{"id":157439,"date":"1962-03-15T00:00:00","date_gmt":"1962-03-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mohammadbhai-khudabux-chhipaand-vs-the-state-of-gujarat-and-on-15-march-1962-2"},"modified":"2017-02-28T01:02:49","modified_gmt":"2017-02-27T19:32:49","slug":"mohammadbhai-khudabux-chhipaand-vs-the-state-of-gujarat-and-on-15-march-1962-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mohammadbhai-khudabux-chhipaand-vs-the-state-of-gujarat-and-on-15-march-1962-2","title":{"rendered":"Mohammadbhai Khudabux Chhipaand … vs The State Of Gujarat And … on 15 March, 1962"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Mohammadbhai Khudabux Chhipaand … vs The State Of Gujarat And … on 15 March, 1962<\/div>\n
Equivalent citations: 1962 AIR 1517, \t\t 1962 SCR Supl. (3) 875<\/div>\n
Author: K Wanchoo<\/div>\n
Bench: Gajendragadkar, P.B., Sarkar, A.K., Wanchoo, K.N., Gupta, K.C. Das, Ayyangar, N. Rajagopala<\/div>\n
           PETITIONER:\nMOHAMMADBHAI KHUDABUX CHHIPAAND ANOTHER\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF GUJARAT AND ANOTHER(And connected petitions)\n\nDATE OF JUDGMENT:\n15\/03\/1962\n\nBENCH:\nWANCHOO, K.N.\nBENCH:\nWANCHOO, K.N.\nGAJENDRAGADKAR, P.B.\nSARKAR, A.K.\nGUPTA, K.C. DAS\nAYYANGAR, N. RAJAGOPALA\n\nCITATION:\n 1962 AIR 1517\t\t  1962 SCR  Supl. (3) 875\n CITATOR INFO :\n R\t    1966 SC 385\t (17)\n RF\t    1981 SC1127\t (11)\n R\t    1982 SC 710\t (19)\n RF\t    1983 SC1246\t (15)\n\n\nACT:\nAgricultural Produce Markets-Market committees-Levy of fees-\nNotification-Validity-A\t  class\t  and  B   class   traders--\nLicences-Discrimination-Rules  declared\t  invalid-Subsequent\namendments   to\t enactment-Validity  of\t rules-Doctrine\t  of\neclipse--Saurashtra  Agricultural Produce  Markets  (Gujarat\nAmendment  and Validating Provisions) Ordinance, 1961 (1  of\n1961)-Bombay Agricultural Produce Markets Act, 1939 (Bom. 22\nof  1939), as amended, ss.5A, 11, 29-B, rr. 53, 64, 65,\t 66,\n67-Constitution of India, Arts.14, (31)(1), 265.\n\n\n\nHEADNOTE:\nConsequent on the decision in Gulam Mohammad v. The State of\nBombay,<\/a>\t [1962] 2 S.C.R. 659, by which rr. 53, 65, 66\n876\nand 67, framed under the Bombay Agricultural Produce Markets\nAct, 1939, were held to be ultra vires the provisions of ss.\n6A and 11 of the Act, the State of Gujarat amended r.53 by a\nnotification  dated June 23, 1961, and also  promulgated  an\nOrdinance on June 26, 1961, by which amendments were made in\ncertain\t sections of the Act and a new s. 29 B was  inserted\nin  the Act validating certain acts or things done prior  to\nthe promulgation of the Ordinance.  The petitioners, some of\nwhom  were  wholesale dealers and the rest  retail  dealers,\nfiled  petitions under Art. 32 of the Constitution of  India\nfor certain reliefs on the grounds (1) that the notification\ndated  June 23, 196 1, was discriminatory and thus  offended\nArt. 14 because under it a market committee could levy\tfees\non agricultural produce by different modes, (2) that s. 29-B\nwas  insufficient  to validate the defects  noticed  in\t the\nearlier\t decision  of  the Supreme  Court  inasmuch  as\t the\nrelevant  provisions  of  the Act and  the  Rules  were\t not\nretrospectively amended, (3) that under the bye-laws A class\ntraders\t were charged much higher fees than B class  traders\nand,  further,\tB  class traders were  allowed\tto  sell  to\nconsumers  anywhere  in\t the market  area  whereas  A  class\ntraders\t  were\tnot  so\t allowed,  and\tthis   amounted\t  to\ndiscrimination, (4) that the main provisions of the Act\t had\nbeen  amended by the Ordinance and, therefore, the basis  on\nwhich  the Supreme Court upheld the Act no  longer  existed,\n(5)  that  rr. 65, 66 and 67 which had been declared  to  be\nultra  vires had neither been reframed no validated  by\t the\nOrdinance  and,\t therefore, it was not open  to\t the  market\ncommittee to issue licences under those rules, and (6)\tthat\ns. 29-B was bad in so far as it prevented refund of  licence\nfees collected before the Ordinance came into force in\tview\nof Art.31 (1) of the Constitution.\nHeld  that  : (1) the notification dated June 23,  1961,  by\nitself\tcould  not  be said to\tbe  discriminatory-  because\nimposition of the fees was made only by the bye-laws  framed\nby  the market committee under the power conferred on it  by\ns. 11 subject to the maxima prescribed in the  notification;\nif a bye law prescribed rates of fees in two modes in such a\nway as to result in discrimination then such a bye-law would\nhave to be struck down.\n(2)the\tfact  that under r.53 the market  committee  might\nlevy  fees by one method on one agricultural produce and  by\nanother method on another agricultural produce, would not be\na  ground of discrimination, because each commodity must  be\ntreated as a class by itself.\n(3)s. 29-B was sufficient to cure the defects pointed  out\nin the earlier judgment of the Supreme Court and to validate\n877\nthe  actions taken and the things done before the  promulga-\ntion of the Ordinance dated June 26, 1961.\n(4)there was a basis for classification of traders into\t A\nclass  and B class, and the restrictions placed by the\tAct,\nRules  and  Bye-laws  were reasonable  restrictions  in\t the\ninterests of the general public.\n(5)the\tpurpose of the licence granted to B Class  traders\nwas  to\t permit\t them to buy in the  market  yard  and\tthus\ncontrol their activity in connection with whole-sale  trade,\nand not to control retail dealers.  Consequently, the market\ncommittees were acting within their powers under Act.\n(6)though  s.5A\t had been amended, the said  section  read\nwith  the Rules did not involve any radical  departure\tfrom\nthe scheme of the Act as it was before the amendment.\n (7)  rr.  65  and  67, which  were  valid  when  they\twere\noriginally  framed but became bad on the insertion of 5A  in\nthe  Act in 1953, became valid again after the amendment  of\nthe  section  by the ordinance, by the\tapplication  of\t the\ndoctrine of eclipse.\nDhikaji\t Narain\t Dhokras  v. The State\tof  Madhya  Pradesh,<\/a>\n(1955)\t2 S. C. R. 589 and Deep Chand v. The State of  Uttar\nPradesh<\/a> (1959) Supp. 2 S.C.R.8. applied.\n(8)s.  29-B  having validated the levy and  collection\tof\nlicence\t fees, Art. 31 (1) was riot applicable to the  case,\nsince  fees  were included within the taxing  power  of\t the\nlegislature    which   had   also   power    to\t   legislate\nretrospectively.\nM.P.  V.  Sundararamier\t & Co. v. The  State  of  Anddhra\nPradesh,(1958) S.C.R. 1422, relied on.\n\n\n\nJUDGMENT:\n<\/pre>\n
ORIGINAL JURISDICTION : Petitions Nos. 226 to 229 and 233 of
\n1961.\n<\/p>\n
Petitions  under Art. 32 of the Constitution of’  India\t for
\nthe enforcement of fundamental rights.\n<\/p>\n
A.S.  R.  Chari,  J.  B. Dadachanji,  O.  C.  Mathur  and
\nRavinder Narain, for the petitioners (in Petns.\t Nos. 226 to
\n229 of 61).\n<\/p>\n
I.N.  Shroff,  for the petitioners (in Petn, No.  233  of\n<\/p>\n
61).\n<\/p>\n
A.V. Viswanatha Sastri, N. S. Bindra and
\n878<\/span>
\nR.   H. Dhebar, for respondent No. 1 (in all the petitions.)
