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Dalsukhbhai Pitamberdas and Co. Vs. the Agricultural Produce Market Committee and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1983)2GLR1561
AppellantDalsukhbhai Pitamberdas and Co.
RespondentThe Agricultural Produce Market Committee and anr.
Cases ReferredI. N. Saksena v. State of Madhya Pradesh A.I.R.
Excerpt:
.....criminal appeal no. 6. this brings us to section 3 of the amending act and here we find that the legislature seems to have been not properly assisted and its attempt to achieve its objective has unfortunately failed. the law about legislature's competence to undo the effects of a valid binding judgment is too well entrenched to call for any elaboration. we are, therefore, having no alternative, but to say that section 3 of the amending act which is impugned in the first of these two petitions is beyond the legislative competence and is therefore, required to be declared ultra-vires but before we say so we would like to examine one argument advanced by mr. if the legislature wanted to do so this, it could have very well said that the word 'section' was to be read as 'sub section (1)'..........in the official gazette,the director may, at any time by exclude any area from a market areanotification in the official gazette, exclude specified in a notification issued underany area from a market area specified in sub-sectiona notification issued under sub-section (1) (1) or include any area therein andor include any area therein and exclude from exclude from or add to the kinds of agri-or add to the kinds of agricultural produce cultural produce 90 specified any kind ofso specified any kind of agricultural agricultural produce. (a notificationproduce. under this sub-section shall also be published in gujarati in a newspaper having circulation in the said area in such other manner as may be prescribed),(underlined portion...amendment)section 3 of the amending act......
Judgment:

N.H. Bhatt, J.

1. These two Special Civil Applications dealing with a common question of law can be taken up together and disposed of by this common judgment.

2. In order to understand the central question of law agitated by the learned Counsels appearing in these two matters, a few facts are required to be stated. The statute which is called for consideration here is the Gujarat Agricultural Produce Markets Act, 1963, hereinafter referred to as the Act, the successor of the corresponding law of the erstwhile State of Bombay, being the Bombay Agricultural Produce Markets Act, 1939. The Commissioner of Baroda Division lawfully entitled to exercise the powers conferred on him by Sub-section (3) of Section 4-A of the 1939 Act, was pleased to declare the area within the limits of the Godhra Municipality and the further area within the radius of 5 Miles of Godhra Taluka as the Market proper, by the notification dated 16th September, 1979 issued under the provision of Sub-section (1) of Section 5 of the Act the competent Authority, namely the Director of Agricultural Marketing and Rural Finance, Gujarat State, Ahmedabad, was pleased to declare his intention to regulate the purchase and the sale of some more agricultural produces namely, chillies, ginger, onion, etc. in the said market area. By issuing a notification in the Official Gazette and publishing it in Gujarati also in a newspaper having circulation in the area and in other manner prescribed by the Rules, he had declared his intention as required under Section 5(1) of the present Act. After considering the objections, if any, were received he on 16-2-1968 in exercise of powers conferred on him by Sub-section 5 of Section 6 of the Act, declared that with effect from the day of publication of the said notification in the official gazette, the Act would apply also in respect of chillies (both dry and green), onion, ginger, etc. Now, it so happened that this notification under Section 6(5) of the Act was not published in Gujarati in a newspaper having circulation in the said area and so, the petitioner of the first of the two petitions, Dalsukhbhai Pitamberdas and Company and II others ignored the said Notification and did not obtain necessary licence under the Act. The respondent No. 1-Market Committee, therefore, had passed its Resolution No. 2 dated 7-4-1969 to file complaints against those persons for operating in the area without the licence under Section 8 of the Act. In all, such 12 complaints were filed in the Court of the Competent Judicial Magistrate First Class, Godhra, who was pleased to acquit all of them on the ground that the said notification was abortive in regard to the inclusion of chillies, ginger, onion) etc., for want of its being not published in Gujarati in a newspaper having circulation in the said area. Obviously, the Market Committee was not satisfied with this decision of the learned Magistrate and therefore, carried the matter to this High Court by preferring the Criminal Appeal No. 219 of 1970 filed against one of these 12 persons namely Govindlal Chhaganlal. They wanted to have it as a test case. This High Court held that the requirement to publish the notification also in a Gujarati newspaper having circulation in the area was only directory and not mandatory. By its judgment dated December 3, 1971, this High Court, therefore, was pleased to allow the said appeal and convict the said Govindlal Chhaganlal and fine him Rs. 10/- or in default to undergo imprisonment for seven days. Said Govindlal Chhaganlal. however, took the matter to the supreme Court obviously contending that the said provisions regarding publication were mandatory. We have the reported decision of the Supreme Court in that matter. It is the case of Govindlal Chhaganlal Patel v. The Agriculture Produce Market Committee and Ors. : [1976]1SCR451 . The Supreme Court disagreed with the view expressed by the Gujarat High Court and held on interpretation of the relevant provisions of Section 6. of the Act that the notification in question was required to be published in Gujarati also in a newspaper having circulation in the said area.

