Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 14184-14185 of 2015, Judgment Date: Dec 09, 2015

                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                         CIVIL APPELLATE JURISDICTION

                    CIVIL APPEAL NOS. 14184-14185 OF 2015
               (Arising out of SLP (C) Nos.5013-5014 of 2015)


M/S GUJARAT AMBUJA EXPORTS LTD & ANR.                                …APPELLANTS

                                     Vs.

STATE OF UTTARAKHAND & ORS.                                       ...RESPONDENTS

                                     WITH

                    CIVIL APPEAL NOS. 14186-14187 OF 2015
                (Arising out of SLP(C) Nos.5732-5733 of 2015)


                   CIVIL APPEAL NOS. 14188-14190  OF 2015
                (Arising out of SLP(C) Nos.5754-5756 of 2015)


                    CIVIL APPEAL NOS. 14191-14194 OF 2015
               (Arising out of SLP (C) Nos. 6828-6831 of 2015)

                       CIVIL APPEAL NO. 14195 OF 2015
                  (Arising out of SLP (C) No. 7414 of 2015)

                   CIVIL APPEAL NOS. 14196-14198   OF 2015
              (Arising out of SLP (C) Nos. 12452-12454 of 2015)

                    CIVIL APPEAL NOS. 14199-14209 OF 2015
              (Arising out of SLP (C) Nos. 12462-12472 of 2015)

                   CIVIL APPEAL NOS. 14210-14214  OF 2015
              (Arising out of SLP (C) Nos. 12455-12459 of 2015)

                    CIVIL APPEAL NOS. 14215-14216 OF 2015
              (Arising out of SLP (C) Nos. 12473-12474 of 2015)

                    CIVIL APPEAL NOS. 14217-14218 OF 2015
               (Arising out of SLP (C) Nos.8721-8722 of 2015)

                       CIVIL APPEAL NO. 14219 OF 2015
                  (Arising out of SLP (C) No. 8859 of 2015)

                       CIVIL APPEAL NO. 14220 OF 2015
                 (Arising out of SLP (C) No. 15474 of 2015)

                       CIVIL APPEAL NO. 14221 OF 2015
                 (Arising out of SLP (C) No. 15479 of 2015)

                   CIVIL APPEAL NOS. 14222-14234  OF 2015
              (Arising out of SLP (C) Nos. 15480-15492 of 2015)

                    CIVIL APPEAL NOS. 14235-14237 OF 2015
              (Arising out of SLP (C) Nos. 7701- 7704 of 2015)

                       CIVIL APPEAL NO. 14238 OF 2015
                 (Arising out of SLP (C) No. 15083 of 2015)

                    CIVIL APPEAL NOS. 14239-14240 OF 2015
              (Arising out of SLP (C) Nos. 15471-15472 of 2015)

                       CIVIL APPEAL NO. 14241 OF 2015
                 (Arising out of SLP (C) No. 20533 of 2015)

                       CIVIL APPEAL NO. 14242 OF 2015
                 (Arising out of SLP (C) No. 22134 of 2015)

                    CIVIL APPEAL NOS. 14243-14246 OF 2015
              (Arising out of SLP (C) Nos. 22130-22133 of 2015)

                                     AND

                       CIVIL APPEAL NO. 14247 OF 2015
                 (Arising out of SLP (C) No. 26494 of 2015)

                                J U D G M E N T

V. GOPALA GOWDA, J.



    Leave granted in all the Special Leave Petitions.



The present appeals arise out of the  common  impugned  judgment  and  order
dated 16.12.2014 passed in Special  Appeal  No.  384  of  2014  and  Special
Appeal No. 75 of 2013 along with a batch of other  Special  Appeals  by  the
High Court of Uttarakhand, whereby the High Court  dismissed  the  challenge
to the validity of Section 27(c) (iii) and 27(c)  (iv)  of  the  Uttarakhand
Agricultural Produce Marketing (Development and Regulation)  Act,  2011  and
upheld the validity of the same.



The brief facts of the case required by us to  appreciate  the  rival  legal
contentions advanced on behalf of the parties are stated here under:

The State legislature of Uttarakhand enacted  the  Uttarakhand  Agricultural
Produce  Marketing  (Development  and  Regulation)  Act,  2011  (hereinafter
referred to as  “the  Act”),  which  came  into  force  on  01.11.2011.  The
preamble of the Act reads as under:

“An  Act  to  provide  for  the  effective  regulation   in   marketing   of
agricultural produce, establishment and development  of  proper  and  modern
marketing system, promotion  of  agricultural  processing  and  agricultural
export, superintendence and control of markets in the State  of  Uttarakhand
and for the matters connected there with or incidental thereto.”



Section 27(c)(iii) of the Act, provides for the  levy  of  market  fees  and
development cess, which reads as follows:

“any such agricultural produce, which reaches any Market area of  the  State
for sale, storage, processing or transaction from any other State or out  of
Country for the first time it shall be registered as ‘First Arrival’ and  on
such produce, Market fee and Development cess shall be payable”



Consequently, the “Mandi Samities” served letters  of  notice-cum-demand  on
the appellants herein. The appellants,  who  claimed  to  be  manufacturers,
filed Writ Petitions before the High Court, challenging the demand  made  by
Mandi Samities for payment of “market  fee”  for  the  agricultural  produce
which the appellants brought into the market area. The  principal  challenge
was mounted on the ground that market fee is not liable  to  be  charged  on
their agricultural produce for the reason that, firstly, there  is  no  sale
and purchase of the goods in the market area and,  secondly,  it  cannot  be
charged under Section 27(c)(iii) for the  reason  that  there  is  no  sale,
storage, processing or transaction of this agricultural  produce.  The  High
Court rejected the challenge to the  legislative  competence  of  the  State
legislature, holding that:

“The pith and substance here would be the market area of  Uttarakhand  which
is admitted and the product which is in question  an  agricultural  produce.
These two essential ingredients being  met,  the  challenge  to  legislative
competence does not survive.”



The High Court held that the main thrust of the argument of  the  appellants
was that a market fee can only be charged if there is a  sale  and  purchase
involved in the agricultural produce and even where there  is  no  sale  and
purchase of the agricultural produce, the “market fee”  in  that  event  can
only be charged if the goods are bought for  specified  purposes  alone,  as
provided under Section 27(c)(iii) of the Act, otherwise not.   However,  the
Writ Petitions were allowed to the extent that the  demand  notices  against
them were quashed with the observation that the  appellants  herein  brought
the agricultural produce into the market area for manufacturing  it  into  a
finished product. The main intention of the appellants was not to store  the
agricultural produce but to convert  it  into  another  product.  Thus,  the
storing of the product was only for incidental  purposes  and  not  for  the
purposes of business.



Subsequently, vide Notification  dated  03.01.2013,  the  State  Legislature
enacted the Uttarakhand  Agricultural  Produce  Marketing  (Development  and
Regulation) (Amendment)  Act,  2012.  Section  1(2)  of  the  Amendment  Act
provides that the said Act shall be deemed to  have  come  into  force  with
effect from 01.11.2011. Amongst other provisions, Section 27(c)(iii) of  the
Act was amended by the said Amendment. The amended Section 27(c)(iii)  reads
as under:

“any such agricultural produce, which arrives in  any  Market  area  of  the
State  for  sale,  storage,  processing,manufacturing,transaction  or  other
commercial purposes from any other State or out of  Country  for  the  first
time it shall be registered  as  “Primary  Arrival”  and  on  such  produce,
Market fee and Development cess shall be payable.”
       (emphasis laid by this Court)

Subsequently, the appellants were served another notice through  the  Office
of the ‘Krishi Utpadan Mandi Samiti, Kiccha’, on the  basis  of  which  they
were required to ensure that the payment of Mandi fee  or  development  cess
be made in the office of the Samiti according to the amended Act, 2012.