\n1962.  March 15.  The Judgment of the Court was delivered by
\nWANCHOO,  J.-These  five  petitions under  Art.\t 32  of\t the
\nconstitution,  which  are connected and will be\t dealt\twith
\ntogether, raise questions as to the constitutionality of the
\nBombay Agricultural Produce Markets Act, Bombay Act  No.XXII
\nof 1939, (hereinafter referred to as the Act), as amended by
\nthe  Bombay  and  Saurashtra  Agricultural  Produce  Markets
\n(Gujarat amendment and validating Provisions) Ordinance, No.
\n1  of 1961 (hereinafter referred to as the  Ordinance),\t and
\nthe  Rules and the bye-laws framed thereunder.\tThey  are  a
\nsequal\tto the judgment of this Court in Gulam\tMohammed  v.
\nThe State of Bombay (1), which was delivered on May 2, 1961.
\n‘One of petitioners before us in these petitions was also  a
\nparty  in that petition, which was with respect to a  market
\nestablished in Ahmedabad.  In that petition the challenge to
\nthe  constitutionality\tof the main provisions\tof  the\t Act
\nfailed\tbut the provisions of certain Rules, namely rr.\t 53,
\n65, 66 and 67 were held to be ultra vires the provisions  of
\na. 11 and a. 5A of the Act.  In consequence, a direction was
\nissued\tprohibiting  the respondents in that  petition\tfrom
\nenforcing  the\tprovisions of the Act,\tRules  and  Bye-laws
\nagainst\t the petitioners in that petition till a market\t was
\nestablished in law for that area under s.5A and from levying
\nany  fee under a. 11 till the maximum was  prescribed  under
\nthe  Rules.   Consequent  on that  decision,  the  State  of
\nGujarat\t amended r. 53 by notification dated June 23,  1961.
\nFurther\t the Ordinance was promulgated on June 26, 1961,  by
\nwhich  certain amendments were made in certain\tsections  of
\nthe act and a new s. 29-B was inserted in the Act validating
\ncertain acts or things done prior to the promulgation of the
\n(1)  [1962] 2 S.C.R. 659,
\n879<\/span>
\nordinance.  The present petitions were filed thereafter.
\nFour of the petitions (namely, Nos. 226 to 229)\t  are\twith
\nrespect to Ahmedabad while the fifth\tpetition  (No.\t233)
\nis  with  respect  to  Nadiad. Two  of\tthe  petitioners  of
\nAhmedabad are wholesale dealers while the other two claim to
\nbe  retail dealers.  The contentions on behalf of the  Ahme-
\ndabad  petitioners are that the notification amended r.\t 53,
\noffends\t Art. 14 of the Constitution and is  therefore\tbad.
\nIt is further contended that though S. 5AA has been amended,
\nthe  amendment\tis  prospective ;  therefore  the  infirmity
\nnoticed in the earlier judgment of this Court still  remains
\nand  s. 29-B which has been inserted in the Act is  insuffi-
\ncient  to validate what bad been done before  the  Ordinance
\ncame  into force.  It is further contended that the  bye-law
\nunder which the market committee issues licences to A  Class
\nand   B\t  class\t dealers  is  discriminatory   and   imposes
\nunreasonable restrictions on the fundamental right to  carry
\non  trade and business and is therefore bad.  Lastly  it  is
\ncontended  that\t the  market committee\tinsists\t on  issuing
\nlicences for retail trade and this it cannot do for  control
\nof retail trade is, not within the provisions of the Act  as
\nheld by, this Court in the earlier judgment, and further  in
\nconsequence the market committee is using r. 64 in a  manner
\nin  which it was not intended to be used and therefore\tthat
\nrule though it was upheld in the earlier judgment should  be
\ndeclared ultra vires.\n<\/p>\n
The  majority  of  the petitioners in the  Nadiad  case\t are
\nwholesale  dealers  but\t a few of them claim  to  be  retail
\ndealers.    These   petitioners\t  further   challenge\t the
\nconstitutionality  of  the Act after its  amendment  by\t the
\nOrdinance, and their contention is that the Ordinance  makes
\nradical\t changes in the main provisions of the Act  and\t the
\nbasis  on  which these main provisions were upheld  by\tthis
\nCourt
\n880<\/span>
\nearlier, no longer applies, and therefore the Act as it\t now
\nstands\tafter the amendment is violative of the\t fundamental
\nright  to carry on trade and business guaranteed under\tArt.
\n19(1)(g)  of the constitution as the restrictions placed  by
\nit  on\tthe  said right are  unreasonable.   Further  it  is
\ncontended  that rr. 65, 66 and 67 were struck down  by\tthis
\nCourt in the earlier judgment as beyond the power  conferred
\non the State under s. 26 of the Act.  These rules  therefore
\ncannot be held to be a part of the Rules in force now and in
\nconsequence  it was not open to the market committee to\t Act
\nas provided in these Rules.  Lastly it is urged on behalf of
\none of the petitioners that he. had paid licence fee to\t the
\nmarket committee and was entitled to a refund of that  after
\nthe  earlier  judgment\tof this Court;\tbut  s.\t 29-B  newly
\ninserted in the Act which in effect deprives this petitioner
\nof  getting refund is invalid and illegal as it\t is  against
\nthe  provisions of Art. 31(1).\tSome other points have\talso
\nbeen raised by the Nadiad petitioners ; but as they are\t not
\npressed, we shall not refer to them.\n<\/p>\n
The  petitions have been opposed on behalf of the State\t and
\nit  has\t traversed all the points raised on  behalf  of\t the
\npetitioners.  It is not necessary to set out the grounds  on
\nwhich  it  is urged on behalf of the  respondents  that\t the
\ncontentions of the petitioners have no force.  These grounds
\nwill  appear  when we deal with the  contentions  raised  on
\nbehalf\tof the petitioners one by one.\tNor do we  think  it
\nnecessary  to  set  out\t the  previous\thistory\t as  to\t the
\nestablishment  of  the market in Ahmedabad as that  will  be
\nfound  in the earlier judgment ; nor is it necessary to\t set
\nout  the  previous history as to the  establishment  of\t the
\nmarket in Nadiad, for it is not in dispute that that history
\nis  similar  to the, history in the case  of  the  Ahmedabad
\nmarket.\t  We shall therefore proceed to indicate the  points
\nwhich  alone have been pressed on behalf of the\t petitioners
\nand then consider them one by one.\n<\/p>\n
881<\/span><\/p>\n
Some  of  the points are not common; but as they  have\tbeen
\nraised in one petition or the other and these petitions have
\nbeen dealt with together and. the decision on any point Will
\neffect even other petitions in which it has not been raised,
\nwe shall proceed on the basis that all the points have\tbeen
\nraised\tin  all the petitions particularly  as\tthe  learned
\ncounsel\t appearing  in\tthe various  petitions\tadopted\t the
\narguments  of  one another during the hearing.\t The  points
\ntherefore which call for decision are as below-
\n(1)Is  the  notification dated June 23,\t 1961  fixing  the
\nmaximum\t  fee\tto  be\tcharged.  hit  by  Art.14   of\t the
\nConstitution?\n<\/p>\n
(2)Does\t the  insertion of s. 29-B in the Act  suffice\tto
\nvalidate acts or things done before the promulgation of\t the
\nOrdinance?\n<\/p>\n
(3)Are\tthe by-laws by which the market\t committee  issues
\nlicences  to A class and B class dealers discriminatory\t and
\nthus  offend-Art. 14, and do they amount to an\tunreasonable
\nrestriction  on the fundamental right to carry on trade\t and
\nbusiness under Art. 19(1)(g)?\n<\/p>\n
(4)  Is the market committee acting beyond its powerunder
\nthe Act in requiring retail dealers to take out licences and
\nis  r. 64 bad on account of the manner in which it is  being
\nenforced by the market committee?\n<\/p>\n
(5)Are the main provisions of the Act after its\t amendment
\nby the Ordinance liable to be struck down as an unreasonable
\nrestriction  on the fundamental right to carry on trade\t and
\nbusiness under Art. 19(1)(g)?\n<\/p>\n
(6)Was\tit  necessary to reframe rr. 65,66  and\t 67  under
\npower conferred on the State Government under s. 26; if\t so,
\nwhat is the effect of its not having been done?\n<\/p>\n
882<\/span><\/p>\n
(7)Is  a.  29-B\t bad  in  view\tof  Art.  31  (1)  of  the
\nConstitution  insofar as it prevents refund  of\t licence-fee
\ncollected before the Ordinance came into force?
