(Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Mandamus, to forbear the respondents from implementing the order passed in G.O.Ms.No.11, Agriculture (AM II) Department, dated 08.01.1998 in respect of Red gram (in all forms) and Black gram (in all forms) in the area outside the Madurai Market.

The relief sought for herein is for forbearing the respondents from implementing the order passed in G.O.Ms.No.11, Agriculture (AM.II) Department, dated 08.01.1998 in respect of red gram in all forms and black gram in all forms in the area outside the Madurai market.

2. The members of the petitioner Sangam are traders dealing with pulses like red gram, black gram, green gram and peas. They purchase them from the traders in the other State and Districts of Tamil Nadu and process it in and around Madurai and sell it to various traders in and around Madurai. The red gram in all forms and black gram in all forms, among other agricultural produces, are under G.O.Ms.No.1435, Agriculture (AM-II), dated 13.08.1985, notified as agricultural produces under the control of Madurai Market Committee established under Section 5 of the Tamil Nadu Agricultural Produce Markets Act, 1959 (Tamil Nadu Act 23 of 1959). The Market Committee is established to issue licence under Section 8 to the traders for buying and selling any notified agricultural produces within the notified area. The Market Committee is the competent authority to levy fee on any notified agricultural produce bought or sold in the notified market area. The members of the petitioner Sangam for trading the pulses were all issued licence under old Act of Tamil Nadu Act 23 of 1959. According to the petitioner sangam, there was no levying of any market fee under Section 24 of the old Act, as there was no establishment of markets for purchase and sale of the notified market produces and no notification of notified market area in respect of red gram and black gram under Section 5 of the old Act.

3. The dispute, leading to the filing of the writ petition, started only after the old Act was repealed by the New Act viz., Tamil Nadu Agricultural Produces Marketing (Regulation) Act, 1987 with effect from 01.02.1991. The same is followed by preliminary notification in G.O.Ms.No.458, Agricultural Department, dated 30.10.1996 and final notification in G.O.Ms.No.11, dated 08.01.1998, declaring to regulate the market of agricultural produces mentioned against each schedule under the notified area of the 20 markets under the control of Madurai Market Committee. There are three schedules consisting of the name of the markets and name of the agricultural produces under the Madurai Market Committee. The description of red gram and black gram, as notified under the old Act, were changed into red gram in all forms and black gram in all forms. In pursuance of the same, the Market Committee issued licence to traders dealing with the above referred notified agricultural produces and based on the details of transactions, demanded market fee for the above two notified agricultural produces.

4. The traders denied their liability on the ground that the red gram and black gram are bought or sold inside the market or from other State. Due to their denial, criminal prosecution was launched against the traders, who failed to comply with the demand by notifying penalty under Section 48 of the Act, 1987. The same compelled the petitioner sangam to approach this Court by way of W.P.No.1512 of 2003 questioning the constitutional validity of the impugned G.O.Ms.No.11, (Agriculture (AM-II) Department, dated 08.01.1998 for issuing writ of declaration declaring the impugned G.O.Ms.No.11, dated 08.01.1998, as ultra-vires the Tamil Nadu Agricultural Produce Marketing (Regulation) Act, 1987, insofar as it relates to black gram and red gram. The relief was mainly sought for on the ground that the red gram and black gram are not cultivated in the State of Tamil Nadu, which is the issue already dealt with in W.A.No.458 of 1994 and rejected by the Division Bench of this Court by observing that the Marketing Committee may regulate the purchase and sale of notified agricultural produce which are grown outside the notified area. In view of the principles laid down in W.A.No.458 of 1994 reported in 1995 AIHC of (All India High Court Cases) 2040, W.P.No.1512 of 2003 was dismissed by holding that the issue involved therein is covered by the aforesaid decision. While doing so, the Division Bench of this Court in its order, dated 16.11.2006, has given liberty to the petitioner sangam to raise other questions with regard to the grams processed and transported back to the areas from where it was obtained and where no purchase or sale taken place within the market area concerned. The petitioner sangam having accepted the verdict of the Division Bench regarding the constitutional vires of G.O.Ms.No.11, dated 08.01.1998 did not prefer any appeal against the same. However, the petitioner sangam has come forward with the present writ petition, against implementation of the impugned G.O.Ms.No.11 for the traders in red gram in all forms and black gram in all forms in the area outside the Madurai Market.

