STATE OF RAJASTHANversusMOOL CHAND AND ANR.

A                             STATE OF RAJAS THAN
                                          v.
                            MOOL CHAND AND ANR.

                                OCTOBER 14, 2004

B                  [ARIJITPASAYAT ANDC.K. THAKKER,J.T.]


        Rajasthan Agricultural Produce Market Act, 1961; Sections 17 and 281
  Rajasthan Agricultural Produce Market Rules, 1983: Evasion of payment of
  market duty on agricultural produce by a licensed commission Agent-
C Complaint against-Trial Court found Licensee guilty, sentenced him to
  simple imprisonment for three months and directed him to deposit the evaded
  amount of duty-Affirmed by Appellate Court reducing the sentence-
  Conviction set aside by High Court directing refund of the duty deposited
  relying on a decision relating to the UP. Act-On appeal, Held: Provisions
D of the UP. Act not applicable as they operate in different field and cannot
  be pressed into service to the case covered under the provisions of the
  Rajasthan (I.ct-High Court failed to notice the difference in the language of
  the two Acts-Nor did it give any reason for applying the decision in UP.
  case to Rajasthan matters-Hence, matter remitted to High Court for
E consideration afresh-UP. Krishi Utpadan Mandi Adhiniyam, 1964-Section
    17.

           On inspection of records of one of the respondents-licensed traders and
    commission agents in the Krishi Utpadan Mandi Samiti, Jodhpur, it was found
    by the authorities concerned that the respondent was not using declaration
F   form as prescribed under the Rajasthan Agricultural Market Rules and
    noticed evasion of certain amount of duty by him. A complaint was filed by the
    authorities before the appropriate Court for recovery of the duty. Trial Court
    found the respondents guilty of the alleged offence of evasion of market fee/
    duty and sentenced them to simple imprisonment for three months and ordered
    to deposit the evaded amount of duty. Reducing the sentence, Appellate Court
G   affirmed the order. On second appeal, High Court set aside the conviction
    and directed the authorities to refund the recovered amount of duty holding
    that liability tu pay market fee was on the purchaser and noton the licensee.
    Hence the prestmt appeal and the connected appeal.


H                                        498
                  ST ATE OF RAJASTHAN v. MOOL CHAND                         499
      It was contended for the appellant-State that the liability of the traders   A
and the agents is clearly stipulated in the Rajasthan Act; that the provisions
under the U.P. Act are different and as such not applicable to the facts and
circumstances of the present case which was covered under the provisions of
the Rajasthan Act

      Allowing the appeals, the Court                                              B
      HLED: 1.1. There is a basic distinction between the Rajasthan
Agricultural Produce Market Act and the U.P. Krishi Utpadan Mandi
Adhiniyam so far as the levy of market fee is concerned. In the U.P. Act there
is a specific reference of fixing the liability on the purchaser and in the        C
Rajasthan Act liability is on the licensee. (503-F]

       1.2. The High Court did not notice the contextual difference between
Section 17 of the Rajasthan Act vis-a-vis Section 17 of the U.P. Act. The logic
applied in the case of Krishi Utpadan Mandi Samiti, Haldwani and Ors. cannot
be pressed into service so far as the Rajasthan cases are concerned, because       D
the legal position is different. However, the High Court has not given any
reason as to why it thought that the UP. case was applicable to the present
appeals without even comparing the various provisions. On the sole ground
that High Court failed to notice the difference in the language of the U.P. Act
and the Rajasthan Act, the matters require to be remitted to !he High Court
Hence, the matters are remitted to the High Court for consideration afresh.        E
It is clarified that no opinion is expressed on the merit of the case. (504-C-E]

     Krishi Utpadan Mandi Samiti, Haldwani and Ors. v. Indian Wood
Products Ltd and Anr., (1996) 3 SCC 321, distinguished.

      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 667                    f
of 1999.

      From the Judgment and Order dated 13.1.98 of the Rajasthan High Court
in S.B.Crl. R.P. No. 387of1995.

      Ms. Madhurima Tatia and Indra Makwana for the Appellant.                     G
      Manish Singhvi, Saurabh Ajay, P.V. Yogeswaran, R.K. Gupta, K.K. Gupta,
Sushi! Kr. Jain, A.P. Dhamija, H.D. Thanvi, Sarad Singhania, L.P. Singh, Puneet
Jain and Mrs. Pratibha Jain for the Respondents.

