Messrs B & K Traders v. State of Bihar — 1974 DIGILAW 221 (PAT)

NAGENDRA PRASAD SINGH, J. 1. The petitioners in these writ applications are either firms or partners of firms carrying on business in food-grains, edible oils, vegetable oils etc. and they are licensees under the Bihar Food-grains Dealers Licensing Order, 1967 (hereinafter referred to as the Food-grains Licensing Order"), or the Bihar Edible Oil Whole-sale Dealers Licensing Order, 1966 (hereinafter referred to as the "Edible. Oil 'Licensing Order"), or the Bihar Vanaspati Dealers' Licensing Order, 1967 (hereinafter referred to as the "Vanaspati Licensing Order'') : By these writ applications they have challenged the vires of the different provisions of the Bihar Agricultural Produce Markets Act, 1960 (hereinafter referred to as the "Markets Act") and the legality of the different communications issued by the different Market Committees established under the Markets Act. 2. As common question of law are involved in these writ applications and even the facts alleged are, more or less, similar, they have been heard together with the consent of the parties and this judgment will govern them all. C.W.J.C. no. 1084 of 1974 has been taken up as the first case. I, therefore, propose to deal with this case in the first instance. 3. According to the petitioner it caries on business mainly in edible oils and vanaspati at Muzaffarpur, and, as such, it is licensee under the provisions of the Edible Oil Licensing Order and Vanaspati Licensing Order. In exercise of the powers conferred by section 6 of the Markets Act, the State Government established a Market Committee in the town of Muzaffarpur by a notification, dated the 19th September, 1963, and declared paddy, rice, mustard oil, gram, maize etc. as notified agricultural produce for the said area. Out of the notified agricultural produce, the petitioner firm deals only in mustard oil, which it imports into the market area from oil mills situated in the State of Uttar Pradesh, Rajasthan and Haryana and Delhi and sells them within and outside the market area to different dealers and consumers, either on its own account or as commission agent of the concerned mills. 4. The petitioner-firm was served with a notice, dated the 25th April, 1974, issued by the Secretary, Agricultural Produce Market Committee, Muzaffarpur (respondent no. 4. The petitioner-firm was served with a notice, dated the 25th April, 1974, issued by the Secretary, Agricultural Produce Market Committee, Muzaffarpur (respondent no. 2), informing the petitioner that, in pursuance of the amendment made in the Markets Act, by the Ordinance, market fee on sales and purchases of all notified agricultural produce would be realisable at the rate of one per centum and return showing purchase and sale of each sanction of agricultural produce would be filed within 7 days of the day of transaction. A copy of the said notice is annexure I to the writ application. 5. After having received the said notice (annexure 1), the petitioner sent a reply to the Market Committee saying that it did not deal in mustard oil produced or purchased in the market area, and, as such, it was not liable to pay any market fee, or to file any return in relation thereto. According to the petitioners, inspite of the aforesaid objection, the petitioner has been served with a notice of assessment, dated the 11th May, 1974, saying that, as the petitioner had not submitted any return in Form A for the period mentioned therein, the petitioner should appear on the next day fixed, otherwise, exparte assessment would be completed against it and it will also be liable to pay the penalty. A copy of the said notice is annexure 2 to the writ application. The petitioner, under protest, deposited a sum of Rs. 500/- with the Market Committee, asserting that it was not liable to pay any market fee under the provisions of the Markets Act. A copy of the said letter, dated the 25th June. 1974, is annexure 3 to the writ application, But, the secretary (respondent no. 2), by his letter, dated the 5th July, 1974, asked the petitioner to file the return within a week from the date of receipt of the said letter. A copy of the said letter is annexure 4 to the writ application. 6. According to the petitioner, the Market Committee has no authority to realise any market fee from the petitioner, or to direct it to submit any return as directed. A copy of the said letter is annexure 4 to the writ application. 6. According to the petitioner, the Market Committee has no authority to realise any market fee from the petitioner, or to direct it to submit any return as directed. In the main writ application, no grievance has been made by the petitioner regarding the realisation of market fee in relation to Vanaspati oil, the reason being that at that time Vanaspati Oil (vegetable oil) had not been notified as an agricultural produce for the market of Muzaffarpur. It has, however, been stated during the course of arguments that, during the pendency of the writ application, Vanaspati Oil has also been so notified. This fact was not denied by counsel appearing for the Market Committee (respondent no. 3). As such, the petitioner-firm deals in two commodities, that is, mustard oil as well as vegetable oil, which are notified agricultural produce within the meaning of the Market Act, in the Muzaffarpur Market. 7. The Markets Act, came into force on the 6th August, 1960. It has been amended by Ordinance no. 41 of the 1974, which was published in an issue of the Bihar Gazette, dated the 17th January, 1974. The said Ordinance was replaced by another Ordinance No. 88 of 1974. Again, by Ordinance No. 124 of 1974, some of the sections of the Markets Act, have been amended. The preamble of the Act, states as follows : "An Act, to provide for the better regulation of buying and selling of agricultural produce and the establishment of markets for agricultural produce in the State of Bihar and for matters connected therewith." 8. The preamble of the Act, states as follows : "An Act, to provide for the better regulation of buying and selling of agricultural produce and the establishment of markets for agricultural produce in the State of Bihar and for matters connected therewith." 8. Section 2 of the Act, defines the following expressions in these words: "(a) 'Agricultural produce' includes all produce, whether processed or non-processed of agriculture, horticulture, animal husbandry and forest specified in the schedule; (b) 'agriculturist' means a person who ordinarily by himself, or by his tenants or hired labour or otherwise is engaged in the production or growth of agricultural produce, but does not include a trader or broker in agricultural produce notwithstanding that such trader or broker is also engaged in the production or growth of agricultural produce; (h) 'market' means a market established under this Act, for the market area and includes a principal market yard and sub-market yard or yards, if any; (i) 'market area' means any area declared to be a market area under section 4; (j) 'market committee' means a committee established under section 6; (v) 'trade' means any kind of transaction of sale and purchase or any kind of remuneration on sale and purchase of any agricultural produce; (w) 'trader' means a person-ordinarily engaged in the business of buying and selling agricultural produce as a principal or as a duly authorised agent of one or more principals and includes a commission agent or person ordinarily engaged in the business of processing of agricultural produce." 