Aggrieved, the appellants filed Writ Petitions  before  the  High  Court  of
Uttarakhand challenging the constitutional validity of  the  Amendment  Act,
2012. The High Court in its judgment and  order  dated  10.07.2014  observed
that the earlier bunch of writ petitions were allowed  on  a  limited  point
that the  State Legislature had not included the word “manufacture”  in  the
charging Section, and that by the impugned Amendment therein, the  word  had
been added, albeit retrospectively. Thus, the grounds which  were  available
to the appellants in the earlier petition were no longer available now.  The
validity of the Act and the notice-cum-demand were upheld.



Aggrieved by the order of the  High  Court,  the  appellants  filed  Special
Appeal before Division Bench of the High Court. The Division Bench  examined
the provisions of the Act and came to the conclusion that the appeals  filed
by the appellants are devoid of merit. The Court observed as under:

“…Having regard to the provisions contained  in  the  impugned  Legislation,
there can be no doubt that the Legislature has intended levy of market  fee/
cess on agricultural produce brought into the market area  for  the  purpose
of manufacturing, inter alia.”



On the issue of legislative  competence,  the  Division  Bench  held,  inter
alia, as under:

“The transaction of  bringing  the  agricultural  produce,  be  it  for  the
purpose of manufacture inter alia, is  what  attracts  the  levy  of  market
fee/cess. We would think that this is  a  separable  transaction,  which  is
well within the province of the State Legislature and the  powers  available
to it in Entry 28, read with Entry 66, of List  II.  Entry  28  of  List  II
provides for “markets”………In the market, may  be,  what  is  intended  to  be
regulated is sale and purchase; but, as already noted, the  markets  are  to
be developed and regulated.”



The order of the High Court dated 10.07.2014, passed by the  learned  single
Judge was upheld. Hence, the present appeals.

We have heard the learned senior counsel for both the parties. On the  basis
of the factual evidence on record produced before us, the  circumstances  of
the case and also in the light of the rival legal contentions urged  by  the
learned senior counsel for both the parties,  we  have  broadly  framed  the
following points which require our attention and consideration:-

Whether the State Government of Uttarakhand has the  legislative  competence
to enact the impugned provisions?

What Order?


Answer to Point 1

Mr. Dushyant Dave,  learned  senior  counsel  appearing  on  behalf  of  the
appellants contends that the Amendment is ultra vires the  Constitution,  as
the same is not supported by the relevant entry  in  the  Constitution.  The
learned senior counsel contends that the relevant entry covering  the  field
in the instant case is Entry 28 of List  II  of  the  7th  Schedule  of  the
Constitution of India, which reads as under:
            “28. Markets and Fairs.”


The  learned  senior  counsel  places  reliance  on  the   judgment   of   a
Constitution Bench of this Court in the case of  ITC  Ltd.  v.  Agricultural
Produce Market Committee[1], wherein it was held, inter alia, as under:
“128. If 'industry' does not include 'markets and fairs' it is important  to
define what markets and fairs connote. ’Market' may strictly be  defined  as
"the meeting or congregating together of people for the  purchase  and  sale
of provisions or livestock, publicly exposed, at a fixed time and place".  A
'fair' has been judicially defined as meaning  'a  periodical  concourse  of
buyers and sellers in a place generally  for  sale  and  purchase  .....  at
times or on occasion ordained by custom.  The  distinction  between  markets
and fairs appears to lie in the periodicity viz. while a  market  may  be  a
regular or permanent place of business; a fair is an  intermittent  one.  At
common law, fairs and markets were also  franchises  or  rights  to  hold  a
concourse of buyers and sellers to dispose of the commodities in respect  of
which the franchise is given. This included the right to levy a toll or  sum
payable by the buyer upon sales of articles in a market. The sense in  which
the words has been used in Entry 28 appears to cover  not  only  such  right
but the market place itself including the concourse of buyers  and  sellers'
and the regulation of all these.”



The learned senior counsel contends that this means  that  under  Entry  28,
power to legislate includes to legislate on  the  ancillary  powers  in  the
Act. The learned senior counsel further placed reliance on the  preamble  of
the Act which has been quoted in an earlier part of the judgment.

The learned senior counsel contends that the sole object of the  Act  is  to
protect the farmer and to see that the agricultural produce is  sold  either
in the market area or market yard. Further, what is contemplated in the  Act
is the sale of the goods covered in the State alone  and  not  sale  of  the
goods which takes place outside the State.

On the issue of legislative competence, the learned senior counsel  contends
that  the State exceeded  its  legislative  competence  while  enacting  the
aforesaid impugned provisions in the  Amendment  Act  by  going  beyond  the
scope of Entry 28 read with Entry 66 of List II of the Seventh  Schedule  of
the Constitution of India. More so, when  a  law  made  by  the  Parliament,
namely, the  Industries  (Development  and  Regulation)  Act,  1951  already
occupied the said field. The learned senior counsel places reliance  on  the
following paragraphs of the judgment in the case of  ITC  Ltd.  referred  to
supra, which reads as under:


“110. The controversy in this case to a large extent turns  on  the  meaning
of the words "industry" as used in the  three  legislative  lists.  Now  the
power to legislate in respect of all industries has been given  under  Entry
24 of List II to the State Legislatures subject to Entries 7 and 52 of  List
I. Entries 7 and 52 of List I allow Parliament to legislate  in  respect  of
particular 'industries' - namely  such  industries  which  are  declared  by
Parliament by law to be necessary for the defence or for the prosecution  of
war (Entry 7) and industries the control of which by the Union  is  declared
by Parliament by law to be expedient in  the  public  interest  (Entry  52).
Trade and commerce in, and the production supply  and  distribution  of  the
products of such controlled industry have been provided for in Entry  33  of
the Concurrent List wherein both Parliament and the State  Legislatures  are
competent to legislate. A Constitution Bench of this Court in  The  Calcutta
Gas Company (Prop.) Ltd. v. the state of  West  Bengal  has  held  that  the
expression 'industry' in all the three lists must be given the same  meaning
and that since ordinarily industry is in the field of State Legislation  the
word must be construed in the context of the other entries  in  List  II  in
such a manner so that no entry in List II is deprived  of  its  content.  In
other words, the meaning of the word 'industry' is  to  be  determined  with
reference to Entry 24 of List II where the power to legislate  generally  in
respect of industries has been provided. Entries 7 and 52 are entries  which
specify particular industries out of this general pool. The meaning  of  the
word 'industry'  in  these  two  entries,  therefore,  must  necessarily  be
derived from the meaning which may be ascribed to the word in  Entry  24  of
List II.

126. To sum up: the word 'Industry' for the purposes of Entry 52 of  List  I
has been firmly confined by Tika Ramji to  the  process  of  manufacture  or
production only. Subsequent decisions including those of other  Constitution
Benches have re-affirmed that Tika Ramji's case authoritatively defined  the
word 'industry' - to mean the process of manufacture or production and  that
it does  not  include  the  raw  materials  used  in  the  industry  or  the
distribution of the products  of  the  industry.  Given  the  constitutional
framework, and the weight of  judicial  authority  it  is  not  possible  to
accept an argument canvassing  a  wider  meaning  of  the  word  'industry'.
Whatever the word may mean in any other context, it must  be  understood  in
the Constitutional context as meaning 'manufacture or production'.”



