9911796707
TMI Blog2009 (5) TMI 1021X X X X Extracts X X X X X X X X Extracts X X X X ..... ivision Bench of 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 there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... desh (Agricultural Produce 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 After earlier writ petitions were dismissed as withdrawn, Guntur Agricultural Market Committee (GMC), first respondent herein, issued notice, dated 12.02.2007, under Section 7(1) of the Act to petitioner-proprietary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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et committees can only regulate 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 2(v) and not only the products 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 In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was contended that hides and skins 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... livestock' as may be declared by the government by notification are to be treated as products of livestock for 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, timb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produce whether processed or non-processed of agriculture, horticulture, animal husbandry, specified in Schedule to the enactment. The 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 ambiguou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ock' for the purpose of regulating its purchase and sale, in any notified market area. In re Point 2 19. This is essentially enquiry into the 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 po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in Mamidi Satyanarayana Murthy v. State AIR 1977 AP 147 (FB). Thus, to clarify the concepts and the different terminologies used in the Act, it 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority, summarizing conclusions reached in former, inter alia it was held (Paras 28 and 29): It is well established both in England and in India that the principles 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2007) 6 SCC 143. 28. It is - more often than not; the legislative practice to provide for machinery for enforcing a police law (regulating law) or taxing law. In 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 Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at law should be interpreted so as to make it workable. However, in their dissenting opinion B.N. Srikrishna and N. Santosh Hegde, JJ, dealing with the maxim ut res magis valeat quam pereat, 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 Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, only after following provisions of Sub-sections (1), (2), (3) of Section 3 of the Act. A similar power is conferred under Section 4(5) of the Act on the Government. Under Section 4(5) the Government may 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government need not follow the procedure contemplated under Sections 4(1) and 4(3) of the Act. It is also not necessary for the market committee constituted under Section 4(1), every time to take steps as contemplated 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 ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so be noted that since deletion of sugar from the Schedule was made in exercise of power under Section 39, and such deletion was not a deletion under Section 4(1) of the Act, the procedure prescribed in Sections 3 and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tablish markets, provide facilities and then request the Government to issue notification under Section 4(4). Further more, any exercise under Section 4(4) can be in two stages. The Government can first issue notification 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time. It was applied by the Privy Council, in Nazir Ahmed v. Emperor 63 Ind App 372 AIR 1936 PC 253 (2), and later 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 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1954 (PFA Act, for brevity), on a charge of adulteration of asafoetida, based on the report of Public Analyst, Calcutta. After entering appearance in Criminal Court, he made an application to send samples to Director of Central Food Laboratory (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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to wipe out any liability accrued under the previous notifications. If this contention of the respondents were to be accepted, the result would be startling. It would mean, for example, that when a notification has been issued under Section 5(1) prescribing a rate of tax, and that notification is later superseded by another notification further enhancing the rate of tax, 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 83 SC 1246, Supreme Court observed that if any of the facilities are not provided by the market committee, it is open to the payers to have the remedy to take up the matter with State Government which has ample power under Section 22 of the Act to direct supersession of market committee. The relevant observations are as below. It will be noticed that these facilities are to be provided 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 14 and 15 of the Act. Section 14 mandates that all monies received by market committee shall be paid into market committee funds (MCF). Section 15 stipulates and enumerates purposes for which such MCF may be expended. The purposes for which MCF may be used are acquisition of site for market; establishment, maintenance and improvement of market; construction of buildings for market; maintenance 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o render service in the general interest of all concerned. The element of quid pro quo is not possible or even necessary to be established with arithmetical exactitude. But it must be established broadly and reasonably that the amount is being spent for rendering services to those on whom the burden of the fee falls. There is no postulate of a fee that it must have a direct relation to the actual 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to