9. Section 3 provides that 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. Sub-section (1) of section 3 is in these words : "(1) Notwithstanding any thing 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". 10. 10. Section 4(1) provides that, after the expiry of the period specified in the notification issued under section 3, and, after considering such objections and suggestions as may be received before such expiry, and, after holding such enquiry as it may consider necessary, the State Government may, by notification, declare the area specified in the notification under section 3 or any portion thereof to be a market area for the purposes of the Act, in respect of all or any of the kinds of agricultural produce specified in the notification under section 3. Sub-section (2) of section 4 states that, on and after the date of publication of the notification under sub-section (l), 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 byelaws. Under section 6, for every market area the State Government shall, by notification, establish a Market Committee. Section 15 of the Act, which is relevant for the purposes of this case, reads thus: "(1) No agricultural produce specified in the notification under sub-Section (1) of section 4, shall be bought or sold by any person at any place within the market area, other than principal market yard or sub-market yard, or yards established therein; except such quantity as may in this behalf he prescribed for retail sale or personal consumption" (2) The sale and purchase of such agricultural produce in such area shall notwithstanding any thing contained in any law, be made by means of open auction or tender system except in cases of such class or description or produce as may be exempted by the Board". It may be mentioned here that traders in food-grains have been exempted by an order or the Bihar State Agricultural Marketing Board, dated the 15th May, 1974, and they need not be sold by means of open auction. 11. Under section 18, the powers and duties or the Market Committee have been specified. It may be mentioned here that traders in food-grains have been exempted by an order or the Bihar State Agricultural Marketing Board, dated the 15th May, 1974, and they need not be sold by means of open auction. 11. Under section 18, the powers and duties or the Market Committee have been specified. Sub-section (2) of section 18 reads these: "(2) Without prejudice to the generality of the foregoing provisions, a Market Committee 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 licenses in accordance with the rules to traders, brokers, weighmen, measurers, surveyers, 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 interests of the agriculturists and licensees in accordance with the provisions of this Act, and the rules and the bye-laws made thereunder ; (iv) to Act, in the prescribed manner as mediator, arbitrator or surveyor, in all matters of difference, disputes, claims etc. between licensees so 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 yard or yards, to determine the conditions for the use of market and to check and prosecute persons trading without a valid license in the market area; (vi) to bring, prosecute or defend, or aid in bringing, prosecuting or defending any 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" 12. Under section 27, the Market Committee has been empowered to levy and collect market fees on the Agricultural produce bought or sold in the market area, at the rate of rupee one per Rs. 100/- worth of agricultural produce. Sub-section (2) of section 27 prescribes that the market fee chargeable under-sub-section (1) shall be payable by the buyer in the manner prescribed. Sub-section (2) lays down that the fee chargeable under the Sub-section (1) shall not be levied more than once on a notified agricultural produce in the same notified market area. Section 27 A provides the mode of submission of return and assessment of market fee. 13. Under section 52 of the Act, the Bihar Agriculture Produce Markets Rules, 1962 (hereinafter referred to as the "Rules") have been framed. Rule 71(1) of the Rules provides that no person shall do business as commission agent or trader in agricultural produce in a market area except under a license granted by the Market Committee under this rule. Sub-rules (2) to (4) of Rule 71 prescribe the conditions under which a Market Committee may grant a license to the applicant. Under rule 72 the Market Committee can suspend or cancel such license. 14. According to the petitioner-firm, the object of the enactment of the Act, was to provide for the better regulation of buying and selling of agricultural produce, and the different provisions made under the Act, are for achieving the said object. It is for the benefit of the agriculturists and for providing them a market where they could sell their agricultural produce at a reasonable price, eliminating unhealthy competition and loss due to malpractices prevailing in the market and the fees are charged for providing those facilities to the agriculturists concerned. According to the petitioner, it is neither an agriculturist nor does it purchase any article from any agriculturist, and, as such, the provisions of the Act, and the rules cannot be made applicable to the transactions entered into by the petitioner. According to the petitioner, it is neither an agriculturist nor does it purchase any article from any agriculturist, and, as such, the provisions of the Act, and the rules cannot be made applicable to the transactions entered into by the petitioner. In this connection, learned counsel for the petitioner has drawn our attention to the preamble of the Act, as well as to sub-section (1) of section 3 of the Markets Act; and has submitted that from the preamble and sub-section (1) of section 3 it will appear that the Act, purports to regulate the buying and selling of agricultural produce, and, by necessary implication, it purports to regulate the transactions entered into by agriculturists within the market area. It is difficult to accept this submission, because neither in the preamble nor under sub-section (1) of section 3 there is anything from which it can be inferred that the Act, is to operate only over transactions entered into by' the agriculturists. As already noticed, under' section 4 of the Markets Act, the State Government has power to declare the area specified in the notification under section 3 or any portion thereof to be a market area for the purposes of the Act, in respect of all or any of the kinds of agricultural produce specified in the notification under section 3. From section 6 it appears that a Market Committee has to be established, for every market area, by the State Government, the duties where of have been specified in section 18 of