JUDGMENT : A.K. Goswami, J. Heard Ms. M.D. Choudhury, learned counsel for the petitioner. Also heard Mr. A.C. Buragohain, learned Advocate General, Assam, who is assisted by Mr. G.Z. Ahmed, learned Government Advocate, Assam, appearing for respondent Nos. 1, 2, 3 and 4; and Mr. S. Gogoi, learned counsel appearing for respondent Nos. 5 and 6. 2. While hearing the case on 18.08.2015, as the learned counsel appearing for the parties had contended that Assam Panchayat Act, 1994, for short, 1994 Act, and the Assam Agricultural Produce market Act, 1972, for short, 1972 Act, seem to be in conflict, Mr. A.C. Buragohain, learned Advocate General, Assam was requested to address this Court, and accordingly, in deference to the request of the Court, Mr. Buragohain has advanced his argument to-day. 3. The writ petitioner is a statutory body constituted under Section 7 of the 1972 Act, named and styled as North-Lakhimpur Regulated Market Committee. By a Notification dated 21.11.1984, in exercise of power conferred under Section 6 of the 1972 Act, the Governor of Assam was pleased to declare, amongst others, Bangalmara as the Principal Market Yard in Lakhimpur Sub-Division covering declared market place measuring 16 Bigha 0 Katha 11 Lecha as described therein. The notification also declared the Market Proper in respect of Principal Market Yard at Bangalmara to be the entire area within a distance of 8 K.M. from the boundary of the Bangalmara Principal Market Yard including all roads, land with building and structures thereon. 4. By a Notification dated 01.10.1996 issued under Section 4(1) and 4(2) of the 1972 Act, the Governor of Assam declared the intention of regulating the purchase and sale of the agricultural produce as noted therein in all Market Areas declared under the 1972 Act and invited objections within a period of 30 days. Thereafter, by a Notification dated 22.12.1999, issued by the Joint Secretary to the Government of Assam, Agricultural Department in exercise of powers under Section 5(4) of the 1972 Act, amongst others, Lakhimpur Sub-Division was directed to be read as Lakhimpur District. 5. At this stage, it would be appropriate to record that Section 6 of the 1972 Act was amended with effect from 30.01.2001 and now the power under Section 6 to declare Market Yards has been vested with the Assam Agricultural Marketing Board with the approval of the State Government. 5. At this stage, it would be appropriate to record that Section 6 of the 1972 Act was amended with effect from 30.01.2001 and now the power under Section 6 to declare Market Yards has been vested with the Assam Agricultural Marketing Board with the approval of the State Government. Materials on record also do not indicate whether any objection has been received or as to whether the Notification dated 01.10.1996 still holds the field. 6. On the strength of the aforesaid Notifications, it is pleaded by the petitioner that the Market Committee decided to operate a Cattle Market in Bangalmara Principal Market Yard and a general notice was issued on 20.07.2006 by the Secretary of the Market committee and informing the cultivators and traders that a Cattle Market is going to be operated under the aegis and supervision of the Market Committee on 27.07.2006 in the Principal Market Yard, Bangalmara. It was also spelt out in the said Notice that no revenue or cess would be levied on the cultivators. A letter dated 25.07.2006 was issued by the Chief Executive Officer, Lakhimpur Zilla Parishad directing the Secretary of the Market Committee not to start operation of the Cattle Market as no Cattle Market can be operated within a periphery of 200 Metres from the weekly market settled by Lakhimpur Zilla Parishad. It is stated that after completion of successful operation of the Cattle Market, the Market Committee received a letter dated 02.08.2006 from the Circle Officer, Bihpuria Revenue Circle, Bihpuria, to maintain status-quo in respect of operation of Cattle Market. A WT Message dated 09.08.2006 from the Deputy Commissioner, Lakhimpur was also received. By the said WT Message, parties were directed to maintain status-quo in respect of Cattle Market. The Secretary of the Market Committee submitted a letter to the Deputy Commissioner, Lakhimpur on 19.08.2006 on the aforesaid subject and asserting that the Market Committee was entitled to operate the Cattle Market within its declared Market Area. However, as no action was taken by the Deputy Commissioner, Lakhimpur, the writ petition was filed challenging the WT Message dated 09.08.2006 and the order dated 02.08.2006, Annexures-6 and 7, respectively, of the writ petition and for a writ of mandamus directing the respondents to allow the petitioner to operate the Cattle Market at Bangalmara. 7. However, as no action was taken by the Deputy Commissioner, Lakhimpur, the writ petition was filed challenging the WT Message dated 09.08.2006 and the order dated 02.08.2006, Annexures-6 and 7, respectively, of the writ petition and for a writ of mandamus directing the respondents to allow the petitioner to operate the Cattle Market at Bangalmara. 