TMI Blog2009 (5) TMI 1021X X X X Extracts X X X X X X X X Extracts X X X X ..... f this Court in Gurram Polisetti v. Government of Andhra Pradesh 200 (4) ALD 253 (DB). The Division Bench judgment was assailed before the Supreme Court in Civil Appeal No. 4484 of 2000 (Guntur District Produ. M.A. Co-op Un. Ltd. v. Agricultural Market Committee). The apex Court set aside the Judgment of this Court and remitted for fresh hearing. Thereafter, petitioners in remanded matters, withdrew those writ petitions with liberty to file fresh writ petition. This writ petition came to be filed thereafter. A learned single Judge, before whom initially matter was listed, referred writ petition to Division Bench. But, learned Chief Justice directed that the matter be heard by a Full Bench. Brief fact of the Matter 2. The factual background is not disputed by the parties. In exercise of powers under Section 3(3) of the Act, Government issued Notification vide their order in G.O.Ms. No. 2095, dated 29.10.1968 (hereafter called, declaration order), notifying twenty (20) areas for the purpose of the Act in respect of agricultural produce, livestock and products of livestock (hereafter cumulatively referred to as 'market products') specified in Schedule II thereto. Enumerated un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduce and Livestock) Markets Act, 1966 (Act 16 of 1966) and in supercession of all the G.Os., issued on the subject of Agricultural Produce, Livestock and products of Livestock and flowers, the Governor of Andhra Pradesh hereby directs that all the notified markets shall regulate the purchase and sale of all the notified agricultural produce, livestock and products of Livestock issued in Schedule-II to the G.O.Ms. No. 2095, Food and Agriculture (Agrl.,) Department, dated 29.10.1968 and flowers issued in Schedule to G.O.Ms. No. 610, Food and Agriculture Department, dated 21.10.1978 respectively as amended from time to time. 4. As noticed supra, from the date of deletion order till the issue of impugned order, market fee was not levied on 'ghee' nor traders in ghee were required to obtain licence. After earlier writ petitions were dismissed as withdrawn, Guntur Agricultural Market Committee (GMC), first respondent herein, issued notice, dated 12.02.2007, under Section 7(1) of the Act to petitioner-proprietary concern engaged in ghee business, directing him to obtain licence for doing business in notified area, failure of which would entail in criminal prosecution under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulate the sale and purchase of those notified market products and every time such market products are deleted or included for the purpose of regulation, there is no necessity to issue separate marketwise notification. Pointing out the scheme of Sections 3 and 4 of the Act, they would urge that inviting objections at the stage of Sections 4(1), 4(3) and 4(4) of the Act, compatible with principles of natural justice is not warranted nor called for within the scope of the provisions of the Act. According to them, Sections 3(3) and 4(4) of the Act would operate in different spheres and serve different purposes. They submit that Notification issued under these provisions is a one-time exercise of declaring notified areas or notified market area and every time market products are varied, there is no necessity to invite objections. They submit that when legislature specifically does not contemplate procedure as envisaged under Section 3(2) of the Act with reference to exercise of power under Sections 4(1), 4(3) and 4(4) of the Act, the Court cannot read any such procedure into the Act. They point out that though in respect of Ongole and Guntur Market Committees, deletion order was issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducts of livestock defined in Section 2(xv), but all such animals and all such products of livestock as may be declared by notification are to be treated as livestock and/or products of livestock, as the case may be. 9. If cows and buffalos are livestock, what are the products of 'cows and buffalos', whether only raw hides, raw skins, bones, horns and hoof, hair and wool of cows, buffaloes, goat, sheep etc., are products of livestock? Learned Counsel for petitioner vehemently contends that 'ghee' cannot be treated as a product of cow or buffalo. Therefore, it is necessary to explain as to what are milk (buffalo or cow) or dairy products as understood by general public and those who engage in business of milk products. 'Milk', 'curd', 'butter', 'butter milk' and 'ghee' are traditional milk products in India. In modern times, other products like icecream, kulfi, kalakand, kova, srikand, gulab jamoon and a large varieties of sweets, chhana products (used for preparation of Rasgulla) became popular as modern products of milk. India is the largest producer of milk. As much as 46% of milk produced in India is consumed as liquid milk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kins in 'raw' condition are different from 'tanned' condition. Reliance was placed on various decisions arising under Sales Tax laws, which made distinction among various products derived or produced from the similar raw product. The Supreme Court rejected such argument and held that the meaning of a market product has to be understood on the basis of the expression of agricultural produce as defined in Section 2(a) of the U.P. Act. A perusal of Section 2(a) of the said Act makes it clear that an agricultural product would be a product which is specified in the Schedule or one which is admixture of two or more items and would also include any such item in a processed form. In our view it makes no difference, for the purposes of the said Act, that the item concerned is a different commodity from the one which is included in the Schedule. It is possible that by virtue of an admixture of two or more items or by virtue of processing a different commodity or item may come into existence. Even though a different commodity may come into existence, it would still be an agricultural produce . This is best illustrated by sugarcane which is in Schedule A Item VIII at Serial No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purpose of the Act. By reason of Section 2(x) when once a notification is issued under Section 3(3) of the Act, declaring market products, by reason of Section 2(v) and 2(xv), all products of cows, buffalo, bullocks, bulls, goats etc., shall have to be treated as products of livestock for the purpose of the Act. Here we may refer to Ram Chandra Kailash Kumar v. State of U.P. AIR 1980 SC 1124, Dineshchandra Jamnadas Gandhi v. State of Gujarat AIR 1989 SC 1011, Sita Devi v. State of Bihar 1995 Supp (1) SCC 670 and I.T.C. Limited v. Person Incharge, Agriculture Market Committee, Kakinada AIR 2004 SC 1796 : 2004 AIR SCW 792. 13. In Ram Chandra Kailash (supra), traders in U.P., challenged levy of market fee under U.P. Krishi Utpadan Mandi Adhiniyam Act, 1964. Writ petitions were dismissed by Allahabad High Court. On appeal, before Supreme Court, questions were whether market fee could be levied both on paddy and rice, whether market fee is payable on 'ghee' by the producer/trader or purchaser, and whether the market fee could be levied on hides and skins, timber or Catechu (katha), paper, kirana goods, tobacco, vegetables etc. Dealing with question as to who is liable to pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he question was whether market committee can levy market fee on buffalos, bullocks and cows bought and sold in weekly market. The High Court of Patna held that cattle is an agricultural produce for the purpose of levy. It was argued before the Supreme Court that cattle is not an agricultural produce. Rejecting the contention, it was held that: In view of the fact that the legislature itself, on identifying the cattle to be an agricultural produce, laid its policy to subject cattle for levy of market fee, it is not open to the court to scan its wisdom. Though in the normal connotation cattle may appear to be not an agricultural produce, it needs to be given effect unless the legislature lacks competence which is not the case of the appellant. The policy and the wisdom of the legislature cannot be tested by taking aid of the preamble of the Act particularly when the language of Section 2(1)(a) is inclusive, unambiguous, specific and explicit. Preamble of the Act is the key to open the mind of the legislature when the language of the statute is ambiguous. Absurdity or irrationality of bringing the enumerated items of agricultural produce within the sweep of the legislature is not a pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he procedural irregularity, if any. To be more precise, question as to whether the impugned notification is valid essentially involves consideration of the point as to whether the Government followed the procedure contemplated under the provisions of the Act before issuing the notification. Incidentally it requires to be considered whether any procedural non-compliance by itself vitiates impugned notification rendering it invalid and unenforceable. Procedural irregularity 20. The Act is seamless. It is not divided into Chapters, but for sake of convenience, provisions of the Act can be grouped. Sections 3, 5, 5A, 6, 6A, 6B, 8 to 11 form one group of establishment or machinery provisions. These deal with (i) identification of notified areas; (ii) constitution of market committee; (iii) establishment of markets; (iv) provision of facilities for purchase and sale of market products; and (v) declaration of market areas. This group of provisions also provide for disciplinary action against chairman of the market committee and withdrawal of powers. 