9911796707
TMI Blog1997 (5) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... who challenged those orders in appeals (No. 1 of 1989 and No. 2 of 1989). filed under Section 12E but the appeals were dismissed on the technical ground of non-compliance with Section 12E(2) under which the whole amount of market fee had to be deposited before filing the appeal. 5. The respondent then approached the Andhra Pradesh High Court in Writ Petition 12199 of 1991 which was allowed and the appeals were directed to be entertained provided the respondent deposited half of the amount of market fee and furnished bank guarantee for the remaining half. The appeals were consequently taken up for hearing but were dismissed compelling the respondent to file a revision under Section 12F of the Act which was dismissed by the Director of Marketing by order dated 8.11.93. The respondent then approached the High Court by another appeal under Section 12G which was allowed by judgment dated 18.4.96 and consequent-ly the matter has come to this Court. 6. In order to levy market fee on the transaction of sale and purchase by the respondent, the Assessing Authority had relied upon Rule 74(2) of the Andhra Pradesh (Agricultural Produce and Livestock) Market Rules, 1969 (for short, 'Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucts of livestock is pur-chased 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." 1. Bye-law 24(5) is as follows : "The fees shall be leviable as soon as the notified agricultural produce, livestock, or products of livestock is purchased or sold by licencee. EXPLANATION : The notified agricultural produce or livestock or products of livestock shall be deemed to have been purchased or sold after the said notified commodity has been weighed, measured or counted or when it is taken out of the notified market area." 12. We may also, at this stage, notice certain provisions of the Act. "Agricultural produce" has been defined in Section 2(i) as under : "2(i) "Agricultural Produce" means anything produced from land in the course of agriculture or horticulture and includes forest produce or any produce of like nature either processed or un-processed and declared by the Government by notification to be agricultural produce for the purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estock 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 ag-gregate amount for which the notified agricultural produce, live-stock or products of livestock is purchased or sold, whether for cash or deferred payment or other valuable consideration. Explanation I : For the purposes of this Section, all notified agricultural produce, livestock or products or 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: ..................... (2).................................... 16. The market fee is liable to be paid by every trader operating in the notified, area. He is also under a statutory duty to submit returns relating to his turnover as required by Section 12A. The assessment is made by the Market Committee under Section 12B. The assessment made by the Market Committee is appealable before the Regional Joint Director of Marketing under Section 12E. A revision is provided by Section 12F against the judgment of the Regional Joint Director to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to only one factor, namely, moving the notified agricultural produce out of the notified market area, the Rule and the Bye-law have additionally provided that such presumption would also be raised if the commodity is weighed, measured or counted. "Weighed" "Measured" or "Counted" are factors which are not mentioned in Explanation I to Section 12 of the Act. The question which, therefore, arises is whether the scope of Explanation I to Section 12 can be widened by Rule 74(2) or the Explanation appended to Bye-law 24(5). 20. The Act was made by the State Legislature while the Rules have been made by the State Government and the Bye-laws have been made by the Committee. Both constitute delegated legislation. 21. Delegated Legislation has been defined by Salmond as "that which proceeds from any authority other than the sovereign power and is therefore dependent for its continued existence and validity on some superior or supreme authority." (See Salmond, Jurisprudence, 12th Edn.Page116). 22. Delegated Legislation is not a new phenomenon. Ever since the Statutes came to be made by Parliament, the Delegated Legislation also came to be made by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in In Re : The Delhi Laws Act, 1912, The Ajmer-Merwara (Extension of Laws) Act, 1947, and The Part C States (Laws) Act, 1950, [1951] SCR 747 has laid down the principle that the Legislature must retain in its own hands the essential legislative functions and what can be delegated is the task of subordinate legislation necessary for implementing the purposes and objects of the Act concerned. 25. In Avinder Singh v. State of Punjab, [1979] 1 SCC 137, Krishna Iyer, J. laid down the following tests for valid delegation of legislative power. These are : "(1) the legislature cannot efface itself : (2) it cannot delegate the plenary or the essential legislative func-tion; (3) even if there be delegation, Parliamentary control over delegated legislation should be a living continuity as a constitution-al necessity." It was further observed as under : "While what constitutes an essential feature cannot be delineated in detail it certainly cannot include a change of policy. The legis-lature is the master of legislative policy and if the delegate is free to switch policy it may be usurpation of legislative power itself." 