TALCHER MUNICIPALITYversusTALCHER REGULATED MKT. COMMITTEE AND ANR.

                     TALCHER MUNICIPALITY                                A
                                   V.

     TALCHER REGULATED MKT. COMMITTEE AND ANR.

                              JULY 28, 2004

               [S.B. SINHA AND S.H. KAPADIA, JJ.]                        B
     Orissa Agricultural Produce Markets Act, 1956:

     S.4(4) rlw. ss.2(vi) and 2(vii)-Market-Owned by Municipality-
Requisitioned by Agricultural Produce Market Committee-Liability of
Municipality to transfer-Held, the provision clearly mandates that even C
the market of a Municipality or a Gram Panchayat falling within the
market area will have to be transferred if requisitioned therefor-Orissa
Municipal Act, 1950-ss.295 and 296-Constitution of India-Seventh
Schedule-List II, Entries 5 and 28.
                                                                         D
     Constitution of India:

     Article 136-Plea involving investigation into question of facts-
Held, cannot be allowed to be raised for the first time before Supreme
Court.
                                                                         E
     Maxim 'Generalia specialibus non derogant '-Applicability of

     Words and Phrases :

    Expression "regulation" occurring in Orissa Agricultural Produce
Markets Act, 1956-Connotation of                                     F
     Respondent Market Committee, sent a requisition to appellant
Municipality to transfer to it, in terms of s.4(4) of the Orissa Agricul-
tural Produce Markets Act 1956 (the Act), a particular market owned
by the Municipality wherein notified agricultural produces were being G
bought and sold. Since there was no response from the Municipality,
the respondent filed a writ petition which was allowed by the High
Court. Aggrieved, the Municipality filed the present appeal.

    On the question whether the land and building ofa daily market
owned by a Municipality or a Gram Panchayat where notified agri- H
                                   167
    168                SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.
A cultural produces are bought and sold is liable to be transferred to the
    Market Committee, if requisition therefor is made :

          Dismissing the appeal, the Court

          HELD: 1.1. Once a market area has been declared, the provisions
B of the Orissa Agricultural Produce Markets Act, 1956 will bring within
    its sweep even the markets belonging to a Municipality or a Gram
    Panchayat. Sub-Section (4) of Section 4 of the Act clearly mandates
    that even the market of a Municipality or a Gram Panchayat falling
    within the market area will have to be transferred if requisitioned
C   therefor. If in a market where together with agricultural produces
    some non-agricultural produces are also sold, the same by itself would
    not disentitle the respondent to exercise its statutory power contained
    in Section 4(4) of the Act. [172-G-H; 173-E-F)

          1.2. Entry 5 of List II of the Seventh Schedule to the Constitution
D oflndia whereunder the Orissa Municipal Act has been enacted would
    be subject to the provisions of Entry 28 of List II as the power to
    establish a market is a separate and distinct one. It is true that the
    primary object of the Act is to protect the producers inter alia from
    being exploited from the middlemen but the State has the requisite
E   legislative competence to establish a market and in that view of the
    matter the Act falls within the ambit of markets and covered by Entry
    28. The Act contains special provisions. It was enacted for better
    regulation of buying and selling of agricultural produce. The provision
    of s.4( 4) of the Act operates notwithstanding anything to the contrary
F   contained in any other law for the time being in force. The provisions
    of the Act, therefore, would prevail over the provisions of the Orissa
    Municipal Act. The maxim 'generalia specialibus non derogant' would,
    thus be applicable in this case. [171-E-F; 173-C-D)

          ITC Ltd. v. Agricultural Produce Market Committee and Others,
G (20R21 9 sec 232; E~gi~eering Kamgar Union v. Mis. Electro Steels
    Castings Ltd. & Anr., JT (2004) Supl. 1 SC 78; D.R. Yadav and Another
    v. R.K. Singh and Another, (2003) 7 SCC 110; Indian Handicrafts
    Emporium and Others v. Union of India and Others, [2003) 7 SCC 589
    and MP. Vidyut Karamchari Sangh v. MP. Electricity Board, JT (2004)         •
H   3 SC 423, relied on.
   TALCHER MUNICIPALilY v. TALCHER REGULA TED MKT. COMMITTEE [SINHA, l.] 169

     1'.f.C. V.S. Arunachala Nadar Etc. v. The State of Madras & Others, A
[1959) Supp. 1 SCR 92 and Belsund Sugar Co. Ltd. v. State of Bihar and
Others, [1999) 9 ·scc 620, referred to.

     1.3. The Power to regulate buying an selling of agricultural
produce must be interpreted in the context in which the same has been B
used. Each person whoever is engaged in buying and selling of the
agricultural produce in the market ~hall be subject to the regulation
for which the Act has been enacted. The expression "Regulation" is a
term which is capable of being interpreted broadly. It may in a given
case amount to prohibition.
                                                                               c
     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2150 of
1998.
          •
     From the Judgment and Order dated 21.11.1997 of the Orissa High
Court in OJC No. 10213 of 1996.
                                                                               D
    P.N. Misra, S. Misra, R.M. Patnaik and Ms. Kumud Lata Das for the
Appellant.

