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PETITIONER: THE BELSUND SUGAR CO. LTD.

       Vs.

RESPONDENT: THE STATE OF BIHAR & ORS.  ETC.

DATE OF JUDGMENT:       10/08/1999

BENCH: S.B.Majmudar, Sujata V. Manohar, K.Venkataswami, V.N.Khare

JUDGMENT:

S.B.  Majmudar, J

     Leave granted in the Special Leave Petitions.

     These  appeals  and  writ petitions mainly  raise  the question  regarding  the legality of the levy of market  fee under  the provisions of Bihar Agricultural Produce  Markets Act,  1960 (hereina’fter referred to as the Market Act for short).    The  grievance  made   by   the   appellants/writ petitioners  pertained  to  the following  commodities  with which   the  respective  proceedings   are  concerned.    1. Sugarcane,  Sugar and molasses (briefly referred to as Sugar matters) matters)

     2.   Wheat products Atta, Maida, Suzi, Bran etc.;   3. Vegetable  Oil;   4.   Rice  milling;   5.   Milk  and  milk products;  6.  Tea.

     It  will,  therefore, be appropriate to deal  seriatim the  grievances  centering round the levy of market  fee  on transactions concerning the aforesaid commodities.

     GRIEVANCES  IN  CONNECTION WITH MARKET FEE  CONCERNING SUGAR MATTERS

     So  far  as this group of matters is concerned,  first two  Civil  Appeal  Nos.   398 & 399 of 1977  arise  out  of certificates  of  fitness  granted  by  the  High  Court  of Judicature  at Patna under Articles 132(1) and 133(1) of the Constitution  of India.  The said certificates pertain to  a common  judgment  of  the High Court rendered  in  two  writ petitions  of two sugar mills located in the State of Bihar. By the common judgment dated 20th April, 1976 the High Court dismissed both the writ petitions.  The said judgment of the High  Court is reported in The Belsund Sugar Co.  Ltd., Riga and  another  vs.  The State of Bihar and others, (AIR  1977 Patna 136).  By the impugned common judgment, the imposition of  market  fee under the Market Act on the transactions  of purchase  of sugarcane by the sugar mills concerned and also on  their  transactions covering sale of sugar and  molasses manufactured by utilising the purchased sugarcane was upheld by  the  High  Court.   In  view   of  the  fact  that   the certificates  of  fitness were granted by the High Court  as aforesaid  this  group of matters was directed to be  placed before a Constitution Bench of this Court as per Article 145

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of  the  Constitution of India.  Though initially they  were directed  to  be  placed  before a Bench  of  seven  Judges, subsequently  by  a latter order dated 9th  December,  1998, these appeals were directed to be placed before a five Judge Bench  and  that  is  how these appeals  and  other  cognate matters  were  placed before this Bench for  final  hearing. Though the certificates of fitness granted by the High Court were  on  the  basis that the cases involved  a  substantial question  of law as to the interpretation of Article  254(1) of the Constitution of India, at the time when these appeals and  the  cognate matters reached final hearing  before  us, learned  senior  counsel Shri Shanti Bhushan and Shri  Gupta appearing for the appel lants, raised mainly two contentions for our consideration :

     1.    Whether  the  Market  Act   can  apply  to   the transactions  of purchase of sugarcane and sale of sugar and molasses  by  the appellant sugar mills in view of the  fact that regulation of these transactions is already effected by Bihar  Sugarcane  (Regulation of Supply and  Purchase)  Act, 1981  (for short Sugarcane Act) as well as and Sugar  both issued  under  Section 3 of the Essential  Commodities  Act, 1955  (hereinafter referred to as the Essential Commodities Act)  and  also  under  the provisions  of  Bihar  Molasses (Control) Act, 1947.

     2.   In the alternative, whether imposition of  market fee under the Market Act by the respective market committees is  justified in the absence of any service rendered to  the appellant sugar mills under the provisions of the Market Act and  consequently  the levy of market fee can be said to  be not supported by any quid pro quo.

     RIVAL CONTENTIONS :

     Learned  senior counsel for the appellants  vehemently submitted  in support of the aforesaid twin contentions that the  Market  Act which was enacted by the Bihar  legislature under Entries 26 and 27 of the State List read with Entry 28 therein had to be read subject to Entry 33 of the Concurrent List  and  as the Bihar Legislature itself had  enacted  the Sugar  Act in exercise of its legislative powers under Entry 33  of  the Concurrent List, there was no occasion left  for the  State  of  Bihar  to get satisfied about  the  need  to regulate  the  production and sale of sugarcane as  well  as manufactured  items  therefrom  as per the Market  Act.   In short,  the  invocation of Section 3 read with Section 4  of the  Market  Act was totally misconceived and uncalled  for. It  was  further contended that once the State of  Bihar  in exercise  of its power of exemption under Section 42 of  the Market  Act had exempted the appellant sugar factories  from applicability  of  Section 18 of the Market Act, the  entire machinery  under  the  Market  Act  became  inapplicable  to regulate  the  sale and purchase of transactions  concerning sugarcane,  sugar  and  molasses  as  entered  into  by  the appellant  sugar factories.  Consequently, there remained no occasion  for  the authorities functioning under the  Market Act  for demanding any market fee from the appellants  under Section  27  of  the Market Act.  It was also  contended  in further  support  of  this  submission  that  the  Sugarcane Control  Order, 1966 as well as the Sugar (Control) Order of the  same  year  issued  under Section 3  of  the  Essential Commodities  Act, 1955 and also the provisions of the  Bihar Molasses  (Control)  Act, 1947 fully occupied the  field  of regulation  of  sale  and purchase of sugarcane,  sugar  and

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molasses  and  on  that ground also the  provisions  of  the Market  Act  could  not be pressed in  service  against  the appellant  sugar factories undertaking the purchase and sale of  the concerned transactions.  In the alternative, it  was contended  that once Section 15 of the Market Act is out  of picture  and  once it remains an admitted position that  the appellant  sugar  factories have to purchase sugarcane  from purchase  centres, there remains no occasion for the  market committees  to give any services under the Market Act to the appellant sugar factories.  Hence the market committees were not  entitled to recover any market fee from the  appellants as  there  was  no  return  benefit or  quid  pro  quo  made available  to  the appellants by the market  committees  and hence  the  impugned  market fee in substance became  a  tax which  could  not be recovered under the Market Act  by  the market committees.

     Replying  to these contentions, learned senior counsel for  the State of Bihar and learned senior counsel appearing for the market committees submitted that the appellant sugar factories have no locus standi to maintain these proceedings for the simple reason that so far as their challenges to the levy  of  market  fee on transactions of sale of  sugar  and molasses  were concerned, as under Section 27 of the  Market Act  levy  was imposed on the buyers of sugar  and  molasses manufactured  by the appellant companies, these sugar  mills were not affected by the levy.  That the appellant companies may at the highest be collecting agents of market fee if the buyers  were  not licensed under the Act but in most of  the cases  the appellant sugar companies were selling levy sugar to  the  Food Corporation of India and even free  sugar  was mostly  sold by them to licensed buyers.  Same was the  case of sale of molasses to the concerned buyers.  They, however, rightly  conceded  that the appellants cannot be said to  be not  having  any  locus standi to challenge the  market  fee levied  on  their  purchase of sugarcane as  the  charge  of market fee would be on them as buyers of sugarcane.

     On  the  merits of the contentions raised  by  learned senior  counsel  for the appellants, learned senior  counsel for  the  respondents submitted that even if  the  exemption notification  under Section 42 of the Act purports to exempt the  appellant  sugar companies from whole of Section 15  of the  Market  Act, in substance the exemption is confined  to Section  15(2) of the Act as there is already a  declaration under  Section  4  of the Market Act treating  the  purchase centres  of  the  appellant sugar companies at  the  factory gates  as  well  as at other places in the  market  area  as sub-market  yards.   On  a  conjoint reading  of  these  two notifications,  therefore,  it  can be seen  that  exemption under  Section  42 of the Act was confined to excluding  the operation  of  Section  15(2)  of the Act  qua  these  sugar factories.  In the alternative, it was submitted that if the exemption notification is treated to cover entire Section 15 even  then  once the transactions of sale and purchase  take place  within the market area, charge under Section 27 would get settled on these transactions.  It was further submitted that  there  is enough return benefit made available to  the sugar  factories admittedly situated within the market area. That, in fact, their service centres are also declared to be sub-market  yards  even beyond the factory gate.  That  they utilise  the  link  roads  made   available  by  the  market committee  for  bringing  sugarcane produce to  the  factory premises  by giving facility of swift transportation.   Thus the  sugarcane  as a raw material is brought to the  factory

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premises  before  it  gets  dried up.   This  yields  better quality  and  larger  quantity of sugar  and  molasses.   In addition   thereto  facilities  of   supply   of   necessary information  regarding the prevalent prices of sugarcane are made available by the market committee.  But even apart from that, the market committee can act as a mediator in enabling the sugarcane growers to get better price of sugarcane above the  minimum  price  fixed under the Control Order  and  the Sugarcane Act and this role of the market committee would be beneficial  not only to the producers of sugarcane but  also to  the  factories which can be assured of appropriate  good quality  sugarcane purchased from the sugarcane growers.  It is,  therefore,  wrong to suggest that there is no quid  pro quo between the charge of market fee and the payment thereof by  the  sugarcane  factories,   that  the   infrastructural facilities made available to the industry as a whole have to be seen and transactions are not to be dissected for finding out  the quid pro quo between charging of the market fee and the  burden  thereof borne by the sugar companies.  It  was, therefore,  contended that none of the submissions canvassed by  learned senior counsel for the appellants deserved to be accepted.   In the light of the aforesaid rival contentions, we  now proceed to deal with the twin contentions  submitted for  our  consideration  by learned senior counsel  for  the appellants  in support of these appeals.  However, before we deal  with the merits of these contentions, the question  of locus  standi of the appellants is required to be considered at the outset.

     LOCUS  STANDI  OF  THE APPELLANTS  TO  MAINTAIN  THESE PROCEEDINGS :

     It  has  to be kept in view that as per Section 27  of the  Market Act the charge of the market fee is on the buyer of  the  agricultural produce bought or sold in  the  market area.  The said section reads as under :

     "Power  to levy fees - (1) The Market Committee shall levy  and  collect market fees on the  agricultural  produce bought  or sold in the market area at the rate of rupee  one per Rs.100 worth of agricultural produce.

     Xxxxx xxxx xxxx

     (2)  The  market fee chargeable under sub-section  (1) shall be payable by the buyer, in the manner prescribed.

     (3) The fee chargeable under sub-section (1) shall not be  levied more than once on a notified agricultural produce in the same notified Market Area.

     It  is  not  in  dispute   between  the  parties  that sugarcane  is  an agricultural produce as it is  grown  in fields  by  the cultivators.  Both sugarcane and  sugar  are listed  as  Item  nos.   1 and 3 in Para  XII  dealing  with miscellaneous  items as found in the Schedule to the  Market Act enacted as per Section 2(1)(a) of the Act.

     Section 2(1)(a) of the Act defines agricultural produ   as  under  :  Agricultural produce means  all  produce whether  processed or non-processed, manufactured or not, of Agriculture,  Horticulture,  Plantation, Animal,  Husbandry, Forest, Sericulture, Pisciculture, and includes livestock or poultry as specified in the Schedule.

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     In  the  light  of  the aforesaid  provisions,  it  is obvious  that  the sugar factories operating in  the  market area  within  the  jurisdiction  of  the  market   committee concerned  can  be  said  to  be  buyers  of  sugarcane,  an agricultural produce.  Their purchase centres are situated within  the  market  area.  As submitted by  learned  senior counsel  for  the respondents, all the purchase  centres  at which  the  appellant sugar factories purchase sugarcane  as raw  material  are not only situated within the market  area but  are  also  declared as submarket yards.   In  fact  the entire  Bihar  State  is comprised of various  market  areas within  the jurisdiction of different market committees.  If that  is  so, it has to be held that when the  charge  under Section  27  of  paying market fee is imposed on  the  sugar factories  as  buyers of sugarcane within the  market  area, they have to be treated to be having sufficient locus standi as buyers of sugarcane to challenge the imposition of market fee on their purchase transactions.  On this aspect, learned senior   counsel  for  the   respondents  did  not  contest. However,  their submission was that when purchased sugarcane is  processed at the factories and converted into sugar  and molasses  and  when such sugar and molasses are sold by  the sugar  factories,  the  charge of market fee on  these  sale transactions  would  settle  on  the  buyers  of  sugar  and molasses  who  have not made any grievance about payment  of market  fee.  That may be so, however, the fact remains that if  the sugar factories sell manufactured sugar and molasses out  of  the  purchased raw material-sugarcane, and  if  the buyers  are not licensed then as per the provisions of  Rule 82  (iii)  of the Bihar Agricultural Produce Markets  Rules, 1975  the  sugar  factories as sellers have to  realise  the market fee from the buyers and have to deposit the same with the market committees.  That obligation by itself would give sufficient  locus  standi to the sugar factories which  sell sugar  and molasses within the market area to challenge  the aforesaid  statutory  obligation imposed on them by the  Act and  the Rules and to submit as to how they are not  covered by the provisions of the Act.  It may be that when they sell levy  sugar  to the Food Corporation of India, they may  not have to undertake this liability as collecting agents of the market  committee,  so far as the market fee  is  concerned. Still  even  if partially in case of sale of free  sugar  to unlicensed  buyers they have to be called upon to  discharge their statutory obligation under Rule 82 (iii), it cannot be said  that  they  have  no locus  standi  to  challenge  the imposition  of  market  fee  on  the  transactions  of  sale effected by them in connection with sugar and molasses.  The preliminary  objection  of  learned senior counsel  for  the respondents  against  the locus standi of the appellants  to maintain  these proceedings is, therefore, over-ruled.  This takes  us to the consideration of the main twin  contentions canvassed  by learned senior counsel for the appellants  for our  consideration.   CONTENTION NO.  1 :  Applicability  of the  Market  Act to appellants transaction of  purchase  of sugarcane and sale of sugar and molasses.

     So  far  as this contention is concerned, we  have  to keep  in  view  the relevant provisions of the  Market  Act, Sugar  Act  as  well  as  the  Orders  under  the  Essential Commodities  Act.  In the first instance, we shall deal with the  transactions  of  purchase of sugarcane  by  the  sugar factories functioning in the market areas falling within the jurisdiction  of  respective market  committees  constituted under  the  Market Act.  The Market Act has been enacted  by the Bihar Legislature as per the legislative power vested in

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it  by Entries 26, 27 and 28 of List II of Seventh  Schedule of  the  Constitution.  These entries read as under :   26. Trade  and  commerce  within  the   State  subject  to   the provisions of entry 33 of List III.  27.  Production, supply and distribution of goods subject to the provisions of entry 33 of List III.  28.  Markets and fairs.

     It  becomes at once clear that if location of  markets and  fairs  simpliciter and the management  and  maintenance thereof  are only contemplated by the Market Act, then  they would  fall  squarely within the topic of legislative  power envisaged  by Entry 28 of List II.  However, the Market Act, as   we  will  presently  show,   deals  with   supply   and distribution  of goods as well as trade and commerce therein as   it  seeks  to  regulate   the  sale  and  purchase   of agricultural  produce  to  be carried on  in  the  specified markets  under  the Act.  To that extent the  provisions  of Entry  33 of List III override the legislative powers of the State  Legislature  in connection with legislations  dealing with  trade and commerce in, and the production, supply  and distribution  of,  goods.  Once we turn to Entry 33  of  the Concurrent  List,  we  find that on the topic of  trade  and commerce in, and the production, supply and distribution of, goods  enumerated therein at sub-clause (b), we find  listed items  of  foodstuffs, including edible oilseeds  and  oils. Thus to the extent to which the Market Act seeks to regulate the transactions of sale and purchase of sugarcane and sugar which  are foodstuffs and trade and commerce therein, it has to  be  held  that the Market Act being  enacted  under  the topics  of legislative powers under Entries 26, 27 and 28 of List II will be subject to any other legislation under Entry 33  of the Concurrent List.  As it will be seen hereinafter, the  Bihar Legislature itself has enacted the Sugarcane  Act in  exercise of its legislative powers under Entry 33 of the Concurrent  List  and, therefore, the field covered  by  the Sugarcane Act would obviously remain exclusively governed by the  Sugarcane  Act and to the extent the latter Act  carves out an independent field for its operation, the sweep of the general  field  covered by the Market Act which  covers  all types  of agricultural produce, would pro tanto get excluded qua  sugarcane and the products prepared out of it.  So  far as the Market Act is concerned, it is necessary to note that it  is an Act to provide for 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.  The said Act is  enacted essentially  to protect the growers of agricultural  produce in  the State who on account of their ignorance,  illiteracy and lack of collective bargaining power may get exploited by middlemen  and  economically  strong   purchasers  of  their agricultural produce with the result that the agriculturists may  not  get adequate price for their produce.  It is  with that  end in view that the Market Act has been enacted.  The constitutional  validity  of  the  Madras  Commercial  Crops Markets  Act, concerned with the regulation of purchase  and sale  of  commercial  crops   grown  by  agriculturists  was considered by a Constitution Bench of this Court in the case of M.C.V.S.  Arunachala Nadar Etc.  vs.  The State of Madras &  Others [(1959) Supp.(1) SCR 92].  Subba Rao J.,  speaking for the Court while upholding the constitutional validity of the said Act emphasised the necessity of such enactment with a  view  to protect the producers of commercial  crops  from being  exploited  by  the middlemen and  profiteers  and  to enable  them to secure a fair return for their produce.  The learned  Judge  referred  to, with approval,  the  following

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recommendations  of Royal Commission on Agriculture in India appointed  in  1928.   That 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  cultivators marketing difficulties seems to lie in the improvement  of  communications  and  the  establishment  of regulated  markets 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.   The Bombay Act is, however, definitely limited to cotton  markets  and the bulk of the transactions  in  Berar market  is  also in that crop.  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.

     Reference  was  also made to the Report of  an  Expert Committee  appointed  by  the  Government  of  Madras  which graphically  described  the difficulties of the  cultivators and  their dependence upon the middlemen.  The following  is the extract from the Report of the Expert Committee as noted by  Subba  Rao J., for highlighting the need  for  regulated markets for cultivators of commercial crops.  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 agents 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.

     Relying  on  the aforesaid observations Subba Rao  J., speaking  for the Constitution Bench, justified the need for such legislations and upheld the Act by laying down as under :   The  aforesaid  observations   describe  the   pitiable

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dependence  of  the  middle-class  and  poor  ryots  on  the middlemen  and  petty  traders,  with the  result  that  the cultivators  are not able to find markets for their  produce wherein  they can expect reasonable price for them.  With  a view  to provide satisfactory conditions for the growers  of commercial crops to sell their produce on equal terms and at reasonable prices, the Act was passed on July 25, 1933.  The preamble  introduces  the  Act with the recital that  it  is expedient to provide for the better regulation of the buying and  selling of commercial crops in the Presidency of Madras and for that purpose to establish markets and make rules for their  proper  administration.  The Act, therefore, was  the result of a long exploratory investigation by experts in the field,  conceived  and  enacted to regulate the  buying  and selling  of  commercial  crops  by  providing  suitable  and regulated markets by eliminating middlemen and bringing face to  face  the  producer and the buyer so that they  meet  on equal terms, thereby eradicating or at any rate reducing the scope  for exploitation in dealings.  Such a statute  cannot be said to create unreasonable restrictions on the citizens right  to do business unless it is clearly established  that the  provisions  are  too drastic, unnecessarily  harsh  and overreach  the  scope of the object to achieve which  it  is enacted.

     It,  therefore,  cannot be gainsaid that the  need  to have  a  regulated market where the agriculturist who  grows sugarcane  as  a commercial crop can be assured of  adequate price  of  the  sugarcane  produced by him and  may  not  be exploited  by middlemen, would justify the enactment of  the protective  umbrella of the Market Act.  However, if the Act had stood by itself, no legitimate grievance could have been made  by  anyone on this score.  But so far as the facts  of the  present  cases  are  concerned,  the  very  same  Bihar Legislature  enacted  the  Sugarcane Act of 1981  which  has operated  simultaneously with the Market Act for the  entire State.  The said latter Act is obviously enacted by the very same legislature in exercise of its legislative powers under Entry  33  of the Concurrent List.  It is, of  course,  true that  the  Union  Parliament  has  not  passed  any  similar legislation  in exercise of its concurrent legislative power under  the  very  same  Entry  33 of  List  III.   We  will, therefore,  have  to see to what extent the  Sugarcane  Act, which is a latter Act, has carved out a field for itself for protecting  the  sugarcane growers resulting in  withdrawing the same subject matter from the general sweep of the Market Act which covers not only sugarcane but also number of other agricultural  produce.  In this connection, Section 3 of the Market  Act requires to be noted.  It reads as under :   3. Notification  of  intention  of   exercising  control   over purchase,  sale,  storage  and  processing  of  agricultural produce in specified area -

     [(1)   Notwithstanding   anything  to   the   contrary contained  in any other Act for the time being in force, the State Government may, by notification, declare its intention of  regulating the purchase, sale, storage and processing of such  agricultural  produce  and  in such area,  as  may  be specified in the notification.]

     (2)  A notification under sub-section (1) shall  state that  any  objection or suggestion which may be received  by the  State  Government within a period of not less than  two months  to  be  specified  in  the  notification,  shall  be considered by the State Government.