the Markets Act. Under section 18(2)(ii), the Market Committee has "to issue licenses in accordance with the rules to traders, brokers, weighmen, measurers, surveyers, warehousemen and other persons, including persons or firms engaged in the processing, storing or pressing of agricultural produce concerned operating in the market area". In view of section 18(2)(iii) the Market Committee has "to control, regulate and run the market in the interests of the agriculturists' and licensees in accordance with the provisions of this Act, and the rules and the bye-laws made thereunder". Thus, under clauses (ii) and (iii) of Sub-section (2) of section 18, there is specific reference to traders and licensees, which will include the petitioner also. 15. Thus, under clauses (ii) and (iii) of Sub-section (2) of section 18, there is specific reference to traders and licensees, which will include the petitioner also. 15. From section 27 of the Market Act, it will appear that the Market Committee has been authorised to levy and collect market fees on the agricultural produce bought or sold in the market area. No exception has been made in favour of any trader. Once any of the articles notified is "bought or sold" within the market area, by whomsoever it may be, the market fee becomes payable. The poviso to section 27 (1) is also important in that connection. It lays down that when any agricultural produce brought in the market area for the purposes of processing or export is not processed or exported therefrom within twenty one days from the date of its arrival therein, it shall, until the contrary is proved, be presumed to have been bought or sold in the market area. In view of this proviso, any agricultural produce which has been imported from outside the market area for being processed or exported, as is the case of the petitioner, but is not exported within twenty one days, then the presumption is that it has been bought or sold in the market area. The petitioner, admittedly, sells some of such articles, which it has imported from outside the market area, within the market area concerned. In this view of the matter, it is difficult to hold that the transactions made by the petitioner are not covered by the provisions of the Markets Act. Sub-sections (2), (5), (6) and (7) of section 27 contain provisions regarding submission of return by every licensed trader and assessment of the market fee leviable on such traders. Sub-sections (8) and (9) of section 27A prescribe imposition of penalty on the defaulting trader and for suspension or cancellation of his license. Section 27B contains provisions regarding appeal by any trader who is aggrieved by any order passed against him. Section 27B of the Markets Act, enables the Secretary or any officer duly authorised to require any person carrying on business in any kind of notified agricultural produce to produce before him accounts and other documents and to furnish any information regarding the agricultural produce. Section 27B of the Markets Act, enables the Secretary or any officer duly authorised to require any person carrying on business in any kind of notified agricultural produce to produce before him accounts and other documents and to furnish any information regarding the agricultural produce. Rule 71 of the Rule prescribes that no person shall do business as a trader in agricultural produce in a market area except under license granted by the Market Committee, and the procedure and conditions under which a license can be granted. In view of the aforesaid specific provisions relating to the transactions made within the market area by traders, it cannot be urged that the provisions of the Markets Act, are not applicable to traders. The Markets relate to agricultural produce and as such the agriculturists in general are likely to be more benefited. But, it cannot be said that the sole object of the Act, is only to regulate the buying and selling of agricultural produce, when transactions are entered into between one agriculturist and another or between an agriculturist and a trader. In my opinion, the provisions are equally applicable even when a trader sells any article which he has not purchased from any agriculturist in the market area, but, having imported it from outside, sells it in the market to an agriculturist or to any other buyer, including a trader. I am supported in this view by two Bench decisions of this Court, in Mangalchand Ramchandra v. State of Bihar and others 1971 B.L.J.R. 1038 and Satya Narain & co. v. Kishanganj Agricultural Produce Market committee and others 1971 B.L.J.R. 1011. 16. It was next contended that, if it is held that the Act, is to apply even to such traders who do not purchase the agricultural produce in the market, but import it from outside and sell it in the market then the provisions regarding realisation of market fee and grant of license will be ultra vires, because it will amount to an unreasonable restriction over the freedom of trade guaranteed under the Constitution. According to learned counsel for the petitioner, such restrictions cannot be saved under clause (6) of Article 19 of the Constitution and they will also be hit by Article 301, which guarantees that trade, commerce and intercourse throughout the territory of India shall be free. According to learned counsel for the petitioner, such restrictions cannot be saved under clause (6) of Article 19 of the Constitution and they will also be hit by Article 301, which guarantees that trade, commerce and intercourse throughout the territory of India shall be free. Article 304(b) enables the Legislature of a State by law to impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that state as may be required in the public interest" According to the petitioner, the realisation of market fee from the petitioner for such transactions cannot be held to be a reasonable restriction on such freedom of trade even within the .meaning of Article 304(b) of the Constitution, as it is not in the interest of the public in general. It has been further submitted that whenever a person shows that certain enactment amounts to a restriction over the fundamental right guaranteed under Article 19(1) (g) or on his right under Article 301, the onus shift on the State to show that the said restriction is reasonable within the meaning of Article 19 (6) and under Article 304 (b). In this connection a reference has been made to the case of Saghir Ahmad and others vs. State of U.P. and others A.I.R. 1954 S.C. 728 and Khyerbari Tea Co. Ltd. and another v. State of Assam and others. A.I.R. 1964 S.C. 925 In the case of Khyerbari Tea Co. Ltd. with reference to the case of Saghir Ahmad, it was observed: "In our opinion, the said decision is a clear authority for the proposition that once the invasion of the fundamental right under Art. 19 (1) is proved, the State must justify its case under clause (6) which is in the nature of an exception to the main provision contained in Art. 19(1). The position with regard to the onus would be the same in dealing with the law passed under Art. 304 (b). In fact, in the care of such a law, the position is some what stronger in favour of the citizen, because the very fact that a law is passed under Art. 304 (b) means clearly that it purports to restrict the freedom of trade. In fact, in the care of such a law, the position is some what stronger in favour of the citizen, because the very fact that a law is passed under Art. 304 (b) means clearly that it purports to restrict the freedom of trade. That being so, we think that as soon as it is shown that the Act, invades the right of freedom of trade it is necessary to enquire whether the State has proved that the restrictions imposed by it by way of taxation are reasonable and in the public, interest within the meaning of Art. 304 (b). This enquiry would be of similar character in regard to clause (6) of Art. 19". (page 929). 