obtain licence under Section 7(1) of the Act. We also hold that the impugned notification vide G.O.Ms. No. 286, dated 05.07.1994, does not suffer from any illegality and infirmity and the same is valid. The writ petition is therefore dismissed. Having regard to facts and circumstances, we make no order as to costs. ORDER P.S. NARAYANA, J 54. Kommisetty Nammalwar & Co., Quntur, represented by its Proprietor, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for sufficiently a long time even when the matter was pending before the Apex Court and how the matters again came back to this Court and under what circumstances the present Writ Petition had been filed. While making elaborate submissions, the learned Counsel had drawn the attention of this Court to Section 3(3) and Section 3(4) and Section 4(3) and Section 4(4) in particular. The Counsel also had pointed out to the 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 suffi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ionality of an action normally should be upheld since there is a presumption in favour of the constitutionality and when the petitioner is unable to establish contra, the petitioner is bound to fail and hence the Writ Petition to be dismissed. The learned standing Counsel also relied on several decisions in this regard. 59. The learned Counsel representing the parties also relied upon several decisions and further made certain 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... V) dt.30-7-1971 declaring notified Market Committee area of 1st respondent-Market Committee under column 5 of the said G.O. In the notified commodities under column No. 4 'ghee' was shown at serial No. 9. 63. G.O.Ms. No. 448 dt.29-3-72 was issued in exercise of power under Section 4(4) of the Act and 'ghee' was deleted in respect of Ongole and Guntur Market Committees by having carried out an amendment to G.O.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 par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of livestock, issued in Schedule 11 of G.O.Ms. No. 2095 dated 27-10-1968 as amended from time to time. As on the date of issuance of G.O.Ms. No. 286, dated 5-7-1994, 'ghee' was not a notified product in respect of the Agricultural Market Committee for the purpose of regulating its purchase and sale in view of the fact that the same had been deleted by G.O.Ms. No. 448, Food & Agriculture (Agriculture-IV) Department dated 29-3-1972. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile making it clear that the interim Order granted shall continue till the disposal of the matters by this Court afresh. However on a request made by the petitioners, the said writ petitions were withdrawn with liberty to file a fresh writ petition. Thus, the present writ petition came to be filed. Sri K. Madhava Reddy, advocate, who accepted notice for the 1st respondent Market Committee, while bringing to the notice of this Court that an identical 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, preceded by fulfillment of legal requirements under Section 4(3)(a)(b) & (c), had issued G.O.Ms. No. 1066, Food & Agriculture (Agrl. IV) Department dated 30-7-1991 and declared limits of notified market area with respect to regulation and control of notified commodities specified under the said G.O. wherein 'ghee' - found its place and serialized at item No. 9 by virtue of Section 4(2) of the Act and the petitioner-Market Committee stands obligated 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 livesto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in consequence G.O.Ms. No. 448 dated 29-3-19782 remained superseded. The 1st respondent-Market Committee had provided facilities by having established markets at Guntur and Pathipadu, more so, keeps on extending facilities subject to availability of funds. It is pertinent to state that the procedure envisaged under Section 3(3) of the Act would require to be followed as one time exercise intending to declare notified area and by reason thereof the procedure 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner had been carrying on business in purchase and sale of 'ghee' whereby rendered himself liable to obtain licence under Section 7(1) of the Act and incurred liability of payment of market fee on the said transactions taken place under Section 12(1) of the Act irrespective of the polemics whether 'ghee' would fall within the meaning of the term 'products of livestock' defined under Section 2(xv) of the Act, given the fact that '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 ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d at serial No. 9 under column 4 of the annexure of the said G.O. It is further stated that that the respondent-Market Committee had established markets in Guntur and Pathipadu and provided amenities besides allowed the Department to set up 'ghee' laboratory within the premises of Guntur Market Yard and keeps on extending the facilities ring fencing its funds keeping in view the general interests of all the concerned and the test of quid pro quo may be expected 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner to obtain licence under Section 7(1) of the Act to pay the market fee. It was also stated that G.O.Ms. No. 448 dated 29-3-1972 stood superseded on issuance of G.O.Ms. No. 286 dated 5-7-1994. It is apposite to state that the contention of the petitioner that the procedure contemplated under Section 3(3) of the Act is not followed calling for objections for including 'ghee' as notified product and issuance of G.O.Ms. No. 286 dated 5-7-1994 would do violence 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, live ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercised as one time requirement and the Government under Section 4 derives power with respect to inclusion and deletion of agricultural produce, livestock and products of livestock to be regulated within the notified market area of the Market Committee. This Court in Vijayawada Skin Merchants Association and Ors. v. State of A.P. (referred (8) supra) dissecting the import and implications under Section 3 and 4(4) of the Act delivered the Judgment holding that the notification 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requires. Section 15: Revocation and alteration of rules, bye laws and orders: Where an Act confers a power to make any rules or bye laws, or to issue orders, the power shall be construed as including a power exercisable in the like manner and subject to the like consent and conditions, if any, to rescind, revoke, amend or vary the rules, bye laws or orders. 