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     As  per the aforesaid provisions, it has to be kept in view  by  the State Government concerned while  forming  the requisite intention whether there is any special legislation of  the same State Legislature holding the field and serving the  very same purpose of regulating such transactions.  Mr. Shanti  Bhushan,  learned senior counsel for the  appellant, vehemently  contended that the Bihar Legislature itself  had enacted  the  Sugarcane  Act  of  1981  whereunder  adequate provision  was  made  for  regulating  the  purchase,  sale, storage and processing of sugarcane.  The complete machinery was provided thereunder for protecting the sugarcane growers and, therefore, there was no occasion for the State of Bihar to continue the regulation of purchase and sale transactions of  sugarcane atleast after 1981 as per Section 3(1) of  the Market  Act.   The preamble of the Sugarcane Act shows  that amongst  others  it is enacted to regulate  the  production, supply  and  distribution of sugarcane intended for  use  in sugar  factories  and  taxation  of  sugarcane  and  matters incidental  thereto.   Chapter  II  of  the  Sugarcane   Act provides  for Administrative Machinery for carrying out  the purposes  of  the  Act.   Section   3  thereof  deals   with Establishment  of Sugarcane Board.  Section 4 lays down  the Functions  of  the Board - (1) The Board shall  advise  the State Government on the following matters, namely :-

     (a)  planning  of development schemes  connected  with production, research, transport and sale of sugarcane;

     (b)  matters  pertaining  to   regulation  of  supply, purchase and weighment of cane;

     (c)   the  varieties  of   sugarcane,  tested  by  the Sugarcane  Research  Institute  in   the  State,  which  are suitable or unsuitable for use in a factory;

     (d) recommendations in respect of the price of cane to be supplied to factories;

     (e)  determination  of  the price of cane  payable  by owners of units;

     (f)  maintenance  of  healthy  relations  between  the occupiers  and managers of factories on the one hand and the cane-growers and co-operative societies on the other;  and

     (g) such other matters as may be prescribed.

     Section   7   deals  with   Establishment   of   Zonal Development  Council  working of which can be supervised  by the   Board.   The  Collector  of   the  District   or   the Sub-divisional  Officer  is to be the Chairman of the  Zonal Development Council and is to be assisted by various persons as provided by Section 7.  Section 8 deals with Functions of the  Council  -  The functions of the Council  shall  be  as follows  :(a) to consider and prepare the programme for the development  of  communications, irrigations, soil  analysis and other agricultural facilities relating to sugarcane;

     (b) to devise ways and means for executing development plan   in  all  its   essential  including  improvement  and development  of  communications, cane varieties,  supply  of good   quality  seeds,  fertilisers   and   manures,   plant protection and prevention and control of diseases and pests;

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     (c)  to  render  all  possible  help  in  agricultural extension work of cane;

     (d)  to  assist  in arrangements for the  training  of cultivators  in  improved methods of sugarcane  cultivation; and

     (e)  to  perform such other functions  pertaining  and conducive to the general development of the reserved area as may be prescribed.

     Section   12   deals   with    Appointment   of   Cane Commissioner.   It  reads  as  under   :-  (1)  The   State Government  may,  by notification in the  official  Gazette, appoint any person to be the Cane Commissioner for the State of  Bihar and to exercise the powers and perform the  duties conferred  and imposed on the Cane Commissioner by or  under this Act.

     (2)  The State Government may, by notification in  the official  Gazette, appoint such persons as it thinks fit  to be   the   Additional   Cane    Commissioner,   Joint   Cane Commissioner,  Deputy  Cane Commissioner and Assistant  Cane Commissioner  to  assist the Cane Commissioner  within  such local  limits  as  may be assigned to them  and  confer  and impose  upon them all or any of the powers and duties of the Cane Commissioner within their respective jurisdiction.

     Section  13  deals with Appointment of  Cane  Officer. Then  comes Chapter IV which deals with Purchase and  Supply of  Cane  to  sugar  factories.    Section  25  deals   with Appointment  of Manager and provides as under :- (1) Within thirty  days of the commencement of this Act and  thereafter within  the  same  period before the commencement  of  every crushing  year  the occupier of a factory shall send to  the Collector  a notice of appointment of any person as  manager for the purposes of this Act or the rules :

     Provided that until the first notice of appointment of manager  under  this  Act is sent, the person  appointed  or deemed  to be appointed as manager under the Bihar Sugarcane (Regulation  of Supply and Purchase) Ordinance, 1973  (Bihar Ordinance  47 of 1973) shall be deemed to be a manager under this Act.

     (2)  No person shall be deemed to have been  appointed as  manager  until  a sum of two thousand and  five  hundred rupees  is  deposited by him or on his behalf  as  security, with the Collector concerned in the prescribed manner.

     (3)  Whenever a new manager is appointed, the occupier of  the factory shall send to the Collector a written notice of  the change within fifteen days of the date on which  the new manager assumes charge of his work.

     (4)   During  any  period   for  which  provisions  of sub-sections (1) and (2) are not complied with or the person appointed  as  manager does not manage the factory,  or  his security  money  is  not replenished to the  extent  of  its forfeiture under sub-section (2) of section 57, the occupier of  the factory himself shall be deemed to be the manager of the factory for the purposes of this Act and the rules.

     Section  27  deals with Estimate of quantity  of  cane required  by  factory  and lays down as follows:-  (1)  The

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occupier  of  every  factory  shall   submit  to  the   Cane Commissioner,  on  or before the prescribed date,  in  every crushing year, an estimate, in the prescribed manner, of the quantity of cane which may be required in the factory during such crushing year.

     (2) The Cane Commissioner shall examine every estimate submitted  under sub-section (1) and where the occupier of a factory  has  failed to submit an estimate under  subsection (1),  he  shall  draw  up  an estimate  by  himself  in  the prescribed  manner and shall publish the same in such manner as  may be prescribed with such modifications, if any, as he may   think  fit,  after   consultation  with  the   council concerned.

     (3)  The prescribed authority may, either suo motu  or on an application made to it by the occupier of the factory, within  thirty days of the publication of the estimate under sub-section  (2), revise the estimate, published under  that sub-section  and that authority shall cause the estimate  so revised to be published in the prescribed manner.

     Section   28  deals  with   Conditions  precedent   to commencement  of purchase of cane.  It states as under :(1) The occupier of a factory or any person acting on his behalf shall  not  commence  the purchase of cane  unless  adequate arrangements,  as  may  be  prescribed, have  been  made  in respect of the following matters, namely :-

     (a) weighment of cane to be purchased;  (b) payment of the  price  of cane purchased;  (c) parking  of  cane-carts; (d)  approach  roads  to the place of  weighment;   and  (e) distribution of requisition slips.

     (2)  Where survey has not been made under section  34, the  occupier of the factory shall, before the  commencement of  purchase  of  cane,  have the  survey  of  the  standing cane-crop made as the prescribed manner.

     Then follows Section 29 which deals with Establishment of  purchasing  centres.   It  reads as under  :-  (1)  The occupier  of  a factory, or the Secretary of  a  Cooperative Society  may  establish a purchasing centre after  giving  a notice  in  writing  to the Collector at least  thirty  days before  the  commencement of purchase of cane and copies  of such  notice shall be sent by the occupier of the factory or the  Secretary of the Society forthwith to the Cane  Officer concerned and the Cane Commissioner .

     The  remaining sub-sections of Section 29 lay down the procedure  under which the Collector can direct shifting  of the  location of any purchasing centre to another place  and also  the  power of the prescribed authority to  revise  the order  of the Collector.  Section 31 deals with  Declaration of  reserved  area  and provides as follows :(1)  The  Cane Commissioner  may, having regard to the crushing capacity of the  factory, the availability of sugarcane in such area and the  need  for production of sugar and after consulting  the council  concerned  and the occupier of the factory  or  the occupiers  of other affected factories and after considering any  objection  that  may  be raised,  issue  an  order,  by notification  in the official Gazette, declaring any area to be  the  reserved area for the purpose of supply of cane  to the  factory during a particular crushing year or years  and may  likewise  cancel any such order or alter the extent  of

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the area so reserved :

     Section  32  deals  with Purchase of cane grown  in  a reserved  area.   Sub-section (6) thereof reads  as  follows Except  with  the permission of the State Government,  cane grown  in a reserved area shall not be sold to or  purchased by -

     (i) the occupier of any factory other than the factory for which the area is reserved;  or

     (ii)  any  person  for the purpose of  supply  to  any factory  other  than  the  factory for  which  the  area  is reserved;  or

     (iii)  the  owner of a unit to whom a licence has  not been granted under section 16.

     Sub-section  (9)  of  Section 32 reads as  follows  :- Subject  to  the provisions of sub-section (1),  the  State Government  may  prohibit or restrict or otherwise  regulate the  movement  of  sugarcane from any reserved  area  except under  and in accordance with a permit issued by it in  this behalf.

     Section  39 deals with Recording of correct weight  of cane  and  reads  as  under :- (1) The  occupier  of  every factory,  the  owner  of  every  unit,  Secretary  of  every Co-operative   Society  and  every   person  in  charge   of weighmens  shall maintain, subject to such limits of  error as  is  prescribed  by the State Government  under  the  law relating  to  weights  and measures, for the time  being  in force,  a record of the correct weight of cane purchased  at the place of weighment.

     (2) No cane shall be purchased without being weighed.

     Section  40  deals with Provisions for approach  roads etc.,  at  the purchasing centres and reads as  under  :The occupier  of a factory or a co-operative society  purchasing cane at any purchasing centre shall make such provisions for the  following  and  keep  them in such repairs  as  may  be prescribed, namely :-

     (a)  approach road and parking space for animal-driven carts;

     (b) sheds for animals and cart-drivers;

     (c)  drinking  water for persons using the  purchasing centre;  and

     (d) drinking water and water-trough for animals.

     Then  follows  Chapter V which deals with  Payment  of price  of  cane  and other matters.  Section 42  deals  with minimum  price of cane supplied to a unit and reads as under :The  State  Government  may, after consulting  the  Board, determine  by  notification  in  the  official  Gazette,  in respect of any area the minimum price of cane payable by the owners   of  units  to   the  cane-growers  or  co-operative societies  for  cane supplied to them in the  crushing  year

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concerned :

     Provided  that  the minimum price so determined  shall not  exceed  the minimum price payable by the occupier of  a factory  under  any  law  for the time being  in  force,  in respect of the cane supplied from the same area.

     Mode  of  payment  of price of cane to  the  sugarcane growers  is  provided by Section 43.  Section 44 deals  with Deduction  and  provides as follows :(1) The occupier of  a factory or any person on his behalf shall not make any other deductions  from  the price of cane except the deduction  on account  of any loan advanced by him, or on his guarantee or otherwise  advanced  by a bank or other  institutions  under section 50(1).

     The remaining sub-sections of Section 44 deal with the circumstances under which any person in charge of payment of price  of  cane on behalf of a co-operative  society  cannot make deductions from the price of cane as fixed.  Section 46 deals with Decision of certain disputes and

     reads as under :-

     (1) If any dispute arises regarding the price of cane supplied to the occupier of a factory the person entitled to the price or the document on the basis of which the price is claimed,  payment  of  the price shall be withheld  and  the occupier of the factory to which the cane was supplied shall enter  the dispute in a register in the prescribed form  and refer  it  within  the prescribed period to  the  prescribed authority  who shall, after giving the parties a  reasonable opportunity  of being heard and after such inquiry as he may consider necessary, decide the dispute :

     Provided  that  whenever the payment of the  price  is whether  held  under this sub-section, the occupier  of  the factory  shall deposit with the prescribed authority in  the prescribed  manner the amount in dispute, within one week of such reference.

     (2)  Any  other  dispute  touching  an  agreement  for purchase  of cane by the occupier of a factory or its supply to  him  and  any dispute relating to purchase  of  cane  or cane-juice  by  the  owner of a unit and  payment  of  price thereof  shall be referred to the authority prescribed under sub-section  (1) who shall decide it in the manner laid down in that subsection.

     Xxxx xxxx xxxx

     (3)  Any  person  aggrieved by a decision  made  under subsection (1) or sub-section (2) may, within thirty days of the  decision, prefer an appeal to the Collector who  shall, after  giving the parties a reasonable opportunity of  being heard  and after such inquiry as he may consider  necessary, pass such order, as he thinks fit.

     (4)  An  order of the Collector under sub-section  (3) and  subject  to such order, the decision of the  prescribed authority under sub-sections (1) or sub-section (2) shall be final.

     Section  48  deals  with   Payment  of  commission  on

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purchase  of  cane  and  reads as follows  :(1)  The  State Government  may,  by notification in the  official  Gazette, require  the occupier of a factory to pay in the  prescribed manner  a commission not exceeding fifteen paise per quintal on  the  purchase of cane made by him or on his  behalf  and may,  by a like notification exempt the occupier of any  new factory  to  be  specified  in the  notification,  from  the payment of such commission for prescribed period.

     Section  49  imposes Tax on Sugarcane which  reads  as follows  :(1) The State Government may, by notification  in the official Gazette, impose -

     (a) a tax not exceeding one rupee per quintal on entry of   sugarcane  into  a  local   area  specified   in   such notification,  for  consumption  or  use of, or  sale  to  a factory situated therein :

     (b)  a tax not exceeding one rupee per quintal on  the purchase  of sugarcane by or on behalf of the occupier of  a factory :

     Section  50 deals with Advance of loan by occupier  of factory  and  lays down as follows :(1) The occupier  of  a factory  or any person working on his behalf or any bank may advance  loan to a cane-grower or a Co-operative Society for such  purposes connected with cultivation or supply of  cane to  the  extent  of the amount and in the manner as  may  be prescribed.

     (2) Interest at the rate specified in section 51 shall be  payable  on the loan advanced under sub-section (1)  and the  loan  and  the  interest shall  be  realisable  in  the prescribed manner.

     Chapter VI deals with miscellaneous items.  Section 52 of  the  said  chapter deals with penalty for  offences  and provides  as follows :If any person contravenes or attempts to  contravene  or  abets the contravention of  any  of  the provisions  of this Act or the rules or of any order made or direction  given  thereunder or the terms and conditions  of any  licence, he shall be punishable with imprisonment which may  extend  to six months or with fine which may extend  to five  thousand  rupees  or with both and in the  case  of  a continuing  contravention, with an additional fine which may extend  to  one thousand rupees for every day  during  which such  contravention continues after conviction for the first contravention :

     Section  58 deals with the power to summon and enforce attendance  of  witnesses  and production of  documents  and provides as under :For the purposes of enquiries under this Act  the  Cane  Commissioner or any  person  exercising  the powers  of  the  Cane Commissioner or a Cane Officer  or  an Officer  appointed  under  section 34 shall  have  the  same powers to summon and enforce the attendance of witnesses and parties  and  to  examine  them on oath and  to  compel  the production  of  document as a civil court under the Code  of Civil Procedure, 1908 (5 of 1908) :

     Provided that for the purpose of any penalty under the provision  of the said Code upon any defaulter, a  reference shall  be made to the civil court of competent  jurisdiction for appropriate action.

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     The aforesaid provisions of the Sugarcane Act leave no room  for doubt that the Bihar Legislature in its wisdom has enacted  a special machinery for regulating the purchase and sale  of  sugarcane  to be supplied to sugar  factories  for manufacturing  sugar out of the sugarcane produced for  them in  the  reserved area.  The relevant provisions of the  Act project  a well knit and exhaustive machinery for regulating the  production,  purchase and sale of sugarcane  for  being supplied  as  appropriate  raw  material  to  the  factories manufacturing  sugar and molasses out of them.  We may  also turn  to  Rule  22 of the 1978 Rules, made under  the  Bihar Sugarcane  Act,  which provides that the factory  shall  not commence  the  purchase  of cane at  any  purchasing  centre unless (a) all the weighbridges to be used for weighment of cane have duly been checked and certified as workable by the competent  authority  under the law relating to weights  and measures;

     (b)  appropriate  arrangements to the satisfaction  of the  Collector have been made for arranging funds for making payment of the price of cane;

     (c)  Cane Officer of the area concerned has  certified that  suitable  arrangements for parking of cane  carts  and approach roads, as specified in rule 30 and for distribution of  requisition  slips  and identification cards  have  been made;  and

     (d)  adequate  arrangements  for  weighment,  adequate staff,  sufficient number of weighbridges and adequate means of  transport for carrying cane from all outlying purchasing centres  to  the  factory,  to   the  satisfaction  of   the Collector, have been made.

     Rule  30 requires the sugar factory to :  (a) provide at   every  purchasing  centre   suitable   approach   roads connecting  the nearest public roads with the parking ground and  likewise suitable tracks from the parking ground to the point where cane is unloaded after weighment;

     (b)   keep   such  roads   and  tracks  repaired   and satisfactorily  workable at all times the purchasing  centre is in operation;

     (c)   provide   space  in   the  parking  ground   for accommodating  at least one-fourth of the maximum number  of animal-driven  carts carrying cane required to be brought to the purchasing centre on any day for weighment and purchase;

     (d)  keep  the  metalled  tracks neat  and  clean  and separated by railing or trenches;

     (e)  provide shelters for animals and cart-drivers  at every   purchasing  centre,  to   the  satisfaction  of  the Collector;

     (f)  provide at least four water taps or hand pumps at convenient  points  of each purchasing centre located at  or adjoining  factory premises (referred to hereinafter as mill gate  purchasing centre) and one such water tap or hand pump at  every  purchasing  centre  other   than  the  mill  gate purchasing  centre  (referred hereinafter as the  outstation purchasing centre),

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     (g)  provide adequate number of water troughs in  each parking  yard  to  be  located  at such  points  as  may  be determined by the Cane Officer concerned, and;

     (h)  provide  such other facilities at any  purchasing centre  as  may be specified in the directions of  the  Cane Commissioner issued from time to time.

     The  aforesaid provisions, therefore, clearly indicate that the need for regulating the purchase, sale, storage and processing of sugarcane, being an agricultural produce, is completely  met  by the comprehensive machinery provided  by the Sugarcane Act enacted by the very same legislature which enacted  the  general Act being the Market Act.   Once  that conclusion  is  reached, it becomes obvious that the  Market Act   which  is  an  enabling   Act  empowering  the   State Authorities  to extend the regulatory net of the said Act to notified  agricultural produce as per Section 3(1) will  get its  general  sweep curtailed to the extent the special  Act being the Sugarcane Act enacted by the very same legislature carves  out  a special field and provides special  machinery for  regulating  the  purchase  and sale  of  the  specified agricultural  produce, namely, sugarcane.  It has also  to be  kept  in view that the very heart of the Market  Act  is Section 15 of the Act which reads as under :  [15.  Sale of agricultural produce - (1) No agricultural produce specified in notification under sub-section (1) of section 4, shall be made  bought  or sold by any person at any place within  the market area other than the relevant principal market yard or sub-market  yard  or yards established therein, except  such quantity as may on this behalf be prescribed for retail sale or personal consumption.

     (2) The sale and purchase of such agricultural produce in  such areas shall not withstanding anything contained  in any  law  be made by means of open auction or tender  system except  in cases of such class or description of produce  as may be exempted by the Board.]

     It  is this section which enables the market committee concerned  to monitor and regulate the sale and purchase  of the   agricultural  commodity  which  is  covered   by   the protective  umbrella of the Act.  Once such an  agricultural produce is brought for sale in the market yard or sub-market yard,  the sale is to be effected by auction or by  inviting tenders.   Such  a  scheme is in direct  conflict  with  the scheme  of the Sugarcane Act wherein there is no question of sugar  factory  being  called upon to enter  into  a  public auction   for  purchasing  sugarcane   which  is   specially earmarked  for  it  out  of the  reserved  area.   In  fact, provisions  of  the Sugarcane Act and the provisions of  the Market  Act,  especially Section 15 read with Section  3(1), cannot harmoniously co-exist.  It is precisely to avoid such a  possible  conflict and head-on collision between  general Act, namely, the Market Act and the special Act, namely, the Sugarcane Act which was later on enacted in 1981 by the very same  Bihar  Legislature,  that   the  State  Government  in exercise  of  its  exemption power under Section 42  of  the Market  Act issued a notification dated 22nd March, 1976  to the  following  effect:   S.O.  550 the  22nd  March,  1976 (Published  in Bihar Gazette (ex-order) dated 23-3-1976)  .- In  exercise of the powers conferred under Section 42 of the Bihar  Agricultural Produce Markets Act, 1960, the  Governor of  Bihar  is  pleased to exempt all sugar  mills  from  the provisions  of Section 15 of the Bihar Agricultural  Produce

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Markets  Act, 1960 with regard to their sale and purchase of agricultural  produce  notified  under  sub-section  (1)  of Section 4 of the said Act)

     This very notification shows that the State Government had  given up its erstwhile intention of regulating the sale and  purchase of sugarcane as per Section 3(1) of the Market Act  which could not survive any further after the  issuance of  the  aforesaid  exemption notification.  It is  easy  to visualise  that  the market committee can control  purchase, sale,  storage and processing of agricultural produce in the specified  area under the Market Act only when the sale  and purchase  of  agricultural  produce can be effected  as  per Section  15 in the principal market yard or sub-market yard. Market is defined by Section 2(1)(h) of the Market Act which reads as under :  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.