The learned senior counsel further placed reliance on the judgment  of  this
Court in the case of State of Orissa v. M.A. Tulloch & Co.[2]  to  elaborate
on the concept of repugnancy, as under:

“……Repugnancy arises when two enactments both within the competence  of  the
two  Legislatures  collide  and  when  the  Constitution  expressly  or   by
necessary implication provides that the enactment  of  one  Legislature  has
superiority over the  other  then  to  extent  of  the  repugnancy  the  one
supersedes the other. But two enactments may  be  repugnant  to  each  other
even though obedience of each of them is  possible  without  disobeying  the
other. The test of two legislations containing contradictory  provisions  is
not,  however,  the  only  criterion  of  repugnancy,  for  if  a  competent
legislature with a superior efficacy expressly or impliedly evinces  by  its
legislation an intention to cover the whole field,  the  enactments  of  the
other legislature whether passed before or after would be overborne  the  on
the ground of repugnance. Where such is the position, the  inconsistency  is
demonstrated not  by  a  detailed  compression  of  provisions  of  the  two
statutes but by the mere existence of the two pieces of legislation………”



The learned senior counsel further  placed  reliance  on  the  case  of  The
Hingir-Rampur Coal Co. Ltd. v. The State of Orissa[3], the relevant  portion
of which is quoted as under:

“……Before we deal with  this  question  it  is  necessary  to  consider  the
difference between the concept of tax and that of a fee. The neat and  terse
definition of tax which has been given  by  Latham,  C.J.,  in  Matthews  v.
Chicory Marketing Board (1938) 60 C.L.R. 263 is often cited as a classic  on
this subject. "A tax", said Latham,  C.J.,  "is  a  compulsory  exaction  of
money by public authority for public purposes enforceable  by  law,  and  is
not payment for services rendered". In bringing out the  essential  features
of a tax this definition also assists in distinguishing a tax  from  a  fee.
It is true that between a tax and a fee  there  is  no  generic  difference.
Both are compulsory exactions of money by public authorities; but whereas  a
tax is imposed for public purposes and is not, and need  not,  be  supported
by any consideration  of  service  rendered  in  return,  a  fee  is  levied
essentially for services rendered and as such there is an  element  of  quid
pro quo between the person who pays the fee and the public  authority  which
imposes it. If specific services are rendered to a specific  area  or  to  a
specific class of persons or trade or business in any local area, and  as  a
condition precedent for the said services or in  return  for  them  cess  is
levied against the said area or the  said  class  of  persons  or  trade  or
business the cess is distinguishable from a tax and is described as  a  fee.
Tax recovered by public authority  invariably  goes  into  the  consolidated
fund which ultimately is utilised for all public purposes,  whereas  a  cess
levied by way of fee is not intended to be, and does not become, a  part  of
the consolidated fund. It is earmarked and set  apart  for  the  purpose  of
services  for  which  it  is  levied.  There  is,  however,  an  element  of
compulsion in the imposition of both  tax  and  fee.  When  the  Legislature
decides to render a specific  service  to  any  area  or  to  any  class  of
persons, it is not open to the said area or to the said class of persons  to
plead that they do not  want  the  service  and  therefore  they  should  be
exempted from the payment of the cess. Though there is an  element  of  quid
pro quo between the tax-payer and the public authority there  is  no  option
to the tax-payer in the  matter  of  receiving  the  service  determined  by
public authority. In regard to fees  there  is,  and  must  always  be,  co-
relation between the fee collected and the service intended to be  rendered.
Cases may arise where under the guise  of  leaving  a  fee  Legislature  may
attempt to impose a tax; and in the case of such a  colourable  exercise  of
legislative power courts would have to scrutinizes the schemes of  the  levy
very carefully and determine whether in fact there is a co-relation  between
the service and the levy, or whether the levy is either not co-related  with
service or is levied to such an excessive extent as to be a  pretense  of  a
fee and not a fee in reality. In other words, whether or  not  a  particular
cess lived by a statute amounts to a fee or tax would always be  a  question
of fact to be determined in the circumstances of each case. The  distinction
between a tax and a fee is, however, important, and it is recognised by  the
Constitution. Several Entries in the Three  Lists  empower  the  appropriate
Legislatures to levy taxes; but apart from the  power  to  levy  taxes  thus
conferred each List specifically  refers  to  the  power  to  levy  fees  in
respect of any of the matters covered in the said List excluding  of  course
the fees taken in any Court.”



The learned  senior  counsel  contends  that  legislative  competence  is  a
prerequisite for the valid imposition of a fee.

Mr. Ashok K. Pariza, the learned senior counsel appearing on behalf of  some
of  the  appellants  contends  that   Amendment   Act   of   2012   is   not
constitutionally  valid  as  the  State  Legislature  is  not  empowered  to
legislate  on  the  activities  of  manufacture.  He  contends   that   post
manufacture, the product ceases to be an  agricultural  produce.  Thus,  the
law in operation is the Industrial Development Regulation Act, 1951.

On the other hand, Mr. Avtaar Singh Rawat, the learned  Additional  Advocate
General appearing on behalf of the State of  Uttarakhand  referring  to  the
scheme of the Act  contends  that  the  object  of  the  Act  is  to  evolve
efficient marketing systems. The relevant entry in play in the instant  case
is Entry 28 of List II.



Mr. Harin P. Rawal, the learned senior counsel appearing on  behalf  of  the
Mandi Samities further contends that the State  Legislature  of  Uttarakhand
had the competence to enact the impugned provisions. He contends that  Entry
28 of List II of the Seventh Schedule to the Constitution  of  India,  which
deals with  “Markets  and  Fairs”  exclusively  vests  power  in  the  State
Legislature to make any provisions regulating the operation of, or  for  the
growth and development of Markets and Fairs. Entry 66  of  List  II  further
confers upon the State Government the power to levy “fees in respect of  any
of the matters in this List”.  The  impugned  Legislation  herein  has  been
enacted in exercise of the powers conferred on the  State  Legislature,  and
therefore the levy of market fee and development cess in  pursuance  thereof
squarely falls within the legislative competence of the  State  Legislature.
The learned senior counsel further contends that the fact that  agricultural
produce as raw material is used by an Industry covered by Entry 52  of  List
I does not deprive the State Legislature of the power to levy market fee  or
cess in respect of the transaction, which is well  within  the  province  of
the State Legislature. Bringing of the agricultural produce into the  market
area for manufacture attracts the levy of market fee/cess, which  the  State
Legislature is competent  to  impose.  The  learned  senior  counsel  placed
reliance on the case of Tika Ramji v. State of U.P.[4],  wherein  the  scope
of the term ‘Industry’ for the purpose of Entry 52 of List I was defined  in
the following terms:

“Industry in the wide sense of the  term  would  be  capable  of  comprising
three different aspects: (1) raw materials which are  an  integral  part  of
the industrial process, (2) the process of manufacture  or  production,  and
(3) the distribution of the products of  the  industry.  The  raw  materials
would be goods which would be comprised in Entry 27 of List II. The  process
of manufacture or production would be comprised  in  Entry  24  of  List  II
except where the industry was a  controlled  industry  when  it  would  fall
within Entry 52 of List I and the products of the  industry  would  also  be
comprised in Entry 27 of List II except where they were the products of  the
controlled industries when they would fall within Entry 33 of List III.”



The learned senior counsel further contends that the  reliance  placed  upon
the preamble of the Act by the appellants is misplaced as it  is  a  settled
principle of law that when  the  provisions  of  a  statute  are  clear  and
unambiguous, the preamble must necessarily  fade  into  insignificance.  The
preamble may be used as a key to open the mind of the  Legislature  in  case
of ambiguity in the provisions of the Statute. The  learned  senior  counsel
places reliance on the decision of this  Court  in  the  case  of  Maharishi
Mahesh Yogi Vedic Vishwavidyalaya v. State of M.P.[5], wherein  at  para  87
it was held, inter alia, as under:
                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                         CIVIL APPELLATE JURISDICTION

                    CIVIL APPEAL NOS. 14184-14185 OF 2015
               (Arising out of SLP (C) Nos.5013-5014 of 2015)


M/S GUJARAT AMBUJA EXPORTS LTD & ANR.                                …APPELLANTS

                                     Vs.

