Madras High Court
P.K. Deivasigamani vs State Of Tamil Nadu on 17 December, 2014
Author: B. Rajendran
Bench: B.Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Orders Reserved on : 23.09.2014
Pronounced on : 17-12-2014
Coram
THE HONOURABLE MR. JUSTICE B.RAJENDRAN
Writ Petition Nos. 6785 and 6786 of 2013
and
M.P. Nos. 1 and 1 of 2013
--
1. P.K. Deivasigamani
2. Dr. M.R. Sivasamy
3. P. Kasiannan
4. V.M. Velayutham .. Petitioners in both
5. Thalapathi the Writ Petitions
Versus
1. State of Tamil Nadu
Rep. by the Secretary to Government
Agricultural Department
Secretariat, Fort St. George
Chennai - 600 009
2. The Commissioner of Agricultural Marketing
and Agricultural Business
Thiru-vi-ka Industrial Estate
Guindy, Chennai - 600 032
3. The Deputy Director of Town and Country Planning
Salem Region, Suramangalam
Salem - 636 005
4. The District Collector
Erode District
Erode
5. Nasiyanur Town Panchayat
Rep. by its President
Nasiyanbur - 638 107
6. Erode Market Committee
Rep. by its Secretary
Erode - 638 011
7. Erode Manjal Vanigarkal Matrum Kidangu
Urimaiyalargal Sangam
Rep. by its Secretary
877, Park Road
Erode - 638 003
8. Tamil Nadu Generation and Distribution
Corporation Limited (TANGEDCO)
rep. by its Chairman
No.144, Anna Salai
Chennai - 600 002
9. The Assistant Engineer (O&M)
Tamil Nadu Generation and Distribution
Corporation Limited
(TANGEDCO)
Erode Electricity Distribution Circle
Nasiyanur, Erode - 638 107
10. Tamizhaga Vivasayigal
rep. by its District Secretary
T. Muthusamy @ Subbu
Erode District
Registration No.6/91
No.602/487, Perundurai Road
Erode - 638 011
(R10 impleaded as per order dated
08.04.2013 made in MP Nos. 2 and 2 .. Respondents in both
of 2013 in WP Nos. 6785 & 6786/2013) the Writ Petitions
WP No. 6785 of 2013:- Petition filed under Article 226 of The Constitution of India praying to issue a Writ of Mandamus directing the respondents 1 to 6 to strictly enforce the provisions of Section 8 of the Tamil Nadu Agricultural Produce Marketing (Regulation) Act, 1987 by preventing any parallel trading in turmeric within the notified area of Erode Town, Erode District, by the seventh respondent association or any of its members or any other person/s, agent/s, entity/ies claiming and/or acting under the seventh respondent.
WP No. 6786 of 2013:- Petition filed under Article 226 of The Constitution of India praying to issue a Writ of Mandamus directing the respondents 1 to 6 to prevent the seventh respondent association, their members, employees, agents or any other persons claiming and/or acting under the seventh respondent from in any manner trading in turmeric in any place other than the market as notified by the first and the sixth respondent within the notified area of Erode Town.
For Petitioner : Mr. Satish Parasaran
in both the writ petitions
For Respondents : Mr. K.V. Dhanapalan
Additional Government Pleader for RR1 to 4
in both the writ petitions
Mr. P. Chinnadurai for R5
in both the writ petitions
Mr. Jayaprakash Narayanan for R6
in both the writ petitions
Mr. A.K. Kumarasamy for R7
in both the writ petitions
Mr. S.K. Rameshwar for RR8 & 9
in both the writ petitions
Mr. R. Subramanian for R10
in both the writ petitions
COMMON ORDER
The petitioners have filed these writ petitions with identical relief. The learned counsel appearing on both sides advanced common arguments and therefore, with the consent of counsel for both sides, the writ petitions are taken up for hearing together and are disposed of by this common order.
2. (i) The writ petitioners, who are respectable citizens in Erode District, have filed the present writ petitions seeking for appropriate direction to the official respondents to take appropriate action against the seventh respondent association, whose activities are detrimental to the turmeric producers at large. According to the petitioners, the first is agriculturists in Erode District engaged in production of turmeric and also President of the Turmeric Farmers'Association. The second Petitioner is the President of the Tamil Nadu Agriculturists Association. The third petitioner is the District President of Tamil Nadu State Turmeric Farmers Association affiliated to the Turmeric Farmers Association of India. The fourth Petitioner is the President of Kalingarayan Pasana Sabhan, who is engaged in espousing the cause of farmers in general and the turmeric farmers in particular, in and around Erode District. The fifth petitioner is the President of Tadapalli Arakkankottai Pasana Vivasayigal Sangam.
(ii) According to the petitioners, India is the largest producer, consumer and exporter of turmeric. After the State of Andhra Pradesh, Tamil Nadu is the largest producer of Turmeric with Erode District being the fore runner in producing Turmeric and turmeric is one of the major agricultural produces traded in Erode Town. With the advent of Tamil Nadu Agricultural Producer Marketing (Regulation) Act, 1987, henceforth be referred to as the Act, the sixth respondent i.e., Erode Market Committee took over the functions of conducting trading in turmeric in Erode and a tender system for such trading was put in place during 1985. Section 8 of the Act prohibits any person other than the market committee from trading in turmeric within the notified area, however, an exemption is granted in favour of cooperative marketing societies founded for the benefit of the larger interest of farmers/ producers.
