TATIA, J. - (1.) THE petitioners by this writ petition, have challenged the Notification dated 24. 9. 1986 (Annex. 4) and sought declaration that bamboos and ballis are not agricultural produce and its trade cannot be regulated under the Rajasthan Agricultural Produce Market Act, 1961 (for short "the Act of 1961") and the petitioners further prayed that the notices issued for demanding mandi fees on sale of the bamboos and ballis (Annex. 5,7,9,10a,12,13 and 15) be declared illegal and quashed. THE petitioners further prayed that the respondents may be restrained from effecting the market fees from the petitioner on the purchase and sale of bamboos and ballis. THE Notification dated 24. 9. 1986 which was issued under the provisions of Section 40 of the Act of 1961 was challenged earlier in the year 1987 by filing four writ petitions which were dismissed by this Court by common order dated 25. 7. 1996. According to the learned counsel for the petitioner, neither the relevant provisions of laws were brought to the notice of this Court at that time nor the effect of inclusion of certain agricultural produce in the scheduled appended to the Act of 1961 was examined. THErefore according to the learned counsel for the petitioners, the view taken by the learned Single Judge of this Court in S. B. Civil Writ Petition No. 704/1987 dated 25. 7. 1996 is per-incurium. It is also submitted that even the Notification under Section 40 amending the Scheduled is upheld, it itself cannot put any restriction upon the trade in bamboos and ballis till a Notification under Section 4, after following the procedure under Section 3 of the Act of 1961 is issued. And admittedly no Notification under Section 4 has been issued by the State inspite of the fact the Notification under Section 3 has been issued.
(2.) THE brief facts of the case are that to secure better and adequate price for agricultural for their agricultural produce an Act, namely, Rajasthan Agricultural Produce Markets Act, 1961 was enacted in the year 1963. THE similar legislation has already been enacted in the State of Bombay, madras, Andra Pradesh, Punjab, Madhya Pradesh, Hyderabad, Madhya Bharat and Mysore before enactment of the Act in the year 1961 in Rajasthan. THE statement of objects and reasons for enacting the Act of 1961 clearly provides that it has been enacted so as to help the agriculturists in getting the better price for their produce and for that purpose, the market is required to be regulated. Sub-clause (i) of sub-section (1) of Section 2 of the Act of 191 defines the "agricultural produce", which is as under:- " (i) "agricultural produce" includes all product whether of agriculture, horticulture, animal husbandry or otherwise as specified in the Schedule. " Chapter II of the Act of 1961 provides how the market will be constituted. As per sub-section (1) of Section 3 of the Act of 1961, the State Government, by Notification in the official Gazette, may declare its intention of regulating the purchase and sale of such agricultural produce and in such area as may be specified in the Notification. If the areas falls within the municipal limit, the consultation with the municipal board or municipal council concerned has been made necessary. The Notification under Sub-section (1) of Section 3 is required to be issued inviting objections and suggestions as per sub-section (2) of Section 3. As per Section 4 of the Act of 1961, after the expiry of the period of not less than one month, specified in the Notification issued under Section 3 and after considering such objections and suggestions as may be received before the expiry of the above period and after holding such enquiry as may be necessary by the State Government, the State Government may be Notification to be published in official Gazette, declare (1) the area specified in the Notification under Section 3 or any portion thereof to be a market area for the purpose of the act of 1961, (2) in respect of all or any of the kinds of agricultural produce specified in the said Notification under Section 3 (1 ). As per sub-section (2) of Section 4 with declaration of the market area under sub-section (1), on place in the said area can be used for purchase or sale of any agricultural produce specified in Notification issued thereunder.
(3.) A Schedule has been appended to the Act of 1961 which purports to have been enacted and incorporated in the Act of 1961 to include certain agricultural produce within the purview of agricultural produce as defined in sub-clause (i) of sub-section (1) of Section 2. Section 40 of the Act of 1961 empowers the State Government to add, amend or cancel any of the items of agricultural produce specified in the Schedule by publication of Notification in official Gazette for the purposes, namely, to add, amend or cancel any of the items of agricultural produce specified in the Schedule. Section 14 provides that where the market is established under sub-clause (b) of sub-section (2) of Section 9, the market committee may issue and renew licences, in accordance with the rules and bye-laws, to traders, brokers, weigh-men, measurers, surveyors, ware-housemen and other persons to operate in the market on payment of the prescribed fees. However, not licence is needed in case the person to whom licence has been granted under sub-section (2) of Section 4 of the Act of 1961. In exercise of power conferred under Section 36 of the Act of 1961, the State Government framed the Rajasthan Agricultural Produce Markets Rules, 1963 which were notified no 22. 10. 1963 and were published in the official Gazette on 6. 2. 1964. As per rule 64, all agricultural produce brought into the market or produced or processed in the market area, are required to pass through the principal market yard or some market yard or yards and cannot be sold at any other place within the market area, however, for such restrictions, certain relaxations can be given and as per the explanation appended to sub-Section (2) of Section 14 of the Act of 1961, the restrictions as imposed by sub-Section (2) are not to apply to the purchase or sale of any agricultural produce if the producer of such produce is himself is a seller and the purchaser is a person who purchases such produce for his own private use or if such produce is sold to such purchaser by way of a retail sale. ;