S.S. Sandhawalia, C.J.
1. The constitutional validity of Section 23-A recently inserted in the principal Act by the Punjab Agricultural Produce Markets (Amendment) Act 1981 (Punjab Act No 7 of 1981) is the primary. and indeed the core question in this set of fifteen cases which stand admitted to a hearing by the Division Bench.
2. The issues arising herein cannot be well appraised without reference to their somewhat tortuous legal background. Way back in 1961 the Punjab Agricultural Produce Markets Act (hereinafter called the Act) was originally promulgated and Section 23 thereof authorised the Market Committees to levy ad valorem fee on agricultural produce bought or sold by e licensee in the notified Market area at rate not exceeding Rupee 0.50/- paise for every hundred rupees. This scale of tee was retained till 1989 whereafter by Punjab Act No. 25 of 1989 it was raised to Re. 1.00 per hundred and later by Punjab Act No. 17 of 1973 it was further escalated to Rupees 1.50 per hundred end further by Punjab Act No. 13 of 1974 the tee was raised from Rs. 1.50 to Rs. 2.25 per hundred. This enhancement was challenged in this Court in M/s. Hanuman Dall & General Mills, Hissar v. State of Haryana, AIR 197B Punj & Har 1 and the increase to Rs. 2.25 P. per hundred was struck down and the market fee was allowed to be maintained at the original rate of Rs. 1.50 per hundred. The Punjab State Agricultural Marketing Board went in appeal the Supreme Court but meanwhile by Act No. 14 of 1976, the market tee was raised afresh from Rs. 1.50 to Rs. 2.20 per hundred but the Market Committees in Punjab were directed to charge the market fee at the rate of Rs. 2.00 per hundred with effect from the 23rd of August, 1975 only. However, in the year 1978 by Punjab Ordinance No. 2 of 1978 followed by Punjab Act No. 22 of 1978 maximum market fee leviable was again raised from Rs. 2.20 to Rs. 3.00 per hundred. This enhancement was inter alia challenged directly by the dealers of Punjab before their Lordships of the Supreme Court. By their exhaustive judgment in Kewal Krishan Puri v. State of Punjab, AIR 1980 SC 1008 the maximum market fee leviable up to Rupees 2.00 was maintained and any enhancement beyond that was struck down.
3. Meanwhile marketing fees at the enhanced rates which had not been sanctified had been collected and many licensees from Punjab filed a number of writ petitions in the Supreme Court for refund of the market tees collected above the authorised amount. These writ petitions were disposed of by their Lordship in M/s. Shiv Shanker Dal Mills v. State of Haryana, AIR 1980 SC 1037, wherein following a similar situation in The Newabganj Sugar Mills Co. Ltd. d: Union of India, AIR 1978 SC 1152, they devised a scheme and issued nine precise guidelines with regard to the amounts claimed. In compliance with these a directions the Registrar of the Punjab and Haryana High Court entertained claims for refund and processed and verified them, Apparently during the pendency of the Proceedings the impugned provisions of the Act were promulgated on the 2nd of March, 1981.
4. The representative matrix of facts may be briefly taken from CWP 5509/1981 M/s. Walaiti Ram v. State of Punjab, The petitioner-firm is engaged in the business of purchase and sale of agricultural produce at Maur, district Bhatinda and is a licensee under the Act. In accordance with Rule 29 of the Punjab Agricultural Produce Markets (General) Rules (1982). framed under the aforesaid Act the liability to pay the market tee is inter alia on the buyer if he is a licensee, and consequently the writ petitioners were responsible for the payment of market fee. The petitioning-firm in the context of the history noted above had continued to pay market fee even at the enhanced rates which were not later upheld by the final Court and in accordance with the directions in M/s Shiv Shanker Dal Mills' case (supra) filed a claim for refund before the Registrar of the Punjab and Haryana High Court. After the promulgation of the impugned Act No. 7 of 1981, the petitioners further received the impugned notice (Annexure P. 2) informing them that they have got adjusted a sum of Rs. 13,178.20 and asking them to show cause as to why the said amount be recovered from them. Aggrieved there-by, the writ petitioners have raised the challenge to the very validity d the amending Act and in particular to the insertion of Section 23-A in the principal Act.