STATE OF UTTARAKHAND & ORS.                                       ...RESPONDENTS

                                     WITH

                    CIVIL APPEAL NOS. 14186-14187 OF 2015
                (Arising out of SLP(C) Nos.5732-5733 of 2015)


                   CIVIL APPEAL NOS. 14188-14190  OF 2015
                (Arising out of SLP(C) Nos.5754-5756 of 2015)


                    CIVIL APPEAL NOS. 14191-14194 OF 2015
               (Arising out of SLP (C) Nos. 6828-6831 of 2015)

                       CIVIL APPEAL NO. 14195 OF 2015
                  (Arising out of SLP (C) No. 7414 of 2015)

                   CIVIL APPEAL NOS. 14196-14198   OF 2015
              (Arising out of SLP (C) Nos. 12452-12454 of 2015)

                    CIVIL APPEAL NOS. 14199-14209 OF 2015
              (Arising out of SLP (C) Nos. 12462-12472 of 2015)

                   CIVIL APPEAL NOS. 14210-14214  OF 2015
              (Arising out of SLP (C) Nos. 12455-12459 of 2015)

                    CIVIL APPEAL NOS. 14215-14216 OF 2015
              (Arising out of SLP (C) Nos. 12473-12474 of 2015)

                    CIVIL APPEAL NOS. 14217-14218 OF 2015
               (Arising out of SLP (C) Nos.8721-8722 of 2015)

                       CIVIL APPEAL NO. 14219 OF 2015
                  (Arising out of SLP (C) No. 8859 of 2015)

                       CIVIL APPEAL NO. 14220 OF 2015
                 (Arising out of SLP (C) No. 15474 of 2015)

                       CIVIL APPEAL NO. 14221 OF 2015
                 (Arising out of SLP (C) No. 15479 of 2015)

                   CIVIL APPEAL NOS. 14222-14234  OF 2015
              (Arising out of SLP (C) Nos. 15480-15492 of 2015)

                    CIVIL APPEAL NOS. 14235-14237 OF 2015
              (Arising out of SLP (C) Nos. 7701- 7704 of 2015)

                       CIVIL APPEAL NO. 14238 OF 2015
                 (Arising out of SLP (C) No. 15083 of 2015)

                    CIVIL APPEAL NOS. 14239-14240 OF 2015
              (Arising out of SLP (C) Nos. 15471-15472 of 2015)

                       CIVIL APPEAL NO. 14241 OF 2015
                 (Arising out of SLP (C) No. 20533 of 2015)

                       CIVIL APPEAL NO. 14242 OF 2015
                 (Arising out of SLP (C) No. 22134 of 2015)

                    CIVIL APPEAL NOS. 14243-14246 OF 2015
              (Arising out of SLP (C) Nos. 22130-22133 of 2015)

                                     AND

                       CIVIL APPEAL NO. 14247 OF 2015
                 (Arising out of SLP (C) No. 26494 of 2015)

                                J U D G M E N T

V. GOPALA GOWDA, J.



    Leave granted in all the Special Leave Petitions.



The present appeals arise out of the  common  impugned  judgment  and  order
dated 16.12.2014 passed in Special  Appeal  No.  384  of  2014  and  Special
Appeal No. 75 of 2013 along with a batch of other  Special  Appeals  by  the
High Court of Uttarakhand, whereby the High Court  dismissed  the  challenge
to the validity of Section 27(c) (iii) and 27(c)  (iv)  of  the  Uttarakhand
Agricultural Produce Marketing (Development and Regulation)  Act,  2011  and
upheld the validity of the same.



The brief facts of the case required by us to  appreciate  the  rival  legal
contentions advanced on behalf of the parties are stated here under:

The State legislature of Uttarakhand enacted  the  Uttarakhand  Agricultural
Produce  Marketing  (Development  and  Regulation)  Act,  2011  (hereinafter
referred to as  “the  Act”),  which  came  into  force  on  01.11.2011.  The
preamble of the Act reads as under:

“An  Act  to  provide  for  the  effective  regulation   in   marketing   of
agricultural produce, establishment and development  of  proper  and  modern
marketing system, promotion  of  agricultural  processing  and  agricultural
export, superintendence and control of markets in the State  of  Uttarakhand
and for the matters connected there with or incidental thereto.”



Section 27(c)(iii) of the Act, provides for the  levy  of  market  fees  and
development cess, which reads as follows:

“any such agricultural produce, which reaches any Market area of  the  State
for sale, storage, processing or transaction from any other State or out  of
Country for the first time it shall be registered as ‘First Arrival’ and  on
such produce, Market fee and Development cess shall be payable”



Consequently, the “Mandi Samities” served letters  of  notice-cum-demand  on
the appellants herein. The appellants,  who  claimed  to  be  manufacturers,
filed Writ Petitions before the High Court, challenging the demand  made  by
Mandi Samities for payment of “market  fee”  for  the  agricultural  produce
which the appellants brought into the market area. The  principal  challenge
was mounted on the ground that market fee is not liable  to  be  charged  on
their agricultural produce for the reason that, firstly, there  is  no  sale
and purchase of the goods in the market area and,  secondly,  it  cannot  be
charged under Section 27(c)(iii) for the  reason  that  there  is  no  sale,
storage, processing or transaction of this agricultural  produce.  The  High
Court rejected the challenge to the  legislative  competence  of  the  State
legislature, holding that:

“The pith and substance here would be the market area of  Uttarakhand  which
is admitted and the product which is in question  an  agricultural  produce.
These two essential ingredients being  met,  the  challenge  to  legislative
competence does not survive.”



The High Court held that the main thrust of the argument of  the  appellants
was that a market fee can only be charged if there is a  sale  and  purchase
involved in the agricultural produce and even where there  is  no  sale  and
purchase of the agricultural produce, the “market fee”  in  that  event  can
only be charged if the goods are bought for  specified  purposes  alone,  as
provided under Section 27(c)(iii) of the Act, otherwise not.   However,  the
Writ Petitions were allowed to the extent that the  demand  notices  against
them were quashed with the observation that the  appellants  herein  brought
the agricultural produce into the market area for manufacturing  it  into  a
finished product. The main intention of the appellants was not to store  the
agricultural produce but to convert  it  into  another  product.  Thus,  the
storing of the product was only for incidental  purposes  and  not  for  the
purposes of business.



Subsequently, vide Notification  dated  03.01.2013,  the  State  Legislature
enacted the Uttarakhand  Agricultural  Produce  Marketing  (Development  and
Regulation) (Amendment)  Act,  2012.  Section  1(2)  of  the  Amendment  Act
provides that the said Act shall be deemed to  have  come  into  force  with
effect from 01.11.2011. Amongst other provisions, Section 27(c)(iii) of  the
Act was amended by the said Amendment. The amended Section 27(c)(iii)  reads
as under:

“any such agricultural produce, which arrives in  any  Market  area  of  the
State  for  sale,  storage,  processing,manufacturing,transaction  or  other
commercial purposes from any other State or out of  Country  for  the  first
time it shall be registered  as  “Primary  Arrival”  and  on  such  produce,
Market fee and Development cess shall be payable.”
       (emphasis laid by this Court)

Subsequently, the appellants were served another notice through  the  Office
of the ‘Krishi Utpadan Mandi Samiti, Kiccha’, on the  basis  of  which  they
were required to ensure that the payment of Mandi fee  or  development  cess
be made in the office of the Samiti according to the amended Act, 2012.



