Judgment:
Narendra Nath Tiwari, J.
1. Whether the land belonging to the Agriculture Produce Market Committee, adjoining the Agriculture Market Yard, can be used and leased out for non-agricultural business is the point needs to be answered in this writ petition?
2. The brief facts, giving rise to the said controversy between the traders of the Market Yard, Garhwa and the Agriculture Produce Market Committee, Garhwa (hereinafter to be referred as the 'Market Committee') are as follows:
(i) The Market Committee decided to construct 60 shops, facing road side of the Market Yard, Garhwa, to be allotted to the beneficiaries under the Self Finance Scheme for non-agriculture trade. The members of the petitioner, who have got their shops in the Market Yard, Garhwa for business of agriculture produce raised objection by filing their representation before the authorities of the Market Committee and other concerned authorities.
(ii) The Managing Director, Jharkhand State Agriculture Produce Marketing Board, Ranchi by its Memo No. 95 dated 28th January, 2006 stayed the construction of the said shops and directed the Market Committee to consider the representation of the petitioner and take a decision afresh.
(iii) By Resolution No. 5 dated 6th July, 2007, the Market Committee revised the earlier decision and decided to construct 106 shops under the said scheme and allotted the same to the persons for business of non-agriculture produce. It is relevant to mention that the points raised in the petitioner's representation were not considered.
(iv) The Market Committee partially modified its earlier decision by resolution dated 10th December, 2007, stating that the shops will be constructed parallel to Majhiaon Road. The same was circulated by Letter No. 991 dated 10th December, 2007.
(v) The said resolution was, thereafter, sent to the Managing Director, Jharkhand State Agriculture Produce Marketing Board, Ranchi for concurrence, who also approved the said decision by his order dated 28th December, 2007.
3. The petitioner has sought to challenge the said resolutions of the Market Committee dated 6th July, 2007 and 10th December, 2007 as also the order of the Managing Director, Jharkhand State Agriculture Produce Marketing Board dated 28th December, 2007 in this writ petition.
4. According to the petitioner, the said decision of the respondents to construct 106 shops in the agriculture Market Yard allotting the same to the persons for non-agriculture business is wholly arbitrary and violative of provisions of the Jharkhand Agriculture Produce Markets Act, 1960 (hereinafter to be referred as 'the said Act') and the Rules framed thereunder. Non-agriculture trade and business in or adjoining area of the market yard would adversely affect the petitioner's business of market produce and would be against the interest of the farmers and traders. It would also give rise to mal-practices of common market including emergence of middleman and exploiters against the object and purpose of the said Act. The Market Committee, which is the creature of the said Act, has no jurisdiction to take any decision for establishing any shop for doing business of non-agriculture articles and that too within or adjacent to the specified market yard and the said decisions are contrary to the provisions of the Act and its object and letter and spirit, are illegal and tainted with bias and mala fide.
5. The respondents contested the writ petition and refuted the said contentions in their counter affidavit. It has been, inter alia, stated that the members of the petitioner have been operating their business in Principal Market Yard and are not in any way prejudiced or affected by the construction and allotment of shops for non-agriculture business under the Self Finance Scheme facing road side of the Market Yard. After the decision and approval of the scheme several persons have applied and deposited money pursuant to the advertisement regarding allotment of the shops for non-agriculture business. The said shops which have road facing would be allotted to the persons for doing business of non-agriculture produce. It has been ensured that the traders, who deal in agriculture produce inside the market yard, may not have to compete with the persons to whom the said new shops are to be allotted. Nonagriculture business, thus, would not affect the business of the traders in agriculture produce in the Market Yard. The said resolution dated 6th July, 2007, which was slightly modified by the resolution dated 10th December, 2007, has been approved by the Jharkhand State Agriculture Produce Marketing Board by order dated 28th December, 2007. The shops are to be constructed under Self Finance Scheme, meaning thereby that the cost of the shops would be borne by the applicants. The burden of construction is not to be borne by the Market Committee, which would be in the interest of the Committee.
6. It has been further contended that under the provisions of Section 17 of the said Act, the Market Committee has power to acquire and hold property and to lease out the same. There is no restriction either in the provisions of the Act or Rules framed thereunder, restricting the rights of the Market Committee to use the property only for agricultural purpose. In view thereof, the resolution of the allotment of the shops for non-agriculture purposes is not illegal and without jurisdiction. The Market Committee has taken the resolution in order to use the area for its maximum benefit and also to provide opportunity to unemployed persons. The said resolution is in public interest. The claim of the petitioner has no merit and is fit to be rejected.
