Kan Singh, J.
1. The three writ petitions being of identical nature were heard together and can conveniently be disposed of by a common judgment.
2. The petitioners are dealers at Pali carrying on business inter alia in cotton seeds. They pray for a writ in the nature of certiorari, mandamus or prohibition or any other suitable writ for striking down the item 'cotton seeds' from the list of commodities applicable to the Krishi Upaj Mandi, Pali and further the respondents be restrained from calling upon the petitioner to take a licence for carrying on trade in this commodity or to recover fees from the petitioners by taking any coercive action against them. It will be convenient to take the facts from writ petition No. 1981 of 1971.
3. The petitioner avers that he deals in cotton seeds and not in any other commodity. He buys cotton seeds in the State of Gujarat and then brings them to Pali in Rajasthan and sells them at Pali where the commodity is used as a cattle feed. The petitioner further avers that he never buys cotton leeds from the agriculturists in the local market at Pali. According to him, cotton seed is neither grown in Pali area nor do the agriculturists ever bring cotton seed for sale to Pali. The Krishi Upaj Mandi Samiti, Pali was established in accordance with the provision of the Rajasthan Agricultural Produce Market Act, 1961, hereinafter to be referred as the 'Act', and the petitioner takes the stand that this Act was passed with a view to helping the agriculturists in getting better prices for produce. This was sought to be done by regulation of market. The petitioner further takes the stand that since cotton seed is not locally produced in the market area of Pali, there could be no question of including this commodity as an agricultural produce to be regulated by the Krishi Upaj Mandi Samiti, Pali, The petitioner further proceeds to say that the Government had not acted according to the principles underlying the provisions of the Act in including this commodity viz., cotton seeds, for being regulated by the Krishi Upaj Mandi Samiti and consequently the Government notification issued under Section 3 of the Act for including this commodity was in excess of the power of the State Government and was thus ultra vires. The petitioner has assailed the Government notification en a number of grounds which were as follows:
(1) Cotton seed is not a local produce of Pali market area and was, therefore, not liable to be included in the notification under Section 3 of the Act.
(2) Cotton seed being a component of unginned cotton which is included in the list of commodity cannot be separately once again included.
(3) The commodity namely, cotton seed, must be bought and sold in the market area before it can be subjected to regulation or imposition of fee by the Krishi Upaj Mandi Samiti.
(4) Since commodity is brought from outside the State namely, Gujarat where it is already subjected to a fee under a similar legislation no fee could be demanded by the Krishi Uparj Mandi Samiti, Pali, as that would be duplication of a tax imposts.
(5) The power given to the Government under Section 3 of the Act to include or exclude a commodity is unguided, arbitrary and no criteria being laid down under the Act is bad.
In elaboration which was nothing but repetition the petitioner submitted that he deals only in cotton seeds which are not produced in the Pali area.
4. The petitioner further relied on a latter Ex. 3 wherein the Krishi Upaj Mandi Samiti, Pali had written him to say that the higher authorities have already been moved to take out this commodity from the list. On the basis of it is contended that the Government had no material for including this commodity as an agricultural produce to be regulated by the Krishi Upaj Mandi Samiti, Pali and in doing so the Government have acted contrary to the principles laid down by the Supreme Court in a number of cases.
5. The writ petition has been opposed by the respondents.
6. The main contention of the leraned Counsel centres round the notification issued by the Government under Section 3 of the Act which I may read:
No. F 10 (26) Agr./64.-Whereas by its Notification No. F. 10 (30) Agr-V/63, dated 22nd November, 1963, issued in exercise of the powers conferred by Clause (b) of Sub-section (2) of Section 9 of the Rajasthan Agricultural Produce Markets Act, 1961 the Government of Rajasthan was pleased to require the Krishi Upaj Mundi Samttj, Pali to establish a market for the Marker area declared vide the aforesaid Notification and, therefore, as the Krishi Upaj Mandi Samiti Pali has established a market for the said market Area for the purposes of the slid Act in respect of Cotton (Ginned and Unginned) Wheat, Barley. Jawor Maiz, Bajra, Gram, Urad, Moong, Til, Sarson, Coton-seed Gur Sugar, Dhania, Chillies and Wool. The market so established be deemed to have been established from the date of this notification.
Now, accordingly, therefore, in exercise of the powers conferred by Sub-section (2) of Section 5 of the said Act, the Government of Rajasthan it pleased to declare the Principal Market Yard as the existing grain Market, situated; (i) from Somnath Temple to the furniture shop of Shn Abdul Gani Bashir Ahmad in Royee-Ka-Katla including the Jagdish Mandir aud Shimal yan Ka Gali (ii) from the shop of Ganaa Vishan, Shyam Sunder. Hardware Merchants up to the shop of Shri Asgar Ah Choorigar including post office and Nagar ki-Gali, (iii) from the funiture shop of Shri Abdul Gani Basir Ahmed up to the shop of Shri Abas Aii Asgar Ali Churigar, (iv) from Somnath Mandir up to the shop of Ganga Vishan Shyam Sundar Hardware merchant & (v) the new market Yard when laid out on a new site.