74. The respective stands taken by the parties already had been referred to supra. The non-following of the procedure 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 'g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Andhra Pradesh has not in reality filed a counter affidavit, it shall be permitted to do so within eight weeks. The impugned common judgment of the High Court is set-aside and the matter is remitted to it for hearing the writ petitions afresh. We make it clear that we have not expressed any opinion on the merits of the case. Since the matter is pending since long, we request the High Court to dispose of the matters as early as practicable preferably within six months from the date of receipt 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be exercised in a reasonable manner and when deletion is made also when once deletion is made and subsequent thereto, the same had been reintroduced, the representations if any of the organizations to be considered after affording reasonable opportunity. Incidentally, the contents of G.O.Ms. No. 286 dated 5-7-1994, Schedule-II of G.O.Ms. No. 2095 dated 29-10-1968 and Schedule-II of G.O.Ms. No. 610 dated 21-10-1978 as amended from time to time and G.O.Ms. No. 448 dated 29-3-1972 also had been referred to. 79. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation made under Sub-section (1) for the constitution of a new market committee in respect of any new notified area declared under Clause (c) of Sub-section (4) of Section 3, may contain such supplemental, incidental and consequential provisions, including provisions as to the composition of the new market committee or new and existing market committees and the apportionment of the assets and liabilities between the market committees affected thereby. (2) It shall be the duty of the market committee to enforce the provisions 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 vege ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rajahmundry. One Sreeramulu, the then Secretary, was examined as DW1. DW1 deposed that the defendant-Market Committee published the necessary notifications in the Gazette as contemplated by the Act and the notifications are marked as Exs. Bl to B4. This witness further deposed that the Market Committee purchased an extent of Acs. 11-00 and odd for the purpose of establishing the market yard at Rajahmundry and Exs. B5 and B6 speak of purchase of the said land. This witness further deposed that the site was purchased, the office building was 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is necessary is that there should be a "reasonable relationship" between the levy of the fee and the services rendered. If authority is needed for this proposition, it is to be found in the several decisions of this Court drawing a distinction between a tax and a 'fee'. See: The Commissioner, Hindu Religious Endowments Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt AIR 1954 SC 282 (supra); H.H. Sudhindra Thirtha Swamiar v. Commr, for Hindu Religious and Charitable Endowments, Mysore 1963 Suppl (2) SCR 302 : AIR 1963 SC 966; Hingir-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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of it must be shown to be expended for this purpose. (2) That the services rendered to the licensees must be in relation to the transaction of purchase or sale of the agricultural produce. (3) That while rendering services in the market area for the purpose of facilitating the transactions of purchase and sale with a view to achieve the objects of the marketing legislation it is not necessary to confer the whole of the benefit on the licensees but some special benefits must be conferred on them which have a direct, close and reasonable correlation between the licensees and 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 tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce to contradict the defendant's evidence. Whether particular services and amenities are available at a given place and the extent thereof are questions of fact which require to be proved or demolished on basis of evidence to be led by the parties concerned. Since the plaintiff has not led any evidence whether oral or documentary in support of its case, the" Court is left with no option but to accept the evidence of defendant which shows that some services and facilities in the notified market area were already available while arrangements were being made for various other facilities 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 fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;livestock' or 'product of livestock'. A given article may or may not fall within the meaning of the one or the other of the above said terms 'agricultural produce', 'livestock' or 'product of livestock' but if that article is included in the omnibus expression 'notified market produce, livestock or product of livestock as defined in Section 2(x) of the Act, the notification cannot be said to be illegal on the ground that an article cannot be fit in any one of the above terms. We feel that grouping of various items in the impugned notification leaves much to be 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a specified notified market area with respect to a produce can be issued and revoked without any draft notification under Section 3. We are fortified in our view by a Full Bench judgment of this Court reported in Mamidi Satyanarayana Murty and Ors. v. The state of Andhra Pradesh and Ors. AIR 1977 AP 147 (FB). While analyzing the Act in para 