Aggrieved, the appellants filed Writ Petitions  before  the  High  Court  of
Uttarakhand challenging the constitutional validity of  the  Amendment  Act,
2012. The High Court in its judgment and  order  dated  10.07.2014  observed
that the earlier bunch of writ petitions were allowed  on  a  limited  point
that the  State Legislature had not included the word “manufacture”  in  the
charging Section, and that by the impugned Amendment therein, the  word  had
been added, albeit retrospectively. Thus, the grounds which  were  available
to the appellants in the earlier petition were no longer available now.  The
validity of the Act and the notice-cum-demand were upheld.



Aggrieved by the order of the  High  Court,  the  appellants  filed  Special
Appeal before Division Bench of the High Court. The Division Bench  examined
the provisions of the Act and came to the conclusion that the appeals  filed
by the appellants are devoid of merit. The Court observed as under:

“…Having regard to the provisions contained  in  the  impugned  Legislation,
there can be no doubt that the Legislature has intended levy of market  fee/
cess on agricultural produce brought into the market area  for  the  purpose
of manufacturing, inter alia.”



On the issue of legislative  competence,  the  Division  Bench  held,  inter
alia, as under:

“The transaction of  bringing  the  agricultural  produce,  be  it  for  the
purpose of manufacture inter alia, is  what  attracts  the  levy  of  market
fee/cess. We would think that this is  a  separable  transaction,  which  is
well within the province of the State Legislature and the  powers  available
to it in Entry 28, read with Entry 66, of List  II.  Entry  28  of  List  II
provides for “markets”………In the market, may  be,  what  is  intended  to  be
regulated is sale and purchase; but, as already noted, the  markets  are  to
be developed and regulated.”



The order of the High Court dated 10.07.2014, passed by the  learned  single
Judge was upheld. Hence, the present appeals.

We have heard the learned senior counsel for both the parties. On the  basis
of the factual evidence on record produced before us, the  circumstances  of
the case and also in the light of the rival legal contentions urged  by  the
learned senior counsel for both the parties,  we  have  broadly  framed  the
following points which require our attention and consideration:-

Whether the State Government of Uttarakhand has the  legislative  competence
to enact the impugned provisions?

What Order?


Answer to Point 1

Mr. Dushyant Dave,  learned  senior  counsel  appearing  on  behalf  of  the
appellants contends that the Amendment is ultra vires the  Constitution,  as
the same is not supported by the relevant entry  in  the  Constitution.  The
learned senior counsel contends that the relevant entry covering  the  field
in the instant case is Entry 28 of List  II  of  the  7th  Schedule  of  the
Constitution of India, which reads as under:
            “28. Markets and Fairs.”


The  learned  senior  counsel  places  reliance  on  the   judgment   of   a
Constitution Bench of this Court in the case of  ITC  Ltd.  v.  Agricultural
Produce Market Committee[1], wherein it was held, inter alia, as under:
“128. If 'industry' does not include 'markets and fairs' it is important  to
define what markets and fairs connote. ’Market' may strictly be  defined  as
"the meeting or congregating together of people for the  purchase  and  sale
of provisions or livestock, publicly exposed, at a fixed time and place".  A
'fair' has been judicially defined as meaning  'a  periodical  concourse  of
buyers and sellers in a place generally  for  sale  and  purchase  .....  at
times or on occasion ordained by custom.  The  distinction  between  markets
and fairs appears to lie in the periodicity viz. while a  market  may  be  a
regular or permanent place of business; a fair is an  intermittent  one.  At
common law, fairs and markets were also  franchises  or  rights  to  hold  a
concourse of buyers and sellers to dispose of the commodities in respect  of
which the franchise is given. This included the right to levy a toll or  sum
payable by the buyer upon sales of articles in a market. The sense in  which
the words has been used in Entry 28 appears to cover  not  only  such  right
but the market place itself including the concourse of buyers  and  sellers'
and the regulation of all these.”



The learned senior counsel contends that this means  that  under  Entry  28,
power to legislate includes to legislate on  the  ancillary  powers  in  the
Act. The learned senior counsel further placed reliance on the  preamble  of
the Act which has been quoted in an earlier part of the judgment.

The learned senior counsel contends that the sole object of the  Act  is  to
protect the farmer and to see that the agricultural produce is  sold  either
in the market area or market yard. Further, what is contemplated in the  Act
is the sale of the goods covered in the State alone  and  not  sale  of  the
goods which takes place outside the State.

On the issue of legislative competence, the learned senior counsel  contends
that  the State exceeded  its  legislative  competence  while  enacting  the
aforesaid impugned provisions in the  Amendment  Act  by  going  beyond  the
scope of Entry 28 read with Entry 66 of List II of the Seventh  Schedule  of
the Constitution of India. More so, when  a  law  made  by  the  Parliament,
namely, the  Industries  (Development  and  Regulation)  Act,  1951  already
occupied the said field. The learned senior counsel places reliance  on  the
following paragraphs of the judgment in the case of  ITC  Ltd.  referred  to
supra, which reads as under:


“110. The controversy in this case to a large extent turns  on  the  meaning
of the words "industry" as used in the  three  legislative  lists.  Now  the
power to legislate in respect of all industries has been given  under  Entry
24 of List II to the State Legislatures subject to Entries 7 and 52 of  List
I. Entries 7 and 52 of List I allow Parliament to legislate  in  respect  of
particular 'industries' - namely  such  industries  which  are  declared  by
Parliament by law to be necessary for the defence or for the prosecution  of
war (Entry 7) and industries the control of which by the Union  is  declared
by Parliament by law to be expedient in  the  public  interest  (Entry  52).
Trade and commerce in, and the production supply  and  distribution  of  the
products of such controlled industry have been provided for in Entry  33  of
the Concurrent List wherein both Parliament and the State  Legislatures  are
competent to legislate. A Constitution Bench of this Court in  The  Calcutta
Gas Company (Prop.) Ltd. v. the state of  West  Bengal  has  held  that  the
expression 'industry' in all the three lists must be given the same  meaning
and that since ordinarily industry is in the field of State Legislation  the
word must be construed in the context of the other entries  in  List  II  in
such a manner so that no entry in List II is deprived  of  its  content.  In
other words, the meaning of the word 'industry' is  to  be  determined  with
reference to Entry 24 of List II where the power to legislate  generally  in
respect of industries has been provided. Entries 7 and 52 are entries  which
specify particular industries out of this general pool. The meaning  of  the
word 'industry'  in  these  two  entries,  therefore,  must  necessarily  be
derived from the meaning which may be ascribed to the word in  Entry  24  of
List II.

126. To sum up: the word 'Industry' for the purposes of Entry 52 of  List  I
has been firmly confined by Tika Ramji to  the  process  of  manufacture  or
production only. Subsequent decisions including those of other  Constitution
Benches have re-affirmed that Tika Ramji's case authoritatively defined  the
word 'industry' - to mean the process of manufacture or production and  that
it does  not  include  the  raw  materials  used  in  the  industry  or  the
distribution of the products  of  the  industry.  Given  the  constitutional
framework, and the weight of  judicial  authority  it  is  not  possible  to
accept an argument canvassing  a  wider  meaning  of  the  word  'industry'.
Whatever the word may mean in any other context, it must  be  understood  in
the Constitutional context as meaning 'manufacture or production'.”