7. In the affidavit filed by the respondent No. 4, it is stated that the Cattle Market is settled by the Lakhimpur Zilla Parishad at Bangalmara in terms of 1994 Act. It is further stated that during the existence of more than 20 years Market Committee neither provided any facilities to the agriculturists nor established any market and relied on, in this context, a report of the Circle Officer, Bihpuria Revenue Circle dated 08.08.2006. It is also stated that Market Committee also charged Rs. 25/- from the agriculturists for each cattle and forcibly dragged the agriculturists to its Cattle Market. 8. Respondent No. 5, who is a settlement holder under the Lakhimpur Zilla Parishad, also relied on the report of the Circle Officer, Bihpuria dated 08.08.2006 and stated that infrastructure is totally lacking in the Market Yard. It is also pleaded that the Market Committee wanted to set up a Cattle Market hardly 100 Metres away from the existing weekly market at Bangalmara. It is highlighted that 1972 Act does not confer any power on the Market Committee to settle/establish weekly market. By an additional affidavit-in-opposition, the respondent No. 5 pleaded that Section 5(2) of the 1972 Act cannot be applied to Bangalmara Weekly Cattle Market as the sellers are themselves producers and the buyers purchased, on retail, their cattle for their own consumption and use. 9. Though no reply-affidavit has been filed by the writ petitioner, an "affidavit-in-addition" was filed giving, amongst others, a list of arrival of specified agricultural produce, namely, buffalo, goat, betel-nut, rice, paddy, jute, cattle in the Market Area in the year 2012-2013. It is stated that despite the interim order of this Court enabling the Market Committee to carry on the Cattle Market, operation of the Cattle Market had been stalled due to law and order situation created by the lessee of the Zilla Parishad. It is stated that despite the interim order of this Court enabling the Market Committee to carry on the Cattle Market, operation of the Cattle Market had been stalled due to law and order situation created by the lessee of the Zilla Parishad. It is also highlighted in the said affidavit that there are 21 employees of the Board apart from 5 employees of the regulated market and they are depending for their salaries on revenue generation through the Cattle Market. It is asserted that Bangalmara is a wholesale market and there are 23 Nos. of retail markets and 9 wholesale markets, totalling 32 Nos. of markets in the District and under the Bangalmara Principal Market Yard, there are 4 Sub-Market Yards. It is also stated that facilities are available for operation of the Cattle Market. 10. Ms. M.D. Choudhury, learned counsel for the petitioner submits that the 1972 Act was enacted to provide better regulation of buying and selling of agricultural produce and it is in tune with the objective of the 1972 Act that the petitioner wanted to operate a Cattle Market. She has submitted that the impugned orders are wholly illegal and arbitrary and the Market Committee is entitled under the law to operate the Cattle Market. Drawing attention of the Court to Section 54 of the 1972 Act, the learned counsel submits that even if any market is set up or established in pursuance of the 1994 Act or any other law for the time being in force, no provision of any enactment shall apply to any Market Area or affect the powers of the Market Committee in setting up and establishing a market. She has also, in this connection, drawn attention to Section 5(2) of the 1994 Act to contend that no person or authority can set up, establish or continue to operate a market after publication of a Notification under Section 5(1) declaring an area to be the Market Area. It is submitted by her that as Bangalmara has been declared to be the Principal Market Yard, and as the Cattle Market is within the aforesaid Market Yard, Panchayat or any other authority cannot set up a Market within the vicinity of 8 K.M. from the Bangalmara Principal Market Yard in terms of the Notification dated 21.11.1984. It is submitted by her that as Bangalmara has been declared to be the Principal Market Yard, and as the Cattle Market is within the aforesaid Market Yard, Panchayat or any other authority cannot set up a Market within the vicinity of 8 K.M. from the Bangalmara Principal Market Yard in terms of the Notification dated 21.11.1984. It is also contended that the Market Committee collected cess from the Bangalmara Weekly Market as per Rule 23(1) of the Assam Agricultural Produce Market (General) Rules, 1975, for short, 1975 Rules. Reliance has also been placed upon Sections 13, 14, 15 and 21 of the 1972 Act to buttress the contentions. It is also submitted, though not stated in the writ petition, that a resolution was adopted by the Market Committee before issuance of the Notice dated 20.07.2006 (Annexure-V). It is further submitted by Ms. Choudhury that the Cattle Market proposed to be set up by the Notice dated 20.07.2006 is not a retail market but a wholesale market. 