21. Section 312 contains four sub-sections. Sub-sections (1) to (3) thereof deal with the foremost step of government publishing a notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be pointed out that the notified area is the largest geographical and physical unit. There may be a single market or more than one market for each notified area. There is to be a market committee which is a body corporate and it operates over the entire notified area. The market committee has to set up one or more markets within the area of its operation as may be directed by the Government. After the directions have been issued by the Government, the market committee has to establish a market or markets in accordance with the directions of the Government and for each market it has to fix, under Section 4(3)(c), the limits of the market and the limits of the market area referred to as the 'market area'. Under Section 4(4), the market area and such other area adjoining thereto as may be specified by the Government in the notification issued under that Section becomes the notified market area. Thus, the largest physical unit is the notified area and within that notified area is the notified market area pertaining to each market established by the market committee. Within the notified area is the market area which defines the limits of every market and within the market a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rinciples of natural justice yield to and change with the exigencies of different situations and do not apply-in the same manner to situations which are not alike. They are neither cast in a rigid mould nor can they be put in a legal strait jacket. They are not immutable but flexible and can be adopted, modified or excluded by statute and statutory rules as also by the constitution of the tribunal which has to decide a particular matter and the rules by which such tribunal is governed. Instances of cases in which it has been so held are Norwest Holst Ltd. v. Secretary of State for Trade (1978) 1 Ch. 201, 227, Suresh Koshy George v. University of Kerala (1969) 1 SCR 317, 322 : AIR 1969 SC 198 at p.201, A.K. Kraipak v. Union of India (1970) 1 SCR 457, 469 : AIR 1970 SC 150 at p. 157, Union of India v. Col. J.N. Sinha: (1971) 1 SCR 7191 (794-95) : (AIR 1971 SC 40 at p. 42, Swadeshi Cotton Mills v. Union of India (1981) 2 SCR 533, 591 : AIR 1981 SC 818 at p. 846, J. Mohapatra. and Co. v. State of Orissa (1985) 1 SCR 322, 334-5 : AIR 1984 SC 1572 at Pp. 1576-77 and Maneka Gandhi v. Union of India (1978) 2 SCR 621, 681 : AIR 1978 SC 597 at p. 629.... If legislation and the necessities of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interpreting such 'machinery provisions', Court should always interpret in a manner so as to make provisions workable, by applying the maxim ut res magis valeat quam pereat (liberal construction should be put so as to make statute workable). If any interpretation renders an Act or any of its core provisions unworkable, such interpretation should be avoided unless the legislative intention is clear and unambiguous. In Saurabh Chaudri v. Union of India (2003) 11 SCC 146, Commissioner of Income Tax v. Lakshmi Machine Works (2007) 11 SCC 126 and K.P. Mohammed Salim v. Commissioner of Income Tax (2008) 11 SCC 573, Supreme Court held that a statute or any enacting provision therein must be so construed as to make it effective and operative on principle expressed in the said maxim. 29. In Tinsukhia Electric Supply Co. Limited v. State of Assam (1989) 3 SCC 709 : AIR 1990 SC 123, a Constitution Bench of Supreme Court held, (para 49 of AIR) The Courts strongly lean against any construction which tends to reduce a Statute to a futility. The provision of a Statute must be so construed as to make it effective and operative, on the principle but res majis valeat quam periat . It is, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , observed as under, (para 72 of SCC) The maxim ut res magis valeat quam pereat is pressed into service to contend that the duty of the court is to construe the enactment in such a way so as to implement rather than defeat the legislative purpose. In our view, this maxim can be pressed into service only if it is permissible to extract another reasonable meaning from the plain words used in the statute. There is a further difficulty in accepting this principle as applicable to the case on hand. This principle might enable the court to resolve the difficulty in construing a statute so that an interpretation is put on the statute which will carry forward the intention of the statute. However, it is to be remembered that the interpretation put on the statute must be of determinative import in all cases. This maxim cannot enable the court to put a variant construction on the statute, which would vary with the circumstances of different cases. (emphasis supplied) Interpretation of Sections 3 and 4 31. The petitioner contends that impugned revised order without following essential steps contemplated under Sections 4(1) and 4(3) of the Act is illegal. According to him, unless and until mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exclude from a notified market area any area comprised therein or include in any notified market area any area specified in such notification. Here again, when they choose to exclude or include from or in a notified market area, Government have to follow procedure contemplated under Sub-sections (1) to (4) of Section 4 of the Act. It is thus very clear that legislature intended procedural compliance under Sections 3(1) to 3(3), and/or under Section 4(1) to 4(4) only when merger/de-merger of a notified area or notified market area is proposed. When a notification is issued under Section 4(4) notifying market products to be regulated by AMCs, there is no requirement of complying with or following the procedure contemplated under Sub-sections (1) to (4) of Section 4 of the Act. This interpretation makes the provision workable. For instance, if the Government decides to increase the number of market products to be regulated by AMC in a notified market area, there is no necessity to follow steps contemplated under Sections 4(1) to 4(3). Every time, the Government decides to increase number of regulated market products, if a market committee is constituted and such committee is required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plated under Sub-section (3)(a) and (3)(b) of Section 4 of the Act to provide facilities whenever products are added to the list of notified regulated market products. 35. In Sasa Musa Sugar Works v. State of Bihar (1996) 9 SCC 681, facts are as follows. Sugar was included in the Schedule of Bihar Agricultural Produce Markets Act, 1960, upto 1977. By notification, sugar was deleted as one of the market products with effect from 02.05.1977. Again by another notification, dated 21.05.1977, earlier notification was rescinded. This rescinding notification was challenged. In Delhi Cloth and General Mills Co. Limited v. Agricultural Produce Market Committee AIR 1993 Pat 43 : (1992) 2 Pat LJR 253, Patna High Court invalidated rescinding order, for non-compliance with procedure contemplated under Sections 3 and 4 of Bihar Act. Sections 3 and 4 of Bihar Act are intended to achieve the same purpose as Section 3 of AP Act and contemplate issue of preliminary notification before an area is notified and declared. Subsequently, Bihar legislature inserted Sections 4-A and 4-B to the effect that Sections 3 and 4 shall not apply to the exercise of power by the Government under Section 39 to amend s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 4 of the Act, was not required to be followed. Section 4(3) does not contemplate inclusion or exclusion of produce under Section 39 of the Act but is applicable only to the inclusion or exclusion of any area from the area of market or any produce specified therein as have been notified for control in a specified market already by notification issued under Sections 3 and 4 of the Act. (emphasis supplied) 36. It was also held that Section 4(3) (Section 4(3) of the Bihar Act is similar to Section 4(5) of the A.P. Act) thereof does not contemplate inclusion or exclusion of products under Section 39 of the Act, but is applicable only to inclusion or exclusion of any area from the notified market area. We may observe that though the scheme of Bihar Act and Andhra Pradesh Act are slightly different, the purport of Sections 3 and 4 of A.P. Act is similar to the purport of Sections 3 and 4 of Bihar Act. The reasoning which weighed with Supreme Court in Sasa Musa Sugar Works (supra), therefore, can be respectfully followed to reject the contention of petitioner. 37. We may also reiterate our view with a little more elaboration. After issue of declaration order vide G.O.Ms. No. 2095, dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion declaring market area and then issue another notifying regulated market products market areas notified simultaneously or earlier. Every time the items of market products are changed, there is no necessity for the Government to follow entire cumbersome procedure. 38. Above view derives strength from Section 4(5) of the Act which, as noticed earlier, enables Government to exclude from a notified market area any area comprised therein and/or to include any notified market area in an area specified in such notification. As ordained by the provision, Government are required to follow entire procedure contemplated under Sections 4(1), (2), (3) and (4) which only means constituting market committee, such market committee establishing markets, providing facilities and then Government issuing notification declaring the market area. So to say, whenever an area is excluded from the notified market area or whenever an area is included in the notified market area, Government have to follow four steps other than step contemplated under Section 3(3) of the Act because the declaration order under Section 3(3) of the Act The five steps that are to be followed have already indicated by the Full ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er by this Court in several cases, Shiv Bahadur Singh v. State of U.P. (1954) SCR 1098 : AIR 1954 SC 332 : 1954 Crl LJ 910 : Deep Chand v. State of Rajsthan (1962) SCR 662 : AIR 1961 SC 1527 : 1961 (2) Crl. LJ 705 to a Magistrate making a record under Sections 164 and 364 of the Code of Criminal Procedure, 1898. This rule squarely applies where indeed, the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other . (Maxwell's Interpretation of Statutes, 11th Edn., pp. 362-363). (emphasis supplied) 41. In a given case if Government excludes from a notified market area or includes in any notified market area without following procedure envisaged under Sections 4(1), (2), (3) and (4), it would certainly suffer from procedural irregularities of noncompliance with mandatory procedure therein. The same is not the case when the Government issues a notification under Section 4(4) modifying, amending, including or excluding any item or items from notified market products. It may be mentioned that generally and ordinarily declaration of notified areas and declaration of notifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ratory (Director). The Director sent certificate favouring the accused to the effect that the sample conforms to the standard prescribed for asafetida. The accused then moved the criminal Court for discharging him from prosecution. Trial Magistrate declined, whereupon he moved the High Court, which quashed the prosecution proceedings. Before Supreme Court, Calcutta Municipal Corporation projected that certificate of Director does not supersede report of the Public Analyst. The accused relied on Section 13(3) of the PFA Act which provides that certificate issued by Director shall supersede report of the Public Analyst. Dealing with this aspect, Supreme Court referring to Black's Law Dictionary (5th edn.,) observed that the word 'supersede' in law means, obliterate, set aside, annul, replace, make void or inefficacious or useless, repeal and held that when statute says the certificate shall supersede report, it means that report stand annulled or obliterated and same stands displaced. 