5, the Full Bench held: In order to understand the controversy in this case, it is necessary to point out that there are five distinct concepts mentioned in the Act. Under Section 2(vi) 'market' means a market established under Sub-section (3) of Section 4 and includes market 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- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided also that the market committee shall not renew the licence granted under this section, unless the licencee pays all the arrears of amounts due to it under provisions of this Act. Explanation: Nothing in the second proviso to this Sub-section shall be construed as exempting a co-operative marketing society registered or deemed to be registered under the Andhra Pradesh Co-operative Societies Act, 1964, selling notified agricultural produce, livestock or products of livestock grown, reared or produced by any of its members. (2) Nothing in Sub-section (1) shall apply to a person purchasing notified agricultural produce, livestock or 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- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the determination of the amount of fees payable under this Act, fractions of ten paise equal to or exceeding five paise shall be counted as ten paise and other fractions often paise shall be disregarded. 93. In Sri Lashmi Dry Fish Traders v. State AIR 1986 A.P. 330 (D.B.) the learned Division Bench held at paras 4, 5 and 7 observed as hereunder: In the impugned notification dt. 7-11-1978 in the group-V the livestock 'fish' is not included. What are included in that group are : 1) Bull, 2) Bullock, 3) Cow, 4) Beifer, 5) Buffalo (Bull), 6) He Buffalo, 7) She Buffalo, 8) Young Stock of Buffalo, 9) Sheep and 10) Goats. In group VI of the Livestock Products what are included 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eunder: The State Government has issued notifications declaring their intention of regulating the purchase and sale of different kinds of agricultural produce, live stock and products of live Stock which have been broadly classified as agricultural group, fruit group, vegetable group, fish group, live stock group, poultry group etc. The notification regarding the Fish group includes the following items: 1. Live fish including fish with or without life in any form. 2. Dry Fish. 3. Live prawn including prawn with or without life in any form. 4. Dry Prawn. Section 3 of the Act confers power upon the Government to issue 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 2(1)(a) under the caption animal husbandry products, cattle has been specified as one of the items of agricultural produce for the purpose of Section 27. We find that the market committee, therefore, is well within its power to levy and collect market fee when the cattle was bought or sold in the notified market or notified market area. It is a common knowledge that in rural areas weekly cattle fairs are conducted in which cattle will be brought for sale and are sold. Its regulation is the purpose of the Act. The learned Counsel, Shri Sanyal, sought to seek support from the observations made by this court in Ram Chandra Kailash Kumar and Co. v. State of U.P. The observations therein would be construed in the context 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n producer-trader for a person who is both a producer of agricultural produce and himself trades in it. For the purposes of the Act he ceases to be a producer and becomes a trader only as the definition indicates. While discussing the question of levy of market fee on paddy and rice this aspect of the matter is important and therefore we thought it appropriate to highlight it at this stage. By and large in the notification dated 11/04/1978 there is hardly any duplication of any item of agricultural produce. As for example, under Group D Animal Husbandry Products, milk has been omitted although it is to be found in the Schedule appended to the Act. From milk can be prepared Ghee or Khoya and Items 1 and 2 in Group D are the said articles. Hides 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the meaning of the Act and at the same time a trader in Ghee also. When he sells Ghee to another dealer in Ghee who is simply a dealer then under Sub-clause (3) of Section 17(iii)(b) the manufacturing dealer will be liable to pay market fee to the Market Committee on the transaction of Ghee. But he will be entitled to pass on the burden to his purchaser. Apropos the Market Committee, however, the liability will be of the manufacturing dealer. If milk, butter or cream would have been included in the notification then the charging of fee in relation to the first transaction of sale and purchase of such commodities would have been attracted in the light of the principle of law we have enunciated above with reference to paddy and rice. But in the case 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. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presentatives of growers, traders, local authorities and government for supervising the working of regulated markets and regulation of market charges and prohibition of realisation charges etc. (II) (a) When the State government decides to exercise its control over the purchase, sale, storage or processing of any agricultural produce in a specified area, it can do so only by issuing a notification declaring its intention to that effect and by inviting objections or suggestions within a period of not less than two months. The State government is required to consider such objections or suggestions. (b) Any inclusion of an item in the Schedule to the Markets Act under Section 39 does not bring about any control or regulation of sale, purchase, storage or processing of such produce. In order to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 4-B are invalid. Section 4-A contains two sub-sections. Sub-section (1) of Section 4-A, insofar as it dispenses with the requirement of complying with the provisions of Sections 3 and 4 before market fee can be validly levied on an agricultural produce, is bad