N. Sreerama Murthy And Others v. The State Of A.P And Another

1. These three writ petitions call in question the vires of the Andhra Pradesh (Agricultural produce and Livestock) Markets Amendment Ordinance No. 11 of 1980. Subsequent to the filing of these petitions, this Ordinance was replaced by the Andhra Pradesh (Agricultural Produce and Livestock) Markets (Amendment) Act, 1981 (Act 6 of 1981) published in the Andhra Pradesh Gazette dated 30-3-1981. This Act is deemed to have come into force on 2-12-1980, the date on which the Ordinance came into force. From the relief claimed in the writ petitions, it would appear as if the vires of the entire amendment Act is challenged. But during the course of the arguments, the attack was confined to Section 2 of the Amendment Act by which Sub-sections (1) and (2) of Section 5 of the principal Act were amended.

2. Sub-sections (1) and (2) of Section 5 of the Act, as they stood prior to the amendment, read as follows :--

"5. Composition of market committee:--(1) Every market committee shall consist of such number of members, being not less than twelve and not more than sixteen, as the case may be fixed for it by the Government and shall be constituted in the following manner:--

(i) not less than one half of the members to be appointed by the Government, after consultation with the Director of Marketing, from among the growers of agricultural produce and the owners of livestock and products of livestock in the notified area;

(ii) One member to be appointed by the Government from among the presidents and persons, if any, for the time being performing the functions of the presidents of the co-operative marketing societies having their areas of operation within the notified area; or in the absence of such societies to be elected as specified in Clause (iv);

(iii) (a) one representative having jurisdiction over the notified area, of the Agricultural Department or the Animal Husbandry Department, to be appointed by the Government;

(b) the chairman of the municipality or the sarpanch of the gram panchayat, as the case may be, within whose jurisdiction the office of the market committee is located;

Provided that in the case of the Municipal Corporation of Hyderabad, such person as may be nominated by the Corporation may represent the Corporation;

(iv) the remaining members to be elected in the prescribed manner by the persons licensed under Sub-section (1) of Section 7 in the notified area from among themselves;

Provided that where a market committee is constituted in any notified area for the first time the Government shall appoint the members under this clause from out of a panel of traders of the notified agricultural produce, livestock or products of livestock in the notified area, furnished by the Director of Marketing to the Government.

(2) Every market committee shall elect two of its members other than those mentioned in Clause (iii) of Sub-section (1) to be respectively chairman and vice-chairman thereof."

In P. Chandramouli v. Government of A. P., (1980) 1 APLJ 120, Sub-sections (1) and (2) of Section 3 (5 ?) of the Act in so far as they made provision for election of the representatives of persons licensed under Sub-section (1) of Section 7 (for short 'Traders') and provided for nomination of the growers of the agricultural produce and owners of livestock and products of livestock to a market committee, were questioned as violative of Article 14 of the Constitution. That batch of writ petitions was allowed by a Division Bench of this Court, to which one of us (Madhava Reddy, J.) was a party. Aggrieved by that judgment, the State Government preferred an appeal on special leave before the Supreme Court and the operation of the judgment of the High Court was suspended. Taking shelter under the orders of suspension issued by the Supreme Court, when the Government proceeded to nominate some of the growers of agricultural produce to some of the market committees that was once again called in question before this Court in some writ petitions. While so, the impugned Ordinance No. 11 of 1980 was issued which was replaced by identical enactment, act 6 of 1981 provisions of which are called in question now in these writ petitions. The provisions of Sub-sections (1) and (2) of Section 5 which are substituted in the principal Act by Section 2 of the Amendment Act and which are called in question, read as follows:--

"(1) Every market committee shall consist of such number of members, being not less than fifteen and not more than eighteen, as may be fixed for it by the Government by notification, and shall be constituted in the following manner:--

(i) not less than two-thirds of the members to be appointed by the Government after consultation with the Director of Marketing, from among the following categories of growers of agricultural produce and the owners of livestock and products of livestock in the notified area, namely :--

(a) growers of agricultural produce who are small farmers of dry lands;

(b) growers of agricultural produce, other than small farmers of dry lands;

(c) growers of agricultural produce who are small farmers of wet lands;

(d) growers of agricultural produce, other than small farmers, of wet lands; and

(e) the owners of livestock and products of livestock;

(ii) one member to be appointed by the Government from among the presidents and persons if any for the time being performing the functions of the presidents, of the cooperative marketing societies having their areas of operation within the notified area, or in the absence of such societies, to be appointed as specified in Clause (iv);