     It  is at such market yard that the regulation of sale and  purchase  of agricultural produce shall be effected  as required  by Section 15.  Once Section 15 is out of picture, the mere declaration of market area as per Section 4 and the general declaration of intention to regulate purchase, sale, storage   and  processing  of   agricultural  produce   like sugarcane  as per Section 3 of the Market Act or declaration of  market  yard or sub-market yards as per Section 5  would remain  an  empty  formality  or would  represent  an  empty eggshell  with its contents taken out.  The entire machinery of   the  Market  Act  would   be  rendered  redundant   qua agricultural  produce  to which Section 15 does  not  apply. Section  15  is the heart and soul of the Act.  Due  to  its inapplicability  to a given agricultural produce there would remain  no  occasion for the market committee  concerned  to exercise  its regulatory functions for such a produce.  This is  the precise result which has ensued regarding regulation of  purchase  and sale of sugarcane by the market  committee concerned  in view of the combined operation of the relevant provisions   of   the  Sugarcane   Act  and  the   exemption notification  under  Section 42 of the Market Act  excluding the  application of Section 15 of the Market Act to the sale and  purchase transactions of sugarcane in the market  area. It  is not possible to agree with learned senior counsel for the  respondents  that notification under Section 42 of  the Act  in substance excludes only the applicability of Section 15(2).   On the express wordings of the said notification it is  not  possible to countenance this contention.   Even  if declaration  under  Section 5 treating the premises  of  the sugar  factories  and the purchase centres from  which  they have to purchase sugarcane as per the Sugarcane Act is to be held  to be operative, such a declaration would be devoid of any efficacy under the Market Act as the very purpose of the declaration  of  such market yard would not  get  fructified once  sugarcane  will  not  be required to  be  brought  for purchase  and sale in such declared market yard.  It has  to be  kept in view that the relevant provisions of the  Market Act  laying down the machinery for effecting the  regulation of  purchase,  sale, storage and processing of  agricultural produce  cannot  be of any avail once purchase and  sale  of such an agricultural produce are not required to be effected at  the relevant market yard and have not to be subjected to open  auction  or tender for fixing proper prices  for  such agricultural  produce  to  be paid to the  growers  of  such produce.   It  must,  therefore,  be held  that  the  entire machinery of the Market Act cannot apply to the transactions

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of purchase of sugarcane by the appellant sugar factories as they  are  fully  covered by the special provisions  of  the Sugarcane  Act.   It is also necessary to note that if  both these  Acts  are  treated to be simultaneously  applying  to cover  sale and purchase of sugarcane, the possibility of  a clear  conflict  of  decisions of Officers  and  Authorities acting  under  the  Sugarcane Act on the one  hand  and  the Market  Act  on  the other would arise.   These  authorities acting  under  both  the State Acts, dealing with  the  same subject-matter  and covering the same transactions may  come to  independent  diverse conclusions and none of them  being subordinate  to  the  other may create a  situation  wherein there may be head-on collision between the decisions and the orders  of  these  authorities acting on their  own  in  the hierarchy  of  the  respective  statutory  provisions.   For example,  the Marketing Inspector may find that weighment of sugarcane was not proper at a given point of time, while the Cane  Officer may find to the contrary.  In the hierarchy of proceedings  under  the Market Act the market committee  may take  one decision with respect to the same subject  matter, for  which  the Collector exercising appellate powers  under the  Sugarcane Act may take a contrary decision.  This would create   an  irreconcilable  conflict   of  decisions   with consequential  confusion.  So far as the buyers and  sellers of  agricultural produce-sugarcane are concerned, it is of no  avail to contend as submitted by learned counsel for the respondents  that for avoiding such conflicts, Section 15 is dispensed  with by the State in exercise of its power  under Section  42 of the Market Act, whether such an exemption can be  granted  by the State under Section 42 or not is  not  a relevant  consideration  for  deciding   the  moot  question whether  the  statutory  scheme  of   the  Market  Act   can harmoniously  co-exist  with  the statutory  scheme  of  the Sugarcane  Act as enacted by the very same legislature.   It is  possible to visualise that the State Authorities may not exercise  powers  under Section 42 of the Act.  In  such  an eventuality,  the  Sugarcane  Act would  not  countenance  a public auction of sugarcane to be supplied by cane grower to the  earmarked  factory for which sugarcane is grown in  the reserved  area.   On  the other hand, the Market  Act  would require  the very same sugarcane to be brought to the market yard  for  being sold at the public auction to  the  highest bidder  who may not be the sugar factory itself.  Thus  what is  reserved for the sugar factory by way of raw material by the  Sugarcane  Act  would get de-reserved by the  sweep  of Section  15  of  the Market Act.  To avoid  such  a  head-on conflict, it has to be held that the Market Act is a general Act covering all types of agricultural produce listed in the Schedule  to the Act, but out of the listed items if any  of the   agricultural   produce  like   sugarcane   is   made subject-matter  of  a  special   enactment  laying  down  an independent   exclusive  machinery   for  regulating   sale, purchase  and  storage of such a commodity under  a  special Act, then the special Act would prevail over the general Act for  that  commodity and by necessary implication will  take the  said  commodity  out of the sweep of the  general  Act. Therefore, learned counsel for the appellants are right when they submit that because of the Sugarcane Act the regulation of  sale  and  purchase of sugarcane has to be  carried  out exclusively   under   the  Sugarcane   Act  and   the   said transactions would be out of the general sweep of the Market Act.   None of its machinery would be available to  regulate these  transactions.  But even apart from the provisions  of the Sugarcane Act, learned senior counsel for the appellants also  placed reliance on the Sugarcane (Control) Order, 1966

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enacted  under the provisions of Section 3 of the  Essential Commodities  Act, 1955 for submitting that purchase and sale of  sugarcane  is also controlled by the  aforesaid  Central Government Order issued under the Essential Commodities Act, and  consequently  the  said provision would  supersede  the general  provisions  of the Market Act.  We, therefore,  now proceed  to  consider this submission.  Sugarcane  (Control) Order,  1966 is issued by the Central Government in exercise of   powers  conferred  by  Section   3  of  the   Essential Commodities  Act,  1955.   Clause 2 sub-clause  (c)  defines factory  and reads as under :  factory means any premises including  the precincts thereto in any part of which  sugar is manufactured by vacuum pan process.

     Price is defined by sub-clause (g) thereof which reads as  under  :  price means the price or the minimum  price fixed  by  the  Central  Government from time  to  time  for sugarcane delivered

     Clause  3  of  the Order deals with  the  fixation  of minimum  price  by  the  Central Government  for  making  it payable  by  purchaser  of sugar to the  sugarcane  growers. Clause  3A  deals  with  rebate  that  can  be  deducted  by purchaser  of  sugar  from  the  price to  be  paid  to  the sugarcane  grower  or  the sugarcane  growers  co-operative society.   Rebate  provided therein pertains to the  minimum price of sugarcane fixed under Clause 3, or the price agreed to  between  the  producer or his agent  and  the  sugarcane grower  or  the  sugarcane  growers  co-operative  society. There  is a provision for additional price to be paid to the sugarcane  grower by the purchaser of sugarcane as laid down in  Clause  5.  Clause 5-A deals with additional  price  for sugarcane  purchased  on or after 1st October, 1974  by  the producer of sugar.  Clause 6 deals with power of the Central Government by Order to regulate distribution and movement of sugarcane.   As per this clause the Central Government  can, by  order,  direct  the  sugarcane  growers  to  supply  the earmarked  quantity  of  sugarcane  grown  by  them  in  the reserved area fixed for sugar factories to ensure continuous supply of sugarcane as raw material to such factories.  This provision is parallel to the statutory provisions enacted by the  Bihar  Legislature  in the Sugarcane  Act  referred  to earlier  by us.  Clause 9 refers to the power of the Central Government  or any person authorised in this behalf to  call for  information  from various sources as  enacted  therein. Clause 9-A deals with the power of entry, search and seizure of  premises  which  obviously  has   to  be  exercised  for fructifying  the purposes of the Act.  Clause 11 deals  with delegation  of  powers  by  the Central  Government  to  any officer  or authority thereof or to any State Government  or any  officer/authority of a State Government.  The aforesaid relevant  provisions  of the Sugarcane (Control) Order  show that  it  seeks to lay down the minimum guaranteed price  of sugarcane  to  the  sugarcane growers with  a  corresponding obligation  on  them  to supply sugarcane to  the  earmarked factories  for which the reserved areas can be fixed.   This Order  also  contemplates  negotiated   price  between   the sugarcane  growers  on  the  one   hand  and  the  sugarcane factories  on  the other, for whom fixed quota of  sugarcane can  be  earmarked.   It  has to  be  appreciated  that  the aforesaid  provisions  of  the   Sugarcane  (Control)  Order operate  in  the same field in which the  Bihar  Legislative enactment,  namely,  the Sugarcane Act operates and both  of them  are complementary to each other.  When taken together, they  wholly  occupy  the field of regulation  of  price  of

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sugarcane  and  also the mode and manner in which  sugarcane has  to  be supplied and distributed to the earmarked  sugar factories  and  thus  lay  down a  comprehensive  scheme  of regulating  purchase and sale of sugarcane to be supplied by sugarcane  growers to the earmarked sugar factories.  It is, however,  true that comprehensive procedure or machinery for enforcing these provisions is found in greater detail in the Sugarcane  Act of the Bihar Legislation.  But on a  combined operation of both these provisions, it becomes at once clear that  the general provisions of the Market Act so far as the regulation  of  sale and purchase of sugarcane is  concerned get  obviously  excluded  and superseded  by  these  special provisions.   In this connection, we may refer to a decision of  the  Karnataka High Court in the case of Vasavi  Traders vs.   State  of  Karnataka & Ors.  (1982 (2)  Karnataka  Law Journal  357).  In that case Venkatachaliah J., (as he  then was)  speaking  for a Division Bench of the  Karnataka  High Court, considered the impact of Sugarcane (Control) Order on the  general  sweep  of the Karnataka  Agricultural  Produce Market  (Regulation) Act, 1966.  Point no.  3 was framed  in this  connection, which reads as under :  Whether the Act as  amended  by  Act 17 of 1980 in so far  it  provides  for regulation of marketing of sugarcane is unconstitutional, as its  marketing is regulated by the provisions of the Central Act,  viz.,  The  Essential Commodities Act, 1955,  and  the Sugarcane (Control) Order made thereunder?

     While answering point no.3 in affirmative, the learned Judge at para 39 of the report, made the following pertinent observations  :   ..  It appears to us that the  Sugarcane (Control)  Order  regulates  every aspect  of  marketing  of sugarcane  and  its provisions are irreconcilable  with  the provisions  relating to the marketing under the Act.   For instance,  the  place of delivery, the price, the manner  of its payments are all fixed by the statutory order.  The same aspects  of marketing are sought to be regulated by the Act. The  two  sets of provisions collide.  S.6 of the  Essential Commodities  Act gives overriding effect to the orders  made under  S.3 of that Act as against any other Law.  The  small portion  of  the sugarcane grown by the grower the  sale  of which is left regulated under the statutory Order is again a matter - and part - of the policy of the regulation itself.

     Accordingly,  point no.3 in that case was answered  in affirmative  apart  from  the question of  repugnancy  which strictly  did  not  arise   for  their  consideration.   The aforesaid  reasoning of the learned Judges of the  Karnataka High  Court  clearly  indicates  that the  entire  field  of regulation  of purchase and sale of sugarcane in the  market area  is  occupied  by the Sugarcane  Control  Order.   This reasoning was left untouched by this Court in appeal against the  said decision and, therefore, got confirmed in the case of  I.T.C.   Ltd.   and Others vs.  State of  Karnataka  and Others  (1985 (Suppl.) SCC 476).  Learned senior counsel for the respondents was right when he contended in the aforesaid decision  before this Court that the merits of the reasoning which  appealed to the High Court were not gone into as  the appeal  arising  from  the judgment on this  point  was  not pressed.   However,  the  fact remains  that  the  aforesaid reasoning  of the Karnataka High Court remained untouched by this  Court,  nor was it dissented from.  The facts  of  the present  case  project even a stronger situation, so far  as the  appellants are concerned.  Whatever shortfall is  found in  the  Sugar (Control) Order has been supplemented by  the Sugarcane  Act  by the Bihar legislation itself.   Reasoning

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which  appealed  to  the Karnataka High Court in  the  above judgment  rendered  in absence of a  separate  complementary legislation  by  the  Karnataka   Legislature  gets  further strengthened  in  the  light  of the Sugarcane  Act  in  the present  case.   Consequently on a conjoint reading  of  the Sugarcane  Order as well as the Sugarcane Act, an inevitable conclusion has to be reached that the regulation of sale and purchase  of  sugarcane in the entire market area for  which the general Act, namely, the Market Act is enacted, is fully governed  and  highlighted by these two  special  provisions harmoniously  operating in the very same field.   Therefore, there  would remain no occasion for the State Authorities to rationalise and reasonably visualise any need for regulating the  purchase,  sale as well as storage of sugarcane in  the market   area   concerned.   The   wide  sweep  of   general notification of Section 3 of the Market Act, therefore, will have  to  be read down by excluding from its  general  sweep sugarcane   and   its   products  as   the   definition   of agricultural  produce  as  noted earlier  would  otherwise include not only primary produce of agriculture but also any other  commodity  processed  or  manufactured  out  of  such primary  agricultural produce.  That is precisely the reason why  the State of Bihar having realised the futility of  the need  about controlling and regulating the sale and purchase of  sugarcane  in  the market area by  the  sugar  factories excluded the operation of Section 15 of the Act, which noted earlier,  is  the soul of the Act.  It is easy to  visualise that  if  transactions concerning an agricultural  produce are  excluded  from the operation of Section 15 of the  Act, the  entire  machinery available to the market committee  to regulate  such  transactions  would get out of  picture  and there  would  be no room for the market committee to  supply any infrastructural facility or other benefits to the seller of  such  agricultural  produce  on the  one  hand  and  the purchaser  thereof  on the other.  Before parting  with  the discussion  on  this  point,  it is necessary  to  note  one submission of learned senior counsel Shri Rakesh Dwivedi for the  respondents  - State of Bihar.  He submitted  that  the legal  proposition  regarding  special   Act  excluding  the operation  of  general  Act  can be invoked  only  when  the general  Act irreconciliably derogates or conflicts with the special  Act while dealing with the same subject matter  and cannot be harmonised.  He submitted that the broad objective of  the  two  enactments is different.   The  Sugarcane  Act purports  to regulate production, supply and distribution of sugarcane whereas the Market Act lays emphasis on regulating the  market.   The subject matters are closely  allied,  but nevertheless  distinct.  He placed reliance on two decisions of  this  Court in support of his aforesaid contention.   In the  case  of  Jugal Kishore vs.  State of  Maharashtra  and Others  (1989 Suppl.  (1) SCC 589), this Court was concerned with  the question whether the provisions regarding  Ceiling on  Land  as  fixed by the  Maharashtra  Agricultural  Lands (Ceiling  on  Holdings)  Act, 1961 could be  reconciled  and could   harmoniously  co-exist  with   1958  Act.   In  this connection,  Sabyasachi Mukharji J., speaking for the  Court made  the  following pertinent observations :   Unless  the Acts,   with   the  intention    of   implementing   various socio-economic plans, are read in such complementary manner, the  operation of the different Acts in the same filed would create  contradiction  and would become impossible.  It  is, therefore,  necessary  to  take a constructive  attitude  in interpreting  provisions  of these types and  determine  the main  aim of the particular Act in question for adjudication before the court.

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     The aforesaid observations cannot be of any assistance to learned senior counsel for the respondents as the schemes of  the  relevant  Acts  to which we have  made  a  detailed reference  contra-indicate  the  possibility  of  harmonious operation  of  the  Market  Act  on the  one  hand  and  the Sugarcane  Act  and the Sugar (Control) Order on the  other. Shri  Dwivedi  tried  to  get   out  of  this  situation  by submitting   that   as  there  is   already   an   exemption notification  under Section 42 of the Market Act, Section 15 will  not be applicable to such transactions and, therefore, it  would remain governed by the provisions of the Sugarcane Order and the Sugarcane Act.  With respect, as seen earlier, it  is  an  over  simplification of  the  situation.   As  a question  arises  whether two legislations operating in  the same  field can be reconciled or not, a mere possibility  of the  provisions of one of the inconsistent enactments  being excluded  by  resorting  to exemption  power  under  another enactment  cannot cure the basic inconsistency between them. It  is  obvious that such exemption power entrusted  to  its delegate  by  its  Legislature may or may not  be  utilised. Consequently,  a basic inconsistency between two legislative enactment  would remain operative dehors such exemption,  if any.   Such conflicting statutory schemes in their operation in  the  same field would directly collide.  It may be  that the  Market Act and the Sugarcane Act can both be treated as dealing  with  socio-economic  balancing   of  interests  of growers  of agricultural produce and the purchasers thereof, but  if  it  is impossible to reconcile  them,  the  statute laying down the general scheme of operation has to make room for  a  special statute for which a separate  and  exclusive field  is  carved out by the legislature  itself.   Reliance placed  by  Shri  Dwivedi, senior counsel for the  State  of Bihar, on a decision of the two judge Bench of this Court in the  case  of S.  Satyapal Reddy and Others vs.   Govt.   of A.P.   and  Others  (1994(4) SCC 391)  for  submitting  that minimum  qualifications prescribed by the rules framed under the  Central  Act could co-exist with higher  qualifications prescribed  by  the  State  rules also  cannot  be  of  real assistance  to  him  for the simple reason that  if  minimum prices  were fixed by the Sugarcane (Control) Order and  the Sugarcane  Act  had stopped short by providing only  minimum price  and  had  not regulated the fixation of  even  higher contractual  price by providing for a machinery for the same and  had  not fixed and regulated the  production,  control, distribution,  sale and purchase of sugarcane, it could have been urged by counsel for the respondents with some emphasis that  both  these  statutory provisions  could  harmoniously coexist  but as discussed earlier such a possibility is  not only  remote but incapable of visualisation.  It is also not possible  to  agree  with the contention of  learned  senior counsel Shri Dwivedi that the Sugarcane Act of 1981 does not expressly purport to exclude the Market Act, especially when the  Bihar  Legislature that had enacted the former Act  was aware  of the Market Act, 1960 holding the field.  That this circumstance  shows  that the legislature purposely did  not exclude  the  applicability of the Market Act so far as  the purchase  and  sale  of  sugarcane   in  market  areas  were concerned.  However, this contention by itself cannot clinch the  issue.   If  the very same legislature  had  felt  that existing  general Act was sufficient to foot the bill,  then there would have been remained no occasion for the very same legislature  to enact a special Act for control, regulation, sale  and  purchase of sugarcane after passage of 21  years. Therefore, the latter Act clearly envisaged carving out of a

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special  field  for  regulating  the sale  and  purchase  of sugarcane  and  to  that extent pro tanto  it  excluded  the operation  of  the  Market  Act  for  that  commodity.   The intention  of  the  legislature is thus very clear  on  this aspect.   But apart from that, intention of its delegate-the State of Bihar itself is also clear when it excluded Section 15  of  the  Market Act in exercise of its  exemption  power under  Section  42  of the Market Act.  It is  difficult  to appreciate  the  contention of learned senior  counsel  that Section 15 of the Market Act is not the core of the Act.  On a  conjoint  reading of Sections 3, 4, 15, 27 and 30 of  the Act  it  has  to  be held that it is  only  because  of  the operation  of  Section  15 covering the  sale  and  purchase transactions  of  agricultural  produce   that  the   market committee  can effectively discharge its functions entrusted to  it by the Act.  But for Section 15 there would remain no occasion  for  the market committee to effectively  regulate the  sale  and  purchase transactions  of  the  agricultural produce  concerned.   Section  15 mandates the  sellers  and producers of agricultural produce to operate in the notified market yard or sub-market yards and only at these places the market  committee  through  its officers  and  servants  can discharge  its  functions  effectively by  regulating  these transactions  and  for that purpose all the  infrastructural facilities  would  be  available.    The  entire   machinery provisions  enacted for the purpose would fulcrum round  the vibrant  operation  of  Section  15.   Once  Section  15  is excluded  qua any agricultural produce the entire  machinery of  the  Market Act would come to a grinding halt so far  as such  an  excluded  agricultural   produce  is  concerned. Sugarcane  is  one  such  produce as we  have  already  seen earlier.  Consequently, qua such a produce the general sweep of  the Market Act will be a total non-starter.   Logically, therefore,  there  would remain no occasion for  the  market committee  to justify levy of market fee under Section 27 of the  Act  read with Section 30 on these transactions.  On  a conjoint reading of Sections 27 and 30 of the Market Act, it becomes  clear  that  a  market   committee  which  has   to effectively  control  and regulate the sale and purchase  of agricultural  produce  brought for sale and purchase in  the market  area  as  enjoined  by Section  15  can  effectively discharge  its  functions and spend its funds for  supplying the  necessary infrastructure for this purpose as laid  down by  Section  30.   At this stage, we may also  refer  to  an additional  submission  of the Addl.  Solicitor  General  of India  Shri R.N.  Trivedi in support of the respondents.  He submitted  that Entry 28 of List II of the Seventh  Schedule of  the  Constitution  operates  on its own  and  cannot  be affected  by any legislation pertaining to industry as found in   Entry  52  of  List  I  of  Seventh  Schedule  of   the Constitution.   To that extent the learned senior counsel is right.   However, as we have seen earlier, Entry 28 of  List II  dealing with Markets and Fairs has to be read  jointly with Entries 26 and 27 dealing with Trade and Commerce and once  the State Legislation deals with these topics then  it also  squarely invokes legislative powers under Entry 33  of List  III.   That  is precisely the entry  under  which  the Sugarcane  Act,  1981 can be said to have been enacted.   It is,  of  course,  true  that the Union  Parliament  has  not exercised  its concurrent legislative powers under Entry  33 of  List  III  for  regulating  the  sale  and  purchase  of sugarcane.   But, as noted earlier, the Sugarcane  (Control) Order  promulgated  under  the central  legislation  of  the Essential  Commodities  Act  when read harmoniously  and  in conjunction  with  the  State  Sugarcane Act  carves  out  a

