S.N. Dwivedi, J. - (1.) THESE cases are being disposed of by a common judgment. They raise a common question of law. The question is: Whether Rule 76 (1) of the U.P. Krishi Utpadan Mandi Niyamavali is invalid? There are six Petitioners in Writ Petition No. 4057 of 1969 out of which the Special Appeal has arisen. Petitioner Nos. 1 to 4 are commission agents and traders. They carry on the business of buying and selling food -grains, pulses, oil -seeds, gur, etc. in the town of Gonda. Petitioner Nos. 5 and 6 are producers of agricultural produce in villages Nagwa Bodh and Chaurasia in the district of, Gonda. They bring their agricultural produce for sale to the market of Gonda.
(2.) F .A.F.O. No. 225 of 1971 arises out of a suit instituted by 32 persons in the court of the Additional Civil Judge, Bulandshahr. The Appellants, who are the Plaintiffs in the suit, have instituted the suit. One of the reliefs claimed by them in the suit is that the court may issue a permanent injunction restraining the Krishi Utpadan Mandi Samiti, Gulaothi and the Secretary of the said Samiti from enforcing Rule 76(1). They also prayed for the issue of an interim injunction to the same effect. The prayer was refused. Hence they have filed the appeal here The impugned Rule 76 (1) reads: Every consignment of specified agricultural produce brought for sale into the Principal Market Yard or any Sub -Market Yard shall be sold by open auction: Provided that nothing in this sub -rule shall apply to a retail sale as -may be specified in the bye -laws of the committee. Rule 76 includes thirteen other sub -rules. Except for Sub -rules 6, 10, 11, 12 and 13, the remaining rules are plainly dependent on and subordinate to the impugned Sub -rule (1); so that if Sub -rule (1) is found to be invalid, those rules will automatically fall down even though their validity is not questioned. In the writ petition a learned Single Judge has held that Sub -rule (1) of Rule 76 is invalid. Counsel for the Respondents have supported the judgment of the learned Single Judge. They have made a four -pronged attack on Sub -rule (1) of Rule 76. The first argument is that Sub -rule (1) is beyond the rule making power of the State Government Under Section 40 of the U.P. Krishi Utpadan Mandi Adhiniyam. The second argument is that as there is no express provision in the said Act for restricting any fundamental right the rule is invalid. The third argument is that Sub -rule (1) does not serve any purpose of the Act. The last argument is that Sub -rule (1) is inconsistent with Section 9(2) of the Act.
(3.) SUB -rule (1) of Rule 76 has been enacted by the State Government in exercise of its power Under Section 40. Section 40(1) empowers the State Government to make rules "for carrying out the purposes" of the Act. This is the general -rule making power. Section 40(2) enumerates certain specified matters which will fall within the expression "carrying out the purpose" in Section 40(1). Section 40(2) has got 32 clauses. For our immediate purpose only two of them are material. They are Clauses (xix) and (xxvii). Clause (xix) reads the manner in which the sale or auction of the specified agricultural produce shall be conducted and bids made and accepted in the market Area." Clause (xxvii) reads: "The time, place and manner of sampling, sale, purchase, weighment and recording of transactions and mode of payments." These two clauses were relied upon by the Appellant before the learned Single Judge. But he has taken the view that Sub -rule (1) of Rule 76 will not fall within either of these two clauses. Counsel for the Respondents have supported this view before us. With great respect to the learned Judge, we are unable to share his view.;