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PATNA HIGH COURT
S.B.Sinha and Narayan Roy JJ.
Keshoram Agarwala
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 1802 of 1991 ;
Decided On : APRIL 23, 1992
AGRICULTURAL PRODUCE MARKET ACT - VALIDITY - STATE LEGISLATURE COMPETENCE - AGRICULTURAL PRODUCE MARKET RULES - RETAIL DEALERS - EXCEPTION - NOTIFICATION - PRINCIPAL MARKET YARD - SHIFTING OF BUSINESS - DISCRIMINATION - MARKET COMMITTEE - EXISTENCE - RULE 80 - COMPLIANCE - NECESSITY.
Fact of the Case:
Petitioners, wholesale dealers in food grains, edible oils, sugar, and Kirana articles, challenged the notifications declaring Damkera-Barwa as the Principal Market Yard for the aforementioned commodities and directing them to shift their businesses to the said market yard. They contended that the Bihar Agricultural Produce Market Act, 1960 (the Act) and the Bihar Agricultural Produce Market Rules, 1975 (the Rules) were void and unenforceable in relation to the transactions of the said commodities, and consequently, the impugned notifications and notices were illegal.
Finding of the Court:
1. The State Legislature had the legislative competence to enact the Act in respect of food grains, sugar, edible oils, and other Kirana articles, as the Parliament had not occupied the entire field of legislation under Entry No. 52, List I of the VIIth Schedule of the Constitution of India. 2. The Act was intra vires the Constitution of India, except in relation to sugar, for which a separate notification was required to be issued by the State of Bihar. 3. The retail dealers who sell their commodities directly to the consumers are excluded from the purview of the Act, and thus, the respondents had the jurisdiction to direct only the wholesale dealers to shift their places of business to the principal market yard. 4. The State could not make any discrimination between wholesale dealers and retail dealers in directing them to shift their businesses to the principal market yard. 5. The impugned notifications were not vitiated in law as the State had complied with the provisions of Rule 80 of the Rules prior to their issuance.
Issues: 1. Whether the State Legislature had the legislative competence to enact the Act in respect of food grains, sugar, edible oils, and other Kirana articles, which came within the purview of various statutes purported to have been enacted by the Parliament in terms of Entry No. 52, List I of the VIIth Schedule of the Constitution of India? 2. Whether, in view of the provisions of Sec. 5 (2) of the Act, the petitioners could be directed to shift their places of business to the newly constituted Principal Market Yard in terms of the impugned notices although other persons dealing in the same commodities in question had not been so directed? 3. Whether the impugned notifications were vitiated in law as the State prior to issuance thereof had not complied with the provisions contained in Rule 80 of the Rules?
Ratio Decidendi: 1. The State Legislature had the legislative competence to enact the Act in respect of food grains, sugar, edible oils, and other Kirana articles, as the Parliament had not occupied the entire field of legislation under Entry No. 52, List I of the VIIth Schedule of the Constitution of India. 2. The Act was intra vires the Constitution of India, except in relation to sugar, for which a separate notification was required to be issued by the State of Bihar. 3. The retail dealers who sell their commodities directly to the consumers are excluded from the purview of the Act, and thus, the respondents had the jurisdiction to direct only the wholesale dealers to shift their places of business to the principal market yard. 4. The State could not make any discrimination between wholesale dealers and retail dealers in directing them to shift their businesses to the principal market yard. 5. The impugned notifications were not vitiated in law as the State had complied with the provisions of Rule 80 of the Rules prior to their issuance.
Final Decision: The writ applications were dismissed subject to the observations and directions made by the Court, but without any order as to costs.
S.B.Sinha, J.
1. The petitioners in this application inter alia have prayed for quashing of a notification bearing S.O. No. 133, dated 1-2-1989 as contained in Annexure-2 to the writ application as also the notification No. 207, dated 5-4-1990 as contained in Annexure-3 thereto whereby and whereunder a Damkera-Barwa has been declared to be the Principal Market Yard for Food Grains, Edible Oils, Sugar and Kirana Articles, as also a notice dated 17-8-1991 whereby the petitioners have been directed to shift their places of business to Damkara-Barwa by 30-8-1991 and as contained in Annexure-4 to the writ application as also an office order dated 21-8-1991 issued by the respondent No. 4 whereby the petitioners were intimated that from 1-9-1991 the place of business of the petitioners would be entered in their licences as Damkara Barwa. The petitioners have also prayed for a declaration to the effect that the provisions of the Bihar Agricultural Produce Market Act, 1960 (hereinafter referred to as the said Act) and the Bihar Agricultural Produce Market Rules, 1975 (for short the Rules) are void and unenforceable in relation to the transactions of foodgrains, edible oils, sugar and groceries and consequently the aforementioned notifications and notices are wholly illegal and bad in law.
2. The petitioners have been carrying on business in foodgrains, edible oils, sugar and Kirana articles etc, in whole-sale in persuance of the licences granted to them under the provisions of Bihar Trade Articles (Licences Unfication) Order, 1984. The "petitioners have been carrying on business at different places including the term of Jharia which was declared as a submartket yard by the respondent No. 2 Market Committee.
3. The petitioners have contended that in terms of Entry No. 52, List I of the VIIIth Schedule of the Constitution of India, the Parliament has enacted different acts, namely, Rice Milling Industries (Regulation) Act, 1958, Industries (Regulation and Development) Act, 1952, Sugar Development Fund Act, 1982, National (Development Board) Act, 1982 and further various orders have been made by the Central Government in exercise of the powers conferred upon it under Sec. 3 of the Essential Commodities Act, 1955. The contention of the petitioners is that as by reason of the aforementioned legislations and orders, the Central Government has occupied the entire legislative filed relating to Sugar, Vanaspati and Edible Oils and Rice etc., the State Government is denuded from making any legislation in relation to the said commodities and thus the said Act does not fall either under Entry No. 28 or under Entry No. 66 of list 2 of the VIIth Schedule of the Constitution of India, and consequently the same must be held to be ultra vires the Constitution, insofar as thereby restriction with regard to carrying of business by the petitioners in relation to the aforementioned commodities is sought to be imposed.
4. It has further been contended that in any event as in the Schedule appended to the said Act, there does not exist any item as Kirana Articles, the petitioners could not have been directed to shift their place of business in respect thereof.
5. The petitioners have further contended that as in terms of Sub-sec. (2) of Sec. 5 of the said Act, the State is empowered to declare that as trade in certain Agricultural Produce (s) ; can be carried on only the principal market yards or sub-market yards, the impugned notifications and notices whereby only the petitioners have been directed to shift their places of business is bad in law being discriminatory in nature, as other dealers dealing in the same commodities have not been so directed.
6. It has further been contended that prior to issuance of the impugned notifications, the provisions of Rule 80 of the said Rules have not been complied with. According to the petitioners despite the same, the State of Bihar has issued the impugned notification and notices as contained in Annexures 2,3
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