    Janaranjan Das, Swetaketu Mishra, Ms. Moushumi Gahlot and Radha
Shyam Jena for the Respondent.                                      E
     The Judgment of the Court was delivered by

     S.B. SINHA, J. : The Appellant Talcher Municipality constructed a
market purported to be in exercise of its power conferred upon it under F
Section 295 of the Orissa Municipal Act, 1950. The control of the said
market is vested in the Municipal Council in terrns of Section 296 thereof.
Agricultural produces within the meaning of provisions of the Orissa
Agricultural Produce Markets Act, 1956 (for short "the Act") are bought
and sold in the said market.
                                                                               G
      The Respondent-Market Committee sent a requisition dated 13.2.1996
to the Executive Officer of the Appellant stating therein that as it was in
possession of the said market where agricultural produces were being
bought and sold it was liable to transfer the same in terms of Sub-section
(4) of Section 4 of the Act. A similar request was made to hand over the H
    170                 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A Hat and the land situated at Angarua in terms ofa letter dated 19.7.1996.
          The Appellant having failing and/or neglected to comply with the said
    statutory requisition, the respondent, herein filed a writ petition before the
    High Court of Orissa praying for a direction upon the appellant for
B   transferring its weekly market popularly known as Jajangi Weekly Market
    By reason of the impugned judgment, the said writ petition has been
    allowed.

         The core question which falls for consideration is as to whether the
   land and building of a daily market owned by a Municipality or a Gram
C .Panchayat where notified agricultural produces are bought and sold is
   liable to be transferred to the Market Committee, if requisition therefor is
   made.                                                          •

          Submission of Mr. P.N. Misra, learned senior counsel appearing on
D behalf of the Appellant is that the said Act which was enacted by the State
    of Orissa in exercise of its legislative competence contained in Entries 26,
    27 and 28 of List II of the Seventh Schedule of the Constitution oflndia:
    the object whereof being to protect the producers of agricultural produce
    from being exploited by the middlemen and profiteers and enable the
    agriculturists to secure a fair return for their produce, the market where pre-
E   dominantly non-agricultural produces are bought and sold. Sub-Section (4)
    of Section 4 of the Act would riot apply. Strong reliance in this behalf has
    been placed on MC. V.S. Arunachala Nadar Etc. v. The State of Madras
    & Others, [1959] Supp. 1 SCR 92 and Be/sund Sugar Co. Ltd. v. State of
    Bihar and Others, [1999] 9 SCC 620.
F
          Submission of Mr. Das. learned counsel appearing on behalf of the
    respondent, on the other hand, is that the language used in Section 4(4)
    of the Act being clear and explicit, the judgment of the High Court must
    be held to have correctly rendered. The learned counsel pointed out that
G   the vires of Section 4(4) of the Act has not been questioned.

         The Act has been enacted to provide for better regulation of buying
    and selling of agricultural produce and the establishment of markets for
    agricultural produce in the State.

H         The Cooperation Department of the Government of Orissa issued
   TALCHER MUNICIPALITY v. TALCHER REGULA TED MKT. COMMITTEE [SINHA, I.] 171

notifications dated 2.8.1993 and 19.11.1994 whereby and whereunder A
various cereals, oilseeds, gur and sugarcane, fruits, vegetable items and
animal husbandry products were notified as agricultural produces.

      By reason qf the provisions of the Act not only wholesale but also
retail sale of the agricultural produces as also the market wherein the B
buying and selling of the agricultural produces are carried on is sought to
be regulated and controlled. A "market area" and the "market" as defined
in Sections 2(vii) and 2(vi) respectively are required to be declared as such
in terms of sub-section (I) of Section 4 and sub-section (5) of section 4
respectively.
                                                                               c
     Once the market area is declared, the rights of those dealing in
agricultural produces would be governed by the provisions of the said Act.

      The legislative competence of the State to enact such enactment in
exercise of its power under Entries 26, 27 and 28 of List II of the Seventh D
Schedule of the Constitution oflndia is not in dispute. The Act deals with
the supply and distribution of goods as well as the trade and commerce
therein as it seeks to regulate the. sale and purchase of goods carried on
in the specified markets.

      Entry 5 of List II of the Seventh Schedule of the Constitution oflndia E
whereunder the Orissa Municipal Act has been enacted would be subject
to the provisions of Entry 28 as the power to establish a market is a separate
and distinct one. It is true that the primary object of the Act, as has been
held in MC. V.S. Arunachala Nadar (supra) and Belsund Sugar Co. Ltd.
(supra), is to protect the producers inter alia from being exploited from p
the middlemen but the State has the requisite legislative competence to
establish a market and in that view of the matter the said Act falls within
the ambit of markets and covered by Entry 28, (See ITC Ltd. v. Agricultural
Produce Market Committee and Others, [2002] 9 SCC 232). The said
decision has recently been followed in Engineering Kamgar Union v. Mis. G
Electro Steels Castings Ltd. & Anr., JT (2004) Sup!. I SC 78.