Again in exercise of the powers conferred by Sub-section (3) of Section 4 of the said Act, the Government of Rajasthan is pleased to notify that within the market area from the limits of aforesaid Principal Market Yard, up to the extent of the Municipal limits of the Municipal Board Pali including all lands buildings thereon, and the godowns of the State Ware-housing Corporation no local authority, notwithstanding anything contained in any law and no other person, shall on and after the date of this notification set up, establish, or continue or allow to be set up, established or continued any place for the purchase or sale of any agricultural produce notified for the said market area.
Further, the Government of Rajasthan is pleased to declare that the area as mentioned above under Sub-section (3) of Section 4 in this Notification shall be the Market Proper as defined under Clause (x) of Sub-section (1) of Section 2 of the Rajasthan Agricultural Produce Markets Act, 1961.
7. Section 3 under which this notification was issued may also be read:
Section 3 Notification of intention of exercising control over purchase and sale of agricultural produce in specified area.--(1) The State Government may, by notification in the official Gazette, declare its intention of regulating the purchase and sale of such agricultural produce & in such area as may, be specified in the notification:
Provided that no area within the limits of a municipality shall be included in the area specified in such notification except after consultation with the Municipal Board or Municipal Council concerned, as the case may be. (2) A notification under Sub-section (1) shall state that any objection or suggestion which may be received by the State Government within a period of not less than one month, to be specified in the notification, shall be considered by the State Government.
There is no dispute between the parties that the State Government first issued a preliminary draft of the notification inviting objections and then after such objections or suggestions were received the Government issued the notification already reproduced.
8. The vires of Section 3 of the Act came to be examined by this Court in a Division Bench case reported as Bhanwarlal Sohanlal v. State 1966 RLW 339, to which I was party. Having surveyed the various previsions of the Act and also taking note of what was held by this Court in an earlier case Bhikam Chand v. State of Rajasthan 1965 RLW 358, it was observed:
We had already surveyed the various provisions of the Act in Bhikam Chand's case 1966 RLW 339, and had observed that the enactment adumbrated a scheme of marketing in agricultural commodities for better regulation of the trade of buying and selling of the agricultural commodities by providing for the control of the various trading activities in specified areas by introduction of the system of compulsory licensing of the trade We have also referred above the conclusions reached by their Lordships of the Supreme Court regarding the scheme underlying the Madras and the Bombay Acts which are prototypes of our legislation That being so it cannot be postulated that Section 3 of the Act gives uncontrolled discretion to the Government in the matter of pacifying marketing areas or the agricultural commodities. The discretion will always be guided by the policy underlying the Act, Section 3 of the Ac, therefore, does not suffer from the vice of excessive delegation as the discretion of the Government is not unguided. In Jan Mohammad's case their Lordships were considering delegation of powers in favour of the Director and they upheld the validity of the section on the ground that the Director was to exercise his powers according to the scheme of he Act In Rajasthan, the Government itself is the repository of the power As observed by their Lordships of the Supreme Court in Matajog Dubey v. N.C. Bhari (9) a discretionary power is not necessarily a discriminatory power and abuse of power is not to be easily assumed where the discretion is vested in the Government and not in a minor official.
Proceeding further we referred to a Supreme Court case Mohammed Hussain v. State of Bombay : 2SCR659 and then observed as follows:
Coming now to the attack against the validity of Section 40. Provisions of Section 40 of the Act are in pari materia with the provisions of Section 29 of the Bombay Agricultural Marketing Act. Section 29 of the Bombay Act was challenged before their Lordships of the Supreme Court in Mohammed Hussain v. State of Bombay (15a) on the ground that it gave a completely unregulated power to the State Government to include any error within the schedule without any guidance or control whatsoever. Their Lordships said that, though Section 29 itself did not lay down any criteria for determining which crop shall be put into the schedule or which shall be taken out therefrom, yet in the words of their Lordships the guidance was writ large in the various provisions of the Act itself. Their Lordships referred an earlier case of Edward Mills Co Ltd., Beawar vs. State of Ajmer (16), in which Section 29 of the Minimum Wages Act, 1948 gave power to the Government to add to either part of the schedule any employment in respect of which it was of the opinion that minimum wages should be fixed. It was held in that case that the legislative policy being apparent on the face of the enactment, the power has been given to the Government were to decide with reference to local conditions. The same reasoning applies to see 40 of the Act. Leraned Counsel for the petitioner attempted to distinguish these cases by pointing out some difference in the definition of the term 'agricultural produce'. He emphasised that in Rajasthan the term 'agricultural produce' has been defined to include all produce, whether of agriculture, horticulture, animal husbandry or otherwise as specified in the schedule. The words 'otherwise as specified in the schedule' no doubt tend to widen the scope of the definition, but Section 40 has to be utilised only in keeping with the underlying purposes of the Act. If anything which is wholly un-connected with agricultural produce is sought to be included, then it may be a ground for striking down the item to be included, but thereby we cannot strike down the section itself. To repeat the words of their Lord Ships in Mohammed Hussain's case (15), the policy of the Legislature is writ large on the Act and there is no reason to think that the powers under Section 40 would be abused. Thus, the contention of the leraned Counsel about the vires of Section 40 also fails
Thus, the vires of Section 3 of the Act were upheld.