and void for being repugnant to the scheme of the Act. It is also bad and void for truncating valuable rights given to citizens and others under Sections 3 and 4. Sub-section (1) of Section 4-A also obliterates the concept of market area which is the sole basis of operating the Act and for imposing the levy. As a result of Sub-section (1) of Section 4-A, the basis of the Act gets transmuted from an Act levying a fee to an Act imposing tax. Sub-section (2) of Section 4-A is also bad because it renders invalid the notifications for deletion 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 delet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bench in striking down Section 4-A entirely and upholding the fiction contained in Section 4-B would lead to an anomalous result that without curing the defects, a judgment can be overruled by the legislature by a simple process of amendment. It is well settled that a mere attempt to overrule the decision of the courts by amending the law is not sufficient and would itself be an encroachment on the judicial power of the State. It is only upon the defects pointed out by the judgment being cured in a proper manner that validation enactments can be upheld. The legal fiction in Section 4-B must stand the test of reasonableness. The fiction occurring in Section 4-B is consequential to the removal of defects pointed out by the division bench in the judgment dated 30/3/1992 and cannot be divorced from the same. Section 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 vali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome plainly vulnerable. (VIII) Referring to Kewal Krishan Puri case, it is contended that for a fee to be valid, levy must be imposed on the agricultural produce bought or sold by licensees in a notified market area and must also be earmarked for rendering services to the licensees in the notified market area and a good and substantial portion of it must be shown to be expended for that purpose. If the requirement of regulatory control as envisaged in Sections 3 and 4 are sought to be dispensed with by the aid of Sections 4-A and 4-B, the imposition of levy of market fee loses its character as fee and it essentially partakes the character of tax. Such imposition of tax suffers from legislative incompetence. (IX) A valid law must cure the defects pointed out in the judgment of a court and unless it does so effectively, the validation statute 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicated hereafter. Inclusion or deletion of an item in selecting the field of control is to be made in exercise of power under Section 39 of the Markets Act and State government is clothed with such power which can be exercised without any aid of the provisions of Section 3 and 4 of the Act. It should also be noted that since deletion of sugar from the Schedule was made in exercise of power under Section 39, and such deletion was not a deletion under Section 4(1) of the Act, the procedure prescribed in Sections 3 and 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. 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any enclosure, building or locality in any market area to be a principal market yard for the area and other enclosures, buildings or localities to be one or more sub-market yards for the area. It is clear that by reason of Section 14 of the General Clauses Act any power that is conferred on Government can be exercised from time to time as occasion requires. Therefore, it would be clearly competent to the State Government to declare from time to time which should be the principal market yard and which should be sub-market yards. It is also clear under Section 21 of the General Clauses Act that when a power to issue notifications, orders, rules, or by-laws is conferred, then that power includes a power to exercise in the like manner and subject to the like sanction and conditions, if any, to add to, amend, vary or rescind any notifications, orders, rules 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o so was a violation of the principles of natural justice and the notification disestablishing the market yard at one place and establishing it elsewhere was therefore, bad. It was said that even as there was express provision for inviting and hearing objections before a "market area" was declared under the Act, so should objections be invited and heard before a 'market yard' was established at any particular place. The principles of natural justice demanded it. We are unable to agree. We are here not concerned with the exercise of a judicial or quasi-judicial function where the very nature of the function involves the application of the rules of natural justice, or of an administrative function affecting the rights of persons, wherefore, a duty to act fairly. We are concerned with legislative activity; we are concerned with the making of a legislative 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is one entailing the determination of disputed questions of law and fact. Prima facie, moreover, a duty to act judicially will arise in the exercise of a power to deprive a person of his livelihood or of his legal status where the statue is not merely terminable at pleasure, or to deprive a person of liberty or property rights or another legitimate interest or expectation, or to impose a penalty on him; though the conferment of a wide discretionary power exercisable in the public interest may be indicative of the absence of an obligation to act judicially. Where a discretionary power to encroach upon individual rights is exercised the factors pointing to whether it must be exercised judicially include the nature of the interests to be affected, the circumstances in which the power falls to be exercised and the nature of the sanctions, if any, involved. Exceptionally, a duty to act judicially 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion that the Act authorises levy of fee on agricultural produce bought or sold in the notified market area by licensees only. The appellants have licence only in respect of the business of