Research › Search › Judgment

Rajasthan High Court · body

2005 DIGILAW 2003 (RAJ)

Jai Singh v. State of Rajasthan

2005-08-02

R.S.CHAUHAN

body2005
Judgment Rajesh Balia, J.-Heard the learned Counsel for the parties. 2. This petition has been placed before the Division Bench in pursuance of the matter having been placed the Honble Chief Justice by the learned Single Judge for reconsidering the Judgment of another Single Bench dated 25.07.1996 rendered in S.B. Civil Writ Petition No. 704/1987, M/s National Bamboo Traders vs. State. 3. The petitioner had challenged the Notification dated 24.09.1986 (Annexure-4) by which the commodity Bamboo has been included in the Schedule appended to the Rajasthan Agricultural Produce Market Act, 1961 (hereinafter referred to as the Act of 1961) amongst category item “Forests Produce” at Serial No. 9 in the schedule. The petitioners have also challenged the levy of market fee on “Bamboos” and “Ballis” inter alia on the ground that there being no declaration under Section 4 of the Act of 1961 establishing a market for agricultural produce stated in the Notification dated 09.06.1987 issued under Section 3 of the Act of 1961 declaring the intention of the State Government to regulate trade in commodities mentioned therein including “Bamboos” and “Ballies” inter alia on the ground that subsequent to Notifications dated 09.06.1987 under Section 3 of the Act, no notification under Section 4 for setting up the agricultural market area for the commodities mentioned in Notification dated 09.06.1987 having been issued, the trade in the aforesaid commodities did not come to be regulated under the Act, and therefore, no market fee was payable. 4. It has further been brought to our notice and about which there is no dispute that subsequent to filing of the writ petition, the inclusion of Bamboo in the Schedule as forest produce has been withdrawn vide Notification dated 23.05.2005 and the commodity known as Bamboo (Baans) is now no more to be regulated by the Act of 1961. 5. Before the learned Single Judge, it was contended by the respondents that inclusion of Bamboo amongst the agricultural produce in the schedule appended to the Act had earlier been upheld by this Court by a learned Single Judge in National Bamboo Traders Association vs. State of Rajasthan & Ors., S.B. Civil Writ Petition No. 704/1987 decided on 25.07.1996. 5. Before the learned Single Judge, it was contended by the respondents that inclusion of Bamboo amongst the agricultural produce in the schedule appended to the Act had earlier been upheld by this Court by a learned Single Judge in National Bamboo Traders Association vs. State of Rajasthan & Ors., S.B. Civil Writ Petition No. 704/1987 decided on 25.07.1996. Therefore, validity of Notification dated 24.09.1986 having already been upheld by this Court, it was not open to be challenged again and on the basis of that Judgment since “Bamboo” has rightly been included in the Schedule enumerating the list of agricultural produce, it has rightly been subjected to market fee. However, the fact that after notification under Section 3 giving out intention of the State Government to regulate the trade of sale and purchase of commodity known as Baans and Ballies in the area notified under Section 3 of the Act of 1961, calling upon objections, if any, from the different quarters, no notification under Section 4(a) was issued to declare any area as market area for trade in Bamboos and Ballies. 6. The contention by the learned Counsel for the petitioners before the learned Single Judge was that Bamboo being a forest produce could not have been notified as agricultural produce by the State Government particularly keeping in view the object of the Act which was primarily meant for benefiting the agriculturists in the State as paramount owner of all natural resources and natural products of the State, and, therefore, inclusion of Baans and Bamboo as forest produce was beyond the scope of the Act of 1961. 7. In National Bamboo Traders case (Supra), the petitioners had challenged the Notification dated 24.09.1986 contending that the Baans or Bamboo could not have been included in the agricultural produce. They also challenged the recovery of market fee from the petitioners by the Agricultural Produce Market Committees in respect of sell of Bamboos. The learned Single Judge, while upholding the inclusion of Bamboo as agricultural produce has concluded that under the same notification all others, except the petitioners were paying the market fee, the Government has power under Section 40 of the Act which has been rightly exercised and this Court will be slow in interfering with such discretion and held that the petitioners must be held liable to pay market fee. 8. 