Durga Oil Mills and Others vs Agriculture Produce Marketing Board and Another

S.B. Sinha and R.N. Prasad, JJ.—The Petitioners who are Oil Mill owners have filed this writ application playing therein for a declaration that Mustard Oil is not a commodity notified in Schedule 1 of the Bihar Agricultural Produce Market Act, 1960 (hereinafter called and referred to as ''the said Act'') and thus no market fee is livable thereupon.

The Petitioners are manufacturers of Mustard Oil and they got themselves registered with the Bihar Agricultural Produce Market Committee, Patna City and are also licensees under Bihar Trade Articles (Unification of Licences) Order.

The Petitioners contend that before a commodity is notified to be an agricultural produce, the provisions of Sections 3 and 4 of the said Act nave to be complied with. According to the Petitioners, the intention of the Legislature to include such agricultural produce in respect whereof the market fee is to be realised has been notified in the Schedule. It has further been stated that mustard oil cannot be notified as vegetable ''oil, nor market fee is leviable thereupon in view of the fact that only ''oil seeds'' have been notified and not Mustard Oil as such.

The Petitioners have contended that despite the fact that no market fee is leviable, they have been forced to deposit the same. The Petitioner No. 1 filed an objection which is contained in Annexure 1 to the writ application but by reason of the impugned orders as contained in Annexure 2 series dated 7.6.1993, the said objection has been rejected keeping in view the orders of this Court passed in C.W.J.C. No. 1329 of 1985. The Respondent No. 2 in his order has strongly relied upon a decision of this Court in Tata Oil Mills v. Director, Marketing (C.W.J.C. No. 1329 of 1985) reported in 1986 P.L.J.R. 172.

Mr. Ram Balak Mahto, learned Counsel appearing for the Petitioners submitted that the decision of this Court in Tata Oil Mills Co. Ltd. v. Director, Marketing, Bihar State Agricultural Marketing Board and Anr. cannot be said to have any application whatsoever as no notification under Sections 3 and 4 of the Act in relation to Mustard Oil has been published. The learned Counsel submitted that in any event the said decision requires reconsideration in view of a recent decision of the Court in Delhi Cloth and General Mills Co. Ltd. and Others Vs. The Agricultural Produce Market Committee and Others wherein it has been held that before a commodity is included in the Schedule appended to the Act, a notification under Sections 3 and 4 of the Act has to be issued.

Learned Counsel submitted that the word "Vegetable oil" must be understood in the same way as a consumer understands the said expression for purchasing goods from the market and in that view of the matter, mustard oil can never be included in the definition of vegetable oil. Learned Counsel in support of his contention relied upon the decision reported in Motipur Zamindary Co. (P) Ltd. Vs. The State of Bihar, AIR 1961 S.C. 1233; (Donald Miranda etc. v. The Commissioner of Income Tax, Bombay) and State of West Bengal and Others Vs. Washi Ahmed and Others,

It was further submitted that as the said Act is penal as also a taxing statute, the provisions thereof must be strictly construed.

Mr. A.K. Keshari, learned Counsel appearing on behalf of the Respondents, however, submitted that this case is fully covered by the decision of this Court in Tata Oil Mills and Co. Ltd. (Supra) as also the decision of this Court in Durgaji Rice Mills and Others Vs. State of Bihar and Others, .

The said Act was enacted in terms of Entry 28 of List II of the 7th Schedule of Constitution of India. The object of the enactment is to establish market and to regulate buying and selling of Agricultural produce in the market established under the Act for the purpose of protecting the interest of the Agriculturist.

The definition of agricultural produce has been amended by reason of Act 60 of 1982 and the same now reads thus:

''KRISHI UPAJ'' SE ABHIPRET HAI KRISHI UDYAN-KRISHI (BAGWANI), BAGANO, PASHU-PALAN, WAN, RESHAM UTPADAN MATSYAPALAN KI SABHI UPAJ, CHAHE WAH VIDHAXIT (TAIYAR) HO YA ADHI VIDHAYIT: VlNTRMIT HO YA NAHI, AUR ISKE ANTARGAT ANUSUCHI MEIN YATHA VINIRDISHT PASHUDHAN YA.KIKKUT, ADI BHI HAI.

