ORDER
N.Y. Hanumanthappa, J.
1. Thechallenge in this Batch of writ petitions is to the competence of the Agricultural Market Committees to levy and collect market fee on ghee, under the provisions of the A.P. (Agricultural Produce and Live Stock) Markets Act, 1966 (for short 'the Act'), at one per cent on sale of ghee and further insisting on the dealers dealing in ghee to obtain licences and maintain proper records.
2. The facts as narrated by the petitioners are as under: The petitioners arc traders dealing in ghee. According to them they purchase ghee from farmers and transport the same out of the State of Andhra Pradesh. Ghee is prepared out of butter through mechanised process. From milk, curd is prepared and butter is churned from the curd. However, under the mechanised process butter is also extracted directly from milk. After the butter is prepared it is put to healing process to get ghee, which is a byproduct of butter. Under the provisions of the Act, market fee or cess is levied on different items of livestock and products of livestock by the Agricultural Market Committees (for short 'the Committee') constituted by the Government under Sections 3 and 4 of the Act. Under Section 12 of the Act, the notified agricultural market committees are empowered to collect market fee in respect of the agricultural produce, livestock and products of livestock. The State Government while constituting the Agricultural Market Committee for Guntur and Ongole, included 'ghee' as one of the items of livestock. When it was represented to the authorities that ghee is not a live-stock product and if it is allowed to continue hardship would be caused to traders, the Government issued G.O. Ms.448, Food and Agriculture (Agri.IV) Department, dated 29-3-1972, deleting the item 'ghee' from the Annexure to the notification issued in G.O. Ms. No.976, Food and Agriculture Department, dated16-7-1971. Thus, ghee is neither agricultural produce nor a livestock product. As such the petitioners contend that they are not liable to pay any market fee or eess on the sale of ghee. According to the petitioners, ghee is not sold in the market yard or in the notified area. As such there cannot be any demand for payment of fee on sale of ghee. No facilities are provided to the traders in ghee in the market yard. According to them, if any, fee is proposed to be levied or ordered to be levied, then there shall be quid pro quo.
3. It is further submitted that apart from manufacturing ghee, the petitioners are also importing ghee from other parts of the State and whenever the commodity enters the State, the check-post authorities are trying to insist upon payment of market fee. According to the petitioners, as no facilities are provided by the market committees to the traders of ghee, the market committees are not entitled to either demand or collect the market fee, if any.
4. It is further submitted by the petitioners that the demand of the authorities for payment of market fee on ghee is in contravention of the decision of the Apex Court in Keval Krishnan v. State of Punjab, : [1979]3SCR1217 .
5. It is also submitted by the learned Counsel for the petitioners that without providing any special benefits, the demand for the market fee from the traders of ghee is in contravention of the decision of the this Court in Pan Merchants' Wholesale Commission Agents' Association v. MRO, : 1993(2)ALT205 . Since 'ghee' has been withdrawn from the notification of live-stock products, again proposing to levy fee on such product is not correct. According to the petitioners, 'ghee' is almost similar to 'dry fish'. In support of their contention, they relied on a decision of this Court in Sri Lakshmi Dry Fish Traders v. State, : AIR1986AP330 , wherein it was held that 'dry fish' is not live stock.
6. It is submitted that in order to include a particular item of livestock or a product of livestock as an item for levying the market fee, it must have a direct bearing with reference to the produce and not a remote relation. As such 'ghee' is neither a livestock produce nor has any relation to the products, which are derived from the livestock. In such view of the matter the respondents cannot collect any fee from the traders of ghee'.
7. It is also submitted that the petitioners are not selling 'ghee' within the market yard area. As such insistence upon the petitioners by the respondents that the petitioners shall obtain licence under Section 7 of the Act or imposing cess of 1% as contemplated under Section 12(1) of the Act is illegal and is violative of Article 19(g) of the Constitution of India.