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special  field for their operation and by the sweep of their combined  operation the general provisions of the Market Act pro  tanto  get  excluded  so far  as  the  transactions  of purchase  and  sale  of  sugarcane in the  market  area  are concerned.   2.  SALE OF SUGAR AND MOLASSES:  So far as  the sale  transactions  pertaining  to   these  commodities  are concerned,  it has to be kept in view that they will have to be  treated  as  agricultural produce in the  light  of  the definition  of Section 2(1)(a) of the Market Act.  They  get manufactured  from  the basic agricultural produce,  namely, the  sugarcane.  However, the question remains whether their sales  are also controlled by the relevant special statutory provisions.  It will, therefore, be necessary for us to have a  look at these relevant special statutory provisions.   In this  connection,  our attention was invited to four  Orders framed  under  Section  3 of the Essential  Commodities  Act pertaining  to sugar :  1.  Sugar (Control) Order, 1966;  2. Sugar   (Packing   &  Marking)   Order,  1970;   3.    Sugar (Restriction  on  Movement)  Order, 1970;   4.   Levy  Sugar Supply  (Control)  Order,  1979.   Clause  3  of  the  Sugar (Control)  Order, 1966 deals with regulation and  production of sugar which enables the Central Government to direct that no  sugar  can be manufactured from sugarcane except and  in accordance with the conditions specified in a licence issued in  this  behalf.  Clause 4 thereof deals  with  permissible directions  to  be issued by the Central Government  to  the effect  that  no  producer shall sell or agree  to  sell  or otherwise dispose of or deliver or agree to deliver any kind of sugar or remove any kind of sugar from the bonded godowns of  the  factory in which it is produced.  Clause 5  enables the  Central Government to issue directions to producers and dealers  of  sugar regarding the production, maintenance  of stock,  storage, sale grading, packing, marking,  weighment, disposal,  delivery and distribution of (any kind of sugar). Clause  6 deals with the power of the Central Government  to regulate  movement of sugar.  Clause 7 deals with the  power to  regulate  quality  of sugar.  Clause 10 deals  with  the power  of  the  Central  Government to  call  for  requisite information  from different sources enacted therein.  Clause 11  deals  with the power of any officer authorised  by  the Central  Government to inspection, entry, search,  sampling, seizure,  etc.  as enacted therein.  The Sugar (Packing  and Marking) Order, 1970 provides statutory directions as to the quality  of  sugar  to  be packed in each  bag.   The  Sugar (Restriction   on   Movement)  Order,    1970   deals   with restrictions  on  transport of certain types of sugar.   The Levy  Sugar Supply (Control) Order, 1979 enables the Central Government to issue directions to any producer or recognised dealer  to  supply levy sugar of such type or grade to  such persons or organisation as may be enacted in the Order.  The aforesaid  provisions  of  the various Orders  issued  under Section  3 of the Essential Commodities Act clearly indicate that   all   sale  transactions  of   sugar   by   factories manufacturing   sugar  out  of   the  sugarcane,  the  basic agricultural  produce  and raw material, are regulated  by these  provisions.   As  noted earlier, Section  15  of  the Market  Act  is out of picture qua even these  transactions. The sale of sugar manufactured out of sugarcane and fixation of  price thereof would also, therefore, go out of the sweep of  Section  15(1)  &  (2) of the Market Act  and  would  be governed  wholly by these special provisions of the  Control Orders.  On the parity of reasons governing the transactions of  sale and purchase of sugarcane, transactions of sale  of sugar  manufactured  out of purchased sugarcane by the  very same  sugar  factories functioning in the market area  would

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also  be  governed  by special provisions of  the  aforesaid special  Sugar  (Control)  Orders and would  pro  tanto  get excluded  from the general sweep of the Market Act.  In this connection,  we  may also refer to the main  contentions  of Shri  Rakesh Dwivedi, learned Senior counsel for the  State. He  submitted  that  the aforesaid  various  Control  Orders regulating  sugar  have  been issued with the  objective  of maintaining supply of sugar and ensuring availability of the same.   Not only the object is different, but in effect  the Control  Orders  regulate production of sugar, impose  levy, determine  price of levy sugar, provide for packing in  bags in  quantities  of 100 kgs., provide for transport  under  a permit  issued  by the Central  Government/State  Government when  sold  under Section 3(2)(f) of  Essential  Commodities Act,  1955  (levy  sugar) and specifications of  dealer  for supply  of  levy sugar.  As far as free sugar is  concerned, only monthly quotas are fixed (see pages 44-46 of additional documents).   Thus, as far as free sale sugar is  concerned, the  Central Government does not fix the price and does  not determine  the person to whom it is to be sold or the manner in which it is to be transported.  The various provisions of the  Market Act for regulating sale, purchase and storage of free  sugar would, therefore, be available and the  capacity of  market  committee to regulate these transactions is  not affected  by  these  Orders and to that extent there  is  no repugnancy  between  them  and the Market Act.   It  is  not possible to agree with this submission for the simple reason that the provisions of Sugar (Control) Orders have not to be read  in isolation but will have to be read with the special provisions  controlling the production, sale and purchase of sugarcane  out  of which sugar is manufactured by  the  very same  sugar factories functioning in the market area.   They are  all  integrated transactions and are subject to a  well knit  statutory scheme of control of these commodities.   It is   obvious  that  regulation  of  sugarcane   supply   and distribution  is not in isolation.  The main purpose of such regulation  is  for  ensuring better  quality  and  adequate quantity  of sugar manufactured out of sugarcane supplied by sugarcane  growers  to  earmarked   sugar  factories   which manufacture  sugar by crushing sugarcane in their  factories by   resorting   to  vacuum   pan   manufacturing   process. Therefore,  it  is  the ultimate sale  of  the  manufactured article,  namely,  sugar  by way of levy sugar  or  in  free market that is sought to be controlled by the Control Orders which  cannot effectively operate save and except in harmony with the provisions enacted for the control of raw material, namely,  the sugarcane as envisaged by the Sugarcane  Orders as  well  as the Sugarcane Act.  They  together,  therefore, provide a complete machinery for controlling the production, sale  and purchase not only of the raw material -  sugarcane but  also  finished product sugar and in this background  we have  to  visualise  the legislative intent  underlying  the enactment  of  the  Sugarcane Act on the one  hand  and  the exclusion of Section 15 to such transactions by the delegate of the legislature, namely, the State of Bihar on the other. It  is  also necessary to visualise that once Section 15  is out  of  the  way  for   governing  the  sale  and  purchase transactions  by  sugar factories not only the  purchase  of sugarcane as raw material by them but also the sale of their finished product, namely - sugar is also out of the sweep of Section  15  of  the Market Act.  Consequently,  the  entire regulatory  machinery and the infrastructural facilities  to be  made  available by the market committees for  regulating the  sale  and  purchase of such an  agricultural  produce would  not give any signals and would get totally  excluded.

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SALE  OF  MOLASSES :  This takes us to the consideration  of the statutory control of sale of molasses by sugar factories functioning  in the market area.  It has to be kept in  view that  molasses is a by-product of the sugar industry and the sale of molasses by the sugar factories is wholly controlled by  the statutory provisions contained in the Bihar Molasses (Control) Act, 1947.  The preamble to the Act reads as under :   An Act to provide for the control of the  distribution, supply,  storage and price of molasses produced by factories in the State of Bihar.

     Section  2(c) of the Molasses Act defines Molasses  as under  :   Molasses  means final residual  by-product  of factories  manufacturing sugar from cane or by refining gur, by  means  of vacuum pans but does not  include  convertible molasses,  which are the final residual by-product of  sugar factories operating on the open pan system.

     Section  3 of the Act provides as under :  Submission of  returns by occupiers of factories and stockists.-  Every owner,  manager or occupier of a factory and every  stockist shall  furnish to the Controller within the time and in  the manner  specified by the Controller such returns relating to stocks of molasses as the Controller may, by order from time to time, direct.

     Section  4  of  the  Act provides  that  No  molasses produced in the State nor any molasses held by the stockists in  this  State,  shall,  without   the  permission  of  the Controller,  be moved by rail, road or river from any  place in the State to any other place therein.

     As  per  Section 5 of the Act, a sugar factory  cannot even  enter  into an agreement or contract with  any  person other  than  the  Government  or   person  licensed  by  the controller  for supply of molasses.  All molasses have to be sold by sugar factories in accordance with the directions of the  Molasses  Controller  issued  under Section  6  of  the Molasses Act.  The price of molasses is regulated by Section 8 of the Act.  Section 8A provides that the State Government may  impose  administrative charges on the sale of  released molasses   for  meeting  the   cost  of  establishment   for supervision and control over such release.  It is thus clear that  the  sale of molasses is also regulated by  the  State Government  and  the  cost of such regulation  is  recovered under  the  Molasses  Act  in  the  form  of  administrative charges.   Section  8C  requires every  owner  occupier  and manager  of  sugar  factory  to place  in  a  separate  fund suitable   amount  for  the   purpose  of  construction  and maintenance  of adequate facilities for storage of molasses. Section  9C makes detailed provisions relating to storage of molasses  and  construction  of storage tanks by  the  sugar factories.   Section  11  gives  overriding  effect  to  the provisions  of the Molasses Act over any provision contained in  any  other  Act.   Section  13  which  is  the   section conferring  the power to make Rules provides for the  making of  rules  for  carrying  out the purposes of  the  Act  and empowers  in particular a) prescribe the specifications and tests in respect of the purity of molasses;

     b)  regulate  sale and price of molasses intended  for use in distilleries or for other purposes;

     c) prescribe conditions in respect of storage, loading and transport of molasses at factories;

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     d)  prescribe  the forms and returns to be  submitted, and the records and books to be maintained, by factories;

     e)  prescribe the manner in which molasses produced in factories  shall  be graded, marketed, packed or stores  for sale;

     f)  regulate imposition and recovery of permit fee and administrative charges on released molasses;

     ff)  prescribe  the manner in which accounts of  funds for  regulation of adequate storage facilities in respect of molasses  produced  in  factories shall  be  maintained  and operated;

     g)  any other matter which is required to be or  which may be prescribed under this Act.

     The  Bihar  Molasses  (Control)  Rules,  1955  contain detailed provisions in Rule 3 relating to supply of molasses by  sugar factories.  Reference may be made to clause h of Rule  (3),  which is in the following terms :  Every  sugar factory  and  every stockist shall, on receipt of  an  order from  the  Controller and on intimation of the allotment  of tank  wagons  for  the  transport   of  molasses,  make  all necessary  arrangements promptly for the haulage and loading of  molasses  and where the owner, occupier or Manager of  a sugar   factory  or  the  stockist   fails  to   make   such arrangements  without sufficient reason, the Excise  Officer shall  have  the  power  on his behalf, to  enter  upon  the premises,  make  arrangement for the haulage and loading  of molasses  by  manual labour, if necessary recover  the  cost incurred thereby from the said owner, occupier as manager of the sugar factory or the stockist.

     Rule  10  provides that no molasses can be moved  from the  premises of a sugar factory except under a pass in Form M.F.6.   Rule 11 provides that molasses cannot be moved from the  premises  of any sugar factory except under a  movement order  in Form M.F.7 issued by the Controller as provided in the  Act and Rules.  The aforesaid provisions leave no  room for doubt that the sale and purchase of molasses which would be  an agricultural produce as defined by Section 2(1)(a) of the Market Act being a by-product resulting from manufacture of  sugar  by  utilising  the  basic  agricultural  produce, namely,  sugarcane  are  wholly controlled by  the  Molasses Control  Act enacted by the very same legislature which  has enacted  the  Market Act.  It is easy to visualise that  the very  same  legislature which enacted both these  provisions was  pressed  to  be  alive to the need  of  having  special provisions  for regulating the sale and purchase of molasses and  that  by  itself would exclude the need  to  get  these transactions generally controlled and regulated by the sweep of the Market Act as per Section 3 of the said Act.  That is precisely  the  reason for even its delegate, the  State  of Bihar  in its wisdom to exclude the applicability of Section 15  of  the Market Act, so far as the sale  transactions  of molasses by the sugar factories operating in the market area are concerned.  The validity of the Bihar Molasses Act, 1947 has  been upheld by this Court in the case of SIEL Ltd.  and Others vs.  Union of India and Others (1998 (7) SCC 26).  It has  been  held to be traceable to Entry 33 List III and  is having  Presidents assent.  It is, therefore, obvious  that the  Molasses Act laying down a detailed statutory scheme of

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control  of  sale and purchase of molasses produced  by  the sugar  factories  in the market area will remain within  the statutory  framework of the aforesaid special statute.   The general provisions of the Market Act has, therefore, to give way  to  the  aforesaid  special provisions.   It  was  next submitted  by learned senior counsel for the State of  Bihar that  even  though  the  market committee may not  be  in  a position  to regulate sale, purchase, storage or  processing of  molasses  not released by the Controller  atleast  after they  were  decontrolled by the Central Government in  June, 1993  and  even  when the State Governments  have  partially decontrolled   transactions    regarding    molasses,   such transactions  could be regulated under the Market Act.  This submission  also  cannot  be countenanced.   The  reason  is obvious.   Once the State of Bihar itself has exempted these sale  transactions  from the operation of Section 15 of  the Act, they would be out of sweep of the general provisions of the  Market Act and would not statutorily enjoin the  market committees to provide any infrastructure for regulating sale of  molasses  to  enable them to bring home  the  charge  of market  fee  on  the sale transactions of  molasses  as  per Section  27 of the Act.  As a result of this discussion, the first  contention  will have to be answered in  negative  by holding  that the provisions of the Market Act cannot  apply to  the  transactions of purchase of sugarcane and  sale  of sugar  and  molasses  by  the   sugar  mills  situated   and functioning  within the market area of the concerned  market committee  constituted under the Market Act.  CONTENTION NO. 2  :  This takes us to the consideration of the  alternative contention  canvassed  by  learned senior  counsel  for  the appellants  in  support of the appeals.  Strictly  speaking, this  alternative  contention  does   not  survive  for  our consideration,   in  view  of  our   answer  to  the   first contention.   However, as we have heard learned counsel  for the parties on this alternative contention, we may deal with the  same on merits.  It has to be kept in view that  market fee  levied under the Market Act is a fee and not a tax. The  Market  Act in so far as it enacts Section  27  levying market  fee is referable to Entry 66 of the State List  read with  Entry  47 of the Concurrent List.  Both of  them  deal with  topics of legislation pertaining to fees in respect of the matters enumerated in the respective lists.  In the case of  Kewal  Krishan Puri and Anr.  vs.  State of  Punjab  and Anr.   etc.  etc.  (1980 (1) SCC 416), a Constitution  Bench of  this Court, while upholding the levy of market fee under the  Punjab Agricultural Produce Markets Act, 1961, has made the  following pertinent observations in paragraph 23 of the report.   Untwalia  J.,  speaking for the Court  observed  : From  a conspectus of the various authorities of this Court we  deduce the following principles for satisfying the tests for  a valid levy of market fees on the agricultural produce bought or sold by licensees in a notified market area :

     (1)  That the amount of fee realised must be earmarked for  rendering  services  to the licensees in  the  notified market area and a good and substantial portion of it must be shown to be expended for this purpose.

     (2)  That the services rendered to the licensees  must be in relation to the transaction of purchase or sale of the agricultural produce.

     (3)  That while rendering services in the market  area for  the  purposes  of   facilitating  the  transactions  of purchase  and sale with a view to achieve the objects of the

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marketing  legislation  it  is not necessary to  confer  the whole  of  the  benefit on the licensees  but  some  special benefits  must  be  conferred on them which have  a  direct, close  and reasonable correlation between the licensees  and the transactions.

     (4) That while conferring some special benefits on the licensees  it  is permissible to render such service in  the market which may be in the general interest of all concerned with the transactions taking place in the market.

     (5)  That  spending the amount of market fees for  the purpose of augmenting the agricultural produce, its facility of  transport  in villages and to provide  other  facilities meant  mainly  or  exclusively  for   the  benefit  of   the agriculturists  is  not permissible on the ground that  such services  in  the  long  run go to increase  the  volume  of transactions in the market ultimately benefiting the traders also.  Such an indirect and remote benefit to the traders is in no sense a special benefit to them.

     (6)  That  the  element  of quid pro quo  may  not  be possible,   or  even  necessary,  to  be  established   with arithmetical  exactitude but even broadly and reasonably  it must  be established by the authorities who charge the  fees that  the  amount is being spent for rendering  services  to those on whom falls the burden of the fee.

     (7)  At  least a good and substantial portion  of  the amount  collected  on  account  of   fees,  may  be  in  the neighbourhood  of two-thirds or three-fourths, must be shown with  reasonable  certainty  as being  spent  for  rendering services of the kind mentioned above.

     It  becomes at once clear that before justifying  levy of market fee on any transaction the services to be rendered by  the market committee must be in connection with the sale and  purchase  transactions of agricultural produce  falling for  regulation under the Market Act, when the purchase  and sale  of  agricultural  produce  like  sugarcane,  sugar  or molasses are not governed by the Market Act, as we have seen while  considering  contention no.1, there would  remain  no occasion  for  the market committee to be statutorily  under any  obligation  to provide any services or  infrastructural facilities  for  covering  such  transactions so  as  to  be entitled  to charge market fee on such transactions.  It was vehemently  contended  by  learned senior  counsel  for  the respondents that various types of infrastructural facilities are  being  made  available  to   sugar  factories  who  are purchasing   sugarcane  in  the   market  area  and  selling manufactured  sugar  and  molasses in the very  same  market area.  The following are the various facilities and services highlighted  in this connection :1.  Link road facilities by which  market committees were to spend monies for connecting villages  in  the  market  area  with  the  main  roads  for facilitating  the movement of agricultural produce including the  sugarcane from the farms to the purchase centres of the factories.

     2.    Spread  of  information   regarding  prices   of agricultural   produce  for  information   of   growers   of sugarcane.

     3.  Providing mediation facility to enable the growers

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of  sugarcane to get higher price for sugarcane as  compared to the minimum prices fixed under the control orders.

     4.  Supervision of weighment of sugarcane.

     5.  Licensing of weighing inspectors.

     6.  Providing for drinking facility and park.

     7.  Parking facilities at the purchase centres.

     Shri  Trivedi,  Addl.Solicitor General, in  his  turn, tried  to  highlight the concept of link roads  being  other than  approach  roads.  He submitted that near  the  factory gate  or purchase centres provision of approach roads may be a  statutory  obligation  of   the  sugar  factories.   Thus approach  roads would connect the purchase centres with  the nearby  public  roads.   But  so   far  as  link  roads  are concerned,  they  are also public roads other than  approach roads  which connect villages with main roads and all  these facilities  make possible quicker movement of sugarcane from farms  to  the purchase centres.  This results in  supplying better  quality  of  sugarcane  for  being  crushed  in  the factories  so  that before such sugarcane dries out it  gets crushed  resulting in better quality and larger quantity  of sugar  for the benefit of sugar factories.  Strong  reliance was  placed  in  this connection on  various  provisions  of Section 30 of the Market Act and it was submitted by learned senior  counsel for the respondents that all these  benefits are  being made available to sugar factories and there is no reason for them to oppose payment of small amounts of market fees   after   getting  these   benefits  from  the   market committees.   The  aforesaid contentions of  learned  senior counsel  for the respondents for salvaging the situation for the  market  committees though appearing attractive  at  the first  blush,  do  not survive on a  closer  scrutiny.   The reason is obvious.  Only because the sugarcane factories are located in the market area they can be said to be covered by the  general  sweep of Section 27 of the Market Act  as  the agricultural  produce, namely, sugarcane as well as sugar and  molasses  can  be said to be bought and  sold  in  the market  area.  But by the fact only of sale and purchase  of these commodities in the market area, it cannot be said that such  agricultural  produce  belongs  to  the  category   of agricultural  produce which is covered by the general  sweep of  the  Act.  In order to attract the charge under  Section 27,  the concerned agricultural produce on which the  market fee  is to be levied must be required to be bought and  sold in  the market area within the jurisdiction of the concerned market  committee as per Section 15 of the Market Act  which enjoins  that  no  agricultural  produce  specified  in  the notification  under  sub-section (1) of Section 4  shall  be bought  or  sold by any person within the market area  other than the relevant principal market yard or sub-market yards. Thus,  on  a conjoint reading of Sections 27 and 15  of  the Market Act, it must be held that before any charge of market fee  can settle regarding any purchase and sale transactions concerning  the  agricultural   produce,  such  agricultural produce  must have been required to be sold or purchased  at the  relevant principal market yard or sub-market yards.  It is  obvious  that principal market yard or  submarket  yards would  be  situated  within  the market  area,  but  if  any agricultural  produce  is  exempted from the  provisions  of Section  15(1) of the Act as in the case of sugarcane, sugar and molasses there would remain no occasion for transactions

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of  sale and purchase of these commodities to be carried  on only  in  the principal market yard or sub-market yards  and not  elsewhere in any other part of market area.  It is only those  agricultural produce which are required to be  bought and sold in the relevant principal market yard or sub-market yards situated within the market area that attract charge of Section  27 of the Act.  Once this charge is attracted,  the further  question  whether it is backed by any quid pro  quo would  survive  for  consideration.   On the  facts  of  the present  case,  Section 15 as a whole is out of picture  for controlling  purchase  and  sale  of  sugarcane,  sugar  and molasses by sugar factories operating in the market area, as we  have seen earlier, the charge of market fee as envisaged by  Section  27  would not get attracted at  all  for  them. Hence  the aforesaid list of the infrastructural  facilities made  available  to  sugar factories in general  with  other dealers in agricultural produce attracting Section 15 of the Act would pale into insignificance.  Market Committees would not  supply adequate quid pro quo for levying market fee  as the  charge itself does not settle on these transactions  by the  sugar  factories.  It may be, as submitted  by  learned senior   counsel  for  the   respondents,  that  some  sugar factories  may  have taken benefit of electric lighting  and preparation of approach roads by the market committees which might   have  spent  sufficient   funds  for  giving   these facilities.   Still  they would not be a part and parcel  of the  statutory obligations of the market committees qua such sugar  factories and may remain in the domain of Section  72 of the Indian Contract Act and if such benefits are received by  the  factories  they may be liable on the  principle  of quantum  meruit  to  reimburse  or  compensate  the   market committees  for  the voluntary facilities given by them  but they  would  not  support any legal quid pro quo by  way  of statutory  obligation  of the market committees  for  giving facilities  to  the sugar mills for supporting the  levy  of market  fees  on  their transactions.  Contention  no.2  is, therefore,  answered in negative not on the ground that  the services  rendered by the market committee to the  appellant sugar  factories  were not having any adequate quid pro  quo but on the ground that they were not statutorily required to be made available to the sugar factories by way of statutory obligation  of the market committee to regulate the sale and purchase  transactions  of sugarcane, sugar and molasses  by these sugar factories and also on the ground that the charge under  Section  27  by levying market fee on  the  aforesaid transactions  was  not  attracted at all on  the  facts  and circumstances  of the case, as seen earlier.  As a result of our  conclusion  on  the  findings   of  the  aforesaid  two contentions,  the  appeals and other Writ Petition in  sugar group  matters  will  be  required to  be  allowed  and  the impugned  judgment  of the High Court in all  these  matters will  have  to be set aside.  However, the further  question that  survives  is  as to what relief can be  given  to  the appellants  and the writ petitioners in this sugar group  of matters.   It  is obvious that during the pendency of  these proceedings  no  interim relief was given to the  appellants and  the  writ petitioners.  Therefore, they must have  paid the market fee on the concerned transaction all these years. In  the  common course of events, they would have passed  on the  burden  of  market fee on purchasers and  the  ultimate consumers  of  sugar  and  molasses produced  by  the  sugar factories  by  utilising  sugarcane as raw  material.   Shri Shanti  Bhushan, learned senior counsel for the  appellants, in  this connection, submitted that accepting the  principle of  unjust  enrichment  we  may   reserve  liberty  to   the

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appellants  to show before the authorities whether they have in  fact passed on the burden of impugned market fee at  the relevant  time and if they could show to the satisfaction of the  authorities  that in fact they have not passed  on  the burden then they may be treated to be entitled to get refund of  all the appropriate amounts of market fee not passed on. In  our view it is not possible to accept this contention as years  have  rolled by since the impugned market  fees  have been  levied by the different market committees in the State of  Bihar.   In  the  normal course of  events,  no  prudent businessman/manufacturer  would ever bear the burden of such compulsory  fee or tax to be paid from his own pocket.  Even otherwise  reserving  such liberty would create  unnecessary complication  and  may  give  rise  to  spate  of  avoidable litigations  in  the hierarchy of proceedings.  Under  these circumstances,  keeping  in  view  the  peculiar  facts  and circumstances  of  these cases, we deem it fit to direct  in exercise our powers under Article 142 of the Constitution of India  that the present decision will have only  prospective effect.   Meaning  thereby that after the  pronouncement  of this  judgment  all  future   transactions  of  purchase  of sugarcane  by  the sugar factories concerned in  the  market areas as well as the sale of manufactured sugar and molasses produced  therefrom by utilising this purchased sugarcane by these  factories will not be subjected to the levy of market fee  under  Section  27  of the Market  Act  by  the  market committees  concerned.  All past transactions upto the  date of  this judgment which have suffered the levy of market fee will  not  be  covered by this judgment  and  the  collected market  fees on these past transactions prior to the date of this judgement will not be required to be refunded to any of the  sugar  mills which might have paid these  market  fees. However,  one  rider has to be added to this direction.   If any  of  the  market  committees has  been  restrained  from recovering  market fee from the writ petitioners in the High Court  or  if any of the writ petitioners in the High  Court has, as an appellant before this Court, obtained stay of the payment of market fee, then for the period during which such stay  has operated and consequently market fee was not  paid on  the transactions covered by such stay orders, there will remain  no  occasion for the market committee  concerned  to recover  such market fee from the concerned sugar mill after the  date of this judgment even for such past  transactions. In  other  words,  market  fees paid in past  shall  not  be refunded.   Similarly market fees not collected in past also shall not be collected hereafter.  The impugned judgments of the High Court in this group of sugar matters will stand set aside as aforesaid.  The Writ Petition directly filed before this  Court also will be required to be allowed in aforesaid terms.   Before parting with this group of matters, it  must be clarified that the present judgment will be applicable in connection  with  the  purchase of sugarcane  by  the  sugar factories  as  well  as the sale of manufactured  sugar  and molasses  by  these  factories functioning in the  areas  of market  committees  concerned  and  whose  transactions  are governed by the provisions of the Sugarcane (Control) Order, 1966  as  well as the Sugarcane Act of 1981 and also by  the relevant  provisions of the Sugar Orders and the  provisions of Molasses Control Act.  Any other transactions of purchase and  sale, in principal market yard or sub-market yards,  of sugarcane,  sugar or molasses by any other licensed  dealers not governed by the aforesaid provisions will not be covered by the ratio of this judgment.