(iii) The grievance of the petitioners is that in Erode Town, there have been 4 markets operating in trading turmeric of which, three out of the four markets conform to the provisions of Section 8 of the Act and the remaining one, being the seventh respondent is acting and conducting the trading in violation of Section 8 of the Act. According to the petitioners, inspite of establishment of turmeric market by the sixth respondent, a parallel trading in turmeric has been commenced by the seventh respondent and it continued unabated in violation of Section 8 of the Act. Such parallel trading by the middlemen associated with the seventh respondent proved to be detrimental to the turmeric growers in several ways. According to the petitioners, trading in turmeric is conducted by the seventh respondent on daily basis in the association premises. The price at which turmeric is traded in the association premises is not the market price. The entire trade is being conducted for the benefit of middlemen and not in the interest of agriculturist. The very mechanism, including the tender, is so orchestrated as to conceal the true price of turmeric so as to enable the middlemen associated with the seventh respondent to appropriate themselves the entire undisclosed sale price rather than commission, which ranges from 2 1/2% to 5% of the sale price.
(iv) The seventh respondent functions like an elite club where membership is procured by middlemen on payment of Rs.2 lakhs by traders and Rs.6 lakhs by godown owners. Such exorbitant amount is fixed to restrain the membership to such middlemen who work in tandem with the office bearers and other beneficiaries of the seventh respondent association. The prices at which turmeric is traded by the seventh respondent association is 10% lower than the prices at which turmeric is traded in other places, including the sixth respondent or by the cooperative societies operating in Erode. The middlemen resort to age old methods such as extending hand loans to poor farmers during seeding, cultivation and harvesting of turmeric thereby make the poor farmers indebted to the middlemen, even long before their produce being brought for sale in the market. Such indebted farmers, later, finds no avenue for dealing with the turmeric except to sell them to middlemen, to whom they owe huge sums of money as loan.
(v) It is the specific contention of the petitioners that even though the aforesaid prejudicial activities of the seventh respondent association, including running parallel trading and exploiting the poor farmers through middlemen, has been brought to the notice of the sixth respondent, the sixth respondent did not take any action in a manner known to law, which largely affects the interest of the farmers
(vi) It is brought to the notice of this Court by the petitioner that in the earlier proceedings in W.P. No. 366 of 2012 before this Court, the sixth respondent herein has filed counter affidavits admitting that "it is not known as to how the traders and brokers still continues to control various agricultural produce including turmeric in gross violation of Seciton 8 of the Act." Similarly, in the same writ proceeding, counter affidavit has been filed by the seventh respondent herein stating that "auction of turmeric is not conducted by us and the role of the members of the 5th respondent herein, is only to bring samples of turmeric stored in their mundy (kidangu) to the auction centre conducted by the 2nd respondent herein at Park Road and at no point of time, we are involved in auction of turmeric in our premises." According to the petitioners, from the counter affidavit of the sixth respondent filed in the above said writ proceedings before this Court, it could be evident that the sixth respondent failed to act on the various complaints given by the farmers and/or producers and also did not take any action against the parallel trading conducted by the seventh respondent.
(vii) It is the grievance of the petitioner that in order to conform to the provisions of the Act and to put an end to any parallel trading in turmeric, during 1999, it was decided to establish an integrated turmeric complex at Perundurai, 20 kilometers away from Erode Town. The Government also, in principle, approved the establishment of turmeric complex by issuing G.O. Ms. No.165, Agricultural Department dated 09.05.1999. Thereafter, 10 acres of land, required for establishment of integrated turmeric commercial complex was also acquired by SIPCOT. However, the establishment of turmeric complex was opposed by various stake holders on the ground that it is proposed to be set up at a distance of 20 kilomers from Erode Town and that it would cause serious hardship to the farmers and/or producers. Opposing such establishment of turmeric complex, the seventh respondent also filed WP No. 613 of 2000 and another association called Sumai Thookuvor Sangam has filed WP No. 614 of 2000 before this Court. While so, the District Collector/fourth respondent herein requested the Government to re-consider the proposal to establish the integrated turmeric commercial complex at an alternative site. Thereafter, on 28.01.2004, the Commissioner for Agricultural Production/second respondent along with the third respondent jointly inspected various places and selected the lands at Nasiyanur and Villarasampatti Villages, situated at a distance of five kilometers from the Town. During such inspection, it was represented by the seventh respondent that during establishment of the turmeric complex, lands has to be set apart for provision of roads, testing laboratories, quality control testing office, rest room for farmers etc., It was also represented by the seventh respondent that such lands required for setting up infrastructure amenities would be acquired by the members of the seventh respondent themselves and would donate it for such purpose. Upon such representation of the seventh respondent and the suggestions made by various stake holders, the second and third respondents also recommended for establishing the turmeric complex in this place.