7. In order to appreciate rival claims and contentions of the parties and to answer the point, it is useful to have look to the object and intent and the provisions of the legislation on the subject. The Bihar Agriculture Produce Market Act 1960 was enacted for regulation of trade of agricultural produce and to establish market for the same. The object and intent of the Act is clear from the preamble of this Act, which reads thus:
An Act to provide for the better regulation of buying and selling of Agricultural Produce and the Establishment of Markets for Agricultural Produce in the State of Bihar and for matters connected therewith.
8. The Act was, thus, enacted to regulate the buying and selling of agricultural crops by providing suitable and regulated markets and to eliminate middlemen and to help the cultivators and the buyers in buying and selling of agricultural commodities.
9. On going through the different provisions of the Act, it is clear that the said Act enable the Marketing Committee to realize fee for transaction taking place in market area.
10. It is clear that the main object of the said legislation was to create market area and markets with a view to ensuring fair trade transactions in agricultural and allied commodities; appointment of Market Committees consisting of representative of growers, traders, local authorities and Government to supervise the working of regulated markets; regulation of market charges and prohibition of realization of excess charges; regulation of market practices; licensing of market functionaries; arrangement for conciliation in cases of disputes regarding quality, weighment, deduction etc.; sale by open auction; arrangement for the display of reliable and up-to-date market information in the market yard; and improving generally the conditions of agricultural marketing.
11. The said legislation has its historical background. In Madras State, as in other parts of the country, various Commissions and Committees were appointed to investigate the problem, to suggest ways and means of providing a fair deal to the growers of crops, particularly commercial crops, and find a market for selling their produce at proper rates. Several Committees, in their reports, considered this question and suggested that a satisfactory system of agricultural marketing should be introduced to achieve the object of helping the agriculturists to secure a proper return for the produce grown by them. The Royal Commission on Agriculture in India appointed in 1928 observed thus:.cultivator suffers from many handicaps; to begin with he is illiterate and in general ignorant of prevailing prices in the markets, especially in regard to commercial crops. The most hopeful solution of the cultivator's marketing difficulties seems to lie in the improvement of communications and the establishment of regulated market and we recommend for the consideration of other provinces the establishment of regulated markets on the Berar system as modified by the Bombay legislation. The establishment of regulated markets must form an essential part of any ordered plan of agricultural development in this country......... We consider that the system can conveniently be extended to other crops and, with a view to avoiding difficulties, would suggest that regulated markets should only be established under Provincial legislation.
12. The necessity for marketing legislation was stressed by other bodies as well, like the Indian Central Banking Enquiry Committee, the All India Rural Credit and Survey Committee etc. One of the reports of an expert committee graphically described the difficulties of the cultivators and their dependence upon the middlemen. It observed thus:
The middleman plays a prominent part in sale transactions and his terms and methods vary according to the nature of the crop and the status of the cultivator. The rich ryot who is unencumbered by debt and who has comparatively large stocks to dispose of, brings his produce to the taluk or district centre and entrusts it to a commission agent for sale. If it is not sold on the day on which it is brought, it is stored in the commission agent's godown at the cultivators' expense and as the latter generally cannot afford to wait about until the sale is effected he leaves his produce to be sold by the commission agent at the best possible price, and it is doubtful whether eventually he receives the best price. The middle class ryot invariably disposes of his produce through the same agency but unlike the rich ryot he is not free to choose his commission agent, because he generally takes advances from a particular commission agent on the condition that he will hand over his produce to him for sale. Not only, therefore, he places himself in a position where he cannot dictate and insist on the sale being effected for the highest price but he loses by being compelled to pay heavy interest on the advance taken from the commission agent. His relations with middlemen are more akin to those between a creditor and a debtor, than of a selling agent and producer. In almost all cases of the poor ryots, the major portion of their produce finds its way into the hands of the village money-lender and whatever remains is sold to petty traders who tour the villages and the price at which it changes hands is governed not so much by the market rates, but by the urgent needs of the ryot which are generally taken advantage of by the purchaser. The dominating position which the middleman occupies and his methods of sale and the terms of his dealings have long ago been realized.
