SUDHAKARAN v. SECRETARY, MALABAR COMMITTEE — 1969 DIGILAW 4 (KER)

Judgment :- 1. The petitioner in both these revision petitions is the Secretary of the Kumaranalloor Co-operative Marketing Society, Ltd., and the respondent the Secretary of the Malabar Market Committee, Kozhikode. The petitioner was convicted under S.17 read with S.5 (1) of the Madras Commercial Crops Markets Act, 1933 and sentenced to pay a fine of Rs. 50 in each case by the Munsiff-Magistrate of Pattambi; and the convictions and sentences have been confirmed in revision by the Sessions Judge of Palghat. 2. The facts are not in dispute. The Market Committee established a regulated market under the Act at Vattamkujam within five miles of the office of the Co-operative Society. On a particular day the petitioner purchased ripe arecanuts from two persons and paid the price. The two vendors were members of the Co-operative Society; and the contention of the petitioner is that such purchases of a commercial crop by a Co-operative Society from its members will not come within the mischief of S.5 (1) of the Act. In other words the purchase by the Co-operative Society will come within the third proviso to that sub-section.' 3. S. 5(1) provides that no person shall, within a notified area, so declared under S.4 (1), set up, establish or use, or continue or allow to be continued, any place for the purchase or sale of a notified commercial crop, so notified and declared under S.3 and 4 (1), except under and in accordance with the conditions of a licence granted by the Collector. The first proviso to the sub-section then says that after the establishment by the Market Committee, established by the State Government under S.4-A (1) in a notified area, of a market for the purchase and sale of a notified commercial crop under S.4-A (2), no licence for the purchase or sale of such commercial crop shall be granted or renewed in respect of any place situated within such distance of the market as may from time to time be fixed by the State Government. The second proviso provides further that the Market Committee may exempt from the provisions of this sub-section any person who carried on the business of purchasing or selling any commercial crop in quantities not exceeding those prescribed by rules made under the Act. Then comes the third proviso relevant for the purpose of these cases. The second proviso provides further that the Market Committee may exempt from the provisions of this sub-section any person who carried on the business of purchasing or selling any commercial crop in quantities not exceeding those prescribed by rules made under the Act. Then comes the third proviso relevant for the purpose of these cases. It provides that a person selling a commercial crop which has been grown by him, or a Co-operative Society registered or deemed to be registered under the Madras Co-operative Societies Act, 1932 selling a commercial crop which has been grown by any of its members, shall be exempt from the provisions of this sub-section, etc. The other sub-sections of the section I am not considering at this stage. 4. It is contended by the counsel of the petitioner that the purchases by the Co-operative Society from two of its members come within the third proviso, which provides that a Co-operative Society selling a commercial crop which has been grown by any of its members shall be exempt from the provisions of subsection (1) of S.S. 5. A few decisions have been brought to my notice by the counsel on both sides. The counsel of the petitioner argues that the purchases in these cases are like sales by a members' club of liquor to its members, which, English Courts have held in a series of decisions, are not sales. The counsel also cites in support of this proposition decisions like Graff v. Evans VIII Q. B. Dn. 373. The other decisions are: M.C.V.S. Arunachala Nadar v. State of Madras AIR. 1959 SC. 300; Sree Krishna Coconut Co. v. E.G. C & T. M. Committee AIR. 1967 SC. 973 and Deputy Commercial Tax Officer v. Enfleld India Ltd. AIR. 1968 SC. 838 (three decisions of the Supreme Court): and Cosmopolitan Club v. Deputy Commercial Tax Officer AIR. 1952 Madras 814 and Y. M.1. Association v. Ft. C. T. Officer AIR. 1964 Mad. 63 (two decisions of the Madras High Court). 6. 1967 SC. 973 and Deputy Commercial Tax Officer v. Enfleld India Ltd. AIR. 1968 SC. 838 (three decisions of the Supreme Court): and Cosmopolitan Club v. Deputy Commercial Tax Officer AIR. 1952 Madras 814 and Y. M.1. Association v. Ft. C. T. Officer AIR. 1964 Mad. 63 (two decisions of the Madras High Court). 6. In the first of the Supreme Court decisions the scheme of the Madras Commercial Crops Markets Act was considered; and Subba Rao J. (as he then as) who spoke for the Court observed: "The Act, therefore, was the result of a Icing exploratory investigation by experts in the field, conceived and enacted to regulate the buying and selling of commercial crops by providing suitable and regulated market by eliminating middlemen and bringing face to face the producer and the buyer so that they may meet on equal terms, thereby eradicating or at any rate reducing the scope for exploitation in dealings." Subba Rao J. also said: "Shortly stated, the Act, Rules and the Bye-laws framed there under have a long term target of providing a net-work of markets wherein facilities for correct weighment are ensured, storage accommodation is provided, and equal powers of bargaining ensured, so that the growers may bring their commercial crops to the market and sell them at reasonable prices. Till such markets are established, the said provisions, by imposing licensing restrictions; enable the buyers and sellers to meet in licensed premises, ensure correct weighment, make available to them reliable market information and provide for them a simple machinery for settlement of disputes. After the markets are built or opened by the marketing committees, within a reasonable radius from the market, as prescribed by the Rules, no licence is issued; thereafter all growers will have to resort to the market for vending their goods. The result of the implementation of the Act would be to eliminate, as far as possible, the middlemen and to give reasonable facilities for the growers of commercial crops to secure best prices for their commodities." In the second case the Supreme Court considered, inter alia, the expression "bought and sold" in S.11 (1) of the Act. The result of the implementation of the Act would be to eliminate, as far as possible, the middlemen and to give reasonable facilities for the growers of commercial crops to secure best prices for their commodities." In the second case the Supreme Court considered, inter alia, the expression "bought and sold" in S.11 (1) of the Act. Shelat J. in delivering the judgment of the Court said that it was possible to have three meanings or interpretations for this expression "bought and sold": one, the words meant duality of transactions where the same person bought goods and sold the identical goods; two, they meant "bought" or "sold", the conjunctive "and" meaning in the context the disjunctive "or"; and three, the words applied to a transaction of purchase, as the concept of purchase included a corresponding sale-(when a person bought an article from another person, that other person at the same time sold the former that article). Ultimately, the Supreme Court accepted the third interpretation given above. In other words, every sale would be looked at from two angles-from the point of view of the vendor and from the point of view of the vendee: from the point of view of the vendor it would be a sale; and from the point of view of the vendee it would be a purchase. Looking at the transaction from the point of view of one of the parties the transaction might only be a sale, while looking at the transaction from the point of view of the other it might be a purchase. Either would come within the mischief of the expression "bought and sold", because the other would follow as the reverse of a coin followed its obverse. 