17. Learned Solicitor-General, however, has not disputed that once it is shown by any citizen that his rights guaranteed under Article 19 (1) (g) or under Article 301 have been restricted, the State has to justify the restriction to be reasonable; but has submitted that the realisation of market fee cannot amount to a restriction on the freedom of trade guaranteed to the petitioner under Article 19 (1) (g), nor can it amount to a restriction on the said right under Article 304 (b); the provisions are either regulatory or compensatory in nature. He has further submitted that, in any event, restrictions, if any, are reasonable. The provisions regarding the realisation of market fee, as they now stand, have been introduced by Bihar Ordinance no. 124, of 1974, that is during the continuance of declaration of emergency by the President of India. According to learned Solicitor-General, in view of Article 358 of the Constitution, even if it is held to be a restriction on the fundamental right of trade and business, the right under Article 19 being under suspension the provisions of the Markets Act, cannot be tested on that account. Learned Solicitor-General has, however, conceded that the declaration of emergency will not affect the right of the petitioner under Articles 301 and 304 of the Constitution. The Supreme Court in the, District Collector of Hyderabad and others v. M/S Ibrahim and Co. Learned Solicitor-General has, however, conceded that the declaration of emergency will not affect the right of the petitioner under Articles 301 and 304 of the Constitution. The Supreme Court in the, District Collector of Hyderabad and others v. M/S Ibrahim and Co. A.I.R. 1976 S.C. 1276 held that, during, the continuance of the proclamation of emergency, the State was competent to enact legislation, notwithstanding that it impaired the freedom guaranteed by Article 19 of the Constitution and that the State was also competent to take executive action which the State would, but for provisions contained in Article 19 of the Constitution, be competent to take. Their Lordships, however tested the reasonableness of the said order in the light of Articles 301 and 304, as to whether it was a reasonable restriction. If the provisions of the Markets Act, and the Rules are held to be restrictions, then even during the continuance of the proclamation of emergency, the State has to satisfy that the impugned provisions are not hit by Article 301 or Article 304 of the Constitution. 18. I have already referred to the different provisions of the Markets Act, and the Rules, from which it appears that the State Government has established markets for the sale and purchase of agricultural produce, a list whereof is mentioned in the schedule to the Act. For proper supervision of the markets, there are market committees and Agricultural Marketing Board. Section 18 (2) of the Act, quoted above, illustrates some of the duties and functions of the Market Committees. Section 30 of the Act, Prescribed as to how the fund of the Market committee shall be spent, and it includes acquisition of-sites for the market; for maintenance and improvement of market, construction and repairs of buildings, check posts etc. necessary for the purpose of such markets and for the health, convenience and safety of persons using them. 19. In the counter-affidavit filed on behalf of the respondents it has been stated that the petitioner, besides making purchases from outside the state or other places in the State, makes local purchases of agricultural produce within the market area in question and they arc again sold in the market, and, as such, market fee is payable by it on the first sale or purchase taking place within the market. In paragraph 7 of the counter-affidavit it has been set out in detail as to how market yards, as contemplated under the Act, have been established, information centre has been provided, where the prevailing prices of notified agricultural produce are displayed in the market area for the benefit of the traders and agriculturists and as to how the committee is rendering various regulatory market services and has so far eliminated prevailing malpractices, such as, realisation of market charges under' different names. From the said paragraphs it also appears that the committee has set up a dispute sub committee for settling disputes between the buyers and sellers and there is regular inspection over the weights and measures which are to be used in the market. Muzaffarpur area has been selected for development under the World Bank Project and the committee is soon developing the market at a cost' of about rupees 35 lacs and several lacs of rupees are going to be spent for construction of roads, buildings, godowns, bank, post office, waiting sheds, cattle-sheds etc. In that view of the matter, according to the respondent state, the realisation of market fee or the provision relating to grant of license cannot be said to be restrictions within the meaning of Article 304 (b) of the Constitution. In my opinion, there is force in the submissions made on behalf of the respondents. The scope of article 301 and 304 of the Constitution has been considered by the Supreme Court, and reference can be made to the cases of Atiabari Tea co. Ltd. Vs. The state of Assam and others AIR 1961 S.C. 232 and Automobile Transport (Rajasthan) Ltd. Vs. State of Rajasthan and others. AIR 1962 S.C. 1406 . In the case of Automobile Transport, while examining the question as to whether the realisation of taxes on motor vehicles under the provisions of the Rajasthan Motor vehicles Taxation Act, 1951 amounted to a restriction within the meaning of Article 304 (b) of the constitution, in as much as it imposed a restriction on carrying on trade, commerce and intercourse within the territory of India, it was held that the taxes in question were just regulatory measures or measures imposing compensatory taxes for the use of trading facilities and it did not come within the purview of restrictions on carrying under the said Article. In that cases it was observed : "Such regulatory measures as do not-impede the freedom of trade, commerce and intercourse and compensatory taxes for the use of trading facilities are not hit by the freedom declared by Art. 301. They are excluded from the purview of the provisions of part XIII of the Constitution for the simple reason that they do not hamper trade, commerce and intercource but rather facilitate them.” Subba