However, the definition of ''Agricultural Produce'' prior to its amendment read thus:

''agricultural produce'' includes all produce, whether processed or non-processed of agriculture, horticulture, animal husbandry and forest specified in the Schedule.

From a bare perusal of the said definition, therefore, it is evident that the word ''agricultural produce'' not only brings within its fold the actual agricultural produce but also the goods processed therefrom. Section 3 of the said Act provides for constitution of markets and market Committees, wherefor a notification declaring the intention of the State to regulate the purchase, sale, storage and processing of such agricultural produce and such area has to be specified therein.

Section 4 of the Act provides for a declaration of market area.

Section 39 of the said Act, however, enables the State Government to add, amend or cancel any of the items of the agricultural produce specified in the Schedule.

In Mahabir Tea Company v. State of Bihar reported in 1979 BLJR page 560, it has been held that the said provision does not suffer from the vice of excessive delegation.

N.P. Singh, J. (as his Lordship then was) speaking for the Division Bench in Tata Oils Mills Co. Ltd. (Supra) held that a coconut is a fruit and thus can be included in the definition of vegetable in its generic sense-accordingly "coconut oil" shall be deemed to be "vegetable oil" as specified in the Schedule. The learned Judges further observed as follows:

The same question can be examined in Anr. context. Admittedly, coconut has been mentioned against item 21 of Schedule IX. It might have been mentioned in the Schedule in the category of "Condiments, spices and Ors. " and not specifically in Schedule V-Oils. Once coconut in view of Schedule IX(21) becomes an agricultural Produce then any derivative through processing shall also be an agricultural produce. Even under the old definition "Agricultural Produce" included all produce "whether processed or non-processed of agriculture, horticulture etc." Coconut oil is admitted a processed product of coconut. In such a situation there is no escape from the conclusion that coconut oil was an agricultural produce under the old definition and now there should not be any controversy in respect thereof after introduction of the new definition of "agricultural produce" in the Act.

In Shri Durgaji Rice Mills v. State of Bihar reported in 1989 PLJR 616, it has been held that market fee is leviable both on paddy and rice.

Learned Counsel appearing on behalf of the Petitioners has, however, relied upon a recent decision of a Division Bench of this Court in Delhi Cloth and General Mills (Supra). In that decision it has been held that no market fee will be leviable on sugar. The Division Bench came to the aforementioned conclusion absolutely on a different ground inasmuch as sugar which was one of the notified agricultural produce was deleted by a subsequent notification dated 2.5.1977 but the said notification was later on rescinded by Anr. notification dated 21.5.1977. It was held that the subsequent notification did not revive the first notification whereby sugar was excluded as agricultural produce. This Court observed thus:

I am of the opinion that the contention made on behalf of the Petitioners is sound and that there is practically no answer to the same on behalf of the Respondents. Section 24 of G.C. Act even if applicable does not support their contention regarding the effect of cancellation of the 2.5.77 notification by the notification dated 21.5.1977. Even if the 21.5.1977 notification attracted Section 24 of the G.C. Act, it did not revive the situation completely as sought to be argued on behalf of the Respondents. Sugar having been excluded by the notification dated 2.5.1977 as an item of �Agriculture Produce� from the schedule of the Act, the cancellation of the notification of 2.5.1977 did not have the effect of re-introducing �Su as one of the item of agriculture produce. This is particularly so in view of the provisions of Section 39 of the State Act. Having regard to Section 39 of the State Act, Section 24 of the G.C. Act was not applicable and even if applicable, it did not have the desired effect of introducing �Sugar� as one of the Schedule com modifies once again in view of 21.5.77 notification. Such intention could only be achieved by making a notification under, Section 39 of the State Act and not by rescinding the earlier notification. Accordingly, in our opinion since 2.5.77, sugar not being an "agricultural, produce" no levy could be imposed in respect of the same since 2.5.77.