13. In Thakur Prasad Gupta v. State of Bihar 1965 BLJR 746, the Patna High Court referred to the report of the Royal Commission while tracing out the history of the said legislation and also quoted the observations of Planning Commission as under:
The primary consideration for the development of agricultural marketing is to reorganize the existing system so as to secure for the farmer his due share of the price paid by the consumer and subserve the needs of planned development. To achieve these objects, malpractices associated with buying and selling of agricultural produce have to be eliminated, arrangements made for the efficient distribution of marketable surpluses from producing to consuming areas and co-operative marketing has to be developed to the maximum extent possible. Rural marketing and finance have to be integrated through the development of marketing and processing on co-operative lines. Programmes for co-operative marketing and processing which have been drawn up so far for the second five year plan have been outlined in an earlier chapter. Here it is proposed to refer to other aspects of agricultural marketing. It is estimated that co-operative agencies may be able to handle about 10 per cent of the marketable surplus by the end of the second plan. The rest of the surplus will continue to be sold through other marketing agencies. In the interest of the primary producer, therefore, the importance of regulating markets and market practices needs more emphasis. Moreover, the success of co-operative marketing itself depends on the efficiency with which regulated markets function. It has been observed that in States in which regulated markets have not been established to any extent, the cultivator is in a situation of much greater disadvantage than elsewhere.
14. The principal object of the legislation on the subject is to come to the aid of the producers of 'Agricultural Produce', who are generally not organized or ill-organised and are an exploited party in the bargaining between unequals. Reference- Vishnu Dayal Mahendra Pal v. State of U.P. : [1975]1SCR376 .
15. The expression of the object and intent also finds place in various provisions and definitions in the Act. Section 2 of the Act gives definition of market, market area, trade, trader and so on, giving meaningful expression of the object of the Act. It can be gathered from the following definitions:
Section 2 (1)(h): 'Market' means a market established under this Act for the market area and includes a principal market yard and sub-market yard or yards, if any.
Section 2(1)(i): 'Market Area' means any area declared to be a market area under Section 4.
Section 2(1)(j): 'Market Committee' means a committee established under Section 6.
Section 2(1)(k): 'Market Proper' means any area within the market area including all lands, with the buildings thereon, within such distance of the principal or sub-market yard, as the State Government may, by notification, declare to be a market proper under Section 5.
Section 2(1)(o): 'Principal Market Yard' means any enclosure, building or locality within the market area declared to be a principal market yard under Section 5.
Section 2(1)(v): 'Trade' means any kind of transaction of sale and purchase or any kind of remuneration on sale and purchase of any agricultural produce.
Section 2(1)(w): 'Trader' means a person ordinarily engaged in the business of buying and selling agricultural produce as a principal or as a duly authorized agent of one or more principals and includes a commission agent or a person ordinarily engaged in the business of processing agricultural produce.
16. The said Act also prescribes provisions for constituting the Markets and Market Committees. Section 3(1) of the Act provides for issuing notification expressing its intention to regulate the purchase, sale, storage and processing of specified agricultural produce in the specified area in the notification. Section 3(2) provides for inviting objection or suggestion by any person on such notification. After consideration of the objection/ suggestion, if any, on the said notification under Section 3(1) and after holding necessary enquiry, a notification is issued under Section 4(1), declaring such specified area as the 'Market Area' in respect of the agricultural produce specified in the notification under Section 3(1). It further provides that after issuance of notification under Section 4, no person can carry on any business in the notified area of the Market Committee except in accordance with the provisions of the Act, the rules and byelaws.
17. Section 6 of the Act provides for establishment of a Market Committee by the State Government for such market area by issuing a notification.
18. Section 18 of the Act describes powers and duties of the Market Committee. Section 18 runs thus:
18. Powers and duties of the Market Committee- (1) It shall be the duty of a Market Committee to implement the provisions of this Act, the rule and bye-laws made thereunder in the market area to provide such facilities for marketing of agricultural produce therein as the Board may from time to time direct, and do such other acts as may be required in relation to the superintendence, direction and control of market, or for regulating the marketing of agricultural produce in any place in the market area, and the purposes connected with the matters, and for that purpose the Market Committee may exercise such powers and perform such functions and discharge such duties as may be provided by or under this Act.