Rao, J. (as he then was), summarising the points at issue relating to Articles 301 and 304 of the Constitution, observed at page 1436 thus : "(2) Art. 301 declares a right of free movement of trade without any obstruction by way of "barriers, inter-State or intra-State or other impediments operating as such barriers. (2) The said freedom is not impeded, but on the 'other hand, promoted, by regulations creating conditions for the free movement of trade, such as police regulations, provision for services, maintenance of roads, provision for aerodromes, wharfs etc. with or without compensation. (3) Parliament may by law impose restriction on such freedom in the public interest; and the said law can be made by virtue of any entry with respect where of Parliament has power to make a law. (4) The State also, in exercise of its legislative power, may impose similar restrictions, subject to the two conditions laid down in Art. 304(b) and subject to the proviso so mentioned therein. (b) Neither Parliament nor the State Legislature can make a law giving preference to one State over another or making discrimination between one State and another, by virture of any entry in the Lists, infringing the said freedom. (6) This ban is lifted in the case of parliament for the purpose of dealing with situation arising out of scarcity of goods in any part of the territory of India 'and also in the case of a' State under Art. 304(b) subject to the conditions mentioned therein". 20. From the scheme of the Markets Act, as well as on the counter-affidavit filed on behalf of the respondents, it is obvious that several facilities have been provided to the traders and agriculturist who sell or purchase articles in the market. Every person cannot derive equal benefit from any particular regulatory or compensatory enactment. Some may derive more while others, who can protect themselves, may not be benefited to that extent. Every person cannot derive equal benefit from any particular regulatory or compensatory enactment. Some may derive more while others, who can protect themselves, may not be benefited to that extent. But, that will not be a ground 1 for holding that the realisation of market fee amounts to a restriction on the freedom of the petitioner to carryon trade, commerce and intercourse. Although the petitioner might be purchasing articles from outside the state or outside the market area, yet when it is carrying on its business within the market area and selling its goods to persons coming to the market, it also derives the benefit of the arrangements made by the Market Committee, and it cannot be said that such provisions are in any way impediments on its freedom of trade. I am inclined to take the view that the provisions in question are regulatory or compensatory in nature and the provisions of Article 301 or 304 (b) are not attracted. 21. In view of my finding above, there is no necessity to decide as to whether, even if the provisions amount to restrictions; they are reasonable and in the interest of the general public. But, assuming for a moment that those provisions amount to restrictions, in view of the fact that the Act, purports to establish markets in different areas of the state with allowed object that agricultural produce can be bought or sold at a reasonable prices in a healthy atmosphere, where different facilities are provided to buyers & sellers, eliminating malpractices and hardship of trade, it cannot be said that the provisions are unreasonable and not in the interest of the general Public Section 18 (2) of the Market Act, prescribes the functions and duties of the Market Committee, and section 30 provides as to how the fund of the Market Committee will be spent and for what purpose. It is apparent that the provision are in the interest of the traders and agriculturists in general. 22. While testing the resasonableness of a provision the interest of the public in general has to be taken into consideration. The provision will not become unreasonable only because the petitioners does not need any protection by any enactment as it is quite competent to look after its own interest. 22. While testing the resasonableness of a provision the interest of the public in general has to be taken into consideration. The provision will not become unreasonable only because the petitioners does not need any protection by any enactment as it is quite competent to look after its own interest. The petitioner in this case, or the petitioners in the other cases, may be in that position, but the market has been organised to serve the interest of different sections of the people. 23. Learned counsel for the petitioner has also drawn our attention to some of the judgments of the Supreme Court as well as of this Court in order to show that this Act, and similar other Acts passed by the several States in India have been upheld because, on proper construction, it had been held that they are meant to serve the interest of the agriculturists Reference in this connection was made to the cases of Thakur Prasad Gupta and others V. State of Bihar and another A.I.R. 1965 Pat. 267 at 270 Krishna Coconut Co. V. East Godavari Coconut and Tobacco Market Committee A.I.R. 1967 S.C. 973 AT 977 ; Lakhan lal and others v. State of Bihar and others A.I.R. 1968 S.C. 1408 at 1412 and Mangalchand Ramchandra v. State of Bihar and others. In my opinion, from the aforesaid judgments it does not appear that the Act, is meant only for the benefit of the agriculturists and it will become ultra vires once it is held that its provisions are applicable even to the transactions entered into by traders. In the case of Mangalchand Ramchandra, in paragraph 15 at page 1050, it was observed: "An agricultural produce, which is mentioned in the notification issued under Sec. 4 (1) may be brought by a trader from a distant place much outside the market area, may be even outside the State of Bihar. If such agricultural produce brought by the trader is also processed to the first sale under sec-15 and is subjected to the levy or fee under sec. 27, it eliminates the chances of a conspiracy among the traders to keep the bid at the auction at a low figure for purchase of the agricultural produce from the agriculturists. The dealer who will be bringing the said commodity from outside will not allow such a combination to fructify among his co-traders as against him. 27, it eliminates the chances of a conspiracy among the traders to keep the bid at the auction at a low figure for purchase of the agricultural produce from the agriculturists. The dealer who will be bringing the said commodity from outside will not allow such a combination to fructify among his co-traders as against him. To test it with reference to the passage which I have quoted above from the judgment of Patanjali Sastry, C.J., As to whether such a restriction on the trader would be an unreasonable one, not sustainable under Art. 19 (6) of the Constitution, it is necessary to emphasise that keeping in view the under-lying purpose of that restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the restriction is not disproportionate to the purpose and is well connected with it. On the other hand, I am inclined to think that it will be unreasonable to pass on the burden of levy of fee to the agriculturist alone as it is permissible under sec. 27 (2) and exempt altogether the Trader from such a burden." In that view of the matter, I am inclined to hold that even if the provisions regarding imposition of market fee and license etc. be taken to be restrictions, they are reasonable restrictions in the interest of the general public within the meaning of Article 19 (6) as well, as Article 304 (b) of the Constitution. 