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Judgment
Pratap Kumar Ray, J.
On remand by the Apex Court by the order dated 28th November, 2007 in Civil Appeal No. (Nil) of 2007 arising out of SLP (C) No. 441 of 2005, this appeal has been placed before us by the administrative order of the Hon�ble The Chief Justice dated 9th April, 2008, on 22nd April, 2008. We concluded the hearing on 14th May, 2008 and as summer vacation intervened, we could not DELIVER the judgment earlier. The order of the Apex Court remanding the matter back reads such:
Heard learned Counsel for the parties.
Leave granted.
Challenge in this appeal is to the judgment of a Division Bench of the Calcutta High Court allowing the appeal filed by Appellant No. 1, Islampur Municipality and Anr. to the extent indicated in the order. Before the Division Bench challenge was to the order passed by learned Single Judge of the High Court.
Respondent No. 1 applied for license for holding that (market) in Plot No. 676 which according to him belongs to him because of proceedings u/s 6(1) of the West Bengal Estate Acquisition Act (in short the ''Acquisition Act'') in which he was allowed to retain the said land. Since his application for grant of permission to run the market was not favourably considered, he filed a writ petition before the High Court and learned Single Judge allowed that writ application with certain directions. The order of learned Single Judge was challenged in the writ appeal filed before the Division Bench.
Elaborate reference was made to the Bihar Land Reforms Act, Bihar and West Bengal Transfer of Territories Act, 1956 (In short the ''Territories Act'') and West Bengal Agricultural Produce Marketing Regulation Act 1972 (in short the ''Marketing Act�). According to appellant No. 1-Municipality, pursuant to the resolution by the Regulated Marketing Committee (hereinafter referred to as the ''Committee'') land was proposed to be given to the municipality and the municipality was to take over the possession of the said market. The High Court referred to a notification in 1974 under the Marketing Act declaring the Islampur Bazar on which the committee existed. The High Court found that it was not clear from the notification whether the plot in question i.e. Plot No. 676 was covered by the said notification. Accordingly, the High Court directed several courses to be adopted. In support of the appeal, learned Counsel for the appellants submitted that unfortunately the notification subsequent to the 1974 notification was not brought to the notice of the High Court. In this context, reference is made to the Notification No. 3996-MW & C/IM-7/89 dated 30th June, 1993. Accordingly to him, the table appended to the notification clearly indicated that for the purpose of market area entire Islampur sub division comprising several police stations was included. It was also specifically indicated that the principal marketing yard covered Mouzas Islampore and Choprajihar. In the table there is also reference to the sub market yard with which we are not concerned. It is contended that had the High Court taken note of this notification, situation would have been different.
Learned Counsel for the respondent No. 1 on the other hand submitted that this notification was not a part of the records before the High Court and therefore the High Court had no occasion to take note of this notification. Additionally, it is submitted that even if the notification for the sake of arguments covers the plot in question, that will not stand on the way of grant of license to a private market yard. Learned Counsel for the appellant disputes the later part of the submission made by learned Counsel for respondent No. 1.
As it appears from the scheme of the Act, the larger area is the market area within which principal market yard and the sub market yard are situated. The first category i.e. market area is larger in area than the Principal market yard and notified sub market yard. As the High Court did not have the occasion to consider the effect of the notification dated 30th June, 1993, we deem it proper to remit the matter to the High Court to consider the effect of this notification and to adjudicate various connected issues which relate to permissibility of grant of license to a private market yard.
According to learned Counsel for respondent No. 1, the Marketing Act is nothing but a statute regulating the functioning of the market area, marketing yard and the sub marketing yard. The High Court shall consider all the connected issues in the proper perspective but first taking note of the notification dated 30th June, 1993 and effect and relevance thereof. The appeal is allowed to the aforesaid extend. Considering the fact that the matter is pending since long, we request the Division bench to dispose of the matter as expeditiously as possible preferably by the end of May, 2008.
On careful reading of the order of the Apex Court aforesaid, it appears that the Apex Court directed us to consider the notification No. 3966-MW&C/IM-7/89 dated 30th June, 1993 (by typographical mistake it is noted as notification No. 3996-MW&C/IM-7/89 in the order of Apex Court) and its effect thereof, in adjudicating the appeal and other connected issue relating to permissibility of grant of licence, a private market yard. Apex Court further has kept the point open to consider all other connected issues, namely, purpose of West Bengal Agricultural Produce Marketing Regulation Act, 1972, hereinafter for brevity referred to as "Marketing Act", in the angle of the submission as made before the Apex Court by the respondent No. 1 that said Marketing Act is a statute regulating the functioning of the market area, marketing yard and the submarketing yard.
Before considering those aspect and the arguments as advanced by the learned advocates, for effective adjudication the subject matter of the writ application, the order passed in the writ application, the decision of appeal Court, which became the subject matter of Special Leave Petition, wherein order of remand was passed by the Apex Court, in brief are stated below. The writ petitioner prayed for grant of a licence for running/regularizing a private market at Choprajhar Bazar under R.S. Khatian No. 13, R.S. Plot No. 676, Mouza Chopra Bazar, P.S. Islampur, Dist. Uttar Dinajpur before the Islampur Municipality, which stood rejected by the decision dated 19th April, 2000 by the said Municipal Authority on two grounds, which are as follows:
(i) That the subject plot is not a vacant one and the same was being used/controlled as a fish and flesh market since 1973 by Islampur Regulated Market Committee constituted u/s 5 of West Bengal Agricultural Produce (Marketing) Regulation Act, 1972 and the Islampur Regulated Market Committee used to collect the tolls from the individual stall holders trading in the said market area situated on the subject plot.
(ii) The said market has, however, been made over to the Islampur Municipality on lease hold basis on annual lease rent on the strength of a resolution adopted in the meeting of the Islampur Regulated Market Committee held on 24.12.99 in the office chamber of the Sub-divisional Officer, Islampur & exofficio Chairman, Islampur Regulated Market Committee and the said market area has been taken over by the Islampur Municipality as Municipal Market, vide resolution adopted in the meeting of Board of councilors, Islampur Municipality held on 22.07.99.
Said decision was challenged in the writ application being W.P. No. 13993 (W) of 2000. Learned trial Judge by the judgment and order dated 18th June, 2003 held that the writ petitioners were the absolute owner in the land in question and as such, refusal to grant licence on the ground of vesting of the land to the Government and subsequently leasing out of the said land to the Regulated Marketing Committee was not justified. On such finding, the impugned order was set aside and quashed and a direction was passed to grant licence by the Municipal Authority.