44. In State of Orissa v. Titaghur Paper Mills Co. Limited AIR 1985 SC 1293 : 1985 Supp SCC 280, the factual background is as follows. Government of Orissa issued two notifications in exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , all tax liability under the earlier notification is wiped out and no tax can be collected by the State Government in respect of any transactions effected during the period when the earlier notification was in force. 45. When all Government orders on the subject of market products issued from time to time in respect of all notified market areas stood superseded and the impugned order comes into effect, the ghee shall stand included in all market areas including GMC. Learned Counsel for petitioner has not brought to our notice any authority to support his contention that impugned order does not revive 'ghee' as one of the regulated products in GMC. As noticed supra in Sasa Musa Sugar Works (supra), Supreme Court held that when rescinding notification is issued earlier excluded item attracts market levy. 46. Another related question raised by learned Counsel for petitioner is that in the absence facilities for purchase, sale and storage of ghee in Guntur market area, or its Market, notice issued to the petitioner requiring him to obtain licence under Section 7(1) of the Act is unsustainable. The allegation in ground (f) in affidavit accompanying the writ petition is that GMC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the market committees in course of time 'as and when funds permit'. It is needless to stress that the question of providing these facilities would depend on the financial capacity of each market committee. That would depend on whether there are sufficient funds available at its disposal with the Market Committee. We are not impressed by the submission that if a market committee does not have sufficient funds to provide the special amenities it should borrow loans from the State Government under Sub-section (1) of Section 18 of the Act or the State Government should provide grant-in-aid to such market committee under Sub-section (2)(iii) of Section 16(1)(a)(i) of the Act. If any particular market committee persistently makes default in not performing the duties imposed on it by or under the Act, or neglects or refuses to carry out any general or special direction issued by the State Government under Sub-section (3) of Section 4 as regards providing of facilities or abuses its powers, the petitioners have the remedy to take up the matter with the State Government. The State Government has ample power under Section 22 of the Act to direct the supersession of such a marke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntenance of standard weights and measures; collection and dissemination of information regarding all matters relating to crop statistics and marketing in respect of market products; schemes for extension or cultural improvement of notified market products; propaganda for improvement of market products; promotion of grading services; measures for preservation of food grains and meet staff and establishment charges. GMC was notified by market area order vide G.O.Ms. No. 1066, dated 30.07.1971. It is also averment in counter affidavit of GMC that they have already established markets and provided facilities. Therefore, we have no manner of doubt that GMC has already provided facilities and they can always collect the market fee and also compel a ghee trader to obtain licence under Section 7(1) of the Act. 50. The third question posed supra need not detain us any longer. It is well settled that levying fees and tax are two forms of exercise of State's taxing power. There is no quid pro quo between tax payer and public authority as tax is a part of common burden. It is also well settled that fee is charge for special service or a benefit given to a class of individuals fee-payers an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services rendered by the authorities to each individual to obtain the benefit of the service. The element of quid pro quo in the strict sense is not always a sine qua non for a fee. The element of quid pro quo is not necessarily absent in every tax. It is enough if there is a broad, reasonable and general correlationship between the levy and the resultant benefit to the class of people on which the fee is levied though no single payer of the fee receives direct or personal benefit from those services. It is immaterial that the general public may also be benefited from some of the services if the primary service intended is for the payers of the fees. (emphasis supplied) 52. Thus, the element of quid pro quo in strict sense is not always sine qua non for a fee. GMC was established about four decades ago and it would be improper and incorrect to infer that they have not provided any facilities nor spent MCF for the purposes as mentioned in Section 15 of the Act. The petitioner also does not point out any special paraphernalia required for ghee trade. Here, we may clarify about the position of daily farmer (not a trader), who makes ghee for his own consumption and/or for selling in G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oprietor, filed the present Writ Petition under Article 226 of the Constitution of India praying for issuance of a writ of mandamus declaring the action of the respondents in issuing G.O.Ms. No. 286, Agriculture and Co-operative Marketing-1 Department dated 5-7-1994 directing all the notified markets to regulate the purchase and sale of notified agricultural produce, livestock and product of livestock issued in Schedule II of G.O.Ms. No. 2095 dated 20-9-1968 in supersession of all the G.Os. issued earlier including the G.O. under which thee product of 'ghee' is deleted from the notified products without mentioning any reasons whatsoever and the action of the respondents in treating the 'ghee' as the notified product straight away which was already deleted by virtue of the earlier G.O. without following the due procedure preliminary decree under the provisions of the A.P. (Agricultural Produce and Livestock) Markets Act 1966 (hereinafter in short referred to as Act for the purpose of convenience) and without considering that the 'ghee' is not the product of livestock and insisting upon the petitioner for taking the licence and payment of fee as illegal, arbit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant G.Os., the relevant portions of the G.Os., and further relied on several decisions to substantiate his submissions. 57. On the contrary, the learned Government Pleader for Agriculture and Marketing would maintain that in the prior batch of Writ Petitions, the G.O. as such had not been challenged. The learned Government Pleader had drawn the attention of this Court to the language of Section 4(4) of the Act and would maintain that the issuance of general notification would be sufficient. These provisions may have to be construed in favour of the Market Committee keeping in view the object of the Act. The learned Counsel also would contend that it is true that certain steps are to be followed but however if substantial compliance is there, that would be sufficient and even if there is some lapse or gap, at the best this can be said to be a curable irregularity and definitely not an illegality. The learned Counsel also while making elaborate submissions pointed out that the Government has discretion to notify a particular commodity or to delete a particular commodity and this discretion cannot be lightly interfered with by the Courts. While making further submissions the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertain submissions relating to the correctness or otherwise of the prior decisions made by this Court and pointed out certain of the distinguishing features in relation thereto. 60. The Act is enacted for the purpose of regulation of purchase and sale of agricultural produce, livestock and products of livestock and for establishment of markets in connection therewith. The various provisions of the Act enable the Government to notify various products, livestock and products of livestock as specified in the draft notification. A detailed procedure is prescribed under Section 3 of the Act for the purpose of notifying the products in respect of which the purchase and sale can be regulated within the notified area. It contemplates issuance of draft notification under Sub-section (1) of Section 3 of the Act intending to regulate the purchases and sale of such product and products in such area as specified in such a notification and call for the objections relating to the same. The Government issued final notification after considering such objections which may be raised by such persons in pursuance of such draft notification. The change in such a notified area with respect to the notifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .Ms. No. 976 dt. 16-7-1971 and G.O.Ms. No. 1066 dt.30-7-1971 respectively. 64. G.O.Ms. No. 286 dt.5-7-94 was issued under Section 4(4) of the Act and all the Market Committees had been directed to regulate purchase and sale of all the commodities specified in the said notification as remained notified in Schedule II of the Act. Accordingly, the 1st respondent-Market Committee had initiated action to levy market fee on 'ghee' and how the traders who were bent upon challenging the same began the litigations and the series of litigations up to the Apex Court and how again the present Writ Petition had been filed in the light of the liberty granted by the learned Division Bench of this Court, had been well narrated in the respective stands taken by the parties in the affidavits filed in support of the Writ Petition and also in the respective counter affidavits. 