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Judgment
A. L. Baahri, J.—Replication taken on the record.
The petitioners belong to Sahnewal. They claim mandamus in this petition filed under Arts. 226 and 227 of the Constitution commanding the respondents State of Punjab, Punjab Mandi Board, the Market Committee, Sahnewal and the Collector, Ludhiana, not to effect recovery of rural development fund. The petitioners are licensees under the Punjab Agricultural Produce Marketing Act, 1961. They purchase agricultural produce i.e paddy and bring the same into their shellers converting it into rice and sell the same, They pay 2% of the sale price as market fee under the aforesaid Act and 4% purchase/sales tax under the Punjab General Sales Tax Act. The respondents illegally wanted to claim rural development fund under the Punjab Rural Development Act, 1987 (hereinafter called "the Development Act") from the petitioners with respect to the agricultural produce pruchased or brought by them as above. Notices were issued to them like Anneuxres P. 5 and P. 6 to pay rural development fund for the period April 1988 to April 190 to the Market Committee. This led the petitioners to file the present petition.
The challenge in the Writ Petition to the levy of rural development fund is threefold. Firstly, it is argued that at the relevant period for which the fund is being collected, there was no Board in existence, as to be constituted under the provisions of the Act; secondly, such a Board as constituted under the Development Act has not appointed any authority to collect the fund and; thirdly, no rules are in existence under which the Market Committee could recover the fund from the petitioners under the Development Act.
On notice of motion having been issued written statement has been filed on behalf of the Punjab Mandi Board controverting all the allegations of the petitioner, inter alia, asserting that the Punjab Rural Development (General) Rules, 1987 were framed under S. 10 of the Development Act authorising the Market Committee to recover the fund and to implement the provisions of the Development Act, the Market Committee has to follow the rules or the procedure prescribed in the rules framed under the Punjab Agricultural Market Produce Act. The Market Committee-respondent No. 3 filed a separate written statement, inter alia, asserting that the Development Act has been held to be valid by the Full Bench of this Court in C.W.P. No. 5599 of 1988. The petitioners have collected the fund from the purchasers and are thus duty bound to pay the same to the Market Committee under the rules referred to above.
Shri G. C. Dhuriwala, Advocate, appearing on behalf of the petitioners has argued that at the relevant time there was no Board in existence as constituted under the provisions of the Development Act. The fund could not be levied. This contention is devoid of merit. The levy of fund is not dependent upon the existence or constitution of the Board. It is leviable under S.S of the Development Act. Section 5(1) of the Development Act reads as under :--
"5. Levy and collection of fee : (1) Subject to the rules made under this Act, there shall be levied for the purposes of this Act, a fee on ad valorem basis, at the rate of rupee one for every one hundred rupees, in respect of the agricultural produce, bought or sold or brought for processing in the notified market area :
Provided that except in case of agricultural produce brought for processing "no fee shall be leviable in respect of any transaction in which delivery of the agricultural produce bought or sold is not actually made."
SA. Reference was made to S. 3(2) of the Development Act which provides for establishment of the Board consisting of the persons mentioned therein. Further reference has been made to S.3-A vide which Board was to be constituted by the persons mentioned therein and this amendment was inserted as per Punjab Rural Development Modification Order of 1988 issued in exercise of powers under S. 12 of the Development Act by the President, it has been argued by Shri Dhuriwala Advocate that provisions of S. 12 of the Development Act under which order was issued by the President as aforesaid were ultra vires as it amounted to delegation of legislative power. This contention cannot be accepted as this question stands concluded by decision of the Full Bench of this Court in C.W.P. No. 8235 of 1991, decided on April 10, 1992, copy of the judgment is attached with the petition as part of Annexure P. 7. Section 12 was held to be valid piece of legislation. Be that as it may, the Board was not required to separately pass an order levying of the Rural Development Fund. As already stated above, the charging section is S. 5 in the Development Act.
The next question debated by Shri Dhuriwala is that the Board did not authorise anybody to collect the fund. It was the duty of the Bord to apoint any person or officer in this behalf as provided under S. 5(2) of the Act. The aforesaid provision provides for payment of the fee levied by the dealer in the manner prescribed to such person or oficer as may be so appointed or desginated by the Board. Admittedly, no such order has been passed by the Board for payment of the fee to any person or officer. On that account it cannot be held that the fee or the fund payable under S. 5(1) of the Act is not to be collected from the dealers. Section 10 of the Development Act authorises the State Government to make rules for carrying out the purposes of the Act. It is in the exercise of this power that the rules of 1987 as referred to above were framed by the President, Section 10(3) of the Development Act reads as under :--
"10. Power to make rules :
(3) Every rule made under this section shall be laid as soon as may be after it is made, before the House of the State Legislature while it is in Session for a total period of ten days which may be comprised in one session or in two or more successive sessions and if, before the expiry of the session in which it is so laid or the successive session aforesaid, the House agrees in making any modification in the rule or the House agrees that the rule should not be made, the rule shall thereafter "have effect only in such modified form or be of no effect, as the case may be; so however that any such modification or annulment shall be without prejudice to the validity or anything previously done or omitted to be done under that rule."
The contention of Shri Dhuriwala Advocate is that the Rules of 1987 on which reliance has been placed by the respondents cannot be held to be in legal existence as such Rules were not placed before the Parliament for approval, as required under S. 10(3) of the Development Act, as reproduced above. This contention cannot be accepted. Firstly, it is a question of fact which was required to be pleaded in the petition to give an opportunity to the respondents to rebut it as to whether the aforesaid rules were placed before the houses of the Parliament. In the writ petition no such averment was made. While making averment in para 10 it was only mentioned that till today no rules under the Act has been framed by the Government so far. In the written statement filed by the Mandi Board it was specifically mentioned that the President of India in the exercise of power under S. 10 of the Development Act made Punjab Rural Development General Rules, 1987, if the plea had been taken in the writ petition specifically that the rules so framed were not put before the houses of the Parliament, the respondents could specifically reply to the same. In the state of facts as above, no presumption can be drawn that the rules framed as above were invalid.
The contention of the learned counsel, for the petitioners that such rules as framed by the President were required to be approved by the Parliament again cannot be accepted. Section 10(3) of th, Development Act as reproduced above does not provide for approval of the rules by passing any resolution or enactment as such. The rules were required to be laid before the house of the legislature and it is taken that since Punjab Legislature was not in existence, the matter was required to be put up before the houses of the Parliament. If no modification in the rules was suggested within the time prescribed in S. 10(3) of the Act, the Rules were to be taken as approved. There is no allegation that any modification or annulment of any rules was suggested, within a period of 10 days that any such order/resolution was required to be passed by the houses. Learned counsel for the petitioners referred to the provisions of Art. 123 of the Constitution and argued that all ordinances issued by the President were required to be placed before the houses of the Parliament for approval and if such approval was not accorded within a period of 6 months, such ordinances automatically lapsed. There is a fallacy in the argument of the learned counsel for the petitioners in this respect to equate an ordinance issued under Art. 123 of the Constitution with an order framing rules passed by the President acting as State Government under S. 10(3) of the Development Act referred to above. Such a question was also considered by the Full Bench in the case of M/s Chiranji Lal (supra).
For the reasons recorded above, finding no merit in the writ petition the same is dismissed with no order as to costs.
Petition dismissed.