Against the judgment and order passed by the learned trial Judge aforesaid, an appeal was preferred by Islampur Municipality along with its Chairman, which was registered as MAT No. 2066 of 2003, subsequently renumbered as FMA No. 11 of 2004. By the judgment and order dated 15th September, 2004 the Division Bench (Coram: D.K. Seth and R.N. Sinha, JJ.) (as their Lordship then were) upheld the views expressed by the learned trial Judge about ownership of the plot in question but on issue of direction for grant of licence as passed by the learned trial Judge, it was held that if the area in question was not covered under the declaration u/s 4 of the said Marketing Act and did not hit by any declaration under Sub-section (2) thereof, Municipality could not refuse to grant licence. The ordering portion of the judgment regarding grant of licence, which was modified by the Division Bench reads such:
In case the said area does not fall within the area covered under the declaration issued u/s 4 of the 1972 Act and not hit by the declaration under Sub-section (2) thereof, in that event, the Municipality cannot refuse to grant licence to the petitioner. But in case the said land falls within the area covered under the notification issued either under Sub-section (1) or under Sub-section (2) of Section 4 of the 1972 Act, in that event, the petitioner has no right to establish and run a market on the said land except in accordance with the provision of the 1972 Act. Though he may exercise all his rights of ownership in respect of the said land and the property and carry on business under the licence granted by the Regulated Market Committee. He may exercise all other rights on the property as would be permissible under the 1972 Act but cannot claim any independent right to establish and run a market on the said land except otherwise than as provided in the 1972 Act. The 1972 Act has given overriding effect to its provisions in Section 37 of the 1972 Act. Therefore, the Municipality has no authority to grant license to the petitioner if the land is covered by the notification u/s 4 of the 1972 Act. The petitioner may apply to the Regulated Market Committee, if he is so advised, for appropriate permission for construction of stall or letting it out or carrying on his own business in accordance with the laws and the rules after obtaining sanction for such construction from the Municipality. If the land is not hit by the said declaration u/s 4 of the 1972 Act, then only he could apply for a licence and the Municipality can consider the case for grant of licence and not otherwise. However, by reason of Section 28, it is open to the State Government to acquire the said land under the Land Acquisition Act, 1894. In case the land is covered within the declaration u/s 4, in that event, it would be open to the State Government to acquire the said land. It appears that the Municipality has already taken a resolution for acquiring the said land. In that circumstances, let the acquisition of the land be undertaken within a period of 1 (one) year from today. In case it is not acquired, in that event, if the petitioner applies for construction of market stalls, in that event, the petitioner may be to permitted to do but regulated under the provisions of 1972 Act and may carry on business by himself or by his agents or anyone who will obtain or occupy stalls, however under the licence granted by Regulated Market Committee in terms of Section 13 of the 1972 Act.
The aforesaid judgment of the Division Bench was assailed in SLP (C) No. 441 of 2005 by the Islampur Municipality. An argument was advanced therein that the notification No. 3966-MW&C/IM-7/89 dated 30th June, 1993 was not brought to the notice of the Court i.e. the Division Bench of the Calcutta High Court and as such, a positive view was not expressed by the Division Bench determining the right of the Regulated Market Committee to grant licence on the reflection of the said notification. In view of such submission, the Apex Court has remanded the matter back for considering the case, which is already quoted above.
In course of hearing, an affidavit-in-opposition on behalf of Islampur Regulated Market Committee, respondent No. 2, affirmed on 6th May, 2008 was filed. Rejoinder thereof, was filed by the petitioner affirming the same on 7th May, 2008. The Market Committee in their affidavit has disclosed different notifications as issued in terms of the said Marketing Act to satisfy the Court that area in question is under the control of the Market Committee and as such, Market Committee is the sole authority to grant licence irrespective of the fact that under the West Bengal Municipal Act, there is a provision u/s 278 regarding grant of licence to run the market by the private body. By the order of remand, the Apex Court since has directed to take note of the notification dated 30th June, 1993 aforesaid, before considering other points, we are discussing the effect and purpose of the notification. The notification of 30th June, 1993 reads such:
The Calcutta Gazette, Extraordinary, July 7, 1993.
Notification
No. 3966-MW&C/IM-7/89 � 30th June 1993. � In exercise of the power conferred by Sub-section (1) of Section 4 of the West Bengal Agricultural Produce Marketing (Regulation) Act, 1972 (West Ben. Act XXXV of 1972), the Governor is pleased hereby to declare the localities mentioned in column (2) of the Table below as the ''Principal Market Yard'' in place of the existing one specified in column (3) of the Table of this department notification No. 9832-MW&C dated 2nd September, 1974 and also to declare the localities specified in columns (3) to (6) of the Table below as ''Sub-Market Yards'' in addition to those specified in this department notifications Nos. 9832-MW&C/1M-5/73 (Islampore), dated 2nd April, 1974, 5671-MW&C/7C-45/76, dated 2nd June 1977 and 3177-MW&C/1M-5/73 (Islampore), dated 5th April 1980, for the amended Market area comprising the entire sub-division of Islampore in the district of Uttar Dinajpur.
Table _________________________________________________________________________ Sub Market Yards ___________________________________________ Market Principal Market Hat Police Mouza J.L. No. Area Market Yard Station _________________________________________________________________________ (1) (2) (3) (4) (5) (6) _________________________________________________________________________ Entire Mouzas 1. Rashakhoahat Karandighi Khanta 101 Islampore Islampore 2. Tungidighihat do Jijharpur 183 Subdivision Choprajhar 3. Bekore hat do Bekore 152 Comprising the 4. Dalkhola hat Karandighi Dalkhola/ 20 Following P.S. & D. Market Mithapur/ 21 Haripur 22 (1)Islampore J.L. No. 60 5. Katchakali hat Chopra Dakshin 63 (2)Chopra and 6. Chakuliahat Chakulia Khusdal 9 Choprajhar (3)Goalpokhar (J.L. No. 57)7. Kankihat do Chakulia 30 Silulia/ (4)Chakulia In P.S. 8. Debiganjhat Goalpokhar Bestapur 31 Islampore 9. Sahapurhat do Debiganj 79 Dakshin 117 Sahapur _________________________________________________________________________ By order of the Governor, J. Basu, Jt. Secy. to the Govt. of West Bengal.
This notification has been annexed at page 30 of the affidavit filed by the Marketing Committee.
Along with this notification, at page 32 another notification has been annexed being a notification issued in exercise of the power under Sub-section (2) of Section 4 of the said Marketing Act restraining any local authority or any other person to sale, purchase, storage or processing of any agricultural produce and to set up any new marketing infrastructure within 10 Kms. of principal market yard of Regulated Market Committee under the control of Agricultural Marketing Department. Said notification No. 1418-MW&C/9M-22/2006 dated 10th April, 2007 as relied, reads such:
In exercise of powers conferred by Sub-section 2 of the Section 4 of the West Bengal Agricultural Produce Marketing (Regulation) Act, 1972 (West Bengal Act XXXV of 1972), the Governor is pleased to declare that no local authority or any other person, notwithstanding anything contained in any law for the time being inforce, shall set up, establish any place for the purchase, sale, storage or processing of any agricultural produce and to set up any new marketing infrastructure within 10 Kms. of Principal Market Yard/Sub Market yard of the Regulated Market Committees under the control of Agricultural Marketing Deptt.
The writ petitioner/respondent has submitted that the said notifications dated 30th June, 1993 and 10th April, 2007 as relied upon have no effect so far as grant of licence by the Municipal Authority to run the private market for the purpose of selling the flesh, fish and poultry for which application was filed by the writ petitioner. It is submitted that the Marketing Act is a regulatory statute regulating the purchase, sale, storage or processing of such type of agricultural produce as to be specified in the notification while declaring any area as a market area u/s 3 Sub-section (1) read with Sub-section (2) of the said Act. It is contended that u/s 3, a market area is notified by necessary declaration with specific mentioning of agricultural produce, which could be regulated under the Marketing Act in such market area. It is contended that principal market yard or sub-market yard or yards are nothing but any enclosure, building or locality within the market area, which could be declared as such by a notification u/s 4 of the said Marketing Act. It is submitted that since the principal market yard and sub-market yard are the areas identified within the market area, the purchase, sale, storage or processing of agricultural produce as could be restrained in terms of Sub-section (2) of Section 4 of the said Act only with reference to those agricultural produce, which are the subject matter of notification under Sub-section (1) of Section 3 of the said Act and not all agricultural produce. It is submitted that the word "agricultural produce" as defined in Sub-section (2) of Section 4 will get its conceptual meaning in terms of the word "such agricultural produce as may be specified in the notification" under Sub-section (1) of Section 3 of the said Act. It has been further contended that u/s 13 only those agricultural produce are required to be regulated by way of exercise of power to grant licence by the Market Committee as are specified by notification of such agricultural produce, which may be called as regulated agricultural produce in terms of Sub-section (1) of Section 3 read with Sub-section (2) of the said Act.