The learned senior counsel further placed reliance on the judgment  of  this
Court in the case of State of Orissa v. M.A. Tulloch & Co.[2]  to  elaborate
on the concept of repugnancy, as under:

“……Repugnancy arises when two enactments both within the competence  of  the
two  Legislatures  collide  and  when  the  Constitution  expressly  or   by
necessary implication provides that the enactment  of  one  Legislature  has
superiority over the  other  then  to  extent  of  the  repugnancy  the  one
supersedes the other. But two enactments may  be  repugnant  to  each  other
even though obedience of each of them is  possible  without  disobeying  the
other. The test of two legislations containing contradictory  provisions  is
not,  however,  the  only  criterion  of  repugnancy,  for  if  a  competent
legislature with a superior efficacy expressly or impliedly evinces  by  its
legislation an intention to cover the whole field,  the  enactments  of  the
other legislature whether passed before or after would be overborne  the  on
the ground of repugnance. Where such is the position, the  inconsistency  is
demonstrated not  by  a  detailed  compression  of  provisions  of  the  two
statutes but by the mere existence of the two pieces of legislation………”



The learned senior counsel further  placed  reliance  on  the  case  of  The
Hingir-Rampur Coal Co. Ltd. v. The State of Orissa[3], the relevant  portion
of which is quoted as under:

“……Before we deal with  this  question  it  is  necessary  to  consider  the
difference between the concept of tax and that of a fee. The neat and  terse
definition of tax which has been given  by  Latham,  C.J.,  in  Matthews  v.
Chicory Marketing Board (1938) 60 C.L.R. 263 is often cited as a classic  on
this subject. "A tax", said Latham,  C.J.,  "is  a  compulsory  exaction  of
money by public authority for public purposes enforceable  by  law,  and  is
not payment for services rendered". In bringing out the  essential  features
of a tax this definition also assists in distinguishing a tax  from  a  fee.
It is true that between a tax and a fee  there  is  no  generic  difference.
Both are compulsory exactions of money by public authorities; but whereas  a
tax is imposed for public purposes and is not, and need  not,  be  supported
by any consideration  of  service  rendered  in  return,  a  fee  is  levied
essentially for services rendered and as such there is an  element  of  quid
pro quo between the person who pays the fee and the public  authority  which
imposes it. If specific services are rendered to a specific  area  or  to  a
specific class of persons or trade or business in any local area, and  as  a
condition precedent for the said services or in  return  for  them  cess  is
levied against the said area or the  said  class  of  persons  or  trade  or
business the cess is distinguishable from a tax and is described as  a  fee.
Tax recovered by public authority  invariably  goes  into  the  consolidated
fund which ultimately is utilised for all public purposes,  whereas  a  cess
levied by way of fee is not intended to be, and does not become, a  part  of
the consolidated fund. It is earmarked and set  apart  for  the  purpose  of
services  for  which  it  is  levied.  There  is,  however,  an  element  of
compulsion in the imposition of both  tax  and  fee.  When  the  Legislature
decides to render a specific  service  to  any  area  or  to  any  class  of
persons, it is not open to the said area or to the said class of persons  to
plead that they do not  want  the  service  and  therefore  they  should  be
exempted from the payment of the cess. Though there is an  element  of  quid
pro quo between the tax-payer and the public authority there  is  no  option
to the tax-payer in the  matter  of  receiving  the  service  determined  by
public authority. In regard to fees  there  is,  and  must  always  be,  co-
relation between the fee collected and the service intended to be  rendered.
Cases may arise where under the guise  of  leaving  a  fee  Legislature  may
attempt to impose a tax; and in the case of such a  colourable  exercise  of
legislative power courts would have to scrutinizes the schemes of  the  levy
very carefully and determine whether in fact there is a co-relation  between
the service and the levy, or whether the levy is either not co-related  with
service or is levied to such an excessive extent as to be a  pretense  of  a
fee and not a fee in reality. In other words, whether or  not  a  particular
cess lived by a statute amounts to a fee or tax would always be  a  question
of fact to be determined in the circumstances of each case. The  distinction
between a tax and a fee is, however, important, and it is recognised by  the
Constitution. Several Entries in the Three  Lists  empower  the  appropriate
Legislatures to levy taxes; but apart from the  power  to  levy  taxes  thus
conferred each List specifically  refers  to  the  power  to  levy  fees  in
respect of any of the matters covered in the said List excluding  of  course
the fees taken in any Court.”



The learned  senior  counsel  contends  that  legislative  competence  is  a
prerequisite for the valid imposition of a fee.

Mr. Ashok K. Pariza, the learned senior counsel appearing on behalf of  some
of  the  appellants  contends  that   Amendment   Act   of   2012   is   not
constitutionally  valid  as  the  State  Legislature  is  not  empowered  to
legislate  on  the  activities  of  manufacture.  He  contends   that   post
manufacture, the product ceases to be an  agricultural  produce.  Thus,  the
law in operation is the Industrial Development Regulation Act, 1951.

On the other hand, Mr. Avtaar Singh Rawat, the learned  Additional  Advocate
General appearing on behalf of the State of  Uttarakhand  referring  to  the
scheme of the Act  contends  that  the  object  of  the  Act  is  to  evolve
efficient marketing systems. The relevant entry in play in the instant  case
is Entry 28 of List II.



Mr. Harin P. Rawal, the learned senior counsel appearing on  behalf  of  the
Mandi Samities further contends that the State  Legislature  of  Uttarakhand
had the competence to enact the impugned provisions. He contends that  Entry
28 of List II of the Seventh Schedule to the Constitution  of  India,  which
deals with  “Markets  and  Fairs”  exclusively  vests  power  in  the  State
Legislature to make any provisions regulating the operation of, or  for  the
growth and development of Markets and Fairs. Entry 66  of  List  II  further
confers upon the State Government the power to levy “fees in respect of  any
of the matters in this List”.  The  impugned  Legislation  herein  has  been
enacted in exercise of the powers conferred on the  State  Legislature,  and
therefore the levy of market fee and development cess in  pursuance  thereof
squarely falls within the legislative competence of the  State  Legislature.
The learned senior counsel further contends that the fact that  agricultural
produce as raw material is used by an Industry covered by Entry 52  of  List
I does not deprive the State Legislature of the power to levy market fee  or
cess in respect of the transaction, which is well  within  the  province  of
the State Legislature. Bringing of the agricultural produce into the  market
area for manufacture attracts the levy of market fee/cess, which  the  State
Legislature is competent  to  impose.  The  learned  senior  counsel  placed
reliance on the case of Tika Ramji v. State of U.P.[4],  wherein  the  scope
of the term ‘Industry’ for the purpose of Entry 52 of List I was defined  in
the following terms:

“Industry in the wide sense of the  term  would  be  capable  of  comprising
three different aspects: (1) raw materials which are  an  integral  part  of
the industrial process, (2) the process of manufacture  or  production,  and
(3) the distribution of the products of  the  industry.  The  raw  materials
would be goods which would be comprised in Entry 27 of List II. The  process
of manufacture or production would be comprised  in  Entry  24  of  List  II
except where the industry was a  controlled  industry  when  it  would  fall
within Entry 52 of List I and the products of the  industry  would  also  be
comprised in Entry 27 of List II except where they were the products of  the
controlled industries when they would fall within Entry 33 of List III.”



The learned senior counsel further contends that the  reliance  placed  upon
the preamble of the Act by the appellants is misplaced as it  is  a  settled
principle of law that when  the  provisions  of  a  statute  are  clear  and
unambiguous, the preamble must necessarily  fade  into  insignificance.  The
preamble may be used as a key to open the mind of the  Legislature  in  case
of ambiguity in the provisions of the Statute. The  learned  senior  counsel
places reliance on the decision of this  Court  in  the  case  of  Maharishi
Mahesh Yogi Vedic Vishwavidyalaya v. State of M.P.[5], wherein  at  para  87
it was held, inter alia, as under:

“……at the very outset, it will have to be  held  that  the  Preamble  cannot
control the scope  of  the  applicability  of  the  Act.  If  the  provision
contained in the main Act are  clear  and  without  any  ambiguity  and  the
purpose of the Legislation  can  be  thereby  duly  understood  without  any
effort, there is no necessity to  even  look  into  the  Preamble  for  that
purpose.”