kacha arhtiya and commission agent. While we express no opinion on the point whether the absence of reference to buying and selling of agricultural produce in Form 'A' and Form 'B' disables the Committee to issue licences for that purpose, we are of opinion that the present appeals can be disposed of on the sole ground that the appellants have not as a matter of fact been issued such licences and no fees can, therefore be levied on them in respect of purchases and sales of agricultural produce by them. The appellants are, therefore, not liable to payment of fee under the Act as demanded. The appellants also contend that since gur and shakkar are manufactured products they cannot come under the definition 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 men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rab, shakkar, khandsari and jaggery" is to make it clear that merely because it becomes a different item or commodity it is not excluded. We see no reason to go into the difference between 'manufacturing' and 'processing'. In the strict sense of the terms there may be a difference. However, we are not required to go into these differences as, in our view, it is very clear, from what has been set out by the appellants themselves in their affidavit that for hide and skin to be converted into leather or tanned leather all that is required is a process. It is a process of cleaning, curing and adding preservatives. That it is a process has been held by this Court in the case of State of Tamil Nadu v. Mahi Traders AIR 1989 SC 1167 (supra). We are also of the view that the finished product i.e. 'tanned leather' even though it may have changed in physical appearance or chemical combination and even though it may commercially be a different 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCR 104 : AIR 1980 SC 1124 and State of U.P. v. Ganga Das Mill 1985 SCR 87. Even in Halsbury Laws of England, Vol. I the word agricultural produce for purposes of agricultural marketing schemes is understood as, 'including any product of agriculture or horticulture and any article of food or drink wholly or partly manufactured or derived from any such product and fleeces (including all kinds of wool) and the skins of animals'. In the same volume products covered by the provisions of EEC Treaty as to agriculture (classified according to the Brussels Nomenclature of 1965) are mentioned in paragraph 1845. Sugar is one of them. Another legalistic challenge regarding inhibition of State to legislate on sugar or oft-repeated argument of occupied field was more attractive than of any substance. Reliance on Article 246 of the Constitution was academic only. As far back as 1956 Constitution Bench of this Court in Choudhary Tika Ram v. State of U.P. 1956 SCR 393 : AIR 1956 SC 676 examined the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent-Mills may not be the direct beneficiary of anyone or some of the said facilities or does not make use of them does not absolve it from payment of the market fees. The said machinery and the facilities are meant for the benefit of all the buyers and sellers of all the agricultural produce within the market area and it cannot be denied that they are so. It is further difficult to appreciate the contention that in the circumstances, the respondent-Mills is not either directly or indirectly a beneficiary of the said machinery and the facilities as a buyer of the bamboos when the purchase is admittedly made in the market area as pointed out above. In the circumstances, the High court was in error in holding that there was no evidence of the services rendered by the Committees. We are afraid that on both these counts, the High court has committed errors. As regards the first ground on which the High court has set aside the market fee, viz., that the transaction of sale and purchase of the 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 provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the respondent-Mills for selling them or for using them as their raw material in the manufacture of paper. The liability of the respondent-Mills to pay the market fees is in no way negated on that account. The provision requiring the seller to collect the market fees in such cases is made for the convenience of collection of the fees, as is the similar provision made in the first proviso of the said Ss. where buyers cannot be identified. The collection made by the seller, i.e., the forest depots in the present case is for and on behalf of the Committee and is eventually to be handed over to the Committee. The provision is enabling and does not prevent the Committee itself from collecting the fee, if it so proposes. 104. In Belsund Sugar Co. Limited v. State of Bihar (referred (5) supra 1999(9) SCC 620 it was observed at para-139 as hereunder: Placing reliance on these ingredients, it was submitted that per 100 milligrams of Lactodex milk fat content is 0.9 gm and that other minerals and vitamins may 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d milk or solidified milk as such, cannot be treated to be "agricultural produce" as part and parcel of the listed "Animal Husbandry Products" mentioned in the Schedule to the Act. Learned Senior Counsel for the appellant in support of his contentions tried to rely upon specimen copies of printed material affixed to the sealed tins of these manufactured commodities "Lactodex" and "Raptakos", which, according to him, are substitutes for mother's milk and are to be used to feed infant babies who cannot take milk in its natural form. Learned Senior Counsel for the respondents tried to repel this submission by contending that this type of printed material was not produced before the High Court. Be that as it may, the undisputed fact remains that these two special infant foods are meant for infant babies who are to be fed by mixing this baby food powder with water to make it a paste as a substitute for mother's milk. 105. Further reliance also was placed on Govindlal Chhaganlal Patel v. Agricultural Produce Market Committee, Godhra AIR 1976 S.C. 