CASE NO.: Appeal (civil) 2150 of 1998 PETITIONER: TALCHER MUNICIPALITY RESPONDENT: TALCHER REGULATED MKT. COMMITTEE AND ANR. DATE OF JUDGMENT: 28/07/2004 BENCH: S.B. SINHA & S.H. KAPADIA JUDGMENT:
JUDGMENT
2004 Supp(3) SCR 167
The Judgment of the Court was delivered by
S.B. SINHA, J. : The Appellant Talcher Municipality constructed a market
purported to be in exercise of its power conferred upon it under Section
295 of the Orissa Municipal Act, 1950. The control of the said market is
vested in the Municipal Council in terms of Section 296 thereof.
Agricultural produces within the meaning of provisions of the Orissa
Agricultural Produce Markets Act, 1956 (for short “the Act”) are bought and
sold in the said market.
The Respondent-Market Committee sent a requisition dated 13.2.1996 to the
Executive Officer of the Appellant stating therein that as it was in
possession of the said market where agricultural produces were being bought
and sold it was liable to transfer the same in terms of Sub-section (4) of
Section 4 of the Act. A similar request was made to hand over the Hat and
the land situated at Angarua in terms of a letter dated 19.7.1996.
The Appellant having failing and/or neglected to comply with the said
statutory requisition, the respondent, herein filed a writ petition before
the High Court of Orissa praying for a direction upon the appellant for
transferring its weekly market popularly known as Jajangi Weekly Market By
reason of the impugned judgment, the said writ petition has been allowed.
The core question which falls for consideration is as to whether the land
and building of a daily market owned by a Municipality or a Gram .Panchayat
where notified agricultural produces are bought and sold is liable to be
transferred to the Market Committee, if requisition therefor is made.
Submission of Mr. P.N. Misra, learned senior counsel appearing on behalf of
the Appellant is that the said Act which was enacted by the State of Orissa
in exercise of its legislative competence contained in Entries 26, 27 and
28 of List II of the Seventh Schedule of the Constitution of India: the
object whereof being to protect the producers of agricultural produce from
being exploited by the middlemen and profiteers and enable the
agriculturists to secure a fair return for their produce, the market where
pre-dominantly non-agricultural produces are bought and sold. Sub-Section
(4) of Section 4 of the Act would not apply. Strong reliance in this behalf
has been placed on M.C.V.S. Arunachala Nadar Etc. v. The State of Madras &
Others, [1959] Supp. l SCR 92 and Belsund Sugar Co. Ltd. v. State of Bihar
and Others, [1999] 9 SCC 620.
Submission of Mr. Das. learned counsel appearing on behalf of the
respondent, on the other hand, is that the language used in Section 4(4) of
the Act being clear and explicit, the judgment of the High Court must be
held to have correctly rendered. The learned counsel pointed out that the
vires of Section 4(4) of the Act has not been questioned.
The Act has been enacted to provide for better regulation of buying and
selling of agricultural produce and the establishment of markets for
agricultural produce in the State.
The Cooperation Department of the Government of Orissa issued notifications
dated 2.8.1993 and 19.11.1994 whereby and whereunder various cereals,
oilseeds, gur and sugarcane, fruits, vegetable items and animal husbandry
products were notified as agricultural produces.
By reason of the provisions of the Act not only wholesale but also retail
sale of the agricultural produces as also the market wherein the buying and
selling of the agricultural produces are carried on is sought to be
regulated and control led. A “market area” and the “market” as defined in
Sections 2(vii) and 2(vi) respectively are required to be declared as such
in terms of sub-section (I) of Section 4 and sub-section (5) of section 4
respectively.
Once the market area is declared, the rights of those dealing in
agricultural produces would be governed by the provisions of the said Act.
The legislative competence of the State to enact such enactment in exercise
of its power under Entries 26, 27 and 28 of List II of the Seventh Schedule
of the Constitution of India is not in dispute. The Act deals with the
supply and distribution of goods as well as the trade and commerce therein
as it seeks to regulate the sale and purchase of goods carried on in the
specified markets.
Entry 5 of List II of the Seventh Schedule of the Constitution of India
whereunder the Orissa Municipal Act has been enacted would be subject to
the provisions of Entry 28 as the power to establish a market is a separate
and distinct one. It is true that the primary object of the Act, as has
been held in M.C. Y.S. Arunachala Nadar (supra) and Belsund Sugar Co. Ltd.
