Shah, J. - (1.) By this petition the petitioner seeks to restrain the State of Gujarat from enforcing the Gujarat Agricultural Produce Market Act, 20 of 1964, on the plea that certain provisions of the Act infringe the fundamental freedoms guaranteed to the petitioner under Arts. 14, 19 and 31 of the Constitution.
(2.) The Bombay Agricultural Produce Market Act, 22 of 1939, was enacted by the Provincial Legislature of Bombay and rules were framed thereunder. By a notification issued under the Act, the whole area within a radius of 12 miles of Ahmedabad City was declared in respect of certain agricultural produce, a market area for the purposes of that Act and a market yard and a market proper were established for transactions in specified commodities. A market committee was established under S. 5 of the Act for the Ahmedabad market area. In 1959 a locality known as the "Kalupur market" was declared a sub-market yard for the purposes of the Bombay Act, and traders carrying on business in the Kalupur market yard were required by the market committee to take out licenses authorising them to carry on their trade. Certain traders in agricultural produce filed petition No. 129 of 1959 in this Court under Art. 32 of the Constitution challenging diverse provisions of the Act and the rules and bye-laws framed thereunder on the plea that those provisions placed unreasonable restrictions on their right to carry on trade in agricultural produce and thereby infringed their fundamental right guaranteed under Art. 19 (1) (g) of the Constitution. This Court by judgment, dated may 2, 1961 Mohammad Hussain Gulam Mohammad vs. State of Bombay, (1962) 2 SCR 659, upheld the validity of S. 4 (authorising declaration of market areas), Section 4A (authorising declaration of principal and sub-market yards), Section 5 (authorising the constitution of market committees), S. 5AA (specifying the duties of market committee), S. 5A (authorising the market committee to issue licences in accordance with rules to traders, commission agents, brokers weighmen, measurers, surveyors, werehousemen and other persons to operate in the market) of the Bombay Act and further held that the fee authorised to be levied by S. 11 was a levy charged for services rendered by the market committee in connection with the enforcement of the various provisions of the Act and, therefore, S. 11 was valid, that under S. 29 the power given to the State Government to add to, or to amend, or to cancel any of the items of the agricultural produce specified in the Schedule in accordance with the local conditions prevailing in different parts of the State was intra vires, and that R. 64 being a mere method for enforcing the regulatory provisions with respect to market yards and sub-market yards was also valid. But the court held that R. 53 insofar as it authorised the market committee to fix the rates of fee to be collected on agricultural produce brought and sold in the market area, and Rr. 65, 66 and 67 insofar as they authorised the market committee to grant a licence for doing business in any market were beyond the powers conferred on the market committee by S. 5A and were ultra vires.
(3.) When the petition in Mohammad Hussain's case, (supra), was filed, the town of Ahmedabad was part of the State of Bombay. Under the Bombay Reorganisation Act, 11 of 1960 which become operative as from may 1, 1960 two States - Maharashtra and Gujarat - were carved out of the territory of the former State of Bombay and the town of Ahmedabad was included within the State of Gujarat, but Bombay Act, 22 of 1939, continued until it was altered to remain applicable by S. 87 of Act 11 of 1960,to the Gujarat region. After the decision of this Court in Mohammad Hussain's case (1962) 2 SCR 659, the Governor of Gujarat amended in certain matters the Act, the rules and the bye-laws framed thereunder in their application to the Gujarat State by Ordinance, 1 of 1961. The Ordinance was intended to rectify the defects pointed out by this Court in Mohammad Hussain's case, (supra). Four petitions were then filed under Art. 32 of the Constitution challenging the constitutionality of the Amending Ordinance and especially the notification which amended R. 53 (specifying the maxima of fees to be charged) as offending Art. 14 of the Constitution. It was also contended that S. 5A (authorising the grant of licences in accordance with the rules to traders, commission agents, brokers, weighmen, measurers, surveyors, werehousemen, and other persons to operate in the market area) which was amended was only prospective and, therefore, the infirmity noticed in the earlier judgment of this Court still remained, and that the new S. 29-B which rectified the defect in the establishment of markets under the Act was insufficient to validate what had been done before the Ordinance came into force. It was also contended that the bye-law under which the market committee issued licences to dealers was discriminatory and imposed unreasonable restrictions on the fundamental right to carry on trade and business and was, therefore, unlawful and that the market committee was not entitled to control retail trade as the same was not within the provisions of he Act and in consequence the market committee was using R. 64 in a manner in which it was not intended to be used and, therefore, that rule though it was upheld in the earlier judgment had become ultra vires. This Court rejected all the contentions raised by the petitioners.;