24. In the beginning there was some controversy as to whether or not the previous sanction of the President had been taken in accordance with the proviso to Article 304 of the Constitution. But, during the courses of arguments, it has been admitted on behalf of the petitioner that previous sanction of the President had been taken before the introduction of the bill as well as before the promulgation of the Ordinance in question by which the provisions of the Markets Act, have been amended. 25. On behalf of the petitioner a grievance was made regarding the provisions of sections 31A, 31B and 31C of the Markets Act. 25. On behalf of the petitioner a grievance was made regarding the provisions of sections 31A, 31B and 31C of the Markets Act. Under section 31A, the Market Committee may set up check posts, market gates and other fixtures, at any place in the market area, with a view to prevent evasion of market fees payable under the Act; under section 31 B, the' Secretary or any officer duly authorised by the Market Committee may require any person carrying on business in any kind of notified agricultural produce to produce before him the accounts and other documents; and section 31C empowers any officer or servant of the Market Committee empowered in that behalf by the Chairman of the Market Committee to stop any vehicle or other conveyance and such officer can be allowed to examine the contents of the vehicle or the conveyance and to inspect all records relating to the notified agricultural produce. In my opinion, these provisions are incidental for exercise of proper control by the Market Committee and for the purpose of stopping evasion of market fees, and they cannot be held to be either restrictions or unreasonable restrictions over the exercise of right of freedom of trade by the petitioner. 26. It was then submitted on behalf of the petitioner that the Markets Act, is repugnant to the provision of the Central Act, that is the Essential Commodities Act, 1955 and, orders made thereunder, and, as such, to that extent, in view of Articles 254 of the Constitution, it is void. According to the petitioner, the relevant entries are entry no.26 of List II and entry no. 33 of List III of Seventh Schedule. Under entry no. 26 trade and commerce within the State is in the State List, subject to the provisions of entry no. 33 of List III. Relevant portion of entry no. 33 of List III reads as follows: "Trade and commerce in, and the production, supply and distribution of-X X X (b) foodstuffs, including edible seeds and oils.” According to learned counsel for the petitioner, the petitioner in this cast is a dealer in edible oil and the other petitioners are dealers in foodstuffs, and, as such, the State Government cannot legislate for regulating the trade and commerce in 'foodstuffs, including edible oils, as it has purported to do under the present Act. According to the petitioner, the Essential Commodities Act, has been enacted by Parliament in exercise of its powers under the said entry no. 33 and trade any commerce in ,the articles in question are controlled by the provisions of the said Act, and the orders made thereunder, and the whole field on the subject has been occupied by the Central Act, and the orders made there and there was nothing for the State Government to legislate under entry no. 26 of List II. In this connection again reference was made to the preamble of the Act, as well as section 3 (1) of the Act, to show that the object of the Act, is to regulate the buying and selling of Agricultural produce, and, as such, it is an enactment relating to trade and commerce in foodstuffs and edible oils. In principle, it has to be held that, if the Act, has been enacted under entry no. 26 of List II and the Essential Commodities Act, has completely occupied the field of trade and commerce in foodstuffs and edible oils, then the State Act, will be repugnant, and, as such, void. But, the question is as to whether there is any such repugnancy between the two Acts. In this connection on behalf of the respondents it has been pointed out that there is no question of repugnancy between the Essential Commodities Act, and the impugned Act, as the latter has been enacted under entry no 28. of List II, which is exclusively State subject. 27. Under the Government of India Act, 1935, entry no. 27 of the Provincial Legistative List was as follows :- "Trade and commerce within the province; markets and fairs; money-lending and money-lenders." In the Constitution they are under three entries, entry no. 26 is trade and commerce, entry no. 28 is markets and fairs and entry no. 30 is money-lending and money-lenders etc. If, on a proper construction, it is held that the Markets Act, is covered by entry no. 28, that is, markets and fairs, then the State is fully competent to legislate on the subject and any provision which incidentally regulates the business and trade within such markets will not be beyond its competence so as to make the Act, itself void. 28, that is, markets and fairs, then the State is fully competent to legislate on the subject and any provision which incidentally regulates the business and trade within such markets will not be beyond its competence so as to make the Act, itself void. This aspect of the matter is settled by the judgment of the Privy Council in Parafulla Kumar V. Bank of Commerce Ltd. 74 I.A. 23 and several judgments of the Supreme Court, including A.S. Krishna and others v. State of Madras AIR 1957 S.C. 297 . 28. I have already set out in detail the scheme of the Act, and the different provisions thereof. The preamble of the Act, itself shows that the Act, is meant to regulate buying and selling of agricultural produce and establishment of markets for agricultural produce in the State of Bihar. The notification under sub-section (1) of section 3 is in the nature of a preliminary notification by which the State Government declares its intention of regulating the purchase sale, storage and processing of such agricultural produce in such area, as may be specified in the notification. But, after objections are filed, suggestions are made and considered by the State Government the market is established, in exercise of the powers under sub-section (1) of section 4, by the State Government. All the provisions thereafter are meant for constitution of Market Committee, mode of sale of agricultural produce in the market, elimination of undesirable elements, provisions regarding availability of facilities to the sellers and purchasers in the market. The duties and responsibilities of the Market Committee and the Chairman of the Market Committee the utilisation of the