(viii) According to the petitioner, on 27.01.2004, the Secretary of the seventh respondent sent a letter to the fourth respondent stating that 25 acres of land in Naziyanur and Villarasampatti Villages have already been purchased in the name of the members for the proposed integrated turmeric complex and they are ready to offer it as a gift to the sixth respondent committee. By another letter dated 03.02.2014, the seventh respondent stated that in the event of government declaring the establishment of integrated turmeric complex at Semmampalayam, where the seventh respondent already purchased major portion of lands in the name of its members, the the seventh respondent would withdraw the WP No. 614 of 2000 filed before this Court and in such event the seventh respondent is ready to render all cooperation for establishment of the integrated turmeric complex at Semmampalayam. On the basis of such representation of the seventh respondent, the Government issued G.O. Ms.No.41, Agricultural Department (Ag.Sales -2) dated 06.02.2004 for establishment of integrated turmeric complex at a cost of Rs.36.32 crores. By this Government Order, the earlier order in G.O. Ms. No.165 dated 09.05.1999 was superseded. It was also ordered that the lands required for providing free of costs for providing infrastructural amenities shall be obtained from the members of the seventh respondent association at free of costs. It was also ordered therein that the sum of Rs.11.32 crores required for construction and provision of infrastructural amenities shall be met by the sixth respondent from its funds and the surplus funds required shall be met by the Tamil Nadu Agricultural Produce Sales Board. On 12.06.2004, the seventh respondent addressed a letter to the sixth respondent committee reiterating its offer to give 31 acres out of 40 acres of land and the lands belonging to the unwilling land owners can be acquired by resorting to acquisition proceedings. Thereafter, the seventh respondent maintained prolonged silence. for some time. The seventh respondent, by letter dated 27.06.2008 made a request to the Executive Engineer, Public Works Department Department, Erode seeking permission to construct a bridge on lower Bhavani canal to have access to their 50 acres of land and such request was also favourably considered by the Government.
(ix) It is the case of the petitioner that the seventh respondent, having obtained the benefit of construction of the bridge at a cost of Rs.9,60,000, out of which Rs.6,40,000/- was granted by the Government, they sent a letter dated 01.07.2009 to the sixth respondent purportedly to renege on their commitment. In the said letter, the seventh respondent has stated that after distributing of the available lands, the remaining lands was found to be insufficient for its members and therefore they are unwilling to part with their lands to the sixth respondent committee. The seventh respondent having availed a sum of Rs.6,40,000/- from the Government for construction of bridge and also promised to gift the lands to the sixth respondent committee, refused to honour it's earlier commitment. However, the sixth respondent as well as the other official respondents did not insist the seventh respondent for honouring its earlier commitment. Rather, the official respondents are engaged in searching an alternative land for establishment of the integrated complex. In this context, a foundation stone laying ceremony was also conducted on 14.11.2010 at Karumandi Sellipalayam for the proposed establishment of the integrated turmeric complex at a cost of Rs.3.21 crores as could be evident from G.O. Ms.No.63, Agricultural Department dated 28.02.2011.
(x) According to the petitioners, WP No. 366 of 2012 was filed before this Court by Kalingarayan Pasana Sabai against the respondents 1, 3 and 5 to 7 herein for a Mandamus directing them to take appropriate action against auction of turmeric being constantly conducted by the seventh respondent herein in Semmampalayam Village. The said writ petition was closed by this Court after recording a statement from the sixth respondent that auction of turmeric was not conducted. Even though such a statement was made before this Court, the unauthorised trading of the seventh respondent continued unabated and the official respondents are also not taking any action against the seventh respondent. The attitude of the seventh respondent in conducting a parallel trading in turmeric is contrary to Section 8 of the Act, however, no action is forthcoming from the respondents. Therefore, the petitioners have come forward with these writ petitions for Mandamus.