263, Sreenivasa General Traders v. State of Andhra Pradesh (referred (10) supra) and Union of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the courts act upon the view that such a result could not have been intended, unless the intention had been manifested in express words. Out of the two interpretations, that language of the statute should be preferred to that interpretation which would frustrate it. It is a cardinal rule governing the interpretation of the statutes that when the language of the legislature admits of two constructions, the court should not adopt the construction which would lead to an absurdity or obvious injustice. It is equally well settled that within two constructions that alternative is to be chosen which would be consistent with the smooth working of the system which the statute purported to be regulating and that alternative is to be rejected which will introduce uncertainty, friction or confusion with the working of the system. See Collector of Customs v. Digvijaysinhji Spinning & Weaving Mills Ltd. (1962 (1) SCR 896, at page 899 and His Holiness Kesavananda Bharati v. State of Kerala AIR 1973 S.C. 1461. 109. In B.K. Srinivasan v. State of Karnataka AIR 1987 S.C. 1059 the Apt Court observed at para-18 as hereunder: The High Court was of the view that such defect as there was in regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation of the Plan in the Official Gazette was therefore a curable defect capable of being cured by Section 76J. It is here that the failure of the appellants to plead want of publication or want of knowledge in the first instance assumes importance. In the answer to the writ petitions, the appellant took up the substantial plea that they had complied with the requirements of the Outline Development Plan and the Regulations but not that they had no knowledge of any such requirement. It can safely be said that the defect or irregularity did not affect the merits of the case. 110. If the language employed in Sub-sections of Sections 3 and 4 if carefully analyzed, in certain Sub-sections the word or expression "may" has been employed and in certain Sub-sections the word or expression "shall" had been employed. Sub-section (2) of Section 3 specifies "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. In Sub-section (3) of Section 3 it is specified "...the Government may publish in such manner as may be prescribed a fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Devi's case (referred (9) supra) to be applied while deciding the question whether 'ghee' would fall within the meaning of livestock or not, since the said decision was decided in a given set of circumstances, in the light of the provisions of the Enactment referred to in the said decision, the said decision may not be applicable to the present case. If "livestock" or "agricultural produce" and the categories thereof had been specified in the statute itself by appending in the schedule or otherwise, that would stand on a different footing from the present provisions of the Act which contemplate the issuance of notifications in accordance with the procedure ordained by the provisions specified supra. In view of the clear definition of the "livestock" and "products of livestock", the 'ghee' being derivative of butter or cream, if the language employed in the definitions to be taken as they stand, the only conclusion at which this Court can arrive at is that the 'ghee' would not fall within the ambit of the definitions aforesaid. 113. The validity of G.O.Ms. No. 286, dt.5-7-1994 had been challenged on several ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tween the parties that all the steps as ordained by the provisions aforesaid had not been followed in issuing the impugned G.O.Ms. No. 286, dt.5-7-1994, the said G.O. cannot be sustained and the same is liable to be quashed and accordingly, it is hereby quashed. It is needless to say that on both the grounds that 'ghee' would not fall within the definition of the livestock product and also on the ground that the very G.O. under challenge had not been issued in accordance with law, the provisions of the statute, the writ petitioner is bound to succeed and accordingly the Writ Petition is hereby allowed. No order as to costs. _____________________________________ Foot Note * 'Ghee' is 'clarified butter' obtained through heating process and used as cooking medium or taken as food. 2 2(v): 'Livestock' means cows, buffaloes, bullocks, bulls, goats and sheep, and includes poultry, fish and such other animals as may be declared by the Government by notification to be livestock for the purposes of this Act. 3 2(xv): 'Products of livestock' means such products of livestock as may be declared by the government by notification, to be products of li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ispose of property and may, by its corporate name, sue and be sued: Provided that any market committee functioning immediately before such constitution in respect of a notified area abolished under the proviso to Clause (c) of Sub-section (4) of Section 3 shall stand abolished. (1-A) Any notification made under Sub-section (1) for the constitution of a new market committee in respect of any new notified area declared under Clause (c) of Sub-section (4) of Section 3, may contain such supplemental, incidental and consequential provisions, including provisions as to the composition of the new market committee or new and existing market committees and the apportionment of the assets and liabilities between the market committees affected thereby. (1-B) Notwithstanding anything contained in Section 3 and in Sub-sections (1) and (1-A) of Section 4 of the Act, the Government, may, by notification, also constitute a separate market committee to a special market in a notified area. (2) It shall be the duty of the market committee to enforce the provisions of this Act and the rules and bye-laws made thereunder in the notified area. (3)(a) Every market committee shall establish in the not ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
