{"id":148993,"date":"2001-03-02T00:00:00","date_gmt":"2001-03-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/g-giridhar-prabhu-ors-vs-agricultural-produce-market-on-2-march-2001"},"modified":"2018-11-24T19:50:48","modified_gmt":"2018-11-24T14:20:48","slug":"g-giridhar-prabhu-ors-vs-agricultural-produce-market-on-2-march-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/g-giridhar-prabhu-ors-vs-agricultural-produce-market-on-2-march-2001","title":{"rendered":"G. Giridhar Prabhu & Ors vs Agricultural Produce Market … on 2 March, 2001"},"content":{"rendered":"
Supreme Court of India<\/div>\n
G. Giridhar Prabhu & Ors vs Agricultural Produce Market … on 2 March, 2001<\/div>\n
Author: S N Variava<\/div>\n
Bench: V.N. Khare, S.N. Variava<\/div>\n
           CASE NO.:\nAppeal (civil) 3982-3984  of  1999\n\n\n\nPETITIONER:\nG. GIRIDHAR PRABHU & ORS.\n\n\tVs.\n\nRESPONDENT:\nAGRICULTURAL PRODUCE MARKET COMMITTEE\n\nDATE OF JUDGMENT:\t02\/03\/2001\n\nBENCH:\nV.N. Khare & S.N. Variava\n\n\n\n\nJUDGMENT:\n<\/pre>\n
S. N. VARIAVA, J.\n<\/p>\n
L…I…T…….T…….T…….T…….T…….T…….T..J<\/p>\n
    These  Appeals  are against a Judgment dated 2nd  April,
\n1998.\n<\/p>\n
    Briefly stated the facts are as follows:\n<\/p>\n
    The\t Appellants  purchase  raw   cashew  nut  and  after
\nsubjecting the same to process of manufacture extract cashew
\nkernel.\t  The  cashew kernel is then sold by them  all\tover
\nIndia  as well as in International markets.  Both cashew nut
\nand  cashew  kernel are Notified Agricultural Produce  under
\nthe Schedule to the Karnataka Agricultural Produce Marketing
\n(Regulation)  Act,  1966 (hereinafter called the said  Act).
\nThe  Appellants\t have  licences\t under\t the  said  Act\t  as
\nImporters,  Traders, Exporters and Producers from the Market
\nCommittee.   The Appellants are paying market fee as per the
\nprovisions of Section 65(2A) when they purchase cashew nut.\n<\/p>\n
    The\t Market\t Committee issued Notices to the  Appellants
\ndirecting  them to collect market fee from their buyers\t and
\npay  the same to the Committee in respect of transactions of
\nsales of cashew kernel.\t These Notices were issued under the
\nprovisions of Section 65(2A)(iii) of the said Act.\n<\/p>\n
    The\t Appellants filed a Writ Petition in the High  Court
\nof Kerala praying for declaration that they were “Producers”
\nof  cashew kernel and, therefore, were not liable to collect
\nthe market fee from their purchasers and pay the same to the
\nCommittee.  They also sought a declaration that as producers
\nof  cashew kernel they did not even require a license.\t The
\nAppellants  sought  directions from the Court to  quash\t the
\nNotices\t issued by the Market Committee and to restrain\t the
\nMarket Committee from recovering market fee from them.\tThis
\nWrit  Petition came to be dismissed by a single Judge of the
\nHigh  Court on 21st August, 1996.  The Appellants then filed
\na  Writ\t Appeal\t which\talso came to  be  dismissed  by\t the
\nimpugned Judgment dated 2nd April, 1998.\n<\/p>\n
    The controversy in these Appeals is very limited.  There
\nis  no dispute that the Appellants are purchasing cashew nut
\nand  by\t a process of manufacture extracting cashew  kernel.