8. Another Judgment by a Single Bench of this Court in S.B. Civil Writ Petition No. 2652/2001 dated 08.08.2003 has also been placed before us for perusal in support of the contention made by the respondents wherein by a short order, the learned Single Judge opined that in view of the notification, the bamboos and dry tree branches having become agricultural produce, the petitioner is liable to obtain licence and pay fees. 9. However, the learned Single Judge hearing this petition was of the opinion that there is substance in the submission made by the learned Counsel for the petitioner that inclusion of any commodity in the schedule of Act of 1961 is only a declaration of that produce to be agricultural produce as defined under Clause (i) of Sub-section (1) of Section 3 of the Act of 1961. Once a commodity is declared as agricultural produce, the restriction can be imposed by following the procedure under Sections 3 and 4 of the Act of 1961 only. The power under Section 40 given to the Government is only enabling power by which the State Government without amending the Act itself , can amend the part of the Act, i.e., Schedule appended to the Act which contains the list of the agricultural produce. There being no dispute about the fact that no notification under Section 4 had been issued by the State Government, after publishing notification under Section 3. In view thereof , the learned Single Judge directed the matter to be placed before the Honble Chief Justice to assign the hearing of the case to appropriate Bench to consider the case in the light of earlier decision dated 25.07.1996. 10. The first contention which has been raised by the learned Counsel for the petitioner is that the Notification dated 24.09.1986 for including Bamboo in the list of agricultural produce enumerated in Schedule was itself invalid. The contention is founded on the premise as noticed above that Act being enacted for the purpose of giving benefit to the agriculturalists, it could extend only to the agricultural produce which is grown or produced by the agriculturists as defined under Sub-section (2) of Section 2 of Act 1961 and not on the natural growth of produce in any form which otherwise belongs to the State. This having not been enacted for the benefit of the State Government as owner of all natural sources and products therefrom which falls within the domain of State as natural product cannot be included in the Schedule of agricultural produce for regulating its trade. There had to be element of human endeavour in producing any article before it can be included in the Schedule as agricultural produce. 11. This broad contention now appears to have of academic interest in view of the withdrawal of Bamboo from the Schedule and our conclusion on the second aspect of the matter namely whether merely on issuance of notification under Section 3, any agricultural produce enumerated in Schedule become subject to regulated trade under the Act of 1961 and amenable to market fee on its trade. 12. However, we are of the opinion that “Forest Products” has been included amongst the commodities enumerated in the Schedule of agricultural produce as distinct category of agricultural produce. 13. The agricultural produce has been defined under Section 2(i) of the Act as under:-“agricultural produce” includes all produce whether of agriculture, horticulture, animal husbandry or otherwise as specified in the Schedule; 14. The definition is wide enough to cover products other than cultivated products within the canvas of agricultural produce. Moreover, the Act does not, for its purpose, include anything and everything which can fall in general descriptive definition to be governed by the Act as agricultural produce. It clearly goes to show that word “otherwise” has been used as ejusdem generis to the preceding expression read with Schedule enacted by the Legislature. The Legislature in its wisdom has not selected every type or every item of agricultural produce to be subject of Act. The enumeration in Schedule is the exhaustive list of categories and produce falling within such categories can be brought under the province of the Act. Since, “Forest Produce” as category of agricultural product has been included in the Schedule by planery legislation and not by a delegate, the question of delegated authority exceeding its power beyond the provisions of the Act cannot arise. Since, “Forest Produce” as category of agricultural product has been included in the Schedule by planery legislation and not by a delegate, the question of delegated authority exceeding its power beyond the provisions of the Act cannot arise. Forest Product having included in agricultural produce by parent legislature and State Government has been empowered to add, amend or delete any item from the Schedule, the inclusion of Baans or Bamboo which is undisputedly the Forest Produce amongst agricultural produce in respect of which regulatory provisions of the Act can be applied, it cannot be said to be ultra vires to the Act or in excess of authority conferred on the delegate. 