3. The Gujarat Legislature intervened and purported to undo what the Supreme Court had done in the form of declaration law as per Article 141 of the Constitution of India. Section 6(1) and 6(5) of the Act were amended and there was Section 3 of that amending Act also specifically provided for. In order to understand what the controversy is, we shall reproduce below the unamended sections, the amended section and statement of objects and reasons together with Section 3 of that Gujarat Agricultural Produce Markets (Amendment and Validation) Act, 1978. For convenience we shall put these statutory provisions side by side.

Unamended Sections Amended Section6. Declaration of market areas,-(1) After (1) After the expiry of the periodthe expiry of the period specified in the specified in the notification issued undernotification issued under Section 5 Section 5 (hereinafter referred to in this section(hereinafter referred to in this section as as 'the said notification'), and, afterthe said notification) and after considering the objections andconsidering the objections and suggestions received before its expiry andsuggestions received before its expiry holding such inquiry as may be necessary,and holding such inquiry as may be the Director may, by notification in thenecessary, the Director may, by Official Gazette, declare the area specifiednotification in the Official Gazette, in the said notification or any portiondeclare the area specified in the said thereof to be a market area for the purposesnotification or any portion thereof to be of this Act in respect of all any of thea market area for the purposes of this Act kinds of agricultural produce specified inin respect of all any of the kinds of the said notification. A notification (underagricultural produce specified in the said this sub-section) shall also be published innotification. A notification under this Gujarati in a newspaper having circulationsection shall also be published in Gujarati in the said area and in such other manner,in a newspaper having circulation in the as may be prescribed.said area and in such other manner, as (5) After declaring in the mannermay be prescribed. specified in Section 5 his intention of so(5) After declaring in the manner doing, and following the procedurespecified in Section 5 his intention of so therein, the Director may, at any time bydoing, and following the procedure therein, notification in the Official Gazette,the Director may, at any time by exclude any area from a market areanotification in the Official Gazette, exclude specified in a notification issued underany area from a market area specified in Sub-sectiona notification issued under Sub-section (1) (1) or include any area therein andor include any area therein and exclude from exclude from or add to the kinds of agri-or add to the kinds of agricultural produce cultural produce 90 specified any kind ofso specified any kind of agricultural agricultural produce. (A notificationproduce. under this Sub-section shall also be published in Gujarati in a newspaper having circulation in the said area in such other manner as may be prescribed),(underlined portion...amendment)Section 3 of the amending Act. Notwithstanding any Judgment decree or order of any court, no notification issued Sub-section (5) of Section 6 of the principal Act before the commencement of this Act shall be deemed to be or ever to have been invalid merely on the ground that such notification was not also published in Gujarati in a newspaper and in other prescribed manner as required by Sub-section (1) of that section and accordingly no exclusion of any area from a market are or inclusion of any area in a market area or exclusion from or addition to the kinds of agricultural produce, any kind of agricultural produce mide before such commencement by such notification shall be deemed to be ever to have been, illegal merely on the ground that such notification was not published in Gujarati in a newspaper and in the other prescribed manner, as required by Sub-section (1) of Section 6 of the principal Act,

