JUDGMENT
B. C. Basak, C. J.
1. These series of 28 writ petitions involve similar facts and common questions of law so far as the main submissions are concerned and for this reason they have been heard together and are being disposed of by this common judgment. In some of these writ petitions some additional points are urged which were special to them. These writ petitions relate to the following “agricultural produce”, namely, (1) Wheat and wheat products e.g., Atta, Maida, Suji and bran, (ii) oil seeds, edible oil mustard oil, (in) sugar and (iv) Vanaspati.
2. (a) C.W.J.C. Nos. 3920/85, 1201/86, 3930/86, 1222/87, 1228/87, 1272/87, 1273/87, 1333/87, 1926/87, 3810/87, 4278/87, 4289/87, 5831/87, 2354/88, 3863/88, 4497/88, 4623/88, 4803/88, 7912/88, 8705/88 and 5187/89. Excepting in CWJC 3920/85 all these applications are at the instance of flour mills which have been set up either by a Company incorporated under the Companies Act or by a partnership firm. They carry on the business of manufacturing different products, namely, Atta, Maida, Suji etc. (b) CWJC Nos. 3920/85, 5974/88, 7502/ 88, 7508/88 and 7510/88. Three of these applictions (CWJC Nos. 7502/88, 7508/88 and 7510/88) are on behalf of several partnership firms manufacturing edible oil from oil seeds. CWJC Nos. 3920/ 85, 3920/85 and 5974/88 are on behalf of either proprietary firm or a partnership firm carrying on wholsale business in edible oil/mustard oil. (c) CWJC Nos. 432/83, 3914/85 and 5159/87. These three petitions concern Vanaspati. In this group of three, the first two are on behalf of the petitioners who are manufacturers of this commodity. In the third case of this group, the petitioner is a proprietary concern, carrying on business in Vanaspati. (d) CWJC Nos. 3920/85 and 5974/88. These two petitions are at the instance of the petitioners carrying on business in sugar.
3. These cases arise out of the enforcement of the provisions of the Bihar Agricultural Produce Markets Act, 1960 (hereinafter referred to as ‘the State Act’) which is challenged in these proceedings. Before we deal with the respective contentions raised in support of these petitions, it would be fit and proper if we set out the relevant provisions relating to the State Act and some Central Acts, viz. the Industries (Development and Regulation) Act, 1951 (hereinafter referred to a ‘the IDR Act’), the Essential Commodities Act, 1955 (hereinafter referred to as ‘the E. C. Act), the National Oilseeds and Vegetable Oils Development Board Act, 1983 (hereinafter referred to as the “NOSVODB Act”) and the Vegetable Oils Cess Act, 1983.
A. The State Act
Statement of Objects and Reasons
“The importance of properly organised markets of agricultural and allied commodities, though long recognised, has once again been emphasised by the Planning Commission. They have recommended that all the States which have not done so should review the present position and draw up suitable programmes for regulating all important wholesale markets during the Second Plan. The need for legislation for regulating markets is all the greater in Bihar where the agriculturists have to depend in a large measure on the mercy of middlemen to whom they are obliged to sell their produce as soon as the harvesting season is over. The Arhatiyas and wholesale buyers enter into a secret understanding to exploit the unwary agriculturists and they prevent him from having correct information as to the current sale prices of agricultural produce with the result that the agriculturist seldom gets a fair share of the price paid by the consumer for his produce. The main object of having regulated markets is to secure to the cultivator better prices, fair weightment and freedom from illegal deductions. A fair deal for his produce is a good incentive for an agriculturist to adopt improved agricultural programme.
The question of regulation of markets was first taken up in Bihar in 1939. A Bill called the Bihar Market and Dealers Bill, 1939 was introduced in the Legislature in 1939, but it could not be passed as the then Ministry went out of office. It was again taken up in 1944, but it was considered that the Bill, which had been prepared in 1939, required modifications and redrafting in view of the changed conditions. It was then decided that the question of regulating markets should be taken up after the war. The States of Andhra, Bombay, Madras, Madhya Pradesh, Mysore and the Punjab have already enacted such legislation and conditions of agricultural marketing in those States have improved appreciably by virtue of legislation. The main objects of the Bill are ; –
(1) Creation of market areas and markets with a view to ensuring fair trade transactions in agricultural and allied commodities.
(2) Appointment of Market Committees fully representative of growers, traders, local authorities and Govt. to supervise the working of regulated markets.
(3) Regulation of market charges and prohibition of realisation of excess charges.
(4) Regulation of market practices.
(5) Licensing of market functionaries.
(6) Arrangement for conciliation of disputes regarding quality, weighment. deductions etc.
(7) Sale by open auction.
(8) Arrangement for the display of reliable and up-to-date market information in the market yard.
(9) Improving generally the conditions of agricultural Marketing.”
The recital Clause of the Act is as follows : –
“To provide for the better regulation of buying and selling of agricultural produce and the establishmnl of markets for agricultural produce in the State of Bihar and for matters connected therewith.”