\nRe (1).\n<\/p>\n
\t      The notification is in these terms:-\n<\/p>\n
\t      “No.   APM\/060\/30797-F-In the exercise of\t the
\n\t      powers  conferred by section 26 of the  Bombay
\n\t      Agricultural  Produce Market Act,\t 1939  (Bom.
\n\t      XXII  of\t1939),\tthe  Government\t of  Gujarat
\n\t      hereby amends the Bombay Agricultural  Produce
\n\t      Market Rules 1941 as follows namely:-\n<\/p>\n
\t      “In  the said rules in rule 53,  for  sub.rule
\n\t      (1)   except   in\t explanation   thereto\t the
\n\t      following shall be substituted, namely:-
\n\t      (1)’The\tMarket\tCommittee  shall  levy\t and
\n\t      collect  fees on agricultural  produce  bought
\n\t      and  sold in the market area at such rates  as
\n\t      may  be specified in the by laws,\t subject  to
\n\t      the following maximums, namely:-\n<\/p>\n
\t      (1)Rate  when  levied according to  cart\tload
\n\t      shall not exceed 40 naya paise per cart load.
\n\t      (2)Rate  when  levied ad\tvalorem.  shall\t not
\n\t      exceed 40 naya paise per Rs. 100.\n<\/p>\n
\t      (3)Rate when levied according to weight  shall
\n\t      not exceed.\n<\/p>\n
\t      (1) per quintal\t 15 naya paise
\n\t      (2) per Bengali Maund 5 naya paise
\n\t      (4)Rate when levied according to the number of
\n\t      containers containing the agricultural produce
\n\t      shall not exceed,\n<\/p>\n
\t      (a)   per bale of cotton 40 nay& paise
\n\t      883<\/span>\n<\/p>\n
\t      (b)per  gunny  bag or 5 naya paise  any  other
\n\t      container,
\n\t      (5)Rate  when levied in respect of  cattle,
\n\t      sheep  and  goat shall and exceed\t per  animal
\n\t      Rs.2.’
\n\t      By  order\t and  in the  name  of\tGovernor  of
\n\t      Gujarat.”\n<\/p>\n
The  contention\t on behalf of the petitioners  is  that\t the
\nnotification  is  discriminatory in two ways: in  the  first
\nplace,\tbecause it allows fees to be collected by  different
\nmodes,\ti.e.,  by  cart load, by value,\t by  weight  and  by
\ncontainers.   It  is  urged that it is open  to\t the  market
\ncommittee  to levy fees on certain agricultural\t produce  by
\n(say) cart load and on certain other agricultural produce by
\n(say)  weight;\tand  this  is  very  likely  to\t result\t  in
\ndiscrimination.\t in the second place, it is urged  that\t the
\nnotification  gives power to the committee to levy  fees  on
\nthe  same  commodity by even two of  the  methods  mentioned
\ntherein.  For example, it is urged that the same  commodity,
\nsay,  potatoes may be charged under the notification by\t the
\nmarket\tcommittee both by weight and by cart load  depending
\nupon  whether  they are brought into the market\t area  in  a
\ncart, or for example, in a basket.  It is said that there is
\nnothing in the rule which prevents the market committee from
\ndoing so, and this may result in discrimination.
\nWe  may\t however point out that the notification  by  itself
\ndoes not impose any, fee on any commodity.  What it does  is
\nto carry out the terms of a. 11 which require the maxima  to
\nbe prescribed subject to which the market committee can levy
\nfees  on Agricultural produce.\tThe imposition of the,\tfees
\nstill  remains to be made by the market committee under\t the
\npower  conferred  on  it by s.\t11  subject  to\t the  maxima
\nprescribed in the notification therefore the notification by
\nitself cannot be, said to be discriminatory.\n<\/p>\n
884<\/span><\/p>\n
Lot  us,  however,  examine the two  contentions  raised  on
\nbehalf\tof the petitioners on the basis that\t  though the
\nnotification   may  not\t actually  impose      fees   on any
\ncommodity, it still allows discrimination to be practised by
\nthe  market committee, when it proceeds under s. II to\tlevy
\nfees  within  the  maxima prescribed  by  the  notification.
\nTaking\tthe  first contention, it may be that by  using\t one
\nmethod in the case of one, agricultural produce and  another
\nmethod\tin the case of another agricultural  produce,  there
\nmay be some difference in the incidence of the fees charged,
\nif one were to judge that incidence on the basis of only one
\nof  the modes prescribed in the notification.  But  that  in
\nour opinion cannot be said to result in d discrimination for
\neach produce must for this purpose be treated to be a  class
\nby itself.  Therefore, so long as the market committee\tuses
\none  method  of\t levying fee with respect  to  one  kind  of
\nagricultural   produce,\t it  cannot  be\t said  that  it\t  is
\ndiscriminating if it use,% another method for levying fee on
\nanother kind of Agricultural produce.  It is well known even
\nin systems of taxation that taxes Are levied with  different
\nincidence  depending upon the nature of the  article  taxed,
\nand  a fee levied under s. 11 is only the exercise  of\tthe’
\npower  of  taxation  using that word in\t its  widest  sense.
\nTherefore,  the\t fact  that  under  this  rule,\t the  market
\ncommittee  may levy fees by one method on  one\tagricultural
\nproduce\t and  by  another  method  on  another\tagricultural
\nproduce\t will  not be a ground of discrimination,  for\teach
\ncommodity must be treated as a class by itself,
\nTurning now to the second contention, it is true that  there
\nis  nothing  in\t the rule expressly to\tprevent\t the  market
\ncommittee from using two of the modes prescribed therein for
\nthe  purpose  of  levying  fees\t on  the  same\tagricultural
\nproduce.   It must be remembered however that the rule is  a
\ngeneral provision for levying fees within the
\n\t\t\t    885<\/span>
\nmaxima\tprescribed  on the agricultural\t produce  by  market
\ncommittees in the market areas all over the State.   Various
\nmethods of levying fees have been included in the rule,\t for
\nwe  assume  that the rule making authority knew\t that  there
\nwere  various ways in which things are brought into  various
\nmarket areas.  The. rule is meant to apply to all situations
\nthat  may arise in the State and there maybe different\tways
\nin  which  things  may be brought to  the  market  areas  in
\ndifferent  parts of the State.\tThat is why the rule  has  a
\nwide  sweep  and allows the market committee  to  levy\tfees
\neither\tby  cart  load\tor by value,  or  by  weight  or  by
\ncontainers.   It  may be that if for the  same\tagricultural
\nproduce fees are levied subject to the maxima two  different
\nmodes,\tthe  rates fixed may result in\tdiscrimination.\t  It
\nwould  however not be impro-in r to assume that\t in  framing
\nthe   bye-laws\tin  which  pee\trates  for  any\t  particular
\nagricultural  produce  shall be fixed the  market  committee
\nshall\tpay   due   wigard  to\t the   prohibition   against
\ndiscrimination\trentained  in Art. 14 of  the  Constitution.
\nThe  praccocal consequence of this is likely to be that\t for
\none tigricultural produce the market committee will fix\t ane
\nrate  only  in one of the four modes.  If that\tis  oone  no
\ndiscrimination\tcan be said to arise.  It will dot  also  in
\nour  opinion  be unreasonable to think that in\tissuing\t the
\nnotification the Government proceeded on the assumption that
\nfor  any particular agricultural produce one mode of  fixing
\nfees whether according to cart load or according to value or
\naccording   to\tweight\tor  according  to  the\t number\t  of
\ncontainers-will\t be adopted. .,Nor would it be difficult  if
\nthe rate is fixed in one of the modes, pay according to cart
\nload,  to calculate the fees to be levied where the  produce
\nis brought in any other manner, say in baskets, for then the
\nproportional fee can be charged on each basket on the  basis
\nof  so\tmany  basket-fuls  being equal\tto  one\t cart  load.
\nSimilarly where the bye-law fixes
\n886<\/span>
\nthe  fees  according to containers and a dealer\t brings\t the
\nproduce\t in cart load, it will be possible to Calculate\t the
\nfee due on the basis of containers, by calculating how\tmany
\ncontainers would be equal to one cart load.  Where the\tfee.
\nis fixed by weight or value there would be no difficulty  in
\nany  case.  Therefore one may reasonably conclude  that\t the
\nmarket\tcommittee  when\t acting under  s.11  read  with\t the
\nnotification will levy the fees on a single commodity in one
\nonly  of  the permitted modes.\tIf that\t happens  in  actual
\npractice there will be no question of any discrimination.