 

The learned senior counsel further  contends  that  the  developmental  cess
sought to be levied in the instant case is fee, the power to levy which  has
been conferred upon the State Legislature under Entry 66 read with Entry  28
of List II. It is further contended that the Constitution does not  prohibit
levy of fee on either sale of agricultural produce or even without  a  sale,
bringing in  any  agricultural  produce  in  the  market  area,  be  it  for
processing or manufacturing. The learned senior counsel places  reliance  on
the decision of this Court  in  the  case  of  Vijayalakshmi  Rice  Mill  v.
Commercial Tax Officers, Palokal[6], wherein a distinction was sought to  be
drawn between ‘Cess’ and ‘Fees’ in the following terms:

“…Hence ordinarily a cess is also a tax, but is a special  kind  of  a  tax.
Generally tax raises revenue which can be used generally for any purpose  by
the State. For instance, the Income Tax or  Excise  Tax  or  Sales  Tax  are
taxes which generate revenue which can be utilized by  the  Union  or  State
Governments for any purpose, e.g. for payment of salary to  the  members  of
the armed  forces  or  civil  servants,  police,  etc.  or  for  development
programmes, etc. However, cess is a tax which  generates  revenue  which  is
utilized for a specific purpose. For instance, health  cess  raises  revenue
which is utilized  for  health  purposes  e.g.  building  hospitals,  giving
medicines to the poor etc. Similarly, education cess  raises  revenue  which
is used for building schools or other educational purposes……

It is well settled that the basic difference between a  tax  and  a  fee  is
that a tax is a compulsory exaction of  money  by  the  State  or  a  public
authority for public purposes, and  is  not  a  payment  for  some  specific
services rendered. On the other hand, a fee is generally  defined  to  be  a
charge for a special service rendered by some governmental agency……”

 

The learned senior counsel further contends that quid  pro  quo  is  not  an
essential  requirement  for  levying  fee  and  cess.  In  this  connection,
reliance is placed upon the case  of  Delhi  Race  Club  Ltd.  v.  Union  of
India[7], wherein it was held as under:

“The same principle was reiterated in Secunderabad Hyderabad Hotels  Owners’
Association case (supra) where the existence of two types  of  fee  and  the
distinction between them has been highlighted as  follows:  “9.  It  is,  by
now,  well  settled  that  a  licence  fee  may  be  either  regulatory   or
compensatory. When a fee is  charged  for  rendering  specific  services,  a
certain element of quid pro quo must be there between the  service  rendered
and the fee charged so that the licence fee is commensurate  with  the  cost
of rendering the service although  exact  arithmetical  equivalence  is  not
expected. However, this is not the only kind of fee which  can  be  charged.
Licence fee can also be regulatory when the activities for which  a  licence
is given require to be regulated or controlled. The  fee  which  is  charged
for regulation for such activity would be validly classifiable as a fee  and
not a tax although no service is rendered. An element of quid  pro  quo  for
the levy of  such  fees  is  not  required  although  such  fees  cannot  be
excessive.”

 

 The learned senior counsel contends that the fee  which  is  sought  to  be
levied in the instant case is for the development of  the  market  area  and
therefore even if the appellants are not benefitted directly  by  the  same,
the very imposition of fee cannot be rendered nugatory. He  further  submits
that what needs to  be  examined  in  the  instant  case  is  the  point  of
incidence of the cess. The point of incidence is  firstly  the  agricultural
produce being brought into the Market Area and  secondly,  the  purchase  or
sale of any agricultural produce. He submits that  the  impugned  provisions
are constitutionally valid and thus, are not liable to be struck down.

 

After hearing the learned senior  counsel  for  both  the  parties,  we  are
unable to agree with the contentions advanced by Mr. Avtaar  Singh,  learned
Additional Advocate General, and Mr. Harin P. Rawal, learned senior  counsel
appearing on behalf of the respondents.

 

 A perusal of the Preamble of the Act shows that the Act  has  been  enacted
to regulate the marketing of agricultural produce,  and  for  the  effective
superintendence and control of the markets in the State of  Uttarakhand.  At
this stage, it is imperative to examine the role of the preamble as  an  aid
of statutory interpretation.

  A  Constitution  Bench  of  this  Court  in  Kavalappara  Kottarathil  and
Kochunni alias Moopil Nayar v.  States  of  Madras  and  Kerala[8]  held  as
under:

“The preamble of a statute is "a key to the understanding of it" and  it  is
well established that  "it  may  legitimately  be  consulted  to  solve  any
ambiguity, or to fix the meaning of words which may have more than  one,  or
to keep the effect of the Act within its real scope, whenever  the  enacting
part is in any of these respects open to doubt"

 

More recently, another Constitution Bench of this Court has dealt  with  the
same in the case of Union of India v. Elphinstone  Spinning  &  Weaving  Co.
Ltd.[9], wherein it was held, inter alia, as under:

“………When the question arises as to the meaning of a certain provision  in  a
Statute it is not only legitimate but proper to read that provision  in  its
context. The context means; the statute as a whole, the  previous  state  of
law, other statutes in para materia, the general scope of  the  statute  and
the mischief that it was intended to remedy.  An  Act  consists  of  a  long
title which precedes the preamble and the said long title is a  part  of  an
Act itself and is admissible as an aid to  its  construction.  It  has  been
held in several cases that a long title along with preamble or even  in  its
absence is a good guide regarding the object, scope or purpose  of  the  Act
whereas the preamble being only an abbreviation for  purposes  of  reference
is not a useful aid to construction. The preamble of an Act,  no  doubt  can
also be read along with other provisions of the Act to find out the  meaning
of the words in enacting provisions to decide  whether  they  are  clear  or
ambiguous but the preamble in itself not being an enacting provision is  not
of the same weight as an aid to construction of a Section of the Act as  are
other relevant enacting words to be found elsewhere in the Act. The  utility
of the preamble diminishes  on  a  conclusion  as  to  clarity  of  enacting
provisions. It is therefore said that the preamble is not to  influence  the
meaning otherwise ascribable  to  the  enacting  parts  unless  there  is  a
compelling reason for it.”
                                               (emphasis laid by this Court)

 

From a perusal of the abovementioned case law, it  becomes  clear  that  the
preamble cannot control the  enacting  part.  The  preamble  read  with  the
provisions of a statute, however, makes the  legislative  scheme  clear  and
can be used to determine the true meaning  of  the  enacting  provision  and
whether given the other provisions of the Act, the  enacting  provision  can
be given effect to without defeating the scheme of the entire Act.

      In order to fully understand the scheme of the Act, we need to  direct
our attention to certain provisions.

Section 2(i) defines “Agricultural Produce” as:

“"Agricultural  Produce"  means  all  produce   and   commodities,   whether
processed  or  unprocessed,  of  agriculture,  horticulture,   floriculture,
viticulture,  apiculture,  sericulture,  pisciculture,   animal   husbandry,
forest produce, as are specified in the Schedule or declared  by  the  State
Government, by notification, from time to time  and  includes  admixture  of
two or more of such products, processed in form and  further  includes  Gur,
Rab, Shakkar, Khandsari and Jaggery”

 

Section 2(ii) defines an ‘Agriculturist’ or ‘Producer’ as:

“"Agriculturist" or "Producer" means a person, who, by his own labour or  by
the labour of any member of his family or by the labour of hired  labour  or
otherwise, is engaged in the production and growth of agricultural  produce,
but it does not  include  any  market  functionary  like  a  trader,  broker
(dalal), commission agent (arhatiya) or who is otherwise ordinarily  engaged
in the business of storage of agricultural produce;”

 

Section 2(vi) defines a “Buyer” as:

"Buyer" (Purchaser) means a person, group of person, firm or company or  co-
operative society or  Government  agency,  corporation,  trader,  commission
agent or arhatiya, who, himself or on behalf of any other person  or  agent,
buys or agrees to buy agricultural produce in the Market Area,  as  notified
under this Act;

 

Section 2(xlvi) defines “Second Arrival” as

 

“"Second Arrival" means such agricultural produce, which  has  been  brought
to any Market Area after the  first  transaction  or  sale  from  any  other
Market Area;”

 

Section 4 of the Act pertains to the declaration of an area as  Market  Area
which reads as under:

“Where the State Government is of opinion that it is necessary or  expedient
in public interest  to  regulate  the  sale  and  purchase  of  agricultural
produces in any area and for that purpose to declare that area as  a  market
area, it may, by notification in official gazette and in such other  manner,
which may be prescribed, declare such area as a Market Area under this  Act,
with effect from such date, as may be notified.”