5. In the returns filed on behalf of the respondent-State and the Punjab State Agricultural Market Board and the Market Committee of Maur, the factual position is not at all controverted. The core of the stand herein that under the Rules, the writ petitioners were entitled to recover the market fee paid by them from the next purchaser and since they had done so they were not in law or equity entitled to the refund of the said amount. In any case the petitioners by the impugned Act are only put to proof that in fact they have not recovered the enhanced market fee from the nest purchaser, in order to substantiate their claim. In sum, the stand of the respondents is that the writ petitioners cannot be allowed to unjustly enrich themselves by first having recovered the enhanced market fee from the next purchaser and thereafter, lay claim for a refund of the same from the respective Market Committees. Both the constitutional validity and the equity of Section 23-A is sought to be maintained.
6. Since the whole controversy here n revolves centrifugally round the provisions of the recently inserted S. 23-A of the Act, it is apt to quote it at the very outset:--
'In the principal Act, after Section 23. the following section shall be inserted namely:--
'23-A(1). Notwithstanding anything contained in any judgment decree or order of any Court, it shall be lawful for a Committee to retain the fee levied and collected by it from a licensee in excess of that leviable under Section 23, if the burden of such fee was passed on by the licensee to !be next purchaser of the Agricultural Produce in respect whereof such fee was levied and collected.'
(2) No suit or other proceeding shall be instituted, maintained or continued in any court for the refund of whole or any part of the fee retained by a Committee under sub-section (1) and no court shall enforce any decree or order directing the refund of whole or any part of such fee.
(3) If any dispute arises as to the refund of any fee retained by a Committee by virtue of sub-section (1) and the question is whether the burden of such fee was passed an by the licensee to the next purchaser of the concerned agricultural produce, it shall be presumed unless proved otherwise that such burden was so passed on by the licensee.
(4) If any amount of fee retainable by a Committee under subsection (1) has been refunded to any licensee, the same shall be recoverable by the Committee in the manner indicated in subsection (2) of Section 41.
(5.) The Provisions of this section shall not affect the operation of Section 6 of the Punjab Agricultural Produce Markets (Amendment and Validation) Act, I976'
Now even a plain reading of 'the aforesaid provision manifests that the five salient features thereof are:--
(i) It entities the Market Committees to retain the excess market fee collected by it from a licensee if the burden of such fee had been passed m such licensee to the next purchaser;
(ii) It creates a corresponding bar against the claim of refund of the excess fee by the Committees by a licensee where the burden had been passed on to the next purchaser;
(iii) The onus of proof to establish that the burden of such market fee had not indeed been passed on to the next purchaser would lie no the licensees claiming a refund thereof;
(iv) Where a refund or the excess market fee had in fact been secured by a licensee without discharging the onuns of proof aforesaid then such market fee would become recoverable as arrears at land revenue by the Committees; and
(v) No suit, decree or ether proceeding would lie for the refund of whole or any part of excess market fee retained by the Committees and no Court shall enforce any decree or order directing such refund.
6A. The whole gravamen of the attack herein primarily levelled by Mr. R. L. Batta on behalf of the writ petitioners is that the impugned provisions of the afore-quoted Section 23-A, in essence seeks to validate the levy of market fee at Rs. 3/- per hundred despite the judgment in Kewai Krishan Puri's case (AIR 1980 SC 1008)(supra) holding to the contrary and sustaining the same to the extent of Rs. 2/- per hundred only. It was sought to be submitted that the retention of this excess fee by Market Committees in practical effect is nothing but a validation of the same at the nothing but a validation of the same at the rate of Rs. 3/- per hundred. On this premise, the contention is that such validation is sought to be effected without in any way removing the basic infirmities in the Act enhancing the fee to Rs. 3/- per hundred or affecting the foundation of the final Court's judgment in Kewal Krishan Puri's case which must continue to held the field. In sum, the argument that Section 23-A is a blanket overriding of the said judgment without in any way taking away the basis thereof by removing the infirmities in the statue and thus amounts to a flagrant trenching and the judicial power by the legislalature.