8. On service of notices, the Market Committee filed counter stating that the Government of Andhra Pradesh in exercise of powers conferred under Section 3(1) of the Act notified certain areas constituting market committees as required under Section 4(1) of the Act. According to the contention of the market committee, 'ghee' is one of the live-stock products as required under sub-section (3) of Section 3 of the Act, as per the notification issued in G.O. Ms. No.2095 dated 29-10-1968. Under Section 4(4) of the Act the Government can regulate the sale and purchase of live-stock and products of live-stock. Vide G.O. Ms. No.286 dated 5-7-1994 the Government directed all the Market Committees in the State to notify the commodities liable to pay fee and 'ghee' is also notified as one among such commodities. It is further declared that the traders of 'ghee' are liable to obtain licence under Section 7(1) of the Act and pay fee under Section 12(1) of the Act.According to the Market Committee the purpose of enactment of Sections 3(3) and 4(4) is altogether different. G.O. Ms, No.448 dated 29-3-1972 under which the item 'ghee' was deleted from the notified commodities is nothing to do with the commodities specified in Schedule-11, as the same came to be re-notified by subsequent notifications. According to the market committee, the 'products of live-stock' means such products of livestock as may be declared by the Government by notification to the products of the livestock for the purpose of the Act. The Government vide G.O. Ms. No.2096 dated 29-10-1968 declared 'ghee* as a notified produce of livestock and specified the same in schedule-II under Section 3(3) of the Act. The contention of the petitioners that 'ghee' is only a byproduct and not a live-stock has no weight to carry. It is stated that 'ghee' is nothing but a product of livestock and the correctness of G.O. Ms. No.286 dated 5-7-1994 has been upheld by a Division Bench of this Court in Chodavaram Co-operative Sugars Ltd v. State of Andhra Pradesh, 1997 (3) ALD 704 and Vijayawada Skin Merchants Association v. State of A.P., 1997 (3) ALD 720.
9. On the other hand Ms. Nanda R, Rao, learned Standing Counsel appearing for the respondents-Market Committees supported the impugned orders and also the arguments advanced by the learned Government Pleader.
10. In order to appreciate the rival contentions advanced by the parties, it is necessary to extract some of the provisions of the Act.
Section 3: Declaration of Notified Area:
(1) The Government may publish in such manner as may be prescribed a draft notification declaring their intention of regulating the purchase and sale of such agricultural produce, livestockor products of livestock in such areas may be specified in such notification.
(2) Such notification shall state that any objections or suggestions which may be received by the Government from any person within a period to be specified therein will be considered by them.
(3) After the expiration of the period specified in the draft notification and after considering such objections and suggestions as may be received before such expiration, the Government may publish in such manner as may be prescribed a final notification declaring the area specified in the draft notification or any portion thereof, to be a notified area for the purpose of this Act in respect of any agricultural produce, livestock and products of livestock specified in the draft notification.
(4) Subject to the provisions of subsections (1), (2) and (3) the Government by notification-
(a) exclude from a notified area, any area comprised therein; or
(b) include in any notified area, any area specified in such notification; (or)
(c) declare a new notified area by separation of area from any notified area or by uniting two or more notified areas or parts thereof or by uniting any area to a part of any notified area :
Provided that where, as a result of declaration of a new notified area under this clause, the entire area comprised in an existing notified area is united to one or more notified areas, the said existing notified area shall stand abolished.
4. Constitution of Market Committee and declaration of notified area:
(1) The Government shall constitute by notification a market committee for every notified area from such date as may be specified in the notification and the market committee so constituted shall be a body corporate by such name as the Government may specify in the said notification, having perpetual succession, and a common seal with power to acquire, hold and dispose of property and may, by its corporate name, sue and be sued;
(Provided that any market committee functioning immediately before such constitution in respect of a notified area abolished under the proviso to clause (c) of sub-section (4) of Section 3 shall stand abolished.
(1-A) Any notification made under sub-section (1) for the constitution of a new market committee in respect of any new notified area declared under clause (c) of sub-section (4) of Section 3, may contain such supplemental, incidental and consequential provisions, including provisions as to the composition of the new market committee or new and existing market committees and the apportionment of the assets and liabilities between the market committees affected thereby.)
(2) .....
(3) .....
(4) As soon as may be after the establishment of a market under subsection (3), the Government shall declare by notification the market area and such other area adjoining thereto as may be specified in the notification, to be a notified marketarea for the purpose of this Act in respect of any notified agricultural produce, livestock or products of livestock.
7. Trading etc., notified agricultural produce, livestock and products of livestock in the notified area :--
(1) No person shall, within a notified area, set up, establish or use, or continue or allow to be continued, any place for the purchase, sale, storage, weighment, curing dressing or processing of any notified agricultural produce of livestock or for the purchase or sale of livestock except under and in accordance with the conditions of a licence granted to him by the market committee:
Provided that the market committee may exempt from the provisions of this sub-section any person who carries on the business of purchasing or selling any notified agricultural produce, livestock or products of livestock not exceeding such value as may be prescribed:
Provided further that a person selling notified agricultural produce, livestock or products livestock grown, reared or produced by him, shall be exempt from the provisions of this sub-section, but the Government may for special reasons to be recorded in writing, withdraw such exemption in respect of any such person.