(2) Without prejudice to the generality of the foregoing provision, a Market Committee may:
(i) when so required by the State Government, to establish a market for the market area providing for such facilities as the State Government may, from time to time, direct in connection with the purchase and sale of the agricultural produce concerned;
(ii) where a market is established under Sub-clause (i) to issue licences in accordance with the rules to traders, brokers, weighmen, measurers, surveyors, warehousemen and other persons including persons or firms engaged in the processing, storing or pressing of agricultural produce concerned operating in the market area;
(iii) to maintain and manage the principal market yard and sub-market yards and to control, regulate and run the market in the interest of the agriculturists and licences in accordance with the provisions of this Act and the rules and the bye-laws made thereunder;
(iv) to act in the prescribed manner as mediator, arbitrator or surveyor in all matters of differences, disputes, claims, etc., between licensees inter se or between them and persons making use of the market as sellers of agricultural produce;
(v) to control and regulate the admission of persons and vehicular traffic to the principal market yard or sub-market yards to determine the conditions for the use of market and to check and prosecute persons trading without a valid licence in the market area;
(vi) to bring, prosecute or defend, or aid in bringing, prosecuting or defending any suit, action, proceeding, application, or arbitration in regard to any matter on behalf of the committee, or otherwise when directed by the Board;
(vii) to enforce the provisions of this Act, the rules and bye-laws; and
(viii) to perform such other duties and exercise such other powers as are imposed or conferred upon it by or under this Act, the rules or the bye-laws.
19. Part-V of Bihar Agricultural Produce Markets Rules, 1975 framed under the said Act deals with Market-Market Yard and Sub-yard. Rule 80 deals with the establishment of markets and Rule 81 deals with control and conservancy of market yard. It runs thus:
80. Establishment of markets- (i) After the issue of notification under Section 4 and establishment of Market Committee under Section 6, the State Government shall direct the market committee to establish a market.
(ii) When directed to do so under sub-rule(i) the Market Committee shall establish a market for the market area for which it is established.
(iii) After the establishment of market by the Market Committee, the State Government shall issue a notification under Section 5.
81. Control and conservancy of market yard- (i) The Market Committee shall maintain one or more market yards and shall have absolute control over the market yards subject to these rules and to the general or special orders of the Government or the Board and to such control as is by these rules or by any other law vested in the Board. The Market Committee shall manage market yards in the interest of trade having regards to convenience of the trade of agricultural produce and the purpose for which the control is vested in the Market Committee. The market yards shall remain open for trading at such hours as the Market Committee may, from time to time fix.
(ii) In the market areas the Market Committee shall exercise such rights as may be necessary for the convenient control of the market and for the convenience and comfort to the persons using the market and for collection of the fees, in accordance with provisions of the Act, Rules and Bye-laws.
(iii) The Market Committee may require the owner or manager of any industrial concern located within the market areas to furnish such information in respect of agricultural produce for which the market is established and which is handled or used by the Industrial concern, as the Market Committee may think necessary for the purposes of the market.
20. On close reading of the said provisions, it is clear that the Act is meant for protecting the interest of the trade of agricultural produce. Rule 81 makes it clear that the Market Committee shall manage market yard in the interest of trade having regard to the convenience of the trader of agricultural produce and the purpose for which the control is vested in the Market Committee. There is no provision in the said Act and Rules giving power to the Market Committee to promote market of non-agricultural produce. It emphasizes management of market yard by the Market Committee in the interest of trade having regard to the convenience of the trade of agricultural produce.
21. By the resolutions under challenge in this writ petition, the Market Committee has sought to establish a market for nonagricultural purposes by allotting shops road facing and overshadowing the Market Yard, Garhwa for trade and business of non-agricultural produce. The same is not at all permissible under the provisions of the said Act and the Rules. The impugned resolutions are, thus, wholly without jurisdiction, illegal and vitiated.
22. The Market Committee, according to the object and scheme of the said Act, has to act in the interest of trade of agricultural produce. The Committee is the creation of the statute and it has to function within the limits of the statute. It has no authority to establish any market within the market proper for non-agricultural trade/business.
23. Mr. v. P. Singh, learned senior counsel, appearing on behalf of the respondents submitted that Section 17 of the said Act gives power to the Market Committee to acquire and hold property, both, movable and immovable, and to lease or otherwise transfer any such property. That power is unrestricted. In exercise of that power conferred on the Market Committee under the said provision, a decision was taken for constructing shops under the Self Finance Scheme for proper use and utilization of the property of the Market Committee. The Market Committee, being the owner/holder of the property, has rightly taken the said decision for the maximum use and utilization of the property and also to provide opportunity to unemployed persons of the area, including the members of the Scheduled Castes and Scheduled Tribes, and to help self-employment. The shops are constructed facing outside road and not inside the market yard, which is not restricted by any provisions of the said Act.
