R. M. Sahai, J. - (1.) Various producers and manufacturers of gur and khandsari sugar have challenged validity of U.P. Ordinance No. 4 of 1987 adding explanation to Section 17 (iii) of U.P. Krishi Utpadan Mandi Adhiniyam, 1964 (hereinafter referred as the Act) as arbitrary, illegal, and violative of the right to carry on business.
(2.) What is the steppe of this explanation, what mischief it attempts to remedy and how far it has succeeded shall to adverted after noticing the background, in brief, in which it has been issued. In 1984 a Circular was issued by the Mandi Parishad constituted under the Act to charge market fee on transactions of sale and purchase in the Market Area in accordance with rule 66 of the Rules framed, under the Act, The explanation to the Rule created a fiction by providing that Sale of specified agricultural produce shall be deemed to have been effected in market area if it has been weighed or measured by a licencee in the market yard for the purposes of sale, notwithstanding the fact that the proprietorship of such agricultural produce has by reason of such sale passed to a person in a place out side the market yard, in Civil Misc. Writ No. 2004 of 1985, decided on 20th May, 1985 it was held that explanation to rule 66 was ultra vires. In 1986 another circular was issued by the Parisad relating to issue of Gate passes to the traders taking out their goods outside the market area. Clause (7) provided that if the traders to who the gate pass was issued did not produce satisfactory evidence including documents of sales - tax department of sale of goods within 30 days in state and 45 days outside State then it shall be deemed that sale had been made in the market area from which the Gate pass was issued. Needless to say that if rule making authority could not explain the meaning of sale, or create the fictional sale then the Chairman or the Mandi Parisad could not have done so. Consequently it was struck down by this Bench on 16th April, 1987. When that petition was argued it appears the learned counsel for Mandi Samiti was not aware that an ordinance had already been issued on 31st March, 1987.
(3.) The objective of the ordinance obviously is to remora the lacuna pointed out by this court in Civil Misc. Writ Petition No. 2004 of 1985. But the purpose according to learned counsel for Mandi Samiti based on instruction given by a letter from Parishad is to check evasion. In some of the petitions the issuance of ordinance has been challenged for violation of Article 213 of Constitution but for reason which shall be set out later it was not considered necessary to call for any counter affidavit from the State and decide if circumstances existed justifying issuing of Ordinance after nearly two years.;