The court clarified the scope of section 14 (vii) and section 21 of the Assam Agricultural Produce Market Act, 1972, and held that the erection of check gates for preventing cess evasion and the levy of cess on notified agricultural produce brought into the State for sale were permissible under the Act.

The judgment and order dated 29.6.95 passed by the learned Single Judge of this Court in Civil Rule No.2925 of 1993 (1995 (2) GLJ 242) is the subject matter under challenge in this writ appeal.

The present dispute relates to the question and validity of the realisation of cess by the Marketing Inspector of Srirampur Check Gate as per related provisions of law laid down under Assam Agricultural Produce Act 1972 and rules made, therein/hereinafter referred to as Act and Rules.

2. According to the writ petitioner in Civil Rule No.2925 of 1993, the appellant herein, the respondents are to establish market yards, sub yards and to provide various facilities for the purpose of transacting business of sale and purchase of agricultural produce mainly by the growers, but so far Guwahati Sub Division Market Committee is concerned, there is no principal market yard or sub yard and no facility has been provided and the office of the said Market Committee is also situated outside the Sub Division and the cess being realised against services, and as such, the respondents are not entitled to realise the same.

3. Appellant purchased various articles in different States and in those States also there are Market Committees under the related provision of similar Act and Rules and cess is being realised in respect of goods. The goods while coming in taicks are detained in Srirampur Check Gate and the same are not allowed to move through the said check gate without payment of cess and such check gate, namely Srirampur Check Gate falls within Kokrajhar District and there is no Market Committee and, as such, no sale takes place at the check gate, but the respondents realise cess illegally and arbitrarily.

4. As the cess being realised against services and the respondents having not provided such services, they are not entitled to realise cess. As no sale takes place at Srirampur Check Gate for the purposes of realisation of cess, such realisation of cess by the respondents at the check gate is absolutely illegal and arbitrary and violative of Articles 265. 301 and 304 of the Constitution of India and the cess has to be paid by the purchasers. This is the case of the writ petitioner, appellant herein.

5. The case of the writ petitioner was contested by the respondents by filing affidavit-in-opposition and. contending inter alia that the cess is being realised for the purpose of preventing evasion of cess and the check gates have been established for the same purpose and that, realisation of cess at the check gate does not result in any disadvantage to the writ petitioner as they have to pay the cess at the later stage. According to the respondents, there is an alternative remedy for the writ petitioner by filing of revision before the State Govt if the writ peritioner is really aggrieved by the action of the respondents in realising the cess.

6. After hearing the parties, the learned Single Judge rejected the contention of the respondents regarding the alternative and efficacious remedy but held that the goods are brought by the writ petitioner (appellant) for the purpose of sale and cess is levied on the goods meant for notified areas; and that the same can be levied at the said check gate. It was also further held that the traders including the petitioners who purchase goods from other States are maintaining their trading premises within the declared market areas and the traders purchase goods and are delivered within the notified areas and, as such, the levy of cess is attracted and the question of erection of check gate is concerned, such erection is permissible within the purview of section 14 (vii) of the Assam Agricultural Produce Market Act. 1972 vide impugned order dated 29.6.95 passed in Civil Rule No.2925 of 1993.

Being aggrieved by the impugned judgment and order, the writ petitioner, filed this writ appeal.

7. Shri NM Lahiri. the learned Senior Advocate assisted by Shri GN Sahewalla for the writ appellant, at the very outset contended, that the l

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