“Section 3 (1) Notwithstanding anything to the contrary contained in any other Act for the time being in force, the State Government may, by notification, declare its intention of regulating the purchase, sale, storage and processing of such agricultural produce and in such area, as may be specified in the notification.
(2) A notification under Sub-section (I) shall state that any objection or suggestion which may be received by the State Govern-merit within a period of not less than two months to be specified in the notification, shall be considered by the Stale Government.”
S. 4. (1) After the expiry of the period specified in the notification issued under Section 3 and after considering such objection and suggestion as may be received before such expiry and after holding such enquiry as it may consider necessary, the State Government may by notifications, declare the area specified in the notification under Section 3 or any portion thereof to be a market area for the purposes of this Act, in respect of all or any of the kinds of agricultural produce specified in the notification under Section 3.
(2) On and after the date of publication of the notification under Sub-section (1), or such later date as may he specified therein, no municipality or other local authority, or other person, notwithstanding anything contained in any law for the time being in force, shall, within the market area, or within a distance thereof to be notified in the official Gazette in this behalf, set up, establish, or continue, or allow to be set up, established or continued, any place for the purchase, sale, storage or processing of any agricultural produce so notified, except in accordance with the provisions of this Act, the rules and bye-laws.
Explanation- A municipality or other legal authority or any other person shall not be deemed to set up, establish or continue or allow to be set up, established or continued a place as a place for the purchase, sale, storage or processing of agricultural produce within the meaning of this section, if the quantity is as may be prescribed and the seller is himself the producer of the agricultural produce offered for sale at such place or any person employed by such producer to transport the same and the buyer is a person who purchases such produce for his own use or if the agricultural produce is sold by retail sale to a person who purchases such produce for his own use.
(3) Subject to the provisions of Section 3, the State Government may at any time, by notification exclude from a market area or any agricultural produce specified therein or include in any market area any area or agricultural produce included in a notification issued under Sub-section (1).
(4) Nothing in this Act shall apply to a fiader whose daily or annual turnover does not exceed such amount as may be prescribed.”
Section 18. “(1) It shall be the duty of a Market Committee to implement the provisions of this Act, the rule and bye-laws made thereunder in the market areas to provide such facilities for marketing of agricultural produce therein as the Board may from time to time, direct, and do such other acts as may be required in relation to the superintendence, direction and control of market, or for regulating the marketing of agricultural produce in any place in the market area, and for purposes connected with the matters aforesaid, and for that purpose the Market Committee may exercise such powers and perform such functions and discharge such duties as may be provided by or under this Act.
(2) Without prejudice to the generality of the foregoing provision, a Market Commitee may:-
(i) When so required by the State Government, to establish a market for the market area providing for such facilities as the State Government may, from time to time, direct in connection with the purchase and sale of the agricultural produce concerned;
(ii) Where a market is established under sub-clause (i), to issue licences in accordance with the rules to traders, brokers, weighmen, measurers, surveyors, warehousemen and other persons, including persons or firms engaged in the processing, storing or pressing of agricultural produce concerned operating in the market area;
(iii) to maintain and manage the principal market yard and sub-market yards and to control, regulate and run the market in the interest of the agriculturists and licensees in accordance with the provisions of this Act and the bye-laws made thereunder;
(iv) to act in the prescribed manner as mediator, arbitrator or surveyor in all matters of differences, disputes, claims, etc., between licensees inter se or between them and persons making use of the market as sellers of agricultural produce;
(v) to control and regulate the admission of persons and vehicular traffic to the principal market yard or sub-market yards, to determine the conditions for the use of market and to check and prosecute persons trading without a valid licence in the market area;
(vi) to bring, prosecute or defend, or to aid in bringing, prosecuting or defending and suit, action, proceeding, application, or arbitration in regard to any matter on behalf of the committee, or otherwise when directed by the Board.
(vii) to enforce the provisions of this Act, the rules and bye-laws; and
(viii) to perform such other duties and exercise such other powers as are imposed or conferred upon it by or under this Act, the rules or the bye-laws.”
Section 27 of the State Act in its original form was as follows:
(1) The Market Committee shall levy and collect market fees on the agricultural produce bought in the market area, at such rate not exceeding fifty naye paise per Rs. 100 worth of agricultural produce, as may be prescribed.
(2) The fee realised from the buyer under Sub-section (1) shall be recoverable by the buyer from the seller as a market charge.
Section 27 after its amendment by Act, 60 of 1982 is as followings:
¼1½ fdlh cktkj {ks= es izR;sd
100 :- ds o`f”k&inkFkZ ds Ø;&foØ; ij cktkj lfefr ,d :i;s dh nj ls
cktkj Qhl yxk;sxh vkSj mldh olwyh ljsxh A
¼2½ mi&/kkjk ¼1½ ds v/khu
izHkk;Z cktkj&Qhl [kjhnnkj }kjk fofgr jhfr ls ns; gksxh A
¼3½ mi&/kkjk ¼1½ ds v/khu
izHkk;Z Qhl] ,d gh vf/klwfpr cktkj