26. The principle which, therefore, emerges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unted within the notified area, it shall be deemed to have been sold or purchased in that area. The creation of legal fiction is thus beyond the legislative policy. Such legal fiction could be created only by the Legislature and not by a delegate in exercise of the rule making power. We are, therefore, in full agreement with the High Court that Rule 74(2) and Bye-law 24(5) are beyond the scope of the Act and, therefore ultra vires. The reliance placed by the Assessing Authority as also by the appellate and revisional authority on these provisions was wholly misplaced and they are not justified in holding, merely on the basis of weighment of "Copra" within the notified area committee that the transaction of sale took place in that market area. 29. Let us now consider the next question relating to the nature of transaction relating to sale/purchase of "Copra" by the respondent from various dealers in the State of Kerala. 30. It is contended by the learned counsel for the appellant that if an order was placed with a dealer at Kerala in pursuance of which goods were despatched by lorry to Hyderabad where the respondent, after making payment to and receiving docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he following terms : "If the consignor is transporting goods in pursuance of a sale for purpose of delivery to the buyer, the name and address of the person to whom the goods are sold, his registration certificate No. under the Andhra Pradesh General Sales Tax Act, 1957. If he is a dealer furnish bill number and date relating in the sale." Against this column No. 5, it is mentioned that the appellant herein is the person to whom the goods are sold. The consignor's name is mentioned in column No. 6 as Abdul Hameed of Alleppey. Column No. 7 is in the following terms : "7. If the consignor is transporting the goods from one of his shops or godown to an agent for sale or from one of his shops or godowns to another for the purpose of storage, the address of the agent or of the shop or godown to which the transport are made." Against this column, it was written "For Sale". Because it was written in Column No. 1 as "for sale", the appellate authority held that this evidenced that the transport of 'Copra' was only to enable the appellant to purchase the same and that the same was not sold in Alleppey. The view taken by the appellate a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Goods Act, the American Uniform Sales Act and the Indian Sale of Goods Act, the relevant factor for determining where the sale takes place, is the intention of parties. A contract of sale, like any other contract, is a consensual act inasmuch as parties are at liberty to settle, amongst them-selves, any terms they may choose. 37. Section 19 attempts to give effect to the elementary principle of the law of Contract that the parties may fix the time when the property in the goods shall be treated to have passed. It may be the time of delivery, or the time of payment of price or even the time of the making of contract. It all depends upon the intention of the parties. It is, therefore, the duty of the Court to ascertain the intention of the parties and in doing so, they have to be guided by the principles laid down in Section 19(2) which provides that for ascertaining the intention of the parties, regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case. 38. Section 19 indicates that in case of unconditional contract to sale in respect of specified goods in a deliverable state, the property in the goods passes to the buyer a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the subject matter of sale were ascertained goods. They were also in a deliverable state. On the order being placed by the respondent, the seller in the State of Kerala, loaded the goods on the lorry and despatched the same to Hyderabad. It is at this stage that the conduct of the parties becomes extremely relevant. It was one of the terms of the contract between the parties that the seller would not be liable for any future loss of goods and that the goods were being despatched at the risk of the respondent. The respondent had also obtained insurance of the goods and had paid the policy premium. He, therefore, intended the goods to be treated as his own so that if there was any loss of goods in transit, he could validly claim the insurance money. The weighment of the goods at Hyderabad or the collection of documents from the bank or payment of price through the bank at Hyderabad were immaterial inasmuch as the property in the goods had already passed at Kerala and it was not dependent upon the payment of price or the delivery of goods to the respondent. 43. We are in full agreement with the view expressed by the High Court and are also of the opinion that having regard to the e ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