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     2.   WHEAT PRODUCTS - ATTA, MAIDA, SUZI, BRAN ETC.  In this group of matters, six flour mills functioning in market areas within the jurisdiction of market committees concerned have  brought  in challenge the applicability of the  Market Act  to the transactions of purchase of wheat by these mills and  manufacture  out of the same different  wheat  products like  atta,  maida,  suzi,  bran, etc.  The  High  Court  of judicature  at Patna repelled their contentions against  the applicability  of the Market Act.  On grant of special leave to  appeal  they are before us in these  proceedings.   Shri Ranjit  Kumar, learned counsel appearing for the  appellants raised two contentions for our consideration.  1.  Under the Industries (Development and Regulation) Act, 1951 (for short I.D.R.   Act)  in public interest the Union of  India  has taken over the control of the wheat industry as specified in the  First  Schedule  to  the   Act  and  consequently   any transaction  of  purchase and sale of the products  of  that industry  cannot  be  regulated by the State  Act  like  the Market  Act.  As a part of the very same contention, it  was submitted  that  Wheat  Rolling Flour Mills  (Licensing  and Control)   Order,  1957  and   the  Bihar  Trading  Articles (Licenses Unification) Order, 1984 issued under Section 3 of the  Essential  Commodities  Act, 1955 lay down  a  complete scheme  for  regulating purchase and sale of wheat  products and  hence  these  transactions  cannot be  covered  by  the general  sweep of the Market Act.  2.  Alternatively, it was contended  that  wheat may be an agricultural  produce,  but sale  of atta, maida, suzi cannot be treated as agricultural produce.  We shall deal with the aforesaid contentions point wise.   Point No.1:  It is true that the Union Parliament in exercise  of its legislative power under Entry 52 of List  I of  the Seventh Schedule has enacted the I.D.R.  Act.  It is also  true  that  flour  industry is listed as  one  of  the scheduled  industries  as  item no.27(4) under  the  caption food  processing industries.  However, production of wheat as  raw material or its sale is not covered by the said Act. Consequently,  so far as wheat as agricultural produce  is concerned,  it  is  outside the sweep of  the  I.D.R.   Act. However,  when  flour industry is covered by the  said  Act, question remains whether sale of flour or any other products out  of wheat can be said to be covered by the sweep of  the I.D.R.   Act.  Regulation of sale and purchase of flour as a controlled  industry  was  sought to be emphasised  by  Shri Ranjit Kumar by inviting our attention to Section 18G of the I.D.R.  Act.  Section 18G sub-section (1) reads as follows : 18G.   Power to control, supply, distribution, price, etc., of  certain articles.  - (1) The Central Government, so  far as  it  appears  to  it to be  necessary  or  expedient  for securing the equitable distribution and availability at fair prices  of any article or class of articles relatable to any scheduled  industry, may, notwithstanding anything contained in  any  other  provision of this Act,  by  notified  order, provide  for regulating the supply and distribution  thereof

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and trade and commerce therein.

     It  is  obvious that unless the Central Government  in exercise   of   its  statutory   power  under  Section   18G promulgates  any  statutory  order covering this  field,  it cannot  be said that mere existence of a statutory provision for  entrustment  of such power by itself would result  into regulation  of  purchase and sale of flour even if it  is  a scheduled industry.  Shri Ranjit Kumar fairly stated that no such  order  has been promulgated by the Central  Government for  regulating the purchase and sale of flour in the market area.  According to him, however, the mere existence of such a  statutory  provision  in  the Act  enabling  the  Central Government  to  issue  such orders would  be  sufficient  to occupy the filed contemplated by this provision.  In support of  this contention, he invited our attention to a  decision of  this  Court in the case of The Hingir-Rampur  Coal  Co., Ltd.   and Others vs.  The State of Orissa and Others  (1961 (2)  SCR 537).  At page 558 of the report Gajendragadkar J., speaking  for  the  Court,   made  the  following  pertinent observations  :   .Entry  54  in   List  I  dealing   with Regulation  of mines and mineral development to the  extent to  which such regulation and development under the  control of  the  Union  is  declared  by Parliament  by  law  to  be expedient  in  the public interest.  The effect of  reading the  two Entries together is clear.  The jurisdiction of the State  Legislature  under  Entry  23   is  subject  to   the limitation imposed by the latter part of the said Entry.  If Parliament  by  its  law has declared  that  regulation  and development  of mines should in public interest be under the control  of the Union, to the extent of such declaration the jurisdiction of the State Legislature is excluded.

     It was contended by Shri Ranjit Kumar relying on these observations  that mere declaration under the I.D.R.  Act is enough  to exclude the jurisdiction of the State Legislature in   connection  with  such  a  declared  industry.   It  is difficult  to appreciate this contention.  It has to be kept in  view  that  any legislation in exercise  of  legislative power  under Entry 54 of List I would enable the  Parliament to  regulate  mines and mineral development by  taking  them under the control of the Union in public interest.  Thus all aspects  of mining industry would be covered by the  general sweep  of such a declaration.  However, so far as the I.D.R. Act  is concerned, it is enacted under Entry 52 of the First Schedule   which   deals  with    industries   in   general. Simultaneously  in  the State List itself there is Entry  24 which  deals  with industries subject to the  provisions  of Entries  7 and 52 of List I.  Consequently, the products  of such controlled industries would necessarily not be governed by  the sweep of the general legislation pertaining to  such industries as per Entry 52 of the Union List.  The aforesaid Constitution Bench judgment was not concerned with any State Legislation  enacted  under Entry 24.  On the  contrary,  it dealt  with legislation of the Union Parliament under  Entry 54  of the Union List read with Entry 23 of the State  List. The  scheme of the aforesaid legislative entries is entirely different  from  the scheme of Entry 52 of List I read  with Entry  24  of  List II with which we are  concerned.   On  a conjoint  reading  of the aforesaid two entries,  therefore, the  ratio of the decision of the Constitution Bench in  the aforesaid  case cannot be effectively pressed in service  by Shri  Ranjit  Kumar for supporting his contention.  In  this connection,  we  may  usefully refer to a decision  of  this Court  in  SIEL Ltd.  and Others (supra) wherein one of  us,

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Sujata  V.   Manohar,  J  was  a  member.   It  has  rightly distinguished  the ratio of the Constitution Bench  decision in  the case of The Hingir-Rampur Coal Co., Ltd.  and Others (supra)  and taken the view that merely because an  industry is controlled by a declaration under Section 2 of the I.D.R. Act  enacted  by  Entry  52 of the  Union  List,  the  State Legislature  would  not be denied of its powers to  regulate the  products  of  such  an  industry  by  exercise  of  its legislative  powers  under Entry 24 of the State  List.   In that  case  the question was whether U.P.  Sheera  Niyantran Adhiniyam,  1964  could  be  said to  be  repugnant  to  the Molasses  Control  Order  issued by the  Central  Government under  Section 18-G of the I.D.R.  Act imposing restrictions on  the  sale  of molasses and fixing the maximum  price  of molasses.   Answering the question in negative, it was  held that  the term industry in Entry 24 would not take  within its  ambit  trade  and commerce or  production,  supply  and distribution  of  goods  which are within  the  province  of Entries 26 and 27 of List II.  Similarly, Entry 52 in List I which  deals  with industry also would not cover  trade  and commerce  in, or production, supply and distribution of, the products  of  those industries which fall under Entry 52  of List  I.  For the industries falling in Entry 52 of List  I, these  subjects are carved out and expressly put in Entry 33 of  List  III.   It was also held that  since  the  Molasses (Control)  Order of 1961 passed by the Central Government in exercise  of  powers  conferred  by  Section  18-G  was  not extended  at any point of time to the State of U.P.  or  the State  of  Bihar,  the question of  repugnancy  between  the Molasses  Control Order, 1961 and the U.P.  Sheera Niyantran Adhiniyam,  1964  does not arise.  Consequently, it must  be held  that  in  the absence of statutory  order  promulgated under Section 18G of the I.D.R.  Act, it cannot be said that the field for regulation of sale and purchase of products of flour  industry  like  atta, maida, suzi, bran  etc.   would remain  outside  the domain of the State Legislature.   Shri Ranjit  Kumar  then placed reliance on the statutory  orders framed  under  Section 3 of the Essential  Commodities  Act, 1955.   So  far as the Wheat Rolling Flour Mills  (Licensing and  Control) Order, 1957 is concerned, reliance was  placed by  him on Clauses 2 and 10 of the definition clause.  These clauses  clearly  indicated  that  the said  order  was  not concerned  with  agriculturists nor was the order  concerned with  the  pricing,  purchase  and sale of  wheat  or  wheat products.   Consequently,  the said order cannot be said  to have  occupied  the  field  so   far  as  these  topics  are concerned.   He  then  invited our attention  to  the  Bihar Trading   Articles  (Licenses   Unification)  Order,   1984. Clauses  2 (c) (g) (h) and (j) as well as Clauses 15 and  18 on  which  reliance was placed were found not to be  of  any assistance  to  him  for the simple reason that  under  that Order  dealers  of foodgrains like wheat had to be  licensed and  their activities had to be supervised.  This order  had also  nothing  to do with fixation of prices and  regulating the  purchase  and  sale  of   wheat  and  wheat   products. Consequently,  the first contention canvassed by Shri Ranjit Kumar  cannot  be  sustained and  is  accordingly  rejected. POINT  NO.   2:   So far as the  alternative  contention  is concerned,  he  submitted  that  even  though  wheat  is  an agricultural  produce, atta, maida, suzi manufactured out of the  same cannot be said to be agricultural produce as it is a  produce of the factory and not of an agriculturist.  This contention of Shri Ranjit Kumar also cannot be sustained for the  simple  reason that agricultural produce as defined  by Section  2(1),  as already noted earlier, would include  all

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agricultural  produce  whether processed,  non-processed  or manufactured out of any primary agricultural produce.  Wheat is   a  produce  of   agriculture,  therefore,  any  product resulting  after processing such basic raw material or which results  after process of manufacture is carried on qua such basic  raw material would remain agricultural produce.  Shri Ranjit  Kumar  fairly stated that he has not challenged  the vires  of Section 2 (1)(a) but in his submission items 14 to 16  as  found in the Schedule to the Act under  the  caption Cereals  are  wrongly included as agricultural produce  as they  are not produce of agriculture.  Moment the artificial definition  of  agricultural produce as aforesaid holds  the field,  as  a logical corollary these three  disputed  items would  squarely  get  covered  by  the  sweep  of  the  term agricultural  produce  and  hence their inclusion  in  the schedule  enacted under Section 2(1)(a) as types of  cereals cannot be found fault with.  These were the only contentions canvassed  by  Shri Ranjit Kumar in support of his  appeals. As  they  fail the inevitable result is that all  the  civil appeals would be liable to be dismissed.

     3.   VEGETABLE  OILS :  Civil Appeal No.1427  of  1979 moved  by  M/s  Rohtas Industries Ltd., which is  now  under liquidation   represented  through   its  liquidator  raises similar  contention  as  canvassed by Shri Ranjit  Kumar  in support  of the appeals moved by flour mills.  All vegetable oils  are treated to be agricultural produce as per serial no.4  of  the schedule framed under Section 2(1)(a)  of  the Market  Act.   In  view  of the general sweep  of  the  said definition,  oil  manufactured by the oil mills  functioning within  the  areas  of the Market  Committees  concerned  by crushing  oil-seeds  which   are  undisputedly  agricultural produce  and subjecting them to manufacturing process cannot be said to be outside the sweep of the regulatory provisions of  the  Market  Act.  Reliance placed in  support  of  this appeal on the Vegetable Oil Products Control Order, 1947 the Pulses,  Edible  Oilseeds and Edible Oils (Storage  Control) Order, 1977, the Vegetable Oil Product Producers (Regulation of  Refined  Oil Manufacture) Order, 1973, all framed  under Section  3  of  the Essential Commodities  Act,  1955,  also cannot  be of any avail to the appellant industries for  the simple reason that none of these orders deals with the topic of  regulation of prices and sale and purchase of  vegetable oil  products.  Consequently, the field is wide open for the legislation  of  the State, namely, the Market Act  for  its applicability  to  the transactions of sale and purchase  of vegetable  oil products in the market areas concerned.  This civil  appeal, therefore, also is liable to fail, falling in line  with the appeals concerning wheat and wheat  products.

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Civil  Appeal Nos.  4500-05 of 1992 and Civil Appeal arising out  of SLP (C) No.9684 of 1992 raise similar contentions in connection  with  vegetable  edible oils on  the  very  same reasoning, as aforesaid.  These appeals are liable to fail.

     4.   RICE MILLING INDUSTRIES The appeals arising  from SLP  (Civil)  Nos.3159-60 of 1994 are moved by Rice  Milling Industries  operating  in the market area of  the  concerned market committees.  Learned senior counsel for the appellant mills  challenged notices issued to them by the Agricultural Produce  Market Committees concerned requiring them to shift their  trade  to principal market yards.  It  was  contended that  on  account of the Rice Milling Industry  (Regulation) Act,  1958 which is a Central Act, the field for  regulation of  purchase and sale of products of rice milling industries would  be fully occupied by the Central Act and if the State Act  like  the  Market Act seeks to encroach upon  the  said field,  it  would  become repugnant to the Central  Act.   A close  look at the relevant provisions of the said Act shows that  it  does  not  seek  to  cover  the  aforesaid  field. Sub-section  (1)  of  Section  6 of the said  Act  reads  as follows  :Any  owner of an existing rice mill or of a  rice mill  in  respect of which a permit has been  granted  under section  5 may make an application to the licensing  officer for  the  grant  of a licence for carrying  on  rice-milling operation  in  that  rice  mill.   Section  8  deals   with restrictions  statutorily imposed on rice mills.  Section  9 empowers  the licensing officer or any person authorised  by the  Central  Government to inspect the working of the  rice mill.   The aforesaid relevant provisions of the Act  leaves no  room  for  doubt that the working of  the  rice  milling industries was sought to be regulated by the said Act and it has  nothing to do with the regulation of purchase and  sale of  products of such mills.  It was then submitted that  the appellant   rice  mills  import   paddy  from  other   State territories  which  are  outside the  notified  market  area falling  under  the  Market Act and such imported  paddy  is processed  and after manufacturing activities qua them, rice is  manufactured, hence such activity cannot be governed  by the  Market  Act.  It is obvious that if the appellant  rice mills import paddy already purchased from outside the market area  then  on  such transactions of  outside  purchase  and import  of  paddy in the market area, there would remain  no occasion for the market committees concerned to subject such transactions  to the regulating machinery of the Market  Act or  to  demand  any  market fee thereof.   This  was  fairly conceded by learned senior counsel for the respondents.  He, however, added that if these rice milling industries located and  functioning  in  the market area  purchase  within  the market area, raw material paddy, whether grown in the market area  concerned  or outside, then such purchases within  the market  area  will attract the regulatory provisions of  the Market  Act.  There cannot be any dispute on this aspect  as paddy obviously is an agricultural produce being item no.1 in  the  category of Cereals as found in Schedule  to  the Act.   So far as the manufactured rice out of such paddy  is concerned,  once manufacturing takes place within the market area,  it  would get squarely covered by the wide  sweep  of definition  of  Section  2(1)(a), as we have  seen  earlier.

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Even  apart from that, rice is mentioned as a separate  item no.2  in  the category of Cereals in the Schedule  of  the Market  Act.   It cannot be disputed that rice  manufactured out  of basic agricultural produce paddy would also remain agricultural  produce  falling within the sweep of the  Act. So far as the regulation of sale and purchase of rice within the  market area is concerned, Section 15 of the Act applies to  the  transactions of licensed dealers dealing with  such agricultural  produce in the market area.  Hence the  entire machinery  of the Market Act will be applicable to  regulate transactions of sale and purchase of paddy by the rice mills within  the  market  area as well as sale of  rice  by  them within that area as all these transactions will have to take place  in the market yard or sub-market yards as per Section 15  of  the Act.  However, one grievance voiced  by  learned senior  counsel  for  the appellants deserved  to  be  noted before  parting  with the discussion in these  appeals.   He submitted that there is no power and authority in the market committee  to  insist that the location of the rice  milling industries also should be changed and must be shifted to the market  yard.  In this connection, our attention was invited to  the  notice (page 156 of the paper book) as  a  specimen notice.   In the said notice addressed to Janta Rice & Flour Mills  issued  by  the  advocate acting  on  behalf  of  the Secretary,  Agricultural Produce Market Committee, Chakulia, in  the last but one paragraph, the addressee was  requested to  shift  the establishment of business in the main  market yard  at Dighi of the Agricultural Produce Market Committee, Chakulia  within 7 days.  It was submitted that this part of the  direction is totally without jurisdiction as no  market committee  can compel the shifting of the business  premises of the rice milling industries to any particular market yard as Section 15 of the Act only requires the sale and purchase transactions  regarding  the  agricultural   produce  to  be carried  on in the market yard or sub-market yards.  To that extent,  learned senior counsel for the appellant is  right. The  statutory mandate of Section 15 does not go beyond  the regulation  of  transactions regarding purchase and sale  of agricultural produce and that can be required to be effected only  at  the relevant principal market yard  or  sub-market yard  or  yards.  None of the provisions of the  Market  Act would  entitle the market committee to insist on shifting of the  business  premises  of any milling company  or  factory processing  agricultural  produce located within the  market area  to  any  particular market yard or  sub-market  yards. Learned  senior  counsel  for the respondents  Shri  Dwivedi fairly  conceded  that the aforesaid direction contained  in the impugned notice as worded is not correct and can be read down  to  mean  only the shifting of the sale  and  purchase transactions  concerning  paddy  and rice  to  the  relevant market  yard  or  sub-market yards.   These  directions  are accordingly  read  down.  The said notice when so read  down would remain well sustained.  In other words, the appellants will not be required to shift the location of the rice mills to  principal  market yard or sub-market yards if  otherwise they  are not already so located but are functioning at  any place  within  the  market area.  However,  their  sale  and purchase  transactions of paddy and rice will, of course, be required  to be carried on only in market yard or sub-market yards concerned as mandated by Section 15 of the Market Act. Subject  to  these clarifications and modifications  in  the directions  contained in the impugned notice, these  appeals are liable to fail.