fund of the Market Committee for the benefit of the market and the visitors there to, constitution of Bihar State Agricultural Marketing Board to supervise the functions of the different Market Committees, from which it is obvious that the market is to be established under the provisions of the Act, with the object of regulating the sale and purchase of notified agricultural produce in the interest of the general public. As such, it is difficult to hold that the Act, is meant for regulating trade and commerce falling under entry no. 26 of List II. As such, it is difficult to hold that the Act, is meant for regulating trade and commerce falling under entry no. 26 of List II. In this connection, reliance has, however been placed on behalf of the petitioner on a special Bench decision of the Calcutta High Court in Bhawalka Brother Ltd. vs. Dunichand Rateris AIR 1952 Cal. 740 . In that case, the plaintiff was a merchant who had been carrying on business in Jute goods and had entered into several contracts in connection with the said trade. The Government of West Bengal passed an ordinance for prevention of dealing in jute goods futures. According to the defendants in that case, the settlement contracts, having been made after the promulgation of the Ordinance, were void and unenforceable. In that connection questions arose as to whether the said Ordinance could have been promulgated by the Governor by virtue of the power conferred on him by section 88 of the Government of India Act, and as to whether by the Ordinance in question contracts in general were meant to be affected. It was held that the Ordinance was really aimed at jute trade, which was covered by entry 'Trade and Commerce" in List II, that is Provincial List, and to regulate trade it was necessary to make certain contracts void, and as such, it was intra vires. In my opinion, the said decision is not of much help to the petitioner. From that judgment it is obvious that the Ordinance in question never purported to regulate all contracts, but it wanted to affect only the contracts relating to jute trade. I have already observed that the present Act, never purported to regulate trade and commerce in general, but purports only to establish markets for agricultural produce where trade relating to agricultural produce can be regulated. 29. Learned counsel for the petitioner has referred to the following passage from Halsbury Laws of England, Fourth Edition, at page 762 : "(1) Marketing 1401. Marketing legislation. 29. Learned counsel for the petitioner has referred to the following passage from Halsbury Laws of England, Fourth Edition, at page 762 : "(1) Marketing 1401. Marketing legislation. The scope of the legislation relating to marketing of agricultural and horticultural produce is briefly as indicated below: (l) there is legislation under which the marketing of agricultural or horticultural products by the producers thereof may be regulated by schemes administered by marketing Boards;" The said passage simply refers to the corresponding Agricultural Produce Markets Act, of England in which also there is a provision for establishment of markets relating, to agricultural produce, and it does not in any manner support the case of the petitioner that the appropriate entry in the instant case is entry no. 26, and not 28, of the state List : 30. In my opinion, the present Act, is in pith and substance, meant for establishment of markets in different parts of the State and for regulating sale and purchase of agricultural produce within such markets so that the agriculturists, traders and other purchasers can derive benefit. As such, it has to be held that the State Legislature was competent to legislate over those matters under entry no. 28 of List II. I am supported in this view by the observation in the judgment of the supreme Court in Municipal Committee, Amristar and another v The state of Punjab and others A.I.R. 1969 SC 1100 at 1103 where it was observed that the enactment regarding "the fair in question was covered by entry no. 28 of the State List." 31. In view of my finding above there is no need to consider as to whether the whole field on the subject has been occupied by the Essential Commodities Act. But, as arguments have been advanced on both sides, I propose to indicate the contentions raised. It has been contended on behalf of the petitioner that, under section 3(1) of the Essential Commodities Act, the Central Government, for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices,... But, as arguments have been advanced on both sides, I propose to indicate the contentions raised. It has been contended on behalf of the petitioner that, under section 3(1) of the Essential Commodities Act, the Central Government, for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices,... may, by order, provide for regulating or prohibiting the production, supply and distribution there of and trade and commerce therein." Sub-section (2) of section 3 provides that, without prejudice to the generality of the powers conferred by sub-section (1) an order made thereunder may provide for regulating by licenses, permits or otherwise the storage, transport, distribution and disposal of any essential commodity; for controlling the price at which any essential commodity may be bought or sold and for collecting any information or statistics with a view to regulating or prohibiting any of the aforesaid matters. It has been further contended that, in exercise of these powers, control orders have been made which regulate the sale and purchase of food, grains, edible oils and vegetable oils, and no field is left for, the State Government to legislate covering such matters. Reference to' different clauses of different orders made under the Essential Commodity Act, have been made to show that the provisions have been made to safeguard the interest of the general public and to regulate the transaction in such essential commodities. Learned counsel for the petitioner has also cited the judgment of the Supreme Court in Baijnath Kedia v. The State of Bihar and others AIR 1970 S.C. 1436 where it was held that the provisions of the Mines and Minerals (Regulation and Development) Act. 1957, which had been framed under entry no. 54 of the Union List, completely covered the legislative field inrelation to minerals, including minor minerals, and no scope was left for enactment of the second proviso to section 10 of the Land Reforms Act, touching that field. 32. Learned Solicitor-General, however, urged that both the Acts can operate in their respective fields. He has submitted that no order containing all the provisions of the, present Act, could have been framed in exercise of the powers under section 3 of the Essential Commodities Act. 32. Learned Solicitor-General, however, urged that both the Acts can operate in their respective fields. He has submitted that no order containing all the provisions of the, present Act, could have been framed in exercise of the powers under section 3 of the Essential Commodities Act. He has argued that the orders framed under section 3 of the Essential Commodities Act, are made to meet situations of emergency and scarcity, by regulating supply and distribution of essential commodities, whereas the object of the impugned Act, is to establish markets which are permanent in nature and part and parcel of the scheme of development of social economy. Under the Essential Commodities Act, the authorities concerned or the Central Government are not concerned with any facilities which need to be provided to the sellers, buyers and traders. In my opinion, in view of my aforesaid finding that the Act, is covered by entry no. 28 of List II. there is no need to record any finding on this point. 