It is the further submission of the respondent-writ petitioner that under Sub-section (1) of Section 3 only one notification was issued by the Deputy Secretary to the Government of West Bengal in exercise of the power conferred by the said provision of Marketing Act being numbered as notification No. 9831- MW&C dated 2nd September, 1974, wherein specified agricultural produce, which intended to be regulated so far as animal husbandry product is concerned, has been specified as "cattle hide and skin", as such, the Marketing Committee cannot regulate the other animal husbandry product, namely, fish, flesh and poultry for which application was filed seeking grant of licence to the Municipal Authority on 27th August, 1997 by the writ petitioner, which as per direction of the Court in another writ application being W.P. No. 17661 (W) of 1998 was considered negatively by rejecting it, which is the impugned decision of the present writ application. It is contended that under the said Marketing Act, since there was no such regulatory notification of specified agricultural products, namely, fish, flesh and poultry in terms of Sub-section (1) of Section3, while the entire Islampur Police Station was declared as market area by the notification dated 2nd September, 1974, Section 13 of the Marketing Act regarding grant of licence by the Market Committee has no applicability and as a consequence thereof, notification of 30th June, 1993 and 10th April, 2007 also have no relevancy to refuse the grant of licence by the Municipality.
The appellant before us, the Islampur Municipality, however, has submitted that "agricultural produce" word as is appearing u/s 13 authorizing/empowering the Market Committee to grant licence means the agricultural produce in terms of the definition of Section 2 Sub-section (a) of the Marketing Act as detailed in the schedule thereof, wherein, as under animal husbandry product, poultry, cattle, goat meat and mutton and fish have been included, the Municipal Authority has no jurisdiction to grant licence and as such, impugned decision was justified refusing to grant licence. It is further contended that under Sub-section (1) of Section 3 some specified agricultural produce could be regulated by declaring any area as market area but so far as the other agricultural products are concerned in terms of the definition of agricultural produce under the Marketing Act, Section 4 as well as Section 13 of the said Marketing Act both have applicability and as such, petitioner is liable to seek a licence from the Market Committee for sale and purchase of those products.
Learned advocate for the Market Committee has advanced the same argument as has been argued by the Islampur Municipal Authority. In addition to that, it is contended relying upon the affidavit affirmed by Sri Pradip Singha that the writ petitioner�s plot, wherein he intended to set up private market, is situated within 10 Kms. distance of the principal market yard, which attracts the bar in terms of the notification No. 1418-MW&C/9M-22/2006 dated 10th April, 2007 to set up any private market, so the writ petitioner is not entitled to set up a private market in the area in question. Learned advocate further has referred to paragraph 6(a), 6(b), 7(a), 7(b) and 8 of the said affidavit of Sri Pradip Singha, which has not been controverted by the writ petitioner.
Having regard to the submission of the parties the only point for consideration by us is as to whether by the said Marketing Act, all the agricultural produce in terms of the definition of Clause (1) Sub-section (1) of Section 2 of the said Marketing Act irrespective of the fact that such agricultural produce are not specified under Sub-section (1) of Section 3 while declaring the area as market area for the purpose of causing any regulation thereof, could be considered as "such type of agricultural produce" only for which the Market Committee is vested with power to grant licence irrespective of statutory provision, namely, Section 278 of West Bengal Municipal Act and the effect of the notification of 30th June, 1993 read with 10th April, 2007 on that score. To consider that point we have to consider the true meaning and conceptual purpose of declaring any area as market area and purpose of identification of principal market yard/sub-market yard within such market area. The object and reasons for enactment of Marketing Act, 1972 reads such:
The object of the Act is to provide for the regulation of marketing agricultural produce in West Bengal. The object of the Act is to regulate buying and selling of agricultural produce by establishing markets for agricultural produce in the State of West Bengal. The West Bengal Markets Regulation Act, 1968 was enacted during the first spell of the President�s Rule in 1968 and was later put on the Statute Book as the West Bengal Markets Regulation Act, 1970 (W. Bengal Act 7 of 1970). The Present Act seeks to replace the W. Bengal Markets Regulation Act, 1970 (W. Bengal Act 7 of 1970) by removing the deficiencies of the latter in these respects with a view to providing for the needs of new development. The Act of 1970 sought to regulate the activities of the owners and other operators in the existing markets of agricultural produce by fixing fair rents of market-stalls realized by the owners and the lessees of the markets and prohibiting realization of unauthorized levies on the purchase and sale of agricultural produce. This Act also imposed upon the market owners the responsibility to provide for sanitary and other arrangements which had hitherto been inadequate. The Act of 1970 was an improvement on conditions previously prevailing in the unregulated markets; the various provisions of the Act have been found to be deficient for purposes of new development.
It has merely sought to regulate the activities of the users of Markets recognized as such. Its provisions are liable to be by-passed and are in fact being by-passed by the operators of wholesale trading carried on in ''mandis'' and ganjas outside the market precinets. Unless the ''market yard�, the ''market proper�; and the ''market area'' are adequately defined and brought within the ambit of regulation, a large part of the buying and selling of agricultural produce may evade the operation of the Act.
The Act oriented towards controlling the owners of markets; the primary duty of running the markets is imposed upon the owners of the market; the market committee or the State Government may not intervene except in the event of formal failure on the part of the owners. If the present owners abide by the fair rents, undertake to check specified malpractices, provide for certain sanitary arrangements and maintain the markets as they are, such markets have to be left in their charge. The owners do not have any obligation to develop the markets and will have no incentive � nor will they have resources enough � for investment for new development.
In the preamble of the said Marketing Act it is stipulated that the said Act is an Act to provide for regulation of market in agricultural produce in West Bengal. "Agricultural produce" has been defined under Clause (a) of Sub-section (1) of Section 2, which reads such:
"agricultural produce" means any produce of agriculture, horticulture, pisciculture, [sericulture,] forestry or animal husbandry [and includes any related product] specified in the Schedule to this Act: Provided that the State Government may, by notification, include any item of agricultural produce in the Schedule or exclude any such item from it.
The word "market" has been defined under Clause (g) of Sub-section (1) of Section 2, which reads such:
"market" means a market established or declared as such under this Act for a market area and includes [a principal market yard and a sub-market yard,] if any.
"Market area" has been defined under Clause (h) of Sub-section (1) of Section 2 of the said Act, which reads such:
"market area" means any area declared to be a market area u/s 3.
"Principal Market Yard" has been defined under Clause (m) of Sub-section (1) of Section 2 of the said Act, which reads such:
"principal market yard" means any enclosure, building or locality within the [market area] declared to be a principal market yard u/s 4.
"Sub-market Area" has been defined under Clause (r) of Sub-section (1) of Section 2 of the said Act, which reads such:
"sub-market yard" means any enclosure, building or locality within the [market area] declared to be a sub-market yard u/s 4.
Section 3 is the provision for declaring any areas as market area, whereby regulation could be made in respect of such agricultural produce as to be specified in the notification. The principal market yard and sub-market yard has separate identity within the zone of market area itself. Section 3 of said Act provides for declaration of market area and regulation of such agricultural produce as well as restriction relating to sale, purchase of such agricultural produce as notified, in terms of Sub-section (1) and (2). Sub-section (1) and (2) of Section 3 reads such:
(1) Notwithstanding anything to the contrary contained in any other law for the time being in force, the State Government may, by notification, declare any area as a market area within which purchase and sale of such agricultural produce as may be specified in the notification, shall be regulated.
(2) On the publication of such notification under Sub-section (1), or with effect from such later date as may be specified therein, no local authority or other person shall, notwithstanding anything to the contrary contained in any law for the time being in force, within the market area, or within such distance thereof as may be [declared by notification] 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 such agricultural produce as has been specified in the notification under Sub-section (1) except in accordance with the provisions of this Act and the rules made thereunder.