24. Section 17 of the Act is reproduced herein below:
17. Incorporation of Market Committee- Every Market Committee shall by a body corporate by such name as the State Government may specify by notification in the Official Gazette, and shall have perpetual succession and a common seal, with power to acquire and hold property, both movable and immovable, and to lease, shall or otherwise transfer any such property, subject to the prescribed conditions and restrictions, and may by the said name sue and be sued, and subject to rules, bye-laws and the provisions of this Act, it shall be competent to do all other things necessary for the purpose for which it is established.
25. On plain reading of the said Section, it is clear that it does not give any power to lease out or settle the property or the area of the market yard for trade/business of non-agricultural produce.
26. Rule 81 specifically provides that the Market Committee shall maintain market yards in the interest of trade having regard to the convenience of the trade of agricultural produce and the purpose for which the control is vested in the Market Committee. The said Rule read with other provisions of the Act as well as object of the Act goes to dispel the said interpretation of Section 17 of the Act. The Market Committee has to see the interest of trade and traders of agricultural produce and not of the traders, trading in non-agricultural produce.
27. The definition of 'Trade' in Section 2(1)(v) and 'Trader' in Section 2(1)(w) of the Act clearly mention about transaction of sale and purchase of agricultural produce and business of buying and selling agricultural produce, respectively. The market is established under Section 2(1)(h) of the said Act, which is meant for buying and selling of agricultural produce and the market includes the principal market yard and sub-market yard or yards. The adjoining outer space of the market yard comes within the definition of market, and unless specifically excluded by notification cannot be leased out or transferred in any manner for any other purpose than the purposes specified in the said Act and obviously, it cannot be transferred in any manner, either by lease settlement or otherwise, for non-agricultural trade and business.
28. Learned Counsel for the respondents led much stress that the preamble of the Act needs not be resorted to for construing the provisions of the Act and in particular for understanding the meaning of the definitions. Learned Counsel referred to and relied upon a decision of the Apex Court in Burrakur Coal Co. Ltd. v. The Union of India and Ors. : [1962]1SCR44 . He has further referred to and relied upon the decision of the Apex Court in The State of Rajasthan v. Mrs. Leela Jain and Ors. : [1965]1SCR276 to stress the said point that the preamble may, no doubt, be used to solve any ambiguity or to fix the meaning of words which may have more than one meaning, but it cannot be used to eliminate as redundant or unintended, the operative provisions of a statute.
29. In State of Rajasthan's case (Supra), the Apex Court has made it clear that if there are other provisions in the statute which conflict with them, the Court may prefer the one and reject the other on the ground of repugnance. When the words in the statute are reasonably capable of more than one interpretation, the object and purpose of the statute, a general conspectus of its provisions and the context in which they occur might induce a court to adopt a more liberal or a more strict view of the provisions, as the case may be, as being more consonant with the underlying purpose. But it is not possible to reject words used in an enactment merely for the reason that they do not accord with the context in which they occur, or with the purpose of the legislation as gathered from the preamble or long title. It has been further observed that the preamble may, no doubt, be used to solve any ambiguity or to fix the meaning of words which may have more than one meaning, but it can, however, not be used to eliminate as redundant or unintended, the operative provisions of a statute.
30. In the instant case, it is not only preamble, but the definition of the 'trade', 'trader', 'market', etc. the purpose for constituting the Market Committee, its power and function and all other relevant provisions including Rules 80 and 81 are in consonance and there is no ambiguity in the words used in the operative provisions of the said Act. The said decisions are of no help to support the respondents' interpretation of Section 17 and other provisions of the Act and Rules. In view of the reasons aforementioned, this writ petition deserves to be allowed.
31. The impugned resolutions dated 6th July, 2007 (Annexure- 3), Letter No. 991 dated 10th December, 2007 (Annexure-4) and the office order of the Managing Director of Jharkhand State Agriculture Marketing Board dated 28th December, 2007 (Annexure-5) are quashed. This writ petition is allowed.
32. However, there is no order as to costs.