IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 30.11.2011 CORAM: THE HON'BLE MR.JUSTICE V.DHANAPALAN W.P.No.21243 of 2011 and M.P.No.1 of 2011 R.Rathakrishnan .. Petitioner Versus 1.State of Tamil Nadu, rep. by Agricultural Production Commissioner and Principal Secretary to Government, Fort St.George, Chennai 600 009. 2.The Commissioner of Agricultural Marketing and Agri Business, Thiru.Vi.Ka Industrial Estate, Cipet Road, Guindy, Chennai – 600 032. .. Respondents Prayer: This Writ Petition is filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Mandamus, to forbear the respondents from passing any order of declaration of notified area under Sec.9(1)9(d) of Tamil Nadu Agricultural Produce Marketing (Regulation) act, 1987 in pursuant to G.O.Ms.No.361, Agricultural (AM II) Department, dated 12.12.2008 (notified on 24.12.2008) as amended as per G.O.309, Agriculture AM (II) Department, dated 28.12.2010 notified on 16.02.20111 without considering the objections made by the petitioner dated 10.03.2009 and subsequent reminders as required under law. For Petitioner : Ms.Dakshayini Reddy Mr.A.A.Suvathaman For Respondents : M/s.Gomathinayagam Addl. Advocate General Assisted by Mr.S.V.Durai Solaimalai Addl. Government Pleader ORDER Heard Ms.Dakshayini Reddy, learned counsel appearing for the https://hcservices.ecourts.gov.in/hcservices/ petitioner and Mr.S.Gomathinayagam, learned Addl.Advocate General, assisted by Mr.S.V.Durai Solaimalai, learned Addl.Government Pleader for the respondents. 2. The petitioner claiming to be a trader, has come forward with the present writ petition, praying for issuance of a Writ of Mandamus, to forbear the respondents from passing any order for declaration of notified area under Sec.9(1)(d) of Tamil Nadu Agricultural Produce Marketing (Regulation) Act, 1987 in pursuant to G.O.Ms.No.361, Agricultural (AM II) Department, dated 12.12.2008 (notified on 24.12.2008) as amended as per G.O.309, Agriculture AM (II) Department, dated 28.12.2010 notified on 16.02.20111 without considering the objections made by the petitioner dated 10.03.2009 and subsequent reminders as required under law. 3. It is the case of the petitioner that during the pre independence period, erstwhile provincial Government of Presidency of Madras enacted Law called "Madras Commercial Crops Market Act, 1933" (Madras Act No.XX of 1933) for the purpose of better regulations of buying and selling of commercial crops and to protect the interest of agricultural producers. In the year 1959, the said Act was repealed and superseded by Tamil Nadu Agricultural Produces Markets Act, 1959 (Act 23 of 1959)(hereinafter referred to 'the Act') a Post Constitutional law was introduced by the State of Tamil Nadu. Subsequently, in the year 1987, the Act 23/1959 was repealed and Tamil Nadu Agricultural Produce Marketing (Regulations) Act, 1987 (Act 27/1989) was enacted with amending and consolidating the Law relating to, regulating the buying and selling of the agricultural produces and for establishment and proper administration of crops for agricultural produce in the State of Tamil Nadu in order to secure fair and reasonable price to the agriculturists. 3.1. As per the provisions of the Act, the State Government issue Notification declaring the intention to exercise control over the purchase and sale of agricultural produces, calling for objections or suggestions within the period as specified in the Notification under Section 3 of the Act and thereafter after considering objections and suggestions if any, Government may declare the notified area in respect of any agricultural produce specified in Section 3 of the Notification, under Section 4 of the Act. Section (9)(i)(d) also provides for regulating any agricultural produce hither to not regulated in any notified market area subject to provisions of Section 3 of the Act. 3.2. In so far as State of Tamil Nadu is concerned, there are 277 regulated markets under the control of 21 Market Committees covering all the districts except Chennai District. There are about 40 agricultural produces notified for the purpose of regulation and levy of market fee in the State of Tamil Nadu except Chennai District and the number of agricultural produces notified differ from one https://hcservices.ecourts.gov.in/hcservices/ market committee to another or one regulated market or another, from the minimum of six numbers and to the maximum of 25 numbers. The notifications are issued mainly considering marketable surplus of the crops that grown in the concerned notified market area of a regulated market. In respect of every notified area, a Market Committee has to be established under Section 5(1) of the Act. Every Market Committee shall establish in the notified area such number of markets providing such facilities based on the directions of the State