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     5.   MILK  AND  MILK  PRODUCTS This takes  us  to  the consideration   of  Civil  Appeal   No.1880  of  1988.   The appellant in this appeal is an incorporated company with its Registered  Office  and  factory at Bombay.   It  claims  to produce  baby  food  under the trade  names  LACTODEX  and RAPTAKOS  S.I.F.  (Special infant food).  Its products are sold all over the country including Bihar State.  It has its Central  Office  at Patna.  Being located outside  Bihar  it purchases  its  raw materials from the  territories  outside Bihar.   Out of the raw materials procured from outside, the aforesaid  two types of infant food are manufactured outside Bihar  but some of the products of the company are  received in Bihar State packed in sealed tins.  The appellant company earlier  had two branches being sales offices, one at  Patna and  other  at  Muzaffarpur.   The latter  branch  is  since closed.  Both these branches fall within the jurisdiction of the  Agricultural  Produce  Market Committees at  Patna  and Muzaffarpur.    According  to  the   appellant  though   its activities  were not covered by the sweep of the Market Act, it  was  required  to  obtain licences  under  the  Act  for operating  at  both these places in the market  areas.   The appellant  contended  in the Writ Petition before  the  High Court  that  the  direction  of  the  marketing  authorities requiring  the  appellant to take licences under the  Market Act  was  clearly  ultra vires and illegal  for  the  simple reason  that the products sold by it within the market  area were  not agricultural produce at all.  Therefore, they were not governed by the sweep of the Act.  The High Court in the impugned judgment negated this contention and held that both these  articles  sold in packed tins were in substance  milk products  and, therefore, agricultural produce as  defined by  Section  2(1)(a).   Learned counsel  appearing  for  the appellant vehemently submitted that before the aforesaid two products can be subjected to the regulatory procedure of the Market  Act,  it must be shown by the respondents that  they are  agricultural  produce.  He invited our  attention  to Section  3 of the Act and submitted that the very first step of  the  applicability  of  the Act is  the  declaration  of intention  by  the  State   Government  for  regulating  the purchase,  sale,  storage  and processing  of  agricultural produce  as  mentioned in the notification.  That the  said term  agricultural  produce as defined by Section  2(1)(a) clearly  indicates that the agricultural produce which is to be  covered  by  the sweep of the Act has to  be  one  which should  be  specified in the Schedule.  When we turn to  the Schedule  of the Act framed as per Section 2(1)(a), we  find one  of the animal husbandry products at item VIII, sub-item 20  as milk except liquid milk.  Thus any product consisting of solidified milk, like milk powder, is contemplated by the said  item.  It was submitted that in the entire Schedule no where  we  find  any  mention of baby food which  may  be  a substitute  for milk or solidified milk.  It was, therefore, contended  that  the appellant which manufactures and  sells special  infant foods like Lactodex and "Raptakos"  cannot be  required  to  take  any licence under  the  Market  Act. Refuting  this  contention, learned senior counsel  for  the respondents  submitted  that as noted by the High Court  the aforesaid   two  products  manufactured   and  sold  by  the appellant  do contain as base material "milk" in  solidified form.   He invited our attention to the details submitted by the appellant before the High Court and as noted by the High

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Court in its judgment in connection with the ingredients and constituents of these two products.  "LACTODEX"

     Per  100  ml.   When reconstituted.  6 g.  :   45  ml. Protein  1.9  g.   Carbohydrate  9.6 g.   Milk  fat  0.9  g. Minerals  0.5  g.   Vitamin A 265 I.U.  Vitamin B6  40  mcg. Including  that  derived from milk powder Vitamin D 40  I.U. Calories 54

     RAPTAKOS S.I.F.

     Per  100  ml.   When reconstituted 4.5 g.  :   30  ml. Protein  1.8 g.  Fats 3.0 g.  Carbohydrates 9.6 g.  Minerals (Ash)  0.4 g.  Iron 0.6 g.  Vitamin A 225 I.U.  Vitamin D 60 I.U.   Vitamin  E 1.3 I.U.  Vitamin B1 0.07 mg.  Vitamin  B2 0.11 mg.  Nicotinamide 0.9 mg.  Vitamin B6 0.04 mg.  Vitamin B12 0.15 mg.  Vitamin C 0.5 mg.  Calories 73 mg.

     Placing   reliance  on  these   ingredients,  it   was submitted  that  per  100 milligrams of  Lactodex  milk  fat content  is 0.9 gms and that other minerals and vitamins may also  include  milk  powder.  Similarly,  Raptakos  (Special infant  food)  also  contains proteins and  fats.   He  also contended  that  even  milk  which is a  complete  food  may contain  vitamins,  therefore, it cannot be said that  these two  products  are not milk products or products  containing some  ingredients  of milk.  It is difficult to accept  this contention for the simple reason that the aforesaid Schedule at   sub-item  no.20  captioned   under  the  title  "Animal Husbandry  Products" refers to milk except liquid milk.   By no  stretch  of  imagination, tinned  baby  food  containing various  ingredients  which  may include some milk  fats  or proteins though in powder form can be said to be milk powder simpliciter  or  whole milk not in liquid form.  It is  also pertinent  to note that there is no item of milk products in the  Schedule to the Act under the caption "Animal Husbandry Products".    In  this  connection,  it  is  profitable   to contradistinguish  this  entry  in the Schedule  with  items 14,15  and  16 under the caption "Cereals" in the very  same Schedule.   In the listed items under the caption "Cereals", we  find  "Wheat"  separately  mentioned  at  item  no.3  as compared  to Wheat Atta, Suzi and Maida separately mentioned at  items 14,15 and 16.  This shows that basic  agricultural produce  -  "wheat"  is treated as a  separate  agricultural produce  as compared to its own products manufactured out of wheat,  namely, atta, suzi and maida.  Those products of the concerned   basic   agricultural   produce  are   separately mentioned  as "agricultural produce" in the Schedule so  far as  "cereals" are concerned.  But similar is not the  scheme in  connection with milk.  Milk products like baby foods are not  separately  mentioned.  Under the very caption  "Animal Husbandry   Products",  Butter  and   Ghee  are   separately mentioned  as items 7 & 8 which are wholly manufactured  out of  milk.  It, therefore, becomes clear that save and except butter  and  ghee  no  other milk product is  sought  to  be covered  by  the  sweep  of the  Act  as  "Animal  Husbandry Products" and the basic Animal Husbandry Produce like "milk" only  in  solid form is sought to be covered by  a  separate solitary  item  no.20  as  one   of  the  "Animal  Husbandry Products".   Therefore, any other manufactured product  like the  present ones, utilising same ingredients of milk powder as  one  of  the  ingredients but  which  are  processed  by addition  of  all  other extra items with  the  result  that finished  products  like baby foods emerge  as  manufactured items  for  serving  as  substitute for milk to  be  fed  to

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infants  who cannot digest liquid milk or solidified milk as such, cannot be treated to be "agricultural produce" as part and  parcel of listed "Animal Husbandry Products"  mentioned in  the Schedule to the Act.  Learned senior counsel for the appellant  in support of his contentions tried to rely  upon specimen  copies  of printed material affixed to the  sealed tins  of  these  manufactured  commodities,  "Lactodex"  and "Raptakos",  which,  according to him, are  substitutes  for mother’s  milk and are to be used to feed infant babies  who cannot  take  milk  in  its natural  form.   Learned  senior counsel  for the respondents tried to repel this  submission by  contending  that this type of printed material  was  not produced  before  the  High Court.  Be that as it  may,  the undisputed  fact remains that these two special infant foods are meant for infant babies who are to be fed by mixing this baby  food  powder  with  water  to make it  a  paste  as  a substitute  for mother’s milk.  In the light of the  express provisions  concerning the relevant items of the Schedule to the Act to which we have referred, it has to be held that on the  material  before the High Court in connection with  the ingredients  of the aforesaid two products of the appellant, it  could not be effectively shown by the respondents beyond any  doubt  that these two products also were  "agricultural produce"  being  Animal  Husbandry Products of "milk"  in  a non-liquid  form.   Consequently, there was no occasion  for the  respondent authorities to insist that the appellant for the  sale  of the aforesaid two products within  the  market area  governed  by the Market Act in the State of Bihar  was required  to take any licence under that Act.  It is not the case of the appellant that any market fee was required to be charged  from  him  by  the   market  committee.   The  only grievance  made was that the appellant was required to  take licence  under the Market Act.  Hence the question of refund of any market fee would not survive for consideration in the present  case.  This appeal will have to be allowed and  the Writ  Petition filed by the appellant in the High Court also consequently  will  have  to  be  allowed  by  quashing  the impugned  notice calling upon the appellant to take licences under the Market Act.

     6.   TEA  MATTERS In the appeal filed by M/s.   Lipton Tea  (India)  Ltd.,  the appellant company  has  brought  in challenge the order of the High Court of judicature at Patna in Writ Petition No.1027 of 1977 which was disposed of along with  other  cognate  matters  by a  common  judgment.   The appellant  had  contended  before the High  Court  that  the Market  Act cannot apply to the transaction of  manufactured blended  tea  sold in packed tins and packets by it  in  the State  of  Bihar,  consisting of areas of  different  market committees.   According to the appellant, the object of  the Market  Act  was to provide for better regulation of  buying and selling of agricultural produce.  It was for the benefit of  the agriculturists by providing them a market assuring a reasonable  price  of  their products and  also  eliminating unhealthy   competition  and  loss   due   to   malpractices prevailing in the market.  That the appellant was neither an agriculturist  nor  did  it purchase any  article  from  any agriculturist  in the Bihar State.  That it purchased tea in auction  under the Tea Act held at various notified  centres in  other  States  outside the Bihar  territory.   That  the purchased  tea  was blended at appellant’s  factories  which were  also situated outside Bihar.  Only after the purchased tea  had undergone manufacturing process in appellant’s  tea factories,  after  blending and preparation  of  appropriate

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final  product  packed in tins and other  receptacles,  this marketable  commodity  "tea" consisting of red label,  green label  tea  etc.   was  being brought for  sale  within  the territories  of  the  State of Bihar.  Hence, there  was  no occasion  for the market committees to regulate the sale and purchase  of such tea by the appellant manufactured  outside the State of Bihar.  It was also contended that the Tea Act, which  is  the  Central  Act, fully occupied  the  field  of regulation of sale of such tea by the appellant.  In view of the  special  machinery  provided  under the  Tea  Act,  the general sweep of the Market Act could not be made applicable to  the  appellant’s sale transactions of  manufactured  tea within  the  State of Bihar.  It was lastly  contended  that when  the  appellant  was selling its  manufactured  tea  in packed  condition in the market area through its  stockists, no  benefits of infrastructural facilities were required  to be   furnished  by  the   market  committee  concerned  and, therefore,  insistence on the part of the market  committee, that  the appellant’s stockists should sell packed tea  only in  the  market  yard  or   sub-market  yards  was   totally unauthorised and in fact amounted to imposition of sales tax on  the sale transactions of tea and could not remain in the realm  of  genuine  market   fee.   These  contentions  were repelled  by  the High Court and it was also held  that  any manufactured  product out of the basic agricultural produce, namely,  tea leaves, would be covered by the Act and as  the manufactured  items  in packed conditions out of  the  basic agricultural  produce - "tea" were being sold in the  market area, the machinery of the Act was applicable to cover these transactions.  Accordingly, the Writ Petition was dismissed. Hence  this  appeal  by special leave.  The  learned  senior counsel  for  the appellant Shri Shanti  Bhushan  vehemently submitted  that the very purpose of the Market Act is not to regulate   the  sale  of  tea   manufactured  by   big   tea manufacturing  companies like the appellant whose  factories are  situated outside the State of Bihar.  They purchase tea leaves  in  auction  under  the Tea Act  held  at  different centres  outside  the State of Bihar and  manufacture  after proper  blending  tea  by packing it  in  suitable  packings having  labels showing different qualities of tea like green label  tea,  red label tea etc.  That because the  appellant imports  manufactured  tea only for the purpose of  sale  in Bihar  markets, it cannot be said that the machinery of  the Market  Act which is essentially meant to regulate the  sale and  purchase of agricultural produce, gets attracted.  That the Market Act is, in substance, meant to cover agricultural produce  which  are first grown in the market area and  then sold  within the same area.  It was also contended that  tea was  not  one of the scheduled items earlier covered by  the Act  enacted as early as in 1960.  That only after 16  years in  1976, tea was added as one of the items in the  Schedule to  the Act under the caption "Miscellaneous item No.   XII" as  sub item 30 being Tea (leaf and dust).  It was submitted that  this addition to the Schedule was made by the State of Bihar  in exercise of its power under Section 39 of the  Act which  confers power on the State Government by notification to  add  any  of the items to be  treated  as  "agricultural produce"  for  being specified in the Schedule.   That  this addition was made after the basic notification under Section 3 of the Act was issued declaring the intention of the State to  regulate  the  purchase, sale, storage  and  process  of agricultural  produce  in such areas as may be specified  in the  notification.   This  basic   notification  which   was followed  by  the  procedure  of  inviting  objections   and suggestions  had culminated into declaration of market  area

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under  Section 4.  That initially as the item of tea was not in the Schedule, it was obviously not sought to be subjected to   the  regulation  under   the  Act.   Consequently,  its purchase,  sale,  storage  and process  were  obviously  not intended  to be covered by the Act.  But when tea was  added as   an  item  in  the   Schedule  in  1976  the   procedure contemplated by Section 3 was obviously not undergone and no objections were invited.  Section 4 (a) of the Act which was inserted  by way of clarification in 1993 also made it clear that  the provisions of Sections 3 and 4 shall not apply  to the  exercise of power by the State Government under Section 39  to  amend  the  Schedule  by addition  of  any  item  of agricultural produce not specified therein.  In the light of the  aforesaid statutory scheme, it was vehemently submitted by Shri Shanti Bhushan, learned senior counsel appearing for the  appellant, that this insertion of tea as an added  item in  the  Schedule was ex-facie unauthorised and a result  of total nonapplication of mind on the part of the State and it is  this  exercise under Section 39 of the Act by the  State authorities  that  was challenged in the Writ Petition.   In support  of  this challenge, Shri Shanti Bhushan pressed  in service  the  following three contentions :CONTENTION  NO.1: The  very scheme and purpose underlying the enactment of the Market  Act shows that only those agricultural produce which are grown within the market area and whose sale in the first instance  is to be regulated and also the subsequent sale of any manufactured item out of such basic agricultural produce raw  material  taking  place  within  the  market  area  are required  to be regulated by the Act so that illiterate  and ignorant  agriculturists who would, otherwise, suffer at the hands  of middlemen and may not get adequate price for their product and due compensation for the toil undertaken by them in  producing  these  agricultural   commodities,  may   get adequate   return  for  their   products.   The   benevolent provisions of the regulatory scheme of the Act are essential to   protect  the  agriculturists   from   exploitation   of middlemen.   In this connection, our attention was drawn  to the  salient observations highlighting the basic purpose for enactment   of  such  Market  Acts  as  laid  down  by   the Constitution  Bench  of this Court in  M.C.V.S.   Arunachala Nadar  case (supra).  Shri Shanti Bhushan submitted that the large  scale manufacturers like Lipton Tea (India) Ltd.  who manufacture  tea  outside the State in  their  sophisticated factories  having  latest  machinery   are  not   illiterate agriculturist producers of agriculture goods and commodities in their fields and do not require protection under the Act. That  as  these salient features of the Act are not kept  in view  by the State Authorities while inserting entry of  tea in  the  Schedule,  the said Act on the part  of  the  State authorities  was  clearly  ultra   vires  and   incompetent. CONTENTION NO.  2:  In any case, as the purchase and sale of tea  were  governed by the comprehensive provisions  of  the Central  Act, namely, the Tea Act, 1953, the said Act  would wholly  govern  transactions of purchase and sale of tea  by the  appellant and to that extent the Market Act would stand superseded or at least the statutory intention of regulating the purchase, sale, storage and processing of tea as per the provisions  of  Section  3  of the Market  Act  would  stand completely   negated.   Hence,  on   that  ground  also  the insertion  of  this  item  in   the  Schedule  would  remain unauthorised  and consequently the insistence on the part of the authorities that the sale transactions should be carried on  only  within  the  market yard or  sub-market  yard  was clearly  illegal  and  violative  of   Article  19  of   the Constitution  of  India.  CONTENTION NO.  3:  It was  lastly

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contended  by  Shri  Shanti  Bhushan that no  quid  pro  quo existed  between  the  demand for market fee by  the  market committees and the sale transactions effected by appellants selling  agents so far as tea in packed tins was  concerned. No infrastructural facilities were available for or required to  be supplied to the sellers of such tea.  Learned  senior counsel  for  the respondents, on the other hand,  tried  to salvage the situation by submitting that even though the Tea Act  may  control  the sale and purchase of tea which  is  a highly  monopolistic and export earning commodity, once  the blended  tea  in deliverable state duly packed in  tins  and other packages by the appellant tea company enters the Bihar markets  for  sale, it cannot be said that the sale of  this commodity  cannot  be  treated to be  sale  of  agricultural produce by the appellant within the market area in the State of Bihar as agricultural produce defined by Section 2(1)(a), would  cover not only the purchase and sale of  agricultural produce  in  its  raw  form but also in  its  processed  and manufactured  form  as  per  the  wide  sweep  of  the  said definition.   He  submitted that it cannot be disputed  that tea  in its raw form is an agricultural produce because  tea leaves  are  grown in tea gardens and then they are  plucked and  processed  in  tea  factories and  after  blending  the manufactured  tea in deliverable state becomes available  to be sold in wholesale markets and then in the retail markets. That  even though the appellant’s factory manufacturing  the blended  tea  may be outside the State of Bihar, the  moment the blended tea in packed form is sold in the State of Bihar in  the  market areas concerned, it cannot be said that  the provisions  of  the Market Act would not apply to such  sale transactions.   On a conjoint reading of Section 2(1)(a) and the  Schedule  under  Miscellaneous item  XII  sub-item  30, therefore,  it  has  to be held that the  Market  Act  would squarely  get attracted to regulate the sale of such produce of tea by the appellant in the Bihar markets.  So far as the Tea Act is concerned, it is submitted that it only regulates the  sale  of plucked tea from the tea gardens and  provides machinery  for  sale by auction of such tea at the  relevant centres  and  even  in  such   auction  when  the  appellant purchases  these roasted tea leaves, it cannot be said  that the  Tea  Act  would  cover   any  further  transactions  of manufactured  tea out of the purchased tea leaves by auction purchasers  like  the  appellant at its  factories  situated outside  the Bihar State.  That auction purchased tea leaves are  processed  by the appellant and blending work  is  done thereafter.   That what is relevant for the applicability of the Market Act is the fact that this manufactured tea packed in  suitable packets and tins is brought for sale within the market   area  in  the  Bihar   State  and  these  are   the transactions  of  sale of manufactured tea out of the  basic agricultural produce tea leaves that would attract the sweep of the Market Act, notwithstanding the provisions of the Tea Act.   That  once  the  Market  Act  applies  to  such  sale transactions, the entire infrastructural facilities would be available to the appellant as these sales have to take place in  the  market  yard  or sub-market yards  as  required  by Section  15 of the Act.  Once the appellant gets the benefit of this infrastructure, it cannot be said that no sufficient quid  pro quo is made available under the Act by the  market committees  concerned to justify them to levy the market fee from  the  buyers of tea.  That so far as the  appellant  is concerned,  there  is  no burden of paying market fee  as  a seller of manufactured tea.  The burden will be borne by the buyers  who are not making any grievance in this connection. In  the  light of the aforesaid contentions,  the  following

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points  arise  for our consideration :1.  Whether the  basic agricultural  produce i.e.  "tea leaves" which is  subjected to  manufacturing  process  outside the Bihar State  and  is imported  and  sold in manufactured condition as packed  tea within  the  Bihar  State  in the  market  areas  concerned, attracts  the  provisions of the Market Act  for  regulating such  transactions of sale.  2.  Whether the Tea Act of 1953 and  the relevant orders promulgated thereunder fully occupy the  field regarding regulation of purchase and sale of  tea and,  consequently,  the  Market Act, being a  general  Act, would  get excluded for regulating the transactions of  sale of  manufactured tea in Bihar State and 3.  Whether there is adequate  quid pro quo supporting the levy of market fee  on such transactions of sale of manufactured and packed blended tea in markets governed by the Market Act.  We will now deal with  the  aforesaid  three points in the same  sequence  in which  they were pressed for consideration.  POINT NO.1:  At first  blush, learned senior counsel for the appellant  Shri Shanti  Bhushan  appeared  to be on a firm footing  when  he submitted  that  the  legislative intention  underlying  the enactment  of  the Market Act was to protect illiterate  and unwary  agriculturist  from middlemen so that he may not  be exploited  by  them  and may get appropriate price  for  his basic  agricultural produce.  But on a closer scrutiny,  the said  contention  does  not  appear to  be  well  sustained. Section 2(1)(a) of the Market Act, as seen earlier, includes in  the  definition  of agricultural produce  not  only  the primary  produce  grown  in the field but  also  covers  all processed  or non-processed, manufactured or nonmanufactured agricultural  produce as specified in the Schedule.  In  the light  of  the aforesaid wide sweep of this  definition,  it cannot  be  said that tea leaves which are produced  in  tea gardens being primary agricultural produce would cease to be agricultural produce once they got processed.  After plucked tea  leaves  are  processed  by roasting them  and  then  by subjecting   them  to  further   process  of  blending   and ultimately  packing  them  in suitable  packets  they  still remain all the same agricultural produce so manufactured out of  the basic agricultural raw material "tea leaves".  It is also  not in dispute that Tea (leaf and dust) is a Scheduled item.   Once that is so, sale of manufactured tea in  packed condition  within the market area would squarely attract the charge  under Section 27 of the Act which, as noted earlier, is  widely  worded.  The moment the agricultural produce  as defined  by Section 2(1)(a), is bought or sold in the market area,  Section  27  would  get   attracted  to  cover   such transaction.   It is also pertinent to note that Section  15 sub-section (1) of the Act is applicable in the present case to  cover such transactions of sale of packed tea within the market  areas of the concerned market committees governed by the Act.  Save and except such quantity as may be prescribed for  retail  sale or personal consumption to be outside  the sweep  of  Section  15(1)  of the Act, rest  of  these  sale transactions  regarding  manufactured  agricultural  produce would  remain  governed  by  the sweep of  the  Act.   On  a conjoint  reading of Section 2(1)(a) and Section 15 and  the relevant  entry in the Schedule, there is no escape from the conclusion   that  whether   the  manufactured  agricultural produce  has  undergone  manufacturing  process  within  the market  area or not or whether such agricultural produce  in its  raw  form  is grown in the market area  or  outside  or whether  the  processed "agricultural produce"  is  imported only  for sale within the market area, the applicability  of the  Act  cannot be said to be ruled out to cover all  these types  of  sale  transactions.  The question posed  by  Shri

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Shanti  Bhushan  learned  senior counsel appearing  for  the appellant for our consideration is no longer res integra.  A Constitution  Bench of this Court in the case of Ram Chandra Kailash Kumar and Company and Others vs.  State of U.P.  and Another  etc.  etc.  (1980 Suppl.  SCC 27), speaking through Untwalia  J., had to consider the question of imposition  of market  fee  under  the Uttar Pradesh Krishi  Utpadan  Mandi Adhiniyam,  1964  on  transactions of purchase and  sale  of agricultural  produce in the market area.  While considering this  question,  various  contentions   raised  by   traders operating in the agricultural market in U.P.  were listed in para  9  of the report.  Contentions no.9 and 23  listed  in para  9  of  the  report   are  relevant  for  our  purpose. Contention  no.9  reads as under :  "No market fee could  be levied  on  goods  not  produced  within  the  limits  of  a particular  market area and if produced outside and  brought in such area."

