cashew kernel were two separate items in the Schedule to the said Act. In the said Act certain exemptions have been given to a producer which exemptions have not been given to an importer, exporter or a trader. The producer to whom exemptions have been granted under the said Act is defined as the person who produces notified agricultural produce. The Supreme Court interpreted the said expression to mean the main agricultural produce. It negatived the contention that if a person bought one notified agricultural produce and sold another agricultural produce, then in the same transaction such person would not be a trader. The Supreme Court then construed the expression trader and arrived at the conclusion as extracted supra.
23. Under the Act with which we are concerned power has been conferred upon the Market Committee to levy fees on any agricultural produce sold in the market area. Mr. Ashok Banerjee relying upon Section 17(1) of the Act contended that the produce sold by the petitioner is not a notified agricultural produce.
24. The petitioner buys pine-wood which falls within the ambit of “timber” and is, therefore, a trader within the meaning of Section 2(t) of the Act. Besides he is engaged in the business of processing of notified agricultural produce (timber) within the notified market area. Therefore, under Section 13, petitioner is required to obtain a licence.
25. In my view, on the authority of the judgment of the Supreme Court in G. Giridhar Prabhu’s case , it must be held that the petitioner is a trader and, therefore, the petitioner is liable to comply with the provisions of the Act and submit returns in relation to his turnover in the manner prescribed. No legal infirmity can, therefore, be found with the impugned notice calling upon the petitioner to submit return on fortnightly basis. The petitioner is thus not entitled to the reliefs as prayed for in prayers (a), (b) and (c) and the writ application in relation to the said prayers is liable to be dismissed.
26. Adverting, now to the prayer (d). Mr. Ashok Banerjee, learned counsel for the petitioner relying upon the judgment of the Supreme Court in Agricultural Market Committee v. Shalimar Chemical Works Ltd. , contended that the transaction of purchase of the imported pine-wood has taken place at Gandhidham (Gujarat State) being outside the notified market area of the respondent Alipore Sadar Regulated Market Committee and, therefore, the fees collected by stoppage of vehicles bringing in the pine-wood at the factory of the petitioner is illegal and without jurisdiction. Under Rule 17, it has been laid down that when a licensed trader is the buyer of an agricultural produce, he shall within one week pay the prescribed fees to the Market Committee along with a statement showing the date of transaction, the agricultural produce bought together with the quantities and money value thereof. Under Rule 18, a fortnightly return is to be submitted for assessment of the fees. Under Section 17-A, the Secretary is to determine the amount of fees due from the trader. An appeal has been provided for to an aggrieved person against the orders passed by the Secretary in terms of Section 17-D.
27. Thus, the question as to whether the purchase of pine-wood by the petitioner has taken place in the notified market area or not or outside is a matter which would require determination by adduction of evidence. It is not considered appropriate to adjudicate such disputed questions of fact in writ proceeding. More so, when the assessing authority (secretary under Section 17-A) has had no occasion to consider the same, being the primary fact-finding authority. It must be noticed that in Shalimar Chemical Work’s case the matter arose out of an order passed by the Secretary of the Committee and aggrieved against those orders, an appeal was filed and against the said orders, the writ petition came to be filed before the High Court.
28. For the aforesaid reasons, it needs to be clarified that this Court has not gone into the question as to whether the purchase of pine-wood was within or outside the notified market area of the respondent Market Committee. This Court has also not adjudicated the question as to whether the goods manufactured/processed are notified agricultural produce or not. These are disputed questions of fact and can appropriately be considered by the statutory authority, if any such dispute is raised by the petitioner, liberty for which purpose is hereby granted to the petitioner. If the petitioner files an appropriate application with supporting evidence along with the returns required to be filed by him before the Secretary under Section 17-A, the same shall be duly considered by the Secretary and appropriate orders in accordance with the law shall be passed by him not later than two months from date of submitting such returns and the application after affording the petitioner an opportunity of hearing. Reasoned speaking order shall be communicated to the petitioner within one week thereafter by registered post with A/D.
29. In the result, writ petition is dismissed in so far as prayers (a), (b) and (c).
30. As regards prayer (d), writ petition is disposed of with the observations, liberty to the petitioner and directions as aforestated.
31. The writ petition accordingly stands disposed of, in the facts and circumstances of the case without order as to costs. Interim orders, if any, shall stand vacated.
Let urgent xerox certified copy of this judgment and order be furnished to the appearing parties, if applied for, on priority basis.