TMI Blog1962 (3) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... us in these petitions was also a party in that petition, which was with respect to a market established in Ahmedabad. In that petition the challenge to the constitutionality of the main provisions of the Act failed but the provisions of certain Rules, namely rr. 53, 65, 66 and 67 were held to be ultra vires the provisions of a. 11 and a. 5A of the Act. In consequence, a direction was issued prohibiting the respondents in that petition from enforcing the provisions of the Act, Rules and Bye-laws against the petitioners in that petition till a market was established in law for that area under s.5A and from levying any fee under a. 11 till the maximum was prescribed under the Rules. Consequent on that decision, the State of Gujarat amended r. 53 by notification dated June 23, 1961. Further the Ordinance was promulgated on June 26, 1961, by which certain amendments were made in certain sections of the act and a new s. 29-B was inserted in the Act validating certain acts or things done prior to the promulgation of the, ordinance. The present petitions were filed thereafter. Four of the petitions (namely, Nos. 226 to 229) are with respect to Ahmedabad while the fifth petition (No. 233) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the market committee and was entitled to a refund of that after the earlier judgment of this Court; but s. 29-B newly inserted in the Act which in effect deprives this petitioner of getting refund is invalid and illegal as it is against the provisions of Art. 31(1). Some other points have also been raised by the Nadiad petitioners ; but as they are not pressed, we shall not refer to them. The petitions have been opposed on behalf of the State and it has traversed all the points raised on behalf of the petitioners. It is not necessary to set out the grounds on which it is urged on behalf of the respondents that the contentions of the petitioners have no force. These grounds will appear when we deal with the contentions raised on behalf of the petitioners one by one. Nor do we think it necessary to set out the previous history as to the establishment of the market in Ahmedabad as that will be found in the earlier judgment ; nor is it necessary to set out the previous history as to the establishment of the market in Nadiad, for it is not in dispute that that history is similar to the, history in the case of the Ahmedabad market. We shall therefore proceed to indicate the point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produce bought and sold in the market area at such rates as may be specified in the by laws, subject to the following maximums, namely:- (1)Rate when levied according to cart load shall not exceed 40 naya paise per cart load. (2)Rate when levied ad valorem. shall not exceed 40 naya paise per ₹ 100. (3)Rate when levied according to weight shall not exceed. (1) per quintal 15 naya paise (2) per Bengali Maund 5 naya paise (4)Rate when levied according to the number of containers containing the agricultural produce shall not exceed, (a) per bale of cotton 40 nay paise (b)per gunny bag or 5 naya paise any other container, (5)Rate when levied in respect of cattle, sheep and goat shall and exceed per animal ₹ 2.' By order and in the name of Governor of Gujarat. The contention on behalf of the petitioners is that the notification is discriminatory in two ways: in the first place, because it allows fees to be collected by different modes, i.e., by cart load, by value, by weight and by containers. It is urged that it is open to the market committee to levy fees on certain agricultural produce by (say) cart load and on certain other agricul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is only the exercise of the' power of taxation using that word in its widest sense. Therefore, the fact that under this rule, the market committee may levy fees by one method on one agricultural produce and by another method on another agricultural produce will not be a ground of discrimination, for each commodity must be treated as a class by itself, Turning now to the second contention, it is true that there is nothing in the rule expressly to prevent the market committee from using two of the modes prescribed therein for the purpose of levying fees on the same agricultural produce. It must be remembered however that the rule is a general provision for levying fees within the maxima prescribed on the agricultural produce by market committees in the market areas all over the State. Various methods of levying fees have been included in the rule, for we assume that the rule making authority knew that there were various ways in which things are brought into various market areas. The. rule is meant to apply to all situations that may arise in the State and there maybe different ways in which things may be brought to the market areas in different parts of the State. That is why the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mination actually arises in such a case will depend upon the rates fixed by the market committee for levying of fees on the, same agricultural produce in the two modes that, it might choose. If the rates are so fixed that the incidence is substantially the same whether the fees are levied on the basis of cart load or on the basis of weight, there will be no discrimination. On the other hand if the rates are so fixed that the incidence works out substantially differently there will be a case of dis- crimination and in such a case: it is the bye-law that will have to be struck down as being discriminatory for the actual imposition of fees will be made by the bye-law framed by the committee and not by the impugned notification. The chances however of fixing two modes for the levy