(iii) (a) one representative, having jurisdiction over the notified area, of the Agricultural Department or the Animal Husbandry Department to be appointed by the Government;

(b) the Chairman of the Municipality or the Sarpanch of the gram panchayat, as the case may be, within whose jurisdiction the office of the market committee is located;

Provided that in the case of the Municipal Corporation of Hyderabad and Visakhapatnam Municipal Corporation, such person as may be nominated by that Corporation, may represent the Corporation;

(iv) the remaining members, to be appointed by the Government after consultation with the Director of Marketing, from among the traders belonging to the following categories, namely:--

(a) small traders whose annual turnover of trade in the notified area does not exceed rupees two lakhs;

(b) other traders in the notified area. Explanation I:-- For the purpose of this sub-section, the term 'small farmer of dry lands' shall mean a farmer holding a total extent of not more than 4.04686 hectares (ten acres) of dry land, and the term 'small farmer of wet lands' shall mean a farmer holding a total extent of not more than 2.02343 hectares (five acres) of wet land and the term 'trader' shall mean a person licensed under Sub-section (1) of Section 7 in the notified area;

Explanation II :-- In computing the extent of land held by a farmer for the purpose of this sub-section, 0.404686 hectares (one acre) of wet land shall be deemed to be equal to 0.809372 (two acres) of dry land.

(2) Every market committee shall have a Chairman and Vice-Chairman, to be appointed by the Government after consultation with the Director of Marketing from among its members specified in Clauses (i) and (iv) of Sub-section (1)."

It would be observed that by virtue of the amendment, the Government is now empowered to nominate not only the growers of the agricultural produce and the owners of livestock and products of livestock on the market committees, but also the representatives of the persons licensed under Sub-section (1) of Section 7 of the Act (the traders) in respect of whom, under the principal Act, there was a provision for election from among themselves.

3. It is contended by Sri Venugopal Reddy, learned counsel who led the arguments in this case and also by Sri Subba Rao, learned counsel who followed, that this amendment is in the teeth of the judgment of this Court declaring the provisions of the principal Act ultra vires and it suffers from the same vice as that of the principal Act which was struck down by this Court. It is pointed out that sub-sections (1) and (2) of the principal act in so far as they provide for the election of traders to the market committee and for nomination of the growers of agricultural produce, was violative of Article 14 of the Constitution and in the course of the judgment striking down that provision, the Court had observed:--

"The statutory purpose underlying the provision providing for representation to the market committee is to provide for the promotion and protection of interests of growers and traders who are the directly affected parties under the Act. The statute accepts broadly the principle that these interests are best protected by permitting the affected owners of those interests to elect their representatives to the market committee in whose hands the management of the market yard and the enforcement of the entire Act is placed. If the market committee is not properly balanced by due representation to the conflicting interests and is tilted against anyone of the two major interests that situation of imbalance would lead not only to a failure of the Act but would also result in the traders' getting at the cost of growers."

"The failure of the Statute to provide election by the growers to the market committee in our view, therefore, is not based on any reasonable criteria."

"After making every reasonable presumption in favour of the legislative measure and after carefully examining its statutory purposes and practical consequences with the help of its own provisions, if we are unable to discern any reasonable basis for the classification, we cannot but declare such law to be violative of Article 14 and, therefore, unconstitutional. Judicial self-restraint should not be allowed to defeat judicial responsibility."

In that view of the matter, the Court declared :--

"The law therefore does not enact a reasonable classification but a class legislation. It is a hostile piece of legislation and it is discriminatory to the growers and accordingly constitutes a violation of the pledge of equal protection of laws clause in our Article 14."

4. It is further pointed out that the provisions which empowers the Government to nominate from among the growers of the agricultural produce and owners of livestock and products of livestock does not lay down any guidelines and as such it vests an arbitrary and unguided power in the Government and that there is no procedural safeguard and hence that provision is violative of Article 14 even on this ground. It is vehemently contended that when the earlier provisions were struck down on the ground referred to above, instead of making provision for election of the representatives of the growers of the agricultural produce and owners of livestock and products of livestock, provision quite to the contrary has been made. It is also urged that no guidance is provided even by the amended provisions fop nomination of any of the members. What has been done is a mere sub-classification of the growers of agricultural produce and the traders. That does not amount to providing any guidance.

