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Shivcharan Singh Madan Lal and ors. Vs. the State of Punjab and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Nos. 6275 and 5916 of 1974
Judge
Reported inAIR1976P& H262
ActsPunjab Agricultural Produce Markets (General) Rules, 1962 - Rule 2; Principal Markets Act; Punjab Agricultural Produce Markets Act, 1961 - Sections 43(2)
AppellantShivcharan Singh Madan Lal and ors.
RespondentThe State of Punjab and ors.
Appellant Advocate R.L. Aggarwal and; Amar Datt, Advs.
Respondent Advocate V.P. Prashar,; N.K. Sodhi and; G.R. Majithia, Advs.
DispositionPetitions dismissed
Excerpt:
..... - ashri, learned counsel for the petitioners, after referring to the definition of 'trade allowance' as contained in section 2 sub-section (s) urged that the term 'trade allowance' having included within its ambit allowance having the sanction of the custom in the notified market area concerned as well as the market charges payable to various functionaries and the expression 'allowance 'and 'market charges' having not been further defined, it would be open to the rule-making authority to bring all the chargeable items within the ambit of 'market charges' and by virtue of the provisions of section 30 of the market act make them payable by the buyer or do it vice versa by naming them to be 'allowances' and make them payable by the seller. the objects and reasons attached..........referred to as the market act) had only the power to frame rules specifying the rate of the trade allowance and not to earmark the persons who had to pay the same. i am afraid there is no merit in the aforesaid stand of the petitioners.6. the relevant provision of section 43 of the act is in the following terms:--'in particular, and without prejudice to the generality of the foregoing power, such rules may provide for:-- (xii) the trade allowance which may be made or received by any person in any transaction in an agricultural produce in a notified market area.' 7. a perusal of the aforesaid provision would leave no doubt that the power of the rule-making authority was not confined to the laying down of the rate of the trade allowances but it also extended to the identifying of.....
Judgment:

D.S. Tewatia, J.

1. The petitioners in the two writ petitions Nos. 6275 of 1974 and 5916 of 1974, seek a common pronouncement from this Court to the effect that the amendments sought to be effected to the existing definition of 'incidental charges' and 'market charges' in the Punjab Agricultural Produce Markets (General) Rules, 1962, (hereinafter referred to as the Market Rules) by notification Exhibit P-l dated 3rd May, 1974, are invalid being ultra vires the powers of the rule-making authority, that is, the Government.

2. The existing rule prior to the impugned amendment, incorporating the definition of 'incidental charges' and 'market charges' is Rule 2, Clauses (8) and (11) respectively of the Market Rules and these clauses read as under:--

'(8) 'Incidental charges' means the charges payable in lieu of the services rendered in connection with the handling of agricultural produce prior to the finalisation of the bid at the auction, such as unloading, cleaning and dressing charges and shall also include remunerations for weighing of the agricultural produce after finalisation of the bid at the auction.'

'(11) 'market charges' means all the charges payable by the buyer in lieu of the services rendered in connection with the handling of agricultural produce after the finalisation of the bid at auction, such as the commission of kacha arhtiya brokerage, auction charges, remuneration for pallederi, filling and sewing but shall not include remunerations for weighing.'

3. A reading of the aforesaid two clauses would show that the items of charges grouped in the category of 'incidental charges' were made payable to various functionaries by the seller and the charges that fell under the category of market charges were required to be paid to the various functionaries by the buyer and the only amendment effected in the aforesaid rule by the impugned notification is that the weighing charges of the agricultural produce after finalisation of the bid at the auction were taken out from the package of 'incidental charges' and were added to that of the 'market charges'. In other words, weighing charges which earlier was the responsibility of seller to pay was now sought to be mada that of the buyer.

4. For facility of reference the relevant provisions of impugned notification at this stage may be reproduced which are in the following terms:--

'(1) These rules may be called the Punjab Agricultural Produce Markets (General) (Second Amendment) Rules, 1974.

(2) In the Punjab Agricultural Produce Market (General) Rules. 1962. in Rule 2.

(3) (i) in Clause (8) the words 'and shall also include remuneration for weighing of the agricultural produce after the finalisation of the bid at the auction' shall be omitted; and (ii) in Clause (11) for the words 'filling and sewing but shall not include remuneration for weighing' the words 'filling, weighing and sewing' shall be substituted.'

