G. N. Ray, J. - (1.) These appeals and the special leave petition involve common question of law and they arise out of the common judgment dated January 20, 1994, passed by the Division Bench of the Patna High Court. By the impugned judgment, the Division Bench of the Patna High Court allowed in part the writ petitions filed by several sugar mills of Bihar challenging the validity of Sections 4-A and 4-B inserted by the Bihar Agricultural Produce Markets (Amendment) Act, 1993. Section 33M as inserted by the Bihar Agricultural Produce Markets (Amendment) Act, 1992; notification dated August 31, 1992 issued under Section 4 of the Bihar Agricultural Produce Markets Act, 1960 (hereinafter referred to as the Markets Act), and also challenging the validity of imposition of market fee under the Markets Act in view of exemption of all the sugar mills in Bihar from the provision of Section 15 of the Markets Act under notification dated March 22, 1976. The High Court on the basis of respective contention of the parties in the said writ petitions formulated the following points for the decision of the Court:(a) Whether sub-sections (1) and (2) of Section 4-A is valid or constitutional so far as prospective part of the same is concerned (b) If answer to (a) as in the affirmative, whether the said provisions are valid and constitutional so far as the retrospective part of the same is concerned (c) Whether Section 4B is valid and constitutional (d) Whether Section 33M of the Markets Act as introduced by amendment of 1992 is valid and constitutional (e) Whether Rule 68 (iii) of the Bihar Agricultural Produce Markets Rules (hereinafter referred to as the Rules) as inserted by Notification No. 4 dated November 30, 1992 is valid (f) What is the effect of grant of exemption made under Section 15 of the Markets Act (g) What is the effect of Bihar Ordinance No. 8 of 1988 having lapsed so far as levy of market fee is concerned (h) Whether a limited and restricted meaning can be given to the expression agricultural produce by excluding the industrial products produced by industry from the scope and ambit of the Markets Act (i) Is the Notification dated June (August) 31, 1992 a valid Notification under Section 4 of the Markets Act
(2.) The High Court by the impugned judgment answered the said points formulated by it in the following manner; (i) Neither sub-section (1) nor sub-section (2) of Section 4-A is valid or constitutional prospectively. Both the sub-sections are ultra vires of Articles 14 and 19 (i) (g) of the Constitution and not protected by Article 19 (6) of the Constitution. (ii) Even if it is assumed that prospective part of Section 4-A is valid, the retrospective part is ultra vires of Articles 14 and 19 (1) (g) of the Constitution. . (iii) Section 4-B is partly, valid and partly invalid. Section 4-B can be divided into four parts. The first part of Section 4B is invalid and cannot be given effect to. The second part is valid and can be given effect to. The third and fourth part of Section 4B are merely ancillary and consequential to first and second part. (iv) Section 33-M of the Markets Act as sought to be introduced by the Amending Act of 1992 by replacing the amending Ordinances is invalid and ultra vires the Constitution. The said legislation lacks legislative competence. (v) Rule 68 (iii) of the Rules is invalid in view of the invalidity of Section 33-M. (vi) The grant of exemption made under Section 15 of the Markets Act so far as sugar is concerned, does not affect the applicability of the other provisions of the Act, rules and by- laws, if they are otherwise valid and applicable. (vii) Bihar Ordinance No. 8 of 1988 having lapsed, the rate of market fee provided under Section 27 of the Act before the Ordinance No. 8 of 1988 was promulgated, revived. The rate will be Rs. 1/- and it will continue to be so until and unless it is modified according to law. (viii) No limited or restricted meaning can be given to the expression "agricultural produce"by excluding industrial products from the ambit of the Markets Act, (ix), In view of the decision on various points formulated, no opinion need be expressed on the validity of Notification dated June 31, 1992 issued under Section 4 of the Markets Act,
(3.) For the purpose of appreciating the rival contentions of the parties, the following facts need be noted: (i) On August 6, 1960, the Markets Act, 1960 (Act No. 16 of 1960) came into force and at the time of enforcement of the said Act, sugar was one of the scheduled items in respect of which the provisions of the Markets Act were made applicable. On March 22, 1976, all sugar mills were exempted from the provisions of S. 15 of the Markets Act, (ii) By Notification dated May 2, 1977 bearing No. 8075, sugar and some other items were deleted from the Schedule under the Markets Act in exercise of the power under Section 39 of the Act, (iii) On May 21, 1977, by another Notification bearing No. 857, issued in exercise of power under Section 39, the previous Notification dated May 2, 1977 was cancelled. (iv) Till July 23, 1976, four notifications were issued under Section 39 of the Markets Act by which various items like rice, bran, milk (only liquid milk) etc. were deleted from the Schedule under the Act, (v) Section 27 of the Markets Act was amended by Bihar Ordinance No. 8 of 1988 by substituting the word "at the rate of rupee one". This Ordinance elapsed subsequently. (vi) The Notification dated May 21, 1977 issued under Section 39 of the Markets Act cancelling the earlier notification dated May 2, 1977 (by which sugar was deleted from the Schedule under the Markets Act) was challenged in a series of writ petitions filed before the Patna High Court. Such writ petitions were disposed of by a common judgment dated March 30, 1992. Such decision has been reported in Delhi Cloth and General Mills Company v. Agricultural Produce Market Committee, AIR 1993 Patna 43. The question raised before the Patna High Court in the said writ petitions was as to whether or not the cancellation of the earlier notification by the subsequent notification dated May 21, 1977 had the effect of restoring the situations prevailing prior to May 2, 1977. ;