5. Prior to the amendment, a market committee was to consist of not less than twelve members and not more than sixteen members. Now under the amendment, it must consist of not less than, fifteen and not mote than eighteen members. So far as the appointment by Government of a member from among the presidents and persons, it any, for the time being performing the functions of the presidents, of the co-operative marketing societies having their areas of operation within the notified area, or one representative of the Agricultural Department or the Animal Husbandry Department to be appointed by the Government and the Chairman of the Municipality or the Sarpanch of the gram panchayat as the case may be, within whose jurisdiction the office of the market committee is located, there is no change. So far as nomination of persons from among the growers of agricultural produce and owners of livestock and products of livestock in the notified area, is concerned, now not less than two-thirds of the members of each committee have to be appointed by the Government. Further the growers of the agricultural produce and owners of livestock and products of livestock are classified as 'small farmers' and persons other than small farmers; small farmers of dry lands or small farmers of wet lands; and likewise, small farmers who are growers of agricultural produce on dry lands and small farmers who are growers of agricultural produce on wet lands. Likewise, among the traders, persons whose annual turnover in the notified area exceeded Rs. 2 lakhs, and those whose annual turnover in the notified area was below Rs. 2 lakhs are classified separately. Under the Rules framed to give effect to the purpose of the amended Act, in the case of market committees having eighteen members, twelve members are required to be nominated tram among the growers of agricultural produce and owners of livestock and products of livestock and in case of the market committee having a total strength of fifteen but not more than eighteen, the nominated members are to be ten. And from among the traders, they are to be respectively three and two. That Rule reads as follows:

"(1) Every market committee shall be composed of--

(a) 18 members, in case it has an annual income of rupees two lakhs or above;

(b) 15 members, in case it has an annual income of less than rupees two lakhs; consisting of the representatives of different interests specified in Sub-section (1) of Section 5 of the Act as follows, namely:--

Name of the Interest whom a member represents Number of representatives each committee should consist of it is 18 member committee.

15 member committee.

(i) Growers of Agricultural Produce and the owners of livestock and products of livestock;

(a) Growers of Agricultural Produce who are small farmers of dry lands.

(b) Growers of Agricultural Produce other than small farmers of dry lands.

(c) Growers of Agricultural Produce who Are small farmers of wet lands.

(d) Growers of Agricultural Produce other than small farmers of wet lands, and

(e) The owners of Livestock and Produce of live stock.

(ii) Members of Co-operative Marketing Societies as in Section 5(1) (ii) of the Act.

(iii) Agricultural Department or the Animal Huabandry Department as in Section 5 (1) (iii) (a) of the Act.

(iv) Municipality or the Gram Panchayat as in Section 5 (1) (iii) (b) of the Act

(v) Traders as in Section 5 (1) (iv) of the Act.