 

A combined reading of all the above mentioned provisions  and  the  preamble
makes it amply clear that the Act has been enacted with a view  to  regulate
the buying and selling of the agricultural produce within the area  notified
as Market Area under Section 4 of the Act.

     At the cost of repetition, we  extract  the  impugned  provision,  i.e.
Section 27 (c) (iii):

“any such agricultural produce, which arrives in  any  Market  area  of  the
State for sale, storage, processing,  manufacturing,  transaction  or  other
commercial purposes from any other State or out of  Country  for  the  first
time, it shall be registered as  “Primary  Arrival”  and  on  such  produce,
Market fee and Development cess shall be payable.”

 

Section 27 (c)(iv) reads as:

“any agricultural produce which is brought to any  Market  area  within  the
State after the transaction of sale from any other Market area of the  State
after paying Market fee and  Development  cess  for  the  purpose  of  sale,
storage,  processing,  manufacturing,  transaction   or   other   commercial
purposes, it shall be called as “Secondary Arrival” and on such produce,  no
Market fee and Development cess shall be leviable.”

 

Before we examine the legislative competence of  the  State  Legislature  to
enact the impugned provisions, we direct our attention to the decision of  a
Constitution  Bench  of  this  Court,  rendered  in  the  case  of  M.C.V.S.
Arunachala Nadar & Ors. v. State of Madras[10], wherein the  object  of  the
market legislations in general was assessed:

“……Marketing legislation is now a well-settled  feature  of  all  commercial
countries. The object of such legislation is 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 primary object, thus, of any market legislation is to  ensure  that  the
producer of the  agricultural  produce  gets  a  fair  return.  It  is  also
essentially meant to govern the “buyer-seller” relationship.

      In this context, an examination of Section 27(c)(iii) would show  that
it is against the scheme of the Act, as it seeks  to  levy  market  fee  and
development cess  even  on  those  units  which  merely  bring  agricultural
produce from outside the  State  into  the  market  area  for  carrying  out
manufacturing, in that there is no sale or purchase of  the  product  within
the market area per se.

Further, it is important to examine the legislative competence of the  State
Legislature to enact the particular provision. The two relevant  entries  in
play here are Entry 52 of List I and Entry 28 of List II.

     Entry 28 of List II pertains to Markets and Fairs, while  Entry  52  of
List I pertains to Industry. In the case of The Belsund  Sugar  Co.  Ltd  v.
State of Bihar[11], it was held, inter alia, as under:

“……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 well will presently show, deal 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.”

 

The scope of the term ‘Industry’ for the purpose of Entry 52 of List  I  was
examined at length by  Ruma  Pal,  J.  in  her  concurring  opinion  in  the
constitution bench decision of ITC Ltd. referred to supra,  wherein  it  was
held as under:

“126. To sum up: the word 'Industry' for the purposes of Entry 52 of List  I
has been firmly confined by Tika Ramji to  the  process  of  manufacture  or
production only. Subsequent decisions including those of other  Constitution
Benches have re-affirmed that Tika Ramji's case authoritatively defined  the
word 'industry'-to mean the process of manufacture or  production  and  that
it does  not  include  the  raw  materials  used  in  the  industry  or  the
distribution of the products  of  the  industry.  Given  the  constitutional
framework, and the weight of  judicial  authority  it  is  not  possible  to
accept an argument canvassing  a  wider  meaning  of  the  word  'industry'.
Whatever the word may mean in any other context, it must  be  understood  in
the Constitutional context as meaning 'manufacture or production'.

 

127. Applying the negative test as evolved in Tika Ramji  in  this  case  it
would  follow  that  the  word  'industry'  in  Entry  24  of  List  II  and
consequently Entry 52 of List I does not  and  cannot  be  read  to  include
Entries 28 and 66 of List II which have been expressly marked out as  fields
within the State's exclusive legislative powers. As noted earlier  Entry  28
deals with markets and fairs and Entry 66 with the right  to  levy  fees  in
respect of, in the present context, markets and fairs. Entry 52  of  List  I
does not override Entry 28 in List II no has Entry 28 in List II  been  made
subject to Entry 52 unlike Entry 24 of List II. This Court in Belsund  Sugar
(supra) has also accepted the argument that Entry 28 of List II operated  in
its own and cannot be affected by any legislation pertaining to industry  as
found in Entry 52 of List I.

 

128. If 'industry' does not include 'markets and fairs' it is  important  to
define what markets and fairs connote. 'Market' may strictly be  defined  as
"the meeting or congregating together of people for the  purchase  and  sale
of provisions or livestock, publicly exposed, at a fixed  time  and  place".
……At common law, fairs and markets were also franchises or rights to hold  a
concourse of buyers and sellers to dispose of the commodities in respect  of
which the franchise is given. This included the right to levy a toll or  sum
payable by the buyer upon sales of articles in a market. The sense in  which
the words has been used in Entry 28 appears to cover  not  only  such  right
but the market place itself including the concourse of buyers  and  sellers'
and the regulation of all these.”
           (emphasis laid by this Court)


A perusal of the abovementioned judgments makes it clear that  Entry  52  of
List I governs the process of manufacture and production. Therefore, in  the
instant case, the State Legislature did not have  the  competence  to  enact
the impugned provisions which sought to  levy  market  fee  and  development
cess even on those agricultural produce which were not  being  brought  into
the market for the purpose of sale, but for the purpose  of  manufacture  or
further processing. Since the State Legislature was not competent  to  enact
the impugned provision of Section

 

27(c)(iii) of the Act, the same is liable to be struck down as the same  was
enacted by the State Legislature without having the  legislative  competence
to do so.

 

Answer to Point No. 2

In view of the findings and  reasons  recorded  in  Point  No.1  supra,  the
impugned common judgment and order upholding the validity of  the  amendment
to Section 27(c)(iii) of the Act is set aside.  Section  27(c)(iii)  of  the
Act is struck down. The consequential action of  issuing  notice  of  demand
and any other orders passed  against  the  appellants  are  hereby  quashed.
However, Section 27(c)(iv) is hereby upheld. This Court makes it very  clear
that the purchaser must prove that the agricultural produce is brought  from
other State which is an interstate sale,  and  is  in  accordance  with  the
provisions of the Sale of Goods Act, 1930.

 

These Civil Appeals are allowed in the above terms. No costs.

                                                     …………………………………………………………J.
                                                            [V.GOPALA GOWDA]

                                                     …………………………………………………………J.
                                                               [AMITAVA ROY]
New Delhi,  
December 9, 2015

-----------------------
[1]    (2002) 9 SCC 232
[2]    AIR 1964 SC  1284
[3]    AIR 1961 SC 459
[4]    AIR 1956 SC 676
[5]    (2013) 15 SCC 677
[6]    (2006) 6 SCC 763
[7]    (2012) 8 SCC 680
[8]    AIR 1960 SC 1080
[9]    (2001) 4 SCC 139
[10]   AIR 1959 SC 300
[11]   (1999) 9 SCC 620

 

  

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