     Contention no.23 reads as under :  "Fee can be charged only  on those transactions in which the seller is  producer and not on any other transaction."

     Repelling  these  contentions, the Constitution  Bench held that market fee could be levied on transactions of sale of  goods  even though such goods are produced  outside  the State  of  Uttar Pradesh or outside the market area of  that particular  market  committee, provided the transactions  of sale  take place within the limits of that market area.   It was  also  held  that,  on  the other  hand,  there  was  no provision  in the Act or the Rules to limit the operation of the  law in a particular market area only in respect of  the agricultural  produce  produced  in that area.   So  far  as Contention  no.23 was concerned, approving the Patna view it was  held  that in the U.P.  Act even traders under  certain circumstances  had  been  made  liable   to  pay  such  fee. Similarly,  the argument that the market fee can be  charged only  on  those  transactions  in which the  seller  is  the producer  of  agricultural  produce  and not  on  any  other transaction,  was also found devoid of any substance by  the Constitution  Bench.  In view of the aforesaid pronouncement of  the Constitution Bench, therefore, it must be held  that even  if  an agricultural produce initially is not grown  in the  market  area  and it is brought  in  manufactured  form within  the  market area for sale, such sale transaction  in connection with such a produce would be covered by the sweep of  the  Market Act.  The same view was taken by  two  later judgments  of  this  Court.  In the  case  of  Rameshchandra Kachardas  Porwal  and Others vs.  State of Maharashtra  and Others etc.  etc.  (1981 (2) SCC 722), wherein a three Judge Bench  of  this Court, speaking through Chinnappa Reddy,  J. amongst  others, had to consider the question whether change of  location  of market under the  Maharashtra  Agricultural Produce Marketing (Regulation) Act, 1963 could be held to be legally  justified.  It was held that the power to establish principal  market or a subsidiary market carried with it the power  to  "dis-establish"  such market and  that  power  to establish  principal  or sub-market yard could be  exercised from  time  to time.  In para 11 of the report  the  further contention  was examined as to whether agricultural  produce which  is  imported  into the market area from  outside  the market  would  be  covered by the sweep of the  Market  Act. While  answering this contention in affirmative, it was held that  even  if  agricultural produce is  imported  into  the market  area  and subjected to sale and purchase thereof  in the  market area, the provisions of the Market Act would get

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attracted.   The  very same contention which learned  senior counsel Shri Shanti Bhushan urged for our consideration that the  Act is enacted for the interest of agriculturists  only and for their sole benefit was repelled.  For coming to that conclusion  reliance  was  placed  on   a  decision  of  the Constitution   Bench   of  this  Court   in  the   case   of Rameshchandra  Kachardas Porwal and Others (supra).  In this connection,  the following pertinent observations were  made at  page  735,  para  11  of  the  report.   "..The   basic assumption  of  the  submission  was  that  the  Maharashtra Agricultural   Produce   Marketing   (Regulation)  Act   was conceived  in  the interests of the agriculturists only  and intended  for their sole benefit.  This basic assumption  is not well founded.

     It  is  also clear to our mind that the regulation  of marketing  of agricultural produce, if confined to the sales by  producers  within the market area to traders, will  very soon  lead  to  its circumvention in the guise of  sales  by traders  to  traders or import of agricultural produce  from outside the market area to within the market area..

     In   our  view  the   aforesaid  observations  are  in Rameshchandra  Kachardas  Porwal’s  case   (supra)  are   in consonance  with  the decision of the Constitution Bench  of this  Court  in  Ram Chandra Kailash Kumar and  Company  and Others  (supra) and are well sustained.  This very  question was once again examined by another three Judge Bench of this Court  in  the case of Rathi Khandsari Udyog and Others  vs. State of Uttar Pradesh and Others (1985 (2) SCC 485) wherein Fazal  Ali  J.,  speaking  for majority,  relying  upon  the earlier  decisions of this Court including the  Constitution Bench  judgment in the case of Ram Chandra Kailash Kumar and Company  and  Others  (supra),   considered  the  very  same contention  as  canvassed  by learned  senior  counsel  Shri Shanti  Bhushan,  namely, that the Market Act was  meant  to protect  the  agriculturists who produce basic  agricultural produce  and  was not meant to protect big producers  having factories  wherein they process the raw agricultural produce and  manufacture marketable commodity out of it.   Repelling such  narrow view of the regulatory provisions of the Market Act,  at  para  35 of the report,  the  following  pertinent observations  were  made  :  "The Legislature,  it  is  also argued,  "could  not  have intended" to  cover  the  produce turned out by producers like the petitioners.

     While this is one of the objects of the Act, it is not the  sole or only object of the Act.  The Act has many  more objects  and a much wider perspective such as development of new   market  areas,  efficient   collection  of  data,  and processing  of arrivals in Mandis with a view to enable  the World  Bank  to  give  substantial  economic  assistance  to establish   various  markets  in   Uttar  Pradesh,  as  also protection   of  consumers  and   even  traders  from  being exploited in the matter of quality, weight and price.."

     In  view of this settled legal position, therefore, it cannot  be held that merely because the tea leaves  produced in  tea gardens outside the State of Bihar are processed  by the  appellant  in  its  factories  outside  Bihar  and  are converted  into blended and branded qualities of packed  tea like  red label tea or green label tea etc., and even though such  packed  tea  is sold within Bihar  Market  areas,  the Market  Act  cannot be applied to such sale transactions  of

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manufactured  tea after importing it in the State of  Bihar. The  first point, therefore, has to be rejected.  That takes us to the second contention in support of the appeal.  POINT NO.2  :   The  Tea Act of 1953 provides for control  by  the Union Government of the Tea Industry, including the control, in pursuance of the International Agreement now in force, of the  cultivation  of tea in, and of the export of tea  from, India and for that purpose to establish a Tea Board and levy a  duty of excise on tea produced in India.  It is necessary to  have  a  bird’s  eye view of  its  relevant  provisions. Section  4  deals  with  a board called  "Tea  Board".   The members of the board not exceeding forty are to be appointed by  the  Central Government by notification in the  official gazette  and would consist of various persons representing - (a)  owners  of tea estate and gardens and growers  of  tea; (b)  persons  employed  in  tea estates  and  gardens;   (c) manufacturers  of tea;  (d) dealers including both exporters and   internal   traders  of   tea;   (e)  consumers;    (f) Parliament;  (g) the Government of the principle tea-growing States.  Amongst others, Section 10 deals with the Functions of  the  Board - It provides as under :

     "(1) It shall be  the duty  of the Board to promote, by such measures as it thinks fit,  the  development  under  the control  of  the  Central Government of the tea industry.

     (2)  Without  prejudice  to   the  generality  of  the provisions  of  sub-section  (1), the measures  referred  to therein may provide for -

     (a)   regulating   the  production   and   extent   of cultivation  of tea;  (b) improving the quality of tea;  (c) promoting   co-operative   efforts     among   growers   and manufacturers  of  tea;   (d)   undertaking,  assisting   or encouraging  scientific, technological and economic research and   maintaining  or  assisting  in  the   maintenance   of demonstration   farms  and   manufacturing  stations;    (e) assisting  in  the  control of insects and other  pests  and diseases  affecting tea;  (f) regulating the sale and export of  tea;   (g)  training  in tea testing  and  fixing  grade standards  of tea;  (h) increasing the consumption in  India and  elsewhere  of tea and carrying on propaganda  for  that purpose;   (i)  registering and licensing of  manufacturers, brokers,  tea  waste  dealers  and persons  engaged  in  the business  of  blending tea;  (j) improving the marketing  of tea in India and elsewhere;  (k) Xxxx xxx xxxx"

     Section  12 deals with method of control of  extension of  tea  cultivation.   Section  14   deals  with  grant  of permission  to plant tea.  Section 15 provides for grant  of permission to plant tea in special circumstances.  Owners of tea  estate  can  establish  tea nurseries  as  provided  by Section  16.  Chapter IIIA deals with management or  control of  tea undertakings or tea units by the Central  Government in certain circumstances.  Section 16E provides for power of the  Central Government to take over tea undertaking or  tea unit  without  investigation  under  certain  circumstances. Chapter IV deals with control over the export of tea and tea seed.   Section  30  in Chapter IV deals with power  of  the Central  Government to control price and distribution of tea or  tea waste.  "Power to control price and distribution  of tea  or tea waste.- (1) The Central Government may, by order notified  in the Official Gazette, fix in respect of tea  of any  description  specified therein(a) the maximum price  or

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the  minimum  price or the maximum and minimum prices  which may  be charged by a grower of tea, manufacturer or  dealer, wholesale  or  retail, whether for the Indian market or  for export;   (b)  the  maximum  quantity   which  may  in   one transaction  be  sold  to any person."  Sub-section  (3)  of Section  30  enables  the Central Government by  general  or special  order to - "(a) prohibit the disposal of tea or tea waste except in such circumstances and under such conditions as  may  be specified in the order;  (b) direct  any  person growing,  manufacturing or holding in stock tea or tea waste to  sell  the  whole or a part of such tea or tea  waste  so grown  or  manufactured during any specified period,  or  to sell  the whole or a part of the tea or tea waste so held in stock,  to  such  person  or class of persons  and  in  such circumstances as may be specified in the order."

     Sub-section (4) of Section 30 reads as under :  "Where in  pursuance of any order made with reference to clause (b) of  sub-section (3), any person sells the whole or a part of any quantity or tea or tea waste, there shall be paid to him as price therefor-

     (a)  where  the  price  can   be  fixed  by  agreement consistently  with  the  order,  if  any,  relating  to  the fixation of price issued under sub-section (1), the price so agreed upon;  (b) Xxxxxxxxxx (c) Xxxxxxxxx."

     Section   32   deals  with   appeal  to  the   Central Government.  Section 33 deals with licensing of brokers, tea manufacturers,  etc.   Section  39 deals  with  penalty  for illicit  cultivation.  Section 40 deals with removal of  tea planted  without  permission.  It is not in dispute  between the  parties  that,  as per the scheme of the Tea  Act,  tea leaves  which are plucked in tea gardens in different States of  the  country,  especially, in North-eastern  State  like Assam, West Bengal and other States and which are roasted in tea  factories are auctioned at Calcutta, Guwahati, Siliguri and  other notified places.  It is also an admitted position that  the  appellant  purchases roasted tea leaves  at  such auctions  and then they are blended and packed according  to different brands and rates by the appellant at its factories outside the Bihar State and then markets it throughout India at  fixed  prices, local taxes varying from place to  place. The aforesaid provisions of the Tea Act which are enacted by the  Union  Parliament  under Entry 52 of List I  read  with Entry  33 of List III deal with the control of tea  industry in  public interest.  The basic feature of the Tea Act is to provide  for control of extension of tea cultivation in  the areas  where tea leaves are grown in tea gardens.   However, it  is pertinent to note that the said Act does not  provide for  regulating  the  sale of purchased roasted  tea  leaves after  they  are  subjected  to  manufacturing  process   of blending  and  are brought in the market for sale as  packed tea.   The place where such packed tea is to be sold and the price  at  which it has to be sold are matters on which  the Tea  Act,  1953 does not contain any  statutory  provisions. However, Shri Shanti Bhushan, learned senior counsel for the appellant,  strongly relied upon Section 30 of the Act.   It is  true,  as seen earlier, that the said section  found  in Chapter  VI deals with control by the Central Government and lays  down  the  power of the Central  Government  regarding control,  price  and  distribution  of  tea  or  tea  waste. However,  it  is to be noted that till date no such  control order  has  been issued by the Central Government under  the said  provision.  Learned senior counsel submitted that once

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the  Central Legislature has enacted the aforesaid provision and  evinced its intention to control price and distribution of  tea or tea waste, the field gets occupied by legislation under Entry 33 of the Concurrent List and to that extent the provisions  of  Market  Act would get excluded.  It  is  not possible  to  accept this contention for the  simple  reason that  so  long as the Central Government does not issue  any order  under  Section 30 of the Tea Act, the  field  dealing with  fixation  of  maximum  price or minimum  price  to  be charged  by  a  grower  of   tea,  manufacturer  or  dealer, wholesale  or  retail, for Indian market leaving  aside  the question  of export, would not be occupied.  In other words, it would remain open for the State Legislature to cover that field  by exercising its legislative power under Entry 33 of the Concurrent List.  Even this aspect of the matter is also not  res  integra.   It  is covered by  a  decision  of  the Constitution Bench of this Court in Ch.  Tika Ramji & Others etc.   vs.   The State of Uttar Pradesh & Others  (1956  SCR 393).   In  that case, the Constitution Bench was  concerned with the question whether the U.P.  Sugarcane (Regulation of Supply  and  Purchase) Act, 1953 could be said to have  been legally  enacted  by  the Uttar  Pradesh  State  Legislature despite  the operation of the I.D.R.  Act which contained  a declaration  whereby  sugarcane  industry was sought  to  be regulated  by  the  I.D.R.   Act.  Section 18G  of  the  Act referred  to  earlier whereunder there was a possibility  of the  Central Government issuing appropriate control order to occupy  that  field  was  held not to  bar  the  legislative competence  of  the State Legislature to  enact  appropriate provisions  regarding  the  said   industry.   Such  a  mere possibility  of  promulgation of order under Section 18G  of the  I.D.R.   Act  was held not to have occupied  the  field whereby  the  State Legislature could not enact  appropriate statutory  provisions  by exercise of its legislative  power under  Entry 33 of List III.  Bhagwati, J., speaking for the Constitution  Bench, placing reliance on the observations of Sulaiman  J.,  in  the  decision of  the  Federal  Court  in Shyamakant  Lal  vs.  Rambhajan Singh [(1939)  F.C.R.   188, 212]  extracted,  with approval, the following passage  from the  said  decision  at page 427 of the report  as  under  : "When  the  question is whether a Provincial legislation  is repugnant to an existing Indian law, the onus of showing its repugnancy and the extent to which it is repugnant should be on  the  party attacking its validity.  There ought to be  a presumption  in  favour  of its validity, and  every  effort should  be made to reconcile them and construe both so as to avoid  their being repugnant to each other;  and care should be  taken  to see whether the two do not really  operate  in different  fields without encroachment.  Further, repugnancy must  exist in fact, and not depend merely on a possibility. Their Lordships can discover no adequate grounds for holding that  there  exists  repugnancy  between  the  two  laws  in districts  of the Province of Ontario where the prohibitions of  the  Canadian  Act are not and may never  be  in  force: (Attorney-General  for Ontario v.  Attorney-General for  the Dominion)"

     Thereafter  the following pertinent observations  were made  by Bhagwati, J., speaking for the Constitution Bench : "In   the  instant  case,  there  is  no  question  of   any inconsistency  in  the actual terms of the Acts  enacted  by Parliament  and  the impugned Act.  The only questions  that arise  are  whether  Parliament and  the  State  Legislature sought  to exercise their powers over the same subjectmatter or  whether the laws enacted by Parliament were intended  to

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be  a complete exhaustive code or, in other words, expressly or impliedly evinced an intention to cover the whole field."

     and  thereafter  Section 18-G of the I.D.R.   Act  was considered  and it was held as under :  "Even assuming  that sugarcane  was an article or class of articles relatable  to the sugar industry within the meaning of Section 18-G of Act LXV  of 1951, it is to be noted that no order was issued  by the  Central Government in exercise of the powers vested  in it  under  that section and no question of repugnancy  could ever  arise because, as he has noted above, repugnancy  must exist  in fact and not depend merely on a possibility.   The possibility  of an order under Section 18-G being issued  by the  Central Government would not be enough.  The  existence of  such an order would be the essential prerequisite before any repugnancy could ever arise."

     The  aforesaid  decision  of the  Constitution  Bench, therefore,  clearly repels the submission of learned  senior counsel  Shri Shanti Bhushan that merely because there is  a possibility  of issuance of a Control Order under Section 30 of the Tea Act by the Central Government, the field is fully occupied  in  connection  with fixation of the  maximum  and minimum  prices of packed tea to be charged by  manufacturer or  dealer,  wholesale or retail or regulating  the  maximum quantity of packed tea to be sold to any person.  In a later decision  of the Bench of two learned judges to which one of us,  Sujata V.  Manohar J., was a party, the very same  view has  been reiterated relying upon the aforesaid decision  in Ch.   Tika  Ramji  & Others etc.  vs.  The  State  of  Uttar Pradesh  & Others (supra).  The latter decision is  rendered in the case of SIEL Ltd.  and Others vs.  Union of India and Others  (supra),  as noted earlier.  It must, therefore,  be held  that mere possibility of issuance of any future  order under  Section  30  (1)  of  the  Tea  Act  by  the  Central Government,  in the absence of any existing express order to that  effect,  cannot  be said to have  occupied  the  field regarding purchase and sale of manufactured tea and fixation of maximum or minimum price thereof, or the location of such sales.   These  topics  cannot be said  to  be  legitimately covered  by the Tea Act.  Hence, the field is wide open  for the State Legislature to exercise its concurrent legislative power  under  Entry 33 of List III for  effectively  dealing with these matters.  This is precisely what has been done by the  State  Legislature  by enacting the  Market  Act.   The insertion  of item pertaining to Tea (leaf and dust) in  the Schedule,  therefore,  cannot be said to be an  unauthorised exercise   on  the  part  of   the  delegate  of  the  State Legislature,   namely,  the  State   Government  which   has exercised  its  power  under Section 39 of the  Market  Act. Before  parting  with the discussion on the Tea Act,  it  is also  necessary to keep in view the history of tea  industry in  India.   It  is apparent that the  Tea  Committee  1934, Indian Tea Control Act, 1938 and Central Tea Board Act, 1949 had  been made with a view to control export of tea and  tea cultivation.   The Tea Act, 1953 was enacted to provide  for taking  several functions of licensing and vesting it in the Board  and to exercise (1) control over tea cultivation  and (2)  control  over  the export of tea and  tea  seeds.   The preamble  of  the Act states that it is intended to  provide for  the control by the Union of the tea industry, including the control, in pursuance of the International Agreement, of the  cultivation  of  tea  and  export  of  tea.   Thus  the objective  of the Tea Act is focussed on tea cultivation/tea export and establishment of tea manufacturing plants.  It is

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quite  different  from that of the Market Act, 1960 made  by the  Bihar Legislature.  The Tea Act has no concern with the establishment  of  markets  in the State of Bihar  or  other States  wherein  packed  tea could be sold in  wholesale  or retail  markets  so  as  to   ultimately  reach  the  Indian consumers.   That  takes  us  to the  consideration  of  the Control  Orders issued by the Central Government in exercise of  its  power  under Section 30, sub-sections (3)  and  (5) thereof.   One  such  order  is the  Tea  (Distribution  and Export)  Control Order, 1957 which pertains to licensing  of the  distributors  and exporters of tea.  Clause 3  requires distributors carrying on the business of distributing tea to have  a licence under this order.  The export of tea is  not touched  by the Market Act as it has nothing to do with  the export  of  tea to other countries.  Clause 9 says that  the licence  given  is personal and nontransferable.  Clause  10 requires  the licensee to pack and mark containers of tea in the  manner mentioned therein.  The proviso is  significant. According  to it, Clause 10 (c) does not apply to containers containing not more than 20 Kg.  net or such other weight as to  make  it  package  tea for the purpose  of  the  Central Excises  and  Salt  Act, 1944.  Clause 11 provides  that  no distributor  shall  distribute  tea for sale  which  is  not packed   and  marketed  as  per   Clause  10  and  which  is adulterated  or  which  makes  false  claim  for  such  tea. Thereafter,   are  noted   various  statutory  requirements. Firstly, the "distributor" contemplated by the 1957 Order is a  distributor  in the commercial sense who as principal  or agent  distributes  tea  to the wholesaler.   Secondly,  the distribution  controlled  is linked with  export.   Thirdly, since distribution is clubbed with export, it can at best be said  to be distribution which is being made in similar bulk as  exports.   Fourthly,  Form A provides  for  granting  of licence  to  carry  on  business   in  manufactured  tea  as distributors  at  the places mentioned in  the  application. While  Form  B  deals with licence to carry on  business  in manufactured  tea as distributor/exporter of tea.  It  thus, becomes  at  once  clear that this Control  Order  does  not command licencee to carry on distribution of tea for sale at any  particular  place/market.  The aforesaid Control  Order has  nothing  to  do with the establishment of  markets  for selling   packed  tea.   The   requirement  of  packing  and marketing is again not contemplated by the Market Act, 1960. Hence,  it is difficult to appreciate how this Control Order has occupied the field of regulation of sale and purchase of packed  tea  in market areas.  The next Order on which  Shri Shanti  Bhushan,  learned senior counsel for the  appellant, strongly relied was the Tea (Marketing) Control Order, 1984. The  said Order was promulgated by the Central Government in exercise  of  its  power under subsections (3)  and  (5)  of Section  30 of the Tea Act, 1953.  It pertains to  licensing of  the distributors and exporters.  A mere look at the said Order  shows that it does not provide for any regulation  of sale  and purchase of tea in the markets in different States in India.  Clause 3 requires registration of manufacturer of tea and such manufacturer has to submit monthly return under Clause 5 in Form C.  Clauses 6 and 7 pertain to Organiser of Tea  Auction and Broker in Tea Auction.  Clause 14  declares that  the  licence is personal and non-transferable.   These persons are to maintain records as per Clause 16.  Clause 17 directs  the manufacturer to sell not less than 75% or  such higher  percentage,  as  specified  by  the  Board,  of  tea manufactured by him in a year through public tea auctions in India  held under the control of organisers of tea  auction. Clause  19 exempts tea marketed directly by the manufacturer