9. Here leraned Counsel has tried to make a distinction. He has argued that though the validity of Section 3 of the Act was upheld, their Lord ships of the Supreme Court have indicated in Mohammed Hussain's case what consideration should weigh with the Government in including or excluding a certain commodity in the list of commodities to be regulated by a market committee. According to leraned Counsel, the Government had not acted in accordance with those principles and, therefore, though Section 3 may be valid the notification issued by the Government by including cotton seed was invalid to that extent. I may reproduce the observations on which leraned Counsel relies:
It is true that Section 29 itself does not provide for any criterion for determining which crop shall be put into the Schedule or which shall be taken out thereform but the guidance is in our opinion writ large in the various provisions of the Act itself As we have already pointed out, the scheme of the Act is to leave out of account retail sale altogether; it deals with what may be called wholesale trade and this in our opinion provides Temple guidance to the State Government when it comes to decide whether a particular agricultural produce should be added to, taken or cut of, the Schedule. The State Government will have to consider in each case whether the volume of trade in the produce is of such nature as to give rise to whole sale rated. If it to this conclusion it may and that produce to the Schedule. On the other hand if it comes to the conclusion that the production of a particular produce included in the Schedule has fallen and can be no longer a subject matter of wholesale trade, it may take out that produce from the Schedule.
I have no doubt that these are the guiding considerations for the State Government, but what is there to show they were not followed? We again remind ourselves before issuing of impugned notification the State Government issued a draft notification inviting objections thereto. The matter lies within the discretion of the State Government and the exercise of the discretion has to be guided by the policy underlying the various provisions of the Act. This is an administrate matter It is not shown that Government were guided by extraneous considerations in including cotton seeds as one of the commodities in the notification, nor are there allegations of malafides against the Government, hi the circumstances a cafe or interference with the exercise of the discretion by the Government is not made out. It is not for this Court to precisely inquire on what material and in what manner the Government felt convinced in including this commodity What their Lordships have laid down were the genera! guiding principles as to how the Government should exercise their discretionary power, while their Lordships were dealing with the vires of the section of the Act The validity of a particular administrative act of the Government call be judged only in the light of the averments in the particular case As I have already observed there are no allegations of malafides nor has it been shown that the Government were swayed by extraneous considerations. Therefore, as the matter stands no flaw can be ft und with the Government notification. Leraned Counsel in this connection relied on Ex 3, the letter written by the Chairman of the Krishi Upaj Kiandi Samiti, Pali on 25 10 67 to the petitioner. What the Chairman had written was, inter alia to the following effect:
It is further requested that though the papers for removal of this commodity out of regulation in this market has been submitted to the higher authorities, I will advise you to please obtain licences and clear all arrears of the market fees and returns. This will enable you to have a stronger voice and this market committee will also remind the higher authorities in this connection.
The letter speaks far itself This is far from saying that at the time the Government were persuaded to issue the notification they were not convinced of the desirability of including cotton seeds as one of the agricultural produce to be regulated It is always open to the Government to cancel any commodity in the notification This letter cannot be taken in to account in adjudging the validity of the Government notification already issued. It will be for the Government to consider the matter in the light of such facts as may be brought to its notice. This Court cannot enter into such factual controversies.
10. Now I may briefly dispose of the other contention of the leraned Counsel. Cotton seeds may or may not be a local produce available in the market area of Pali, but that is no ground for holding that the same could not have been included in the notification under Section 3. As laid down by their Lordships of the Supreme Court. The criterion is the volume of the trade and it is with a view to regulating the wholesale trade in the commodity that a particular commodity may be included in a notification. Cotton seeds may be a component of unginned cotton, but as soon as it is separated from unginned cotton commercially it becomes a different commodity though chemically it may remain the same. Further what is important is that a commodity is bought and sold in the market proper or market yard. It is not necessary that it be produced in the market area if it were so then by asserting that a particular commodity was not produced in a particular market area the law could very easily be evaded. Therefore, there is no point in contending that the commodity to be regulated should have been produced in the market area. It may be that the petitioner brings the commodity from Gujarat, but there is no sufficient data for holding that he acquires title in the goods while they are outside Rajasthan and he does not purchase them at Pali. These are all questions of fact which cannot conveniently be gone into in the exercise of the extraordinary jurisdiction of this Court.
11. There is also no substance in the contention that the commodity is already subjected to the imposition of a similar fee in Gujarat and, therefore, when it is again brought to Pali there will be a double imposition of fee or tax. This is a matter which is for the legislature to see. There is no prohibition in law to subject a commodity to tax of a similar kind more than once specially by two different legislatures.
12. The writ petitions have no force and are accordingly hereby dismissed. There will be no order as to costs.