It was further held that even assuming that the notification dated 21.5.1977 could be treated as reintroduction of sugar as an ''agricultural produce and" thereby the ''Petitioners market fee did not become leviable again as by reason of the notification able again as by reason of the notification dated 2.5.1977, the declaration of intention of the State to include sugar as an agricultural produce in the Schedule stood and thus unless there was a fresh notification u/s 3 and 4 of the Act no market fee can be levied thereupon.

It is, therefore, clear that in that case, The Division Bench was considering the patter prior to the enactment of Act No. 60 of 1982. It may be true that Mustard Oil to is consumer may not mean vegetable oil.

The aforementioned decision has no application in the facts and circumstances of this case.

Category 3 of Schedule appended to the said Act inter alia referred to Mustard seeds, rape and torium. Category 4 of the Schedule referred to "all vegetable oils" within the heading of ''oils''.

It has been contended that Mustard Oil is not a vegetable oil. In Tata Oil Mills'' case (Supra) it has been held that coconut is a fruit and being a vegetable, coconut oil shall also be deemed to be vegetable oil as specified in the Schedule.

The learned Judges as noticed hereinbefore further observed that once coconut had been included as an agricultural produce, coconut oil being a processed product of coconut, the same will also come within the definition of the agricultural produce.

Similar is the position in this case. Mustard seeds having been notified as one of the agricultural produce and mustard oil itself is processed from mustard seeds, the same would also come within the purview thereof.

Even in Delhi Cloth and General Mills'' case (Supra) it was held as follows:

It is admitted that the contention of the Petitioner would only succeed if it is held that Vanaspati is only a processed form of vegetable oil, then there cannot be any doubt that it would be covered by the definition ''agriculture produce''. If, on the other hand, Vanaspati is held to be a manufactured produce from vegetable oil, then the contention of the Petitioner would succeed. In support of the assertion that Vanaspati is not a processed from of vegetable oil but is a manufactured produce from vegetable oil, learned Counsel for the Petitioner relies upon a decision in Union of India (UOI) Vs. Delhi Cloth and General Mills, . In this decision the question that fell for consideration before the Supreme Court was whether in course of production of Vanaspati from raw ground nut oil there came into existence, as an I intermediate product, ''vegetable oil'' which could be separately taxed and subjected to excise duty under item 93 of the First Schedule of the Central Excise Act. The Supreme Court answered the question in the negative but in this case it did not consider whether ''Vanaspati'' was a manufactured produces or a processed form of vegetable oil. This case, in our opinion, does not support the Petitioner''s contention.

Reliance has been placed on behalf of the Respondent market committee on a decision in Tungabhadra Industries Ltd. Vs. The Commercial Tax Officer, Kurnool, . In this case the Supreme Court held that hydrogenated oil still continued to be ground nut oil notwithstanding the processing which was merely for the purpose of rendering the oil more stable thus improving its keeping qualities for those who desired to consume ground nut oil.

It may be true that to an ordinary consumer Mustard Oil may not mean vegetable oil. But it is well known that even taxing or penal statutes have to be considered upon taking into consideration the object and purport of the Act, the intention of the Legislature and the phraseology used therein.

In Delhi Cloth and General Mills Case (Supra) itself the Division Bench held as follows:

In the case of Durgaji Rice Mills and Others Vs. State of Bihar and Others, it was argued on behalf of the "Petitioners that rice being a product of paddy, which having already been subjected to levy of market fee, could not have further been made subject to payment of market fee as that would amount to imposition of double levy upon the same agricultural produce. This contention was rejected on the ground that the notification of paddy and rice are separately mentioned in the Schedule appended to the said Act and both paddy and rice are liable for levy as separate transaction within the market area. In that decision the Supreme Court''s decision in Ram Chandra Kailash Kumar and Company and Others Vs. State of U.P. and Another, , on which strong reliance has been placed on behalf of the Petitioners before us, was considered. The learned single Judge has also taken into consideration the subsequent decision of the Supreme Court in Sreenivasa General Traders and Others Vs. State of Andhra Pradesh and Others, and the amendments brought about by Act No. 60 of 1982 in Sections 2(a) and 27 of the Act. The decision retied upon by the learned Counsel for the Petitioners in Dhanbad Roller Flour Mills v. State of Bihar (Supra) regarding wheat and its produce being the same commodity, came up for consideration not in connection with any marketing Act but under the Central'' Sales Tax Act. These are two different types of Acts and they are not in ''pari materia'' and, accordingly, a decision rendered under one Act can hardly be of any help in so far as the question of interpretation and scope of other Act is concerned.