65. This Court on 28-11-2008 while issuing rule nisi in W.P.M.P. No. 32404/2008 made the following order: As the notice issued by Agricultural Market Committee requiring the petitioner to obtain necessary licence, we do not consider it fit to pass interim Order. However coercive steps shall not be taken against the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 72. It is also the case of the petitioner that unless a particular product is notified for the purpose of regulating its purchase and sale in the specified area for marketing, the concerned Market Committee will not have any power or Authority to regulate the purchase and sale of the said product in the said notified area. If any area is to be notified or the existing area of any market is to be notified under Sub-section (4) of Section 3, the procedure under Sub-sections (1), (2) and (3) to be followed. It is also the case of the petitioner that the Government had not issued any draft notification calling for objections for the purpose of including 'ghee' as a product in an area of specified market to be regulated under the provisions of the Act. Unless and until the procedure contemplated under Section 3(1), (2) and (3) of the Act are followed, no notification can be issued modifying the specified area in respect of the notified products. Hence the action of the respondents in issuing the impugned G.O.Ms. No. 286 dated 5-7-1994 enabling the Market Committee to regulate the purchase and sale of 'ghee' treating it as a product of livestock by virtue of G.O.Ms. No. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dentical issue was considered by a Division Bench of this Court in MANU/AP/0162/2004 and the contentions of the petitioners therein were rejected, submitted that this writ petition is liable to be dismissed as covered by those decisions. Be that as it may, as mentioned above, since the very same question relating to the payment of market fee or 'ghee' was once considered and negatived by the Division Bench, in my considered opinion, it would be appropriate to post this writ petition before a Division Bench for consideration. Accordingly, the Registry of directed to place the papers before the Hon'ble the Chief Justice for appropriate orders. Since the learned Counsel for the petitioner states that there is urgency for interim orders, the papers may be placed before the Hon'ble the Chief Justice today itself. 67. By virtue of an order made by the learned Chief Justice, especially in the light of the decisions Coromandal Traders v. Agricultural Market Committee, Guntur and Anr. 2004 (3) ALD 285 (D.B.) and Vijayawada Skin Merchants Association and Ors. v. State of A.P. 1997(3) ALD 720 (D.B.), the matter had been placed before this Court. 68. Several grounds also had be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to enforce the provisions of the Act and Rules made thereunder under the approved bye-laws. It was also stated that Section 3 of the Act deals with creation of notified area in strict compliance with the procedure prescribed under Section 3(1), (2) (3) of the Act in respect of any agricultural produce, livestock and products of livestock. Further it is stated that embodiment of Section 4(1) of the Act contemplates constitution of Market Committee for the notified area and endows it with status and entity as body corporate. Section 4(1) of the Act casts an obligation on the Government to declare notified market area for the purposes of the Act in respect of any notified agricultural produce, livestock and products of livestock after the establishment of markets under Section 4(3) of the Act. It is apposite to state that consequent upon declaration of notified market area and notified articles the Market Committees would be teethed to regulate the purchase and sale of the notified agricultural produce for the reason that all other provisions of the Act would spring into operation binding the traders to be amenable to the provisions of the Act. It was also stated that enjoined by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure under Section 3 of the Act certainly seems to be uncalled for at the time the notification is issued under Section 4(4) of the Act declaring notified market area in respect of any notified produce. The action of the 1st respondent in initiating steps to get the petitioner to act in accordance with the provisions of the Act, levy and collect market fee on 'ghee' pursuant to issuance of G.O.Ms. No. 286 cannot be said to be arbitrary, illegal and unconstitutional. It was also stated that the Government in exercise of powers vested under Section 3(1) of the Act would issue draft notification declaring their intention to regulate purchase and sale of such agricultural produce, livestock and products of livestock in such area as may be specified in such notification and sees it be published in such manner as may be prescribed. The Government after considering the suggestion or objection if any received within the period specified in the draft notification pursuant to the preliminary notification under Section 3(1) of the Act would issue final notification declaring the area specified in the draft notification and any portion thereof to be a notified area for the purpose of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;ghee' finds its place in Schedule II appended to the Act and specified as notified commodity under Section 4(4) of the Act in respect of the respondent-Market Committee. The Apex Court in Sita Devi (Smt.) (Dead) By L.Rs. v. State of Bihar and Ors. (referred (9) supra) while dealing with issue of levy and collection of market fee on cattle notified as agricultural produce and specified under animal husbandry products under the provisions of Bihar Agricultural produce Markets Act 1960, held that though in the normal connotation cattle may appear to be not an agricultural produce it needs to be given effect unless the Legislature lacks competence and once agricultural produce had been identified in the Schedule they are liable or levy and collection of market fee and it seems on the lines of analogy it was also held that 'ghee' and butter are by-products of milk and when milk, 'ghee' and butter are notified agricultural produce, each is exigible to levy. It was further stated that the definition assigned to the term 'agricultural produce', 'livestock' and 'products of livestock' under Section 2(x) of the Act would comprehend in its fold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to satisfy with close and proximate relationship of all transactions. The respondent-Market Committee provides facilities to the payers of fee in general so also ploughs back its income for the purposes delineated in Section 15 of the Act. The Apex Court in Sreenivasa General Traders v. State of Andhra Pradesh (referred (10) supra) dissecting the provisions of Act had an occasion to deal with the meaning and amplitude of the term 'fee' and held that correlation between fee and the services rendered expected is one of general character and not of mathematical exactitude and further held that it is not the postulate of a fee that it must have a direct relation to the actual service rendered by the authorities to each individual to obtain the benefit of service and hence the theory of quid pro quo is well settled. The petitioner is obliged to obtain licence under Section 7(1) of the Act and pay market fee under Section 12(1) of the Act on the transactions of 'ghee' inasmuch as 'ghee' remains to be notified one for the purpose of regulating purchase and sale. It is also further stated that the Government in exercise of powers bestowed on it under Section 3(3) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and is contrary to the provisions of the Act and is in clear violation of principles of natural justice does not stand to legal scrutiny for the reason that notification under Section 3(3) of the Act declaring notified area in respect of particular agricultural produce, livestock and products of livestock would be issued as one time exercise and requirement. The procedure envisaged under Section 3 of the Act would be adhered to at the time of bifurcation of the notified area of any Market Committee and the purposes embodied under Sub-section (4) of Section 3 of the Act. Further, the Government invested with powers under Section 4(4) of the Act is competent enough to include and exclude any agricultural produce, livestock and products of livestock to be regulated within the notified market area specified in respect of such agricultural produce. G.O.Ms. No. 286 dated 5-7-1994 was issued under Section 4(4) of the Act including all notified commodities specified in Schedule II of the Act for the purpose of regulation and by the issuance of notification under Section 4(4) of the Act, the procedure under Section 3 of the Act would remain unwarranted. It is further stated that a learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification under Section 3 of the Act is not necessary every time the notification was issued under Section 4 of the Act either notifying or denotifying the agricultural produce and hence inclusion of 'ghee' as notified product by having issued G.O.Ms. No. 286 dated 5-7-1994 would remain beyond challenge. It was further stated that 'ghee' which falls under the group 'product of livestock' would remain subjected to levy and collection of market fee. This Court in Vijayawada Skin Merchants Association and Ors. v. State of A.P. (referred (8) supra) dealing with legality of G.O.Ms. No. 286 dated 5-7-1994 in so far as its application to the items raw hides, raw skin, horns and hoofs held that it is immaterial whether each of the items under Section 2(x) of the Act would answer the definition of the terms 'agricultural produce' 'livestock' or 'products of livestock'. It was also stated that in the absence of express statutory duty cast under Section 4(4) of the Act to invite objections or suggestions for declaration of notified market area in respect of any notified agricultural produce, livestock and products of livestock and more so given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or the non- following of the steps expected to be followed and the absence of issuance of specific notification and the power to issue general notification had been argued in elaboration in the context of Sections 3 and 4 of the Act in particular and to substantiate their submissions several decisions had been relied upon. In the light of the same, the following Points may have to be decided in the present Writ Petition: 1. Whether 'ghee' cannot be treated as livestock product? 2. Whether there is no valid notification issued by the Government notifying 'ghee' as livestock product under Sections 3 and 4 of the Act by the notified Market Committee? 3. Whether after the deletion of 'ghee' in terms of G.O.Ms. No. 448 dated 20-3-1972, G.O.Ms. No. 286 dated 15-7-1994 would have the effect of restoring position so far as the levy of market fee on 'ghee' is concerned? 75. In Gurram Polisetti and Ors. v. Government of A.P. (referred (11) supra) at paras 13 and 14 the learned Division Bench observed: In the instant writ petitions, the grievance of the petitioners is that no service is rendered by the respondents to the traders of 'ghee'. No amenitie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipt of our order. The interim order passed in the matter shall continue till the disposal of the matters by the High Court afresh. By granting this protection, it shall not be construed as if we have expressed any order on the merits of the case. The appeals are disposed of accordingly. 