Government for the purchase and sale of the notified produce under Section 6(1) of the Act. Only as per the establishment of a market as per Section 6 (1), the Government as per Sec.6(2) of the Act, shall declare by notification, the notified market area of each market in respect of notified agricultural produce concerned. Based on the above saidprovisions, the State Government has established 277 regulated markets within the Stte of Tamil Nadu. However, in most of the regulated markets, there are no facilities provided as required under law and most of the regulated markets are functioning in the rental place without providing any facility to the agricultursts or traders and it is found that the markets are established ony to collect market fee under Setion 24 of the Act and not for achieving the object of the Act. That apart, the department is not in a position to have the trading of all notified agricultural produces within the premises of the regulated market. Actually about 15% of the trading only take place inside the regulated market and 85% of the grading take place outside the regulated market. Therefore, it is amply clear that the services of the regulated market are being availed only in respect of 15% of trading and therefore, 85% of trading notified agricultural produce is carried out without any regulation and against the object of the Act. 3.3. In respect of most of the regulated markets within the State of Tamil Nadu, though the markets have been established several decades back, nothing has been done towards implementation of the provisions of the Act by providing such facilities as required under law. Therefore, even in respect of notified agricultural produces so far sought to be regulated under the provisions of theAct, holding regard to the fact that regulated markets are established without providing any facilities as per the norms and as per Section 6(1) of the Act, all transactions are taking place out side the regulated market without availing the services of the regulated market and the purpose of establishing regulated market and market committee are only for collecting market fee based on the return submitted by the traders. 3.4. While so, the State Government has issued a Notification under Section 9(1)(d) of the Act r/w Section 9(1)(d) in G.O.Ms.No.361 dated 12.12.2008 to declare the intention of regulating marketing of agricultural produces mentioned in Annexure I in the entire market area of the regulated market mentioned in Annexure II. There are 92 numbers of agricultural produce that are sought to be regulated for https://hcservices.ecourts.gov.in/hcservices/ all 277 regulated markets coming under 21 Market Committees in all the districts within the State of Tamil Nadu (except Chennai District). The Notification further reads that any objection or suggestion can be made against the notification within a period of one month from the date of publication of the Notification in Tamil Nadu Government Gazette. Based on the Gazette Notification, each Market Committee within the State of Tamil Nadu issued Notification by way of paper publication calling for objections or suggestions from the intending persons. Pursuant to the same, the petitioner herein has made a detailed objection dated 10.3.2009 addressing to the first respondent through registered post. The petitioner has given the details that there cannot be any regulations in respect of 92 agricultural produces issued by the Stte of Tamil Nadu except Chennai District, without following the procedure as established by law and without receiving proposal from each Market Committee in as much as a agricultural produce can be notified only based on the proposal received from the Market Committee concerned which in turn depends on the percentage of growth of such agricultural produce and local transactions including marketable surplus. That apart there cannot be any notification for 92 agricultural produces when the state Government has not satisfied the legal requirements of providing facilities and amenities in the regulated markets in respect of already notified 40 agricultural produce. 3.5. Regulation of agricultural produces is provided under Rule 45 of Tamil Nadu Agricultural Produce Market (Regulation) Rules, 1991 which provides for selling and buying of agricultural produces within the market and the procedure to be followed therein. Sec.8(3) of the Act provides for issuance of notification by the State Government that purchase or sale of any notified agricultural produce within the area of the regulated market and not outside market. Therefore, by reading of both provisions, it is amply clear that there cannot be any sale or purchase of agricultural produce outside the regulated market within the notified market area and further facilities are to be provided to facilitate sale and purchase of agricultural produce within the regulated market. In such event, in the absence of any notification under Section 8(3) of the Act, there is no question of regulation of agricultural produce under Rule 45 of the Rules and thereby the present Notification for declaration of entire agricultural produce issued by the State of Tamil Nadu (except Chennai District) as 'Uniform Notification would be in gross violation to the provisions of the Act and Rules. 