N.P Singh, J.:— This application has been filed on behalf of the Food Corporation of India for a writ of mandamus directing the Bihar State Agricultural Marketing Board (hereinafter referred to as ‘the Board’) and the Agricultural Produce Market Committee (herein after referred to as ‘the Committee’) not to realise market fee over purchase and sale of sugar and wheat by the petitioner because the provisions of the Bihar Agricultural Produce Markets Act (hereinafter referred to as ‘the Markets Act’) and the Rules framed thereunder are not applicable to the purchase and sale made by the petitioner.

2. The petitioner-Corporation has been established under the Food Corporation of India Act, 1964. According to the petitioner, it is an agency to implement the national food policy for protecting the interest of the producers and the consumers and with that object in view it has to procure, store, distribute sugar and wheat within the State of Bihar, as per direction of the Central Government, so that the primary producers obtain the price fixed by the Government of India from time to time and the consumers are protected from the vagaries of speculative trade. While discharging the aforesaid duties of procuring foodgrains and distributing the same to the consumers, there is no element of profit, the primary object being to protect the interest of the producers and the consumers of such articles. The business of the petitioner is virtually under the control of the Central Government, who, from time to time, issues directions in respect of sale and purchase of different articles. The petitioner has no independent volition in respect of those transactions. It was pointed out that the petitioner has been incurring losses which are compensated by the Government of India. In other words, as the petitioner is not doing the business of purchase and sale in its strict sense, it is not a trader within the meaning of the Markets Act. In view of the definition of “agricultural produce” given in the Markets Act and sugar and wheat having been specifically mentioned in the Schedule of the Act, in the present case, there is no controversy that sugar and wheat shall be deemed to be agricultural produce. The dispute is primarily as to whether the provisions of the Markets Act are applicable to the transactions of purchase and sale of wheat and sugar within the market areas in question.

3. “Sale” and “trader” have been defined under section 2(p-1) and 2(w) which are as follows:

“2(w)-“trader” means a person ordinarily engaged in the business of buying and selling agricultural produce as a principal or as a duly authorised agent of one or more principals and includes a commission agent or a person ordinarily engaged in the business of processing of agricultural produce.

Explanation.— The word “person” includes any firm, joint family, association or body of individuals whether incorporated or not.”

4. On a plain reading the expression “sale” as defined in the Act will include any transfer of an agricultural produce for a price paid in each or in lieu of some other valuable product.

5. It is the case of the petitioner that it purchases levy sugar, as per the orders of the Government of India, which are sold to the nominees of the State Government, as per Central Government's allocation. Such sugar is sold to the nominees of the State Government at price fixed by the Government of India. As regards wheat, it is received from the surplus States like Uttar Pradesh, Punjab and Haryana and it is also sold to the nominees of the State Government at a price fixed by the Government of India. It was pointed out that on many occasions the petitioner has to supply sugar from its depots to the State Government's nominees at a subsidised rates to maintain the stock and arrest the rise in price of the sugar. Sometimes the sugar and wheat are sold at price lesser than the price, the petitioner has paid for purchase of the same, because of which the petitioner has been incurrirg heavy losses which are compensated later by the Government of India through subsidy. This is necessary, accordirg to the petitioner, to maintain the price of foodgrains and sugar at a uniform rate throughout the country and to make them available for the people in general. According to the petitioner, in the whole transaction of purchase and sale of sugar, there is no element of free volition which is an integral part of sale. There is no purchase or sale of sugar in the eye of law so as to make the petitioner liable to pay market fee.

6. From time to time the Supreme Court had to consider in connection with different enactments as to whether sale takes place within the meaning of the Sale of Goods Act or the enactment is question in which the expression “sale” has been defined. In one of the earliest case of New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar (AIR 1963 Supreme Court 1207), a question arose as to whether the transaction of despatches of sugar by the Company in question pursuant to the directions of the Controller amounted to sale within the meaning of Sale of Goods Act. It was held that as the Controller called upon the manufacturing units to supply the whole or part of the requirements there was manifestly no offer to purchase sugar and no acceptance of any offer by the manufacturer. The manufacturer was under the Control Order left with no volition; as such the transaction cannot be held to be sale. Similar view was expressed in the case of Chhitter Mal Narain Das v. Commissioner Of Sales Tax. ((1970) 3 SCC 809 : AIR 1970 Supreme Court 2000), while examining the provisions of of the U.P Wheat Procurement (Levy), Order 1959, saying that under the said Procurement Order the obligation to deliver whest arose out of statute and there was no volition of the licensed dealer, and, as such, there was no ‘sale’.

