VINEY MITTAL,J - (1.) THE petitioner, Punjab Cotton Factories & Ginners Association is an Association of Cotton Factories and Ginners in the State of Punjab. They have filed the present petition challenging the proviso to Section 30 of Punjab Agricultural Market Produce Act, 1961 (hereinafter referred to as the 'Act') and Rules 2(11), 24(9), 24(12) and 24-A of the Punjab Agricultural Produce Markets (General) Rules, 1962 (hereinafter referred to as the 'Rules'). The petitioner-Association has pleaded that its members have mills within the State of Punjab and they purchase cotton in the market yards within the notified market areas in the State of Punjab. The cotton purchased by them is processed, ginned and pressed in their factories before converting the same to yarn in the Spinning Mills or Textile Industries. According to the petitioner-Association, its members have obtained licences from the Secretary, Punjab Mandi Board, under Section 10 of the Act. The aforesaid members purchase cotton bought (brought ?) by the sellers within the notified market areas in the public auction and make payment of the price of the cotton purchased, market fee, RDF etc. Besides the above charges, the members of the petitioner-Association are also required to pay the market charges for the services rendered in connection with the handling of agricultural produce after finalization of the bid at the auction. Rule 2(11) of the Rules defines market charges as under : "2(11) "Market Charges" means all charges payable by the buyer in lieu of the services rendered in connection with the handling of agricultural produce after the finalization of the bid at auction, such as, the commission of Kacha Arhitya, brokerage, auction charges, remuneration for palledari, filling, weighing, sewing and loading."
(2.) THE petitioner-Association claims that the members of the Association are required to pay the market charges payable by the buyers, a charge which in normal circumstance should not have been paid by them. The petitioner- Association has challenged the vires of the proviso to Section 30 of the Act. Section 30 of the Act reads as follows : "30. No trade allowance permissible except as prescribed. - No trade allowance, other than an allowance permitted by rules or bye-laws made under this Act, shall be made or received in a notified market area by any person in any transaction in respect of the agricultural produce concerned and no Civil Court shall, in any suit or proceeding arising out of any such transaction, recognise any trade allowance not so permitted : Provided that all market charges shall be paid by the buyers." The petitioner-Association has also challenged the vires of Rules 24(9), 24(12) and 24-A of the Rules. For the sake of ready reference, the aforesaid rules are reproduced as below : "24(9) The buyer shall be responsible to get the agricultural produce weighed immediately after the auction or on the same day the produce is purchased by him and the seller or the buyer shall be liable for any damage to, or loss of, or deterioration in, the produce after the auction according to the local usage or custom or as per provision of Rule 13." "24(12) Every Kacha Arhtiya shall, on delivery of agricultural produce to a buyer, execute a memorandum in Form I and deliver the same to the buyer on the same day or the following day, mentioning sale-proceeds plus market charges admissible under rules and bye-laws. The counterfoil shall be retained by the Kacha Arhtiya : Provided that nothing in this sub-section shall apply where agricultural produce, being vegetable or fruit, not exceeding one quintal in weight is delivered." "24-A Commission of Kacha Arhtiya The Commission of Kacha Arhtiya for services rendered in connection with the sale, purchase, storage and processing of agricultural produce mentioned below, shall be paid at the following rates, namely :- xxxx ............ xxxx ............"
(3.) ACCORDING to the petitioner-Association, the purposes of the Act and the Rules is to regulate sale purchase of the agricultural produce in the notified market area or the market yard but the effect thereof is to control the sale purchase of agricultural produce itself, which, according to the petitioner- Association, amounts to imposing unreasonable restrictions on the business of the members of the petitioner-Association to carry on their trade as guaranteed to them under Article 19(1)(g) of the Constitution of India. It has also been claimed by the petitioner-Association that a Commission agent is an agent of the seller who provides various services to the seller and, thus, if he is entitled to any commission, it is only from the seller and the buyer cannot be held liable to pay the same. According to the petitioner- Association, all the services are rendered at the behest and instance of the seller and the buyers have no role to play therein. To elaborate the aforesaid challenge, the petitioner-Association has claimed that the buyers cannot be held liable to pay the charges of the services which are in fact prior to the finalisation of the price of the produce. It has been claimed that all the services are rendered by the commission agent prior to the finalization of the auction and sale. The petitioner-Association also claims that Kacha Arhtiyas are engaged by the seller for sale of their produce and, therefore, the buyers have no role to play in the aforesaid relationship of Kacha Arhtiya with the seller.;