                                                                                   H
    500                    SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A         The Judgment of the Court was delivered by

          ARIJIT PASAYAT, J. These two appeals involve identical issues and
    therefore are taken up for disposal together. The judgment impugned in
    Criminal Appeal No. 435 of 2002 was based on the judgment which is the
    subject matter of challenge in Cr!. A. No. 667 of 1999.
B         The background facts, so far as Crl.A. No. 667 of 1999 is concerned, are
    as follows:

         The respondent had obtained licence No. 55 as trader and commission
   agent 'A' class from the Krishi Upaj Mandi Samity, Jodhpur (hereinafter
C referred to as the 'Samity'). On 16.12.1989 records of the respondents were
   inspected. It was found that the declaration forms issued were not in terms
   of the Rajasthan Agricultural Produce Market Act, 1961 (in short the 'Act')
   and the Rajasthan Agricultural Produce Market Rules, 1963 (in short the
   'Rules') as they did not contain actual details and disclosed evasion of
   payment of market duty amounting to Rs.87,639.90. A notice was served on
D 9.l.1990 on the respondents to deposit the aforesaid amount. On 11.4.1990
   another notice was served, when there was no response to the first notice.
   Since there was no response to the second notice also a complaint being no.
    115 of 1990 on 16.6.1990 was filed before the appropriate court for commission
   of offence in not complying with the requirements of Section 17 of the Act,
E thereby attracting action under Section 28 of the Act. Learned Additional
   Chief Judicial Magistrate No. 3 at Jodhpur tried the case and found the
   respondents guilty of alleged offence of evasion of mandi fee and sentenced
   the respondent no. 1 to undergo simple imprisonment for three months and
    imposed fine of Rs.1,000 with default stipulation. Further direction was given
   to the respondents to deposit the evaded amount of Rs.87,639.90 in court.
F The respondents questioned legality of the said judgment in Cr!. A. No. 46
   of 1995. The appeal was heard and disposed of by learned Special Judge, SC/
   ST Act cases, Jodhpur. In the appeal only the State of Rajasthan was imp leaded
   as a party and not the Samity. However the appellate court did not find any
   merit in the appeal and dismissed the same. However, the sentence was
   reduced to imprisonment till rising of the court. The respondents filed S.B.
G Criminal Revision Petition No. 387of1995 and questioned correctness of the
   judgment rendered by the courts below. The High Court allowed the appeal
   and set aside the conviction recorded by the courts below, and ordered
   refund of the recovered amount by judgment dated 13.1.1998. The whole basis
   of the judgment revolves round the judgment of the Court in Krishi Utpadan
H, Mandi Samiti, Haldwani and Ors. v. Indian Wood ~roducts Ltd. and Anr.,
             STATEOFRAJASTHAN v. MOOLCHAND[PASAYAT,J.]                         501
[ l 996] 3 sec 32 l (l 996) 2 Supreme 726. It was held by the High Court,             A
purportedly following the decision of this Court that the liability to pay the
market fee was that of the purchaser and the present respondents had no
liability to pay the market fee.

      In the connected appeal the said judgment of the High Court was
followed in a petition filed by the respondents.· ·· ·                                B
      In support of the appeals, learned counsel for the appellant-State and
the Samity submitted that the provisions under the U.P. Krishi Utpadan
Mandi Adhiniyam, 1964 (hereinafter referred to as the 'U.P. Act') were different.
The liability on the traders is clearly stipulated in the Rajasthan Act itself. The   C
position was different under the U.P. Act therefore the decision should not
have been relied upon without considering the distinguishing features.

      In response learned counsel for the respondents submitted that the
decision in Krishi Utpadan 's case (supra) was clearly applicable. The provisions
are identical and therefore the High Court was justified in placing reliance on       D
the said judgment.

      In order to appreciate the rival submission the corresponding provisions
of the two Acts i.e. Rajasthan Act and the U.P. Act need to be noted.

      So far as the U.P. Act is concerned Section 17 reads as follows:                E
            "Powers of the Committee - A Committee shall, for the purposes
        of this Act, have the power to -

        (0    issue or renew licences under this Act on such terms and
        conditions and s_ubject to such restrictions as may be prescribed, or,        F
        after recording reasons therefore, refuse to issue or renew any such
        licence;

        (ii) suspend or cancel licences issued or renewed under this Act :

            Provided that before cancelling a licence except on the ground of
        conduct which has led to the conviction of the licensee under Section         G
        37, the Committee shall afford reasonable opportunity to him to show
        cause against the action proposed.

        (iii) levy and collect -

        (a) such fees as may be prescribed for the issue or renewal of licences;      H
    502                    SUPREME COURT REPORTS [2004]SUPP. 5 S.C.R.