15. It is not the contention of the learned Counsel for the petitioner that forest produce as a subject is beyond the legislative competence of the State Legislation. The emphasis is to read the definition alongwith the aims and objects of the Act enumerated in the legislation while introducing the bill and the Act. However, the statement of aims and objects can only be read as an aid to interprete the Statutory provision in case of ambiguity, if any, in the provisions made by the Legislature. But where language of the Statute is plain reading and unambiguous, the provisions has to be given effect to. 9.16. In Sub-section (2), the agricultural produce has been defined to include all produces whether of agricultural, horticultural, animal husbandry or otherwise as specified in the schedule. The inclusion of animal husbandry is indicative of the fact that the Act is not confined in its reach to agricultural produce in its narrower sense to cultivated vegetable products only but the Legislature clearly indicated its policy to make applicable the Act to all incidental and ancillary products also which related to vegetable produce of land or ancillary actually integrally dependent on it. The Schedule, thus becomes part of the plannary legislative act alongwith the Act itself . 10.17. While broadly defining the agricultural produce, commodities which exactly have been included amongst the agricultural produce to be subject to Act has been declared by the Legislature itself in the Schedule. In the Schedule appended to the Act, the Legislature divided agricultural produce in ten broad heads, amongst which at Item No. 9, is the “Forest Produce”. 10.17. While broadly defining the agricultural produce, commodities which exactly have been included amongst the agricultural produce to be subject to Act has been declared by the Legislature itself in the Schedule. In the Schedule appended to the Act, the Legislature divided agricultural produce in ten broad heads, amongst which at Item No. 9, is the “Forest Produce”. Initially, the timber and tendu leaves only were included as agricultural produce falling within the category of forest produce as defined under Section 2(1). Thus, the forest produce as such was included in the agricultural produce if we read Section 2(i). The Schedule having detailed broad heads within which its produce falls, also enumerate specific commodities falling under different heads. These details in schedule signifies two aspects very clearly; firstly that agricultural produce has been defined under the Act in its wider sense to include all sorts of vegetations and produce of ancillary activities which is dependent and integrally connected with agriculture. Inclusion of products of animal husbandry is an indication, secondly, unless a commodity is included in the schedule, the provisions of the Act do not extend automatically to any commodity which may otherwise fall within one or the other class of agricultural produce. 118. Hence, inclusion of naturally grown Forest Produce in Schedule of agricultural produce cannot be faulted with. It is conceded by the learned Counsel that if any cultivator takes upon the growing of Bamboo as a matter of profession, it becomes an agricultural produce. This contention is confined only to the naturally grown Bamboos in forest which are extracted and brought to market for sale. It may be noticed that though growth of Bamboo in forest may be natural, but it takes human endeavour to collect them as a marketable commodity for human use. 119. Next question arises is whether on inclusion of any commodity in Schedule becomes automatically subject to provisions of the Act? 120. Apparently, the learned Single Judge in S.B. Civil Writ Petition No. 2652/2001 decided on 08.08.2003 has assumed that once the commodity is an agricultural produce, it is automatically regulated by the Act of 1961. 121. In order to understand the basic scheme of regulation, one has to look at the relevant provisions of the Act. 122. 120. Apparently, the learned Single Judge in S.B. Civil Writ Petition No. 2652/2001 decided on 08.08.2003 has assumed that once the commodity is an agricultural produce, it is automatically regulated by the Act of 1961. 121. In order to understand the basic scheme of regulation, one has to look at the relevant provisions of the Act. 122. While making initial legislative declaration by State Legislature of certain commodities to agricultural produce falling in different classification of agricultural produce stated in the Schedule, it was left to the State Government under Section 40 of the Act to add, amend or delete any of the items of the agricultural produce specified in the schedule by a notification published in the official gazette. Therefore, the inclusion of Bamboo by notification under Section 40 as an agricultural produce falling in the category of forest produce was within the contours of the States authority as delegate of legislature authority and its inclusion in the list of commodities as agricultural produce for the purposes of the Act could have been done