Under Sub-section (4) of Section 3, the State Government may declare any area within the market area as principal market yard and sub-market yard. Under Sub-section (2) of Section 4 there is scope to impose a bar/embargo of purchase, sale, storage or processing of any agricultural produce in such principal market yard and sub-market yard within the market area as the principal market yard and sub-market yard are identified within the market area to regulate the sale/purchase of the agricultural produce for the benefit of small traders, farmers etc. Sub-section (1) and (2) of Section 4 reads such:
(1) the State Government may, by notification, declare any enclosure, building or locality in any market area, to be the principal market yard and other enclosures, buildings or localities in such area to be one or more sub-market yard or yards for a market area.
(2) The State Government may, by notification, declare that no local authority or any other person, notwithstanding anything contained in any law for the time being in force, shall set up, establish or continue or allow to be continued any place for the purchase, sale, storage or processing of any agricultural produce within such distance of the principal market yard or a sub-market yard as may be specified in the notification.
On a mere comparative reading of Sub-section (1) and (2) of Section 3 with Sub-section (1) and (2) of Section 4 it appears that the principal market yard and sub-market yard have separate identity within the market area. A prohibitory provision prohibiting under Sub-section (2) of Section 3 regarding grant of any licence by the local authority to set up a market or sale of such agricultural produce as are specified in the notification. Section 12 of the said Marketing Act stipulates the duties and function of the Market Committee including its power to grant or renew licence. Clause (i) and (ii) of Sub-section (1) of Section 12 reads such:
(i) to establish [if so required by the State Government,] market for the market area providing for facilities in connection with the marketing of agricultural produce;
(ii) to grant or renew licences, in the manner prescribed, to traders, commission agents, brokers, weighmen, measurers, warehousemen, surveyors and other persons or firms referred to in Section 13.
On a mere scrutiny of the said provision it appears that the Market Committee was empowered to set up any market for the market area, which means that market area as declared and identified by notification regulating the purchase and sale of such agricultural produce as to be specified in the notification in terms of Sub-section (1) of Section 3. Section 13 is the provision for grant of licence in terms of the power u/s 12 as already discussed. Section 13 speaks that in any market area as would be declared nobody shall be allowed to carry on business regarding sale or purchase of agricultural produce or would be entitled to engage himself to set up/establish any place for storage, sale or purchase of any agricultural produce without any licence of the Market Committee irrespective of any other provision by other law regarding grant of licence by other body. Section 13 reads such:
Licence.- (1) After six months from the declaration of any area as a market area, no person shall, within the [market area] carry on business or act as a trader, Commission agent, broker weighman, measurer, warehouseman or surveyor, or sell or purchase agricultural produce, or engage in [processing or preservation] of agricultural produce, or set up, establish or continue a [place] for storage, sale or purchase of any agricultural produce, except, under and in accordance with the prescribed terms and conditions of a licence issued in this behalf by the market committee [notwithstanding anything contained in any other law for the time being in force and] [irrespective of any licence required and issued under any law for the time being in force:] Provided that nothing in this Sub-section shall apply to any sale by a producer of his own produce, to retail sale and to purchase by an individual for his own consumption.
(2) Any person desiring to obtain a licence under Sub-section (1) may, make an application to the market committee in such form and on payment of such fee not exceeding rupees two hundred, as may be prescribed.
(3) On receipt of an application under Sub-section (2), the market committee may issue the licence in such form, subject to such terms and conditions and for such period as may be prescribed.
(4) Any licence issued under Sub-section (3) may be renewed for such period as may be prescribed, by the market committee from time to time on application made in this behalf by licensee and [on payment of such fee not exceeding rupees two hundred as the market committee may fix].
(5) The market committee may refuse to issue or renew any licence under this Section in favour of any person if it is satisfied that such person has previously been convicted by a court of law for an offence punishable under this Act.
(6) The market committee may, after giving the holder of a licence under this Section an opportunity of showing cause in such manner as may be prescribed, cancel his licence or suspend it for such period as it thinks fit for any breach of the terms and conditions of the licence or for any contravention of the provisions of this Act.
(6A) When a licence is cancelled or suspended under Sub-section (6), the licensee may appeal, in such manner as may be prescribed, to an officer of the State Government not below the rank of a Superintendent of Agricultural Marketing having jurisdiction over the area, as may be specified by the State Government by an order issued in this behalf, and the decision of such officer shall be final.
(7) Where a licence is cancelled or suspended under Sub-section (6), the licensee shall not be entitled to any compensation therefor, nor shall he be entitled to the refund of any fee paid by him for the licence.
(8) When a licence is lost, destroyed, torn or defaced, the market committee shall, on application made in this behalf by the licensee, and on payment of such fee as may be prescribed, issue a duplicate licence in the manner prescribed.
On a reading of the said Section 13 it appears that the grant of licence by the Market Committee for the purpose as stipulated in the said provision relates to any market as set up in the market area, which means a market area declared under Sub-section (1) of Section 3. Another regulatory provision is Section 17 of the Marketing Act by which Market Committee may impose levy of fees on any agricultural produce sold in the market area. Section 17 reads such:
Levy of fee by market committee.- (1) Notwithstanding anything contained in the Bengal Finance (Sales Tax) Act, 1941 or any other law relating to taxation of agricultural produce in force, the market committee shall levy fees on any agricultural produce sold in the market area, at a rate which shall not be [* * *] more than two rupees per one hundred rupees of the amount for which the agricultural produce is sold, whether for cash or for deferred payment or for other valuable consideration, irrespective of the fact that the buyer of the produce is the Central Government or the State Government or an agent [or undertaking] of either of them or a corporation constituted under any law for the time being in force.
Provided that no fee shall be levied in the same market area, more than once, in relation to the same agricultural produce irrespective of the number of transactions.
Explanation I.- For the purpose of this Sub-section all agricultural produce taken out, or proposed to be taken out, of a market area shall, unless the contrary is proved, be presumed to have been sold within such area.
Explanation II.- In the determination of the amount of the fees payable [under this sub-section], any fraction of ten paise less than five paise shall be disregarded and any fraction of ten paise equal to or exceeding five paise shall be regarded as ten paise.
Explanation III.- For the purpose of this Sub-section all agricultural produce stored in the cold storages within the market area shall, unless the contrary is proved, be presumed to have been stored for the purpose of sale.
(2) The fees referred to in Sub-section (1) shall be paid by the purchaser of the agricultural produce concerned [* * *] in the following manner, namely:
(i) when a licensed trader is the buyer of any agricultural produce, he shall pay the fees to the market committee in the prescribed manner within a week from the date of the transaction,
(ii) when a licensed trader is the seller of any agricultural produce and the buyer is not licensed, the trader shall recover the fees from the buyer and deposit the same in the prescribed manner with the market committee within a week from the day of the transaction,
(iii) the market committee may authorize its officers or staff or [any other person] to realize the fees directly from the buyer.
It is a settled legal principle for interpreting a statutory provision that all the statutory provision should be considered and looked into while interpreting any provision to give a harmonious meaning having regard to the object and purpose of the Act. It is also a settled legal position that the text and context of the statute both to be considered while interpreting a statutory provision and every word and every phrase of the statute must have a meaning. Reliance may be placed to the judgment passed in the case Reserve Bank of India Vs. Peerless General Finance and Investment Co. Ltd. and Others, , wherein in para 33 the Apex Court discussed the issue in the following language:
Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then Section by section, Clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word had a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the court construed the expression ''Prize Chit'' in Srinivasa and we find no reason to depart from the court�s construction.