6-B. In view of the aforesaid contention, it becomes necessary to straightway notice the equally firm and categoric stand taken on behalf of the respondent. Mr. Bhagirath Dass, their learned counsel, has with his usual incisive forecefulness contended that the amending Act or Section 23-A is not even remotely a validation of the market fee up to Rs. 3/- and indeed it never could be so in face of the clear-cut ratio and observations of their Lordships in Kewal Krishan Puri's case (AIR 1980 SC 1008) striking down the excess market fee above Rs. 2/-. According to him, the limited purpose of the Act is to merely bar the refund of excess market fee which the licensees, as middle men after payment to the Market Committees had recorded from Section 23-A were consequently nothing but an application of salutory principal that there should be no unjust and illegal enrichment of the licensees and, therefore, a bar against the refund of the excess market fee from the Committees.
7. In order to appreciate the two rival contentions aforesaid and equally to avoid appraising them in a vacuum it becomes necessary to have a bird eye view of the scheme of the statute and the methodology o the collection of market fee. Section 23 of the Act only provides the upper limit for the quantum of market fee which may be leviable. It is a hallowed rule that a fee is related to and, therefore, must have a quid pro quo to the services rendered. It is not in dispute that the services by the Market Committees are rendered primarily for the benefit of the produces by creation of market yards and providing amenities etc. therein. The Act and the statutory rule expressly visualised licensees thereunder but they are primarily middlemen betwixt producers and the further purchasers from them, The scheme of the Act is that in the transactions of purchase the licensees can charge and collect the permissible market fee, and the law entitles than to re-imburse the same amount from the next purchasers. The obligation to collect the market fee from the purchasers and tender it to the Committees is placed on the licensees. They are obliged to file the returns of transactions conducted within the market yards and to preserve the records of the market fee collected and subsequently to de sit it with the Committees.
8. In the light of the aforesaid statutory scheme, the actual effect that has arisen is that the licensees by virtue of the invalidated enhancement had collected Rs. 3/- per hundred as market fee, as middlemen having recovered the same amount from the next purchasers. The final Court having held in Kewal grishan Puri's case (AIR 1980 SC 1008) (supra) that enhancement beyond Rupees 2/- was not valid, the result was 'that the licensees having charged Rupees 3/- per hundred and deposited the same with the Market Committees and this having reimbursed the amount from the next purchasers nevertheless claimed the right to refund of the difference of Re. 1/- of unauthorised market fee from the Market Committees. In essence the practical question mw as who is to keep the unauthorised collection of excess market fee above the upheld rate of Rs. 2/- per hundred? Whether the same should be retained by public bodies, like the Market Committees or refunded to middlemen traders as unjust enrichment who in fact had actually recovered the same from the next purchasers as well.
9. For a true answer to the issue arising herein a reference to Rule 29 of the Punjab Agricultural Produce Markets (General) Rules, 1962 which provides for the levy and collection of fee for the sale and purchase of the agricultural produce becomes necessary. Indeed it is apt to quote the relevant sub-rule (2) which is as under:--
'29(2). The responsibility o! paying the fees prescribed under sub-rule (1) shall be of the buyer and i! he is not a licensee then the seller who may realise the same from the buyer. Such fees shall be leviable as soon as an agricultural produce is bought or sold b e licensee.'
