M.C. Jain, J.
1. The petitioner-firm by this writ petition has challenged the constitution of the Krishi Upaj Mandi Samiti, Sri Ganganagar (hereinafter referred to as 'the Samiti') Respondent No. 2, and has also challenged the amendment of Rule 75 of the Rajasthan Agricultural Produce Markets Rules, 1963 (hereinafter referred to as 'the Rules) made by Notification of the State Government dated May 11,1973.
2. The facts giving rise to the present writ petition may briefly be stated as under : The petitioner firm carries on the business of purchase and sale of fruits and vegetables as Commission Agent for the last 20 years at Sri Ganganagar. The State Government by its Notification Under Section 3 of the Rajasthan Agricultural Produce Markets Act, 1961 (hereinafter referred to as 'the Act') declared its intention of regulating the purchase and sale of the agricultural produce in the area specified in the notification, but there was no prior consultation with the Municipal Council Sri Ganganagar and in the absence of prior consultation with the Municipal Council, the State Government had no jurisdiction to issue the notification Under Section 3 of the Act. The Government of Rajasthan by its Notification No. F. 10(36) Agr. V/63 dated November 26,1964, declared Sri Ganganagar as market area for the purchase and sale of the agricultural produce and a Market Committee by the name of respondent No. 2, was constituted by Notification dated July 30, 1964. The respondent No. 2 framed its byelaws Under Section 37(1) and Section 28 of the Act. Under Section 5(2) of the Act the principal market yard was also established. The respondent No. 1 issued notification to include the fruits and vegetables mentioned in para 9 of the writ petition. A pamphlet (Fx. 4) was issued by respondent No. 2 in this respect in consonance with its bye-laws. The Secretary of respondent No. 2 by his notice dated March 31,1973, informed the brokers and businessmen of fruits and vegetables to obtain licences. The petitioner's case is that according to unamended Rule 75 of the Rules, the petitioner was entitled to recover the charges of brokerage and other expenses like Hamali, Tulai, etc., described as 'fee' in this rule in accordance with the bye-laws and the bye-law provides that the dealers are entitled to recover brol erage and other expenses from the sellers at the rates mentioned therein. Thereafter Rule 75 was amended by Notification dated May 11, 1973, wherety at the end of Rule 75 it was inserted that the fee as specified in the bye laws shall be payable by the purchaser of the agricultural produce in the market and not by the seller. The petitioner has challenged the legality of this amendment in Rule 75 and has also challenged the constitution of respondent No. 2 on the ground that there was no prior consultation with the MunicipalCouncil for including the area in question for regulating the purchase and sale of agricultural produce. The continuance of respondent No. 2 as duly constituted 'Samiti' is also challenged and the petitioner sought a restrain order against the respondents from interfering with the petitioner's right of charging the commission and other charges from the sellers of fruits and vegetables.
3. The non-petitioner No. 2 has filed reply to the writ petition, in which it resisted the writ petition. Respondent No. 2 stated that it has been validly constituted and the amendment made in Rule 75 of the Rules is valid. The grounds of challenge of constitution of respondent No. 2 and of amendment in Rule 75 were refuted. No reply has been filed by the State of Rajasthan.
4. I have heard Shri M.M. Singhvi, learned Counsel for the petitioner, and, Shri M. Mridui, learned Counsel for non-petitioner No. 2 and Shri R. Balia, learned Deputy Government Advocate, for respondent No. 1.
5. On behalf of the petitioner Shri Singhvi raised two contentions, one with regard to the validity of the amendment made in Rule 75 by notification dated May 11, 1973, and the other with regard to the effect of absence of prior consultation by the State Government with the Municipal Council for issuance of the notification under Section 3 of the Act.
6. Both the contentions stand concluded by the decisions of this Court. The validity of the amendment made in Rule 75 by Notification dated May 11, 1973, was the subject matter of challenge in S.B Civil Writ Petition No. 1075 of 1973 Khetji Poonam Chand v. State of Rajasthan and Ors. decided on November 19, 1974, and the other grounds of challenge relating to the nature of prior consultation with the Municipal Council as contemplated Under Section 3 of the Act, came up for consideration by the Divisional Bench of this Court in Anand v. State of Rajasthan and Ors. ILR 1968 (18) Rajasthan 1110. After 1973 amendment Rule 75 further underwent amendment vide Notification of Agriculture (Gra -II) Department, dated August 29, 1965, published in Rajasthan Gazette (Extraordinary) of the even date. Prior to 1975 amendment, 1973 amendment continued to have forced and it is the validity of the amendment made in 1973, which was examined in M/s. Khetaji Poonamchand's case (supra). This Court in that case has declared the amendment of Rule 75 as bad to the extent indicated therein and it was directed that the effect shall not be given to the amendment introduced in rub 75 and to the consequential amendments in the bye-laws by the respondents. A special appeal was taken by the Krishi Upaj Mandi Samiti, Sheoganj. but the same was withdrawn, so the decision in that case has become final. This court had struck down the amendment to the effect 'the fee as specified in the bye-laws shall be payable by the purchaser of the agricultural produce in the market and not by the seller'. In view of the above decision, the first contention of Shri Singhvi deserves to be upheld and the amendment made in Rule 75 to the effect that 'The fee as specified in the bye-laws shall be payable by the purchaser of the produce in the Market and not by the seller', has to be struck down.
7. The second contention of Shri Singhvi, learned Counsel for the petitioner, that prior consultation for issuance of the Notification Under Section 3 of the Act is imperative and absence thereof renders the constitution of the Committee invalid, is devoid of any merit in view of the decision in Anand's case (supra). It has been held in that case that the structure of the Section leads to the conclusion that the consultation contemplated under the proviso to Sub-section (1) of Section. 3 is for the benefit of the Municipal Boards. It was further observed in that case that even assuming that the proviso is mandatory, the notification issued cannot be declared void at the instance of a party other than the Municipal Boards concerned, For lack of consultation or on account of insufficient consultation the notification might be avoided at the instance of Municipal Boards, but not at the instance of a third party. It was held in that case that the impugned notification Under Section 3 was neither bad nor this affected the validity of the notification Under Section 4 regarding declaration of market area.
8. In view of the decision in Anand's case (supra) the notification issued Under Section 3 of the Act, cannot be held to be bad. The validity of the other notifications have not been challenged before me.
9. No other point has been pressed before me.
10. In the result, this writ petition is partly allowed to the extent that the amendment in Rule 75 as made by the aforesaid Notification 1973 is bad and the amendment to the effect that 'The fee as specified in the bye-laws shall be payable by the purchaser of the Agricultural produce in the market and not by the seller', is struck down. Consequently effect shall not be given to the aforesaid amendment introduced in Rule 75 of the Rules. The rest of the writ petition is hereby dismissed. The parties are left to bear their own costs.