\nThere  is no controversy and no dispute that on the purchase
\ntransactions the Appellants are paying market fee.  There is
\nalso  no  dispute that on the sale transactions,  of  cashew
\nkernel,\t market fee is payable.\t The only dispute is whether
\nthe  Market Committee can insist that the Appellants realize
\nthe  market  fee  from their purchasers and pay\t it  to\t the
\nMarket\tCommittee  or  whether the Market Committee  has  to
\ncollect\t the  market  fee directly from\t the  purchasers  of
\ncashew kernel.\n<\/p>\n
    For an understanding of this question certain provisions
\nof  the\t said Act require to be looked at.  The Preamble  to
\nthe  said Act lays down that it is an Act to provide for the
\nbetter\tregulation of marketing of agricultural produce\t and
\nthe   establishment  and  administration   of  markets\t for
\nagricultural  produce  in the State of\tKarnataka.   Section
\n2(1)  of  the  said Act defines\t “Agricultural\tProduce”  as
\nfollows:\n<\/p>\n
    “2(1).   “Agricultural  Produce”  means the\t produce  or
\ngoods specified in the Schedule.”\n<\/p>\n
    It\tis an admitted position that initially under Item  8
\nof  the\t Schedule only cashew nut was included as  an  Item.
\nMarket\tfee  was sought to be levied on cashew kernel.\t The
\nMangalore  Cashew Manufacturing Association challenged\tthis
\nlevy  in the High Court of Kerala.  The High Court held that
\ncashew\tkernel was not included in the Schedule to the\tsaid
\nAct  and  it was thus not a Notified  Agricultural  Produce.
\nPursuant  to  this  decision the State Government  issued  a
\nNotification  under Section 5 read with Section 3 of the Act
\nand  included cashew kernel also in the Schedule.  Thus, now
\nboth  cashew nut and cashew kernel are two separate items in
\nthe  Schedule to the said Act.\tSections 2(5), 2(13), 2(14),
\n2(14A),\t 2(18A), 2(21), 2(28), 2(32), 2(33), 2(34) and 2(48)
\nof the said Act are relevant.  They read as follows:\n<\/p>\n
    “2(5).   “Buyer” or “purchaser” means a person who\tbuys
\nor agrees to buy goods;\n<\/p>\n
    2(13).   “Exporter” means a person other than a producer
\nwho  exports  goods or causes goods to be exported on  one’s
\nown  account or as agent of another person, from the  market
\narea  outside  such  area  for\t the  purpose  of   selling,
\nprocessing,  manufacturing  or for any other purpose  except
\nfor the purpose of one’s own domestic consumption, but shall
\nnot include a public carrier.\n<\/p>\n
    2(14).   “Goods” means any kind of notified agricultural
\nproduce.\n<\/p>\n
    2(14A)  `”Importer” means a person who imports or causes
\ngoods  to be imported on his own account or as an agent\t for
\nanother\t person\t from outside the market area into a  market
\narea  for the purpose of selling, processing,  manufacturing
\nor  for\t any  other purpose except for\tone’s  own  domestic
\nconsumption, but shall not include a public carrier.\n<\/p>\n
    2(18A)   “Marketing\t means\tbuying\t and   selling\t of
\nagricultural  produce  and   includes  grading,\t processing,
\nstorage,   transport,  packaging,   market  information\t and
\nchannels of distribution.\n<\/p>\n
    2(21).  “Market functionary” or “functionary” includes a
\nbroker,\t a  commission\tagent,\tan exporter,  a\t ginner,  an
\nimporter,  a presser, a processor, a stockist, a trader, and
\nsuch  other person as may be declared under the rules or the
\nbye-laws to be a market functionary.\n<\/p>\n
    2(28).    “Notified\t agricultural\tproduce”  means\t any
\nagricultural  produce  which  the State\t Government  has  by
\nnotification  issued  under Sections 4 and 5 declared as  an
\nagricultural  produce  the  marketing  of  which  shall\t  be
\nregulated in the market area.\n<\/p>\n
    2(32).   “Process”\tmeans  any  one of  the\t serious  of
\ntreatments to which raw agricultural produce is subjected to
\nmake it fir to use or consumption.\n<\/p>\n
    2(33).    “Processor”  means  a  person  who   processes
\nnotified agricultural produce by mechanical means.\n<\/p>\n
    2(34)  “Producer”  means a person who produces  notified