'Statement of Objects and Reasons

In Govindial Chhaganlal Patel v. The Agricultural Produce Market Committee, Godhra and Ors. reported in : [1976]1SCR451 , the Supreme Court has held Government notification No. BNN/77/0 dated the 16th February, 1968 issued by the Director of Agricultural Marketing and Rural Finance under Sub-section (5) of Section 6 of the Gujarat Agricultural Produce Markets Act. 1988 adding 'Gihger' as an additional agricultural produce to the kinds of agricultural produce in respect of market area of Godhra and Shehya Taluka of Panchmahals District to be invalid on the ground that the said notification was not published also in Gujarati in a newspaper as required by Sub-section (1) of Section 6 of that Act. It is, therefore, considered necessary to validate the said notification and other notifications issued under the said Sub-section (5) which might not hive been published also in Gujarati in a newspaper and in the other prescribed manner, and also to amend Section 6 of that Act to provide that a notification under Sub-section (5) of the said Section 6 shall, be published also in a Gujarati newspaper and in the other prescribed manner.

4. Thus there is above mentioned Section 3 which purports to validate the notification which was issued earlier as per the unamended Section 6(5) of the Act, The petitioner of the first of these two petitions namely, the Special Civil Application No. 2841/79, therefore prays that the Gujarat Agricultural Produce Markets (amendment and validation) Act, 1978 be declared ultra-vires, null and void and the writ of mandamus should be issued restraining the respondent-Market Commit-tee from taking any action against the petitioner under the provision of the said Amending Act No. 3 of 1979. In the second of the two petitions, namely, the Special Civil Application No. 476 of 1983, the same conditions are there, but challenge is to the notice Annexure-A issued by the very Market Committee on 15-1-1983 calling upon the petitioners of that petition, 10 in number, to procure licence because the earlier Notification issued under Section 6(5) of the Act in the case of this Agricultural Produce Market Committee was sought to be validated by the State Legislature and it was assumed that because of that validation, the trafficking in those goods added in the list of agricultural produce covered by the Act was prohibited unless a licence under the Act was procured.

5. Mr. H. L. Patel for the petitioners In both the petitions urged that the Validation Act was invalid, but he made. It clear that what was being challenged by the petitioners was only Section 3 of the Amending Act which has been reproduced above. As far as the amendment of Section 6(1) and 6(5) is concerned, there is no scope for any challenge, because the Legislature has tried by those respective amendments to put the law in line with the law enunciated by the Supreme Court in the case of Govindlal Chhaganlal (supra). Even a bare look at the above two columns reproducing the amended and unamended section would show that the Supreme Court interpreted unamended Section 6(1) and 6(5) to mean that a notification in Gujarati was required to be published in a newspaper having circulation in the area. The word 'Section' (as contradicted with the word 'Sub-section '(1)) was interpreted by the Supreme Court in the case to mean covering the notification both under the Section 6(1) and 6(5). By the amendment, the Legislature accepts this position and puts the law in line with the law enunciated by the Supreme Court. In other words, what was treated by the Supreme Court as implicit has been made explicit by the State Legislature, but it is to be remembered that these amendments are not made retroactive, either expressly or by necessary implication. They are brought-forth on the statute book as amendments, pure and simple and so, the normal and natural inference that could be drawn would be that according to the State Legislature also, a notification under Section 6(5) was required to be published in Gujarati in a newspaper having circulation in the area. That was exactly what the Supreme Court also said in its judgment in the case of Govindlal Chhaganlal. That is why we say that what was implicit as per the interpretation placed on Section 6(5) by the Supreme Court has been made explicit by the State Legislature. In other word, there is appreciable or substantial change effected in the provisions of Section 6(5). Prior to the amendment a notification under Section 6(5) was not purportedly required to be published in Gujarati in newspaper having circulation in the area as per the law declared by the Supreme Court. On and from the date of amendment it will be required to be published so as per the amended portion added to Sub-section (5) of Section 6. There is nothing to show that the Legislature tried to amend Section 6(5) retroactively. That is why we say that the Supreme Court's interpretation of the law has been given legislative recognition and that is so because what is expected to be done in a system where three wings of Government are expected to function in the respective fields here with mutual regard for one another is done by the Legislature.