by the State in exercise of its power under Section 40 of the Act. 123. However, inclusion of any commodity in the Schedule itself does not make it subject to the regulation, but only makes it amenable to be subjected to regulations, if so desired by the State Government. The extension of regulatory provisions of the Act by declaring any area as market area in respect of any commodity and establishing the markets, sub-markets, market yards etc. and the trade and traders activities confining to such markets has been made subject to procedural safeguards. Section 3 and 4 of the Act combined together unfolds this scheme. It will be apposite to notice the relevant provisions: 3. Notification of intention of exercising control over purchase and sale of agricultural produce in specified area.-(1) The State Government may, by notification in the Official Gazette, declare its intention of regulating the purchase and sale of such agricultural produce and in such area as may be specified in the notification: Provided that no area within the limits of a municipality shall be included in the area specified in such notification except after consultation with the Municipal Board or Municipal Council concerned, as the case may be. (2) A notification under Sub-section (1) shall state that any objection or suggestion which may be received by the State Government within a period of not less than one months, to be specified in the notification, shall be considered by the State Government. 4. Declaration of market area.-(1) 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 may be necessary the State Government may, by notification in the Official Gazette, declare the area specified in the notification under Section 3 or any portion thereof to be a market area for the purposes of this Act in respect of all or any of the kinds of agricultural produce specified in the said notification. (2) Onand after the date on which any area is declared to be a market area under Sub-section (1), no place in the said area shall, subject to the provisions of Section 14, be used for the purchase or sale of any agricultural produce specified in the notification issued thereunder:- Provided that, pending the establishment of a market in such area under Section 9, the State Government may grant, subject to such terms and conditions (as may be specified by a general or special order published in the Official Gazette) a licence to any person to use any place in the said area the purchase or sale of any such agricultural produce. 24. A bare perusal of Section 3 makes it clear that before purchase and sale of any agricultural produce is to be brought under the regulatory provisions of the Act, it is essential that State declares its intention to regulate the sale and purchase of any agricultural produce named in the Schedule. It requires the State Government to issue a notification in the Official Gazette, declaring its intention of regulating the purchase and sale of such agricultural produce and in such area as may be specified in the notification. If the area intended to be notified as market area falls within the limits of a municipality, it shall be included in such notification only after consultation with the Municipal Board or Municipal Council concerned, as the case may be. 25. If the area intended to be notified as market area falls within the limits of a municipality, it shall be included in such notification only after consultation with the Municipal Board or Municipal Council concerned, as the case may be. 25. This notification has clearly to state that any objections or suggestions that may be received by the State Government shall be considered by it. For this purpose, the notice has also to specify the period within which such objections or suggestions shall be received by it, and such period shall not be less than one month. Thus, notification declaring intention to regulate trade of any agricultural produce under Section 3 itself , does not result in making any commodity notified under it subject to regulatory provisions of the Act but such decision can be taken only after expiry of period specified in such notification and after considering all the objections and suggestions received by the State during that specified period. 26. The use of expression “such agricultural produce” points out that produce is to be regulated and the area within which such sale and purchase of any particular agricultural produce is to be regulated, both have to be specified clearly is also an indicator that the extensions of the provisions of the Act and its regulatory provisions to the agricultural produce which is included in the schedule is not automatic. Inclusion in the schedule only provides the field within which the State Government can act for regulating the sale and purchase of such commodity in any market area by following the procedure mandated by the State legislature. It clearly requires that the State Government notifies its intention to do so by giving notice of not less than one month, to provide an opportunity to the affected persons to raise objections or give suggestions in respect of such intention manifested by the State Government in the notification. 