JUDGMENT : Brishketu Saran Sinha, J. - In all these applications the validity of the explanation to section 2 (p) (i) as inserted by the Bihar Agricultural Produce Markets (Amendment) Act, 1982, which came into force with effect from 30th April, 1982, has been challenged. Hence, all these applications have been heard together and this JUDGMENT : will govern them all. 2. The Bihar Agricultural Produce Markets Act, 1960, (hereinafter called the Markets Act) was enacted 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. Long time back it was found that cultivators suffer from many handicaps. They are usually illiterate and in general ignorant of prevailing prices in the markets and the most helpful solution for the cultivators marketing difficulties seemed to lie in the improvement of communications and the establishment of regulated markets. The Act, therefore, is the result of a long exploratory investigation by experts in the field and is conceived and enacted to regulate the buying and selling of crops by providing, suitable and regulated market, and by eliminating middlemen and bringing face to face the producer and the buyer to enable them to meet on equal terms. This would, if not completely eradicate, at least reduce the scope of exploitation in dealings. This legislation, rules and the bye-laws framed thereunder have a long term target of providing and work of markets wherein facilities of correct weighment are ensured, storage accommodation is provided and equal powers of bargaining ensured as well. The market fee which is to be realised, is to be spent over the facilities to be provided in such markets and, as such, the State Legislature is competent to legislate over those matters under Entry 28 of List II of the Seventh Schedule of the Constitution. The Act provides for markets and, includes a market yard and sub-market yard or yards and the market area means any area declared to be a market area under section 4 of the Act. A market committee has to be established under section 6 and provision has also been made for assessment of sale and for levying of fee thereon. A licensee means a person or association, firm or company grunted a license under the Act. A market committee has to be established under section 6 and provision has also been made for assessment of sale and for levying of fee thereon. A licensee means a person or association, firm or company grunted a license under the Act. Section 27 is the charging section which provides that the Market-Committee shall levy and collect market fees on the agricultural produce bought or sold in the market area, at a rate provided therein. Although the fee is payable by the buyer but for the sake of convenience of collection it has to be collected and paid by the licensee. A proper machinery has been devised for the realisation of fees to avoid evasion. 3. If the trader behaves with candour, no problem arises. However, if he is shifty, his crafts and outwitting shuffles pose the problem of peering through them and plumbing them. One such provision is the explanation added to section 27 of the Act which, so far as is relevant to mention here, provides that all notified agricultural produce leaving a market area, shall unless the contrary is proved be presumed to have been bought or sold in such area. The purpose is that normally if the goods have been consigned from the market to a different place, then, under the legal fiction; he is not to be heard to say that there has been no sale of goods in the market. It would be assumed that there has been such a sale which he has suppressed and the explanation introduces a presumption or legal fiction as a piece of evidence relevant for finding out whether there has been a buying or selling in the market. It is, of course, open to the trader to disprove the fact entitling him to be absolved of the liability. 4. Not satisfied with the above provision, by the Amending Act of 1982, for the first time by engrafting in it section 2(p) (i), the definition of 'Sale' was provided for. It is, of course, open to the trader to disprove the fact entitling him to be absolved of the liability. 4. Not satisfied with the above provision, by the Amending Act of 1982, for the first time by engrafting in it section 2(p) (i), the definition of 'Sale' was provided for. It reads thus:- "2(p) (i) :- 'Sale' means any transfer of property in goods for cash or deferred payment or other valuable consideration and shall include transfer or acquisition of goods on hire purchase or under any other system in which payment of valuable consideration is made by instalment notwithstanding the fact that the seller retains title in goods as valuable security of payment of consideration or for any other reason. Explanation. - Notwithstanding anything contained in any law for the time being in force sale shall be deemed to haw taken place for the purpose of this Act within a market area where the goods are transferred from the Principal to his selling-agent or to the Arhatia within the market area or outside the market area." It is this explanation which is the subject of controversy in all these applications. 5. Mr. G. C. Bharuka, appearing on behalf of the petitioners, has challenged the validity of this legislation on various grounds, namely, (i) It is said that the extension of the Act by the explanation relates to inter-State trade and is beyond the competence of the State Legislature, being violative of Entry 42 of List I of the Seventh Schedule; (ii) The meaning of 'sale' as provided in the explanation goes beyond the meaning of 'sale' as provided in the Sales of Goods Act and is, therefore, beyond the competence of the State Legislature; (iii) The impugned explanation over reaches the object and purpose of the Act and, therefore, amounts to unreasonable restriction on Article 19 of the Constitution; and, (iv) The impugned explanation seeks to impose fee on sale outside the State and is hit by Article 286 of the Constitution. It is not necessary to consider in detail all these arguments of the learned counsel. 