33. Learned Solicitor-General has also submitted that, even fit is assumed that there is any such repugnancy in the instant case, there has been substantial compliance with the provision of sub-Article (2) of Article 254 of the Constitution. Admittedly, the bill had been introduced in the Legislature of the State with previous sanction of the President and, before issuing the different Ordinance amending the provision of the Market Act, previous sanction of the President has been taken, and according to learned Solicitor-General, that sanction should amount to assent of the President as required by sub-Article (2) of Article 254. This argument had been advanced as an alternative argument and there is no need to decide it in view of my finding on the legislative competence of the State Legislature. 34. It was lastly submitted on behalf of the petitioner that although section 27 of the Markets Act, speaks of levy and collection of market fees on the agricultural produce bought or sold in the market areas, yet, in substance, it is a tax at least so far as the petitioner and similar other traders are concerned. According to the petitioner it is not deriving any benefit from the provisions of the Act, nor does it require any protection, and unless there is corresponding benefit, the amount realised has to be held as tax. According to the petitioner it is not deriving any benefit from the provisions of the Act, nor does it require any protection, and unless there is corresponding benefit, the amount realised has to be held as tax. This question has been decided by several decision of the Supreme Court where it has been held that market fees realised under the Agricultural Produce Markets Act, are fees, and not taxes and' a reference can be made to the judgment 01 the Supreme Court in Lakhan Lal and others v. State of Bihar and others A.I.R. 1968 S.C. 1408 at 1412 which relates to the Act, in question. This distinction between 'fee' and 'tax' was also pointed out in Mohammad Hussain Gulam Mohammad v. The State of Bombay A.I.R. 1962 S.C. 97 and Shri Krishna Coconut Co. v. East Godavari Coconut and Tobacco Markets Committees. In the Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Tirtha Swaminar A.I.R. 1954 S.C. 282. It was indicated that fee is generally defined to be charge for special service rendered to the individual by some Governmental agency, where as tax is levied as part of the common burden. It was further pointed out that, if the money paid is set apart and-appropriated specifically for performance of works which are for special benefit of certain types of individual and is not merged in the public revenues for the benefit of general public, it could be counted as fees and not tax. A bare reference to section 30 of the Markets Act, will show as to how the fund of the Market Committee is to be appropriated, which leads to the irresistible conclusion that it is fee and not tax. I have already held that it is of little consequence as to who is deriving more facilities or requires them. If the amount realised is to be spent for the facilities of sellers and buyers within the market area, which will include traders also, then it has to be held that there was sufficient quid pro quo for levies and they satisfy the test of 'fee'. 35. If the amount realised is to be spent for the facilities of sellers and buyers within the market area, which will include traders also, then it has to be held that there was sufficient quid pro quo for levies and they satisfy the test of 'fee'. 35. During the course of arguments it was brought to our notice on behalf of the petitioner that, although under section 8(3) of the Markets Act, the term of office of the members, including the Chairman and the Vice-Chairman, of the first Market Committee is one year and that of the second and sub-sequent Market Committees is three years under section 9 (5) and the old market Committees is to continue only till new market Committee is constituted, yet in some cases the market committees constituted more than decade ago are still continuing and no steps have been taken for constitution of new market committees. Learned Counsel appearing for the respondents did not challenge this statement. The authorities concerned should have taken steps for constitution of the subsequent market committees after expiry of the term of the members the Chairman and the' Vice-Chairman of the earlier market committees. It is expected that within six months the new market committees will be constituted in accordance with the provisions of the Market Act. In case no such market committees are constituted within the aforesaid period, it will be open to the petitioners or to anyone else concerned with the market in question to move this Court for an appropriate order or direction. 36. On a consideration of the facts and the circumstances, in my opinion, no case for exercise of the powers of this Court under Article 226 or 227 or the Constitution has been made out by the petitioner. 37. So far as the petitioners in the other writ applications are concerned, no separate argument was advanced on their behalf, and the arguments advanced on behalf of the petitioner in C.W.J.C. No. 1084 of 1974 were adopted on their behalf also. As mentioned above, in some of the writ applications the petitioners are dealers in foodgrains and some are dealers in edible oils. Some questions of law have been raised on their behalf and the facts are practically identical, making a grievance that no facility is provided on behalf of the Market Committees to them. As mentioned above, in some of the writ applications the petitioners are dealers in foodgrains and some are dealers in edible oils. Some questions of law have been raised on their behalf and the facts are practically identical, making a grievance that no facility is provided on behalf of the Market Committees to them. In the counter-affidavits filed on behalf of the respective Market Committees it has been stated that the provisions of the Markets Act, are being implemented by providing different facilities in the market areas concerned and very soon other facilities are going to be provided. It is always open to any aggrieved person to move the Bihar State Agricultural Marketing Board and other authorities when any of the Market committee fails to perform the functions enjoined on it by the statute; but some time is required before the general public can derive full benefit of the scheme under the market Act. 38. In the result, as these writ applications are dismissed; but, in the circumstances, there will be no order as to costs. Applications dismissed.