(Provided also that the market committee shall not renew the licence granted under this section, unless the I icensee pays all the arrears of amounts due to it under provisions of this Act.
Explanation :--Nothing in the second proviso to this sub-section shall be construed as exempting a co-operativemarketing society registered or deemed to be registered under the A.P. Co-operative Societies Act, 1964, selling notified agricultural produce, livestock or products of livestock grown, reared or produced by any of its members.
12. Levy of fees by the market committee:
(1) The market committee shall levy fees on any notified agricultural produce, livestock or products of livestock purchased or sold in the notified market area (at such rate, not exceeding (two rupees) as may be specified in the bye-laws) for every hundred rupees of the aggregate amount for which the notified agricultural produce, livestock or products of livestock is purchased or sold, whether for cash or deferred payment or other valuable consideration.
Explanation I:--For the purpose of this section, all notified agricultural produce, livestock or products of livestock taken out of a notified market area shall, unless the contrary is provided, be presumed to have been purchased or sold within such area.
Explanation II:--In the determination of the amount of fees payable under this Act, fractions often paise equal to or exceeding five paise shall be counted as ten paise and other fractions of ten paise shall be discharged.
Subsequently, the Government issued the following notification vide G.O. Ms. No.286, Agriculture and Co-operation (MKTG.I) Department dated 5-7-1994 which is as under: 'In exercise of the powers conferred by sub-section (4) of Section 4 of theA.P. (Agricultural Produce and Livestock) Markets Act, 1966 (Act 16 of 1966) and in supersession of all the G.O.s, issued on the subject of Agricultural produce, Livestock and Products of Livestock and flowers, she Governor of Andhra Pradesh hereby directs that all the notified markets shall regulate the purchase and sale of all the notified Agricultural Produce, Livestock and products of Livestock issued in schedule-II to the G.O. Ms. No.2095, Food and Agriculture (Agrl.) Department dated 29-10-J968 and flowers issued in schedule to G.O. Ms. No.610, Food and Agriculture Department, dated 21-10-1978 respectively as amended from time to time. '
11. In the light of the above facts, we have to proceed as to what types of commodities can be dealt with as live-stock or products of livestock.
12. The principles laid down by the Supreme Court as well as this Court in the decisions referred to above if examined in the light of the available information on record as to the nature of controversy involved in the instant writ petitions, we are of the considered view that the principles laid down in the earlier decisions referred to above have no application to the dispute raised for consideration in these writ petitions. On the other hand, the principles laid down by the Supreme Court in The Belsund Sugar Co. Ltd. v. The State of Bihar, 1994 (4) Scale 516, would aptly apply to the facts of the case on hand. It is settled law that levy of fees is always preceded by the service rendered.
13. In the instant writ petitions, the grievance of the petitioners is that no service is rendered by the respondents to the traders of ghee. No amenities are provided to the petitioners for conducting Lheir tradein the market yard. As no amenities are provided by the respondents, it is contended that the petitioners need not pay any fees to the market committees. This question -whether the facilities are at all provided by the respondents or not is purely a question of fact. If no facilities are provided by the respondents for conducting of the business by the petitioners, it is open for the petitioners to complaint about the same to the authorities concerned and if such complaint is made, the authorities arc bound to consider the same and pass appropriate orders thereon. But as long as the commodity is notified and continues in the statute book, one cannot escape from its liability, on the other hand he has to answer to the dictates of the statute.
14. In our considered view inclusion of the item 'ghee' as a notified commodity is well within the purview of the statute. There is no arbitrariness or illegality as such in the decision of the State. If one has to conduct trade in 'ghee' he has to necessarily obtain a licence from the market committee under Section 7(1) of the Act and has to pay the required market fee to the market committee concerned.
15. In the light of the above, having found that there is no merit in the contentions raised by the petitioners, we are of the considered view lhat these writ petitions are liable to be dismissed.
16. It is however, made clear that dismissal of these writ petitions does not preclude the petitioners from making an appropriate representation to the Market Committees to provide necessary facilities for carrying on their trade in 'ghee'. If any such application is made by the petitioners, the authorities concerned are directed to consider the same and pass appropriate orders thereon. It is also made clear that these observations do not absolve the petitioners of paying market fee as long as they are carrying the trade in 'ghee'.
17. In the result, alt these writ petitions fail and they are accordingly dismissed. No costs.