A          and

           (b) market fee which shall be payable on transactions of sale of
           specified agricultural produce in the market area at such rates, being
           not less than one percentum and not more than two and a half
           percentum of the price of the agricultural produce so sold as the State
B          Government may specify by notification, and development cess which
           shall be payable on such transactions of sale at the rate of half
           percentum of the price of the agricultural produce so sold, and such
           fee or development cess shall be realized in the following manner :-

               (l) if the' produce is sold through a commission agent, the
C          commission agent may realize the market fee and the development
           cess from the purchase and shall be liable to pay the same to the
           Committee;

                (2) if the produce is purchased directly by a trader from a producer,
           the trader shall be liable to pay the market fee and development cess
D          to the Committee;

                (3) ifthe produce is purchased by a trader from another trader, the
           trader selling the produce may realize itfrom the purchaser and shall
           be liable to pay the market fee and development cess to the Committee;

E              Provided that notwithstanding anything to the contrary contained
           in any judgment, decree or order of any court, the trader selling the
           produce shall be liable and be deemed always to have been liable with
           effect from June 12, 1973 to pay the market fee to the Committee and
           shall not be absolved froQl such liability on the ground that he has
           not realized it from the purchaser;
F
               Provided further that the trader selling the produce shall not be
           absolved from the liability to pay the development cess on the ground
           that he has not realized it from the purchaser;

                (4) in any other case of sale of such produce, the purchaser shall
G          be liable to pay .the market fee and development cess to the Committee."

         In the Rajasthan Act and Rules Section 17 and Rule 59 are relevant.
    They read as follows:

           "Section 17- Power to collect market fees: The ".llarket committee
H          shall collect fee from the licensees in prescribed manner on agricultural
           STATEOFRAJASTHAN v. MOOLCHAND[PASAYAT,J.]                           . 503

        produce brought or sold by them in market area at such rate as may              A
        be specified by the State Government by notification in official Gazette,
        subject to a maximum of Rs.2 per rupees one hundred worth ()f
        agricultural produce.

        Rule 59- Recovery of Cess and fees: (l) The cess on agricultural
        produce shall be payable as soon as it is brought and sold in the               B
        market area as may be specified in the bye-laws.

        (2) The market fee shall be paid by the 'purchaser' in the following
        manner:-

            (i) if the specified agricultural produce is sold through an "A"            C
        class broker the "A" class broker shall charge market fee from purchaser
        and deposit the same with the market committee in accordance with
        the procedure specified in the bye-laws.

            (ii) If the specified agricultural produce is not sold through an
        "A" class broker, the seller shall charge market fee from the purchaser         D
        and deposit the same with the market committee in the manner specified
        in the bye-laws.

           (iii) In case the seller is not a licensee, the market fee shall be
        deposited by the purchaser in the manner specified in the bye-laws.

            Explanation: The word 'purchaser' means and includes a person               E
        who as a trader or broker or any other operator has obtained a license
        for the purchase of agricultural produce in the market area."

       There is a basic distinction between the Rajasthan Act and the U.P.
Act so far as the levy of market fee is concerned. In the U.P. Act there is a
specific reference of fixing the liability on the purchaser and in the Rajasthan        F
Act liability is on the licensee.

      Section 14 of the Act deals with power of market committee to issue
licences. It, inter a/ia, provides that market committee may issue and renew
licences in accordance with rules and bye-laws to "traders, brokers, weighmen,
measurers, surveyors, warehousemen and other persons". Section I 7 deals                G
with power to collect market fees. The levy is on the agricultural produce
brought or sold by licensees in the market area. The market committee has
the power to collect the market fees from the licensees. It has to be factually
determined that the licensee brought or sold "agricultural produce" (as defined
in Section 2(1 )(i) in the 'market area" (as defined in Section 2( I)( viii) i.e. any   H
    504                      SUPREME COURT REPORTS (2004) SUPP. 5 S.C.R.

A   area declared to be a market area under Section 4). The collection of market
    fees from the licensee has to be in the prescribed manner. Prescribed as per
    Section 2(l)(xii) means prescribed by rules under Section 36. A bare reading
    of Section 17 makes the position crystal clear that liability to pay market fees
    is of the licensee and the collection has to be in the prescribed manner. There
B   can be no doubt as to who is liable to pay.

          The basic distinction has been lost sight of by the High Court. The
    difference is terminological i.e. 'purchasers' in the U.P. Act and 'licensees' in
    the Rajasthan Act operate in different spheres altogether.

             The High Court unfortunately did not notice the contextual difference
C between Section 17 of the Rajasthan Act vis-a-vis Section 17 of the U.P. Act.
    The logic applied in the U.P. case i.e. Krishi Utpadan 's case (supra) cannot
    be pressed into service so far as the Rajasthan cases are concerned, because
    the legal position is different. Unfortunately, the High Court has not given
    any reason as to why it thought that the U.P. case was applicable to the
D   present appeals without even comparing the various provisions. Though
    learned counsel for the respondents submitted that in-depth analysis has
    been done and therefore no further analysis is necessary, on the sole ground
    that High Court failed to notice the difference in language of the U.P. Act and
    the Act, this matter requires to be remitted to the High Court. We, therefore,
    set aside the impugned judgments of the High Court and remit the matter for
E   fresh consideration as in both cases i.e. Criminal Appeals 667of1999 and 435
    of 2002 legal position is the same. The factual position has to be examined
    by the High Court. We make it clear that we have not expressed any opinion
    on the merit of the case.

             The appeals are allowed.
F
    S.K.S.                                                        Appeals allowed.