27. Thus, bringing any commodity included in Schedule to regulatory provision of the Act to be traded in any market area to be declared for the purpose is a participatory process. Receiving the objections and suggestions in respect of intention of the State Government notified under Section 3 is not an empty formality but such consideration of such objections and suggestions is a condition precedent to take next step. 28. Receiving the objections and suggestions in respect of intention of the State Government notified under Section 3 is not an empty formality but such consideration of such objections and suggestions is a condition precedent to take next step. 28. Thus, preliminary procedure has been prescribed before intention of the State Government to regulate purchase and sale of any agricultural produce or commodity included in the Schedule in any part, area is transmitted into reality. Mere issue of notification under Section 3 does not result in subjecting the agricultural produce notified therein to the regulatory provisions of the Act of 1961. 29. Next step after the Notification under Section 3 inviting objections and suggestions to the intention of the State Government to subject sale and purchase of any commodity in any area to regulatory provisions of the Act is published, is provided under Section 4 of the Act. 30. Section 4 ordains that after the expiry of period specified in the notification issued under Section 3 of the Act and after considering such objections and suggestions as may be received before expiry of such period and after holding such enquiry, as may be necessary, the State Government may, by notification in the Official Gazette, declare the area specified in the notification under Section 3 or any portion thereof to be a market area for the purposes of this Act in respect of all or any of the kinds of agricultural produce specified in the said notification. 8.31. Sub-section (2) of Section 4 further mandates that is only after any area is declared to be a market area in respect of agricultural produce specified in notification issued under Sub-section (1), no place in the said area shall, subject to the provisions of Section 14, be used for the purchase or sale of such agricultural produce specified in the notification. 9.32. On the admitted position, after notification under Section 3 was issued, no notification under Section 4 has been issued by the State Government. Therefore, in respect of “Baans” or for that matter another commodity specified in the Notification dated 09.06.1987, the said commodities did not become subject of regulatory provisions of the Act, nor specified area has been set up as a market area in respect of any of the commodities including “Bamboo” and “Ballies”. 10.33. Therefore, in respect of “Baans” or for that matter another commodity specified in the Notification dated 09.06.1987, the said commodities did not become subject of regulatory provisions of the Act, nor specified area has been set up as a market area in respect of any of the commodities including “Bamboo” and “Ballies”. 10.33. In view thereof , on the plain reading of Sections 3 and 4 together, it must be held that for the purposes of the Act of 1961 though the Bamboo remains an agricultural produce since, its inclusion in Schedule until it was deleted from Schedule vide Notification dated 23.05.2005, it did not come within the province of regulatory provisions of Act of 1961 merely by its inclusion in the Schedule. Since, Baans as a produce has not been subjected to regulations of the Act of 1961 as no market area was declared for it and no market was established in respect of it as an agricultural produce, the sale and purchase price of such agricultural produce cannot be also subjected to market fee. 11.34. The decision in National Bamboo Traders case (Supra), in so far as it concerns the validity of Notification dated 24.09.1986 including the Baans (Bamboo) amongst agricultural produce under the class as forest produce in the schedule, was not erroneous in view of our conclusion as aforesaid. 12.35. However, the learned Single Judge had failed to draw distinction between inclusion of any commodity as agricultural produce in the Schedule on the one hand and whether after such inclusion the commodity is subjected to regulatory provisions by declaring market area for the purpose of regulating its sale and purchase in terms of Sections 3 and 4 of the Act on the other. This error crept in because of rolling the two aspects with one. Learned Single Judge has referred to Notification dated 23.04.1977 referred to in Notification dated 24.09.1986 (Annexure-4). However, it is apparent from the Notification dated 24.09.1986 itself that it refers to earlier Notification dated 23.04.1977 issued under Section 40 amending the Schedule through the same and the impugned notification was only to further amend the Schedule. Notification dated 23.04.1977 was not a notification declaring intention of State to set up any area as market area for regulating sale or purchase of Bamboos. Notification dated 23.04.1977 was not a notification declaring intention of State to set up any area as market area for regulating sale or purchase of Bamboos. It could not have been because Bamboos has been included in the Schedule only w.e.f. 29.04.1986 and no notification in respect of it could have been issued under Sections 3 or 4 earlier thereto. 