SASA MUSA SUGAR WORKS ETC. ETC. v. STATE OF BIHAR AND ORS. ETC. ETC.

Even if it is held that the decision in DCMs' case, though erroneous, was binding inter-pwte, the requirement of following the procedures under Sections 3 and 4 of the Act in the matter of inclusion or deletion of an agricultural produce as held in DCJ\f's case by the High Court, has been expressly removed by introducing Section 4A. In our view, the amend- ing/validation Act docs not intend to overrule or annul any decision of the Court, but the amending Act has brought in a change in the requirement of following the procedure under Sections 3 ·and 4 of the Act while amending the Schedule under Section 39 of the Act. Hence, the basis of the decision in DCM's case has undergone a legislative change. Therefore, section 4A does not suffer from encroachment of judicial power of the State.

H Section 4A does not offend Airticle 14 of the Constitution. In view of

SASAMUSASUGAR WORKSv. STATE[G.N.RAY,J.] 189

Section 4A of the Act, any exercise of power under Section 39 of the Act A is to be uniformaly exercised in accordance with Section 4A of the Markets Act. In our view, no objection as to the validity of Section 4A can be raised on the ground that different procedures for inclusion and deletion of an item for the purpose of exercising power under Section 39 and powers under Sections 3 and 4 of the Act have been provided for in the Act. B Exercise of power under Section 39 is altogether a different exercise from the exercise of power under Sections 3 and 4. Even if it is assumed that the exercise of power under Section 39 in the matter of inclusion and deletion of an agricultural produce overlaps or comes in conllict with the exercise of power under Section 3 and 4, the Legislature by incorporating Section 4A has given overriding power to Section 39, subject to the c limitation under Section 4A(2). Viewed from this perspective, Sections 3 and 4 stand modified on account of Section 39 read with Section 4A of the Markets Act.

First part of Section 4B contemplates validation of market fee levied and collected by treating such levy and collection under the Act as amended. Second part of Section 4B legislatively annuls the notification dated May, 1977. The other parts relate to consequential actions flowing from the first two parts. Levy of market fee was held invalid for item like sugar which was excluded from the Schedule by notification dated May 2, 1977on the ground that once deleted from the Schedule, its reintroduction can take effect only after complying with Sections 3 and 4 of the Act. It should noted that 'in view of Sec.lion 4A, which has been inserted in the Market act by specifically indicating in Section 2 of Amending Act that the said Section "shall always be deemed to have been inserted", deletion of an item and subsequent inclusion of the same under Section 39 is to be made in accordance with Section 39 read with Section 4A. Sub- section (2) of Section 4A makes. it i!'lperative that deletion can be made after hearing objection. Hence, even if notification dated May 21, 1977 purporting to rescind the notification dated May 2, 1977, by which sugar was deleted from the Schedule, is held invalid for the reason indicated by the High G Court, such deletion stands invalidated under Sub-section (2) of Section 4A. Hence, declaration of annulment of notification dated May 2, 1977 flows fn;im Section 4A(2). The result is that sugar must be deemed to be always in the Schedule in respect of which controls have been operative. Both the parts of Section 4B therefore, do not suffer from any infirmity, even otherwise. If deletion Ls non-est, annulment of notification dated May H

190 SUPREME COURT REPORTS (1996] SUPP. 3 S.C.R.

A 2, 1977 is a matter of course. Similarly, levy and realisation of market fee on the items which were included in the Schedule, but exclusion of which was of no consequence, cannot be held invalid. In a sense, first two parts of Section 4B arc declaration of the consequence of invalidation of deletion notification. We, therefore, find no difficulty in upholding the vires of both B Sections 4A and 4B of the Markets Act.

Section 33M cannot also be held ultra vil~s inspite of the fact that the object for inclusion of Section 33M in the Act is not happily worded. It has been categorically stated by the State Go•.•ernment that the collection lo be made by the State Government under Section 33M of the Markets C Act are not to be utilised for general purposes but entire collection are to be ploughed back for achieving the purposes under the Act. In that view of the matter, it cannot be reasonably contended that the imposition has lost the character of fee and it partakes the character of tax.

In the result, (a) Sections 4A and 4B are held valid by declaring that D Sections 4A and 4B are intra vires and (b) Section33M is also valid. Further, the impusilion of market fee anU collection of such levy in respect of sugar are legal and valid.

The appeals and SLP are accordingly disposed of without any order as to costs. E R.A. Appeals and petition disposed of.