11. Mr. S. Gogoi, learned counsel appearing for the respondent Nos. 5 and 6 submits that Section 5(3) of the 1972 Act provides that notwithstanding declaration of a Market Area, purchase and sale of agricultural produce in a retail sale is excluded and that in terms of Section 2(xxx) of the 1972 Act, what quantity constitutes retail sale has not been specified and unless such quantity of retail sale is fixed, having regard to the fact that the Act pertains to wholesale purchase and sale, the petitioner cannot prohibit sale and purchase in a market established under the 1994 Act when evidently no such market was set up by the petitioner since its inception in the year 1984. 12. Mr. A.C. Buragohain, learned Advocate General, Assam has submitted that there is no conflict between 1972 Act and 1994 Act and markets can be operated, both by the Market Committees established under the 1972 Act as well as by the Panchayat authorities under the 1994 Act subject to the condition that 1972 Act is applicable in respect of wholesale purchase of sale and purchase of agricultural produce while 1994 Act would apply only to retail sales and, therefore, both can co-exist within their respective spheres. Mr. Buragohain has drawn the attention of the Court to Section 2(xvi), (xvii), (xviii), (xix), (xxvi), (xxx) as well as Rule 16 of the 1975 Rules. Mr. Buragohain has drawn the attention of the Court to Section 2(xvi), (xvii), (xviii), (xix), (xxvi), (xxx) as well as Rule 16 of the 1975 Rules. It is submitted that the petitioner has not produced any document to show the limit of retail sale which has to be fixed by the Market Committee in the bye-laws of the Committee and in absence of any such fixation, having regard to the object of the 1972 Act, the Panchayat authorities cannot be restrained from operating their market. 13. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 14. At the outset, it will be appropriate to take note of the relevant provisions of the 1972 Act and the 1975 Rules. For better appreciation, they are reproduced herein below: "Assam Agricultural Produce Market Act, 1972: 2(xvi) `Market' means a regulated market established under this Act for the Market area and includes a market proper, a principal market yard and a sub-market yard or yards, if any; (xvii) `Market area' means any area declared to be market area under Section 5; (xviii) `Market Committee', means a Committee established under Section 7; (xix) `Market proper' means any area including all lands with the buildings and structures thereon within such distance of the principal or sub market yard as the State Government may, by a notification in the Official Gazette, declare it to be a market proper; (xxvi) `Principal market yard' and 'sub-market yard' means an enclosure building or locally declared to be a Principal market yard and sub-market yard respectively in the Official Gazette by the State Government; (xxx) 'Retail sale' means a sale of any agricultural produce not exceeding such quantity as may by bye-laws or rules be fixed in respect of such agricultural produce; 4. 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 in [`specified'] areas as may be specified in the notification. 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 in [`specified'] areas as may be specified in the notification. A copy of the notification under this section shall also be published in the area concerned in the manner prescribed: Provided that no area within the limits of a District Council shall be included in the area specified in such notification except after consultation with the District Council concerned. (2) The notification under sub-section (1) shall state that any objection or suggestion received by the State Government within a period of not less than one month to be specified in the notification under sub-section (1) shall be considered by the State Government. 5. Declaration of market area.- (1) After the expiry of the period specified in the notification issued under Section 4 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 4 or any portion thereof to be a market area for the purpose of this Act in respect of all [* * *] agricultural produce specified in the said notification. A copy of the notification under this section shall also be published in the area concerned in the manner prescribed. (2) On and after the date of the publication of the notification under sub-section (1) or at such later date as may be specified therein, no local authority or other person, notwithstanding anything contained in any law for the time being in force, shall, within the market area or within in 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 or sale of any agricultural produce so notified, except in accordance with the provisions of this Act, and the rules and bye-laws, framed thereunder for purchase or sale of any agricultural produce so notified. (3) Nothing in sub-section (2) shall apply to the purchase or sale of such agricultural produce if the producer of such produce is himself its seller and the purchaser is a person, who purchases such produce for his own private consumption or if such agricultural produce is sold by retail sale to a person who purchases such produce for his own private consumption. 