IMPORTANT POINT
Where the transaction of sale of specified agricultural produce is between a trader and a trader and where the selling trader does not collect the fee from the purchasing trader, the liability to pay the market fee remains to be that of the purchaser and he cannot refuse to pay the said fee.

ORDER

Heard counsel for both the parties.

Leave granted.

2. The only question in this batch of appeals is where the transaction of sale of specified agricultural produce is between a trader and a trader, whether the purchasing trader is liable to pay the market fee in cases where the selling trader does not collect it from him. This question has to be answered with reference to the language of Section 17(iii)(b) which reads as under :

"17. Powers of the Committee.-A Committee shall, for the purposes of this Act, have the power to-

(iii) levy and collect :

(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 percentum of the price of the agricultural produce so sold, as the State Government may specify by notification, and such fee shall be realised in the following mnner-

(1) if the produce is sold through a commission agent may realise the market fee from the purchaser and shall be liable to pay the same to the Committee;

(2) if the produce is purchased directly by a trander from a producer the trader shall be liable to pay the same to the Committee;

(3) if the produce is purchased by a trader from another trader, the trader selling the produce may realise it from the purchaser and shall be liable to pay the market fee to the Committee; and

(4) in any other case of sale of such produce, the purchaser shall be liable to pay the market fee to the Committee;

(Proviso omitted as unnecesary)"

A reading of the aforesaid provisions shows that the liability to pay the market fee is placed primarily upon the purchaser. Sub-clauses (1) and (4) expressly say so. So does sub-clause (2). (Sub-clause (2) is also consistent with the general policy underlying such enactments that the producer of specified agricultural produce is not to be made liable to pay the fee). Now, coming to sub-clause (3), with which we are directly concerned herein, it says that "trader selling the produce may realise it from the purchaser and shall b liable to pay the market fee to the committee". On the basis of the language of this sub-clause, it is contended by the purchasing dealers (who are respondents in these appeals) that the levy in such a case is upon the selling trader and that it is for him to pay the market value. It is submitted that such selling trader may collect the fee from the purchaser or he may not. Whether the selling trader collects it from the purchaser or not, it is he who is liable to pay the market fee since the levy is upon him, it is submitted. We are unable to agree with the submission. A reading of the several sub-clauses shows, as mentioned hereinbefore, that the liability to pay the market fee is always upon the purchaser. It is no different in sub-clause (3). If the ultimate liability was not upon the purchaser, there was no meaning in the Legislature saying that the selling producer may realise the fee from the purchaser and make it over to the Committee. The use of the word "shall" in the said clause means that where the selling trader realises the fee from the purchasing trader, he is bound to make it over to the Committee. But where the selling trader does not realise it from the purchaser, he is under no obligation to pay the market fee to the Committee. In such a case, the liability to pay the market fee is upon the purchasing trader. This interpretation, in our opinion, accords with the scheme of clause (b) of Section 17(iii) of the Act.

3. Dr. Sankar Ghosh, learned counsel for the respondents, contended that prior to the amendment of Section 17(iii)(b) by Uttar Pradesh Act 7 of 1973 (with effect from June 12, 1973), clause (b) was clear and specific in the sense that it expressly made the purchaser liable to pay the market fee. Learned counsel says that by amendment the said concept was modified, and in certain cases, i.e., in the situati