3. The respondents have resisted the writ petitions by filing separate counters. The sixth respondent/Market Committee filed a counter affidavit tracing the history of the Act. Under section 8 of the Act, whenever a product is notified in the area no person shall set up, establish or use or continue or allow to be continued any place for the purchase or sale, storage, weighment, measurement or processing of any agricultural produce, or operate as a broker, weighman, measurer, trader, warehouseman or in any other capacity in relation to buying and selling of any notified agricultural produce, except under and in accordance with the conditions of a licence granted to him by the Market Committee. The sixth respondent also defined the term "trader" specified in the Act. According to the sixth respondent, any violation of the procedures contemplated udner the Act has to be enforced only by the sixth respondent in accordance with the Act, Rules and Bye-laws made thereunder. According to them, the seventh respondent has obtained a licence as contemplated under Section 8 of the Act and therefore, the action of the seventh respondent is not in violation of the Act or Rules. The allegation of the petitioner that the entire trade is being conducted for the benefit of middleman is denied. According to the sixth respondent, lands situate in Perundurai in Erode Town was originally selected for establishment of the integrated turmeric complex and the Government also issued G.O. Ms.No.165, Agricultural Department dated 07.05.1999 was issued for acquiring the lands. Thereafter, representations were made by all concerned to shift the proposed integrated turmeric complex from Perundruai to some other place within a radius of 5 kilometers from the Erode Town. At this juncture, the seventh respondent made an offer stating that they have purchased 25 acres of land in the name of their members in Sempampalayam Village i.e., Nasiyannur and Vellarasampatti and it shall be used for establishing the turmeric complex. It was further stated that the seventh respondent is willing to gift the lands to Government. On the basis of such assurance given by the seventh respondent, field inspections were also made by the 2nd and 4th respondents. Thereafter, another order in G.O. Ms. No.41, Agricultural Department dated 06.02.2004 was issued for establishment of the turmeric complex in Nasiyanur and Vellarasampatti Villages inter alia permitting the sixth respondent to get the lands as donation from the seventh respondent. The Government also sanctioned a sum of Rs.11.32 crores for this purpose. However, when the sixth respondent demanded the seventh respondent to give the lands as promised by them, by letter dated 19.11.2004, the seventh respondent has stated that land owners, who were in possession of 11.01 acres are unwilling to offer their lands and therefore, resort shall be made to acquire those lands by invoking the provisions of Land Acquisition Act. When clarification was made with regard to the remaining lands, the seventh respondent handed over a draft gift settlement deed for gifting 15.07 acres of lands. Later on, it was found that the extent of lands agreed to be given by the seventh respondent is not sufficient to execute the project. Therefore, the very purpose of establishing the market facility in that area was dropped. Thereafter, the second respondent requested the fourth responddent to find an alternative site as the seventh respondent refused to handover the lands, as promised. Thereafter, poromboke lands measuring 2.97.0 hectare situate at Karumandi Sellipalayam in Perundruai Taluk was identified for establishment of a turmeric complex. It is further stated by the sixth respondent that the present building where the seventh respondent is carrying on the business has not been approved, however, it shall not be a bearing under the Act nor it is the responsibility of the sixth respondent to enforce the implementation of the building plan approval. It is further stated that the earlier writ petition in WP No. 366 of 2012 filed by Kalingarayan Pasana Sabai, Erode was closed by this Court as at that point of time, the seventh respondent was not conducting any auction of turmeric. It is categorically stated by the sixth respondent in para No.16 of the counter that seventh respondent aplied for licence for conducting turmeric auction in Sempampalayam Village and as per Section 5 (1) of the Act, it is the duty of the sixth respondent to enforce the provisions of the Act, Rules and Bye-laws made under this Act in the notified area.
4. The seventh respondent has filed a separate counter affidavit contending that they are registered society registerd under the Tamil Nadu Societies Registration Act and there are 363 members in their society. As per the order dated 14.03.2013 of the sixth respondent, the seventh respondent was permitted to carry on auction in the place earmarked by their association in Skmpampalayam, Villarasampatti Villages, Erode Taluk. The members of the seventh respondent have obtained valid licenses from the sixth respondent by paying Rs.10/- each as license fee and on the basis of such licence, they are auctioning the turmeric. According to the seventh respondent, the agriculturists are free to market their produce in any of the notified places and there is no restriction to sell their produce only at a particular market. The are already 4 markets in Erode Town, however, as the volume of transaction has increased manifold, it was felt that the market should be located outside Erode Town. The present place identified for establishment of integrated turmeric complex is situate within a distance of 5 kilometer from Erode Town. The members of the seventh respondent purchased lands in the area where an auction centre was built with all modern facilities. It is further stated that the seventh respondent had purchased more than 50 acres in Sempampalayam and have laid a layout. Pursuant to such layout, an extent of 2,15,997 square feet of road area, an extent of 2,54,767 square feet of common area was handed over to Villarasampatti Panchayat by registered gift deeds. Similarly, lands measuring an extent of 2,94,446 square feet for road and 50,963 square feet of common area was handed over to Nasiyanoor Village by executing gift deeds. The writ petition has been filed by the petitioner due to personal animosity and to harass the seventh respondent. The writ petition lacks merits and therefore, the writ petitions are liable to be dismissed.
5. The eighth respondent has filed a counter affidavit only contending that new electricity service connection was granted to the seventh respondent only on the basis of the sale deed and tax receipts produced by them. It is further stated that they have not insisted on production of lay out approval from the local body for effecting such service connection.
6. For the counter affidavit of the respondents, the petitioner has filed an additional affidavit stating that the seventh respondent is unauthorisedly dealing with the business of auctioning of turmeric done and it was not taken note of by the sixth respondent. As mandated under the Act, it is for the sixth respondent to periodically oversee the functioning of all concerned and if there is any violation action has to be taken. In this case, the sixth respondent never takes any action against the seventh respondent especially when the seventh respondent failed to handover the lands, as promised. The official respondents ought not to have permitted the seventh respondent to trade in turmeric in the proposed turmeric complex at Semmampalayam inasmuch as the seventh respondent has not obtained any building plan and building permit in the constructions put up in the complex. The seventh respondent has not handed over any portion of the building required for the sixth respondent committee in the proposed turmeric complex and the lands required for creation of infrastructural facilities. The very purpose of forming an integrated complex in Semmampalayam has not been achieved inasmuch as the seventh respondent has not provided for accommodating the other three agencies i.e., the sixth respodnent and two other cooperative marketing societies in Erode. Therefore, the petitioner prayed for issuance of the relief sought for in these writ petitions.