\nagricultural produce on one’s own account.-\n<\/p>\n
(i) by one’s own labour; or<\/p>\n
(ii) by the labour of any member of one’s family;  or<\/p>\n
(iii) under the personal supervision of oneself or any m
\nember  of  one’s  family by hired labour or by\tservants  on
\nwages  payable\tin  cash  or kind but not in  share  of\t the
\nproduce.\n<\/p>\n
    2(48).   “Trader”  means  a\t person\t who  buys  notified
\nagricultural  produce either for himself or as agent of\t one
\nor  more  persons  for the purpose of  selling,\t processing,
\nmanufacturing  or  for\tany other purpose,  except  for\t the
\npurpose of domestic consumption.”\n<\/p>\n
    The levy is under Section 65(1) of the Act.\t The mode of
\ncollection  is\tprovided under Section 65(2-A) of  the\tsaid
\nAct.  It reads as follows:\n<\/p>\n
    “65(2-A).\tThe  market fee payable under  this  section
\nshall be realised as follows, namely.-\n<\/p>\n
    (i)\t if the produce is sold through a commission  agent,
\nthe  commission agent shall realise the market fee from\t the
\npurchaser  and\tshall  be  liable to pay  the  same  to\t the
\ncommittee;\n<\/p>\n
    (ia)  if  the  produce  is sold by an  importer  to\t the
\npurchaser,  the\t importer shall realise the market fee\tfrom
\nthe  purchaser\tand shall be liable to pay the same  to\t the
\ncommittee;\n<\/p>\n
    (ii)  if  the produce is purchased directly by a  trader
\nfrom  a\t producer,  the trader shall be liable\tto  pay\t the
\nmarket fee to the committee;\n<\/p>\n
    (iii)  if  the  produce is purchased by  a\ttrader\tfrom
\nanother trader, the trader selling the produce shall realise
\nit  from the purchaser and shall be liable to pay the market
\nfee to the committee;  and<\/p>\n
    (iv)  in  any  other case of sale of such  produce,\t the
\npurchaser  shall  be  liable to pay the market\tfee  to\t the
\ncommittee.”\n<\/p>\n
    The\t Market\t Committee  called upon\t the  Appellants  to
\ncollect\t and  pay  the market fee on the  footing  that\t the
\nAppellants are traders who were selling the produce to other
\ntraders.   The\tAppellants claim that they are producers  of
\ncashew\tkernel and, therefore, sub-clause (ii) would  apply.
\nThe Appellants claim that if sub- clause (ii) does not apply
\nthen sub-clause (iv) would apply.  The question therefore is
\nwhether\t the  Appellants are producers or whether  they\t are
\ntraders.\n<\/p>\n
    As\tis  seen from the definition under Section  2(48)  a
\ntrader\tis  any person, who (a) buys  Notified\tAgricultural
\nProduce,  (b) either for himself or as agent of one or\tmore
\npersons,  (c)  for  the\t  purpose  of  selling,\t processing,
\nmanufacturing  or  any other purpose and (d) except for\t the
\npurpose\t of domestic consumption.  There is no dispute\tthat
\nthe  Appellants\t are traders when they purchase cashew\tnut,
\nwhich  is a Notified Agricultural Produce.  In such purchase
\ntransaction  they  are also importers.\tAs such traders\t and
\nimporters they have obtained a licence and are paying market
\nfee.  It is, however, submitted that even though they may be
\ntraders\/importers in the purchase transactions, they are not
\ntraders\t or  exporters when they sell cashew kernel.  It  is
\nsubmitted  that they are Producers of cashew kernel.  It  is
\nsubmitted  that\t in the Schedule to the said Act cashew\t nut
\nand  cashew  kernel are shown as two separate  and  distinct
\ncommodities.   It  is  submitted that the  State  Government
\naccepted the Judgment of the High Court of Kerala as correct
\nand  implemented  the  Judgment by  incorporating  the\tterm
\n“cashew\t kernel” as a separate items in the Schedule.  It is
\nsubmitted  that\t the Appellants are Producers under  Section
\n2(34)  as  the\tAppellants produce a  Notified\tAgricultural
\nProduce,  i.e.\t cashew kernel on their own  account,  under
\ntheir  personal supervision and by hired labour or  servants
\non  wages  paid\t in cash.  It is submitted  that  they\tfall
\nwithin\tthe  definition\t of  the term  “Producer”  and\tare,
\ntherefore,  governed by sub-clause (ii) of Section  65(2-A).