1.36. We have already noticed that so far as the inclusion of any commodity in the Schedule is concerned, it is within the discretion of the State Government to expand or shrink the Schedule of commodities in respect of which the provisions of the Act of 1961 can be extended and operated. The province of the State Government to extend the provisions of the Act and to regulate the sale and purchase of any commodity does not go beyond the commodities enumerated in the schedule. By taking a general meaning of expression “agricultural produce” and extend the regulatory provisions of the Act by resorting to the procedure prescribed under the Act to any commodity which has not been included in the schedule specifically is not permissible. 2.37. Conversely it is also not correct to assume that a commodity is included in the Schedule of the Act, it automatically becomes a commodity regulated by the provisions of the Act and its sale and purchase is regulated in a manner otherwise provided to the regulated trade in specified commodity in the market area for which such declaration has been made. The inclusion in the schedule of any commodity enables the State Government to extend the provisions of the Act by setting up a market for a particular commodity by taking action under Sections 3 and 4 of the Act. Unless a notification is issued under Section 4, after notification as envisaged under Section 3 has been issued, no market area within the sale and purchase of the commodity in question can be regulated comes into existence under the Act of 1961 and it remains beyond the provisions of the Act until it is so brought within the province of the Act. 38. The contours of the provisions like Sections 3 and 4 of the Rajasthan Act were considered by the Honble Supreme Court in Jan Mohd. Noor Mohd. Bagban vs. The State of Gujarat, Writ Petition No. 3/1964, dated 18.08.1965. 38. The contours of the provisions like Sections 3 and 4 of the Rajasthan Act were considered by the Honble Supreme Court in Jan Mohd. Noor Mohd. Bagban vs. The State of Gujarat, Writ Petition No. 3/1964, dated 18.08.1965. While considering the challenge to virus of Sections 5 and 6 of the Gujarat Act which were correspondent to Sections 3 and 4 of the Rajasthan Act, repealing the contention about the constitutional validity of the said provisions challenged on the ground that it confers wild, arbitrary and unguided powers to sell commodities in areas regulating trade in specific commodities, the Court said:- “Section 5. of the Gujarat Act authorises the Director to declare his intention to regulate purchase and sale of agricultural produce in a specified area after inviting objections or suggestions from the local authorities functioning in the area, and from other persons. By Section 6, the Director after considering the objections and suggestions received within the period specified in the notification, is authorized to declare the area or part thereof a market area for purposes of the Act in respect of all or any of the kinds of produce specified in the notification. The object of the Act being to ameliorate the condition of agriculturists and to do away with the middle men, who it is a matter of common knowledge, make large and unconscionable profits out of the transactions carried out through them, declaration of intention to regulate trade in agricultural produce in a specified area, after hearing the objections and suggestions of interested parties, cannot be regarded as imposing unreasonable restrictions on the right to carry on trade...... The powers under Section 6 are to be exercised after giving an opportunity to persons interested to raise objections or to make suggestions to the proposed introduction of control on sale and purchase of agricultural produce. It is only after the objections and suggestions are received and considered by the Director in the light of the object and purpose of the Act, and he is satisfied that it is in the interest of the producer and the general public that there should be regulation if the trade in agricultural produce in the specified area that he may proceed to declare the market area.” 3.39. The Court acknowledged that Sections 5 and 6 of the Gujarat Act points to commodities which should have been specified in the notification issued under Sectio