5. The petitioners who claim themselves to be the buyers in the concerned respondent market committee have taken up the stand that the rule-making authority by virtue of Section 43 Sub-section (2), Clause (xii) of the Punjab Agricultural Produce Markets Act, 1961, (hereinafter referred to as the Market Act) had only the power to frame rules specifying the rate of the trade allowance and not to earmark the persons who had to pay the same. I am afraid there is no merit in the aforesaid stand of the petitioners.

6. The relevant provision of Section 43 of the Act is in the following terms:--

'In particular, and without prejudice to the generality of the foregoing power, such rules may provide for:-- (xii) The trade allowance which may be made or received by any person in any transaction in an agricultural produce in a notified market area.'

7. A perusal of the aforesaid provision would leave no doubt that the power of the rule-making authority was not confined to the laying down of the rate of the trade allowances but it also extended to the identifying of the trade allowances that were to be made and received in a notified market area. That in fact, the ambit of the aforesaid provision is as wide as mentioned above, is made clear when the same is read with the provisions of Section 30 of the Market Act, which is in the following terms:--

'No trade allowance, other than an allowance permitted by rules or bye-laws made under this Act, shall be made or received in a notified market area by any person in any transaction in respect of the agricultural produce concerned and no Civil Court shall, in any suit or proceeding arising out of any such transaction, recognise any trade allowance not so permitted: Provided that all market charges shall be paid by the buyer.'

8. Provisions of Section 30 make it clear that only such trade allowances shall be permitted to be made or received in a notified market area by any person in any transaction in respect of the agricultural produce concerned as are permitted by rules or bye-laws made under this Act. The legislature in this provision also made it clear that all market charges shall be paid by the buyer.

9. At this stage Mr. Ashri, learned counsel for the petitioners, after referring to the definition of 'trade allowance' as contained in Section 2 Sub-section (s) urged that the term 'trade allowance' having included within its ambit allowance having the sanction of the custom in the notified market area concerned as well as the market charges payable to various functionaries and the expression 'allowance ' and 'market charges' having not been further defined, it would be open to the rule-making authority to bring all the chargeable items within the ambit of 'market charges' and by virtue of the provisions of Section 30 of the Market Act make them payable by the buyer or do it vice versa by naming them to be 'allowances' and make them payable by the seller.

10. I do not think there is any merit in the contention advanced by the learned counsel. However, before dealing with his contention, it may be useful to recapitulate here a bit of the history of the expression 'Trade Allowance'.

11. In the Punjab Agricultural Produce Markets Act, 1939, the expression 'trade allowance' was defined by Section 2 (g) in the following terms:--

'Trade allowance' includes such allowances as have the sanction of custom in the notified area concerned,'

12. In the Market Act of 1961, trade allowance was defined by Section 2 (s) in the following terms:--

'(s) 'trade allowance' includes an allowance having the sanction of custom in the notified market area concerned and market charges payable to various functionaries.'

13. A comparative study of the two definitions would show that what was termed 'market charges' in the definition of the Act of 1961 stood included in the Punjab Agricultural Produce Markets Act, 1939, in the broad expression 'allowances'. The question arises as to why in the Market Act of 1961, the legislature effected the dichotomy in the definition of the term 'trade allowance' by mentioning the market charges along with the 'allowances' as sanctioned by the custom as the two components of the expression 'trade allowance'. The reason for this is not far to seek. The legislature in Market Act, 1939, had not specified the person who was to pay the 'trade allowances' which probably meant that either the buyer or the seller alone was to pay the same to various functionaries and, therefore, perhaps no necessity was then felt to distinguish the market charges from the allowances, but in the Market Act, 1961, in Section 30 which otherwise is pari materia with Section 22 of the Market Act, 1939, in all other respects, it was provided for the first time that 'market charges' shall be paid by the buyer and hence arose the necessity to define the expression 'trade allowances' more exhaustively.

14. The next question that arises therefore, is as to whether the rule-making authority can, while specifying the allowances and the market charges, so as to include the items of one category into that of the other or do vice versa and thus shift the burden of the buyer to the seller or that of the seller to the buyer.

15. It is, no doubt, true that legislature has not mentioned as to what tantarnounts to be the 'market charges' and what constitutes the 'allowance,' but can it be said that the legislature provided no guidance to determine the same.