Herein we are primarily concerned with the case of licensees alone and under the statutory rule whilst the obligation of paying the fee is on the license he equally has the right to realise the same from the next purchaser. There is no manner of doubt and indeed it was the common case before us that crores of rupees were collected as excess market fee beyond the permissible limit of Rs, 2/- per hundred from innumerable individual purchasers who are now impossible to be located and who alone in equity would be entitled to a refund. By virtue of the statutory provisions, the middlemen licensees were entitled to recover the fee from their next purchasers and there is no reason to presume that they would not have availed themselves of the right. Indeed it was in this situation that even the final Court earlier in Shiv Shanker Dal Mill's case, (AIR 1900 SC 1037) did not allow any refunds to go back to the licensees. They were to be kept in trust !or the agriculturists and next purchasers and in the event of their failure were to go the Market Committees or other public purposes. Whilst making. the nine precise directions in the said case; it was observed as follows (At p. 1039):--
'The counsel for the market Committees pointed out that although refund of excess collections might be legally due to the traders many of the traders had themselves recovered this excess percentage from the next purchasers. So much so, these tiny tittles if they are to return to the original payers, should revert to the next purchasers themselves. The traders who are the petitioners have no more right to keep such small sums than the market committees themselves. To the extent to which the traders had paid out of their own, of course, they were entitled to keep them, but not where they had, in turn,. collected from elsewhere. It would be hard to leave every agriculturist to the a suit or other legal proceeding for recovery of negligible sums which cumulatively amount to colossal amounts, Many a little makes a mickle.'
It is plain from the above that even on a prima facie consideration of the matter, their Lordships have set their face against refund to licensees where they had in turn collected the excess fee from else where or from next purchasers. The directions given by them were primarily for the avoidance of what could become a misappropriation of the unauthorised collection of enhanced market fee from millions of unknown purchasers who could hardly be identified or come forward to claim the paltry amounts. It appears to me that the present Act in essence statutorily effects the same larger purpose. It primarily provides that where the exeess market fee had b m deposited with the Committees by the licensees who had reimbursed themselves from next purchasers then such Committees should retain the amount against any refund to middlemen. Allowing the same would merely be an unjust enrichment of the licensees and fortuitous windfall for them with regard to monies unanthorisedly collected from the next purchasers.
10. Again it seems wholly untenable to hold that Section 79-A in. any say validates the recovery of excess market tee up to Rs. 3/- per hundred. It is common ground that no future recoveries at, this rate can possibly be made or authorised by the said provision. It is only in the interregnum betwixt the promulgation of the earlier Act and its final striking down in Kewal Kriahan Puri'a case, (AIR 1980 SC 1008) that the excess market fee may have come to be collected. Neither does it retrospectively validate such excess collection, It merely creates a limited bar regarding the claim to refund of money to licensees who have already reimbursed themselves from their next purchasers under Rule. 29.
11. The view that the impugned provisions cannot be deemed as validating ones is further buttressed by the fair concession made on behalf of the respondents by Mr. Bhagirath Dass that Section 23-A, as enacted, does not entitle the Market Committees to themselves recover any excess collections from licensees barring the specific case of unauthorised refunds The statutory provisions only sanctify the retention of the excess market fee by the Committees where the same has been received by way of deposit from the license but does not go further to enable them to recover any such excess fee which may have remained in the hands of the licensees. The fair stand on behalf of the respondents themselves is that in cases where the excess amount had not actually come into the coffers. of the Market Committees at my stage, the present provisions do not entitle them to recover the same because such excess market fees are not validated or authorised either by this amending Act or any other provision.
12. In fairness to Mr. Bhagirath Dass we must notice his firm reliance on R. S. Joshi v. Ajit Mills Ltd., 1977 (4) SCC 98: (AIR 1997 SC 2279). Therein a larger Bench of the final Court has now put all controversy at rest by. holding that within limitations the State legislaure has competence to appropriate to Government even taxes collected illegally by a dealer. The somewhat narrower view earlier expressed in Ashoka Marketing Ltd, v. State of Bihar, AIR 1991 SC 9l8, on which primary reliance was sought to be placed on behalf of the writ petitioners has been expressly disagreed from.
13. In view of the aforementioned considerations and precedent we have no hesitation in holding that Section 23-A, when viewed in the larger perspective is not a provision validating the collection of market fee at Re. 3/- per hundred but is merely intended for the retaining of such excess fee by Market Committee and to prevent its refund as unjust enrichment to middlemen licensees. As was said earlier in plain language the provisions only determine as to who is to keep this unauthorised collection of market fee from myriad of purchasers who could no longer come forward to claim them back. Both equity and in law, the mandate of the statute that the excess market should remain with Market Committees appears to us as unquestionable.