7. I heard the learned counsel for the petitioners and the respective counsel appearing for the respondents. I also perused the materials placed on record. The main contention of the learned counsel for the petitioners is that the very object of establishing an integrated turmeric complex has been defeated by not taking any action against the seventh respondent sangam for having conducted a parallel trading in turmeric. By such act of the seventh respondent, the farmers are not benefitted and are getting the correct price for their produce. The petitioners themselves are farmers and they are deprived of their due share by the act of the seventh respondent. Even though the seventh respondent offered to give the lands in the name of the members for construction of the integrated turmeric complex to the sixth respondent, they resiled from their offer and refused to handover the lands. However, the sixth respondent has not taken any action thereagainst. The sale of turmeric is being made by the seventh respondent in the building which has no approval and they are trading the turmeric as though it is a notified place. The trading is being conducted not in the presence of the farmers but to largely benefit the middleman. The farmers are made as a bait by paying money to them for interest by the middleman and therefore, when auction is being conducted by the seventh respondent, the farmers could not raise their voice. In order to conceal the correct price of turmeric the middlemen associated with the seventh respondent appropriate themselves the entire undisclosed sale price rather than commission, which ranges from 2 1/2% to 5% of the sale price. Further, the sale price is unilaterally fixed by the seventh respondent without the concurrence of the farmers and such price fixed is less than 10% of the market price, which is 10% lower than the other three notified areas. Therefore according to the counsel for the petitioners, the act of the seventh respondent is opposed to the pricing policy for turmeric. The alleged members of the seventh respondent are not farmers, excepting a few, to show as though the seventh respondent is trading only with the farmers. That is the reason why the seventh respondent is charging huge amount as entry fee for becoming a member in their association. The members of the seventh respondent are also acting as godown owner and when the farmers brings their goods they will not be permitted to store their produce. For storing purpose, the seventh respondent has unauthorisedly constructed the building and charging exorbitant amount from the farmers for such storage of produce. According to the counsel for the petitioners, the entire action of the petitioner is contrary to Section 8 of the Act. Section 8 of the Act is reproduced hereunder for ready reference:-
"8. Trading in agricultural produce in notified area:- (1) No person shall within a notified area--
"(a) set up, establish or use, or continue or allow to be continued any place for the purchase or sale, storage, weighment, measurement or processing of any notified agricultural produce; or
(b) operate as a broker, weighman, measurer, trader, ware houseman or in any other capacity in relation to the buying and selling of any notified agricultural produce, except under and in accordance with the conditions of a licence granted to him by the market committee.
Provided that the market committee may exempt from the provisions of the sub-section any person who carries on the business of purchasing or selling, storing, weighing, measuring or processing the notified agricultural produce in any quantity not exceeding such quantity as may be prescribed.
Provided further that a producer selling, storing, weighing, measuring or processing any notified agricultural produce, which has been grown, reared or produced by him, or a co-operative marketing society selling, storing, weighing, measuring or processing any notified agricultural produce which has been grown, reared or produced by any of its members, shall be exempt from the provisions of this sub-section, but the Government may withdraw, for such period as may be prescribed, such exemption in respect of any such producer or co-operative marketing society or all of them.
Explanation:- "Co-operative marketing means"any co-operative society registered or deemed to be registered under the Tamil Nadu Co-operative Societies Act, 1961 (Tamil Nadu Act 53 of 1961) which has, as its principal object, the promotion of the marketing ofthe agricultural produce grown, reared or produced by its members (2) Nothing contained in sub-section (1) shall apply to-
(a) a person purchasing any notified agricultural product for his own domestic consumption in any quantity not exceeding such quantity as may be prescribed;
(b) a person purchasing any notified agricultural produce for his own seed purposes in any quantity not exceeding such quantity as may be prescribed;
(c) a Warehousing corporation established or maintained by the State or Central Government or a warehouseman licensed under the Tamil Nadu Warehouses Act, 1951 (Tamil Nadu Act XV of 1951) in respect of storage, weighment or measurement of any notified agricultural produce accepted for warehousing.
(3) Notwithstanding anything contained in sub-section (1), no person shall, after the date to be notified by the Government in this behalf in the Tamil Nadu Government Gazzette, purchase or sell any notified agricultural produce in a notified market area outside the market in that area.
Explanation:- For the purpose of this sub-section, purchase or sale, shall, unless otherwise prescribed, mean the purchase or sale in the first point in the notified market area.
(4) A licence under sub-section (1) may be refused to a person--
(a) whose licence was cancelled, and a period of three years has not elapsed since the date of cancellation; or
(b) who has been convicted for an offence where such offence relates to his business or his integrity as a man of business; or
(c) in regard to whom the market committee is satisfied, after such enquiry as it consideres adequate, that he is a benamidar for, or a partner with, any other person to whom a licence may be refused under clause (1) or clause (b) (5) If a market committee is satisfied, either on a reference made to it in this behalf or otherwise, that--
(a) a licence granted under sub-section (1) has been obtained by misrepresentation or fraud, or
(b) the holder of a licence has contravened or failed to comply with any of the provisions of this Act or the rules or by-laws made under this Act or any of the conditions of the licence, then, without prejudice to any other penalty to which the holder of the licence may be liable under this Act, the market committee may, subject to such rules as may be made in this behalf, cancel or suspend the licence, after giving the holder of the licence a reasonable opportunity of showing cause against such cancellation or suspension.