77. When the batch of cases came up before the learned Division Bench, it was found that the validity of G.O.Ms. No. 286 aforesaid had not been challenged and thus the writ petitions were withdrawn with liberty to file fresh writ petitions. Likewise, the present Writ Petition had been filed. The specific stand taken by the writ petitioner is that G.O.Ms. No. 286 dated 5-7-1994 to the extent of enabling the Market Committee to regulate 'ghee' by virtue of the earlier G.O. pursuant to G.O.Ms. No. 448 dated 19-3-1978 without following the procedure as contemplated by Section 3 of the Act is illegal. 78. Section 3 of the Act dealing with Declaration of notified area reads as hereunder: (1) The Government may publish in such manner as may be prescribed a draft notification declaring their intention of regulating the purchase and sale of such agricultural produce, livestock or products of livestoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. The Government in exercise of power under Section 3(3) of the Act had issued G.O.Ms. No. 2095, Food and Agriculture (Agrl.IV) dt.29-10-68 and declared notified areas in respect of the several Agricultural Market Committees so also specified agricultural produce, livestock and products of livestock in Schedule-I and Schedule II respectively. In pursuance whereof, notified area of the 1st respondent -Market Committee had been declared and serialized at item No. 6 of Schedule-I. Out of the said notified area of the 1st respondent - Market Committee, new notified area of respective Agricultural Market Committees stood declared, consequent upon the same bifurcation was effected to the notified area of the 1st respondent - Market Committee. Article - 'ghee' was shown at serial No. 6 under the caption of 'products of livestock'. 80. The Government had issued G.O.Ms. No. 1066, Food and Agricultural (Agrl.IV) dt.30-7-71 declaring notified Market Committee area of 1st respondent - Market Committee under column 5 of the said G.O. In notified commodities under column No. 4 'ghee' was shown at serial No. 9 for the purpose of liberation. 81. G.O.Ms. No. 448 dt.29-3-72 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of this Act and the rules and bye-laws made thereunder in the notified area. (3)(a) Every market committee shall establish in the notified area excluding the scheduled areas such number of markets as the Government may, from time to time, direct for the purchase and sale of any notified agricultural produce, livestock or products of livestock and shall provide such facilities in the market as maybe specified by the Government from time to time, by a general or special order. (b) Every market committee shall also establish in the notified area such number of markets as the Government may, from time to time, direct for the purchase and sale, solely of vegetables or fruits and shall provide such facilities in the market as may be specified by the Government from time to time by general or special order. (c) The market committee shall declare, by notification, the limits of every market established by it under Clauses (a) and (b) (hereinafter referred to as the market area). 4. As soon as may be after the establishment of a market under Sub-section (3), the Government shall declare by notification the market area and such other area adjoining thereto as may be specified in the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constructed and the roads were laid and weighing platforms were built and water facilities were provided and godowns were also constructed and the Photostat copy of the cash book entry to show money was spent for such construction was filed and it was marked as Ex. B7. The bye-laws of the Agricultural Market Committee are marked as Ex. B8. The Government issued G.Os. under No. 2261, dated 7-12-1970 and No. 790, dated 27-12-1979, directing the appellant-defendant Market Committee to provide basic amenities under Section 43 of the Act. No doubt, this witness was questioned about certain suits like OS No. 28 of 1977 and OS No. 182 of 1977 filed by some persons questioning the legality of levying the market fee and no doubt, he denied about the same. DW1 further deposed that the bye-laws were published, but, however, he did not file the Gazette publications into Court. On the strength of this evidence available on record, both parties are advanced elaborate arguments. The appellant-Market Committee taking a stand that when once a notification is made and some formalities relating to amenities had been complied with, it is sufficient to make a demand and had placed strong reliance on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rampur Coal Co. Ltd v. State of Orissa (1961) 2 SCR 537 : AIR 1961 SC 459; H.H. Shri Swamiji of Shri Admar Mutt v. The Commrr. Hindu Religious and Charitable Endowments Dept. (1980) 1 SCR 368 : AIR 1980 SC 1; Southern Pharmaceutical and Chemicals, Trichur v. State of Kerala (1982) 1 SCR 519 : AIR 1981 SC 1863 and Municipal Corporation of Delhi v. Mohd. Yasin AIR 1983 SC 617. In R.K. Porwal's. case (supra) while dealing with the establishment of market area and facilities and conveniences not available on the date of notification under the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1964, the Apex Court observed at paragraph No. 15 as follows; It was also said that neither the Gultekdi Market nor the Turbhe Market had any convenience or facility or was ready for use on the date on which it was notified as the Principal Market for the concerned market area. On the material placed before us we are satisfied that all reasonable conveniences and facilities are now available in both the markets, whatever might have been the situation on the respective dates of notification. We refrain from embarking into an enquiry as to the situation obtaining on the dates of notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the transactions. (4) That while conferring some special benefits on the licensee, it is permissible to render such service in the market which may be in the general interest of all concerned with transactions taking place in the market. (5) That spending the amount of market fees for the purpose of augmenting the agricultural produce, its facility of transport in villages and to provide other transport in villages and to provide other facilities meant mainly or exclusively for the benefit of the agriculturists is not permissible on the ground that such services in the long run go to increase the volume of transactions in the market ultimately benefiting the traders also. Such an indirect and remote benefit to the traders is in no sense a special benefit to them. (6) That the element of quid pro quo may not be possible, or even necessary, to be established with arithmetical exactitude but even broadly and reasonably it must be established by the authorities who charge the fees that the amount is being spent for rendering services to those on whom falls the burden of the fee. (7) At least a good and substantial portion of the amount collected on account of fees, may be in the nei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acilities and services. The foundation for the case set up by the plaintiff is not available on record. The law is well settled that though quid pro quo is required in relation to a fee which is charged and collected by a market committee, the quid pro quo cannot be in exact proportion to the fee levied. Mathematical proportions are not possible in such matters. We have accepted that some services and amenities were already provided for in the notified market area which fully justified the levy of market fee. We are thus unable to agree with the finding of the High Court that the market committee had failed to provide any services or amenities in the notified market area. The findings of the High Court are accordingly set aside. The appeal is allowed. As a result of this, the suit filed by the plaintiff, respondent herein, shall stand dismissed. There will be no order as to costs. 86. In the light of the decisions specified supra, if certain facilities are provided, they being sufficient, this question though argued in elaboration may not help the writ petitioner. 87. A learned Division Bench of this Court in Vijayawada Skin Merchants Association v. State of Andhra Pradesh, Agricul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e desired. Much of the controversy could have been avoided by proper and consistent grouping of items. Be that as it may, for the aforementioned reasons we are of the view that the impugned notification insofar as it includes the items 'dry fish', 'raw hides', 'raw skin', 'bones' and 'horns and hoofs' being among the notified agricultural produce, livestock or product of livestock, is legal and valid and the petitioners are liable to pay market fees under Section 12 of the Act on their sale or purchase in the market area. Certain submissions were made commenting certain of the observations to be unsustainable. On a careful reading of the whole Judgment, it may be true that certain of the observations are not happily worded. However, in Coramandal Traders v. Agricultural Market Committee, Guntur (referred (7) supra) the learned Division Bench at para-5 observed: Perusal of this Section would show that it lays the methodology which has to be adopted before a declaration of notified area is made. Under Sub-section (xi) of Section 2 also it is stated that notified area would mean an area notified under Section 3. Even if an area is notified in te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et yard and any building therein. Section 2 (viii) defines 'market committee' to mean a committee constituted or reconstituted under the provisions of the Act. Section 2(xi) defines 'notified area' to mean any area notified under Section 3. Section 2(xii) defines 'notified market area' to mean any area declared to be a market area by notification under Section 4. The confusion is likely to arise because similar terminology was also used in the repealed Acts viz., 'notified area', 'market' and 'market yard'. Under Sub-section (3) of Section 3 of the Act of 1966 after the preliminaries set out in Sub-sections (1) and (2) have been gone through, the Government has to publish a final notification declaring the area specified in the draft notification or any portion thereof, to be a notified area for the purpose of the act in respect of any agricultural produce, livestock and products of livestock specified in the draft notification published under Sub-section (1) of Section 3. We are