Total

6. Sri Venugopala Reddy, learned conn-Bel for the petitioners, contends that the Division Bench, striking down Section 5 (1) and (2) of the principal Act, declared that it was the elected members that can best subserve the interests of the different interests represented on the market committee. The amended Act gives a go-by to the system of election and is contrary to the intendment of the judgment of this Court. He argues that if the provisions were held to be violative of Article 14 because the principle of election was not observed with respect to the representatives of the growers of the agricultural produce and owners of livestock and products of livestock as well at in the case of traders the amended provision must also be held to be violative of Article 14 of the Constitution. We must point out that this is not the correct interpretation of the earlier judgment of this Court. The Court, in declaring the said provision to be violative of Article 14, pointed out that growers of agricultural produce and owners of livestock and products of livestock on the one hand and the traders in agricultural produce, owners of livestock and products of livestock on the other, represent two vital interests in the market committee and if one interest was represented by those elected from among themselves, and according to the Bench elected representatives are better suited to safeguard the interests of the particular section the other section also ought to have been given an opportunity to be represented by members elected from among themselves. Such a discrimination was held to be striking at the root of the validity of that provision. What would have been the position if the Legislature had made provision for nomination of both the interests, that is, growers of agricultural produce and owners of livestock and products of livestock on the one hand and the traders on the other, did not come up for consideration in that case. Whatever may be said about the system of nomination as compared to the system of election to a particular body, when all the interests are to be informally represented either by elected representatives or by nominated members, none of such groups can complain of hostile discrimination. That is what the Legislature in its wisdom, has now done. Now, both the traders and the growers of agricultural produce and owners of livestock and products of livestock, are to be nominated by the Government by a notification. May be, if provision was made for election of the representatives of the growers and owners of livestock and products of livestock, would have been better, but the Legislature in its wisdom must have thought nomination of persons representing the two groups was in the best interests of the market committees. Whatever criticism on such a provision may be open to, cannot certainly be questioned on the ground that it is violative of Article 14 of the Constitution. May be, the Legislature, after considering the several aspects, was of the view that the interests of the traders as well as the growers of agricultural produce and owners of livestock and products of livestock are better served by nomination of the members of those categories. May be, the administrative difficulties and financial burden of conducting elections to several market committees, especially when growers of agricultural produce and owners of livestock run into several lakhs, weighed with the Legislature in abandoning the election process. Or may be, it thought that on committees like this, persons with special knowledge or experience may not come forward to seek election and the Government preferred to secure their services by nominating them to these committees in the hope that the committee would function better. Those are matters entirely for the Legislature to consider and decide. It is not the province of this Court to say that the method of election alone is to be preferred as against the method of nomination in constituting the market committees. It is a matter of opinion. So long as such nomination does not violate any provision of the Constitution, the Court cannot substitute its own view in matters such as these and strike down the legislation. It may be pointed out that the pas sage from the judgment of this Court relied upon by the learned counsel to the effect that interests are best protected by permit ting the affected owners of those interests to elect their representatives to the market committee were made only to emphasise that the others interest Was not similarly represented by the elected members but was represented only by nominated members. It was never meant that the persons to man the market committees must be chosen only by the process of election from among the members of that category. In our view, inasmuch as all the interests envisaged by the Act are represented by per sons nominated by the Government, no question of hostile discrimination arises so as to hold the said amended provisions of the enactment to be violative of Article 14 of the Constitution.

7. It was next contended that no guidelines are laid down by the Legislature to ensure that the Government does not act arbitrarily in the matter of nominating persons to the committee. The Government, which has been given an unfettered and unguided discretion and it is alleged, is apt to exercise it arbitrarily and as such must be deemed to be violative of Article 14 of the Constitution, As already pointed out above, while prior to the amendment, no distinction was made among the large number of growers of the agricultural produce within the notified area, the amended Act identified small farmers and farmers other than small farmers and also small farmers of wet lands on one hand and the farmers of dry lands on the other hand and farmers other than small farmers who grow agricultural produce on dry or on wet lands. The problems of small farmers of wet and dry lands in the matter of growing their produce and the problems of persons other than small farmers growing agricultural produce on wet and dry lands may be different and therefore, they may have to be represented on the committee. So also among the traders the problems of small traders whose annual turnover does not exceed Rs. 2 lakhs and of those whose turnover exceeds Rs. 2 lakhs may be different and their interests have to be represented in administering the market through the market committee. A reading of these provisions along with the preamble of the Act and the other provisions would in our opinion, provide sufficient guidance to the Government as to who should be appointed to a particular market committee. The object of the enactment is to regulate purchase and sale of agricultural produce, livestock and products of livestock and the establishment of markets in connection therewith. The market committee is to be a body corporate having perpetual succession and a common seal with powers to acquire, hold and dispose of property, as laid down in Section 4 of the Act and it is charged with the duty of enforcing the provisions of the Act and the Rules and Bye-laws made thereunder within the notified area. It is charged with the function of establishing requisite number of markets within its jurisdiction from time to time for the purchase and sale of any notified produce of livestock and products of livestock and provide facilities in the market for that purpose. In particular, it is also charged with the duty of establishing markets for purchase and sale solely of vegetables and fruits and provide facilities for such sale or purchase. The limits of every market are also to be notified. In the light of the experience of the functioning of the markets and the convenience or difficulties experienced by the growers and the traders, the area of the market committee may be altered by inclusion or exclusion of the areas from time to time by a notification in the gazette issued by the Government. Trading in the markets in the notified areas is regulated by licences, as laid down by Section 7 of the Act. The market committee is required to meet from time to time and at least once in a month. It is also empowered to levy fees on agricultural produce, livestock or products of livestock purchased or sold in the notified area and provide facilities for the sellers, buyers and traders. The market committee is empowered to levy subscription for market reports etc. to provide information to its subscribers regarding statistics, markets and prices in respect of notified agricultural produce, livestock or products of livestock. The purposes for which the market fund constituted under Section 14 of the Act may be expended are laid down in Section 15 of the Act. Among others, the purposes for which the market funds may be expended are : establishment, maintenance and improvements of markets, acquisition of site for such purpose, provisions for maintenance of standard weights and measures, propoganda for the improvement of agriculture, livestock and products of livestock, measures for the preservation of foodgrains and for promotion of grading services. It is also intended to check excess and unauthorised collection from the growers by traders or otherwise within the market area. AH trade is to be regulated in accordance with the rules prescribed. Under Section 33 of the Act, the Government is empowered, to frame rules to carry out the purposes of the Act. The Act overrides all other laws.