of fees even on the same agricultural produce in such a way as to result in discrimination are in our opinion so remote that the notification cannot be struck down on that account as discriminatory. In such a case it is not the notification which will have to be struck down but the actual bye-law if it prescribes rates of fees in two modes in such a way as to result in discrimination. Turning now to the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government. Rub-section (3) finally provides that all licences issued to operate in a market area or any part thereof and fees charged therefore before the commencement of the Ordinance by a market committee under the Rules and bye-laws and any action taken or thing done relating to licensing of persons, or obtaining of a licence, to operate in the market area or any part thereof, taken or done by a market committee or any other authority or person under the Rules and bye-laws before the commencement of the Ordinance shall be and shall be deemed always to have been valid and the validity thereof shall not be called in question merely on the ground that when such action was taken or thing done, the power right or. obligation therefore was not duly conferred or imposed by the Act on such market committee, authority or person. This provision is intended to cure the defect arising from rr.65 and 67 being declared ultra vires by this Court in its earlier judgment. The contention on behalf of the petitioners is that these provisions are insufficient to validate the defects which were noticed in the earlier judgment of this Court inasmuch as the relevant provisions of the Act and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , (a) shop-keepers, (b) lari holders, and (e) Toplawala (hawkers), with a licence- fee of ₹ 12, ₹ 6 and ₹ 3 respectively. It is urged that this amounts to discrimination between A class and B class traders inasmuch as A class traders are charged much higher fees than the B class traders. It is however clear that there is a basis for classification between the two classes of traders. A class traders are those who can both buy and sell agricultural produce in the market yard while B class traders can only buy in the, market yard but cannot sell there. It is submitted on behalf of the State Government that B class traders are those persons who generally sell in retail to consumers after buy in a wholesale in the market yard from A class traders or producers. The reason why B class traders have been permitted to buy in the market yard is to allow for competition, as otherwise there would have been a monopoly of the few A class traders who operate in a particular market yard. This classification in our opinion is reasonable. A class traders are wholesale traders who are permitted both to buy and sell in the market yard and are thus charged a higher licence-fee. B class ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no difference to the basis of classification. There is no force therefore in the contention under this head and it must be rejected. Re. (4). It is next urged that the market committee is attempting to control retail dealers and requires them also to take out licences and this it is not authorised to do, as this Court has already held in the earlier judgment that retail trade is not. within the ambit of the Act. This argument is based on the use of the words to sell in retail to consumers anywhere in the market area in connection with B class traders. It is said that in this way the market committee is controlling retail trade also under the Act which it cannot do. We are of opinion that this contention has no force. B class traders are required to take out licences in order to buy agricultural produce in quantities not below 10 lbs. in the market yard. The licence in our opinion is not meant to permit them to carry on retail sale anywhere in the market area. As we have said already these words are a mere surplusage and the real purpose of the licence granted to B class traders is to permit them to buy in the market yard and thus control their activity in connection with whol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the stalls in the market yard. There is therefore no force in this contention either and it must be rejected. Re. (5). The main contention under-this head is that the main provisions of the Act have been so amended by the Ordinance that the basis on which this Court upheld the provisions as constitutional no longer exists and therefore the Act as it now stands after its amendment by the Ordinance is an unrea- sonable restriction on the right to carry on trade. This contention requires a consideration of the provisions of the Act as they stand after the amendment by the Ordinance and it will have to be seen whether there has been any radical departure from the scheme of the Act as it was before the amendment. If there has been no radical departure after, the amendment and the control envisaged by the Act as amended is still the same, as it was before the amendment the basis on which the earlier judgment of this Court upheld the main provisions ,the Act would still apply, and the Act as amended would be constitutional. Let us therefore see if there has been any radical departure from the main provisions of the Act as they stood before the amendment. The Act still deals with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was concentrated in the market which consisted of a principal market yard and one or more sab-market yards with the consequent advantage to the agricultural producer that they had a place or places where they could find a large number of buyers for their produce and could thus secure fair prices under regulated conditions. Now, however, it 'is urged that under s. 5A it is open to the market committee, after the market is established under s. 4A to give licences to traders and other to operate in the market area or any part thereof with the result that it would not be necessary to have a principal market yard or sub-market yards. There would be some force in this argument if we were to ignore the rules framed under the Act. But the rules which were framed by the State Government are still the same. Rule 51 provides for the declaration of market yards and market proper by the State Government. Rule 60 provides that all agricultural produce brought into the market shall pass through, the principal market yard or sub-market yards and shall not subject to the provisions of sub-r.