7. It may be pointed out that a larger Bench of the Supreme Court, in the case of Salar Jung Sugar Mills Ltd. v. State of Mysore ((1972) 1 SCC 23 : AIR 1972 Supreme Court 87), considered the question as to when a sugarcane grower supplies sugarcane to a sugar factory in accordance with the terms, conditions and price fixed by different statutory orders, whether a “sale” takes place. After referring to the aforesaid judgments in the cases of New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar (supra) and Chhitter Mal Narain Das v. Commissioner Of Sales Tax. (supra) it was held:

“The Control Orders are to be kept in the forefront for appreciating the true character of transactions. It is apperent that the area is restricted. The praties are determined by the order. The minimum price is fixed. The minimum quantity of supply is also regulated. These features do not complete the picture. The entire transaction indicates that the parties agree to buy and sell. The parties choose the terms of delivery. The parties have choice with regard to obtaining supply of a quantity higher than 95 per cent of the yield. The parties can stipulate for price higher than the minimum. The parties can have terms of payment in advance as well as in cash. A grower may not cultivate and there may not be any yield. A factory may be closed or wound up and may not buy sugarcane. A factory can reject goods after inspection. The combination of all these features indicates that the parties entered into agreement with mutual assent and with volition for the transfer of goods in consideration of price. Transactions of purchase and sale may be regulated by schemes and may be liable to restrictions as to the manner or mode of sale. Such restrictions may become necessary by reason of co-ordination between production and distribution in planning the economy of the country. The contention of the appellants fails. The transactions amount to sales within the meaning of the Mysore Sales Tax Act.”

8. In the case of Vishnu Agencies (Pvt.) Ltd. v. Commercial Tax Officer ((1978) 1 SCC 520 : AIR 1978 Supreme Court 449), the Supreme Court overruled the view expressed in the case of New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar (supra) in the following words:

“Since we are putting in a nutshell what we have discussed earlier, we would like to reiterate in the interest of uniformity and certainty of law that, with great deference the majority decision in New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar (supra) is not good law. The true legal position is as is stated in the minority judgment in that case and in Indian Steel and Wire Products (supra), Andhra Sugars (supra) Salar Jung Mills and Oil and Natural Gas Commission (supra).”

9. Again in the case of Ram Chandra Kailash Kumar & Co. v. State of U.P (1980 Supp SCC 27 : AIR 1980 Supreme Court 1124), a Constitution Bench rejected the contention that when sale takes place pursuant to the control regulations, there is no sale, and observed as follows:

“This point has no substance and has got to be rejected. As held in Vishnu Agencies (Pvt.) Ltd. v. Commercial Tax Officer, (1978) 2 SCR 433 on a review of earlier decisions even if a commodity is sold pursuant to the controlled regulations still some small area is left to make it a transaction of sale. It may well be that no freedom is left to the parties in a large area of the transaction yet is a transaction of sale.”

10. Recently a Full Bench of this Court, in the case of Vishnu Sugar Mills Ltd. v. Food Corporation of India (AIR 1987 Patna 22 : 1986 PLJR 1045), after referring to the judgments of the Supreme Court, mentioned above, has held in respect of sale of sugar under Sugar Levy Order as follows:

“The aforequoted provisions would make it manifest that these in essence mandate a sale of an essential commodity in general, a fid sugar in particular to the Central or the State Government or to Corporations owned or controlled by them or to such person or class of persons and in such circumstances as may be specified by an order issued under the Act. It is significant to highlight that the Essential Commodities Act, though having a definition clause, does not even remotely attempt or seek to define the concepts of sale or purchase. No special or different meaning is given thereto with regard to statutory sales. Therefore the general law of sale and purchase of goods would mutatis mutandis be equally applicable and attracted to statutory sale as well. Consequentially there can be perhaps no manner of doubt that the levy sugar is to be sold under the directions of the State and the incidents applicable to such a sale under the Sale of Goods Act must necessarily apply to it as well.”