     The said Act, as noticed hereinbefore was enacted for better
regulation of buying and selling of agricultural produce.

     The power to regulate buying and selling of agricultural produce must H
    172                SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A be interpreted in the context in which the same has been used. Each person
    whoever is engaged in buying and selling of the agricultural produce in
    the market shall be subject to the regulation for which the same has been
    enacted. The expression "regulation" is a term which is capable of
    interpreted broadly. It may in a given case amount to prohibition.
B         Section 4(4) of the Act must be construed in that context.

          Section 4(4) of the act reads thus:

             "Notwithstanding anything to the contrary contained in any law
c            for the time being in force, the market committee may, after a
             notification issued under sub-section (I), by requisition, require
             any Municipality or Grama Panchayat to transfer to it any land
             or building in possession of such Municipality or Grama Panchayat
             wholly or partly situated within the concerned market area which
             immediately before the establishment of the market was being
D            used by such Municipality or Grama Panchayat for similar
             purpose, and the Municipality or Grama Panchayat, as the case
             may be, shall within one month from the date of receipt of the
             requisition, transfer the land or building or both, as specified in
             the requisition to the market committee and the net income
E            derived therefrom by the market committee under Section 11 shall
             be shared equally by the market committee and the concerned
             Municipality or Grama Panchayat, every year:

             Provided that the share of the Municipality or Gram Panchayat in
             any one year shall not be less than eighty per cent of the average
F
             net income derived by it from land or building or both so
             transferred during the three years immediately preceding the
             transfer."

          A market may be belonging to a Municipality of Gram Panchayat but
G once a market area has been declared the provisions of the said Act will
    bring within its sweep even such markets. Sub-section (4) of Section 4
    clearly mandates that even the market of a Municipality or a Gram
    Panchayat falling with the market area will have to be transferred it
    requisitioned therefor. In the event of such transfer, the net income derived
H   therefrom by the market committee under Section 11 shall be shared
   TALCHER MUNICIPALITY v. TALCHER REGULATED MKT. COMMITTEE [SINHA, J.] J73

equally by the market committee and the concerned Municipality or Gram A
Panchayat every year. The proviso appended to Sub-section (4) of Section
4 furthermore stipulates that the share of the Municipality or Gram
Panchayat in any one year shall not be less than eighty per cent of the
average net income derived by it from land or building or both so
transferred during the three years immediately preceding the transfer.   B
      It is true that the appellant Municipality is a local authority. It is
furthermore true that in terms of Section 295 of the Orissa Municipal Act
the appellant was entitled to provide places for use as public markets, the
control of which, as noticed hereinbefore is to be exercised by the
Municipal Council.                                                           C
     The Act, however, contains special prov1s1ons. The prov1S1on of
Section 4(4) of the said Act operates notwithstanding anything to the
contrary contained in any other law for the time being in force. The
provisions of the said Act, therefore, would prevail over the provisions of D
the Orissa Municipality Act. The maxim 'generalia specialibus non
derogant' would, thus, be applicable in this case. (See D.R. Yadav and
Another v. R.K. Singh and Another, [2003] 7 SCC 110; Indian Handicrafts
Emporium and Others v. Union of India and Others, [2003] 7 SCC 589
and MP. Vidyut Karamchari Sangh v. MP. Electricity Board, JT (2004) E
3 SC 423).

      If in a market where together with agricultural produces some non-
agricultural produces are also sold, the same by itself would not disentitle
the respondent to exercise its statutory power contained in Section 4(4) of
the Act. Once, the respondent has the requisite jurisdiction in terms of F
provisions of the said Act to notify the market area within which there may
exist market owned by and/or belonging to a Municipality or a Gram
Panchayat power under Sub-section (4) of Section 4 can, in our opinion,
be exercised by the respondent Committee.

      Contention of Mr: Misra to the effect that in the market in question G
apart from agricultural produces, non-agricultural produces are also bought
and sold and thus, it was obligatory on the part of the authorities concerned
to find out the dominant object of the Municipality in establishing the said
market carinot be gone into by this Court for the first t.ime as such a
contention has not been raised before the High Court.                         H
    174                SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.
A      The appellant furthennore did not raise any contention before the
  High Court as regard the effect of sale of non-agricultural produces in the
  said market. Such a contention which would involve investigation into
  questions of fact cannot be allowed ti) be raised for the first time before
  this Court; more so when before us no factual foundation has been laid
B down in the Special Leave Petition.
         Furthermore, the validity or legality of the said provision having not
    been questioned, the appellant at this stage cannot be permitted to urge that
    the same will have no applicatior. in the case of this nature.

C         For the reasons aforementioned, there is no merit in this appeal which
    is accordingly dismissed. No costs.

    R.P.                                                     Appeal dismissed.