7. In the first of the Madras cases cited the question came up for consideration whether the sale of refreshments to the members of the Cosmopolitan Club in Madras was sale for the purpose of salestax; and Mack J. answered the question in the negative. In the next case also a question under the Madras Sales Tax Act came up for consideration; and the matter was disposed of by a Division Bench. In the next case also a question under the Madras Sales Tax Act came up for consideration; and the matter was disposed of by a Division Bench. The Division Bench followed the decision of Mack J. in the first case and observed that in regard to the supply and distribution of refreshments by a members' club to its members against payment it could not be said that there was a transfer of property by the club as an absolute owner to its members as purchasers. It further held that the case was more analogous to that of an agent investing his own moneys for preparing things for consumption of the principal, the former (not the latter as mentioned in the judgment of Ramachandra Iyer C. J.) recouping himself for the expenses incurred. It was also observed that the circumstances that a small margin of profit resulted occasionally in such a transaction could only be regarded as incidental to the transaction, as it was not always possible to fix the price of refreshments with exactitude; and that that could not have converted the transaction into one of sale. The last case, the recent decision of the Supreme Court, took a contrary view on this question. The Supreme Court held that such sales by clubs were sales coming within the Madras General Sales Tax Act and were amenable to tax. The Supreme Court did not approve of the two decisions of the Madras High Court. The Supreme Court also considered the English decision I have already referred to and similar cases and held that those were cases where the court was dealing with liabilities, criminal or quasi criminal, and those decisions would be of no avail in considering a question like the one before the Supreme Court. 8. The first argument of the counsel of the petitioner that the third proviso to S.5 (1) of the Act applies to these cases has no force in the light of the observations of Subba Rao J. extracted hereinbefore. If the contention of the counsel is accepted, what the legislature wanted to avoid by the Act the middleman will be perpetuated. The co-operative society may purchase with impunity all the commercial crops grown by its members and sell them at higher prices and make a profit. This is what is sought to be avoided by the Act. If the contention of the counsel is accepted, what the legislature wanted to avoid by the Act the middleman will be perpetuated. The co-operative society may purchase with impunity all the commercial crops grown by its members and sell them at higher prices and make a profit. This is what is sought to be avoided by the Act. Even on the wording of the proviso, this interpretation cannot be accepted, because what the proviso says is that a co-operative society selling a commercial crop grown by any of its members shall be exempt. In other words, a cooperative society can sell the commercial crops grown by its members as their agent. It cannot purchase the crops and sell them afterwards. When the cooperative society purchases from its members, the moment the purchase is effected, the crop becomes the property of the co-operative society; and it is such purchase that is prohibited by S.5 (1) of the Act. The scheme of the Act. as has been pointed out by the Supreme Court, is to prevent the purchase or sale of commercial crops except through the regulated market where such market is established. The exemption to the prohibition under sub-section (1) is found in sub-section (2) of S.5, which says that sub-section (1) shall not apply to a person purchasing for his private use a commercial crop in quantities not exceeding those prescribed by rules made under the Act. Sub-section (3) of the section also provides that no person shall setup, establish or use, continue or allow to be continued within a notified area any place for the storage, weighment, pressing or processing of any notified commercial crop except under and in accordance with the conditions of a licence granted to him by the, Collector. (I may state here that the co-operative society has taken such a licence.) Thus, the only purchase which is not hit by sub-section (1) of S.5 is the purchase covered by sub-section (2) of the section; and the sales exempted are those under the third proviso to sub-section (1). I may recapitulate that the only exemption of both purchases and sales is the one found in the second proviso to S.5 (1). 9. It is then urged by the counsel of the petitioner that the interpretation put on the expression "bought and sold" by the Supreme Court is helpful to the petitioner. I may recapitulate that the only exemption of both purchases and sales is the one found in the second proviso to S.5 (1). 9. It is then urged by the counsel of the petitioner that the interpretation put on the expression "bought and sold" by the Supreme Court is helpful to the petitioner. His argument is that in the opinion of the Supreme Court every transaction of sale has an element of purchase also involved in it, so that, if the co-operative society has a right to sell commercial crops grown by it members, it has the right to purchase commercial crops grown by its members as well. This argument is devoid of any merit, because the Supreme Court considered the transaction from both the angles, the expression before the Supreme Court being "bought and sold", whereas the language of the third proviso to S.5 (1) is "a co-operative society selling", looking at the transaction from the vendor's angle. The proviso looks at the transaction from the point of view of the co-operative society; and the co-operative society can only "sell" commercial crops grown by its members and not "purchase" them from the members. Therefore, this argument is also not of any avail to the petitioner. The convictions and sentences are confirmed and the revision petitions are dismissed. Dismissed.