8. It would thus be seen that this Act is a fairly comprehensive Act covering the purchase and sale of notified 'agricultural produce, livestock and products of livestock and intended to provide facilities for marketing of these products and to put a check on unauthorised collections to which the growers of agricultural produce and owners of livestock and products of livestock are exposed in the process of sale of their stock. Having regard to the fact that the growers run into lakhs only an agency like the Government may be able to identify the persons suitable and sufficiently qualified for being nominated to the committees to represent the various interests. It is not any subordinate authority, but the Government which is the highest administrative authority, that is vested with the power to nominate persons of each category on the Committee. It is well settled that if such a power is vested in the highest authority, it is assumed that it would act fairly having regard to the provisions of the Act and its intendment and to advance the purposes of the Act. The provisions made in the amended Sub-sections (1) and (2) of Section 5 of the Act, read with the other provisions of the Act referred to above, provide sufficient guidelines to this highest authority of the State in the matter of nominating the members to the committee; be it from the category of growers or of traders. In Jyoti Pershad v. Union Territory of Delhi, , a similar contention that the Act itself did not provide any guidelines, was repelled and it was observed that

"it is not essential for the legislation to comply with the rule as to equal protection, that the rules for the guidance of the designated authority, which is to exercise the power or which is vested with the discretion, should be laid down in express terms in the statutory provision itself"

"The Saurashtra case would seem to lay down the principle that if the impugned legislation indicates the policy which it is to seek to attain, the mere fact that the legislation does not itself make a complete and precise classification of the persons or things to which it is to be applied, but leaves the selective application of the law to be made by the standard indicated or the underlying policy and object disclosed is not a sufficient ground for condemning it as arbitrary and therefore, obnoxious to Article 14." The Supreme Court further laid down that "such guidelines may thus be obtained from or afforded by (a) the preamble read in the light of the surrounding circumstances which necessitated the legislation, taken in conjunction with well-known facts of which the Court might take judicial notice or of which it is appraised by evidence before it in the form of affidavits, being an instance where the guidance was gathered in the manner above indicated (b) or even from the policy and purpose of the enactment which may be gathered from other operative provisions applicable to analogous or comparable situations or generally from the object sought to be achieved by the enactment."

9. It is unnecessary to multiply the authorities on this aspect which is well settled, viz., that the guidance for the exercise of the discretion vested in a highly placed authority, may be gathered from the various provisions of the Act. As discussed above, the provisions of the principal act read with the provisions of the amended act provide sufficient guidelines to a highly placed authority like the Government in the matter of nominating the members to the market committee. The contention that the amended provision is violative of Article 14 of the Constitution, for the reason that it does not provide any guidelines in the matter of nomination to the committee must therefore be rejected.

10. It was next feebly contended that greater representation was given to the growers us compared to the traders on the market committee. This contention is without substance for there is no law that all the interests which may be represented on a given committee constituted under the enactment, should be equally represented. The representation on a particular committee is itself a right granted by the Statute and not a fundamental right or a natural right. If the Legislature, in its wisdom, having regard to the large number of growers of agricultural produce and owners of livestock and products of livestock, has given a larger representation to them on the market committee than to the traders who are intinitesimally few as compared to the growers, that legislation cannot be struck down as vesting an arbitrary power or as discriminatory. In the matter of nomination to the committees constituted under an enactment, no citizen can claim a fundamental right or violation of any such fundamental right on that ground.

11. In view of the above discussion, we are of the view that the attack on the vires of the amended enactment is unsustainable. These writ petitions fail and are accordingly dismissed, but in the circumstances, without costs. Advocate's fee: Rs. 150/- in each.

12. On the pronouncement of the judgment, oral request was made for grant of leave to appeal to Supreme Court of India. We are unable to certify that these writ petitions involve such substantial questions of law of general importance as requires the consideration of the Supreme Court of India or that it is otherwise fit case for grant of leave. Leave refused.