\nBut  assume  that a market committee chooses  to  adopt\t two
\nmodes for levying fees on the same agricultural produce, say
\none according to cart load and another according to  weight.
\nIn  such  a  case  a question may  arise  whether  there  is
\ndiscrimination in the incidence of fees.  That question\t may
\nhave  to  be considered if and when it\tarises\tand  whether
\ndiscrimination\tactually arises in such a case\twill  depend
\nupon the rates fixed by the market committee for levying  of
\nfees  on  the, same agricultural produce in  the  two  modes
\nthat,  it might choose.\t If the rates are so fixed that\t the
\nincidence  is  substantially the same whether the  fees\t are
\nlevied on the basis of cart load or on the basis of  weight,
\nthere  will be no discrimination.  On the other hand if\t the
\nrates\tare   so  fixed\t that  the   incidence\t works\t out
\nsubstantially  differently  there  will be a  case  of\tdis-
\ncrimination and in such a case: it is the bye-law that\twill
\nhave  to  be  struck down as being  discriminatory  for\t the
\nactual imposition of fees will be made by the bye-law framed
\nby the committee and not by the impugned notification.\t The
\nchances\t however  of fixing two modes for the levy  of\tfees
\neven  on the same agricultural produce in such a way  as  to
\nresult\tin discrimination are in our opinion so remote\tthat
\nthe  notification cannot be struck down on that\t account  as
\ndiscriminatory.\t In such
\n887<\/span>
\na  case\t it is not the notification which will\thave  to  be
\nstruck down but the actual bye-law if it prescribes rates of
\nfees   in  two\tmodes  in  such\t a  way\t as  to\t result\t  in
\ndiscrimination.\n<\/p>\n
Turning\t now to the facts of the ‘present case we find\tthat
\nthe bye-laws framed by the market committees have fixed only
\none  mode  of levying fees in these cases for  one  kind  of
\nproduce.   It is not the petitioners’ case that\t the  market
\ncommittees with which we are concerned in the present  cases
\nhave  used more than one mode for levying fees on  the\tsame
\nagricultural  produce.\t There\tit; therefore  no  case\t for
\ndiscrimination made out on the basis of the actual  bye-laws
\nwhich  have been framed by the market committees  under\t the
\npower\tconferred   on\tthem  under  s.11  read\t  with\t the
\nnotification.\tIn  these circumstances, the attack  on\t the
\nnotification on the ground of, discrimination must fail.
\nRe. (2).\n<\/p>\n
Sub-section  (1) of s.29-B provides that in the case  of  a,
\nmarket\tarea  declared\tbefore\tthe  commencement  of,\t the
\nOrdinance,  a  market for such market area shall  be  deemed
\nalways to have been established for the purposes of the\t Act
\nwith  effect from the date on which a market yard  for\tsuch
\nmarket\tarea  was  declared for the  first  time  under\t the
\nRules .or the Act and such market shall include and shall be
\ndeemed\talways\tto have included the said market  yard.\t  By
\nthis  provision\t the  defect that was  pointed\tout  in\t the
\nearlier\t judgment  with respect to the\testablishment  of  a
\nmarket is intended to be validated. The sub-section  further
\nprovides that any action taken or anything done by a  market
\ncommittee or any other authority after the establishment  of
\na market therein as aforesaid but before the commencement of
\nthe  Ordinance, which but for the provisions of this  clause
\nwould have been invalid, shall be and shall be deemed always
\nto
\n888<\/span>
\nhave  been valid and shall not be called in question  merely
\non the ground that no market was established for such market
\narea when such action was taken or thing done.\t Sub-section
\n(2)  then  provides that any fees levied  aid  collected  on
\nagricultural produce bought and sold in a market area before
\nthe  commencement of the Ordinance by a market committee  at
\nthe rates specified in its bye-laws shall be deemed to\thave
\nbeen  validly  levied  and  collected  and  such  levy\t and
\ncollection  shall  not be called in question merely  on\t the
\nground\tthat  at  the time of such levy\t and  collection  no
\nmaxima\twere prescribed as required by a. 11. The  intention
\nof this provision is to cure the defect which was noticed in
\nthe  earlier  judgment\tinasmuch  as  no  maxima  had\tbeen
\nprescribed under s.11 by the State Government.\t Rub-section
\n(3) finally provides that all licences issued to operate  in
\na market area or any part thereof and fees charged therefore
\nbefore\tthe  commencement  of  the  Ordinance  by  a  market
\ncommittee under the Rules and bye-laws and any action  taken
\nor thing done relating to licensing of persons, or obtaining
\nof  a  licence, to operate in the market area  or  any\tpart
\nthereof,  taken or done by a market committee or  any  other
\nauthority or person under the Rules and bye-laws before\t the
\ncommencement  of the Ordinance shall be and shall be  deemed
\nalways to have been valid and the validity thereof shall not
\nbe  called in question merely on the ground that  when\tsuch
\naction\twas  taken  or\tthing  done,  the  power  right\t or.
\nobligation  therefore was not duly conferred or\t imposed  by
\nthe Act on such market committee, authority or person.\tThis
\nprovision is intended to cure the defect arising from  rr.65
\nand  67\t being\tdeclared ultra vires by this  Court  in\t its
\nearlier judgment.\n<\/p>\n
The  contention on behalf of the petitioners is\t that  these
\nprovisions are insufficient to validate
\n\t\t\t    889<\/span>
\nthe  defects which were noticed in the earlier\tjudgment  of
\nthis  Court inasmuch as the relevant provisions of  the\t Act
\nand the Rules have not been retrospectively amended.  We see
\nno force in this argument, for the provisions as they  stand
\ncertainly  validate the defects pointed out in\tthe  earlier
\njudgment  of  this  Court.  It is  true\t that  the  relevant
\nsections and the Rules have not been retrospectively amended
\nby  the Ordinance, but this in our opinion was\tunnecessary.
\nRetrospective amendment may be necessary when it is  desired
\nto  change  the law; but it seems that so far as  s.  11  is
\nconcerned,  the legislature did not intend that the  control
\nof  the\t State Government over levy of fees should  be\tdone
\naway  with  for the future also.  Therefore,  all  that\t was
\nnecessary  in that respect was to validate the past  actions
\nand this is specifically provided for by sub-ss.(2) and\t (3)
\nof s.29-B. As for the establishment of market committees, an
\namendment  has been made in s.5.AA of the Act  deleting\t the
\nprovision. by which a market could be established only if so
\nrequired  by  the  State  Government.\tThis  amendment\t  is
\nprospective.  It could have been made retrospective also and
\nin  that  case\tsub-s.\t(1) of\ts.29-B\tmay  not  have\tbeen
\nnecessary.  The legislature, however, adopted the method  of
\namending s.5-AA\t prospectively and making a separate  provi-
\nsion  for validating the establishment of markets in  sub-s.
\n(1)  of s.29-B. We see no reason why it should be held\tthat
\nthe  validation made by sub-s.(1) is not sufficient  because
\nthe legislature has adopted one method rather than the other
\nfor  carrying out its purpose.\tWe are therefore of  opinion
\nthat s.29-B is sufficient to cure the defects pointed out in
\nthe  earlier judgment of the Court and to  validate  actions
\ntaken  and  things  done  before  the  promulgation  of\t the
\nOrdinance which would otherwise have been invalid in view of
\nthe earlier judgment of this Court.  The contention on\tthis
\nhead must also be rejected.\n<\/p>\n
890<\/span><\/p>\n
Re. (3).\n<\/p>\n
Under the bye-laws as they now stand two classes of  traders
\nare  mentioned, namely A class traders and B class  traders.