(6) ....
(7) ....
(8) Every person to whom a licence is grantedunder sub-section (1) shall comply with the provisions of this Act, the rules and by-laws made under this Act and the conditions specified in the licence.
8. According to the counsel for the petitioners, under Section 8 of the Act, as a market committee, it is the duty of the sixth respondent to supervise, oversee and monitor the activities of the trading in the notified area periodically or at the time of auction of the turmeric and also continue to supervise the entire process. To strength his submission, the learned counsel appearing for the petitioners relied on the decision of the Honourable Supreme Court in (Consumer Action Group and another vs. State of T.N. and others) (2000) 7 Supreme Court Cases 425 to contend that the power to grant exemption conferred by an Act, though wide, is controlled through legislative policy. In Para Nos. 28, 29 and 30, it was held as follows:-
"28. The question is, whether the impugned orders could be said to have been passed for the furtherance of such policy or for achieving the purpose for which it was enacted. So even as per submission it can only be exercised in the aid of such policy and not contrary to it. We find, in the present case, the Government while exercising its powers of exemption has given a go-by to all the norms as laid down under the Act and the Rules and has truly exercised its powers arbitrarily without following any principle which could be said to be in furtherance of the objective of that, nor learned counsel for the State could point out any.
29. Whenever any statute confers any power on any statutory authority including a delegatee under a valid statute, howsoever wide the discretion may be, the same has to be exercised reasonably within the sphere that statute confers and such exercise of power must stand the test to judicial scrutiny. This judicial scrutiny is one of the basic features of our Constitution.....
30. When such a wide power is vested in the Government it has to be exercised with greater circumspection. Greater is the power, greater should be the caution. No power is absolute, it is hedged by the checks in the statute itself. Existence of power does not mean to give one on his mere asking. The entrustment of such power is neither to act in benevolence nor in the extra statutory field. Entrustment of such a power is only for the public good and for the public cause. While exercising such a power the authority has to keep in mind the purpose and the policy of the Act and while granting relief has to equate the resultant effect of such a grant on both viz., the public and the individual......
9. The learned counsel for the petitioners also relied on the decision of the Honourable Supreme Court in the case of (A.N. Sehgal and others vs. Raja Ram Sheoran and others) (1992) Supp (1) Supreme Court Cases 304 wherein in para Nos. 15 and 16, it was held as follows:-
"15. It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted by the proviso and to no other. The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is to confine to that case. Where the language of the main enactment is explicit and unambiguous, the proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it, by implication what clearly falls within its express terms.
15. The scope of the proviso, therefore, is to carve out an exception to the main enactment and it excludes something which otherwise would have been within the rule. It has to operate in the same field and if the language of the main enactment is clear, the proviso cannot be torn apart from the main enactment nor can it he used to nullify by implication what the enactment clearly says nor set at naught the real object of the main enactment, unless the words of the proviso are such that it is its necessary effect.
10. Relying on the aforesaid decision, the learned counsel for the petitioners would only contend that the sixth respondent ought to have exercised the powers conferred under Section 8 of the Act for promotion of public policy and non-adherence to the provisions warrants interference by this Court. When the seventh respondent has neither obtained a licence nor put up the building by obtaining permission, the sixth respondent ought to have taken some steps in that direction, but it was not done. Even if a licence was issued by the sixth respondent, it is for the sixth respondent to periodically monitor to assess whether the conditions of licence are not in any way violated.
11. The learned counsel for the petitioners also relied on the constitutional bench decision of the Honourable Supreme Court in (M.C.S. Arunachala Nadar and others vs. Union of India and others) 1959 Supp (1) SCR 92 = AIR 1959 SC 300 while dealing with the validity of the provisions of Madras Commercial Crops Markets Act has held that the object of such legislation is to protect the producers of commercial crops from being exploited by the middlemen and profiters and to enable them to secure a fair return for their produce.
12. In the counter affidavit of the sixth respondent, it is admitted that no person from the office of the sixth respondent was available in the notified area where the seventh respondent is trading in turmeric at the time of alleged auction. As per the provisions of the Act, if the place of business carried on by the seventh respondent is a notified area, then, a duty is cast upon the sixth respondent to over see the trading or atleast supervise the auction conducted by the seventh respondent. On the contrary, according to the counsel for the petitioner, the sixth respondent only supervises the trading or auction conducted in the other three notified market areas and not in the place of business of the seventh respondent. Therefore, according to the counsel for the petitioner, conveniently, the farmers are prohibited from trading in the auction of the turmeric and they were made as a bait to sell their produce at a price fixed by the seventh respondent. The entry of the farmers is also restricted by the seventh respondent.
