BHANWARLAL SOHANLAL Vs. STATE

JUDGEMENT

(1.) THIS bunch of 185 writ petitions before us raises identical questions about the vires of some provisions of the Rajasthan Agricultural Produce Markets Act, 1961 (Act No. 38 of 1961), hereinafter to be referred as the "act", and of the rules and bye-laws made thereunder, and therefore it can conveniently be disposed of together.

(2.) THE Act was passed by the Rajasthan State Legislature and came into force on 24. 11. 61, when it was first published in the Rajasthan Gazette. In exercise of its powers under sec. 36 of the Act, the State Government made the Rajasthan Agricultural Produce Markets Rules, 1963, hereinafter to be referred as the 'rules' which came into force on 6. 2. 64, on being published in the Gazette. THE bye-laws were made by the various market committees in exercise of their powers under sec. 37 of the Act. In 1964, one Bhikamchand and other traders questioned the validity of the Act, the rules and the bye-laws by 9 writ petitions various grounds, such as, that the Act was unconstitutional being in contravention of the fundamental rights of the traders under Art. 19 (1) (g) of the Constitution, that the notifications that were issued by the Government under sec. 3 of the Act for the establishment of the market areas were bad and that the bye-laws made by the market committees were invalid as they were not made with the previous sanction of the Director of Agriculture as required by sec. 37 of the Act. We came to the conclusion that the Act did not infringe the fundamental rights of the petitioners under Art. 19 (1) (g) of the Constitution, and was, therefore, not unconstitutional on that account, but we found that the bye-laws framed by the various market committees, in the cases before us, were invalid as the requisite previous sanction for making them had not been obtained as required by sec. 37 of the Act. In the result we allowed the writ petitions and restrained the State and other respondents from giving effect to the bye-laws as framed. Our judgment is reported as Bhikam Chand vs. State of Rajasthan (1 ). We will advert to the relevant observations from that judgment at appropriate place in this judgment.

(3.) REGARDING the vires of sec. 17 of the Act it was submitted that the Legis-lature had not laid down any principle which may guide the Executive in the matter of prescribing the maximum fee in the rules that may be framed under sec. 36 of the Act. It was thus pointed out that this amounted to abdication of an essential legislative function by the Legislature in favour of the Government. In elaboration of his argument the learned counsel urged that though the exaction has been termed as fee and not as tax, yet in reality it was nothing but tax. In inviting attention to secs. 18 and 19 of the Act, it was pointed out that a fund was to be created for the market committee under sec. 18 and under sec. 19 the fund could be expended for the various objects set out thereunder. The combined effect of these two sections, according to the learned counsel, was that the fee was not necessarily to be utilise for rendering service to those who were to pay the fee. Secs. 18 and 19 of the Act are as follows: Sec. 18. ''market committee fund - (1) All moneys received by a market committee shall be paid into a fund to be called "the market committee fund" and all expenditure incurred by the market committee under or for the purposes of this Act shall be defrayed out of the said fund. (2) Any surplus remaining with the market committee 'after such expenditure has been met' shall be invested as may be prescribed in this behalf. (3) Every market committee shall pay to the State Government the cost of any additional or special staff employed by the State Government in consultation with such market committee for giving effect to the provisions of this Act in the market area for which such market committee is established. (4) The Director shall determine the cost of such additional or special staff and shall, when the staff is employed for the purposes of more than one market committee, apportion such cost among the committees concerned in such manner as he thinks fit. (5) The decision of the Director, determinating the amount payable by any market committee, shall be final. " Sec. 19. "purposes for which the fund shall be expended.- Subject to the provisions of sec. 18, the market committee fund shall be expended for the following purposes, namely: (1) the acquisition of a site or sites for the market; (2) the maintenance and improvement of the market; (3) the construction and repair of buildings necessary for the purposes of such market and for the health, convenience and safety of the persons using it; (4) the provision and maintenance of standard weights and measures; (5) the pay, pensions, leave allowances, gratuties, compensation for injuries resulting from accident, compassionate allowance and contributions towards leave allowances, pensions or provident funds of the officers and servants employed by it; (6) the expenses of and incidental to elections; (7) the payment of interest on the loans that may be raised for the purposes of the market committee and the provision of sinking fund in respect of such loans; (8) the collection and dissemination of information regarding matters relating to crop statistics and marketing respect of agricultural produce notified under sec. 4; (9) the payment of the cost referred to in sub-sees (3) and (4) of sec. 18, (10) any propaganda in favour of agricultural improvement; and (11) the carrying out of the purposes and provisions of this Act and the rules and bye-laws made thereunder. "