Shree Bishwanath Jee Mills vs State of Bihar and Others

S.K. Katriar, J.—This writ petition is directed against the notification dated 31.12.86 (Annexures-5 and 6) issued u/s 5(2) of the Bihar Agricultural Produce Markets Act, 1960 (hereinafter referred to as ''the Act'') so far as the same relate to the Petitioner. It is also directed against the order dated 27.2.96 (Annexure-7), whereby the Petitioner was called upon to show cause as to why its licence be not cancelled for its failure or refusal to act in accordance with the aforesaid orders marked Annexures 5 and 6, operation of which (Annexure-7) was stayed by this Court by order dated 5.5.98. The Petitioner''s rice mill is situated in village Mishraulia, the then subdivision of Buxar.

The Petitioner is a partnership firm engaged in the business of rice mills in the name and style of Shree Bishwanath Jee Mills at village Mishraulia, PO and P.S. Buxar, district Buxar, and is before this Court represented by one of its partners. The business of rice mill involved purchase of paddy from the agriculturists or other sellers, which undergoes a certain process in the rice mill and is converted into rice. It is agreed at all hands that both paddy as well as rice are covered by the entry and is, therefore, within the mischief of the Act, and the Rules framed thereunder. The State Government may by an appropriate notification issued u/s 5 of the Act declare for each market area one principal market yard and there may also be ope or more sub-market yard. Section 5 of the Act reads as follows:

Declaration of market yards.- (1) For each market area there shall be one principal market yard and there may also be one or more sub-market yard or yards as may be necessary.

(2) The State Government may, by notification, declare -

(ii) ( x x x x x )

The Buxar sub-division as it then stood, appears to be the principal market yard in terras of Section 5 of the Act. While exercising powers under the said provision, the State Government issued the notification published in the Bihar Gazette (extra ordinary) on 4.12.74 (Annexure-4), declaring villages Dhansoi, Bhadaipur. Jabalpur, and Sarenja as sub-market yards. The State Govt. issued a similar notification published in the official gazette (extra ordinary) on 23.3.75 (Annexure 4/A), thereby declaring the eight villages mentioned therein as the sub market yards in terms of Section 5(2) of the Act. Thereafter the State Government issued the impugned notification which was published in the Bihar Gazette (extra ordinary) on 31.12.86 (Annexure-5) in purported exercise of the powers u/s 5(2) of the Act, whereby the aforesaid village Mishraulia (apart from other villages mentioned therein but not relevant in the present context), was declared as principal market yard for . The State Govt. simultaneously issued another notification which was published in the Bihar Gazette (extra ordinary) on 31.12.86 (Annexure-6) whereby village Mishraulia (apart from other villages mentioned therein but not relevant in the present context) has been declared to be a sub-market yard within the meaning of Section 5(2) of the Act for items other then, ?. Respondent Nos. 3 and 4 thereafter issued letter dated 27.2.96 (Annexure-7), whereby the Petitioner was called upon to show cause as to why its licence be not cancelled for its failure or refusal to act in accordance with the aforesaid notifications marked Annexures 5 and 6.

While assailing the validity of the impugned order, learned Counsel for the Petitioner submitted that the impugned orders marked Annexures 5, 6 and 7 are hit by the provisions of Article 14 of the Constitution of India. In his submission, no restriction has been imposed with respect to the villages covered by Annexures 5 and 4/A, whereby unnecessary restriction has been imposed on the Petitioner by Annexures 5 and 6. In other words in so far as the villages covered by Annexures 4 and 4/A are concerned, the residents of that area can carry on the trading activity with respects to all the items of argiculture produce within the sub-market yard itself, whereas Mishraulia has been declared to be a sub-market yard with respect to items other than ?. This obviously affects the Petitioner because he is dealing in ? No such restriction has been imposed with respect to ? in so far as the villages covered Dy Annexures 4 and 4/A are concerned.

Mr. K.P. Yadav, learned Counsel for the Respondents,'' submits that the villages including the villages Mishraulia, which are covered by Annexures 5 and 6, are within very close range of the principal market yard and, therefore, there is no need to permit the traders within the villages mentioned in Annexures 5 and 6 to do the trading activity with respect to within the sub-mnarket yard of Mishraulia. There is, therefore, a reasonable nexus with the objects sought to be achieved, and the villages covered by Annexures 5 and 6 from a separate and distinct case by themselves.

Having considered the rival submissions, I am of the view that this writ petition has to be allowed. Learned Counsel for the Petitioner is right in his submission that he has been subjected to hostile discrimination. If the submission of the Respondents were to be accepted and carried to its logical conclusion then, to illustrate the position by giving an example of a different field, there would be no need to create Collectorate and Commissionerate in the township of Patna, because the seat of the State administration is in Patna. The principle, therefore, which emerges is as to the question of making geographical divisions and sub-division on an uniform basis all over the State while exercising powers under the Act. I also reject the contention of the Respondents that they have the requisite powers u/s 5 of the Act for the reason that the power is only an enabling one and in any case, has to be exercised in conformity with the provisions of the Constitution of India. As stated above, this Court finds the impugned orders marked Annexures 5 and 6 to be discriminatory. Villagers or villages covered by Annexures 4 and 4/A on the one hand, and those covered by Annexures 5 and 6 on the other, are similarly circumstanced. There is no reasonable nexus between the impugned object sought to be achieved and the impugned orders.

Consequently, I hereby direct that village Mishraulia stands deleted from the aforesaid government notification dated 31.12.86 (Annexure-5) and the agricultural produce described as in the aforesaid gazette notification dated 31.12.86 (Annexure-6), w.e.f. the date of the notifications,

This takes me on to the question of legality or otherwise of the aforesaid letter dated 27.2.96 (Annexure 7) which has been issued by Respondent Nos. 3 and 4 (Market Committee) calling upon the Petitioner to show cause as to why its licence be not cancelled for its failure or refusal to act in accordance with the aforesaid orders marked Annexures 5 and 6. Let it be recorded that operation of this order was stayed by this Court by order dated 5.5.98. In the submission of the Respondents, therefore, there was thus a violation up to 5.5.98, and therefore, are liable for appropriate action. I reject the contention on the strength of the judgment of the Supreme Court, reported in Sambha Ji Krishan Ji Vs. State of Maharashtra, , wherein it has been held that in such cases setting aside of the impugned order dates back to its nativity. In that view of the matter, the impugned orders marked Annexures 5 and 6 shall be deemed to have been set aside from the dates of their nativity. Consequently, the impugned order dated 31.12.86 (Annexure-7), is hereby quashed.

In the result, this writ petition is allowed. The village Mishraulia stands deleted from the notification dated 31.12.86 (Annexure-5), as well as the item stands deleted from notification dated 31.12.86 (Annexure-6), both w.e.f. 31.12.86. The impugned order dated 27.2.96 (Annexure-7) is hereby quashed.