6. It is not necessary to consider in detail all these arguments of the learned counsel. 6. In the case of the State of Madras v. M/s Gannon Dunkerley & Company (Madras) Limited (A.I.R. 1958 Supreme Court 560) in relation to the Madras General Sales Tax (Amendment) Act No. XXV of 1947, the question which fell for consideration was the construction of Entry 48 in List II of the Seventh Schedule to the Government of India Act, 1935 which was "Taxes on the sale of goods". By the amendment the definition of 'sale' in section 2(h) was enlarged to include "a transfer of property in goods involved in the execution of a works contract". The validity of this provision was challenged. After a detailed consideration of the relevant provisions it was held that "sale of goods in Entry 48 is a nomen juris, its essential ingredients being an agreement to sell movables for a price and property passing therein pursuant to that agreement. In a building contract which is, as in the present case one, entire and indivisible—and that, is its norm, there is no sale of goods and it is not within the competence of the Provincial Legislature under Entry 48 to impose a tax on the supply of the materials used in such a contract treating it as a sale". Entry 54 in the Seventh Schedule in List II provides for taxes on the sale or purchase of goods other than newspapers, subject to the provisions of Entry 92A of List, I. 7. In the case of Ram Chandra Kailash Kumar & Company v. State of Uttar Pradesh (A.I.R. 1980 Supreme Court 1124) various points were raised with regard to the U.P. Krishi Utpadan Mandi Adhiniyam (25 of 1964). One of the questions raised therein was that no market fee could be charged if only goods are brought in the market area and dispatched outside it without there taking place any transaction of purchase and sale in respect of those goods. Untwalia, J. speaking for the Constitution Bench, held that this point urged on behalf of the appellants was well-founded and must be accepted as correct and that if no transaction of sale takes place in a particular market area, no fee can be charged by the market committee of that area. Untwalia, J. speaking for the Constitution Bench, held that this point urged on behalf of the appellants was well-founded and must be accepted as correct and that if no transaction of sale takes place in a particular market area, no fee can be charged by the market committee of that area. It was further observed that if goods are merely brought in any market area and are dispatched outside it without any transaction of sale taking place therein, then no market fee can be charged. It was also noticed that if the bringing of the goods in a particular market area and their despatch therefrom are a result of transaction of purchase and sale taking place outside the market area, it is plain, no fee can be levied. Similarly, in a Bench decision of this Court in Mangalchand Ramchandra and others v. State of Bihar and others (1971 BLJR 1038) it was observed that if goods have been brought into the market proper but there is no sale even once, no market fee can be charged on the goods sold outside the market area and the artificial definition of sale, given in the explanation, cannot cover such cases. It was further pointed out in that case that if the transaction of sale has really taken place within the meaning of Sale of Goods Act outside the market area then the mere fact of doing something as mentioned in the explanation cannot make such a sale, a sale having taken place within the market proper or market area. 8. On the basis of the aforesaid authorities it can be safely concluded that if the literal meaning is given to the explanation to Section 2(p)(i) of the Act then it would be ultra vires the State Legislature because by this explanation mere transfer of the goods from one place to another or from one market area to another would amount to sale which would be beyond the definition of sale as provided under the Sale of Goods Act. Rightly neither Mr. Balbhadra Prasad Singh nor Mr. Ramjanam Ojha, appearing for the respondents, have contended that the literal meaning would be covered by clause 29A of Article 366 of the Constitution as amended by the Forty-sixth Amendment Act, 1982. 9. Rightly neither Mr. Balbhadra Prasad Singh nor Mr. Ramjanam Ojha, appearing for the respondents, have contended that the literal meaning would be covered by clause 29A of Article 366 of the Constitution as amended by the Forty-sixth Amendment Act, 1982. 9. Being conscious of the aforesaid difficulty and also recognising the fact that an unscrupulous trader, at times, takes advantage of windows and vents in a legislation and by shifts and crafts avoids payment on sale. Mr. Balbhadra Prasad Singh, 'who' appeared for some of the Market Committees before us submitted that the explanation should be read in a manner so as to make it effective and courts should prefer a construction which keeps the statute within the competence of the legislature. He, therefore, submitted that the provision should be construed in such a manner that the construction results in validity rather than its invalidity and gives effect to the manifest intention of the legislature. According to learned counsel, the explanation was not very artistically drafted and it lays down a presumption or a piece of evidence to find out, whether there has been a sale or not. In other words, submission is that the explanation provides that where goods are transferred from the principal to his selling agent or to his Arhatia within the market area or outside the market area the presumption will be that there has been a sale but that presumption can be rebutted by the trader by disproving that there had been a sale. In the case of Sri Krishna Coconut Company v. East Godawari Coconut and Tobacco Market Committee (A.I.R. 1967 Supreme Court 973), Shelat, J. speaking for the Court, held that it is a well-settled rule of construction that the Court should endeavour as far as possible to construe a statute in such a manner that the construction results in validity rather than its invalidity and gives effect to the manifest intention of the legislature enacting that statute. The object in passing the Market Act was to prevent the mischief of exploitation and that producers got fair price for their goods arid with that object the Act has set up market yards and market areas for the maintenance of which fee has been levied. 