It is true that a taxing statute have to be construed strictly but such a construction would be unwarranted where the same would lead to meaningless anomaly.

Reference in this connection may be made to Mahadeo Prasad Bais v. Income Tax Officer and Anr. reported in (1991) 4. S.C.C. 560.

It is. now well known that the entry in the schedule has to be interpreted in the same manner as if the words of statute.

Reference in this connection may be made to Tata Iron and Steel Co. Ltd. Vs. The State of Bihar and Others wherein it has been stated as follows:

Further now, it is well known that entry in the list of the 7th Schedule of the Constitution has to be given a broad meaning, See M/s Ujagar Prints v. Union of India and Ors. reported in AIR 1989 S.C. 516, wherein the law has been laid down in the following terms:

Entries to the Legislative Lists, are not sources of the legislative power but are merely topics of fields of legislation and must receive a liberal construction inspired by a broad and generous spirit and not in a narrow pedantic sense. The expression "with respect to" in Article 246 brings in the doctrine of "pith and substance" in the understanding of the exertion of the legislative power and t wherever the question of legislative competence is raised the test is whether the legislation, looked at as a whole, is substantially with respect to the particular topic of legislation. If the legislation has substantial and not remote connection with the entry, the matter may well be taken to be legislation on the topic.

It is also now well known that where the language of the word is clear and ''unambiguous, the question of construction of the statute does not arise.

The Schedule pf the Act lays down "all vegetable oils and not "vegetable oils alone".

It is also well known canon of interpretation of statute that while construing it, no word shall be considered to be superfluous or surplus. Thus, if the submission of Mr. Mahto is accepted, evidently the word all prefixed the words ''vegetable oils'' I would loose all its significance. Such a construction, in our opinion, is not possible.

In K.P. Verma v. State of Bihar reported in 1988 PLJR 1036 this aspect has been considered in the following term. Reed Dikrson in his Interpretation and Application of Statute at page 135 observed:

The essence of the language is to reflect, express, and perhaps even affect the conceptual matrix of established Ideas and values that identifies the culture to which it belongs. For this reason, language has been called "conceptual map of human experience.

In Reserve Bank of India v. Pearless Co. reported in 1987 I SCC 424 it was held as follows:

Interpretation must depend on the text and the context. They are the basis of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That Interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at in the context of its enactment, with the glasses of the statute maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and every thing is in its place.

In Inaland Revenue Commissioner v. Saxone, Lilley and Skinner (Holdings) Ltd. (1967) I WLR 501, the House of Lords while considering Sections 265 and 266 of the Income Tax Act, 1952, and Section 16 of the Finance Act, 1954, whereby provisions have been made for allowances in respect of Industrial Buildings, held that if a building is used for even a part of the trade or undertaking for which the exemption is granted, the Assessee would be entitled to the same exemption to the extent the building has been used for the purposes of part of that trade or undertaking. Lord Reid J. in the aforementioned decision stated as follows:

I think that, underlying the Appellants contention is the idea that is not fair that the trader should get full allowances if the building is used in part for non statutory purposes. But logically that would lead to the result that substantially the whole use must be for statutory purposes before allowances are due. There would still be injustice, though smaller, if I even 40 percent was non-statutory use. The Appellants did not shrink from the alternative contention that substantially the whole use must be for a statutory purpose but that would mean doing still greater violence to the words of the Act.

In Alladi Venkateshrul and Ors. etc. v. Govt. of Andhra Pradesh and Anr. (1978 S.C. 945) also, Supreme Court has held that statutes containing an exemption clause should be construed liberally.