not concerned, in the course of this judgment, with the rest of the provisions of Section 3. Thus it is clear that the notified area in the instant case, so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the market area which defines the limits of every market and within the market area are the actual markets where the notified agricultural produce is brought or sold and where facilities have to be provided by the market Committee for buying and selling these notified commodities. It is obvious that all these different five steps have to be completed before the machinery set up under the Act starts functioning. After the enactment of the Act of 1966, when the notification was issued by the Government on 29th October 1968 declaring notified area and constituting market Committees for the notified area under the Act a batch of writ petitions came to be filed against the formation of market Committees and in those writ petitions, this High Court held that notification of areas involving a change in the jurisdiction of existing Committee was illegal as it contravened the provisions of Section 36 of the Act which required notification of the areas already notified under the repealed Acts and that inclusion of new areas in, or exclusion of any area from, such notified areas should have been notified separately under Section 3(4). As the notification of areas afresh as directed by the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... products of livestock for his own domestic consumption. (3) A licence granted under Sub-section (1) shall be in such form and subject to the payment of such fees, as may be prescribed: Provided that no fees shall be charged for the grant of a licence- (i) to the Khadi and Village Industries Commission; (ii) to a co-operative marketing society referred to in explanation to Sub-section (1); (iii) to a person merely for curing, pressing or processing any notified agricultural produce or products of livestock. (4)(a) A licence under Sub-section (1) may be refused to a person- (i) whose licence was cancelled and one year has not elapsed since the date of cancellation; (ii) who has been convicted of an offence or been guilty of misconduct which, in the opinion of the market committee, affects the said person's integrity as man of business; (iii) in regard to whom the market committee is satisfied, after such enquiry as it considers adequate that he is a benamidar for, or a partner with, any other person to whom a licence may be refused under Sub-clause (i) or Sub-clause (ii); (iv) if, in the opinion of the market committee, the grant of a licence is likely to affect the transaction o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluded are : 1) Raw Hides, 2) Raw skins, 3) Bones, 4) Horn and Hoof, 5) Hair and wool and 6) Ghee, 'Fish' group is separated from 'livestock' group and in this group what are included are: 1) Live Fish including fish with or without life in any form (inserted by G.O.Ms. No. 406 F and A, dt.21-7-1980), 2) Dry fish and 3) Live Prawn including Prawn with or without life in any form. Again under the group of 'poultry' (group VII) only Hens, Ducks, and Cocks are included. A close look at the definition of 'livestock' would at once make it clear that the definition takes within its scope and ambit only animals with life. The meaning of the 'livestock' given in the Concise Oxford Dictionary also is, animals kept or dealt in for use of profit. In the Chambers 20th Century Dictionary the meaning given for 'livestock' is domestic animals, esp., horses, cattle, sheep and pigs. The definition of 'livestock' is widened under the Act to include 'poultry' 'fish' and such other animals as may be declared by the Government by its notification as 'livestock' for the purpose of the Act. Even if 'fish' is considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral produce, livestock or products of livestock in such area as may be specified in such notification. The Andhra pradesh Government has issued notification, whereunder live prawns including prawns with or without life in any form has been notified. The commodity which the appellant purchases namely dead prawns, which after processing is exported to various countries are clearly included in the notification issued by the State government. In view of Section 12 of the Act which is the charging Section and empowers the Market Committee to levy fee on any notified agricultural produce, livestock or products of livestock purchased or sold in the notified market area, the appellant is liable to pay market fee. 94. In the light of the decision of the Apex Court referred to above, it is clear that the view expressed by the learned Division Bench in Sri Lashmi Dry Fish Traders v. State (referred (15) supra) is no longer good law. By virtue of remand made by the Apex Court the observations made by the learned Division Bench in Gurram Polisetti and Ors. v. Government of A.P. and Ors. (referred (11) supra) also may not be of much help in deciding the question in controversy. 95. In Sita Devi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in which the argument was addressed. It is not the case where the cattle has not been identified as one of the items of the agricultural produce under the caption animal husbandry products . As held earlier that once agricultural produce has been identified by the legislature in the Schedule, so long as they are bought or sold within the same notified market area, they are liable for levy and collection of the market fee. It is not the case that the same produce, namely, cattle has been subjected to levy of multiple fee in the same notified market area. It may be that there may be more than one market in the same notified market area. If an agricultural produce has been bought or sold in the notified area and subject to levy and collection of market fee and if the same notified market area, certainly the market committee has no power to levy market fee more than once. But that is not the case here. Imposing of multiple tax is the accepted legislative policy in sales tax Acts. Paddy and rice, wheat and wheat flour, when separated, identified as agricultural produce and each is exigible to levy of market fee. Hides and skins when identified as agricultural produce, merely because the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... des and Skins can be had from the animal, so wool is obtained from the sheep. But in case of paddy and rice mentioned as Items 3 and 4 in Group A-I cereals , there is a duplication as rice is obtained from paddy. We would, therefore, like to clarify the position of law in this regard. If paddy is purchased in a particular market area by a rice miller and the same paddy is converted into rice and sold then the rice miller will be liable to pay market fee on his purchase of paddy from the agriculturist-producer under Sub-clause (2) of Section 17(iii)(b). He cannot be asked to pay market fee over again under Sub-clause (3) in relation to the transaction of rice. Nor will it be open to the Market Committee to choose between either of the two in the example just given. Market fee has to be levied and collected in relation to the transaction of paddy alone. Otherwise, there will be a risk of violation of Article 14 if it is left to the sweet-will of the Market Committee in the case of some rice millers to charge market fee on the transaction of paddy and in case of others to charge it when the sale of rice takes place. If, however, paddy is brought by the rice-miller from another market ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Group D such commodities are not mentioned in the notification. Point No. 11: An attempt was made on behalf of the Hides and Skins dealers to show that hides and skins cannot be an agricultural produce within the meaning of the Act. They are obtained from the carcass of an animal and not from a living animal. Argument stressed was that under group C in the Schedule appended to the Act Animal Husbandry Products only can come. Item 11 Hides and Skins, item 12 bones, item 13 meat etc. are not products of Animal Husbandry. Some authoritative books were cited before us on words and phrases to show the meaning of 'Animal' 'Husbandry' and Animal Husbandry'. Animal Husbandry means that branch of agricultural which is concerned with farm animals especially as regards breeding, care and production. We are not impressed by this argument. The definition Clause (a) of Section 2 uses to expression 'animal husbandry' by way of a descriptive one without strictly confining to the products of animal husbandry as the addition of the words specified in the schedule indicates. In the schedule under the group 'husbandry products' are mentioned all these items. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o regulate and bring the produce under control, it is necessary that intention to regulate a produce is to be notified. When is it finally decided after hearing objections to the notification under Section 4(1) is to be issued declaring the area specified in the notification issued under Section 3 or any portion thereof to be market area for the purpose of the Markets Act in respect of any of the agricultural produce. Sub-section (2) of Section 4 provides that after the date of publication of notification under Sub-section (1) of Section 4 or such later date as may be specified therein, no municipality, local authority or other person shall within the area notified in the Official Gazette set up, establish or continue any place for the purpose of sale, purchase, storage or processing of any agricultural produce so notified, except in accordance with the provisions of Markets Act, the Rules and bye-laws. Sub-section (5) of Section 4 provides that subject to the provisions of Section 3, the State government may, at any time, by notification, exclude from a market area or any area or any agricultural produce specified therein or include in any market area or any area or agricultural p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of items issued by the State government, which have been acted upon by the citizens and all concerned. The introduction of Sub-section (2) of Section 4-A retrospectively with effect from 6/8/1960 would lead to invalidation of notifications by which items have been deleted and enable the market committee to impose a fee and to collect the fee in respect of items which have been deleted, the same is bad inasmuch as it undoes the certainty with which citizens had acted upon issuance of notification under Section 39 of the Act deleting items from the Schedule. Section 4-A(2) is also bad inasmuch as the legislature has provided an opportunity for hearing at the stage of deletion of the items from the Schedule and not at the stage of addition of the items. Since the process of addition and deletion are both legislative acts, unless a rational basis exists to differentiate the circumstance when an item is being deleted from the Schedule, non-affording of opportunity to the members of the general public when an item is being added to the Schedule, is per se discriminatory and as such void. Sub-sections (1) and (2) of Section 4-A cannot co-exist with Sections 3 and 4 of the statute. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4-B is inseverable for the purpose of either interpreting the provisions or for the purpose of considering its validity. The Notification of 31/8/1992 is bad and illegal because the objections raised by the appellants have not been considered. On the basis of the pleadings submitted by the parties, the High court ought to have answered the questions relating to the validity of the Notification dated 31/8/1992 in the affirmative. It is also contended that no satisfactory material has been placed by the Marketing Board before the court to suggest that the objections were considered in a serious manner as is expected of statutory authority under Section 3 of the Act. (V) It is well settled that the provisions of an Act have to be read as a whole in order to give effect to a purposive interpretation of the Act. Viewed from this cardinal principle of construction, it is evident that the purpose of the Act to regulate activities in relation to specified agricultural produce in a market area is being defeated by the Amending Act. Viewed from this principle of statutory interpretation. Section 4-A and 4-B of the Amending Act are bad, as being contrary to the scheme of the Act. In this conn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatute would be liable to be struck down. Mere amendment to overrule or annul a decision of courts is not permissible inasmuch as the same amounts to encroachment on the judicial power of the State. In this connection, reliance has been made on the decision of this court in Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, Municipal Corporation of the City of Ahmedabad v. New Shrock Spg. and Wvg. Co. Ltd., Madan Mohan Pathak v. Union of India and Cauvery Water Disputes tribunal case. (X) A validating law must also be reasonable. The validating law must satisfy the requirement of the Constitution after taking into account the accrued and acquired rights of the parties today. In this connection, reference has been made to the decision in State of Gujarat v. Roman Lal Keshav Lal Soni (para 52 at pp. 61-63) (XI) Whilst it is true that Sections 3 and 4 do not influence the exercise of power under Section 39 of the Markets Act and are not therefore, condition precedent, yet once an item is added to the Schedule, it would be operative in a market area through the process of Sections 3 and 4. Section 39 contemplates a positive act of addition or alteration. While amendment to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notification issued under Sections 3 and 4 of the Act. 98. In Rameshchandra Kachardas Porwal v. State of Maharashtra and Ors. (referred (2) supra) the Apex Court observed at paras 6 and 17 as hereunder: We have seen that Section 5 authorises the establishment of a principal market and one or more subsidiary markets. Quite obviously the power to establish a principal market or a subsidiary market carries with it the power to disestablish (if such an expression may be used) such market. Quite obviously again, the power given by Section 5 to establish a principal or subsidiary market may be exercised from time to time. These follow from Sections 14 and 21 of the Maharashtra General Clauses Act. So, Section 5 of the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963, read with Sections 14 and 21 of the Maharashtra General Clauses Act vest enough power in the Director to close an existing market and establish it elsewhere. Section 4A(2) of the Bombay Agricultural Produce Markets Act, 1939, (the Act which preceded the Maharashtra Agricultural Produce Marketing Regulation Act), empowered the State Government to declare any enclosure, building or locality in any market area ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or by-laws so issued... Under Section 4A(2) Government can by issuing notifications from time to time alter the principal market yards which have been set up and which did not exist before the passing of the Amending Act. We agree. Any other construction may frustrate the very object of the legislation. Nothing may be expected to remain static in this changing world of ours. A market which is suitably and conveniently located today may be found to be unsuitable and inconvenient tomorrow on account of the development of the area in another direction or the congestion which may have reduced the market into an impossible, squalid place or for a variety of other reasons. To so interpret the provisions of the Agricultural Produce Marketing Regulation Act as prohibiting the abolition of a market once established and bar the transfer of the market to another place would, as we said, be to defeat the very object of the Act. Neither the text nor the context of the relevant provisions of the Act warrant such a prohibition and bar and there is no reason to imply any such. On the other hand Sections 14 and 21 of the Maharashtra General Clauses Act warrant our reading into Section 5a. power t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive instrument, the declaration by notification of the Government that a certain place shall be a principal market yard for a market area, upon which declaration certain statutory provisions at once spring into action and certain consequences prescribed by statute follow forthwith. The making of the declaration, in the context, is certainly an act legislative in character and does not oblige the observance of the rules of natural justice. In Bates v. Lord Hailsham (1972) 1 WLR 1373, Megarry, J., pointed out that the rules of natural justice do not run in the sphere of legislation, primary or delegated, and in Tulsipur Sugar Co. v. Notified Area Committee (1980) 2 SCR 1111 : AIR 1980 SC 882, our brothers Desai and Venkataramaiah, JJ., approved what was said by Megarry, J., and applied it to the field of conditional legislation too. In Paul Jackson's Natural Justice (Second Edn.), it has been pointed out: There is no doubt that a Minister, or any other body, in making legislation, for example, by statutory instrument or by-law, is not subject to the rules of natural justice-Bates v. Lord Hailsham of St. Marylebone (1972) 1 WLR 1373 - any more than is Parliament itself, Edinburgh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ially may arise in the course of exercising a function not culminating in a binding decision, if the wording of the grant of powers or the context indicates that a fair hearing ought to be extended to persons likely to be prejudicially affected by an investigation or recommendation. (Halsbury's Law of England, Vol. I, Fourth Edition, Para 65 at p. 77). A.K. Kraipak v. Union of India (1970) 1 SCR 457, Mohinder Singh Gill v. The Chief Election Commr. New Delhi (1978) 2 SCR 272 and Maneka Gandhi v. Union of India (1978) 2 SCR 621 which were decided in the light of the ever widening and expanding horizons of natural justice also lay down that it is only where an administrative decision affects the rights of persons, it becomes the duty of the authority concerned to give notice of the proposed action to the person to be affected and to take a decision after giving a fair opportunity to the person concerned to make his representation in that regard. The decision in Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch D 149 which was followed by this Court in Maneka was followed by this Court in Maneka Gandhi's case (supra) summarises the above principle as follows: 'whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of agricultural produce within the meaning of Section 2(a) of the Act. Section 2(a) defines agricultural produce to mean all produce whether processed or not, of agriculture, horticulture, animal husbandry or forest as specified in the Schedule to this Act which mentions 85 items of commodities. These are statutorily agricultural produce under Section 2(a). It is not possible to entertain the argument that the Court will undertake a judicial scrutiny of these items in order to come to a conclusion whether these are agricultural produce or not. In view of the definition in Section 2(a) such an enquiry is out of place. In this context we may note that under Section 38 the State Government may by notification add to the schedule any other item of agricultural produce or amend or omit any such specified item. It is because of this power to add to the schedule items of agricultural produce that the first part of the definition under Section 2(a) gives guidance as to what agricultural produce means. The submissions are, therefore, devoid of substance. 101. In Park Leather Industry (P) Ltd. and Anr. v. State of U.P. and Ors. 2001(3) SC 135 the Apex Court at paras 19, 20, 21 and 23 obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent item still remains a 'hide' or a 'skin'. In this view of the matter the appeal stands dismissed. There will, however, be no order as to costs. Appeal dismissed. 102. In Kishan Lal v. State of Rajasthan and Ors. 1990 Supp. S.C.C. 742 the Apex Court observed at paras 4, 5 and 6 as hereunder: Sugar is one of the items which was included in the Schedule to the Act, statutorily, right from its inception. Such inclusion is found in Maharashtra, Gujarat, West Bengal, Bihar etc. Whether it was subsequently deleted or re-included or regrouped or it was added later was immaterial as Section 40 of the Act empowered State Government to amid or include any item in the Schedule of agricultural produce. Existence of such delegated power is usual feature of the statutes. No illegality or infirmity could be pointed out in it. Any challenge, therefore, founded on excessive delegation of legislative power was misconceived. Inclusion of sugar in the Schedule was urged to be arbitrary as it was not produced out of soil the basic ingredient of agricultural produce. Fallacy of the submission is apparent as it was in complete disregard of definition of the word agricultural produce in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter in detail and held sugar legislations to be within the scope of Entry 33 of concurrent list. It was observed that all 'acts and the notifications issued thereunder by the Centre in regard to sugar and sugarcane were enacted in exercise of concurrent jurisdiction'. Effect of it was described thus, 'the Provincial Legislation as well as the Central Legislation would be competent to enact such pieces of legislation and no question of legislative competence would arise'. Any further discussion on clash between Entry 52 of List I of VII Schedule with Entry 28 of List II in the circumstances is unnecessary. As regards the submission of occupied field suffice it to say that there is no repugnancy in the Central and State legislation. At least none was made out. Even if there would have been any the Act having received assent of the President it is fully protected by Article 254(2). 