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as packet tea, instant tea, tea bags, aromatic tea and green tea  from computation of the total production under para 17. Firstly,  1984 Order deals with manufacturers and organisers of  tea  auction  and brokers of tea auction and  its  basic concern  is to require them to have licences in the form  of authority.   It  is  obvious  that even  this  Order  cannot advance the case of the appellant.  The next Order which was pressed in service was the Tea Warehouses (Licensing) Order, 1989.   The  said order was also promulgated by the  Central Government   in   exercise  of   the  power   conferred   by sub-sections (3) and (5) of Section 30 of the Tea Act, 1953. A mere look at the salient features of 1989 Order shows that it  has  not covered the field tried to be occupied  by  the Market  Act.   The public tea auctions contemplated by  1984 Order  are  those which are held under Clause 3 of  the  Tea Warehouses  (Licensing)  Order, 1989.  In fact Clause  14(7) prohibits  the  warehouse  owner   from  entering  into  any transaction  with  the manufacturer/broker/organiser of  tea auction unless they have licences under the 1984 Order.  The public tea auctions are held in specified areas in Calcutta, Siliguri,  Guwahati, Cochin, Coimbatore and Amritsar.  Thus, the 1984 Order and the Tea Warehouses (Licensing) Order 1989 are basically concerned with the public tea auctions and the licensing of manufacturer/broker/organiser of public auction and  warehouses  with  regard  to   holding  of  public  tea auctions.   The  warehouse is to be governed as  per  Clause 10(7)  of the 1989 Order.  This Order does not apply to  the storage  godowns in the markets established under the Market Act,  1960.  But assuming it applies, the only effect  would be  that  the  storage  places  in  markets  should  be   in conformity  with  Clause  10(7).   As far  as  obtaining  of licence is concerned, it has to be obtained by the warehouse owner  who carries on the activities of storing, blending or packing  of tea in the warehouse.  Once the manufacturer  or trader  takes space from the Market Committee in the  godown in  the  Market Yard, then he would be the  warehouse  owner under Clause 2(1) of the 1989 Order and would have to take a licence,  as authority, from the Tea Board.  Both under  the 1984  Order and 1989 Order, there is no requirement to carry on  the  business  at any  particular  place/market.   These Orders  do  not  concern themselves  with  establishment  of market or fixing place of business.  The aforesaid Orders on which  reliance  was placed by learned senior  counsel  Shri Shanti  Bhushan indicate that the Central Government in  its wisdom did not think it fit to issue any Order under Section 30,  sub-section (1), clauses (a) & (b) and, therefore, kept the field wide open in connection with the topics covered by the  said provisions of Section 30 for the State Governments to  exercise  their  legislative powers and  enact  suitable legislations  under  Entry 33 of the Concurrent List III  of the Seventh Schedule of the Constitution.  Our attention was then  invited by Shri Shanti Bhushan, learned senior counsel for  the appellant, to the Tea Waste (Control) Order,  1959. Even  this  order is issued by the Central Government  under sub-sections  (3)  and  (5)  of Section  30  The  Tea  Waste (Control)  Order, 1959 applies only to tea waste as  defined in  Clause 2 (f).  Thereunder a person selling/offering  for sale/buying/holding  any  stock in tea waste is required  to have  licence.   (Clauses 3,4,5, and 6).  Clause 9  provides that  licence is not transferable.  Clause 13 provides  that licensee  shall  have in possession tea waste not  exceeding that  which may be fixed by the licensing authority.   Under Clause  19A false declaration is prohibited.  On a  conjoint reading  of the aforesaid statutory Orders issued under  the Tea  Act and the relevant scheme of the Tea Act, it  becomes

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at  once  clear  that the provisions regarding  fixation  of appropriate  price  at which blended and packed tea  can  be sold  to wholesalers in any established market or particular place  at  which sale transactions of such manufactured  tea between the manufacturers on the one hand and the traders or other  wholesale producers/dealers on the other are  outside the sweep either of the Tea Act or of the relevant statutory Orders  framed  under Section 30 by the  Central  Government under  the  very  same  Act.  The  places  at  which  public auctions  can be held in connection with sale of roasted tea leaves  to be purchased by manufacturers like the  appellant are  the  earmarked  six places indicated in 1984  and  1989 Orders.   These  auctions have nothing to do with the  later sales of manufactured blended tea by such auction purchasers of  tea  leaves, who manufacture packed tea by blending  and packing  roasted tea leaves in their factories.  The  public auctions  as contemplated by these Orders, therefore,  serve out  their  purpose once the manufacturers of  blended  tea, like  the appellants, purchase roasted tea leaves in  public auctions.   Once  such  purchased  tea  leaves  are  further processed  after blending and packed in suitable receptacles for  sale  in  local  markets   the  stage  is  reached  for regulating  such  sale transactions by manufacturers of  tea when  they  are subjected to further auctions to be held  in the  market  areas  wherein the  licensed  distributors  and manufacturers  of  tea can be subjected to the procedure  of Section  15,  sub-section (2) of the Market Act.  So far  as these  later transactions are concerned, neither the Tea Act nor  any  of the aforesaid Orders can hold the field.   Such sale  transactions  of manufactured tea in packed  condition will,  therefore,  necessarily  have to be governed  by  the provisions  of the Market Act applicable to the area wherein such sale transactions in favour of wholesalers or retailers are  effected by the stockists of the appellant operating in the  market  areas concerned.  It is also pertinent to  note that  Section  15 of the Market Act gets attracted  to  such transactions  of sale.  It is not possible to agree with the contention  of  learned senior counsel Shri  Shanti  Bhushan that once the retail prices are fixed by the appellant there is  no necessity of auctioning this tea in packed  condition as  per Section 15 sub-section 2 of the Market Act.  It  has to  be kept in view that under the relevant Orders issued by the  Central Government under Section 30 of the Tea Act,  as noted  earlier,  the  purchasers  of tea  have  also  to  be licensed.   Such licensed purchasers can bid at the auctions to  be held as per Section 15, sub-section (2) of the Market Act for purchasing such packed tea.  At that stage, there is no  inconsistency  or  conflict between the  earlier  public auction  held  under  the relevant statutory  Orders  issued under  Section  30  of the Tea Act  concerning  roasted  tea leaves  and  the auction of packed and processed tea by  the appellant  selling  such  commodities in  the  market  areas through  their  stockists to wholesale dealers  and  traders operating  in  the  market  area  and  the  market  yard  or sub-market yards concerned.  In this connection, we may note one  other submission of learned senior counsel Shri  Shanti Bhushan  for the appellant.  He submitted that for almost 16 years  tea  was not a scheduled item governed by the  Market Act.  In fact, the Bihar Legislature did not think it fit to include  Tea  (leaf and dust) as a scheduled item  from  the inception  but it is only the delegate, namely, the State of Bihar  in exercise of its power under Section 39 thought  it fit  to  introduce Tea (leaf and dust) as a scheduled  item. The  procedure  of Sections 3 and 4 has not to  be  followed while undertaking this exercise.  In this connection, it was

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submitted  that  no reasonable person could have  undertaken such  an exercise as tea was already a controlled  commodity under  the Tea Act and also governed by the relevant  Orders issued  thereunder.   As  we have seen  earlier,  under  the relevant  provisions of the Tea Act and the operative Orders promulgated  thereunder  the  Central  Government  has  left untouched the field of regulation of prices and the location of  market places where such packed tea could be sold to the wholesale dealers or even to the retailers.  When that field was  wide  open, the State Government in its  wisdom,  could legitimately  try to cover the filed by issuing  appropriate Orders  under  Section  39 of the Act.  It cannot  be  said, therefore,  that such an exercise was totally ultra vires or amounted  to  non-application  of mind.  In fact,  what  the Central  Government  should  have  done and did  not  do  by issuing  appropriate Orders under Section 30, subsection (1) Clauses  (a) & (b) of the Tea Act could legitimately be done by  the  State  Government.   It was not  required  to  wait indefinitely  till the Central Government could find time to issue  such  an  Order.   Shri   Shanti  Bhushan,  in   this connection, further submitted that if that is so, then if in future  the  Central Government wakes up and issues such  an Order,  would  the  then  existing  Entry  in  the  Schedule regarding  tea get superseded or become inoperative ?   This is a hypothetical question raised which does not require any answer  obviously at this stage.  As and when in future such an  eventuality occurs, then the question of continuation of regulation  of  sale and purchase transactions of Tea  (leaf and dust) by retaining this item in the Schedule may have to be  examined.   But  as the statutory  provisions  stand  at present,  in  the absence of any such existing  Order  under Section  30 sub-section (1) Clauses (a) & (b) by the Central Government,  the field remains wide open and at least it was definitely  open  when the State Government  introduced  the Entry  of Tea (leaf and dust) in the Schedule to the  Market Act  in 1976.  This exercise, by no stretch of  imagination, could  be  said to be unauthorised, illegal or amounting  to non-application  of mind.  The second contention, therefore, is  answered in negative against the appellant and in favour of  the  respondent.  That takes us to the consideration  of contention  no.3  POINT NO.  3 :  Once it is held  that  the Market Act covers the transactions of sale of packed blended tea  in  sealed packets and receptacles by  the  appellant’s stockist in the market areas concerned especially when these transactions  take  place in the market yard  or  sub-market yards  as  laid down by Section 15 of the Act which  remains fully  operative  to  cover such transactions, there  is  no escape  from the conclusion that the entire  infrastructural facilities  for regulation of such sale transactions as made available  by the market committee concerned would enure for the  benefit  of sellers of such packed blended tea.  It  is also  pertinent  to  note that so far as  the  appellant  is concerned, all that is required of it is to take licence for selling  packed  tea in market yards, sub-market yards  from the  market  committee  concerned.   The  appellant  is  not required  to  bear  the burden of any market  fee.   As  per Section  27  of the Act, the burden of market fee is  to  be borne  by  the  purchasers of such packed tea,  namely,  the wholesale  dealers licensed to purchase such tea as per  the Central  Orders mentioned earlier.  Such purchasers have not brought  in challenge levy of market fee on them.  So far as the  appellant  is  concerned, once its stockist  sells  the packed tea in the market yard or sub-market yards maintained by   the  market  committee,   the  entire   infrastructural facilities made available by the market committee to all the

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purchasers and sellers of agricultural produce in the market yard,   would   automatically  become   available   to   the appellant’s stockist who sells its goods, namely, packed tea in  the market yard or sub-market yards concerned.  In  this connection,   it   has  also  to  be  kept  in   view   that establishment  of markets and maintenance thereof is a topic of  legislation  squarely covered by Entry 28 of List II  of the  Seventh  Schedule.  For maintaining such  markets,  the market  committees obviously have to spend large amounts for providing  necessary infrastructure for the benefit of those who  use  such  established markets.   In  this  connection, Section  30  of  the Market Act, as noted  earlier,  becomes relevant  for our consideration.  Amongst others, the Market Committee  Fund has to be utilised under Section 30 for  the following purposes :

     "(i) the acquisition of a site or site for the market;

     (ii) the maintenance and improvement of the market;

     (iii)  the  provision  and   maintenance  of  standard weights;

     (iv)  the construction and repair of buildings  [check posts,  market  gates and other fixtures] necessary for  the purpose  of such market and for the health, convenience  and safety of the persons using it;

     (v) Xxxx xxx xxx

     (vi) Xxxx xxx xxx

     (vii) Xxxx xxx xxx

     (viii)  The  construction, repair and  maintenance  of means  of communication which are useful for the purposes of [regulation, control and] development of a market or for the convenience and safety of the persons using it;

     (viii-a)link  roads connecting the main road from  the villages  in  the  Market  Area   of  the  concerned  market committee  shall  be constructed on priority basis from  the Development Fund to facilitate the farmers to go to and from the villages;]

     (ix)  the  planting and rearing of trees,  and  making arrangements  for providing to the persons and cattle coming to a market and like purposes;

     (x) Xxxxxx xxxxx xxxxx

     (xi) Xxxxx xxxx xxxxx

     (xii) Xxxxx xxxx xxxx"

     All  these  provisions clearly indicate that once  the transaction  of sale or purchase of any agricultural produce is  governed  by  the  Act and once Section 15  of  the  Act applies to such transaction, the entire machinery of the Act would  get  attracted to regulate such transaction  and  the complete infrastructure for which provisions are made by the market  committee including the facilities available at such markets would become available to the purchasers and sellers of  such  commodities  in the market.  For  providing  these

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infrastructural facilities the market committee has to spend from its funds.  This would supply adequate quid pro quo for levying  market fee on the buyers of commodities sold at its market  yard  or  sub-market yard.  It  is,  therefore,  not possible  to  agree with the learned senior counsel for  the appellant  that  there  is  no   quid  pro  quo   underlying transactions  of  sale  of  packed tea  by  the  appellant’s stockist  in the market yard or sub-market yards  maintained by  the  market committee concerned.  The third  contention, therefore,  is  to  be answered in affirmative  against  the appellant  and in favour of the respondent.  Before  parting with  this appeal, it is necessary to briefly deal with  the written  submissions  furnished in support of the appeal  by learned  counsel  after arguments were over and  which  have already been dealt with by us in detail hereinabove.  So far as  the  written submissions filed by the appellant  on  8th May,  1999  are concerned, we may state that to  the  extent they  tried  to  re-iterate what was submitted  earlier  and considered  by  us, will stand repelled in the light of  the detailed  reasons recorded by us earlier in this connection. Processing  of  packed  tea manufactured out of  tea  leaves purchased  by  the  appellant in the auction at  six  places obviously  is not covered by the applicability of the Market Act  in the present case.  All that the Market Act seeks  to cover  is  the  sale transactions pertaining to  packed  tea branded  and marked in accordance with the regulations  made by the Tea Board to the extent these sealed packets are sold by the appellant within the market area.  These transactions of  sale  of packed tea, as discussed by us  earlier,  would squarely attract the applicability of the Market Act as they take  place  within the market area governed by  the  Market Act.   As seen earlier, manufacturing activities  concerning this  packed  tea  has  no  relevance  for  arriving  at  an appropriate  answer to this question.  Contention raised  in para 2 of the written submissions is also besides the point, whether  other  States levy market fee or not is not at  all relevant.   The  Bihar legislation may be a pioneer in  this field.   The  short question is whether the Market  Act  can govern the transaction of sale of packed manufactured tea by the  appellant within the market areas in the State of Bihar ?   So  far  as this question is  concerned,  the  aforesaid contention  can  be  of  no  assistance  to  the  appellant. Contention  in  para 3 of the written submissions about  the basic  object of the Bihar Market Act and whether it  should ensure only the protection to the grower of the agricultural produce  within  the  market  area   stands  repelled  by  a Constitution  Bench  Judgment  of  this  Court  to  which  a detailed reference has been made in the earlier part of this judgment.   Para  4  of the written submissions  deals  with various  statutory provisions of the Tea Act of 1953 and the relevant  Control Orders thereunder.  As discussed  earlier, the  schemes  of the Tea Act and the Control Orders  do  not cover  the  field carved out by the Market Act for  bringing within its sweep transactions of sale of agriculture produce encompassed  by the wider definition thereof under that  Act insofar  as  such produce is sold within the market area  to which the Market Act applies.  It is difficult to appreciate the  contention in para 8 of the written submissions to  the effect  that the State had not applied its mind in  bringing tea  within  the sweep of the Market Act in exercise of  its power  under  Section 39 of the Act.  As discussed  earlier, this  contention is devoid of any substance.  Contention  in para  9  of  the written submissions is also devoid  of  any merit.  It is not the case of the appellant that the sale of manufactured  tea in Bihar markets within the market area of

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the  concerned  market committee requires the  appellant  to bear  the burden of the market fee.  It is obvious, as  seen earlier,  that  charge  of  market fee is on  the  buyer  of branded  tea  and  not  on  the  seller  thereof,  like  the appellant.    The   purchasers  of    branded   market   tea manufactured  by the appellant who purchase the said produce in  market  areas  governed by the Market Act have  made  no grievance  in  this  connection.  Even  otherwise,  as  seen earlier,  once the wide definition of "agricultural produce" as  found  in the Market Act governs such sale  transactions and when Section 15 of the Act covers such transactions, the charge under Section 27 would obviously get settled on these transactions.   As a logical corollary thereof, even if  the appellant  may  have  to act as a collecting agent  for  the market  committee  concerned as per its legal obligation  in given  circumstances,  that by itself cannot  exonerate  it, once  the statutory scheme of the Act covers transactions of sale  of  branded  tea carried out by the appellant  in  the market  area governed by the Market Act.  Contentions  found in para 10 of the written submissions are to be stated to be rejected.   Once  the  sale transactions of packed  tea  are governed  by the sweep of the Market Act, and once such sale transactions  have  to be regulated as per the machinery  of the  Market  Act, on the applicability of Section 15 of  the Act, the entire infrastructure available for regulating such sale  transactions  at the market yard or  sub-market  yards whose  benefit would obviously be available to the appellant cannot entitle the appellant to contend that its fundamental right   under  Article  19(1)(g)  of  the  Constitution   is violated.   To  say  the  least, it would  be  a  reasonable restriction on exercise of such a right.  It is pertinent to note  that  the  appellant has not challenged the  vires  of Section 27 of the Market Act.  It is difficult to appreciate the  submission that compelling the sealed and packed tea to be  brought into the market yard and to be auctioned thereof cannot  be considered to advance the public interest in  any manner.  Public interest obviously gets advanced as the sale transactions  will  get  regulated  by  the  infrastructural machinery at the market yard and sub-market yards concerned, where such transactions take place.  The contention that the Bihar  Act would be unconstitutional cannot be  countenanced for  twin  reasons.   Firstly,  such a  contention  was  not canvassed  either before the High Court or before this Court in  the present proceedings.  Secondly, in any case, on  the applicability  of  the Act once the transaction of  sale  of packed  tea takes place in the market area, it cannot but be said  to be imposing reasonable restriction under Article 19 sub-article  (6) on the appellant’s fundamental right.   The appellant,  as a seller of manufactured tea, has not to bear any  burden of the imposed market fee on sale  transactions. All  that  it  gets is the benefit  of  the  infrastructural facilities  made  available  by  the  market  committee  for regulating  such transactions and if the appellant is likely to get more price for its branded tea by subjecting its sale transactions  to  auction  instead  of  the  said  provision adversely affecting the appellant would, on the contrary, be more beneficial to it.  Maybe, the appellant from commercial point  of  view may not like to charge higher price for  the packed  tea  from its customers but that does not mean  that the  infrastructural facilities made available by the market committees to the appellant to get more price of its branded tea  if  so desired by it can be construed in any way to  be adversely  affecting its commercial business interests.  For obvious reasons, therefore, none of the contentions found in the  written  submissions  can  advance   the  case  of  the

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appellant’s  and  they necessarily have to  stand  repelled. These  were the only contentions canvassed by learned senior counsel  in  support  of the appeal and as  they  fail,  the inevitable  result  is  that this appeal fails and  will  be liable  to be dismissed.  FINAL ORDER :  As a net result  of the  aforesaid  discussion, therefore, the following  orders are  passed  :   1.  SUGAR GROUP  MATTERS:   These  appeals, namely,  Civil  Appeal  Nos.  398  and  399/1977,  234/1995, 8163/1994,  7432/1994, 2632-33/1982, 1282/1995 are  allowed. The  judgments and orders passed by the High Court  impugned in  these  appeals  are set aside.  The  Writ  Petition  No. 1250/1986  filed  by  the   petitioner  will  stand  allowed accordingly  as  detailed  in this judgment subject  to  the riders  mentioned hereinabove.  Civil Appeal Nos.4500-05  of 1992,  so  far as they seek to challenge the levy of  market fee  on  sugar  are  concerned,  will  stand  allowed.   The respective six petitions filed before the High Court dealing with  levy of market fee on sugar will stand allowed.  Civil Appeal arising out of S.L.P.  (C) No.9684 of 1992 will stand allowed  to  the extent Civil Writ Petition No.5974 of  1988 filed  before  the  High  Court deals  with  the  contention regarding  market  fee  on  sugar.  Instead  of  the  relief granted by the High Court limiting to the non-levy of market fee  on  sugar after 2.5.1977, it is directed that  levy  of market  fee  on sugar for the entire period covered  by  the writ  petition  will  be treated to be  unauthorised.   This judgment  will have only prospective operation and will  not affect  past transactions entered into prior to the date  of this judgment.

     2.  WHEAT PRODUCTS LIKE ATTA, MAIDA, SUZI, ETC.  These appeals,  namely, Civil Appeal Nos.  2951, 2952 and 2953  of 1992,  3505  & 3506 of 1992 and 829/1993 are dismissed.   3. VEGETABLE  OIL  MATTERS :  Civil Appeal No.1427 of  1979  is dismissed.  Civil Appeal Nos.4500-05 of 1992, so far as they deal with levy of market fee on Vanaspati Oil are concerned, will  stand  dismissed and the High Courts decision in  all six  writ  petitions  pertaining to levy of  market  fee  on edible oil shall remain confirmed.  Civil Appeal arising out of  S.L.P.   (C) No.9684 of 1992, so far it  challenges  the levy  of  market  fee  on edible oil  is  concerned,  stands dismissed.  The order of the High Court in C.W.J.C.  No.5974 of  1984  concerning the vegetable oil is confirmed and  the writ petition to that extent will stand dismissed.  4.  RICE MILLING  INDUSTRY:   These Civil Appeals arising out of  SLP (C) Nos.3159-60 of 1994 are dismissed.

     5.   MILK AND MILK PRODUCTS This Civil appeal  No.1880 of  1988  is  allowed.  The judgment and order of  the  High Court  are  set aside.  However, the past transactions  will not be reopened and this judgment will have only prospective effect  governing future transactions that are to be entered into  after the date of this judgment.  6.  TEA MATTER  This Civil Appeal No.2532 of 1980 is dismissed.  In the facts and circumstances  of  the  case, there will be no order  as  to costs in all these appeals.