6. Declaration of Market Yards.- (1) For each market area there shall be one principal market-yard and one or more sub-Market Yards as may be necessary. (2) The Board with the approval of the State Government may declare- (i) any enclosure, building or locality in any market area to be the principal market-yard and other enclosures, buildings or localities in such market areas to be one or more sub-market yard or yards for the area; and (ii) any area including all lands with the buildings and structures thereon within such distance of the principal or sub-market yard or yards, as the case may be, as it thinks fit to be market proper: Provided that the location of the principal market yard, sub-market yard or yards or any other lands, buildings or structures ancillary thereto shall be at a close distance from the location where the trade and merchandise in all or any specified agricultural produce normally takes place. (3) The land requirement for establishing a structure and its specification shall be such as may be prescribed. Explanation - For this sub-section the word structure shall include any office building of the Market Committee, staff quarter, rest house, godown, principal market yard, sub-market yard or yards, check-gate and its ancilliary structures. 7. Establishment of market committee.- (1) The State Government shall establish a market committee for every area declared to be a market area under sub-section (1) of Section 5. It shall be the duty of the market committee to enforce the provisions of this Act and the rules and bye-laws framed thereunder in such market area. 7. Establishment of market committee.- (1) The State Government shall establish a market committee for every area declared to be a market area under sub-section (1) of Section 5. It shall be the duty of the market committee to enforce the provisions of this Act and the rules and bye-laws framed thereunder in such market area. (2) The State Government may establish a separate market committee within the same market area or a part thereof provided it is satisfied that trading in a particular type of agricultural produce can be regulated only if and when an independent market committee already functioning is unable to undertake regulated trading in that commodity because of its peculiar nature: Provided that not more than one Market Committee shall be established within the same market area or a part thereof for the same type of agricultural produce. 13. Incorporation of market committee. – (1) Every market committee shall be a body corporate by such name as the State Government may specify by notification in the official Gazette. It shall have perpetual succession and a common seal, may sue or be sued in its corporate name and shall be competent to acquire and hold lease, shall or otherwise transfer any property and to contract and to do all other things necessary for the purpose for which it is established. (2) Where a Market Committee is established in any area, no person shall use any place for buying and selling of notified agricultural produce and function as a trader, commission agent, broker, weighman, measurer, surveyor, warehouseman or in such other capacity as may be determined by the Director or run a processing or pressing factory within the Market Area unless a licence is issued to such person by the Market Committee on payment of such fees and subject to such conditions as may be prescribed. 14. Functions of the market committee. - The functions of a market committee shall be as follows - (i) to maintain and manage the market yard and to control, regulate, and run the market in the interest of the agriculturists and traders holding licence from the market committee. 14. Functions of the market committee. - The functions of a market committee shall be as follows - (i) to maintain and manage the market yard and to control, regulate, and run the market in the interest of the agriculturists and traders holding licence from the market committee. (ii) to regulate and control transactions in the market and to deal with licence holder who defaults to open, close and suspend trade in any notified agricultural produce, to settle disputes, levy and recover market charges, fees on an agricultural produce, licence and other fees, to impose fines and penalties; (iii) to act as a mediator, arbitrator or surveyor in all matters of differences, disputes, claims, etc., between licencees or between them and agriculturists making use of the market as sellers of agricultural produce; (iv) to control and regulate the admission to the market, to determine the conditions for the use of the market and to prosecute and confiscate the