11. Incidentally it may be mentioned that the petitioner was a party in that case. In my view now it is futile on the part of the petitioner to urge that when it purchases sugar from the mills within the market area and sells the same to the different nominess of the State. Government within the market area, there is no transaction of buying and selling within the meaning of the Act so as to attract the provisions of section 27 of the Act which imposes a liability to pay market fee on the agricultural produce bought or sold within the market area.

12. It was then submitted that a person can be held to be a “trader” when he is ordinarily engaged” in the business of buying and selling agricultural produce”. It was pointed out on behalf of the petitioner that although the petitioner is buying sugar and wheat within the market area and selling the same to the different nominees of the State Government, but it shall not be deemed to be a “trader” because the petitioner is not engaged in the business of buying and selling agricultural produce in its strict sense because such buying and selling are done without any profit motive. The purchase are sale are for purpose of servirg the people in general by maintaining the price line of sugar and wheat.

13. In the statement of objects and reasons of the Food Corporation of India Act, it has been stated as follows:

“It is considered desirable, in the interests of increased agricultural production as well as in the interests of the common consumer, to set up a State Agency for the purpose of undertaking trading in foodgrains in a commercial manner but within the framework of an over-all Government policy. Only by such a measure it will be possible to effectively implement any policy of ensuring that the primary producer obtains the minimum price that may be announced from time to time and to protect the consumer from the vagaries of speculative trade.”

(emphasis added).

14. The preamble of that Act is as follows:

“An Act to provide for the establishment of Food Corporations for the purpose of trading in foodgrains and other foodstuffs and for matters connected therewith and incidental thereto.”

(emphasis added).

15. It is well settled that reference can be made to the statement of objects and reasons as well as preamble of an Act to appreciate the scope of that particular enactment. The framers of the Act have given out in clear and unambiguous terms that the object of establishment of Food Corporation of India is for the purpose of “trade in foodgrains and other foodstuffs”. Section 13 of that Act specifies the functions of the Corporation which includes undertaking purchase, storage, distribution and sale of foodgrains and other foodstuffs. Section 33 which is a provision in respect of allocation of surplus profits is as follows:

“33. Allocation of surplus profits.—(1) A food Corporator shall establish a reserve fund to which shall be credited every year such portion of its annual net profits as that Corporation thinks fit.

(2) After making provision for such reserve fund and for bad and doubtful debts, depreciation in assets and all other matters which are usually provided for by companies registered and incorporated under the Companies Act, 1956, the balance of its annual net profits shall be paid

(a) in the case of the Food Corporation of India, to the Central Government, and

(b) in the case of a State Food Corporation, to the Central Government and the Food Corporation of India in the same proportion as the capital provided by them.”

16. Section 34 requires the Corporation to maintain proper accounts and other relevant records and to prepare an annual statement of accounts including the profits and loss account and the balance sheet in such form as may be prescribed. Section 42 imposes the liability to pay income tax on the petitioner-Corporation in the following words:

“42 Provision relating to income-tax, supertax, etc.—For the purposes of the Income-tax Act, 1961, or any other enactment for the time being in force relating to income-tax, supertax or any other tax on income, profits or gains, a Food Corporation shall be deemed to be a company within the meaning of the Income-tax Act, 1961 and shall be liable to tax accordingly on its income, profits and gains.”

17. From the statements of objects and reasons, preamble, sections 33, 34 and 42, referred to above, it is apparent that the framers of the Act had established the petitioner-Corration for the purpose of trade in foodgrains and other foodstuffs and it was expected that the Corporation shall earn profit, the net profit whereof shall be paid to the Central Government. The Corporation was also made liable to pay income tax in accordance with the provisions of the Income Tax Act, 1961. In this background, in my view, it is difficult to hold that although the petitioner is engaged in the business of buying and selling of agricultural produce it shall not be trader within the meaning of the Markets Act. If the petitioner is held to be not a trader merely on the ground that it is not deriving any profit and has been incurring losses from time to time, then, on that very reasoning, even other private traders have to be exempted from the liability to pay market fee over the purchases made by them if they are incurring losses in the business or trade in which they are engaged. The liability to pay market fee is imposed by section 27, the charging section. It is not dependent as to whether the trader in question is earning profit or incurring losses in the trade. The liability has been created only on fulfilment of two conditions; (i) there should be a sale and purchase of an agricultural produce, and (ii) the transaction of purchase and sale must take place within the market area in question. The petitioner was established for doing trade in foodgrains and other foodstuffs and it has been purchasing and selling sugar and wheat within different market areas. Sugar and wheat are agricultural produce within the meaning of the Act. As such the petitioner cannot, in my view, escape the liability of paying market fee over such purchases or from collecting market fees from the persons to whom sugar and wheat are sold within the market area in question.