It is also a settled legal proposition of law that while interpreting any statutory provision and construction thereof, as a general rule nothing could be added or taken away from a statute unless there are adequate grounds to justify its interference on the ground that legislatures intended something, which it omitted to express as it appears in page 33 of Maxwell Interpretation of Statutes, 12th Edition. Having regard to such settled rule for interpreting a statute, now we have to consider the true purpose and object thereof. From the preamble of the act, its object and reasons thereof, it is explicitly clear that the said Marketing Act, 1972 was enacted for the purpose of regulating the market place as well as sale and purchase of the agricultural produce for the benefit of the traders, small business men engaged in sale of the agricultural produce by providing scope for declaration of an area as market area, sub-market area, marketing yard etc. and further for setting up of Market Committee to utilize the fund for development of the market in the manner as stipulated in details under Clause 36G of the said Act. The vires of the act unsuccessfully was challenged in Apex Court with reference to the similar Marketing Act introduced by other States. The West Bengal Marketing Act also was challenged unsuccessfully so far as declaration of any place as market area on the ground that uncanalized power was vested to the State Government to declare any area as market area in the writ application being Civil Rule No. 241 (W) of 1979, which stood rejected by the judgment and order dated 16th July, 1984 passed by Suhas Chandra Sen, J. (as His Lordship then was). The relevant portion of the said judgment as relied upon by the learned advocate for the appellant, the Islampur Municipality, reads such:
In my opinion, none of these points are of any substance. It is true that the West Bengal Act, unlike some of the other Acts which came up for consideration before the Supreme Court, does not provide for any enquiry before notifying an area as a market area. But that does not mean that the notification would be issued by the State Government arbitrarily. If the State Government is invested with the power to do something for public good, there is no reason to assume that the power will be used arbitrarily or the Act will become inherently unconstitutional. The object which the Act was passed is clear. I have already referred to the various provisions of the Act. The Act tries to ensure satisfactory conditions for the growers of agricultural produce to sell their goods and get a fair price for the goods that are sole. Shah, J. in the case of Jan Mohammad Noor Mohammad Begban Vs. State of Gujarat and Another, observed, after referring to the provisions of the Gujarat Agricultural Produce markets Act:
The ordinary cultivator in our country suffers from many handicaps; he is generally illiterate, and often ignorant of the prevailing price in the market of agricultural produce. Establishment of regulated markets is a well known expedient for ameliorating the condition of the agricultural producers by eliminating the middlemen and bringing the consumers in direct contact with the producers and thereby securing an ordered plan of agricultural development. The Legislature has, by the Act, attempted, with this object in view, to set up machinery for declaring certain areas as markets and for setting up market yards in which the business of selling and buying agricultural produce may be carried on. The Act provides for the constitution of market committees authorized to maintain and manage the markets and to effectuate supervision, prevent adulteration and promote grading and standardisation of the agricultural produce and to enforce in the market area the provisions of the Act and the bye-laws. For that purpose the market committees are authorized to grant licences and levy fees within the maxima as may be prescribed by the rules framed under the Act.
The West Bengal Act is also trying to render the same facilities to the growers of agricultural produce. The object is to help them to get a fair return for the goods they produce. Power has been given to the State Government to set up Market Committees and to declare notified areas as market areas. I fail to see how this power can be described as arbitrary power. As was pointed out by the Supreme Court in the case of Lakhan Lal and Others etc. Vs. The State of Bihar and Others etc., :
The State Government is not bound to implement the Act and the rules in all parts of Bihar at the same time. It may establish markets regulating the sale and purchase of the agricultural produce in different parts of Bihar gradually and from time to time.
In that case, the Supreme Court repelled the argument, in construing a similar Act passed by the Bihar Legislature, that the provisions were discriminatory and violative of Article 14 of Constitution. The Supreme Court held that the setting up of a market in Gaya was not discriminatory. As has been pointed out on behalf of the Respondents that the Act seeks to provide marketing facilities for growers of agricultural produce all over the State and a beginning must be made somewhere. In this case, in the Malda District Samsi has been chosen as the first place for setting up of a regulated market.
The State Government has been invested with the power to issue notification to implement the policy laid down in the Act. The policy is quite clear. It is to provide marketing facilities to the producers as well as the traders. The object is to make available to the growers of agricultural produce a ready market within easy reach. Other marketing facilities like storage of goods, proper weights and measures and many other amenities are also to be provided in the market area. Merely because some discretion is given to the State Government in the matter of selecting the area for providing these marketing facilities, the Statute will not become void or discriminatory. It may not be possible to provide marketing facilities in the entire State all at once. These facilities will have to be built up slowly all over the State. It has been noted by the Supreme Court in the case of Kewal Krishan Puri and Others Vs. State of Punjab and Another, that the entire State of Punjab now enjoys the marketing facilities under the corresponding Punjab Act. The marketing facilities are being provided for the benefit of the people of the notified area. The project has to be started initially somewhere in the State. In the District of Malda, Samsi has been chosen as the first market area. The traders operating in that area cannot be heard to say that in choosing this area, discrimination has been practised against them. The facilities that are being created will enormously benefit and growers. The traders will also be able to take advantage of the facilities that will be provided. The system of licensing has been introduced to keep the unlicensed traders away from the marketing area. Even though the traders will have pay fee for doing business, it cannot be said that any discrimination is being practised against them of that the fee that is being levied is arbitrary in any manner at all.
The object of the Act has been stated to be "to provide for the regulation of marketing of agricultural produce in West Bengal". The Statute has given the State Government and power to implement the scheme evolved by the Statute. There is no reason to assume that this power will be abused. Whether in a given case power has been properly exercised by the appropriate authority would have to be considered when the occasion arises. But a Statute cannot be struck down merely because power has been given to the State Government to implement the policy contained in the Statute. In implementing the policy, the State Government has to decide upon the area in which the scheme will be started. The Supreme Court in the case of Jan Mohammad Noor Mohammad Begban Vs. State of Gujarat and Another, rejected the contention that the Gujarat Agricultural Produce Markets Act was ultra vires the Constitution. It was stated by the Supreme Court in that case that the object of the Act was to ameliorate the conditions of agriculturists and to do away with the middlemen, who made large and unconscionable profits out of the transactions carried out through them. The Supreme Court repelled the argument that the authority conferred upon the Director was wide and arbitrary in the following words:
The preamble to the Act and the scheme of the Act clearly indicate that the power conferred upon the Directors are to be exercised for the purpose of regulating, buying the selling of agricultural produce and for that purpose to establish markets for sale and purchase of agricultural produce.
The scheme of the West Bengal Act is basically the same as that the of the Gujarat Act. Unlike the West Bengal Act, the Gujarat Act requires hearing of objections before any area is declared to be "the market area". But that, in my opinion, does not make any difference to the question whether the power that is to be exercised by the State Government is uncanalised and without any guide line. The object of the Act is to regulate buying and selling of agricultural produce and establishment of markets for that purpose. The State Government has been given the power to select areas for setting up such markets to implement the object of the Act. I fail to see how any question of conferment of naked and arbitrary power upon the Executive arises in this case.
It was next contended that the area that was chosen is far too wide and spans over 1000 Sq. Kms. And it will be very difficult for the agriculturists to travel to the market area from far of places. It was argued that in fact, the agriculturists were still using the already existing huts for selling their goods.
This argument again is of no substance. The Act envisaged not only setting up of a market area but also sub-markets. It was stated on behalf of the State Government that already six sub-markets have been built in that area. My attention was also drawn to the case of Lakhan Lal and Others etc. Vs. The State of Bihar and Others etc., . There the entire District of Gaya was declared to be the market area. But the Supreme Court had no hesitation in upholding the validity of the Bihar Act.
