JANKI PRASAD YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard Mr. Ravindra Griyaghey for the petitioners, learned GP I for respondent no. 1, Ms. Nilu Agrawal for respondent nos. 2 to 4, and Mr. Ashutosh Ranjan Pandey for respondent no. 5 (Umesh Yadav). Let the Vakalatnama filed on behalf of respondent no. 5 be kept on record and the appearance of learned counsel be noted. This writ petition is directed against the order dated 5.4.2002 (Annexure 8), whereby the reacution fixed for 15.4.2002 has been recalled.

(2.) This relates to appointment of a Collection Agent for collection of market fee fa Pakri Barama in the district of Nawadah for which the Agricultural Produce Market Committee, Warsaliganj, (hereinafter referred to as 'the Committee') had issued its notice dated 4.3.2002 (Annexure 1), which included other items for settlement not relevant in the present context. It was stated therein that the auction will be held on 19.3.2002, failing which 23.3.2002, still failing which on 26.3.2002. The auction could not take place on 19.3.2002 nor on 23.3.2002, and was ultimately held on 26.3.2002. At this stage, learned counsel for respondent no. 5 intervenes and submits that the auction could not be held on 23.3.2002 because of the request made by the petitioner, which is disputed by learned counsel for the petitioner. Learned counsel for respondent nos. 2 to 4 has placed before me a photocopy of the bid-sheet in original on a perusal of which it appears that the petitioner including respondent no. 5 had participated in the bid. The offer of respondent no. 5 being the highest, i.e. Rs. 1.25 lacs, was accepted who deposited the requisite half of the said amount. The petitioner submitted an application on 27.3.2002 to respondent no. 2 (Sub-divisional Officer-cum-Chairman, Agricultural Produce Market Committee, Nawadah), who is the ex-officio Chairman of the Market Committee, stating therein that he could not participate in the bid on 26.3.2002. He made the offer of Rs. 1,56,000/- which is higher than respondent no. 5. It appears that the petitioner's request was accepted, and the Secretary of the Market Committee had written his letter dated 30.3.2002 (Annexure 4) to the petitioner to deposit half of his aforesaid offer of Rs. 1,56,000/- on or before 2.4.2002, in which case the aforesaid settlement in favour of respondent no. 5 shall be cancelled. According to the petitioner, he deposited half of his offer, as is evidenced by money receipts marked Annexure 5 series. Consequently, the Market Committee issued its notice dated 3.4.2002 (Annexure 6), whereby the aforesaid advertisement as well the settlement in favour of respondent no. 5 were cancelled, and auction pertaining to Pakri Barama market (apart from two other places not relevant in the present context, was fixed for 15.4.2002. Before the auction took place, respondent no. 4 (the Regional Director, Agricultural Produce Market Committee, Bihar, Patna) has passed the impugned order dated 5.4.2002 (Annexure 8), whereby he has cancelled the aforesaid advertisement dated 3.4.2002 (Annexure 6), and has restored the settlement in favour of respondent no. 5.

(3.) While assailing the validity of the impugned order, learned counsel for the petitioners submits that the petitioners are acting on behalf of the Panchayat Samiti and, therefore, their claim for settlement is covered by the provisions of Section 22 (ii) failing which 27 (i) (kha), and still failing which Section 22 (2) (kha) of the Bihar Panchayat Raj Act. It appears to me on a plain reading of the aforesaid provisions that the same are inapplicable to the facts and circumstances of the present case for the various reasons. If the same is made applicable to the present situation, then the Bihar Agricultural Produce Market Act, 1960, would be rendered otiose. Secondly, it is manifest from a plain reading of Section 22 (ii) that the same is applicable to agricultural operation which is a clearly distinct and different field than the one covered by the Agricultural Produce Market Committee Act. The same logic applies to the provisions of other two Sections relied on by the learned counsel for the petitioners. In addition, in so far as Section 27 (1) (kha) is concerned, the same relates to imposition of tax on different trade, avocation etc. which is clearly distinct from the field operation of the Agricultural Produce Market Act. Furthermore, Sec. 27 (1) (kha) empowers the Market Committee to impose tax, whereas the Market Act imposes fee. Law is well settled that both are compulsory exaction but the assessee in the case of fee is entitled to services in lieu thereof commonly described in the legal world as Quid Pro Quo. In other words, so far as tax is concerned, no such Quid Pro Quo is possible. In so far as the provisions of Sec. 27 (ii) (kha) is concerned, the same authorises the Panchayat Committee to impose a fee for maintenance of cleanliness and hygiene in places of pilgrimage, hat, mela etc. which once again is clearly a distinct and different field covered by the Market Committee Act.