DALSUKHBHAI PITAMBERDAS AND CO Vs. AGRICULTURAL PRODUCE MARKET COMMITTEE
LAWS(GJH)-1983-8-6
HIGH COURT OF GUJARAT
Decided on August 12,1983

DALSUKHBHAI PITAMBERDAS Appellant
VERSUS
AGRICULTURAL PRODUCE MARKET COMMITTEE Respondents

JUDGEMENT

N.H.BHATT - (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 . 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 13w 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-sec. (3) of sec. 4 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 16/09/1979 issued under the provision of sud-sec. (1) of sec. 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 sec. 5(1) of the present Act. After considering the objections if any were received he on 16 in exercise of powers conferred on him by sub-sec. 5 of sec. 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 happend that this notification under sec. 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 11 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 and sec. 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 those 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 3/12/1971 this High Court therefore was pleased to allow the 6 appeal and convict the said Govindlal Chhaganlal and fine him Rs. 10.00or 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 COMMENTATE AND OTHERS A. I. R. 1976 S. C. PAGE-263. The Supreme Court disagreed with the view expressed by the Gujarat High Court and held on interpretation of the relevant provisions of sec. 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. Sec. 6(1) and 6(5) of the Act were amended and there was sec. 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 sec 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 Section 6 Declaration of market areas - (1) After the expiry of the period specified in the notification issued under (1) After the expiry of the period sec. 5 (hereinafter referred to in this specified in the notification issued under section asthe said notification) and sec. 5 (hereinafter referred to in this after considering the objections and section as the said notification) and suggestions received before its expiry after considering the objections and and holding such inquiry as may be suggestions received before its expiry necessary the Director may by notifi and holding such inquiry as may be cation in the Official Gazette declare necessary the Director may by notifi the area specified in the said notifi cation in the Official Gazette declare tion or any portion thereof to be a the area specified in the said notifica market area for the purposes of this tion or and portion thereof to be a Act in respect of all any of the kinds market area for the purposes of this of agricultural produce specified in the Act in respect of all any of the kinds said notification. A notification (under of agricultural produce specified in the this sub-section shall also be published said notification. A notification under in Gujarati in a newspaper having cir this section shall also be published in culation in the said area and in such Gujarati in a newspaper having circu other manner as may be prescribed lation in the said area and in Such (5) After declaring in the manner speci other manner as may be prescribed. fied in sec. 5 his intention of so doing (5) After declaring in the manner speci and following the procedure therein fied in sec. 5 his intention of so doing the Director may at any time by noti and following the procedure therein the fication in the Official Gazette exclude Director may at any time by notifica any area from a market area specified tion in the Official Gazette exclude any in a notification issued under sub sec area from a market area specified in a (1) or include any area therein and notification issued under sub sec. (1) exclude from or add to the kinds of agri Include any area therein and exclude cultural produce so specified any kind from or add to the kinds of agricultural of agricultural produce. (A notification produce so specified any hind of agri under this sub section shall also pub.culturalproduce. (Emphasis Supplied) lished in Gujarati in a newspaper having circulation in the said area in such other manner as may be prescribed). (underlined portion...........amendment) Sec. 3. of the amending Act. Notwithstanding any Judgment decree or any court no notification issued sub-sec. (5) of sec. 6 of the principal Act before the commencement of this Act shall be deer d 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-sec. (1) of that section and accordingly no exclusion of any area from a market area 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 made 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-sec. (1) of sec. 6 of the principal Act ", Statement of Objects and Reasons In GOVINDLAL CHHAGANLAL PATEL V. THE AGRICULTURAL PRODUCE MARKET COMMITTEE GODHRA AND OTHERS REPORTED IN A.I.R. 1976 S. C. 263 the Supreme Court has held Government notification no. BNN/77/D) dated the 16/02/1958 issued by the Director of Agricultural Marketing and Rural Finance under sub-sec. (5) of sec. 6 of the Gujarat Agricultural Produce Markets Act. 1953 adding Ginger 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-sec. (1) of sec. 6 of that Act. It is therefore considered necessary to validate the said notification and other notifications issued under the said sub-sec. (5) which Might not have been published also in Gujarati in a newspaper and in the other prescribed manner and also to amend sec. 6 of that Act to provide that a notification under sub-sec (5) of the said sec. 6 shall be published also in a Gujarati newspaper and in the other prescribed manner.";


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