18. It was also submitted that if the provisions of the Markets Act are held to be applicable to the transaction of purchase and sale of sugar made by the petitioner, the Markets Act itself be ultra vires because sugar is a product of industry declared to be under the control of the Union under Entry 52 List I to the VIIth Schedule of the Constitution. According to the petitioner, in view of the Industries (Development and Regulation) Act, 195.1, the Essential Commodities Act, 1955 and the Orders framed thereunder, the complete field in respect of production of sugar and distribution thereof is controlled by the Central Government. The field having been completely occupied by the Acts and Orders framed by the Parliament and the Central Government there was no scope for the State Legislature to make the Act applicable to sugar industries

19. It has been held by this Court, in several judgments that the Market Act has been framed, in pith and substance, under Item 28 List II-“/Markets and Fairs”. In the case of The Belsund Sugar Co. Ltd. Riga v. The State of Bihar (AIR 1977 Patna 136 : 1977 PLJR 8) this very argument had been advanced saying that as Sugar industry is an industry under the control of the Union and, in view of Entry 52 of the Union List, Parliament has exclusive jurisdiction, as such, the State Legislature was not competent to legislate and make provisions in connection with such industries and any provision made in respect of such industries had to be declared as void. Repelling this argument a Bench of this Court came to the following conclusion:

“The object of the Act is to regulate buying and selling of agricultural produce by establishing markets for agricultural produce in the State of Bihar, and, while doing so, it is incidentally making the purchaser of sugrcane or sugar liable to pay market fee cannot be said to be an Act concerning an industry. A Bench of this Court in B. & K. Traders v. Slate of Bihar, (1975 BBCJ 1) has considered as to under which entry of the State List the Act in question falls and it has held that it is covered by Entry No. 28 “Markets and Fairs” and, as such, in my opinion, there is no question of legislative incompetence on the part of the State Legislature in enacting the Act in question.”

20. No decision has been brought to our notice of this Court or of the Supreme Court where any Act made by the State Legislature in respect of realisation of market fee over the sale and purchase of agricultural produce has been held to have been enacted under any other entry of the State List, except No. 28 “Market and Fairs”. The matter would have been different if the Markets Act would have been held to have been enacted under Entry No. 24 of the State List, that is, an Act relating to an industry which in view of the declaration by the Parliament, referred to above, was not possible to be enacted by the State Legislature. But once it is held that the Markets Act, in pith and substance, has been enacted under Entry No. 28 of the State List, there is no question of its being void merely because sugar industry is an industry which has been declared under the control of the Union and it is the Parliament which has exclusive jurisdiction over such industries in view of Entry No. 52 of the Union List.

21. So far as the argument that the whole field is respect of production, sale and distribution of sugar is occupied by the enactments and orders framed by the Parliament and the Central Government, nothing was pointed out from the Industries (Development and Regulation) Act to show that provision of that Act provides a specific procedure for purchase of sugar from the mills by the dealers/traders and then sale of such sugar to other dealers or consumers so as to make the provisions of the Markets Act inapplicable in respect of sugar. The learned Counsel appearing for the petitioner referred to Levy Sugar Supply (Control) Order, 1979, which has been framed under section 3 of the Essential Commodities Act by the Central Government. That Order vests power in the Central Government to issue directions, from time to time, to any producer or recognised dealer to supply levy sugar of such type or grade, in such quantities and from such place of manufacture or storage to such persons or organisations, in such areas or markets, or to such State Governments, as may be specified in the Order and at a price not exceeding the price determined under sub-section (3C) of section 3 of the Essential Commodities Act The explanation to clause (2) of that Order says that “Levy Sugar” means the sugar requisitioned by the Central Government under clause (f) of sub-section (2) of Section 3 of the of Essential Commodities Act. The provisions of Levy Sugar Supply (Control) Order simply empowers the Central Government to issue directions to any producer or recognised dealer to supply levy sugar to persons, organisations or State Government, as directed by the Central Government. None of the clauses of that Order make any provision in respect of marketing of such levy sugar. The markets Act is concerned only with the marketing of sugar, as an agricultural produce whether it is levy sugar or free sale sugar, in specified market areas. The provisions in respect of establishment of markets under the Markets Act have been made with an object to provide facilities to persons buying and selling agricultural produce including sugar. The Levy Supply (Control) Order is not at all concerned with this aspect. As such there is no question of the field being completely occupied by the Essential Commodities Act and the Levy Sugar Supply (Control) Order so as to make the provisions of the Markets Act inapplicable so far sugar is concerned.