\nA  class traders are those who hold licences to\t buy  and\/or
\nsell agricultural produce in quantities not below 10 lbs. in
\nthe market yard, and the licence-fee which they have to\t pay
\nper  year  is Rs. 75.  B class traders are  those  who\thave
\nlicences to buy agricultural produce in quantities not below
\n10  lbs.  in  the  market yard and  to\tsell  in  retail  to
\nconsumers  anywhere  in\t the market area.   They  have\tbeen
\ndivided\t into three classes, namely, (a)  shop-keepers,\t (b)
\nlari  holders, and (e) Toplawala (hawkers), with a  licence-
\nfee  of Rs. 12, Rs. 6 and Rs. 3 respectively.  It  is  urged
\nthat  this amounts to discrimination between A class  and  B
\nclass  traders inasmuch as A class traders are charged\tmuch
\nhigher\tfees than the B class traders.\tIt is however  clear
\nthat  there  is a basis for classification between  the\t two
\nclasses of traders.  A class traders are those who can\tboth
\nbuy and sell agricultural produce in the market yard while B
\nclass  traders can only buy in the, market yard\t but  cannot
\nsell  there.   It  is  submitted  on  behalf  of  the  State
\nGovernment  that  B  class traders  are\t those\tpersons\t who
\ngenerally  sell\t in  retail  to consumers  after  buy  in  a
\nwholesale  in  the  market  yard from  A  class\t traders  or
\nproducers.   The  reason  why  B  class\t traders  have\tbeen
\npermitted  to  buy  in\tthe market  yard  is  to  allow\t for
\ncompetition,  as otherwise there would have been a  monopoly
\nof  the\t few  A class traders who operate  in  a  particular
\nmarket\t yard.\t This  classification  in  our\topinion\t  is
\nreasonable.   A class traders are wholesale traders who\t are
\npermitted  both to buy and sell in the market yard  and\t are
\nthus  charged  a higher licence-fee.  B\t class\ttraders\t are
\nordinary  retailers  who in order to carry on  their  retail
\ntrade  are permitted to buy in the market yard but they\t are
\n,not permitted to sell there.  They are small trader,
\n891<\/span>
\nand are therefore charged lower licence fees.  It appears to
\nus  that in order to avoid the monopoly of A class  traders,
\nwho  are a few in number, with the result that prices  might
\nbe depressed by such traders, B class traders are  permitted
\nonly to buy in the market yard on payment of a small licence
\nfee in order that the producer who brings his produce in the
\nmarket\tyard  may  have\t a fair price.\t We  see  no  reason
\ntherefore  to  hold  that there\t is  any  discrimination  in
\ncreating  the  two classes of traders, for there is  a\tfair
\nbasis of classification of traders into A class and B class.
\nNor  can  this restriction be deemed to be  an\tunreasonable
\nrestriction on the right to carry on trade and business, for
\nsuch  regulation is obviously envisaged by the Act in  order
\nto  carry out its purposes and this Court, has already\theld
\nin  the\t earlier judgment that the Act is a valid  piece  of
\nlegislation.   It is unnecessary to repeat the reason  given
\nin  the\t earlier  judgment,:  where it\twas  held  that\t the
\nrestrictions  placed by the Act, Rules and  Bye-laws  framed
\nthereunder  are reasonable restrictions in the\tinterest  of
\ngeneral public.\n<\/p>\n
It is however urged that B class traders are allowed to sell
\nto  consumers  anywhere in the market area whereas  A  class
\ntraders’,  are not so allowed.\tIt has already been held  in
\nthe  earlier  judgment that retail trade is  not  controlled
\nunder  the Act.\t Therefore, the fact that the  bye-,law\t has
\nadded the words ,to sell in retail to consumers anywhere  in
\nthe  market  area” in the case of B class traders is  of  no
\nconsequence,  for  B class traders, as they  are  retailers,
\nwould  be  entitled in any case,  without  being  controlled
\nunder the Act, to sell to consumers anywhere they like.\t  It
\nif;  not the addition of these words which gives that  right
\nto  B  class  traders,\tfor that  right\t of  theirs  is\t not
\ncontrolled by the Act and they would be entitled to exercise
\nit  without the addition of these words, which, we  consider
\nas surpluses in the circumstances.  As for A class traders
\n892<\/span>
\nthey are admittedly wholesalers and there is no question  of
\ntheir  selling in retail.  We are therefore of opinion\tthat
\nthe addition of the words mentioned above with respect to  B
\nclass traders is a mere sur-plusage and makes no  difference
\nto the basis of classification.\t There is no force therefore
\nin the contention under this head and it must be rejected.
\nRe. (4).\n<\/p>\n
It is next urged that the market committee is attempting  to
\ncontrol\t retail dealers and requires them also to  take\t out
\nlicences and this it is not authorised to do, as this  Court
\nhas  already held in the earlier judgment that retail  trade
\nis not. within the ambit of the Act.  This argument is based
\non  the\t use of the words “to sell in  retail  to  consumers
\nanywhere  in  the market area” in connection  with  B  class
\ntraders.   It is said that in this way the market  committee
\nis  controlling\t retail trade also under the  Act  which  it
\ncannot\tdo.  We are of opinion that this contention  has  no
\nforce.\tB class traders are required to take out licences in
\norder to buy agricultural produce in quantities not below 10
\nlbs. in the market yard.  The licence in our opinion is\t not
\nmeant to permit them to carry on retail sale anywhere in the
\nmarket area.  As we have said already these words are a mere
\nsurplusage and the real purpose of the licence granted to  B
\nclass  traders is to permit them to buy in the\tmarket\tyard
\nand thus control their activity in connection with wholesale
\ntrade.\t It  is urged, however, that no provision  has\tbeen
\nmade  under  s.2(ix)( a) of the Act to define the  limit  of
\nretail sale under any bye-law.\tIt is true that no  specific
\nprovision for that purpose has been made but when the  limit
\nof  10\tlbs. is fixed below which no  transaction  can\ttake
\nplace  in the market yard it is some indication of  what  is
\nthe  limit of retail sale.  In any case the  bye-laws  which
\nprovide for A and B class traders, indicate the limit  below
\nwhich they cannot trade in the market yard and this clearly
\n\t\t\t    893<\/span>
\nshows that the intention of the market committee was not  to
\ncontrol retail trade by the issue of licence to traders\t for
\nthe  large proportion of retail trade may well be  below  10
\nlbs.  for each transaction.  We cannot therefore accept\t the
\ncontention of the petitioners that the bye-laws by providing
\nfor  A\tclass and B class traders are really  providing\t for
\ncontrol\t of retail trade.  It is clear that B class  traders
\ncan only buy in the market yard but cannot sell there and as
\nfor  sale, they will be entitled to sell in retail  wherever
\nthey like, for the Act does not control retail trade.
\nAs  for r. 64, it merely provides for incidental  powers  in
\nconnection  with the regulation of market yards and  it\t has
\nalready been held valid in the earlier judgment.  We see  no
\nreason to hold that that rule is invalid on the ground\tthat
\nthe  market committee is using that rule to  control  retail
\ntrade.\t We  have  already  pointed  out  that\tthe   market
\ncommittee  cannot  be  said  to\t control  retail  trade\t  by
\nproviding,  for\t A  and B class licences’ and  there  is  no
\nquestion  therefore  of\t r. 64 being used in  a\t manner\t not
\nintended thereunder.\n<\/p>\n
Lastly,\t it  seems  that  there\t is  some  dispute  by\tsome
\npetitioners in Petitions Nos. 228 and 229 as to whether they
\nhold  certain  shops in the market yard from  the  municipal
\ncommittee  or  must be deemed to hold them from\t the  market
\ncommittee  and\twhat rights the market\tcommittee  has\tover
\nthose petitioners in that connection.  It appears that there
\nhave  been  suits in courts with, respect to  that  dispute.
\nThat  is a matter which in our opinion has to be decided  by
\nthe courts where the suits are said to be pending and cannot
\nbe the subject of adjudication in a petition under Art.\t 32.
\nIn  any\t case r. 64 cannot be declared had  because  of\t any
\ndispute\t between  the market committee, the  municipal\tcom-
\nmittee and stall holders as to their respective rights
\n894<\/span>
\nover  the stalls in the market yard.  There is therefore  no
\nforce in this contention either and it must be rejected.
\nRe. (5).\n<\/p>\n
The  main  contention  under-this  head\t is  that  the\tmain
\nprovisions of the Act have been so amended by the  Ordinance
\nthat the basis on which this Court upheld the provisions  as
\nconstitutional no longer exists and therefore the Act as  it
\nnow stands after its amendment by the Ordinance is an unrea-
\nsonable\t restriction on the right to carry on  trade.\tThis
\ncontention requires a consideration of the provisions of the
\nAct  as they stand after the amendment by the Ordinance\t and
\nit  will have to be seen whether there has been any  radical
\ndeparture  from the scheme of the Act as it was\t before\t the
\namendment.   If there has been no radical  departure  after,
\nthe  amendment\tand  the control envisaged  by\tthe  Act  as
\namended\t is still the same, as it was before  the  amendment
\nthe basis on which the earlier judgment of this Court upheld
\nthe main provisions ,the Act would still apply, and the\t Act
\nas amended would be constitutional.  Let us therefore see if
\nthere\thas  been  any\tradical\t departure  from  the\tmain
\nprovisions  of the Act as they stood before  the  amendment.
