TMI Blog1961 (5) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... as established under s. 5 of the Act for the Ahmedabad market area by the name of The Agricultural Produce Market Committee, Ahmedabad. By later notifications certain other agricultural produce was declared to be regulated under the provisions of the Act in this market area. ID 1959 a locality known as the Kalupur market in the Telia Mill compound near the railway station Ahmedabad was declared to be a sub-market yard for the purposes of the Act. The petitioners apparently were carrying on business in the Kalupur market and therefore after the declaration of that area as sub-market yard, the market committee required the petitioners to take out licences under the Act without which they were not to be allowed to carry on business. The petitioners contend that the various provisions of the Act and the Rules and bye-laws framed thereunder place un- reasonable restrictions on their right to carry on trade in agricultural produce and thus infringe their fundamental right guaranteed under Art. 19 (1)(g) of the Constitution. In particular, the heavy fees payable to the market committee for taking out licences in order to trade in various markets impose a heavy burden on trade in the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner by notification to declare his intention of regulating the purchase and sale of such agricultural produce and in such area as may be specified in the notification; and objections and suggestions are invited within a month of the publication of the notification. Thereafter the Commissioner after considering the objections and suggestions, if any, and after holding such inquiry as may be necessary, declares the area under s. 4(1) to be a market area for the, purposes of the Act. The consequence of the establishment of the market area is given in s. 4(2) which lays down that after the market area is declared, no place in the said area shall, subject to the provisions of s. 5A, be used for the, purchase or sale of any agricultural produce specified in the notification. After the declaration of the market area, the State Government is given the power under s. 5 to establish a market committee for every market area. Thereafter under s. 5AA it becomes the duty of the market committee to enforce the provisions of the Act, and also to establish a market therein, on being required to do so by the State Government, providing for such facilities as the State Government may from time to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h a market; but reading the provisions of s. 4A and s. 5AA together it appears that after the State Government has required the market committee to establish a market, it has to approach the Commissioner with its recommendation to declare localities as the principal market yard and the sub-market yards, if any, and the Commissioner makes a notification in regard thereto, and thereafter the market is established. Till however such action is taken by the committee and the Commissioner notifies a principal market yard and sub-market yards, if any, no market can in law be established; and other provisions of the Act which come into force after the establishment of a market cannot be enforced and the trade is till then regulated in the manner provided in the proviso to s. 4(2). After the market is established, the market committee gets the power to issue licences under s. 5A. Other provisions of the Act provide for the constitution of market committees and the establishment of a market committee fund and the ancillary powers of market committees with which however we are not directly concerned in the present case. It is enough to refer to s. 11 only in this connection, which provides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 5AA of the Act are unconstitutional. Learned counsel for the petitioners, however, urges that there is a difference between the Madras Act and; the Act inasmuch as the Madras Act dealt with commercial crops whereas the Act makes it possible to bring every crop under its sweep. It is conceded that though it may be con- stitutional to regulate the sale and purchase of commercial crops, regulation of all crops made possible under the Act would mean an unreasonable restriction on the fundamental right enshrined in Art. 19(1)(g). We are of opinion that there is no force in this contention. The Madras Act which dealt with commercial crops specified certain crops as commercial crops in the definition section and added that the words commercial crop used in that Act would include any other crop or product, notified by the State Government in the Fort St. George Gazette as a commercial crop for the purposes of that Act. In view of this inclusive definition of commercial crop in the Madras Act, it was open to the State Government under that Act to include any crop within the meaning of the words commercial crop which was regulated by that Act. The Act had a schedule when it origin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to, amend or cancel any of the items of agricultural produce specified in the Schedule. It is submitted that this gives a completely unregulated power to the State Government to include any crop within the Schedule without any guidance or control whatsoever. We are of opinion that this contention must also fail. It is true that s. 29 itself does not provide for any criterion for determining which crop shall be put into the Schedule or which shall be taken out therefrom but the guidance is in our opinion writ large in the various provisions of the Act itself. As we have already pointed out, the scheme of the Act is to leave out of account retail sale altogether; it deals with what may be called wholesale trade and this in our opinion provides ample guidance to the State Government when it comes to decide whether a particular agricultural produce should be added to, or taken out of, the Schedule. The State Government will have to consider in each case whether the volume of trade in the-produce is of such a nature as to give rise to wholesale trade. If it comes to this conclusion it may add that produce to the Schedule. On the other hand if it comes to the conclusion that the producti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rged