goods belonging to persons trading without a valid licence; (v) to bring, prosecute or defend or aid in bringing, prosecuting or defending any suit, action, proceeding, application or arbitration on behalf of the market committee or otherwise as directed by the State Government. (vi) to purchase, hire or acquire any land for construction of any house thereon or other movable or immovable property and other equipment for the purpose of its business, to raise fund from the Government or otherwise with the approval of the Director for the said purpose and to enter into arrangements with the Government, local authority or otherwise and to comply with such arrangements; and (vii) to do such other things as may be required for the purpose of achieving the objects and requirements of the act and the rules and bye-laws framed thereunder. 15. Power of the Market Committee. - A market committee shall have the power to regulate entry of persons into the principal or sub-Market Yards, to supervise the behaviour of the persons so entered for transacting business and to take disciplinary action against the licencee who fails to fulfil the conditions of the licence or any direction of the market committee, issued within the purview of this Act or rules or bye-laws. 16. 16. Duties of the market committee.- It shall be the duty of every market committee to enforce the provisions of this Act, the conditions of licence granted under the rules and bye-laws framed under the Act in the market area and to provide such facilities as the State Government may, from time to time, direct in connection with the purchase and or sale of notified agricultural produce concerned. 21. Power to levy cess. - Every market committee shall levy and collect a cess on the agricultural produce bought or sold in the market area at a rate not exceeding ["two rupees"] for every one hundred rupees of the aggregate amount for which a notified agricultural produce is bought or sold whether for cash or for deferred payment or other valuable considerations: Provided that no cess will be levied on goods manufactured from the agricultural produce on which cess is proposed to be levied and which are ultimately exported out of the country. 49. Power to make rules. - (1) The State Government may either generally or specially for the Board or any market area or market areas make rules, after previous publication for the purpose of carrying out the provisions of this Act. (2) In particular and without prejudice to the generality of the foregoing provision, such rules may provide for or regulate - *** *** *** (xxviii) the manner in which auctions of agricultural produce shall be conducted and bids made and accepted in any market; 50. Bye-Laws. - (1) Subject to any rules made by the State Government under Section 49, the market committee may, in respect of the agricultural produce and the market area under its management make bye-laws and from time to time alter or rescind the same, but not so as to render them inconsistent with this Act and rules made for the regulation of business and the conditions of trading therein with the previous sanction of the Director or any other officer specially empowered in this behalf by the State Government. (2) Any bye-law made under this section may provide that any contravention thereof shall on conviction, be punishable with fine which may extend to rupees one hundred. (2) Any bye-law made under this section may provide that any contravention thereof shall on conviction, be punishable with fine which may extend to rupees one hundred. (3) When the Director or any other officer empowered in this behalf by the State Government sanctions any amendment of the bye-laws of a market committee, he shall issue to the market committee a copy of the amendment certified by him which shall be conclusive evidence that it is duly sanctioned. 54. Savings. - Nothing contained in 'the Assam Panchayat Act, 1994 (Assam Act No. XVIII of 1994)' or in any other law for the time being in force relating to the establishment, maintenance or regulation of a market shall apply to any market area or affect in any way the powers of a market committee or the rights of a holder of a licence granted under sub-section (2) of Section 13. Assam Agricultural Produce Market (General) Rules, 1975. 16. Sale of agricultural produce, Section 49(2)(xviii) - (1) All agricultural produce brought into the market for sale shall be sold by open auction in the principal or sub-market yard. (2) Nothing in sub-rule (1) shall apply to a retail sale as may be specified in bye-laws of the Committee." 15. The statement of objects and reasons of the enactment of 1972 Act goes to show that the Act was enacted to facilitate marketing activities by providing fair opportunities, both to the buyers and sellers, to strike bargain and to complete transactions. The Act aims to provide for better regulation of buying and selling of agricultural produce and the establishment of markets for agricultural produce in the State of Assam. 