Having regard to the preamble and the object as well as the judicial views expressed by the Apex Court as referred to in the said judgment as quoted, we have to consider the point as urged by the respective parties. Section 3 is the provision for declaration of market area. Under Sub-section (2) of Section 3 the specified agricultural produce in terms of the notification was regulated regarding sale and purchase within the market area as well as setting up of any market place thereof. On the other hand, Section 4 is the provision for declaration of any enclosure, building or locality within the market area as principal market yard or sub-market yard as the case may be. Under Sub-section (2) of Section 4 the Government was vested with the power to issue notification debarring any local authority or any other person to set up, establish or continue or allowed to be continued any place for the purchase, sale, storage or processing of any agricultural produce within such distance of the principal market or a sub-market area as to be specified in the notification. The agricultural produce has been defined u/s 2(1)(a) by specifying a schedule to the Act. The distinction between Section 3 and 4 so far as debarring the sale and purchase of the agricultural produce is that under Sub-section (2) of Section 3 in a market area the specified agricultural produce as to be notified could be regulated by the Government so far as its sale, purchase as well as setting up of/establishment of any place to allow such sale/purchase of specified agricultural produce, whereas, under Sub-section (2) of Section 4 of the said Act, all the agricultural produce in terms of the schedule of the Act could be the subject matter of notification imposing a ban to set up any market for the purpose of sale, purchase of those agricultural produce within certain distance from the principal market yard or sub-market yard. In terms of Section 4 Sub-section (1) and (2), accordingly, the State Government is within its jurisdiction to notify any area as a principal market yard restraining the local authority and any other person to set up any place as market place. The writ petitioners practically suffered a judgment from the earlier Division Bench so far as setting up of any market place for which he applied for grant of licence to the Municipal Authority u/s 278 read with Section 281 of the West Bengal Municipal Act, 1993 for the reason that the said Division Bench in F.M.A. 11 of 2004 against which SLP was moved by Islampur Municipality, passed a decision "that in terms of the notification of 1974 as the sufficient materials were not placed to identify whether concerned plot of the writ petitioner was falling within the regulated market area, in the event the area concerned falls within the regulated market area, the writ petitioner would have to apply for grant of a licence to sale and purchase the agricultural produce to the Market Committee". The said judgment was reported in 2005 (1) CHN 1. In paragraph 12 of the report the Division Bench held accordingly:
In case the said area does not fall within the area covered under the declaration issued u/s 4 of the 1972 Act and not hit by the declaration under Sub-section (2) thereof, in that event, the Municipality cannot refuse to grant licence to the petitioner. But in case the said land falls within the area covered under the notification issued either under Sub-section (1) or under Sub-section (2) of Section 4 of the 1972 Act, in that event, the petitioner has no right to establish and run a market on the said land except in accordance with the provision of the 1972 Act. Though he may exercise all his rights of ownership in respect of the said land and the property and carry on business under the licence granted by the Regulated Market Committee. He may exercise all other rights on the property as would be permissible under the 1972 Act but cannot claim any independent right to establish and run a market on the said land except otherwise than as provided in the 1972 Act. The 1972 Act has given overriding effect to its provisions in Section 37 of the 1972 Act. Therefore, the Municipality has no authority to grant license to the petitioner if the land is covered by the notification u/s 4 of the 1972 Act. The petitioner may apply to the Regulated Market Committee, if he is so advised, for appropriate permission for construction of stall or letting it out or carrying on his own business in accordance with the laws and the rules after obtaining sanction for such construction from the Municipality. If the land is not hit by the said declaration u/s 4 of the 1972 Act, then only he could apply for a licence and the Municipality can consider the case for grant of licence and not otherwise. However, by reason of Section 28, it is open to the State Government to acquire the said land under the Land Acquisition Act, 1894. In case the land is covered within the declaration u/s 4, in that event, it would be open to the State Government to acquire the said land. It appears that the Municipality has already taken a resolution for acquiring the said land. In that circumstances, let the acquisition of the land be undertaken within a period of 1 (one) year from today. In case it is not acquired, in that event, if the petitioner applies for construction of market stalls, in that event, the petitioner may be to permitted to do but regulated under the provisions of 1972 Act and may carry on business by himself or by his agents or anyone who will obtain or occupy stalls, however under the licence granted by Regulated Market Committee in terms of Section 13 of the 1972 Act.
It appears that against this judgment, the Islampur Municipality preferred Special Leave Petition, wherein, it was contended that a subsequent notification No. 3966-MW&C/IM-7/89 dated 30th June, 1993 as issued by the Government of West Bengal by the order of the Hon�ble Governor in exercise of the power conferred by the Sub-section (1) of Section 4 of the said Marketing Act, 1972 declaring the area as principal market yard since was not produced before the Division Bench aforesaid, the Division Bench could not consider the applicability of Marketing Act, 1972 in the case of the petitioners'' application. Accordingly, the matter has been remanded back for consideration of that notification.
It appears from the said notification dated 30th June, 1993 that Mouzas Islampur and Choprajhar were declared as principal market yard. It is an admitted position as it appears from the affidavit filed by Islampur Regulated Market Committee, respondent No. 2, as affirmed on 6th May, 2008 by one Sri Pradip Singha as referred to earlier that plot No. 676 of Mouza Choprajhar Bazar under P.S. Islampur, Dist. Uttar Dinajpur is located within the notified market area of Islampur Regulated Market Committee and same is also within the 10 Kms. distance of principal market yard of Islampur Regulated Market Committee, which is situated at Mouza Islampur. It is also an admitted fact now that notification in exercise of the power conferred by Sub-section (2) of Section 4 of the said Marketing Act, 1972 was issued by the order of the Hon�ble Governor declaring that no local authority or any other person, notwithstanding anything contained in any law for the time being inforce, shall set up, establish any place for the purchase, sale, storage or processing of any agricultural produce and to set up any new marketing infrastructure within the 10 Kms. of principal market yard/sub-market yard of the Regulated Market Committees under the control of Agricultural Marketing Department by notification No. 1418-MW&C/9M-22/2006 dated 10th April, 2007, which is already quoted in earlier paragraph. The relevant portion of affidavit-in-opposition, which has not been denied by the writ petitioner being paragraph 6(a), 6(b), 7(a), 7(b) and 8 reads such:
6(a). Admittedly the fish market in plot No. 676, Mouza: Choprajhar Bazar, Police Station: Islampur, District: Uttar Dinajpur is located within the notified market area of Islampur Regulated Market Committee. As such, the respondent No. 1/writ petitioner cannot set up, establish or continue any place for the purchase or sale of fish, an item of agricultural produce (meaningfully at market) within the notified market area save and except with the provision of the said Act, 1972 and Rules frame thereunder.
6(b) Consequently, the appellant municipality has no authority to issue the licence for running the fish market in plot No. 676 within the notified market area of Islampur Regulated Market Committee. Even in case of conflict between the Municipal Authority and the Market Authority in running a market of agricultural produce within the municipal area vis-�-vis the notified market area, the said Act, 1972 will prevail.
7(a). Ultimately, the State Government in exercise of the power conferred under Sub-section (2) of Section 4 of the said Act, 1972 declared that no local authority or any other person shall set up, establish any place for the purchase, sale, storage or processing of any agricultural produce and to set up any new marketing infrastructure within 10 Kms. of the principal market yard/sub market yard of Islampur Regulated Market Committee by a gazette notification No. 1418-MW&C/9M-22/2006 dated 10th April, 2007.
7(b) A copy of the said notification No. 1418-MW&C/9M-22/2006 dated 10th April, 2007 is annexed hereto and marked as "Annexure-R4".
Undeniably, the fish market in plot No. 676 is located within 10 Kms. of the principal market yard of Islampur Regulated Market Committee at Mouza: Islampur, Choprajhar, J.L. No. 60 and J.L. No. 57 within Islampur Police Station.
In the said Marketing Act, 1972 under Clause (8) of the schedule the first item mentioned as ''poultry'', second item ''egg�, third item ''cattle'', thirteen item ''goat meat and mutton'' and fourteen item is ''fish''. Having regard to the fact that under Sub-section (2) of Section 4, already a notification has been issued declaring the entire Mouza Choprajhar and Mouza Islampur as principal market yard and a further notification has been issued that within 10 Kms. distance of such Mouza no agricultural produce in terms of the schedule of the said Act could be the subject matter of sale and purchase by setting up/establishing any place for the said purpose of sale, purchase and storage and/or processing, the writ petitioners accordingly were not entitled to set up a market at Mouza Choprajhar Bazar due to said notification dated 10th April, 2007 and his application to the Islampur Municipality is not entertainable as there is a nonobstante Clause in Sub-section (2) of Section 4, whereby anything contrary in any other law for the time being was restrained to have his application overriding the provision of Marketing Act, 1972. Having regard to such, Section 278 and 281 of West Bengal Municipal Act, 1993, whereby and whereunder the Municipality was empowered to grant any licence to set up a market place by a private person accordingly has been made ineffective for the purpose of setting up a market in the specified area within the principal market yard in terms of the Marketing Act, 1972. Section 278 and 281 of the West Bengal Municipal Act, 1993 reads such:
Private markets and slaughter houses.- (1) No place, other than a municipal market, shall be used as a market unless such place has been licensed as a market by the Board of Councillors under the provisions of this Chapter on such terms and conditions as the Board of Councillors may determine.
