Orissa High Court
Sarat Kumar Mohanty vs State Of Orissa on 26 April, 1994
Equivalent citations: AIR 1995 ORISSA 35
Author: G.B. Patnaik
Bench: G.B. Patnaik
JUDGMENT R.K. Patra, J.
1. In this petition under Article 226 of the Constitution of India, the petitioner seeks to challenge the constitutional validity of Sub-sections (6) and (7) of Section 58 of the Orissa Grama Panchayat Act, 1964 (hereinafter referred to as the Grama Panchayat Act").
2. The petitioner is a retired Assistant Director of Markets, Research and Survey. He claims to be an agriculturist. He states that during his service career he had the occasion to work for the implementation of different provisions of Orjssa Agricultural Produce Markets Act, 1956 (in brief, 'the Market Act'). According to him on account of implementation of different provisions of the Market Act there has been boost of better marketing of agricultural produce and the interest of the common agriculturists is being protected from the exploitation of middle-men. It is his case that the provisions contained in Subsections (6) and (7) which came to be inserted to Section 58 of the Grama Panchayat Act by Orissa Grama Panchayat (Amendment) Act, 1991 (Orissa Act 9 of 1991) have prejudicially effected the interest of common agriculturists besides crippling different provisions of the Market Act.
3. The State of Orissa represented by the Secretary, Panchayati Raj (G.P.) Department which is the sole opposite party in the case has filed counter-affidavit contending that Sub-sections (6) and (7) of the Act are intra vires.
4. It may be first mentioned here that there is no clear averment in the writ petition as to how Sub-sections (6) and (7) of Section 58 of the Grama Panchayat Act infringe any provision of the Constitution. In course of argument, to our specific question, learned counsel for'the petitioner submitted that the impugned provisions are violative of Article 14 of the Constitution.
5. Sub-sections (6) and (7) of Section 58 of the Grama Panchayat Act read as follows:-
"58. Market: (1) to (5) x x x x x x x (6) When any Market Committee makes any requisition or requires any Grama Panchayat under sub-section (4) of Section 4 of the Orissa Agricultural Produce Markets Act, 1956 (Orissa Act 3 of .1957) to transfer to it any land or building in possession of the Grama Panchayat, the Grama Panehayat shall, notwithstanding anything to the contrary contained in the said Act, not transfer such land or building, unless the requisition or the letter of requirement is accompanied by a written permission of the Collector of the district for the purpose.
(7) Nothing contained in Sub-section (6) shall do bar the State Government to review and cancel the permission so granted by the Collector within a period of ninety days, either suo motu or otherwise, if the Government is satisfied, after such inquiry as it may deem fit that such permission of the Collector will be prejudicial to the interest of the Grama, and in every case where such a permission is cancelled by the Government the transfer of any land or building or both if any effected by virtue of such permission prior to its cancellation shall be of no effect."
6. To get the hang of the issue involved in the case, it is relevant to examine the purposes of both the enactments and the import of relevant provisions of the statutes. It is said that preamble of a statute is "a key to the understanding of it." The preamble of Market Act states that it is an Act to provide) for the better regulation of buying and selling of agricultural produce and the establishment of markets for agricultural produce in the State. The Grama Panchayat Act is an enactment which aims at constitution, of Grama Panchayat as the local self governing unit of Panchayati Raj at the grass root level in the State. Thus, the purpose and intent of both the statutes being different they should be and are allowed to operate in their respective fields. The Market Act has been enacted earlier to the Grama Panchayat Act. As such the former cannot have any overriding effect on the latter statute. Section 4 of the Market Act enables the State Government to declare by notification the area specified therein to be a market area in respect of all or any of the kinds of agricultural produce specified in the notification. Section 5 of the Market Act authorises the State Government to establish a market committee for every market area so declared under Section 4. As indicated above, the establishment of market area under the Market Act is for the purpose of regulating the purchase and sale of agricultural produce only. It cannot be gainsaid that in a market owned and managed by the Grama Panchayat trading of various types of articles, commodities or produce takes place. It has been averred in the counter-affidavit that although there is provision in Sub-section (4) of Section 4 of the Market Act for apportionment of net income between the market committee and the Grama Panchayat derived from land or building which come to the market committee by way of transfer consequent upon requisition made by the market committee, many market committees in the State have failed to make necessary payment of the shares to the concerned Grama Panchayats for which the financial resources of the Grama Panchayats have come to be seriously effected and keeping the aforesaid facts in view, the impugned provisions have been enacted to safeguard and protect the interest of the Grama Panchayats.
7. Perusal of Sub-section (6) of Section 58 of the Grama Panchayat Act would show that whenever, any market committee makes a resolution or requires any Grama Panchayat to transfer to it any land or building in possession of the Grama Panchayat, the Grama Panchayat shall not transfer such land or building unless the requisition or the letter of requirement is accompanied by a written permission of the Collector of the district for the purpose.
The objection of the petitioner to the provision is with regard to the requirement of written permission from the Collector in the matter. We do not find any valid ground to the said objection. Such insistence of written permission from the Collector would definitely operate as a check on the arbitrary and whimsical desire of a market committee to get the Land or building in possession of a Grama Panchayat and appropriate to itself the income derived from such land or building. The Collector of the district has many statutory functions under the Grama Panchayat Act and is supposed to protect the interest of the Grama Panchayats. In a given case the Collector on examination of the matter may withhold permission if he is of the view that transfer of the land or building of the Grama Panchayat to the market area is detrimental to the interest of the Grama Panchayat. Accordingly, the requirement of written permission from the Collector cannot be said to be arbitrary or unreasonable. Subsection (7) of Section 58 of the Grama Panchayat Act takes care of any arbitrary or illegal act of the Collector in granting (non-granting) of written permission. It is an inbuilt provision to nip any arbitrary or illegal decision of the Collector because if any permission of the Collector is found to be prejudicial to the interest of the grama by invoking this provision suo motu or otherwise the State Government if, satisfied after such enquiry as it may deem fit, may review and cancel the permission so granted. For the aforementioned reasons, we do not find any merit in the contention of the petitioner that the impugned provisions are violative of Article 14 of the Constitution.
8. In the result, the writ petition is devoid of any merit which is accordingly dismissed. There shall be no order as to costs.
G. B. Patnaik, J.
9. I agree.