Case: 1. Kommisetty Nammalwar and Company, Guntur, 2. Kommisetty Nammalwar, H. No.14-1-19, Head Post Office Street, Kothapet, Guntur District Vs 1. The Agricultural Market Committee, Tenali, Rep. By Its Secretary, 2. The Director of Marketing, Andhra Pradesh, Hyderabad, 3. The Government of Andhra Pradesh, Rep. By Its Secretary, Agricultural Marketing, Secretariat Building, Hyderabad. High Court of Andhra Pradesh (India)
| Counsel | Rama Rao Ghanta, K. Madhava Reddy |
| Judges | V. V. S. Rao, N. V. Ramana & P. S. Narayana, JJ. |
| Issue | Constitution of India, 1950 - Articles 226, 246; Andhra Pradesh (Agricultural Produce & Livestock) Markets Act, 1966 - Sections 3, 4, 3(3), 4(4), 7(1), 23(1), 12(1), 3(2), 4(1), 2(xv), 2(a), 3(1), 4(5), 22, 4(3)(a), 14, 15, 2(xvi), 19(2); Rajasthan Agricultural Produce Market Act, 1961; U.P. Krishi Utpadan Mandi Adhiniyam Act, 1964; Bihar ... |
| Judgement Date | May 01, 2009 |
| Court | High Court of Andhra Pradesh (India) |
Judgment:
V. V. S. Rao, J., Hyderabad (Special Original Jurisdiction)
Whether 'ghee' is a 'product of livestock', under the provisions of Andhra Pradesh (Agricultural Produce & Livestock) Markets Act, 1966 (the Act, for brevity) and whether Government Notification vide G.O.Ms.No.286, Agriculture & Cooperation (Mktg-1) Department, dated 05.07.1994 notifying among others, 'ghee' as one of the products of livestock for the purpose of regulation of purchase and sale in all notified market areas is not valid? These are the two questions before this Full Bench. The consideration of these two questions involves interpretation of Sections 3 and 4 of the Act. This case, or at least, one question involved in this case, was once decided by a Division Bench of this Court in Gurram Polisetti v Government of Andhra Pradesh, 2000 (4) ALD 253 (DB). The Division Bench judgment was assailed before the Supreme Court in Civil Appeal No.4484 of 2000 (Guntur District Produ.M.A.Co-op Un.Ltd v Agricultural Market Committee). The apex Court set aside the Judgment of this Court and remitted for fresh hearing. Thereafter, petitioners in remanded matters, withdrew those writ petitions with liberty to file fresh writ petition. This writ petition came to be filed thereafter. A learned single Judge, before whom initially matter was listed, referred writ petition to Division Bench. But, learned Chief Justice directed that the matter be heard by a Full Bench.
BRIEF FACT OF THE MATTER
The factual background is not disputed by the parties. In exercise of powers under Section 3(3) of the Act, Government issued Notification vide their order in G.O.Ms.No.2095, dated 29.10.1968 (hereafter called, declaration order), notifying twenty (20) areas for the purpose of the Act in respect of agricultural 'Ghee' is 'clarified butter' obtained through heating process and used as cooking medium or taken as food. produce, livestock and products of livestock (hereafter cumulatively referred to as 'market products') specified in Schedule II thereto. Enumerated under seven (7) groups, like agricultural group, fruit group, vegetable group, fish group, livestock group, poultry group etc, livestock product group was shown as group VI, which includes 'ghee' besides raw hides, raw skins, bones, horn and hoof, and hair and wool. In Guntur District, four notified areas were declared. These are (i) Guntur, Sattenapalli Taluks; (ii) Tenali, Repalli Taluks; (iii) Ongole, Bapatla Taluks; and (iv) Narasaraopet, Vinukonda and Palnad Taluks.
Three years after declaration order, Government of Andhra Pradesh issued G.O.Ms.No. 1066, dated 30.07.1971 (published in A.P. Gazette, 14.10.1971) (hereafter called, market area order), notifying the market area for Guntur and notifying market products, which can be regulated by market committee concerned. Among various items, in this notification, 'ghee' was mentioned at Serial No.9. Similar notification was also issued in respect of Ongole Market Area vide G.O.Ms.No.976, dated 16.07.1971. It appears, Andhra Pradesh Agmark Ghee Packers' Association, made a representation to delete 'ghee' from market area order. This was considered favourably and Government issued order being G.O.Ms.No.448, dated 29.03.1972 (hereafter called, deletion order) deleting 'ghee' from respective market area orders. By reason of deletion order, 'ghee' ceased to be a product of livestock in relation to Guntur and Ongole market areas, which means that market committees of these areas, could no more regulate sale or purchase of ghee nor levy market fee. It may be mentioned that when once an agricultural produce or products of livestock is/are notified, no person shall purchase, sale, store without obtaining a licence granted by the market committee (Section 7) and it shall be competent market committee to levy fees on such product (Section 12). Be that as it may, Government of Andhra Pradesh issued Notification vide their order in G.O.Ms.No.286, Agriculture & Cooperation (Mktg-I) Department, dated 05.07.1994 (hereinafter 'impugned order' or 'revised order'), for the purpose of regulation of market products under Section 4(4) of the Act, by all Agricultural Market Committees (AMCs) in the State. The said notification reads as under.
