Wanchoo, J. - (1.)These five petitions under Art. 32 of the constitution, which are connected and will be dealt with together, raise questions as to the constitutionality of the Bombay Agricultural Produce Markets Act, Bombay Act No. XXII of 1939 (hereinafter referred to as the Act), as amended by the Bombay and Saurashtra Agricultural Produce - Markets (Gujarat Amendment and Validating Provisions) ordinance, No. 1 of 1961, (hereinafter referred to as the Ordinance), and the Rules and the Bye-laws framed thereunder. They are a sequel to the judgment of this Court in Mohammad Hussain Gulam Mohammad vs. State of Bombay, AIR 1982 SC 1520 97 which was delivered on May 2, 1961. One of the petitioners before us in these petitions was also a party in that petition, which was with respect to a market established in Ahmedabad. In that petition the challenge to the constitutionality of the main provisions of the Act failed but the provisions of certain rules, namely Rr. 53, 65, 66 and 67 were held to be ultra vires the provisions of S. 11 and S. 5A of the Act. In consequence, a direction was issued prohibiting the respondents in that petition from enforcing the provisions of the Act, Rules and Bye-laws against the petitioners in that petition till a market was established in law for that area under S. 5AA and from levying any fee under S. 11 till the maximum was prescribed under the Rules. Consequent on that decision, the State of Gujarat amended R. 53 by notification dated June 23, 1961. Further the ordinance was promulgated on June 26, 1961 by which certain amendments were made in certain sections of the Act and a new S. 29-B was inserted in the Act validating certain acts or things done prior to the promulgation of the Ordinance. The present petitions were filed thereafter.
(2.)Four of the petitions (namely, Nos. 226 to 229) are wit respect to Ahmedabad while the fifth petition (No. 233) is with respect to Nadiad. Two of the petitioners of Ahmedabad are wholesale dealers while the other two claim to be retail dealers. The contentions on behalf of the Ahmedabad petitioners are that the notification amending R. 53 offends Art. 14 of the Constitution and is therefore bad. It is further contended that though S. 5AA has been amended, the amendment is prospective; therefore the infirmity noticed in the earlier judgment of this Court still remains and S. 29-B which has been inserted in the Act is insufficient to validate what had been done before the Ordinance came into force. It is further contended that the bye-law under which the market committee issues licences to A class and B class dealers is discriminatory and imposes unreasonable restrictions on the fundamental right to carry on trade and business and is therefore bad. Lastly it is contended that the market committee insists on issuing licences for retail trade and this it cannot do for control of retail trade is not within the provisions of the Act as held by this Court in the earlier judgment, and further in consequence the market committee is using R. 64 in a manner in which it was not intended to be used and therefore that rule though it was upheld in the earlier judgment should be declared ultra vires.
(3.)The majority of the petitioners in the Nadiad case are wholesale dealers but a few of them claim to be retail dealers. These petitioners further challenge the constitutionality of the Act after its amendment by the Ordinance, and their contention is that the Ordinance makes radical changes in the main provisions of the Act and the basis on which these main provisions were upheld by this Court earlier, no longer applies, and therefore the Act as it now stand after the amendment is violative of the fundamental right to carry on trade and business guaranteed under Art. 19 (1) (g) of the Constitution as the restrictions placed by it on the said right are unreasonable. Further it is contended that Rr. 65, 66 and 67 were struck down by this Court in the earlier judgment as beyond the power conferred on the State under S. 26 of the Act. These rules therefore cannot be held to be a part of the Rules in force now and in consequence it was not open to the market committee to act as provided in these Rules. Lastly it is urged on behalf of one of the petitioners that he had paid licence-fee to the market committee and was entitled to a refund of that after the earlier judgment of this Court; but S. 29-B newly inserted in the Act which in effect deprives this petitioner of getting refund is invalid and illegal as it is against the provisions of Art. 31 (1). Some other points have also been raised by the Nadiad petitioners; but as they are not pressed, we shall not refer to them.