for services rendered by the market committee in connection with the enforcement of the various provisions of the Act and the provisions for various facilities in the various markets established by it, is in the nature of sales tax. It is true that the fee is calculated on the amount of produce bought and sold but that in our opinion is only a method of realising fees for the facilities provided by the committee. The attack on s. 11 must therefore fail. Besides this however, it is also contended that rr. 53 and 54 which provide for levying of fees under s. II are ultra vires, as they do not conform to s. 11 of the Act. It will be noticed that s. 11 provides for levy of fees to be fixed by the market committee, subject to such maxima as may be prescribed by the Rules and this fee is to be charged on the agricultural produce bought and sold. There are thus two restrictions on the power of the market committee under s. 11; the first is that the fee fixed must be within the maxima prescribed by the Rules and naturally till such maxima are fixed it would not be possible for the market committee to levy fees, and the second restriction is that fees have to be charged not on the prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfined to the fee being analogous to a sales tax and there was no ground taken that the fee could not be levied under r. 53 because the maxima had not been specified in the Rules. However, it is not in dispute in this case that maximum has not been specified in any rule and r. 53 itself leaves it open to the market committee to prescribe such rates as may be specified in the bye-laws. We have already said that it would not be possible for the market committee to prescribe any fees under s. 11 through byelaws till the State Government prescribes the maximum under s. 11. As no such maximum has been prescribed in the Rules, the contention that fees which are being charged under the bye- laws for the purposes of s. 11 are ultra vires of that section, must prevail. It has been urged on behalf of the respondents that the true construction of s. 11 is that if maxima are prescribed by the Rules, fees will be fixed by the market committee within the maxima; but if no maxima are fixed under the Rules, it will still be open to the market committee to prescribe any fees it thinks proper under its power under s. 11. We are not prepared to accept this interpretation of s. 11, for it amounts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a trader or a general commission agent in agricultural produce in any market area except under a licence granted by the market committee under this rule. The contention is that this rule goes beyond the provisions of s. 5A which lays down that where a market is established under s. 5AA, the market committee may issue licences in accordance with the Rules to traders, commission agents........ So far as the grant of licence to traders before the establishment of a market is concerned, the provision is to be found in the proviso to s.4(2) and the power to grant licences before the establishment of a market for trading in any market, area, is given to the Commissioner and not to the market committee. The power of the market committee to grant licences under s. 5A arises only after a market is established and is confined to operation in the market. Rule 65 therefore in our opinion when it authorises the market committee to grant a licence for doing business in any market area goes beyond the power conferred on the market committee by s. 5A and entrenches on the power of the Commissioner under the proviso to s. 4(2). It must therefore be struck down as ultra vires of the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State Government to establish a market will have to approach the Commissioner with its recommendation and ask him to notify the establishment of a principal market yard and sub-market yards, if any. The contention of the petitioners is that no direction was issued by the State Government under s. 5AA to the market committee for the establishment of a market and that in any case the committee took no steps after the receipt of any such direction for the establishment of a principal market yard and sub-market yards, if any. It appears that the market area was declared for the first time in Ahmedabad from June 1, 1948, by notification dated April 15, 1948. This was followed by another notification by which the State Government established a market and a market proper under the Act as it stood before the amendment of 1954 by which the power to establish a principal market yard and sub- market yards has now been given to the Commissioner. It seems however that no direction was issued as required by s. 5 of the Act as it stood before the amendment (now s. 5AA) requiring the market committee to establish a market. This matter had come to the notice of the Bombay High Court in Bapubha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued by the Commissioner on January 16, 1959, to show that he was doing so in pursuance of the desire of the market committee and on its recommendation. We should have thought that if the market committee had requested the Commissioner to establish a sub-market yard and recommended Kalupur as the place for it, the notification should have shown that the Commissioner was acting at the desire of the market committee and on its recommendation. In any case, even if the notification did not show this, it was the duty of the respondents, when this question was specifically raised in para. 25 of the petition, to state when the State Government directed the market committee to establish the market and what steps the market committee took in that behalf after such direction. But in para. 24 of the counter-affidavit filed on behalf of the respondents all that is stated is that with reference to paragraph 25 of the petition, I crave leave to refer to s. 5-A of the Act for ascertaining its contents, true meaning and legal effect. I deny all the allegations, contentions and submissions contained in paragraph 25 of the petition as are contrary to or inconsistent with what is stated herein as i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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