13. Contra, the learned counsel for the seventh respondent would contend that there is no prohibition for entry into the trading place by the farmers. The farmers can participate in any place of the notified area where trading is conducted. It is left to the choice of the farmers. The farmers voluntarily visit the place of business of the seventh respondent and offer their own price for sale of the produce in such event it becomes a concluded contract. The trading is conducted by the seventh respondent in accordance with law and there is no hanky-panky involved in it. The writ petition filed by the petitioners lack merits and he prayed for dismissal of the same.
14. The learned counsel appearing for the sixth respondent would contend that the auction is being conducted by the seventh respondent in a notified place. The sixth respondent is discharging it's duties in accordance with law and if there is any violation of any of the provisions of the Act and Rules, necessary action will be initiated.
15. In the counter affidavit filed by the sixth respondent, they have categorically admitted in para-12 of the counter affidavit that "...subsequently, the second respondent requested the fourth respondent to select an alternative site since the seventh respondent refused to handover the lands...." It is also admitted by the sixth respondent that the building in which the seventh respondent is trading in turmeric is not approved by the competent authority. However, the sixth respondent would only contend that it is not their look out to see whether the building has been approved or not. It is further admitted by the sixth respondent in the counter affidavit that the earlier writ petition filed in W.P. No. 366 of 2012 before this Court was disposed of on the basis of an undertaking given by them that the seventh respondent, at that point of time, was not conducting any auction sale of turmeric at Sempampalayam inasmuch as it was not a notified area. Ater filing of the writ petition, the seventh respondent applied for licence for conducting turmeric auction in Sempampalayam Village under the Act, which, according to the sixth respondent in the earlier writ petition in WP No. 366 of 2012, is not a notified area. The fact remains that the seventh respondent is conducting the trading without a proper licence or approval for the building. Therefore also, the stand taken by the sixth respondent cannot be countenanced. For trading in turmeric, as contemplated under the Act, licence is mandatory. Further, the seventh respondent is conducting the auction in a building without an approval. The sixth respondent cannot simply say that it is not their look out to ensure whether the building in which trading is carried on is approved or not. Even the seventh respondent has not produced any document to show that the building where they are conducting the auction is approved by the competent authority. However, the seventh respondent has been dilly-dallying to say that they are conducting the auction in accordance with law. On the other hand, the petitioner has produced a communication dated 13.12.2011 of the Executive Officer, Nasiyanur Town Panchayat under the Right to Information Act, which is enclosed in page No.38 of the typed set of papers, to show that the building where the petitioner has been carrying on the trading is not approved. Thus, it is clear that the building where the seventh respondent is trading is without any approval.
16. It is to be noted that one of the conditions engrained under Section 8 of the Act is that whenever auction of the notified produce is made, the sixth respondent, as a market committee, has to over see such trading and to continuously control it in the interest of the farmers. In the counter affidavit of the sixth respondent, there is nothing that would indicate that the officials of the sixth respondent were present at the time of conducting the auction by the seventh respondent. However, it is evident that in the other three notified areas, they are present and are exercising control over such trading. Thus, there is a discriminatory attitude on the part of the sixth respondent in having control over all the trading that took place in the notified areas. Therefore, this Court is of the view that atleast, the sixth respondent ought to have taken some steps to regulate and control the trading of the seventh respondent, which is absent in this case. This is more so when serious allegations have been made by the petitioners that the interest of the farmers has not been taken into account and the action of the seventh respondent defeated the very pricing policy for turmeric to assert a cartel. This only shows that all is not well in the notified areas meant for trading of turmeric within the control of the sixth respondent/market committee.
17. It is to be pointed out that the term "produce" is defined in Section 2 (18) which means and includes any person who grows, rears or produces by himself or by hired labour, or otherwise any agricultural produce in an extent of land not less than half an hectare but does not include a broker or a trader in that produce, although he may grow, rear or produce, that produce. Therefore it is evident that the intention of the framers of the Act is benefit the farmers at large and to exclude the brokers or middlemen from taking advantage of the situation or to exploit the farmers in any manner. The grievance of the petitioners here is that the very purpose of the Act is defeated because of the auction conducted by the seventh respondent much to the detriment to the interest of the farmers. When such is the complaint of the petitioners, the sixth respondent, as market committee empowered to cause inspection or to take appropriate steps under the Act, ought to have monitored and/or regulated the affairs of the seventh respondent. The sixth respondent also ought to have ensured that the seventh respondent maintained proper records and accounts relating to the transactions to sub-serve the larger interest of the farmers. There is nothing in the counter affidavit of the sixth respondent that would indicate the sixth respondent having taken any action against the seventh respondent pursuant to the complaint made by the petitioners. There is no whisper in the counter as to whether sixth respondent has taken any steps to monitor, oversee or regulate the activities of the seventh respondent, as required under the Act, especially when it is complained that the seventh respondent is conducting the business in an unapproved building.