\nIt  is\tsubmitted  that in any event their  sale  of  cashew
\nkernel would not be a sale from a trader to a trader.  It is
\nsubmitted  that if sub-clause (ii) did not apply, they would
\nfall under sub-clause (iv) of Section 65(2-A).\n<\/p>\n
    Initially,\tMr.   Sarangan\tsubmitted   that  the\tterm
\n“Trader”  under Section 2(48) can only refer to a person who
\nbuys.\tHe initially submitted that the term “Trader” cannot
\napply  to a person who sells a Notified Agriculture Produce.
\nHowever\t to  be noted that under the definition mere  buying
\nwas  not  enough.  The buying had to be for the\t purpose  of
\nselling\t or  processing\t or manufacturing or for  any  other
\npurpose.   The\tbuying\thad to be for a purpose\t other\tthan
\ndomestic  consumption.\tWhen this was pointed out to him the
\nanswer\tsought\tto be given was that if a person bought\t and
\nsold  the same Notified Agricultural Produce, then he may be
\na trader, but if he bought one Notified Agricultural Produce
\nand  sold another Notified Agricultural Produce, then in the
\nsale transaction he would not be a trader.  It was submitted
\nthat  cashew  nut  and cashew kernel were two  separate\t and
\ndistinct  Notified  Agricultural Produce.  It was  submitted
\nthat  the  Appellants bought cashew nut.  It  was  submitted
\nthat  they  produced  cashew kernel and\t were  only  selling
\ncashew\tkernel.\t  It  was submitted that as  they  were\t not
\nselling\t the  Notified Agricultural Produce which  had\tbeen
\nbought they could not be termed as a “Trader”.\n<\/p>\n
    In\tsupport of the submission that cashew nut and cashew
\nkernel\tare two separate and distinct commodities,  reliance
\nwas  placed  upon the case of Vijayalaxmi Cashew Company  v.
\nDy.   Commercial  Tax Officer<\/a> reported in (1996) 1 SCC\t468.
\nIn  this  case, the Appellant therein was purchasing  cashew
\nnut, extracting cashew kernel and exporting cashew kernel to
\nforeign\t countries.   The  question was\t whether  they\twere
\nliable\tto sales tax under Section 5(3) of the Central Sales
\nTax  Act,  1956.  This Court negatived an argument that\t the
\npurchase  was  of the same goods which were exported.\tThis
\nCourt  held  that  cashew  nut and cashew  kernel  were\t two
\nseparate and distinct commodities.\n<\/p>\n
    Reliance  was also placed upon the case of Sita Devi  v.
\nState of Bihar reported in 1995 Supp.  (1) SCC 670.  In this
\ncase  the  question  was whether cattle could be  termed  as
\nAgricultural  Produce.\tThis Court held that even though  in
\ncommon\tparlance  cattle  may  not be considered  to  be  an
\nagricultural  produce  but  as it had been included  in\t the
\nSchedule, under “Animal Husbandry”, for the purposes of this
\nAct  it\t became\t an agricultural produce.  This\t Court\theld
\nthat, therefore, market fee could be levied on cattle bought
\nand  sold  in an market area.  Relying on this authority  it
\nwas  submitted\tthat to ascertain what was  an\tagricultural
\nproduce\t one  had  to  look to the items  specified  in\t the
\nSchedule  to the Act.  It was submitted that if two separate
\nitems  were specified in the Schedule to the Act, then those
\ntwo  had  to be treated as two separate and distinct  items.