(supra), is to protect the producers inter alia from being exploited from
the middlemen but the State has the requisite legislative competence to
establish a market and in that view of the matter the said Act falls within
the ambit of markets and covered by Entry 28, (See ITC Ltd. v. Agricultural
Produce Market Committee and Others, [2002] 9 SCC 232). The said decision
has recently been followed in Engineering Kamgar Union v. M/s. Electro
Steels Castings Ltd. & Anr., JT (2004) Supl. l SC 78.
The said Act, as noticed hereinbefore was enacted for better regulation of
buying and selling of agricultural produce.
The power to regulate buying and selling of agricultural produce must be
interpreted in the context in which the same has been used. Each person
whoever is engaged in buying and selling of the agricultural produce in the
market shall be subject to the regulation for which the same has been
enacted. The expression “regulation” is a term which is capable of
interpreted broadly. It may in a given case amount to prohibition.
Section 4(4) of the Act must be construed in that context. Section 4(4) of
the act reads thus:
“Notwithstanding anything to the contrary contained in any law for the time
being in force, the market committee may, after a notification issued under
sub-section (1), by requisition, require any Municipality or Grama
Panchayat to transfer to it any land or building in possession of such
Municipality or Grama Panchayat wholly or partly situated within the
concerned market area which immediately before the establishment of the
market was being used by such Municipality or Grama Panchayat for similar
purpose, and the Municipality or Grama Panchayat, as the case may be, shall
within one month from the date of receipt of the requisition, transfer the
land or building or both, as specified in the requisition to the market
committee and the net income derived therefrom by the market committee
under Section 11 shall be shared equally by the market committee and the
concerned Municipality or Grama Panchayat, every year:
Provided that the share of the Municipality or Gram Panchayat in any one
year shall not be less than eighty per cent of the average net income
derived by it from land or building or both so transferred during the three
years immediately preceding the transfer.”
A market may be belonging to a Municipality of Gram Panchayat but once a
market area has been declared the provisions of the said Act will bring
within its sweep even such markets. Sub-section (4) of Section 4 clearly
mandates that even the market of a Municipality or a Gram Panchayat falling
with the market area will have to be transferred it requisitioned therefor.
In the event of such transfer, the net income derived therefrom by the
market committee under Section 11 shall be shared equally by the market
committee and the concerned Municipality or Gram Panchayat every year. The
proviso appended to Sub-section (4) of Section 4 furthermore stipulates
that the share of the Municipality or Gram Panchayat in any one year shall
not be less than eighty per cent of the average net income derived by it
from land or building or both so transferred during the three years
immediately preceding the transfer.
It is true that the appellant Municipality is a local authority. It is
furthermore true that in terms of Section 295 of the Orissa Municipal Act
the appellant was entitled to provide places for use as public markets, the
control of which, as noticed hereinbefore is to be exercised by the
Municipal Council.
The Act, however, contains special provisions. The provision of Section
4(4) of the said Act operates norwithstanding anything to the contrary
contained in any other law for the time being in force. The provisions of
the said Act, therefore, would prevail over the provisions of the Orissa
Municipality Act. The maxim ‘generalia specialibus non derogant’ would,
thus, be applicable in this case. (See D.R. Yadav and Another v. R.K. Singh
and Another, [2003] 7 SCC 110; Indian Handicrafts Emporium and Others v.
Union of India and Others, [2003] 7 SCC 589 and M.P. Vidyut Karamchari
Sangh v. M.P. Electricity Board, JT (2004) 3 SC 423).
If in a market where together with agricultural produces some non-
agricultural produces are also sold, the same by itself would not
disentitle the respondent to exercise its statutory power contained in
Section 4(4) of the Act. Once, the respondent has the requisite
jurisdiction in terms of provisions of the said Act to notify the market
area within which there may exist market owned by and/or belonging to a
Municipality or a Gram Panchayat power under Sub-section (4) of Section 4
can, in our opinion, be exercised by the respondent Committee.
Contention of Mr. Misra to the effect that in the market in question apart
from agricultural produces, non-agricultural produces are also bought and
sold and thus, it was obligatory on the part of the authorities concerned
to find out the dominant object of the Municipality in establishing the
said market cannot be gone into by this Court for the first time as such a
contention has not been raised before the High Court. The appellant
furthermore did not raise any contention before the High Court as regard
the effect of sale of non-agricultural produces in the said market. Such a
contention which would involve investigation into questions of fact cannot
be allowed to be raised for the first time before this Court; more so when
before us no factual foundation has been laid down in the Special Leave
Petition.
Furthermore, the validity or legality of the said provision having not been
questioned, the appellant at this stage cannot be permitted to urge that
the same will have no application. in the case of this nature.
For the reasons aforementioned, there is no merit in this appeal which is
accordingly dismissed. No costs.