3.6. Subsequently, the State of Tamil Nadu issued amendment to the earlier Notification issued in G.O.309, Agricultural Department, dated 28.12.2010 notifie4d on 16.02.2011 making certain amendment to the earlier Notification dated 12.12.2008. The petitioner has made his own objections to the 'Uniformed Notification which are illegal and non-est in the eye of law. https://hcservices.ecourts.gov.in/hcservices/ 3.7. The grievance of the petitioner is that though he made objections against Notification dated 12.12.2008 notified on 24.12.2008, the respondents have not considered the same nor passed any orders thereon. The petitioner has subsequently made several reminders on 7.5.2009, 21.8.2009, 23.9.2009 and 10.6.2010. Despite the same, the respondents did not consider the objections made by the petitioner and hence, the Writ Petition. 4. Second respondent filed a counter affidavit, inter alia stating that the Royal Commission which was set up in the year 1928, recommended among other things protection of farmers from undue exploitation at the hands of traders and middlemen and for the provision of better marketing facilities, basic infrastructure, etc. In pursuance of the Royal Commission's recommendations, the erstwhile Government of Madras Presidency enacted the "Madras Commercial Crops Market Act, 1933". According to the Act, a Regulated market for cotton at Tiruppur in Coimbatore District was initially formed and second Regulated Market for groundnut at Tindivanam in South Arcot District was also started. The Constitutional validity of the Madras Commercial Crops Act, 1933 was upheld by the Hon'ble Supreme Court in Arunachala Nadar Vs. State of Madras (AIR 1959 SC 300) Later in the year of 1959, the 1933 Act was modified as Tamil Nadu Agricultural Produce Market Act 1959. This Act envisaged the formation of Market Committees at District headquarters with functions of identifying agricultural produce, notifying them under Act and establishing regulated markets in important assembling centers for regulating market transactions. The validity of the Tamil Nadu Agricultural Produce Madras Act, 1959 (Act23 of 1959) was upheld by the Hon'ble Division Bench of this Court in Kannappa Mudaliar Vs. State of Madras (1969 I MLJ 212). Subsequently, the 1959 Act was modified as the "Tamil Nadu Agricultural Produce Marketing (Regulation) Act 1987 (Hereinafter referred "the said Act") and Tamil Nadu Agricultural Produce Marketing (Regulation) Rules 1991 (hereinafter referred as "the said Rules") and brought into force from 01.02.1991. The validity of the "Tamil Nadu Agricultural produce Marketing (Regulation) Act 1987 (Tamil Nadu Act 27 of 1989) was upheld by the Hon'ble Division Bench of this Court in Rajapalayam Paruthi Panchu Sangam Vs. State of Tamilnadu (AIR 1996 MDS 29). 4.1. It is further stated that Government is empowered to issue notification under Section 3 of the Act and declare the intention of regulating the marketing of agricultural produce by calling objection and suggestion within the prescribed period. After the expiry of the period specified in the notification under Section 3 and after considering such objection and suggestion as may be received before such expiry, the Government may declare the area specified in the notification under Section 3 or any portion thereof to be a notified area for the purpose of this Act in respect of any agricultural produce specified in the notification under Section 4 of the Act. Under Sections 8 and 24, whenever the agricultural produce is https://hcservices.ecourts.gov.in/hcservices/ notified in the area, no person shall set up, establish or use or continue or allow to be continued any place for the purchase of sale etc., except by obtaining licence from the concerned Market Committee and the Market Committee shall levy the fee on the notified agricultural produce bought or sold in notified market area. Under Section 24(2) of the said Act, the fee shall be paid by the purchaser of the notified agricultural produce. Further, according to rule 33 (2) of the said Rules, the fee shall be payable in respect of first purchases or sale. This Court in its judgment dated 27.6.1994 (1995 AIHC 4020) has overruled the objections and categorically given findings stated that the market committee is not concerned with whether a notified agricultural produce is grown in that notified area or not and the fact as to whether it is grown in that notified area or not is immaterial. The market committee is providing various infrastructure facilities and services both to the farmers as well as traders. 