\nHowever,  it may be noted that this case also lays down that
\nif an item, after it is taxed, is subjected to a process and
\nchanges\t its form, then it can again be subjected to  market
\nfee  in the different form.  The examples given in this case
\nare  that  even\t though\t market fee  is\t levied\t on  cattle,
\nsubsequently  milk, Ghee, butter which are obtained from the
\ncattle\tcould also be exigible to levy of market fee.\tThis
\ncase,  therefore, shows that by means of a process the\tvery
\nnature of the item may change.\n<\/p>\n
    Reliance was also placed upon the case of State of Tamil
\nNadu  v.  Nellai Cotton Mills Ltd.<\/a>  reported in (1990) 2 SCC\n<\/p>\n
518.   In  this case it has been held that when an  Act\t has
\nbeen judicially interpreted, Courts may study the subsequent
\naction\tor  inaction  of  the legislature for  clues  as  to
\nlegislative    approval\t  or\t disapproval   of   judicial
\ninterpretation.\t It has been held that if the legislature by
\ntaking note of the Judgment amends the statute appropriately
\nby  not giving any different meaning from the view taken  by
\nthe  Court, with some justification, it can be said that the
\nlegislature  had  accepted expressly or by  implication\t the
\njudicial  interpretation.  It was submitted that by amending
\nthe  Schedule to include cashew kernel the State  Government
\nhad accepted the fact that cashew nut and cashew kernel were
\ntwo  separate and distinct commodities and now they would be
\nprecluded  from contending that these were not two  separate
\nand distinct commodities.\n<\/p>\n
    Reliance  was next placed upon the case of\tCommissioner
\nof  Income Tax v.  N.C.\t Budharaja & Co.<\/a>  reported in (1993)
\n204  ITR  413.\tIt was submitted that the word\t“production”
\nhas  a\twider connotation than the word\t “manufacture”.\t  In
\nthis  case  it\tis  held that  every  manufacture  would  be
\ncharacterised  as production but every production would\t not
\namount\tto  manufacture.   It  is held that  when  the\tword
\n“production” or “produce” are used in juxtaposition with the
\nword  “manufacture”,  they may bringing into  existence\t new
\ngoods  by  a  process  which  may   or\tmay  not  amount  to
\nmanufacture.   It is held that these words also take in\t all
\nthe by-products, intermediate products and residual products
\nwhich emerge in the course of manufacture of goods.\n<\/p>\n
    Respondents\t do  not dispute that cashew nut and  cashew
\nkernel are two separate and distinct items\/commodities.\t The
\nRespondent’s  submission is that the Appellants continue  to
\nbe  a  trader  even  in the sale  transaction  as  they\t had
\nbought\/imported\t for purpose of processing and then selling.
\nRespondents  contend that merely because, by a process or by
\nmanufacture, a different item comes into being does not make
\nthe  processor or manufacturer a Producer.  The contend that
\na  “Producer”  is  one\twho produces  the  initial  Notified
\nAgricultural  Produce.\t We  are unable to  agree  with\t the
\nsubmissions  of\t Mr.   Sarangan.  As can be  seen  from\t the
\nPreamble  the  Act  is to provide for better  regulation  of
\nmarketing  of  agricultural  produce.  In  the\tAct  certain
\nexemptions have been given to Producer which exemptions have
\nnot  been  given  either  to Importer or an  Exporter  or  a
\nTrader.\t  These\t exemptions, therefore, have been  given  to
\nProducer because the Producer is the person who produces the
\nmain  agricultural produce.  The main agricultural  produce,
\nwhich  may be a Notified Agricultural Produce, could then be
\nconverted into various other Notified Agricultural Produce\/s
\nby  subjecting\tthe same to a process or  manufacture.\t The
\nperson who so processes or manufactures a different Notified
\nAgricultural  Produce would not be a Producer.\tTo be  noted
\nthat an importer imports or causes goods to be imported into
\nthe  market  area  for the purpose of  selling,\t processing,
\nmanufacturing or for any other purpose, except for one’s own
\ndomestic  consumption.\tThus, it is clear that a person, who
\nimports\t would\tnot be a Producer.  The import would be\t for
\npurpose of selling or processing or manufacturing or for any
\nother  purpose\texcept for one’s own  domestic\tconsumption.