(2) No place, other than a municipal slaughter house, shall be used as a slaughter house:
Provided that nothing in this Sub-section shall be deemed:
(a) to restrict the slaughter of any animal in any place on the occasion of any religious festival or ceremony, subject to such conditions as the Chairman-in-Council may, by public or special notice, impose in this behalf, or
(b) to prevent the Board of Councillors from setting apart any place for the slaughter of animals in accordance with the religious custom in vogue.
(3) The Chairman-in-Council may require the owner or the occupier of any licensed private market to provide approach road or passage or pave, drain or light or to provide such conveniences for the use of persons resorting to such markets as it may deem it.
Municipal licence specially for sale of flesh, fish or poultry.- (1) No person shall, without or otherwise than in conformity with a licence from the Board of Councillors, carry on the trade of butcher, fishmonger, poulteror or importer of flesh intended for human food or use any place for sale of flesh, fish or poultry intended for human food:
Provided that no person shall sell or expose for sale any flesh obtained from an animal unless the skinned carcass of the animal is stamped in such manner as the Board of Councillors may, by general order made in this behalf, require in token of the fact that the animal has been slaughtered in a municipal or licensed slaughter house:
Provided further that no licence shall be required for any place used for sale or storage for sale of preserved flesh or fish contained in air-tight or hermetically sealed receptacles.
(2) The Board of Councillors may, by order and subject to such conditions as it may, upon supervision and inspection, think fit to impose, grant a municipal licence or may, by order and for reasons to be recorded in writing, revoke the same.
(3) The Board of Councillors may, by regulation, determine the procedure for the issue of licence and its renewal, fix the standard of edibility of meat and fish, and provide for inspection and analysis of samples of such meat and fish.
(4) If any place is used for the sale of flesh, fish or poultry in contravention of the provisions of this section, the Chairman may stop the use thereof by such means as he may consider necessary.
Having regard to the fact that there is a non-obstante Clause so far as applicability of other provisions of law in Sub-section (2) of Section 4 of the said Marketing Act, the Marketing Act, 1972 will prevail and the Municipality cannot grant any licence to the writ petitioner.
It has been urged by the learned advocate for the respondent-writ petitioner that the Marketing Act is a regulatory statute, so there is no scope to impose any prohibition as has been intended to by Sub-section (2) of Section 4 of the said Marketing Act, whereby and whereunder all agricultural produce as scheduled have been brought under the prohibitory Clause prohibiting setting up of any private market for sale, purchase of those agricultural produce as mentioned in the schedule of the Act and/or to sale, purchase those agricultural produce, save and except the sanction/permission of Market Committee upon having proper grant of licence to that effect.
From the judgment of the Apex Court it appears that this point was urged before the Apex Court, accordingly, the Apex Court as indicated in the order of remand observed that the High Court should consider all connected issues raised before the Apex Court, namely, that Marketing Act is nothing but a statute regulating the functioning of the market area. To deal with that point whether any prohibition could be issued in terms of the Marketing Act prohibiting the sale, purchase of agricultural produce as mentioned in the schedule of the Act and for setting up a private market within the market area, the object of legislation will throw a light.
It appears from the object and reasons as already quoted in earlier paragraph that the object of the Act is to provide for the regulation of marketing of agricultural produce in the West Bengal and also to regulate buying and selling of agricultural produce by establishing markets for agricultural produce in the State of West Bengal. Accordingly, in the object it has been stated that earlier in the West Bengal Markets Regulation Act, 1968 there was some lacuna in the statute whereby the wholesale traders could be restrained to carry the business within the market yard and also in the market area and accordingly provisions have been made in the statute, namely, Marketing Act, 1970 with the object to check up such trading and as such, in the object and reason it is mentioned as follows: "It has merely sought to regulate the activities of the users of Markets recognized as such. Its provisions are liable to be by-passed and are in fact being by-passed by the operators of wholesale trading carried on in ''mandis'' and ''ganjas'' outside the market precincts. Unless the market yard, the market proper and the market area are adequately defined and brought within the ambit of regulation, a large part of the buying and selling of agricultural produce may evade the operation of the Act". On a bare reading of the said object it appears that only for a remedial measure to restrain the wholesale traders from carrying on business in mandis and ganjas, the present statute has provided measures by defining the market yard, market area and market proper adequately. A point has been thrashed that as the word "regulation" does not carry any word of prohibition, the Marketing Act cannot prohibit to set up any private market within the market yard as intended under Sub-section (2) of Section 4 by a notification as issued prohibiting to set up any private market yard within 10 Kms. of the market yard. To consider this argument, meaning of the word "regulation" and its purpose and effect to be considered. The words and phrases "regulation" and "prohibition" was considered by the Apex Court while answering the issue under Essential Commodities Act, 1955 and more particularly the Section 3(2)(d) of the said Act to identify whether the word "regulating" includes prohibition in the context of statute, in the case K. Ramanathan Vs. State of Tamil Nadu and Another, , a judgment of three Judges Bench, wherein in paragraphs 18, 19, 20 and 21 the Apex Court discussed the issue, which reads as such:
The word ''regulation'' cannot have any rigid or inflexible meaning as to exclude ''prohibition�. The word ''regulate'' is difficult to define as having any precise meaning. It is a word of broad import, have a broad meaning, and is very comprehensive in scope. There is a diversity of opinion as to its meaning and its application to a particular state of facts, some courts giving to the term a somewhat restricted, and others giving to it a liberal, construction. The different shades of meaning are brought out in Corpus Juris Secundum, Vol. 76 at page 611:
"Regulate" is variously defined as meaning to adjust; to adjust, order, or govern by rule, method, or established mode; to adjust or control by rule, method, or established mode, or governing principles of laws; to govern; to govern by rule; to govern by, or subject to, certain rules or restrictions; to govern or direct according to rule; to control, govern, or direct by rule or regulations.
"Regulate" is also defined as meaning to direct; to direct by rule or restriction; to direct or manage according to certain standards, laws, or rules; to rule; to conduct; to fix or establish; to restrain; to restrict.
See also: Webster�s Third New International Dictionary, Vol. II, p. 1913 and Shorter Oxford Dictionary, Vol. II, 3rd Edn., p. 1784.
It has often been said that the power to regulate does not necessarily include the power to prohibit, and ordinarily the word ''regulate'' is not synonymous with the word ''prohibit�. This is true in a general sense and in the sense that mere regulation is not the same as absolute prohibition. At the same time, the power to regulate carries with it full power over the thing subject to regulation and in absence of restrictive words, the power must be regarded as plenary over the entire subject. It implies the power to rule, direct and control, and involves the adoption of a rule or guiding principle to be followed, or the making of a rule with respect to the subject to be regulated. The power to regulate implies the power to check and may imply the power to prohibit under certain circumstances, as where the best or only efficacious regulation consists of suppression. It would therefore appear that the word ''regulation'' cannot have any inflexible meaning as to exclude ''prohibition�. It has different shades of meaning and must take its colour from the context in which it is used having regard to the purpose and object of the legislation, and the Court must necessarily keep in view the mischief which the Legislature seeks to remedy.
