B. P. Jeevan Reddy, CJ.

1. A common question arises in this batch of 12 writ petitions. They can be disposed of under a common order. For the sake of convenience, we shall refer to the facts in C.M.W.P. No. 9579 of 1987. The 15 petitioners in this writ petition are licensed traders within the Market Area, Bareilly. For Bareilly District, a market Committee has been constituted under the U. P. Krishi Utpadan Mandi Adhiniyam, 1964. All the petitioners also happen to be millers. They purchase paddy both within the Bareilly Market area and from outside Bareilly Market Area, which they mill in their respective rice mills.

2. Under section 3 of the Essential Commodities Act, the State of U. P. issued the U. P. Rice and Paddy (Levy and Regulation of Trade) Order, 1981 which was replaced in the year 1985 by another similar order. Under the aforesaid Control Orders, Rice Mills are obliged to deliver 60 per cent of the rice milled by them to the State by way of levy. The remaining 40 per cent they are free to sell in open Market. The levy rice has to be delivered to the State on the price notified by the State Government.

The U. P. Krishi Utpadan Mandi Adhiniyam, 1964 (for short, Mandi Adhiniyam) provides for levy of Market fee on all transactions taking place in the market Area. The charging provision is contained in clause (iii) of section 17. Section 17 deals with the powers of the Committee. In so far as it is relevant, it reads as follows :-

"17. Powers of the Committee- A Committee shall, for the purposes of this Act, have the power to- (i) ... (ii) .. (iii) Levy and Collect : (a) such fees as may be prescribed for the issue or renewal of licences, 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 one and half 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 manner- (1) if the produce is sold through a commission agent, the 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 trader from a producer the trader shall be liable to pay the market fee to the committee ; (3) if the produce is purchased by a trader from another trader, the trader selling the produce may realise if 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 ; Provided that no market fee shall be levied or collected on the retail sale of any specified agricultural produce where such sale is made to the consumer"

A reading of clause (iii) discloses that the market fee is levied upon transactions of sale (of specified agricultural produce) taking place in the market area. (The expression 'Market Area' is defined in clause (k) of section 2 to mean an area notified as such under section 6 or as modified under section 8). The person liable to pay the market fee is identified in the lour sub-clauses of clause (iii) (b) of section 17. Clauses (1) (2), (3) and (4) of clause (iii) (b) are mutually exclusive. In each case, one has to see under which of the said sub-clauses does a transaction fall and then determine the person liable to pay the fee.

3. In the year 1986, the Market Committee issued notices to the petitioners calling upon them to remit the market fee in respect of levy-rice- sales effected by them. According to the Committee, the sales effected by the petitioners fell under sub-clause (3) and hence they being the selling traders, are liable to pay the market fee. This demand was questioned by the petitioners in a batch of writ petitions in this court. Two contentions were mainly urged by the petitioners in those writ petitions, namely ; (i) That delivery o