16. The legislature when framed the Market Act, 1939, had recognised only such allowances as the trade allowances which had the backing of the custom and the Market Act, 1961, also had recognised only .such allowances as forming part of the expression 'trade allowances' as had the backing of the custom. The objects and reasons attached with the Market Act, 1939, exhaustively listed the customary exactions and deductions almost invariably made at the expense of the seller either in cash or in kind and thus these were known to the legislature as well as all persons concerned with the trade, but the legislature had both in the Market Act, 1939, as also in Market Act, 1961, taken the precaution of specifying that not all the allowances having the backing of the custom shall be made and received in a notified market area, for only such 'trade allowances' were to be permitted to be made and received as were mentioned in the rules and bye-laws. So a discretion was left to the rule-making authority to either give recognition to all 'allowances' having the backing of the custom or pick and choose therefrom depending upon the situation and the circumstances obtaining in various notified market areas.

17. As to the question as to how one was to decide as to whether a particular exaction is an allowance or a market' charge, it must be observed that legislature was not. to give definition of each word used in the enactment for it must be taken that the expressions used in a statute were to carry their ordinary dictionary meaning.

18. The expression 'allowance' is denned in Juris Secundum Volume III at page 891 to mean something conceded as a compensation and in particular connections as referring to a customary deduction from gross weight of goods.

19. That the expression 'allowance' had been understood by the legislature as also the rule-making authority in the sense above mentioned is made clear by a perusal of the provisions of model bye-law 27 as framed by State Marketing Board, Patiala, under Section 44 of the Market Act, 1961, and the relevant portion of it reads:--

'The following trade allowance shall only be made and received within the market area in connection with ready or stop transactions:--

(i) Tare:-- The exact weight of the gunny bag or the packing material used,

(ii) Adjustment of weight:-- Full adjustment of increase or decrease in the weight of the produce found in the test weighment under Rule 25.

(iii) An allowance determined in arbitration under Rule 13.

(2) Each item of allowance charged under Sub-clause (1) shall be separately mentioned in Forms I and J prescribed under the rules.

(3) All samples shall be paid for at sale price, except those taken under bye-law 32.

20. In Juris Secundum Volume 14 at page 402, the meaning assigned to the expression 'charge' when used in commercial sense is the price required or demanded for service rendered.

21. In the Juris Secundum Volume 55 at page 784, the expression 'Market' is said to be usually associated with the sale. inspection, and supervision of food and food products designed for use by persons, and, although it has been extended by some Courts to include food for domestic animals, the underlying idea in the term is the sale of products intended and designed primarily for human consumption.

22. Further when the expression 'Market' is used along with the term ''charges' none is left in any doubt about the meaning and sense that it carries and its true meaning can never be misunderstood. When so understood it would mean the charges for the service render-ed by various functionaries in the effecting of the sale and purchase of the agri-culture product in a notified market area. Such a service could be unloading of the goods when brought into the market, as also their heaping, cleaning, packing, carrying from one place to another in the market area etc. Thus it would be clear even to a layman as to what passes for an 'allowance' and the same can never be misunderstood with what passes for the term 'market charges'.

23. The provision for 'allowance' in my opinion is made to do justice between the buyer and the seller in regard to the weight and quality of the produce while market charges are the charges to be paid to various functionaries for service rendered by them in regard to the marketing of the goods in question.

24. In view of the above it is quite clear that not only charges men-tioned in Clause (11) of Rule 2 but even the charges that have been mentioned in Clause (8) of Rule 2 under the term 'in' cidental charges' are payable by the buyer in terms of the provisions of Section 30 of the Act. The rule-making authority by dividing the market charges into two categories of 'incidental charges' and 'market charges' and then by making the 'incidental charges' payable by the seller had, contrary to the assertion of the petitioners, tried to benefit the buyer at the expense of the seller against the express provision of Section 30 of the Market Act. Hence it is the seller, if at all, who should have a cause of grievance against the existing provisions of Clause (8) of Rule 2 of the Market Rules and not the buyer, against the amendment effected by impugned notification Exhibit P-l in Clause (11) of the said rule which did nothing more than to restore the position as it existed in the original rules framed in 1962, which were amended in 1963, by making the seller to pay the weighing charges as against the unamended Rules of 1962, wherein it was the buyer who was responsible to pay the weighing charges of the produce.

25. For the reasons stated, I am clearly of the view that the amendment effected by the rule-making authority to the existing Market Rules by the impugned notification Exhibit P-l was within its competence and, therefore, the same being intra vires the principal Market Act are valid and legal. In that view of the matter I find no merit in these two writ petitions and dismiss the same but in the peculiar circumstances of the case I leave the parties to bear their own costs.

Pritam Singh Pattar, J.

26. I agree.


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