The question essentially is one of degree and it is impossible to fix any definite point at which ''regulation'' ends and ''prohibition'' begins. We may illustrate how different minds have differently reacted as to the meaning of the word ''regulate'' depending on the context in which it is used and the purpose and object of the legislation. In Slattery v. Nalyor, the question arose before the Judicial Committee of the Privy Council whether a bye-law by reason of its prohibiting internment altogether in a particular cemetery, was ultra vires because the Municipal Council had only power of regulating internments whereas the bye-law totally prohibited them in the cemetery in question, and it was said by Lord Hobhouse, delivering the judgment of the Privy Council:
A rule of bye-law cannot be held as ultra vires merely because it prohibits where empowered to regulate, as regulation often involved prohibition.
In context, in Municipal Corporation of the City of Toronto v. Virgo, where the question for decision was whether a Section or a byelaw prohibiting hawkers from plying their trade, was competently and validly made, Lord Davey delivering the judgment of the Privy Council while laying down that a power to make a bye-law to ''regulate'' and ''govern'' a trade does not authorize the prohibition of such trade, and added:
There is a marked distinction between the prohibition or prevention of a trade and the regulation or governance of it, and, indeed, a power to ''regulate'' and ''govern'' seems to imply the continued existence of that which is to be regulated or governed.
The same issue was considered earlier by the Apex Court in the case State of Tamil Nadu Vs. Hind Stone and Others, while interpreting the provision of Tamil Nadu Minor Mineral Concession Rules, 1959 framed u/s 15 of the Mines and Minerals (Regulation and Development) Act, 1957. Paragraph 10 of the said report will be profitable for discussing the present issue, is quoted in extenso:
One of the arguments pressed before us was that Section 15 of the Mines and Minerals (Regulation and Development) Act authorized the making of rules for regulating the grant of mining leases and not for prohibiting them as Rule 8-C sought to do, and, therefore, Rule 8-C was ultra vires Section 15. Well known cases on the subject right from Municipal Corporation of the City of Toronto v. Virgo and Attorney- General for Ontario v. Attorney-General for the Dominions up to State of U.P. v. Hindustan Aluminium Corporation Ltd., were brought to our attention. We do not think that ''regulation'' has that rigidity of meaning as never to take in ''prohibition''. Much depends on the context in which the expression is used in the statute and the object sought to be achieved by the contemplated regulation. It was observed by Mathew, J. in G.K. Krishnan v. State of Tamil Nadu: "The word ''regulation'' has no fixed connotation. Its meaning differs according to the nature of the thing to which it is applied�. In modern statutes concerned as they are with economic and social activities, ''regulation'' must, of necessity, receive so wide an interpretation that in certain situations, it must exclude competition to the public sector from the private sector. More so in a welfare State. It was pointed out by the Privy Council in Commonwealth of Australia v. Bank of New South Wales � and we agree with what was stated therein � that the problem whether an enactment was regulatory or something more or whether a restriction was direct or only remote or only incidental involved, not so much legal as political, social or economic consideration and that it could not be laid down that in no circumstances could the exclusion of competition so as to create a monopoly, either in a State or Commonwealth agency, be justified. Each case, it was said, must be judged on its own facts and in its own setting of time and circumstances and it might be that in regard to some economic activities and at some stage of social development, prohibition with a view to State monopoly was the only practical and reasonable manner of regulation. The statute with which we are concerned, the Mines and Minerals (Development and Regulation) Act, is aimed, as we have already said more than once, at the conservation and the prudent and discriminating exploitation of minerals. Surely, in the case of a scarce mineral, to permit exploitation by the State or its agency and to prohibit exploitation by private agencies is the most effective method of conservation and prudent exploitation. If you want to conserve for the future, you must prohibit in the present. We have no doubt that the prohibiting of leases in certain cases is part of the regulation contemplated by Section 15 of the Act.
Having regard to the discussion made by the Apex Court about the meaning of the word "regulation" and purpose of any regulatory act/statute, it is clear that regulatory act may also consist to some degree of prohibition for the purpose of effecting the full applicability of the regulatory provision and as such, the same is not ultra vires.
In the case Municipal Corporation of the City of Toronto v. Virgo reported in [1896] A.C. 88 P.C., which has been considered by the Apex Court in the case Hind Stone and Ors. (supra) was considered by the House of Lords also in the case Tarr v. Tarr reported in (1973) A.C. 254, wherein it is held at page 265, para (h) that "unless the context so requires mere simplicitor power to regulate does not include power to prohibit".
As discussed earlier that the object of framing of the legislation to regulate the marketing of agricultural produce has a social welfare root, a beneficial piece of legislation to protect the interest of small traders, agriculturist, farmers by setting up the market yard, market area, sub-market area etc. and also by setting up the market under the Marketing Act so that they may earn proper value of agriculture produce by selling those, which earlier was being not possible due to the entry of big traders in the market field. With that object, it is mentioned that earlier West Bengal Markets Regulation Act, 1970 was repealed to frame the present Market Regulation Act, 1972 by removing the deficiencies of the said West Bengal Act 7 of 1970 by stipulating the specific object of setting up of market yard, market proper and market area and to bring them within the ambit of regulation so that the operators of wholesale trading as carried on may not by-pass the statutory provision and thereby engage themselves in buying and selling the agricultural produce to evade the operation of the Act by carrying such trading on in mandis and ganjas outside of the market precincts. As already discussed earlier that it is a solitary principle of construction of a statute that text and context to be considered by wearing a glass of legislatures to understand the every phrase, word, sentence of the statute for giving a proper and appropriate meaning as held by the Apex Court in the case Reserve Bank of India (supra).
The Marketing Act, 1972 is a provision to safeguard the interest of small traders. The Act provides a relief to them so that they can run their own business of sale and purchase of their agricultural produce at the appropriate rate in a market having all infrastructural facilities.
Having regard to that object, in the Marketing Act, 1972, the "regulation" as made for the purpose of regulating the marketing of agricultural produce by setting up market area, market yard and sub-market yard and thereby necessary provision as has been made restraining the setting up of private market within the market yard and/or within certain distance of the market yard in terms of Sub-section (2) of Section 4 of the said Act, cannot be said as outside of the ambit of Marketing Regulation Act, irrespective of the fact that the Act has been specified as "regulating of marketing of agricultural produce". The degree of prohibition in terms of Sub-section (2) of Section 4 is within the ambit of regulatory provision.
Having regard to such, the argument as advanced by the respondentwrit petitioner that the Act being a regulatory one cannot express any prohibition to set up any market place, has no legal basis in view of specific prohibitory provision to some degree in the Act itself. From the object of the Act and the preamble it appears that the Act is not merely a regulatory one but it also includes prohibition so far as setting up of any market place and/or running of the business of sale and purchase of agricultural produce as scheduled for the welfare of the common agriculturist/traders/farmers etc. Since the Act itself is a social welfare legislation to protect the small farmer/traders/agriculturist from the hand of middlemen, we are of the view that the Act was enacted with that purpose of regulation and prohibition to some degree so far as sale and purchase of certain agricultural produce as mentioned in the schedule and on setting up of private market.
Beside such, the vires of the said provision is not the subject matter of challenge in this writ application. Having regard to all the findings and observation this Court is of the view that considering the notification dated 30th June, 1993 read with subsequent notification dated 10th April, 2007 and considering the object of the Act and the statutory provisions as discussed, the Islampur Municipality has no jurisdiction/authority to grant any licence for setting up/running a private market in favour of the writ petitioner. Accordingly, the impugned order of the writ application rejecting the application seeking licence by the Islampur Municipality on the ground that in terms of the Marketing Act, 1972, the Municipality had no authority to grant it, cannot be considered as arbitrary or illegal decision.
Hence, the impugned judgment under appeal is set aside and quashed, the writ application stand dismissed. Appeal is, thus, allowed.
Manik Mohan Sarkar, J.
I agree,
Later:
Let urgent xerox certified copy of this order, if applied for, be given to the learned advocates appearing for the parties expeditiously.