SYED SHAH MOHAMMED QUADRI, J.


(1) THE petitioner seeks a Writ of Mandamus directing the Director of marketing, Andhra Pradesh, Hyderabad, the 1st respondent herein, to instruct all the market Committees in the State not to levy and collect market fee for the oil-seeds transported through various Market committees and for a further direction to the second respondent not to collect the market fee for transportation of oil seeds by the petitioner through the area of the second respondent and for a consequential direction to refund the market fee already collected.


(2) THE petitioner is a Company registered under the Companies Act. It is having factory at Maddipadu in Prakasam District. It purchase oil-seeds from various places inside and outside the State and transports the same to its factory. On December 18,1992 it purchased oil-seeds from Sri Satya Sai Agro oil Products Private Limited, Raichur in Karnataka State. While it was transporting the same in Lorry No. AEE-5337 the staff of the second respondent stopped the lorry at Gadwal of Mahaboobnagar District and collected market fee of Rs. 1081/- vide cash Receipt No. 014 (book No. 31) on december 20,1992. The Managing Director of the petitioner-Company submits that as the oil-seeds were purchased at Raichur of Kamataka state but not at Gadwal of Mahaboobnagar district, the second respondent had no power to levy the market fee. On these facts he prays the reliefs noted above.


(3) THE Additional Director of Marketing filed a counter-affidavit for the first respondent. It is admitted that the petitioner has purchased oil-seeds from other States, but it is submitted that as the same are being brought into the State through the Check- posts within the area of the respondents- market Committee, the staff of the second respondent are entitled to stop any vehicle suspected to carry notified commodities to check any evasion of market fee thereof, under Rules 75 and 76 of the Andhra Pradesh (Agricultural Produce and Livestock) Market rules. It is further submitted that in addition to collection of market fee on the transactions of notified commodities in the Market Yard, the Market Committee is entitled to collect market fee on the movement of the vehicles passing from notified Market Area without evidence of having paid the market fee as required under Rule 74 of the Rules and Bye- law No. 24 (3) (c); on that ground the action of the second respondent is justified. It is submitted that Market Committee is entitled to check the commodities coming into and going out of the Market Area for verifications and proof of payment of market fee and that the Market Committee is empowered to collect market fee on any notified commodity in addition to the market fee paid on the transactions held in the Market Area in exercise of Rules 74, 75 and 76 of the Rules. Payment of market fee by the petitioner is not disputed. It is also contended that the petitioner has a right of appeal and also right of revision and further appeal to the High court and therefore the Writ Petition may be dismissed.


(4) MR. N. Krishnamurthy, the learned counsel for the petitioner submits that the petitioner has purchased the commodities from Raichur of Karnataka State and the commodities were being transported through the Market Area, therefore the second respondent was not entitled to collect the market fee on these commodities. The learned government Pleader, on the other hand, argues that as the goods were passing through the Market Area the authorities are entitled to collect the market fee whether or not the transaction of sale or purchase has taken place in the Market Area.


( 5 ) ON the above contentions, the short question that arises for consideration is, whether the second respondent is entitled to collect market fee on the commodities purchased from outside the State, but are being transported through its Market Area.


(6) SECTION 12 of the Andhra Pradesh (Agricultural Produce and Livestock) Market act, 1966 (for short "the Act") empowers the Market Committee to 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 to Section 12 of the Act raises a rebuttable presumption that for purposes of Section 12, all notified agricultural produce, livestock or products of livestock taken out of a notified market area shall, unless the contrary is proved, be presumed to have been purchased or sold within such areas. Inasmuch as reliance is placed on sub-rule (2) of Rule 74 of the rules, it would be appropriate to read that rule here. "74 (2 ). Such fees shall be leviable as soon as the notified agricultural produce, livestock and products of livestock is purchased or sold by a licensee. The notified agricultural produce, livestock or products of livestock shall be deemed to have been purchased or sold after the notified commodity has been weighed or measured or counted or when it is taken out of the notified market area."