NOTIFICATION
In exercise of the powers conferred by sub-section (4) of Section 4 of the Andhra Pradesh (Agricultural Produce and Livestock) Markets Act, 1966 (Act 16 of 1966) and in supercession of all the G.Os., issued on the subject of Agricultural Produce, Livestock and products of Livestock and flowers, the Governor of Andhra Pradesh hereby directs that all the notified markets shall regulate the purchase and sale of all the notified agricultural produce, livestock and products of Livestock issued in Schedule-II to the G.O.Ms.No.2095, Food and Agriculture (Agrl.,) Department, dated 29.10.1968 and flowers issued in Schedule to G.O.Ms.No.610, Food and Agriculture Department, dated 21.10.1978 respectively as amended from time to time.
As noticed supra, from the date of deletion order till the issue of impugned order, market fee was not levied on 'ghee' nor traders in ghee were required to obtain licence. After earlier writ petitions were dismissed as withdrawn, Guntur Agricultural Market Committee (GMC), first respondent herein, issued notice, dated 12.02.2007, under Section 7(1) of the Act to petitioner -proprietary concern engaged in ghee business, directing him to obtain licence for doing business in notified area, failure of which would entail in criminal prosecution under Sections 7(1), 12 (1) read with Section 23(1) of the Act.
GROUNDS OF CHALLENGE
Sri Ghanta Rama Rao, learned counsel for petitioner made the following submissions. A reading of definition of 'livestock', in Sections 2(v) and 2(xv) respectively would show that 'ghee' is not a product of livestock as it is not directly extracted from livestock but it is extracted from product of a livestock i.e., butter or cream. Though cows, buffaloes, goats and sheep are defined as livestock, unless and until a product is directly derived from the livestock, it cannot be treated as a product of livestock. There ought to be direct link between the livestock and product of livestock and a further extraction from the product of livestock cannot be treated as a product of livestock for the purpose of the Act. Insofar as the second question is concerned, learned counsel submits that the impugned order, which is of general nature was issued without application of mind and a general notification without there being separate notification with respect to each notified market area under Section 4(4) for the purpose of the Act does not enable a market committee to regulate a market product or to levy market fees. Such notification for each AMC can only be issued after complying with the conditions precedent contemplated under Sections 3(2), 4(1) and 4(3) of the Act. Every one of these steps or conditions are indispensable and no notification under Section 4(4) of the Act in respect of AMC can be issued without first establishing market within the notified area and providing facilities in such market for carrying business in a market product. Alternatively, at all times unless and until facilities are provided for marketing ghee, GMC cannot regulate sale, purchase or storage of 'ghee'. Learned counsel relied on decisions of this Court as well as Supreme Court to which a reference is made at appropriate place.
Respondents' Contentions
Learned Government Pleader for Cooperation, Agriculture and Marketing and learned standing counsel for Guntur Agricultural Market Committee submit that there is no bar for the Government to issue general notification under Section 4(4) of the Act superseding all earlier marketwise notifications in respect of existing notified areas. When such power is exercised, all market committees can only regulate the sale and purchase of those notified market products and every time such market products are deleted or included for the purpose of regulation, there is no necessity to issue separate marketwise notification. Pointing out the scheme of Sections 3 and 4 of the Act, they would urge that inviting objections at the stage of Sections 4(1), 4(3) and 4(4) of the Act, compatible with principles of natural justice is not warranted nor called for within the scope of the provisions of the Act. According to them, Sections 3(3) and 4(4) of the Act would operate in different spheres and serve different purposes. They submit that Notification issued under these provisions is a one-time exercise of declaring notified areas or notified market area and every time market products are varied, there is no necessity to invite objections. They submit that when legislature specifically does not contemplate procedure as envisaged under Section 3(2) of the Act with reference to exercise of power under Sections 4(1), 4(3) and 4(4) of the Act, the Court cannot read any such procedure into the Act. They point out that though in respect of Ongole and Guntur Market Committees, deletion order was issued in respect of other market areas, 1968 declaration order issued remained intact and 'ghee' was never deleted from its Schedule II. Deriving assistance from Section 13 of Andhra Pradesh General Clauses Act, 1891, they contend that the power conferred under Section 4(4) of the Act includes power to include or exclude from list of products for the purpose of regulation without resorting to procedure contemplated under Section 4(3) of the Act. Lastly, they would urge that levy of market fee on a notified market product is not subject to quid pro quo and therefore, the petitioner cannot press the same for invalidating the impugned Government Order. They also relied on various authorities. A reference is made to these at appropriate place.
IN RE POINT NO. 1
'Ghee' is not defined in the Act. It can be regulated under the Act if it can fall within the definition of 'notified...
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