16. The provisions extracted herein above go to show that the Government by issuing notification may declare its intention of exercising control over purchase and sale of agricultural produce in a specified area and invite objections and, after considering the objections, if any, received within the time stipulated, declare a Market Area. Market means a regulated market established under the 1972 Act for the Market Area declared as such under Section 5, which includes a Market Proper, a Principal Market Yard, etc. For each Market Area, establishment of a Market Committee is visualized. The functions, powers and duties of the Market Committee are also delineated. 17. Market means a regulated market established under the 1972 Act for the Market Area declared as such under Section 5, which includes a Market Proper, a Principal Market Yard, etc. For each Market Area, establishment of a Market Committee is visualized. The functions, powers and duties of the Market Committee are also delineated. 17. Section 2(xxx) mandates that sale of any agricultural produce not exceeding such quantity to be known as `retail sale' shall have to be fixed by bye-laws or rules in respect of such agricultural produce. 18. Section 5(2) provides that after declaration of Market Area, notwithstanding anything contained in any law for the time being in force, no local authority or other person shall, within the Market Area or within a distance thereof to be notified in the official gazette, set up, establish or continue to use, any place for the purchase or sale of any notified agricultural produce. 19. Section 5(3) of the 1972 Act, however, provides that nothing in Section 5(2) shall apply to purchase and sale of such agricultural produce if the producer of such produce is himself its seller and the purchaser is a person, who purchases such produce for his own private consumption or if such agricultural produce is sold by a retail sale to a person who purchases such produce for his own private consumption. 20. A reading of Section 5(2) and 5(3) of the 1972 Act would go to show that notwithstanding declaration of Market Area, there is no bar to set up, establish or continue a market where retail sale takes place. To put it differently, 1972 Act does not apply to retail sale. Therefore, it is imperative to fix quantity of any specified agricultural produce which can be sold as a retail sale. Section 7 of 1972 Act provides that it shall be the duty of the Market Committee to enforce the provisions of the Act and the Rules and bye-laws framed there under in the jurisdictional Market Area. 21. Section 50 of the 1972 Act provides that subject to any Rules made by the State Government under Section 49, the Market Committee may, in respect of the agricultural produce and the Market Area under its management, make bye-laws and from time to time alter and rescind the same. 22. 21. Section 50 of the 1972 Act provides that subject to any Rules made by the State Government under Section 49, the Market Committee may, in respect of the agricultural produce and the Market Area under its management, make bye-laws and from time to time alter and rescind the same. 22. Section 54 is a savings provision, which only reiterates that nothing contained in the 1994 Act or any other law for time being in force relating to the establishment, maintenance and regulation of a market shall apply to any Market Area or affect in any way, the powers of the Market Committee or the rights of a holder of a licence granted under Sub-Section (2) of Section 13. The provision does not override Section 5(3). 23. Rule 16(1) provides that all agricultural produce brought into the market for sale shall be sold by open auction in the Principal or Sub-Market Yard. Rule 16(2) provides that Rule 16(1) will not apply to a retail sale as may be specified in bye-laws of the market committee. 24. On a specific query of the Court, learned counsel for the petitioner submits that she is not aware whether any bye-laws have been framed by the Market Committee or whether retail sale had been fixed by the bye-laws or by any rule. 25. Even though the petition is pending for last 9 years, the petitioner has not placed any document on record to indicate as to whether any quantity has been fixed defining retail sale. The petitioner has pointed out in the pleadings that it could not operate the Cattle Market due to law and order situation. The Market Committee cannot encroach upon retail sale. It will be obligatory on the part of the Market Committee to first determine retail sale which will draw the dividing line for running of any market within the Market Area by any other authority or person and the Market Committee constituted under the 1972 Act. 26. In view of the discussions above, it will be difficult to accede to the prayers made in the writ petition, and accordingly, the writ petition is dismissed. The petitioner Market Committee may take appropriate steps as enjoined in law to effectuate the objectives of the 1972 Act. 27. No cost.