4.2. In order to minimize the post harvest losses in grains, the Market Committees had started construction of drying yards at villages from 1997. Under this scheme, so far 1311 drying yards have been constructed at a total cost of Rs.26.23 crores. In order to avoid distress sales due to price fall, pledge loan to the tune of Rs.663.066 lakhs have been provided to the farmers under this scheme, for the financial year 2011-2012 (upto August 2011) and Rs.52.52 lakhs to the traders. Under Farmers Development and Welfare Scheme Rs.1,00,000/- is granted to the farmers in case of death/permanent disability due to accident. 4.3. Further, based on the request of the various Traders Associations, Government have constituted "High Level Committee" under the Chairmanship of the Secretary to Government Agricultural Department along with the farmers and traders as members of the Committee vide G.O.(3D) No.77 Agriculture (AM II) Department dated 10.7.1999. The Government requested the committee to analyse various problems for implementing the provisions of the Act and collection of market fee including notification to notify all agricultural produce for all market committees. The High Level committee visited the market committees and various institutions in the States of Karnataka, Andhrapradesh, New Delhi, Hariyana, Punjab, Maharastra and met the farmers and traders and studies the functions and practices adopted by the market committees. Further on 25.09.1999, 25.11.1999, 01.12.1999 and 17.12.1999 the High Level Committee met representatives of the framers and Traders Associations personally all over Tamil Nadu and considered the representations of the 34 Traders Associations. Finally the High Level Committee submitted its report to the Government of Tamil Nadu along with its recommendations on 08.01.2001. Based on the representations of the various traders associations, the High Level Committee recommended notifying all agricultural produce for all market committees (i.e., uniform notification). Further it is submitted that meeting held with the https://hcservices.ecourts.gov.in/hcservices/ traders of Salem, Virudhunagar, Madurai, Thanjavur, Nagapattinam and Cuddalore under the chairmanship of Hon'ble Minister for Agriculture on 20.12.2001. The traders requested to issue uniform notification for all market committees so as to avoid the disparity in the sale of notified agricultural produce between traders of one area to another area. Considering the all above facts, the Hon'ble Minister for Agriculture has made an announcement in the floor of Legislative Assembly on 03.04.2007 as the Government will issue uniform notification to remove the disparity in the notified agricultural produces between Market Committees. Based on this announcement, consequently the Government have issued notification under Section 9 (1)(d) read with Section 3 of the said Act vide G.O.(Ms)No.361, Agriculture (AM II) Department, dated 12.12.2008 for the intention of regulating the marketing of agricultural produces in the notified market areas and called for the objections and suggestions to the Government through the Commissioner of Agricultural Marketing and Agri Business, Chennai in this regard. Further the Government have issued amendment notification vide G.O.(MS)No.309 Agriculture (AM II) Department, dated 28.12.2010 to rectify the clericals errors and omissions made in G.O.(Ms)No.361 Agriculture (AM II) Department, dated 12.12.2008. It is submitted that under Section 3 of the said Act, the Government may declare their intention of the regulating the marketing of agricultural produce in such areas by notification and the proposal of the market committee is not mandatory. 4.4. According to Section 2(13) of the said Act, "notified area" means any area notified under Section 4 as altered by any notification under sub-Section (1) of Section 9. According to Section 2(14) of the said Act, "Notified market area" means any area notified under sub-section (2) of Section 6 as altered by any notification under sub-section (1) of Section 9. It is submitted that Government declared the entire area of the concerned district as notified area and established the markets in the notified are and such area the market to be a notified market area for the purpose of the said Act. Further it is submitted that after notification issued by the Government under Section 8(3) of the said Act no person shall purchase or sell any notified agricultural produce in a notified market area outside the market in that area. According to this sub- section, the Government is empowered to issue notification for compulsory marketing in the notified market area. No such notification was issued and published in Government Gazette. 