6. This brings us to Section 3 of the amending Act and here we find that the Legislature seems to have been not properly assisted and its attempt to achieve its objective has unfortunately failed. We have already elaborated above that the law in respect of Section 6(5) prior to the amending Act has been retained in tact. The law about legislature's competence to undo the effects of a valid binding judgment is too well entrenched to call for any elaboration. The Supreme Court In the case of Shri Prithvi Cotton Mills Ltd. etc. v. Broach Borough Municipality and Ors. : [1971]79ITR136(SC) has made the position expressly clear. Though before the Supreme Court there was a taxation statute, the Supreme Court has examined the question on general principles. The following words are reproduced by us below in order to place succinctly the ratio in this case,.A court's decision must always bind unless the condition on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances.... Some times this is done by re-enacting retrospectively a valid and legal taxing provision....

7. We have elaborated above that the amendment of Section 6(5) has not amended the law in any way whatsoever. On the contrary, it has made the law clear in conformity with the Supreme Court's judgment. In other words, the Legislature has respected that the Supreme Court has said in respect of the requirement of a notification to be published in Gujarati in a newspaper having circulation in the area. There is no alteration in the law and there is no change in the conditions on which the Supreme Court was based. Much less there is fundamental alteration to such an extent that had this amended law would have been before the Supreme Court, the Supreme Court would not have given that decision. We are, therefore, having no alternative, but to say that Section 3 of the Amending Act which is impugned in the first of these two petitions is beyond the legislative competence and is therefore, required to be declared ultra-vires but before we say so we would like to examine one argument advanced by Mr. Zaveri on behalf of the respondent-Market Committee. Mr. Zaveri stated that the legislature by amending Section 6(1) by putting the word Sub-section (1) instead of the word 'section' clarified its intention and, therefore, it should be understood that according to the legislature, from the date of the enactment the word 'Section' was to be read as 'Sub-section (1)' It is for the court of law to read the mind of the legislature and it is not for the legislature retroactively to say what was in its mind there in the past. The only way the legislature can do this is to amend the law retroactively. If the legislature wanted to do so this, it could have very well said that the word 'Section' was to be read as 'sub Section (1)' right from the beginning i. e. from the stage of the enactment. Had they done so the purpose sought to be achieved by these abortive attempts would have been certainly achieved, but it is not for us to advise the legislature because it is upto them to do what they think fit. Mr. Zaveri had invited our attention to the Judgement of the Supreme Court in the case of I. N. Saksena v. State of Madhya Pradesh A.I.R. 1976 Supreme Court Page-2250. The law is only reiterated there and what is reiterated is what we have observed above and not what Mr. Zaveri wanted us to have. Even in this judgement the Supreme Court has said that the validity of the validating law is to be judged by three tests, one of which is whether by validation the legislature has removed the defect which Court had found in the previous law'. In the case on hand the Supreme Court said that the word 'Section' occuring in Section 6(1) was meant to cover not only Section 6(1), but Section 6(5) also. The legislature by amendment also says that same thing, namely, the requirement of issuance of a notification in Gujarati in a newspaper having circulation in the area. It is because of that we have said that the legislature has acknowledged the requirement found by the Supreme Court.

8. In above view of the matter, we allow both the petitions. In the Special Civil Application No. 2841/79 we allow the petition to the extent that Section 3 of the Gujarat Agricultural Produce Markets' (Amendment and Validation) Act, 1978 is invalid. As a consequence the prayer(b) of paragraph-10 of the said petition stands granted. Rule is accordingly made absolute in that petition with costs.

9. In the Special Civil Application No. 476/83 we make the rule absolute by granting the prayer (a) of para-10 of the petition. Rule is accordingly made absolute in that petition also with costs.


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