Section 7 of the Act read with Rule 6 of the said Rules do not leave any doubt whatsoever that the Parliament in its wisdom intended to provide some relief to the owner of an industry who has installed a water treatment plant in their industries. In essence the said provisions are beneficlent to the owner of an industry.

It is well known that while construing a beneficial legislation, interpretation thereof must be done in such a manner which advances the remedy and removes the evil. Reference in this connection may be made to the case of Authorised Officer, Thanjavur and Anr. v. Naganath Ayyar etc. reported in 1979 S.C. 1987 and R. Rama Reddy and Ors. v. State of Andhra Pradesh and Ors. reported in 1988 III S.C. C. 433. In Paradise Printers v. Union Territory of Chandigarh reported in 1988 I SCC 440 the law has been laid down as follows:

The meaning to be given to a word depends upon the context in which it is used. The word takes the colour depending upon the context. We must ask what does the word mean in its context? We must examine why the rule making authority has chosen that word. After examining the purpose and scope of the rule, it must be given such meaning as to render the rule workable in a fair manner. We must give that meaning which would promote the purpose and object of the, rule. When there is a choice of meaning, there is a presumption that one which produces an unjust or inconvenient result was not intended.

In Ram Chandra Singh Vs. State of Bihar and Others, . Full Bench of this Court laid emphasis on looking to basic purpose and the larger scheme of the provisions while construing an enactment.

In K.C. Gangopadhyaya v. Union of India reported in 1975 PLJR 418, the Supreme Court laid down the law as follows:

We listen largely to the language of the statute but where as here, clearing up of marginal obscurity may make interpretation surer if light from dependable sources were to beam in the Court may seek such aid. What has been described as the sound system of construction, excluding all but the language of text and the dictionary as the key, hardly holds the field especially if the enactment has a fiscal or other mission, its surrounding circumstances, speak and its history on folds the mischief to be remedied. The Court in its comity with the Legislature strives reasonably to give meaningful life and avoid cadaveric consequence. We have set out the story of the rebirth as I were, of the law of minor mineral royalty to drive home the propriety of this method of approach. No doubt, there some remissness in the drawing up of what professes to be a validating law and the neglected art of drafting bills is in part the reason for subtle length of submissions where better skill could have made the sense of the statute luscent and its validity above board. Informed by a realistic idea of shortfalls in legislative drafting and of the social perspective of the statute but guided primarily by what the Act has said explicitly or by necessary implication we will examine the meaning and its impact on counsel''s contentions.

In Tata Oil Mills'' Case (Supra) the Division Bench has held that interpretation of the words ''and includes'' in the definition "Agricultural produce" as contained in Section 2(1)(a) is significant. It was held.

A mere reading of the Hindi definition which has been introduced by the amendment makes it clear that now schedule is relevant to some extent only in the context with livestock and poultry. As such after coming into force of Act 60 of 1982, there is no scope for argument that coconut oil shall not be deemed to be in agricultural produce.

Further, the Petitioners got themselves registered under the said Act. Deliberately and intentionally, the Petitioners have not stated in the writ petition as to when such registration took place. It is also significant to note that only recently the Petitioner No. 1 alone raised the question of its liability to pay market fee for Mustard oil. The other Petitioners even did not raise any protest.

From the conduct of the Petitioners thus, it is evident that even the Petitioners understood that they have to pay market fee on sale and purchase of Mustard oil in terms of the provisions of the said Act. From a bare perusal of the notification No. 1 which is contained in Annexure 1 to the writ application, it is evident that it had all along been realising the market fee from the consumers.

further, the decision of the Tata Oil Mills had been holding the field for a long time. The authorities of the Bihar Agricultural Produce Market Committee as also the traders, in view of the aforementioned decision, clearly understood that they will have to pay market fee also on Mustard oils as it cannot be contemplated that if coconut is a vegetable oil within the meaning of schedule appended to the said, Act, the Mustard oil will not come within the purview thereof.

It is thus one of such cases where the ratio in Tata Oil Mills''s case (supra) should not be disturbed on the basis of the doctrine of ''stare decises''.

For the reasons aforementioned this application is dismissed but without any order as to costs.