(2), be sold at, anyplace outside such yards. The only exception to this is sub- r.(2), which provides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was before its amendment and the reasons which impelled this Court to uphold the Act and the Rules framed thereunder would still hold good. If and when the Rules are so changed as to make a radical departure from the present position, a question may well arise whether the scheme of control envisaged under the Act has failed in its purpose. It may then be necessary to decide whether the Act and the rules framed thereunder are unconstitutional; but so long as the rules stand as they are, we have to read s.5A along with the Rules, for licences are issued under that section in accordance with the Rules, and reading s. 5A and the present Rules together it must be held that there has been no radical departure from the scheme of the act as it was before the amendment and therefore the reasons which impelled this court to uphold the Act, Rules and bye-laws framed under it in the earlier judgment still stand. Beside, this main argument certain subsidiary contentions are also urged on behalf of the petitioners to challenge the constitutionality of the act, and the Rules framed thereunder on the ground that it was an unreasonable restriction on the fundamental right to carry on trade or b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raders have to be controlled, if the control in the interest of agricultural producers and the general public has to be effective. We are therefore of opinion that the Act and the Rule,% and Bye-laws thereunder cannot be struck down on this ground. The contention under this head therefore must fail. Re. (6). The next contention is that rr. 65, 66 and 67 were struck down by this Court in the earlier judgment and have neither been reframed nor validated by the Ordinance. Therefore, these rules do not exist. Consequence of this, it is alleged, is that it is not open to the market committee to issue licences which were provided by these rules. Rules 65 provides that no person shall do business 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. Rule 67 provides that no person shall do business as a trader, commission agent, broker, weighmen, measurer, surveyor, warehouseman or operate in any other manner in any market area except under licence granted by the market committees. It is urged that licences are granted under these rules read with s.5A, which now provides that whore a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this difference that', unlike amended clause (2) of Art.19 which was expressly made retrospective, no rights and obligations could be founded on the provisions of the impugned Act from the date of the commencement of the constitution till the date of the amendment. This matter was further considered in Deep Chand v. The State of Uttar Pradesh ((1955) Supp. 2 S.C.R. B.) and it was held by majority that ,,there was clear distinction between the two clauses of Art. 13. Under cl. (1), pre-Constitution law subsisted except to the extent of its inconsistency with the provisions of Part III whereas under cl. (2) any post Constitution law contravening those provisions was a nullity from its inception to the extent of such contravention and therefore a law which was bad ab initio under Art. 13 ( 2) either wholly or to the extent of the con travention could not be revived by the application of the doctrine of eclipse and the doctrine could only apply in the case of a law that was valid when made but was rendered invalid for certain purposes by a supervening constitutional inconsistency. The argument on behalf of the State is that if rr. 65 and 67 were valid when they were first fra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted to traders and on the agricultural produce bought and sold in the market area and the recovery of such fees; (f)the issue of licences to brokers, weigh- men measures and surveyors the form in which and the conditions subject to which such licences shall be issued or renewed and the conditions subject to which the licences shall carry on their business and the fees to be charged therefore. It will be seen that these provisions by which rules could be framed for grant of licences did not confer power for issuing licences only for the market established under s.5 is it originally stood. These powers were general in terms and the Government could frame rules empowering the market committee to issue licences for carrying on business through. out the market area. Rules 65 (1) and 67 (1) therefore would be within the power granted to the State Government under a. 26 when they were originally framed in 1941 and would thus be valid then. Then we come to the amendment of the Act in 1948. By this amendment, clauses (e) and (f) of s. 26(2) were combined in one and were numbered as sub-s. (2)(f), which runs as follows:- (2)In particular and without prejudice to the genera ..... X X X X Extracts X X X X X X X X Extracts X X X X
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