\nThe Act still deals with the regulation of purchase and sale
\nof  agricultural  produce and establishment of\tmarkets\t for
\nouch  produce.\tSection 3 stands unamended and provides\t for
\nthe  constitution of market areas and market committees\t and
\ngives  power to the Commissioner by notification to  declare
\nhis  intention of regulating the purchase and sale  of\tsuch
\nagricultural produce and in such area as may be specified in
\nthe notification.  Section 4(1) is also unamended and  gives
\npower to the Commissioner after holding such inquiry as\t may
\nbe necessary and considering the objections and\t suggestions
\nif any made after the notification under a. 3 to declare
\n\t\t\t    895<\/span>
\na  particular area as a market area for the purposes of\t the
\nAct.   There. has been some amendment in s. 4( 2) but it  is
\nnot of a radical character and does not make any  difference
\nto  the\t main provisions of the Act.  Section 4-A  has\talso
\nbeen amended by providing for declaration of a market proper
\nand con. sequential changes necessary-due to such provision.
\nThis  amendment only brings in to the Act what was  formerly
\nin  r. 51.  This amendment also therefore makes\t no  radical
\nchange\tin the Act.  Section 5-AA has also been amended\t and
\nthe  provision\twhich  made  it\t necessary  for\t the   State
\nGovernment  to\trequire a market committee  to\testablish  a
\nmarket\thas  boon deleted.  Section 5-AA as  it\t now  stands
\nmakes  it  the duty of the market committee to\tenforce\t the
\nprovisions of the Act etc. and when a market is\t established
\nthereunder  to provide for such facilities in the market  as
\nthe  State  Government\tmay  from time\tto  time  direct  in
\nconnection  with  the  purchase\t and  sale  of\tagricultural
\nproduce\t with which it is concerned.  The change in s.\t5-AA
\ntherefore is also of an incidental character and does not in
\nany  way affect the scheme of the Act as it was\t before\t the
\namendment.   Section  5A has also been amended\tand  it\t now
\nreads as follows:-\n<\/p>\n
\t      “Where  a market is established under  section
\n\t      4A, the market committee may issue licences in
\n\t      accordance   with\t  the  rules   to   traders,
\n\t      commission    agents,    brokers,\t   weighmen,
\n\t      measurers,  surveyors, warehousemen and  other
\n\t      persons  to operate in the market area or\t any
\n\t      part thereof”\n<\/p><\/blockquote>\n
The  main  argument  of the petitioners\t is  based  on\tthis
\namendment.  It is urged that under the unamended Act after a
\nmarket\twas  established the market committee had  to  issue
\nlicences for operation in the market so that the business of
\nsale  and purchase of agricultural produce was\tconcentrated
\nin the market which consisted of a principal market yard and
\n896<\/span>
\none  or more sab-market yards with the consequent  advantage
\nto the agricultural producer that they had a place or places
\nwhere  they  could find a large number of buyers  for  their
\nproduce\t and could thus secure fair prices  under  regulated
\nconditions.  Now, however, it ‘is urged that under s. 5A  it
\nis  open  to  the  market committee,  after  the  market  is
\nestablished  under  s. 4A to give licences  to\ttraders\t and
\nother to operate in the market area or any part thereof with
\nthe  result  that  it  would not  be  necessary\t to  have  a
\nprincipal  market yard or sub-market yards.  There would  be
\nsome  force in this argument if we were to ignore the  rules
\nframed\tunder the Act.\tBut the rules which were  framed  by
\nthe  State Government are still the same.  Rule 51  provides
\nfor the declaration of market yards and market proper by the
\nState  Government.  Rule 60 provides that  all\tagricultural
\nproduce\t brought  into the market shall\t pass  through,\t the
\nprincipal  market  yard or sub-market yards  and  shall\t not
\nsubject to the provisions of sub-r.(2), be sold at, anyplace
\noutside\t such  yards.  The only exception to  this  is\tsub-
\nr.(2), which provides that proceed agricultural produce\t may
\nbe  sold either in the principal market yard, or  sub-market
\nyard,  or  in the market proper, or in the market.  area  in
\naccordance with the provisions of the bye-laws.\t The  reason
\nfor  this distinction is clear, for where produce is  to  be
\nprocessed, as for example, ginned cotton, it has to be taken
\nto  a  ginning\tfactory\t in which  came\t it  would  be\tmost
\ninconvenient  to  bring the produce to the market  yard\t for
\nsale and that may also add to the price by further transport
\ncharges.   Reading s. 5A therefore along with the Rules,  it
\nis clear that the present provisions are materially the same
\nas the agricultural produce (except that which is processed)
\nshall have to pass through the principal market yard or sub-
\nmarket\tyards and be sold there.  The only  difference\tthat
\nthe amendment has made
\n\t\t\t    897<\/span>
\nis  that whereas formerly under a. 5A ‘ traders\t could\tonly
\noperate\t in the market by virtue of the provisions  of,\t the
\nAct,  now they will operate in the market by virtue  of\t the
\nprovisions  of\tthe  Act read with the\tRules.\t The  rules,
\nhowever,  are  still the same and therefore  in\t effect\t the
\nprovisions  of\tthe Act and the Rules  read  together  still
\nprovide\t for the same kind of regulation which was  intended
\nunder  the unamended Act.  It is urged that it will be\topen
\nin  the future for the market committee to do away with\t the
\nnecessity  of having market yards and sub-market  yards\t and
\nconcentrating, wholesale trade only in market yards and sub-
\nmarket yards in view of the provisions in the amended  s.5A,
\nfor the market committee would be entitled to issue licences
\nin  accordance\twith the Rules in case they are\t changed  to
\ntraders etc. to trade in the market area or any part thereof
\nIt will be seen however that the power to change .the  Rules
\nis  not\t in  the market committee and until  the  Rules\t are
\nchanged the position as it was under the unamended Act would
\nremain\tthe  same.  We have no reason to  suppose  that\t the
\nState Government intends to change the Rules as they are now
\nand  to permit the market committee to grant licences  under
\ns. 5A for trade anywhere in the market indiscriminately.  It
\nis  true  that\tsuch a possibility can &rise  if  the  State
\nGovernment changes the Rules as they exist at present.\t But
\nthere  is  no  reason  to suppose  that\t such  a  change  is
\nintended.  So long therefore as the Rules stand as they are,
\nthere is no radical departure from the scheme of the Act  as
\nit  was before its amendment and the reasons which  impelled
\nthis Court to uphold the Act and the Rules framed thereunder
\nwould still hold good.\tIf and when the Rules are so changed
\nas to make a radical departure from the present position,  a
\nquestion  may  well  arise whether  the\t scheme\t of  control
\nenvisaged under the
\n898<\/span>
\nAct has failed in its purpose.\tIt may then be necessary  to
\ndecide\twhether the Act and the rules\t   framed thereunder
\nare unconstitutional; but so long as the rules stand as they
\nare, we have to read s.5A along with the Rules, for licences
\nare issued under that section in accordance with the  Rules,
\nand reading s. 5A and the present Rules together it must  be
\nheld  that  there  has been no radical\tdeparture  from\t the
\nscheme\tof  the\t act  as it was\t before\t the  amendment\t and
\ntherefore  the reasons which impelled this court  to  uphold
\nthe  Act, Rules and bye-laws framed under it in the  earlier
\njudgment still stand.\n<\/p>\n
Beside,\t this main argument certain  subsidiary\t contentions
\nare also urged on behalf of the petitioners to challenge the
\nconstitutionality   of\tthe  act,  and\tthe   Rules   framed
\nthereunder  on\tthe  ground  that  it  was  an\tunreasonable
\nrestriction  on the fundamental right to carry on  trade  or
\nbusiness.   It is urged that a trader who has  business\t all
\nover the State may have to take 80 or more licences to trade
\nin different market areas and that will mean a heavy  burden
\non  him\t resulting  in increase\t in  price  of\tagricultural
\nproduce.  This in our opinion is a theoretical consideration
\nand  in any case if a trader is so big as to carry on  trade
\nin all the 80 or more market areas established in the  State
\nwe  see\t no reason why he should not take  licence  in\teach
\nmarket\tarea.  He will be in a position to bear\t the  burden
\nand it need not necessarily affect the price of agricultural
\nproduce\t seriously.  Then it is urged that the\tAct  affects
\ntransactions  between traders outside the market  area.\t  We
\nhave  not been able to understand what exactly is  meant  by
\nthis. it is only when the sale takes place within the market
\narea  that  the produce has to\tpass through  the  principal
\nmarket\tyard  or  sub-market  yard, but\t if  a\ttrader\tgets
\nsomething  from outside the market area and the\t sale  takes
\nplace outside the market area and the thing is brought in to
\nthe  market  area  by the trader after\tthe  purchase,\tsuch
\ntransaction will not
\n\t\t\t    899<\/span>
\nbe subject to any fees, for fees have only to be charged  on
\nagricultural  produce  bought and sold in  the\tmarket\tarea
\nunder r. 53 read with s. 11.  But where the sale takes place
\noutside the market area and the commodity is merely  brought
\ninto the market area by the wholesale trader, there will  be
\nno  question of any fee being charged on that,\ttransaction;
\nof course, if there is a further sale in the market area  or
\nin  the\t market yards by the wholesale trader  to  some\t one
\nlocally that may be liable to fee.  We do not we how in\t the
\ncircumstances  it  can\tbe  said that  this  is\t a  case  of
\nunreasonable restriction on the right to carry on trade\t and
\nbusiness.\n<\/p>\n
Next it is urged that the provisions in the Act also  affect
\ntransaction  between  traders and traders, and\talso  affect
\nproduce\t not grown within the market area if it is  sold  in
\nthe  market area.  That is undoubtedly so.  But\t if  control
\nhas  to\t be effective in the interest  of  the\tagricultural
\nproducer  such incidental control of produce  grown  outside
\nthe market area and brought into the market yard for sale is
\nnecessary  as otherwise the provisions of the Act  would  be
\nevaded\tby alleging that the particular produce sold in\t the
\nmarket yard was not grown in the market area.  For the\tsame
\nreasons transactions between traders and traders have to  be
\ncontrolled,  if the control in the interest of\tagricultural
\nproducers  and the general public has to be  effective.\t  We
\nare  therefore\tof opinion that the Act and the\t Rule,%\t and
\nBye-laws  thereunder cannot be struck down on  this  ground.