10. The problem can be considered from another point of view also. 'Sale' is defined under section 2(p) (i) of the Act of which the explanation has been added. 10. The problem can be considered from another point of view also. 'Sale' is defined under section 2(p) (i) of the Act of which the explanation has been added. Literally construing, the explanation would enlarge the definition of sale as provided earlier which is also usually not permissible as it cannot enlarge the content of the section itself. Therefore, explanation must be read so as to harmonise with and clear up any ambiguity in the main section and the purpose of the explanation was not to enlarge the scope of section 2(p) (i) of the Act (see the case of Bihta Co-operative Development and Cane Marketing Union Limited and another v. Bank of Bihar and others ( 1967 (1) S.C.R. 848 ). This conclusion also finds support from the explanation given to section 27(1) of the Act itself where it is provided that all notified agricultural produce leaving a market area, shall unless the contrary is proved be presumed to have been bought or sold in such area. Therefore, reading the explanation along with the definition, it has, got to be held that the explanation raises a presumption which can be disproved by the trader and it is a matter which has to be determined by the competent assessing authority under the Act. 11. Having interpreted the law on the point, 1 will now proceed to consider the differeut cases. C. W. J. C. No. 2812 of 1982 :- The two petitioners in this application are licensees within the meaning of the Market Act and the rules, of the Barh Market area. By annexure 1 Gated 21st May, 1982, they have been asked to pay fees on despatches of Dal made to them Arahatia or commission-agent at Siliguri, Calcutta etc. In the view that I have taken, the aforesaid notice (annexure 1) is quashed with liberty to the Market Committee to give the petitioners an opportunity to show that no sale took place in the market area. C.W.J.C. 3869 of 1983 :- The petitioner in this application is a partnership firm carrying on business in Patna City through its partner Lakshmi Narain. The petitioner has a Dal mill and falls within the market area of the Agricultural Produce Market Committee, Patna City. C.W.J.C. 3869 of 1983 :- The petitioner in this application is a partnership firm carrying on business in Patna City through its partner Lakshmi Narain. The petitioner has a Dal mill and falls within the market area of the Agricultural Produce Market Committee, Patna City. On inspection on 15th December, 1982, it was found that the business premises of the petitioner firm had made despatches of agricultural produce to places outside the market area like Kharagpur, Siliguri etc. and the consignment was to self, on the basis of which a notice was issued to the petitioner on 7th January, 1983 to pay market fees on those area. By Annexure 4 the Secretary of the Market Committee has directed the petitioner to pay fees on those areas within the time prescribed in that notice which is dated 22nd July, 1983. The prayer in this application is to quash the aforesaid notice of payment. In view of what I have held above, the aforesaid notice is quashed with a direction that it will be open for the Assessment Committee to give an opportunity to the petitioner to show that no sale has taken place. C.W.J.C. 4968 of 1983 :- The petitioners are licensees for foodgrains and have their Arhat in Barbigha Market Area. By annexure 1, a notice dated 21st May, 1982, they have been directed to pay market fee on despatch of agricultural produce to their respective Arahatia at places outside Barbigha Market area. The aforesaid notice, annexure 1, has got to be quashed with liberty to the assessment sub-committee concerned to give the petitioners an opportunity to show that the aforesaid despatches are not sale within the meaning of the Act. C.W.J.C. 5913 of 1983 :- The two petitioners by annexure 1 and 1/a notice dated 21st May, 1982, have been asked by the Jehanabad Market Area Committee to pay less on despatches outside that area to their respective Arahatias. As in the other case, the notices, annexures 1 and 1/a of this case are also quashed with liberty to the Market Sub-Committee to give an opportunity to the petitioners to show that the despatches are not sales. C. W. J. C. 136 of 1984 :- The petitioner is a partnership firm in Patna City Market Area. By a notice dated 14th December, 1983, copy of which is annexure. C. W. J. C. 136 of 1984 :- The petitioner is a partnership firm in Patna City Market Area. By a notice dated 14th December, 1983, copy of which is annexure. 3, the petitioner has been directed to pay a fee of Rs. 2853/- with regard to despatches from its Patna office to its Darbhanga and Katihar branches. The aforesaid notice is quashed with a direction to the Assessment Sub Committee to give an opportunity to the petitioner to show that they are not sales within the meaning of the Act. 12. In the result, all the writ applications are allowed and the impugned annexures are quashed with liberty to the Market Committees concerned to make assessment of fees only after giving the petitioners an opportunity to show cause in the matter as indicated above. In the circumstances, there would be no ORDER :as to costs.