\nSimilarly,  the\t term  “Exporter”  makes it  clear  that  an
\nexporter  is  not a Producer.  A trader is also is a  person
\nwho  buys  Notified Agricultural Produce for the purpose  of
\nselling\t or  processing\t or manufacturing or for  any  other
\npurpose except for the purpose of domestic consumption.\t The
\ndefinition  of\tthe  term  “Trader”  is\t not  a\t restrictive
\ndefinition.  It is not restricted to a person who only buys.
\nIf  a person buys for domestic or personal consumption, then
\nhe would not be a trader.  It is only when a person buys for
\nthe  purpose of selling or processing or manufacturing\tthat
\nhe would become a trader.  Thus a person may buy, process or
\nmanufacture   and   then  sell.\t   When\t he   processes\t  or
\nmanufactures  Notified\tAgricultural  Produce which  he\t had
\nbought,\t it  may  change its character\tand  become  another
\nNotified  Agricultural Produce.\t Thus, by way of examples, a
\nperson\tmay  buy  milk and through processes makes  it\tinto
\nbutter and\/or cheese or a person may buy hides and skins and
\nby  a process make it into leather.  However, merely because
\na  distinct and separate Notified Agricultural Produce comes
\ninto  existence\t does not mean that the person\twho  bought,
\nprocessed and sold ceases to be a Trader.  The term “Trader”
\nencumbrances  not  just\t the purchase  transaction  but\t the
\nentire\ttransaction  of purchase, processing,  manufacturing
\nand selling.\n<\/p>\n
    In\tthis  behalf the case of Himachal pradesh  Marketing
\nBoard v.  Shankar Trading Co.  Pvt.  Ltd.  reported in 1997)
\n2  SCC\t496,  is  relevant.    Under  the  Himachal  Pradesh
\nAgricultural  Produce  Markets\tAct,   1969,  licences\twere
\nrequired  to  be  taken\t for   purchase,  sale,\t storage  or
\nprocessing  of agricultural produce and market fee was\talso
\npayable.   Producers  or growers however did not  require  a
\nlicence and did not have to pay market fees.  The Respondent
\nCompany\t (therein)  was\t producing   “katha”,  a   specified
\nagricultural   produce.\t  They\tdid   this   by\t  processing
\nKhairwood.   They claimed (like the Appellants in this case)
\nthat  as  producers they did not need a licence\t and  market
\nfees  were  not payable by them.  This Court negatived\tthis
\ncontention  by\tholding that a person producing a  specified
\nagricultural  produce  by processing a natural product\tdoes
\nnot fulfil the requirement of being producer\/grower.  It was
\nheld  that the clause of the Act made it clear that only the
\nactual\tgrower\/producer of the natural agricultural  produce
\nwere  to be befitted.  Of course the definition of the terms
\nin  that  Act are different.  However in our view the  basic
\nprinciple is the same.\tIt applies to this case also.\n<\/p>\n
    We\talso  see  no substance in the\tsubmission  that  if
\nSection\t 65(2-A)(ii) did not apply, then Section 65(2-A)(iv)
\nwould  apply.  Section 65(2-A)(iv) is residuary clause.\t  It
\nwould  only apply if none of the other clauses applies.\t  As
\nit  is\tclear that the Appellants are Traders they  squarely
\nfall  within  Section 65(2-A)(iii).  In fact, they may\talso
\nfall within Section 65(2- A)(ia).  As they fall within these
\ntwo  clauses  there is no question of the  residuary  clause
\napplying.\n<\/p>\n
    Under  these  circumstances, we see no infirmity in\t the
\nJudgment  of the High Court.  We see no reason to interfere.
\nThe  Appeals  stand dismissed.\tThere will, however,  be  no
\nOrder as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India G. Giridhar Prabhu & Ors vs Agricultural Produce Market … on 2 March, 2001 Author: S N Variava Bench: V.N. Khare, S.N. Variava CASE NO.: Appeal (civil) 3982-3984 of 1999 PETITIONER: G. GIRIDHAR PRABHU & ORS. Vs. RESPONDENT: AGRICULTURAL PRODUCE MARKET COMMITTEE DATE OF JUDGMENT: 02\/03\/2001 BENCH: V.N. Khare & S.N. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-148993","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nG. 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