\nThe contention under this head therefore must fail.
\nRe. (6).\n<\/p>\n
The  next contention is that rr. 65, 66 and 67\twere  struck
\ndown by this Court in the earlier judgment and have  neither
\nbeen  reframed nor validated by the  Ordinance.\t  Therefore,
\nthese  rules  do  not exist.  Consequence  of  this,  it  is
\nalleged, is that it
\n900<\/span>
\nis not open to the market committee to issue licences  which
\nwere provided by these rules.  Rules\t65 provides that  no
\nperson shall do business as a trader or a general commission
\nagent  in  agricultural produce in any\tmarket\tarea  except
\nunder  a licence granted by the market committee under\tthis
\nrule.  Rule 67 provides that no person shall do business  as
\na  trader,  commission agent,  broker,\tweighmen,  measurer,
\nsurveyor, warehouseman or operate in any other manner in any
\nmarket\tarea  except  under licence granted  by\t the  market
\ncommittees.   It  is urged that licences are  granted  under
\nthese rules read with s.5A, which now provides that whore  a
\nmarket\tis  established\t the  market  committee\t may   issue
\nlicences  in  accordance with rules to\ttraders,  commission
\nagents,\t brokers etc. to operate in the market area  or\t any
\npart  thereof.\tSection 5A, it is urged, is a mere  enabling
\nprovision  and becomes effective when the rules\t are  framed
\nand that licences under the enabling provisions of s. 5A are
\nto  issue in accordance with the rules; and if there are  no
\nrules as to issue of licences the enabling provisions of  a.
\n5A  cannot be availed of by the market committee to  require
\nthe  taking  out  of licences.\tIt is rr. 65  and  67  which
\nprohibit business in the market area without taking licences
\nand provide for the manner in which applications for licence
\nshall be made, the period for which the licence shall remain
\nvalid  and  other incidental matters.  It is urged  that  as
\nthese rules were struck down by this Court and have  neither
\nbeen reframed nor validated under the Ordinance there is  no
\npower in the market committee to require traders to take out
\nlicences merely because s. 5A enables it to issue  licences.
\nThe  argument  on behalf of the State is  that\teven  though
\nthese  rr. 65 and 67 were struck down because they were\t in-
\nconsistent with s. 5A as it stood before the amendment,\t now
\nthat s. 5A has been amended these rules must be held to have
\nrevived and reliance in this connection is placed on certain
\ndecisions of
\n\t\t\t    901<\/span>
\nthis  Court  where it was held that an Act which  was  valid
\nwhen  it was passed before the Constitution came into  force
\nand  some provisions of which be. came invalid\tfor  certain
\npurposes  in  view  of the provisions  in  the\tConstitution
\nrelating  to fundamental rights and Art. 13 thereof,  became
\nwholly effective again when the Constitution was amended and
\nthe inconsistency with the fundamental rights removed.\tThis
\nprinciple  was\tlaid down by this Court\t in  Bhikaji  Narain
\nDhakras v. The State of Madhya Pradrsh<\/a> (1), in these words:\n<\/p>\n
\t      “The true effect of Art. 13(1) is to render an
\n\t      Act  inconsistent with the  fundamental  right
\n\t      inoperative  to  the extent of  the  inconsis-
\n\t      tency.  It is over-shadowed by the fundamental
\n\t      right  and  remains dormant but is  not  dead.
\n\t      With the amendment made in clause (6) of\tArt.
\n\t      19  by  the  First  Amendment  Act,  the\tpro.
\n\t      visions  of  the impugned Act were  no  longer
\n\t      inconsistent therewith and the result was that
\n\t      the  impugned Act began to operate once  again
\n\t      from  the\t date of such  amendment  with\tthis
\n\t      difference that’, unlike amended clause (2) of
\n\t      Art.19 which was expressly made retrospective,
\n\t      no rights and obligations could be founded  on
\n\t      the  provisions of the impugned Act  from\t the
\n\t      date  of the commencement of the\tconstitution
\n\t      till the date of the amendment.\n<\/p><\/blockquote>\n
This  matter  was further considered in Deep  Chand  v.\t The
\nState  of  Uttar Pradesh<\/a>   (2) and it was  held\t by majority
\nthat  ,,there was clear distinction between the two  clauses
\nof  Art. 13.  Under cl. (1), pre-Constitution law  subsisted
\nexcept\t to  the  extent  of  its  inconsistency  with\t the
\nprovisions  of\tPart  III whereas under\t cl.  (2)  any\tpost
\nConstitution law contravening those provisions was a nullity
\nfrom  its inception to the extent of such contravention\t and
\n(1) (1955) 2 S.C.R. 589 589  (2) (1955) Supp. 2 S.C.R. B.\n<\/p>\n
902<\/span><\/p>\n
therefore  a law which was bad ab initio under Art. 13 (  2)
\neither wholly or to the extent of the con   travention could
\nnot  be\t revived by the application of\t   the\tdoctrine  of
\neclipse\t and the doctrine could only apply in the case of  a
\nlaw  that was valid when made but was rendered\tinvalid\t for
\ncertain\t   purposes   by   a   supervening    constitutional
\ninconsistency.\tThe argument on behalf of the State is\tthat
\nif rr. 65 and 67 were valid when they were first framed\t and
\nbecame invalid on the introduction of s. 5A in the Act, they
\nbecame\teffective  again  when\ts. 5A  was  amended  by\t the
\nOrdinance.\n<\/p>\n
It  has not been disputed in this case that the doctrine  of
\neclipse\t applies  to cases of rules.  The only\tdispute\t was
\nwhether rr. 65 and 67 in the present form were in  existence
\nbefore\t1953  when a. 5A was inserted in the Act and  if  so
\nwhether they were valid in that form before 1953.  Time\t was
\ntaken  by  the parties to trace the history of the  Act\t and
\nthose  two  rules and the form in which the  Act  and  these
\nrules stood before 1953.  Investigation in this matter shows
\nthat rules were framed for the first time in 1941 after\t the
\nAct  came on the statute book.\tRule 65 (1) was in the\tsame
\nform  as it existed when it was struck down by\tthe  earlier
\njudgment.   Rule 67 (1) was also substantially in  the\tsame
\nform except that it did not originally include a trader or a
\ncommission agent or warehouseman as it did at the time\twhen
\nit was struck down.  The addition or the words “the  traders
\nand commission agents” in r. 67(1) is however not  material,
\nfor  these classes were already covered by r.65(1).  As\t for
\nthe  werehousemen  which  were added sometime  later  to  r.