(7) A perusual of sub-rule (2) of Rule 74 extracted above makes it clear that it incorporates the presumption contained in explanation I to Section 12 of the Act. It must be noted that neither Explanation I to rule 12 nor sub-rule (2) of Rule 74 extends the presumption to the goods which are being transported through the Market Area. Inasmuch as the liability to pay market fee arises on sale or purchase of any notified agricultural produce, livestock or products of livestock, the said Explanation and the said sub-rule raise a presumption which is rebuttable that when any notified agricultural produce, livestock or products of livestock are taken out of the market area then such commodities will be presumed to have been purchased or sold within such area. This presumption does not arise in a case where, admittedly the commodities referred to above are purchased in a different State and are being transported.


(8) THE learned Government Pleader, however, relying on sub-rule (2) of Rule 75 contends that the staff of the second respondent at the Check-post are authorised to collect the market fee even when the above said commodities are being transported through the market area. It will be useful to read Rule 75 here:"75. Check-post: (1 ). No person shall transport any notified agricultural produce, livestock or products of livestock purchased or sold in the notified market area, from the limits thereof except on production of the receipt for the payment of prescribed fees in receipt of such notified agricultural produce, livestock or products of livestock to the market committee concerned. (2 ). Any employee of the market committee authorised by it in this behalf shall have power at any time and without notice to stop and check any vehicle suspected to carry unauthorisedly any notified agricultural produce, livestock or products of livestock from any place within the limits of any notified market area.


(9) SUB-RULE (1) of Rule 75 injuncts that any person shall transport any notified agricultural products, livestock or products of livestock purchased or sold in the notified market area from the limits thereof, only on production of the receipt for the payment of prescribed fees in respect of such notified agricultural produce, livestock or products of livestock to the market committee concerned. It is clear that this sub-rule is framed to check evasion of market fee and to safe-guard the interest of the revenue of the Market Committee and enjoins that the transportation of the above said commodities from the limits of the Market Committee should be only on production of receipt of payment of the prescribed fee. Now sub-rule (2) of rule 75 authorises the employees of Market committee to stop and check all vehicles suspected to carry unautorisedly any notified agricultural produce, livestock or products of livestock from any place within the limits of any notified market area. This sub-rule cannot be diversed from sub-rule (1) which has to be read in conjunction with sub-rule (2) of Rule 75. Thus read it becomes clear that this Rule is also framed to check evasion of market fee by empowering the authorised employees to check the vehicles which are suspected to transport any notified agricultural produce, livestock or products of livestock from any place within the limits of any notified market area. Unless the suspicion of the authorised officer of the market Committee relates to non-payment of market fee in respect of sale or purchase of the commodities referred to above, in the notified area, sub-rule (2) of Rule 75 cannot be called in aid. Rule 75 also does not deal with the transportation of the goods purchased from outside the State and passing through any market area. Of course, this does not mean that the employees of the second respondent are not entitled to satisfy themselves that the goods are purchased from any place outside the

State or in other words that the goods were not purchased or sold within the concerned notified market area. (10) NOW reverting to the facts of the case, it is admitted in the counter of the first respondent that the commodities were purchased in Raichur of Karnataka State. Therefore, there is no scope for the authorised employees of the second respondent or any authority to collect market fee on such commodities. The same conclusion is reached by a Division of mis Court M/s. Shalimar chemical Works Ltd. v. The Agricultural market Committee, 1996 (2) ALD 501 (DB) =1996 (2) ALT 256. (11) THE learned Counsel for the petitioner prays that a direction be issued to the second respondent to grant refund of the market fee already collected. Inasmuch as the petitioner has not approached the statutory authority against the impugned order, we are not inclined to grant the relief to the petitioner (12) FOR the above reasons the Writ Petition is allowed as indicated above. No costs.