4.5. It is stated that the Government have called for the objections and suggestions through the Commissioner of Agricultural Marketing and Agri-Business, Chennai for the notification issued under Section 9(1)(d) read with Section 3 of the said Act vide G.O.Ms.No.361 Agriculture (AM II) Department, dated 12.12.2008 and 432 objections were received from various persons by second respondent and those were sent to Government for consideration. All the objections including the petitioner's objections are under the https://hcservices.ecourts.gov.in/hcservices/ consideration of the Government as on date. None of the objection petition sent to Government by the second respondent have not been disposed of nor any order passed so far by the Government. However, the objections received from the traders will be considered by the Government in due course. With these averments, the second respondent sought for dismissal of the writ petition. 5. On the above background of pleadings, this Court heard the learned counsel for the petitioner as well as learned Addl.Advocate General for the respondents. 6. The grievance of the petitioner is that though he made objections against the Notification issued by the State of Tamil Nadu, dated 12.12.2008 as well as to its amendment by G.O.Ms.No.309, dated 28.12.2010, the respondents have not considered the said objections nor passed any orders. Thereafter, the petitioner also sent reminders on 7.5.2009, 21.9.2009, 23.9.2009 and 10.6.2010 and even then there was no response from the respondents. 7. The learned Addl.Advocate General after pointing out the averments made in para 6 of the counter affidavit, would faily submit that as per the provisions of the Act, there is a limitation to make objections by the traders within a period of 30 days from the date of notification, but in this case, the petitioner has not made objections within the prescribed period of limitation, however, the respondents are now ready to consider the objections made by several traders including the petitioner and pass appropriate orders. 8. It is seen that the Government have issued notification under Section 9(1)(d) read with Section 3 of the said Act vide G.O.(Ms) No.361, Agriculture (AM II) Department, dated 12.12.2008 with the intention of regulating the marketing of agricultural produces in the notified market areas and called for objections and suggestions through the Commissioner of Agricultural Marketing and Agri Business, Chennai in this regard. Further the Government have issued amendment notification vide G.O.(MS)No.309 Agriculture (AM II) Department, dated 28.12.2010 to rectify the clerical errors and omissions made in G.O.(Ms)No.361 Agriculture (AM II) Department, dated 12.12.2008. It is submitted that under Section 3 of the said Act, the Government may declare their intention of regulating the marketing of agricultural produce in areas by notification and the proposal of the market committee is not mandatory. 9. It is not in dispute that the petitioner has made objections on 10.3.2009 and sent reminders on 7.5.2009, 21.8.2009, 23.9.2009 and 10.6.2010. Though as per the provisions of the Act, these objections made by the petitioner were not within the prescribed period of limitation, the respondents are now considering all the objections made by the traders including the petitioner and appropriate orders would be passed. https://hcservices.ecourts.gov.in/hcservices/ 10. However, without waiting for the decision from the respondents, the petitioner has come forward with the present writ petition. 11. The declaration sought for by the petitioner cannot be granted as it is. However, considering the facts and circumstances of the case, the respondents are directed to consider the objections made by the petitioner on 10.03.2009 in respect of the Notification issued in G.O.Ms.No.361 Agriculture (AM II) Department, dated 12.12.2008 (notified on 24.12.2008) as amended as per G.O.Ms.No.309, Agriculture (AM II) Department, dated 28.12.2010 notified on 16.2.2011, in accordance with law and on merits and pass appropriate orders, within 12 weeks from the date of receipt of a copy of this order. The Writ Petition is disposed of on the above terms. No costs. Consequently, connected MP is closed. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar Suk To 1.State of Tamil Nadu, rep. by Agricultural Production Commissioner and Principal Secretary to Government, Fort St.George, Chennai 600 009. 2.The Commissioner of Agricultural Marketing and Agri Business, Thiru.Vi.Ka Industrial Estate, Cipet Road, Guindy, Chennai – 600 032. +1 CC to the Government Pleader Sr.No.73782 W.P.No.21243 of 2011 RJ(CO) DRL : 16/03/2012 https://hcservices.ecourts.gov.in/hcservices/