14. The somewhat tall grievance attempted to be made out on behalf of the writ petitioners with regard to placing of onus of proof pertaining to the recovery of market fee from next purchasers appears to be equally untenable. Herein it is again necessary to recall that under Rule 29, the licensees are expressly authorised to realise the same from their next purchasers. Mr. Bhagirath Dass was. therefore, eminently right in pointing out that the burden of proof on the licensees in this context was wholly in accordance with principle, equity, and the statute. Clearly enough the licensees alone would have special knowledge about the dealings made by them first with the producers and then in re-sale with the next purchasers. They alone would have the necessary record and the data on the point whether the market fee had been realised or not from tit buyers. In such a situation putting them to strict proof appears to be obviously correct. The Market Committees cannot possibly go on a wild goose chase to first find out as to the transactions of the licensees subsequent to the first purchase from the producers and thereafter to discharge the impossible burden of establishing whether the same had been recovered from the next purchasers or not. Section 106 of the Evidence Act is in the following terms:--
'Section 106. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.'
The aforesaid provision codified a well-known principle of the general law of evidence and herein Section 23 does no more than follow these general principles of burden of proof.
15. The last arrow to the bow of the writ petitioners was again that the barring of legal remedies for refund and further rendering any decree or order of a Court unenforceable in this regard was also a trenching of legislative power into an exclusive judicial field. Reliliance was placed on the recent Division Bench judgment of this Court in Bajinder Singh v. Assistant Collector Guhla, (1983) 85 Pun LR 528.
16. So far as the legal position is a concerned, there is no manner of doubt that any blatant intrusion into the pristinely judicial wing of the State is unconstitutional. However. the question is whether merely limiting the remedies for refund and rendering the existing decrees, or orders inexecutable, would amount to such an intrusion. We are unable to view it from any such angle. The broader perspective of the Act noticed above is that the very basis of the right of refund or recovery of excess market fee has now been taken away by the statute. It is well-settled that the legislauture can by amendment prospectively or retrospectively take away the basis of a judgment or remove the infirmity in a statute. Herein we have already held that the statute creates a bar against a refund of excess market tee where the same has been recovered from next purchasers. Once the substantive right of refund is validly taken away then it would follow that the procedural rights of preferring a suit or executing a decree would fall with the same. This seems to be well settled from the authoritative decision in State of Orissa v. Bhupindra Kumar, AIR 1962 SC 945 which has been repeatedly affirmed thereafter. Consequently if the substantive right to refund is held to be validly abrogated the bar to procedural remedy cannot be deemed as an intrusion into the judicial field. This contention must, therefore, be also rejected.
17. Before parting with this judgment we must notice that though the conceded position before us is that the Market Committees also cannot recover the excess market fee remaining in the hands of the licensees yet the cases of adjustment, bank guarantees, stay orders or interim orders during the pendency of the long drawn out proceedings stand on a different footing. These interim orders would inevitably merge into the final orders and are, therefore, primtrily governed by the same. Orders of this nature were only transitory and at best can imply that the licensees who before the striking down of the law were obliged to deposit the market fee had been merely granted either time or easier modes of payment therefor. In the eye of law the money must be deemed to have gone to the coffers of the Committee to be adjusted against future liabilities. Substantial rights of the parties cannot be governed by the mere fortuitous circumstance of such interim order. Therefore, it appears to us that these at best can be viewed as no more than convenient or concessional mode of either the deposit of market fee or its payment by agreed instalments in future.
18. To conclude we would hold that Section 23-A of the Act particularly, and the amending Punjab Act No 7 of 1981 generally, does not suffer from any constitutional invalidity and is hereby upheld.
19. It is common ground that apart from this significant legal question, the individual cases would need consideration on merits as well. According we direct that these be laid before a single Bench for decision thereon in accordance with the answer to the legal question.
J.V. Gupta, J.
20. I agree.
21. Order accordingly