\n67(1),\tthat addition need not detain us because we are\t not
\nconcerned in these petitions with warehousemen.\t So it seems
\nthat r. 65 (1) and r. 67 (1) were practically the same\twhen
\nthey  were  first framed in 1941 as they existed  when\tthey
\nwere struck down.  The Act as originally passed in 1939\t did
\nnot contain a section like s.5A. The scheme of the Act\tthen
\nwas that under a. 4 (2
\n903<\/span>
\nthe Government alone could grant licences for setting up any
\nplace  for  the\t purchase and sale  of\tagriculture  produce
\nnotified under the Act and thereafter under s. 5 it was\t the
\nduty  of the market committee established under the Act\t for
\nevery  market area to enforce the provisions of the Act\t and
\nthe  conditions\t of the licence granted\t by  the  Government
\nsetting\t up  a\tplace as above and  to\testablish  a  market
\ntherein, if so, required by the Government.  Section 26 gave
\npower  to the Government to frame rules for the purposes  of
\ncarrying out the provisions of the Act.\t Sub-section  (2)(e)
\nand (f) were as below:-\n<\/p>\n
\t      “(2)  In particular and without  prejudice  to
\n\t      the  generality  of the  foregoing  provisions
\n\t      such rules may provide for or regulate:-\n<\/p><\/blockquote>\n
\t      (e)the maximum fees which may be levied by the
\n\t      market   committee  in  respect  of   licences
\n\t      granted  to  traders and on  the\tagricultural
\n\t      produce bought and sold in the market area and
\n\t      the recovery of such fees;\n<\/p><\/blockquote>\n
\t      (f)the issue of licences to brokers, weigh-
\n\t      men  measures and surveyors the form in  which
\n\t      and  the\tconditions  subject  to\t which\tsuch
\n\t      licences\tshall be issued or renewed  and\t the
\n\t      conditions subject to which the licences shall
\n\t      carry  on\t their business and the fees  to  be
\n\t      charged therefore.”\n<\/p><\/blockquote>\n
It  will be seen that these provisions by which rules  could
\nbe  framed  for grant of licences did not confer  power\t for
\nissuing\t licences only for the market established under\t s.5
\nis it originally stood.\t These powers were general in  terms
\nand  the Government could frame rules empowering the  market
\ncommittee  to  issue  licences\tfor  carrying  on   business
\nthrough.  out  the  market area.  Rules 65 (1)\tand  67\t (1)
\ntherefore  would  be within the power granted to  the  State
\nGovernment under a. 26 when they were
\n904<\/span>
\noriginally framed in 1941 and would thus be valid then.
\nThen we come to the amendment of the Act in  1948.  By\tthis
\namendment, clauses (e) and (f) of s.\t26(2) were  combined
\nin one and were numbered as   sub-s.  (2)(f), which runs  as
\nfollows:-\n<\/p>\n
\t      (2)In  particular and without prejudice  to
\n\t      the generality of the foregoing provision such
\n\t      rules may provide for or regulate:-\n<\/p><\/blockquote>\n
\t      (f)the  issue of licences to traders,  com-
\n\t      mission agents, warehousemen and other persons
\n\t      operating\t in-the market,\t brokers,  weighmen,
\n\t      measurers\t and surveyors, the form  in  which,
\n\t      and  the\tconditions  subject  to\t which\tsuch
\n\t      licences\tshall be issued or renewed  and\t the
\n\t      fees to be charged therefore;”.\n<\/p><\/blockquote>\n
It  will be seen that though the words ‘market area” do\t not
\nappear\tin this provision, it is still of a  general  nature
\nand  does not restrict the operation of the licence only  to
\nthe  market.   So rr. 65 an(] 67 would not  be\tinconsistent
\nwith it.\n<\/p>\n
Then we come to the amendment of 1953 which introduced\ts.54
\n(as it was before the amendment by the Ordinance) in the Act
\nand that provided that ,’where a market is established under
\ns.5,  the market committee may issue licences in  accordance
\nwith  the  rules  to traders,  commission  agents,  brokers,
\nweighmen,  measurers,  surveyors,  warehousemen\t and   other
\npersons\t to  operate  in  the  market.”\t This  section\t was
\nconsidered in the earlier judgment and it was held there  on
\nthe basis of this section that rr. 65 and 67 when they\tgave
\npower  to the committee to issue licences for  operation  in
\nthe  market area as distinguished from the market  were\t bad
\nafter the enactment of S. 5A.\n<\/p>\n
\t\t\t    905<\/span><\/p>\n
It  is however clear from the above narration of facts\tthat
\nr.65(1)\t and r.67 (I,) were valid when they were  originally
\nframed and remained valid till s. 5A was enacted in 1953 and
\nbecame\tbad on the insertion of s. 5A in the Act.  Now\tthat
\ns.  5A has been amended by the Ordinance, rr. 65 and 67\t are
\nobviously  in  conformity  with\t it,  r.  66  being   merely
\nconsequential.\t  Therefore   they  will   revive   by\t the
\napplication of the doctrine of eclipse as they are no longer
\novershadowed  by s. 5A as it was before the Ordinance.\t The
\ncontention under this head must therefore fail.
\nRe. (7).\n<\/p>\n
The  argument  under this head is that subs.(3) of  s.\t29-B
\nwhich  validates  the collection of licence-fees  by  market
\ncommittees  is\tbad inasmuch as it makes it  impossible\t for
\nrefund to be made of licence-fees collected at the time when
\nthe  market committee had no power to collect it.   We\thave
\nnot  been able to understand this contention, for it is\t not
\ndisputed  that\tthe  legislature  has  power  to   legislate
\nretrospectively even with respect to taxation (see M. P.  V.
\nSundararamier  &  Co. v. The State, of Andhra  Pradesh<\/a>\t(1),
\nwhere  Sales  Tax  Laws\t Validation  Act,  1956,  was\theld
\nconstitutionally, valid.  Fees ire also included within\t the
\ntaxing\tpower  of the legislature in  the  broadest,  sense.
\nArticle (1) therefore has no application in the present case
\nand  we\t have to took to Art. 265 which says  that  “no\t tax
\nshall  be levied or collected except by authority  of  law”.
\nSub-section (3) of s. 29-B is the law which  retrospectively
\nauthorises the levy of licence-fees collected in this  case.
\nRetrospective  power of the legislature to make a law  being
\nthere  even in the case of taxation, we fail to see how\t the
\nprovisions of sub-s. (3) of s. 29-B which validate the\tlevy
\nand collection of licence-fees can be hold to be invalid
\n(1)[1958] S.C.R. 1422.\n<\/p>\n
906<\/span><\/p>\n
under  Art. 31(1).  We may add that the same will  apply  to
\nfees collected under s. II and validated by sub-s.     of s.
\n29-B.  There is’ therefore no force in this  contention.  It
\nis hereby rejected.\n<\/p>\n
In the result, the petitions are dismissed with\t  costs.
\nOne set of hearing fee.\n<\/p>\n
Petitions dismissed,<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Mohammadbhai Khudabux Chhipaand … vs The State Of Gujarat And … on 15 March, 1962 Equivalent citations: 1962 AIR 1517, 1962 SCR Supl. (3) 875 Author: K Wanchoo Bench: Gajendragadkar, P.B., Sarkar, A.K., Wanchoo, K.N., Gupta, K.C. Das, Ayyangar, N. Rajagopala PETITIONER: MOHAMMADBHAI KHUDABUX CHHIPAAND ANOTHER Vs. RESPONDENT: THE STATE OF […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-157439","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMohammadbhai Khudabux Chhipaand ... vs The State Of Gujarat And ... on 15 March, 1962 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mohammadbhai-khudabux-chhipaand-vs-the-state-of-gujarat-and-on-15-march-1962-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mohammadbhai Khudabux Chhipaand ... vs The State Of Gujarat And ... on 15 March, 1962 - 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