18. The Government also framed Tamil Nadu Agricultural Produce Marketing (Regulation) Rules, 1991. Chapter III of the said Rules deals with regulation of markets which empowers the market committee to even cancel the licence for violation of the conditions, if any. Rule 30 specifically provides that the market committee may, if it is satisfied that a licensee has violated any of the conditions or provisions of the Act, Rules or by-law framed thereunder, suspend or cancel the licence granted to him by recording the reasons therefor. Under Rule 39, it is the duty of the market committee to arrange for the temporary storage or stocking of notified agricultural produce brought by the producer (agriculturists) into the market. Rule 40 deals with Storage after sales and charges thereof which provides that subject to the availability of accommodation, the market committee may permit a trader of the notified agricultural produce to store the notified agricultural produce bought free of cost at his risk and and responsibility for a period not exceeding 24 hours. Rule 45 deals with Regulation of purchase and sale in the market. As per Rule 45, evern transaction of selling and buying of agricultural produce in the market shall be done without the intervention of any of staff of market committee. The Head of market shall however arrange for sale of agricultural produce through secret tender or through auction. The method of such sale shall be determined by the market committee either generally for all its markets and in respect of all of agricultural produces or separately for each type of agricultural produce for each market. Above all, Rule 46 provides for inspection by the Director or any officer authorised by the Government in this behalf who shall conduct annual inspection of the office of every market committee. It is evident that the Act and the Rules have been framed only to eliminate the intervention of brokers and middlemen so that the farmers could derive full benefit for their produce. However, in the counter affidavit filed by the sixth respondent, nothing has been stated as to what prevented the sixth respondent from taking any action. It is also not made known as to whether the sixth respondent has conducted periodic supervision or inspection in to the affairs of the seventh respondent, as required under the Act and Rules. Even during the course of argument, the learned counsel for the sixth respondent has not stated that the sixth respondent has taken appropriate steps to monitor the affairs of the seventh respondent periodically or any document has been produced by the sixth respondent to that effect. Therefore, this Court is of the view that the argument advanced on behalf of the petitioners that the sixth respondent market committee has failed to protect the interest of the farmers is well founded.
19. In this backdrop, the relief sought for in these writ petitions has to be considered. In W.P. No. 6785 of 2013, the petitioners seek for a Mandamus to direct the respondents 1 to 6 to strictly enforce the provisions of Section 8 of the Act by preventing any parallel trading in turmeric within the notified area of Erode Town, Erode District, by the seventh respondent association or any of its members or any other person/s, agent/s, entity/ies claiming and/or acting under the seventh respondent. Having regard to the above conclusion arrived at me, supra, it is just and necessary that a direction should be granted as prayed for in WP No. 6785 of 2013, directing the respondents 1 to 6 to strictly enforce the provisions of Section 8 of the Act.
20. As far as the prayer in WP No. 6786 of 2013 is concerned, the prayer is to issue a Mandamus directing the respondents 1 to 6 to prevent the seventh respondent association, their members, employees, agents or any other persons claiming and/or acting under the seventh respondent from in any manner trading in turmeric in any place other than the market as notified by the first and the sixth respondent within the notified area of Erode Town. Such a blanket order cannot be granted by this Court. However, having regard to the facts of this case, this Court is only inclined to direct the seventh respondent to get necessary building plan approval for the building where they are carrying on the trading. Admittedly, as the seventh respondent did not obtain any building plan approval till this date, this Court is inclined to grant some time to them so as to enable them to obtain necessary building planning permission from the authorities concerned. For this purpose, two months time is granted so as to enable the seventh respondent to obtain building plan approval. On failure to obtain necessary approval, within two months time, the sixth respondent shall immediately proceed further against the seventh respondent in a manner known to law. Even in the interregnum period, the sixth respondent shall supervise the trading or auction conducted by the seventh respondent on a regular basis, in the presence of representatives of the petitioners, to ensure that the farmers participated in the auction and are benefitted in selling their produce. The sixth respondent shall ensure that the farmers are not prohibited by the seventh respondent merely due to the fact that they are not members of their association. The sixth respondent shall also ensure that sufficient facilities for storing of the produce of the farmers is made available by the seventh respondent for the purpose of storing their produce. It is also made clear that the second and fourth respondent shall consider whether the seventh respondent shall carry on the business in the place where they are presently carrying on the trading or it shall be shifted to some other notified area after giving opportunity to all parties concerned and pass appropriate orders as expeditiously as possible.
21. With the above direction, both the writ petitions are ordered. No costs. Consequently, connected miscellaneous petitions are closed 17-12-2014 rsh Index : Yes Internet: Yes To
1. State of Tamil Nadu Rep. by the Secretary to Government Agricultural Department Secretariat, Fort St. George Chennai - 600 009
2. The Commissioner of Agricultural Marketing and Agricultural Business Thiru-vi-ka Industrial Estate Guindy, Chennai - 600 032 B. RAJENDRAN, J rsh
3. The Deputy Director of Town and Country Planning Salem Region, Suramangalam Salem - 636 005
4. The District Collector Erode District Erode
5. Nasiyanur Town Panchayat Rep. by its President Nasiyanbur - 638 107
6. Erode Market Committee Rep. by its Secretary Erode - 638 011
7. Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO) rep. by its Chairman No.144, Anna Salai Chennai - 600 002
8. The Assistant Engineer (O&M) Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO) Erode Electricity Distribution Circle Nasiyanur, Erode - 638 107 Pre-delivery Common Order in WP Nos. 6785 & 6786 of 2013 17-12-2014