22. On behalf of the petitioner reliance was placed on the majority judgment of the Supreme Court in the case of I.T.C Ltd. v. State of Karnataka [1985 Supp SCC 476]. From a bare reference to the aforesaid judgment it shall appear that in that case the Parliament had enacted Tobacco Board Act, 1975 which regulated marketing of tobacco as well. In that situation, in majority judgment, the Supreme Court held that the Union Legislature having enacted the Tobacco Board Act which, dealt with the marketing of tobacco as well, the State Act in regard to marketing it to be an agricultural produce was inoperative.

23. On behalf of the respondents it was pointed out that the case of L.T.C Ltd. v. State of Karnataka (supra) has been referred to a Constitution Bench for reconsideration. Any way, I am not concerned with that aspect of the matter because till the view expressed in the majority judgment is overruled by a Larger Bench it is binding on this Court. But, in the facts and circumstances of the present case, as already pointed out above, that decision is of no help to the petitioners. A Bench of this Court has examined this very question in connection with purchase and sale of Baby Food within the market area in the case of Raptakos, Brett & Company Limited v. The Bihar State Agricultural Marketing Bord (1988 PLJR 830) and has rejected the submission that as the production and sale of of the Milk Food is covered by the Industries (Development and Regulation) Act and the Essential Commodities Act, the field is occupied and there is no scope for applicability of the Markets Act in respect of sale and purchase of Milk Food.

24. It was then submitted that if the provisions of the Act are held to be applicable to the sale and purchase of sugar, then the petitioner has to contravene some of the provisions of the Act and the Rules framed thereunder. It was pointed out that the petitioner has to purchase the sugar from the mills within the market area and to sell the same to the different nominees of the State Government as per directions. It is not possible to sell them by auction as required by section 15 of the Act and Rule 94. Section 15 requires any person to sell any agricultural produce only at the principal market yard or sub yard. Similarly Rule 94 requires agricultural produce brought into or processed in the market area to pass through the principal market yard or sub-yard or yards and not to be bought or sold at any other place within the market area unless an exemption is granted by the Board. This aspect of the matter was also examined in the aforesaid case of The Belsund Sugar Co. Ltd., Riga v. The State of Bihar (supra) in connection with purchase and sale of sugar itself and it was observed as follows:

“Sub-section (1) of Section 15 requires sugar, which is an agricultural produce, to be brought to the principal market yard or sub-market yard or yards for being sold, and sub-section (2) prescribes that the sale and purchase shall take place by means of open auction. According to the petitioner, it is not permissible for it to sell the sugar by public auction, because the price of such sugar has been fixed by the Sugar (Price Determination) Order, 1972, or by similar orders made from time to time. Similarly, neither it is permissible nor it is possible to carry all the sugar produced by the factory of the petitioner to the principal market yard or sub-market yard or yards. Learned counsel for the petitioner has submitted that this provision is the very soul of the Act inasmuch as it makes a provision for sellers and buyers to come to the market yard and sell and purchase articles by open auction. In my opinion, it is difficult to accept that, if this section is held to be inoperative so far as sugar is concerned, the whole Act will have to be held to be void and unworkable.”

25. Sub-section (2) of Section 15 as well as Rule 94 aforesaid themselves provide that it will be open to the Board to exempt the sale of any agricultural produce from the requirement of Section 15 and Rule 94. If no exemption has been granted to the petitioner, the petitioner should apply for exemption and I have no doubt that taking into consideration the nature of the transaction of purchase and sale made by the petitioner, the Board shall grant the necessary exemption to the petitioner from the applicability of the provisions of Section 15 and Rule 94, But, on that ground, it cannot be held that the provisions of the Markets Act are not applicable to the purchase and sale of sugar and wheat made by the petitioner. In the result, this application fails and it is dismissed.

B.N Agrawal, J.:— I agree.