Research › Browse › Judgment

Calcutta High Court · body

1976 DIGILAW 340 (CAL)

Manindra Nath Roy v. State of West Bengal

1976-09-22

AMIYA KUMAR MUKHERJI

body1976
JUDGMENT Petitioners are Brokers/Commission Agents/Measurers/Surveyors/ Traders/Warehousemen. They are carrying on their business in Arambagh And Chandernegore Sub-Divisions within the District of Hooghly. Their places of business are situated at Tarakeshwar, Champadanga, Pusura, Amgao, and Chiladangi within the said Hooghly District. By a notification dated 16th of December, 1975 the State Government in pursuance of provisions of section 1(3) of the West Bengal Agricultural Produce (Regulation) Act, 1972 (hereinafter referred to as the “Act”) appointed 6th of December, 1975, as the date on which the said Act shall come into force in Pusurah, Khanakul Arambagh, Tarakeswar, Haribal, Jangipara Police-Stations in the district of Hooghly. In exercise of the powers conferred by Section 3(1) of the Act, the State Government by a notification dated 6the December, 1975 declared those area referred to hereinabove to be the “market area” within which purchases and sales of agricultural produce were to be regulated. By another notification dated 16th December, 1975 in exercise of powers conferred in sub-section (1) of Section 5 of the said Act, a market committee known as Chapadanga Regulated Market Committee in respect of the said market area was formed. Under sub-section (4) of section 5 of the Act the State Government appointed with effect from 16th December 1975 nine persons as members of the said Chapadanga Regulated Market Committee. Thereafter, on the 8th of April, 1976 a notice was issued by the said Market Committee asking the petitioners to take out licences within ten days from the receipt of the said notice at the rates mentioned therein. Subsequently on 29th of May, 1976 another notice was issued informing the petitioners that the said Committee in a meeting held on 21.5.76 unanimously resolved to collect “Market fees” as per section 17 of the said Act from the buyer @ Rs.1/- per 100/- rupees worth of transaction of Jute, Potato, Onion, Vega tables, Paddy, Rice etc. from the 1st of June, 1976 at their premises. The petitioners were also requested as per Rule 8(18) of the West Bengal Agricultural Produce Marketing (Regulation) Rules 1973 to maintain from 1st of June, 1976 the Registers and Accounts daily in the Proforma as mentioned therein. The petitioners being aggrieved by the notification of the State Government constituting the Market Committee and the subsequent two notice issued by the said Market Committee filed this application under Act. 226 of the Constitution on July 12, 1976. 2. The petitioners being aggrieved by the notification of the State Government constituting the Market Committee and the subsequent two notice issued by the said Market Committee filed this application under Act. 226 of the Constitution on July 12, 1976. 2. Before issuing any Rule, I directed to serve a copy of this application upon the learned Government Pleader. An affidavit of service has also been filed on the 26th of July, 1976. The respondents had entered appearance through Mr. Kalyanmoy Ganguly and Mr. Keder Natb Laha. An affidavit-in-opposition has also been filed on behalf of the respondents and affirmed by Nripendra Bikas Das Gupta, the Additional Director of Agriculture (Marketing). 3. Mr. Chakravorty, appearing on behalf of the petitioners contended that the notification of the State Government dated 16th December, 1975 constituting the Market Committee with nine persons was illegal and ultra vires sub section (3) of section 5 of the Act inasmuch as the said tub-section (3) of Section 5 of the Act provides that a Market Committee would consist or fit least eighteen members. According to Mr. Chakravorty as the Market Committee was illegally constituted contrary to the provisions of the Act, all subsequent actions and notices issued by the said Market Committee were also illegal and without jurisdiction. 4. It is contended by Mr. Gupta, appearing for the Respondents that nine vacancies in the Market Committee are sought to be filled up. These vacancies are permissible under section 11 of the Act. No action of a Market Committee can be called in question merely by reason of vacancy in or any defeat in the constitution of the Market Committee at the time of taking such action. 5. It is further contended that a Committee consisting of all the persons as mentioned in sub-section (3) of section 5 of Act could not be possibly constituted inasmuch as clause (f) of sub-section (3) of Section 5 provides that two persons representing the licence-traders doing business in the agricultural product in market area are to be appointed. Unless a market committee is formed and the licences are granted, the representatives of the licences traders could not be appointed. According to Mr. Gupta for the harmonious construction of these two sections viz. Unless a market committee is formed and the licences are granted, the representatives of the licences traders could not be appointed. According to Mr. Gupta for the harmonious construction of these two sections viz. sub-section (3) of section 5 and section 11 of the Act, it is implicit that a market committee could be constituted with less than the number of numbers as laid down in the Act and as such the decision taken by such committee could not be questioned in view of section 11 of the Act. 6. A Market Committee must consist of at least 18 members in terms of sub-section (3) of Section 5 of the Act. That sub• section is not controlled by section 11. The State Government in sub-section (4) of Section 5 may increase the number of these members. But there is no provision in the Act by which the State Government can decrease the members as laid down in sub-section (3) of section 5. Section 9 deals with vacancy of members of Market Committee. Particular instances have been laid down in that section when a vacancy would occur in the office of a member of a market committee. Section 10 deals with removal of member. So, "existence of any vacancy or any defect in the constitution" of the market committee as mentioned in section 11 of the Act is not such kind of vacancy or defect in the market committee as contemplated in sections 9 and 10 of the Act. The licence-traders have not been defined in the Act. Section 13 of the Act lays down the procedure for granting licence to various classes of traders. Sub-section (1) of section 13 of the Act provides that after six months from the declaration of any area as market area, no person shall within the market proper carry on business or act as a trader/commission agent etc. except under and in accordance with the prescribed terms and conditions of a licence issued in this behalf by the market committee. So, a market committee is required to be constituted before it can grant licence to traders under section 13(2) of the Act. Accordingly, two persons representing "licence traders" doing business could not be those traders to whom licences are to be granted under section 13(2) of the Act. So, a market committee is required to be constituted before it can grant licence to traders under section 13(2) of the Act. Accordingly, two persons representing "licence traders" doing business could not be those traders to whom licences are to be granted under section 13(2) of the Act. In clause (f) of section 5(3) of the Act licence-traders are those traders who are already holding licences under any other law for the time being in force. In my opinion, the subsequent notifications and the directions issued by the so-called market committee are not protected under section 11 of the Act inasmuch as the initial constitution of the market committee is invalid and contrary to the provisions of sub-section (3) of section 5 of the Act. Accordingly this application must succeed. 7. Let a Rule to be issued in terms of prayer (a) to the petition. As the respondents have already entered appearance, the service of the Rule upon the respondents is waived. This Rule be treated as on to-day's list. 8. In the result, this Rule is made absolute. The impugned notifications issued by the State Government dated 16th December, 1975 which is Annexure "E" to the petition and the notices dated 8.4.76 and 29.5.76 issued by the Chairman, Market Committee are quashed. 9. Let a Writ of Mandamus be issued against the respondents directing them not to give effect to such notifications and the notices. There will be no order for costs.