103. In Krishi Upaj Mandi Samiti v. Orient Paper and Industries Limited 1995 (1) SCC 655 the Apex Court held at paras 24, 28, 31 and 32 as hereunder: On behalf of the appellant-Committees, their income and expenditure account for the five years, viz., 1985-86 to 1989-90 has been annexe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bamboos at the forest depots is not a transaction in the market proper or market yard and hence it is not prohibited by the Act, the High court has failed to notice the relevant provisions of Section 6(b) of the Act to which a reference has already been made earlier. The provision in terms states that no person shall, except in accordance with the provisions of the Act and the rules and the bye-laws made thereunder, use any place in the market area for the marketing of the notified agricultural produce or operate in the market area as a market functionary. The exceptions to this provision are mentioned in Section 6(b) itself and the sale of the bamboos at the forest depots which are admittedly in the market areas of one or the other committee, are not covered by any of the exceptions. The prohibition for sale or purchase of the agricultural produce is not only in the market proper or market yard area but in the market area as a whole. So also Section 31, as already pointed out, further provides that no person shall, in respect of any notified agricultural produce, operate in the market area as commission agent, trader, broker, weighman, hammal, surveyor, warehouseman, owner or occu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also include milk powder. Similarly, Raptakos (special infant food) also contains proteins and fats. He also contended that even milk which is a complete food may contain vitamins, therefore, it cannot be said that these two products are not milk products or products containing some ingredients of milk. It is difficult to accept this contention for the simple reason that the aforesaid Schedule at sub-item 20 captioned under the title Animal Husbandry Products refers to milk except liquid milk. By no stretch of imagination, tinned baby food containing various ingredients which may include some milk fats or proteins though in powder form can be said to be milk powder simpliciter or whole milk not in liquid form. It is also pertinent to note that there is no item of milk products in the Schedule to the Act under the caption Animal Husbandry Products . In this connection, it is profitable to contradistinguish this entry in the Schedule with Items 14, 15 and 16 under the caption Cereals in the very same Schedule. In the listed items under the caption Cereals , we find Wheat separately mentioned at Item 3 as compared to wheat atta, suji and maida separately mentioned at Items 14, 15 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cynamide India Limited (referred (4) supra) as well. 106. Elaborate submissions were made relating to the settled principles of interpretation of statutes and submissions were made by the Counsel representing the writ petitioner that when procedure and all steps in relation to the issuance of notifications had not been followed, the whole exercise is vitiated and liable to be quashed and on the contrary even if it is to be taken that every step had not been followed this may have to be taken as a curable irregularity and in the light of the decided cases of the Apex Court since no longer this issue whether 'ghee' would fall within the meaning of livestock or not being no longer available to the writ petitioner, it would be a futile exercise to quash the proceedings with a further direction to follow every step while issuing the notifications. Hence, it was contended by the learned Government Pleader and the learned Standing Counsel representing the respondents that the Writ Petition to be dismissed. 107. In Swedish Match AB v. Securities Exchange Board of India 2004 (11) SCC 641 at para 52 the Apex Court observed: It is a well-settled principle of law that where wordings o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was cured by Section 76-J, the Omnibus Curative Clause to which we earlier made a reference as the 'Ganga' clause. Provisions similar to Section 76-J are found in several modern Acts and their object is to put beyond challenge defects of constitution of statutory bodies and defects of procedure which have not led to any substantial prejudice. We are inclined to agree with the High Court that a defective publication which has otherwise served its purpose is not sufficient to render illegal what is published and that such defect is cured by Section 76-J. The High Court relied on the two decisions of this Court - Bangalore Woollen, Cotton Silk Mills, Bangalore case (1961) 3 S.C.R. 707 : AIR 1962 S.C. 562 and Municipal Board, Sitapur v. Prayag Narain Saigal (1969) 3 S.C.R. 387 : AIR 1970 S.C. 58. In the first case objection was raised to the imposition of octrai duty on the ground that there was failure to notify the final resolution of the imposition of the tax in the Government Gazette as required by Section 98(2) of the City of Bangalore Municipal Corporation Act. A Constitution Bench of the Court held that the failure to publish the final resolution in the Official Gazett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is specified that The Government shall constitute by notification a market committee.... Further, in Sub-section (1) of Section 4 it is specified that ...the market committee so constituted shall be a body corporate by such name as the Government may specify in the said notification.... Sub-section (3)(a), (3)(b), (3)(c) of Section 4 would commence with words Every market committee shall , The market committee shall . Sub-section (4) of Section 4 of the Act specifies As soon as may be after the establishment of a market under Sub-section (3) the Government shall declare by notification the market area and such other area adjoining thereto as may be specified in the notification, to be a notified market area for the purposes of this Act in respect of the any notified agricultural produce, livestock or products of livestock . It is pertinent to note that Sub-section (5) of Section 4 specifies that Subject to the provisions of Sub-section (1), (2), (3) and (4), the Government may, by notification - (a) exclude from a notified market area, any area comprised therein; or (b) include in any notified market area, any area specified in such notification . 111. It is no doubt true that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enting the writ petitioner is that the different steps to be followed under Sections 3 and 4 of the Act since had not been followed, the impugned G.O. aforesaid is liable to be quashed. Certain portions of Sections 3 and 4 of the Act and how in Sub-sections the expression may and shall had been employed already had been referred to supra. 114. In Sainik Motors v. State of Rajasthan AIR 1961 S.C. 1480 it was held that the word shall is ordinarily mandatory but it is sometimes not so interpreted if the context or the intention otherwise demands. In State of U.P. v. Babu Ram AIR 1961 S.C. 751 it was held that when a statute uses the word ' shall , prima facie It is mandatory, but the Court may ascertain the real intention of the Legislature by carefully attending to the whole scope of the statute. In Jaywant S. Kulkarni v. Minochar Dosabhai Shross AIR 1988 S.C. 1817 it was held that if the word shall has been substituted for the word may by an amendment, it will be a very strong indication that use of 'shall' makes the provision imperative. In Chairman, Canara Bank, Bangalore v. M.S. Jasra AIR 1992 S.C. 1341 it was held that the use of word may at one place and shall at an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed a draft notification declaring their intention of regulating the purchase and sale of such agricultural produce, livestock or products of livestock in such area as may be specified in such notification. (2) Such notification shall state that any objections or suggestions which may be received by the Government from any person within a period to be specified therein will be considered by them. (3) After the expiration of the period specified in the draft notification and after considering such objections and suggestions as may be received before such expiration, the Government may publish in such manner as may be prescribed a final notification declaring the area specified in the draft notification or any portion thereof, to be a notified area for the purposes of this Act in respect of any agricultural produce, livestock and products of livestock specified in the draft notification. (4) Subject to the provisions of Sub-sections (1), (2) and (3), the Government may, by notification- (a) exclude from a notified area, any area comprised therein; or (b) include in any notified area, any area specified in such notification; (or) (c) declare a new notified area by separation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all also establish in the notified area such number of markets as the Government may, from time to time, direct for the purchase and sale, solely of vegetables or fruits and shall provide such facilities in the market as may be specified by the Government from time to time by general or special order. (bb) Every market committee may also establish in the notified area such number of special markets as the Government may from time to time direct for the purchase and sale of any notified agricultural produce, livestock or products of livestock or fruits and vegetables and may provide such facilities in the special market as may be specified by the Government from time to time, by a general or special order. (c) The market committee shall declare, by notification, the limits of every market established by it under Clauses (a), (b) and (bb) (hereinafter referred to as the market area). (4) As soon as may be after the establishment of a market under Sub-section (3), the Government shall declare by notification the market area and such other area adjoining thereto as may be specified in the notification, to be a notified market area for the purposes of this Act in respect of any notified ..... X X X X Extracts X X X X X X X X Extracts X X X X
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