5. The present relief is sought for on the following grounds;

(a)What is notified in G.O.Ms.No.11 is only the market area andnot notified market area in respect of the notified agricultural produce and in non notified market area no fee can be levied for the traders outside the market area.

(b)When the preliminary notification issued under G.O.Ms.No.458, dated 30.10.1996, is only in respect of Madurai Market area, the area covered under final notification in G.O.Ms.No.11 cannot be larger than the same.

(c) In pursuance of reconstitution of Revenue Districts, G.O.Ms.No.152, dated 02.06.1998, was issued to trifurgate the Madurai Market Committee into Madurai, Dindigul and Theni, and consequent upon the same, the limits of the notified area of the Madurai Market Committee stood altered and consequent upon such alteration, the Madurai Market committee by virtue of Section 9(2) stood dissolved by operation of law and without establishing the new market committee for the new notified area, the notification issued in the name of the resolved market committee is without jurisdiction and unenforceable.

6. Per contra, the learned standing counsel for the respondents opposed the relief both in law and on facts. In law the maintainability of the writ petition is challenged and on facts, it is the case of the respondents that the issue is already agitated and decided in the earlier writ petition and the same cannot be reagitated. The specific contention raised on the side of the respondents is that the notified market area, as referred to in the notification, covers not only Madurai Market but also other regulated markets of Madurai, Dindigul and Theni Districts and the levy of market fees for the sale of goods within the notified area is perfectly valid. It is also their case that the notification issued for the establishment of Madurai Market committee vide G.O.Ms.No.2775, Agriculture Department, dated 20.09.1967, is saved by Sub section 3 of Section 67 of the New Act 1987, as such the licence granted by Madurai Market Committee holds good after the trifurcation of Madurai Market Committee and even after the alteration of area covered by the Madurai Market Committee, the same remains intact and there is no necessity for establishing new Madurai Market Committee for the altered notified area.

7. Heard the rival submissions made on both sides and perused the records.

8. The relief sought for herein is, as already stated, against the implementation of G.O.Ms.No.11, dated 08.01.1998. As the validity of the G.O. is already upheld in the earlier Writ Petition in W.P.No.1512 of 2003, with liberty to the petitioner sangam to raise other questions, as raised therein, the petitioner sangam has come forward with the present writ petition not by raising the same issue relating to the vires of the G.O. but only against the implementation of the same insofar as the petitioners are concerned. As such the principles of res judicata is inapplicable to the present case and the objection raised regarding the maintainability of the writ petition is hence rejected.

9. On facts, the applicability of G.O.Ms.No.11 is questioned on three grounds as above stated. In order to appreciate the first ground that without notifying the notified market area the G.O. cannot be enforced against the traders outside the market area, it is but necessary to understand the definition of Market, Market Committee, notified area and notified market area. The definition of the above expressions as mentioned in the New Act are as follows;

2(10). market means any market established under sub-section(1) of Section 6 and shall except in sub-sections (1) and (2) of that section, include a subsidiary market;

2(11). market committee means any market committee established under sub-section (1) of Section 5.

2(13) notified area means any area notified under Section 4 as altered by any notification under sub-section(1) of Section 9.

2(14). 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.

10. The Government under Section 4 may by notification declare the area specified in the notification under Section 3 or any portion thereof to be a notified area for the purposes of this Act in respect of any agricultural produce specified in the notification under that section. As per Section 5, the Government shall establish a market committee for every notified area and it is the duty of the market committee to enforce the provisions of this Act and rules and by-laws made under this Act in such notified area.

11. Under Section 6(1) every market committee shall establish in the notified area such number of markets providing such facilities as the Government may from time to time direct for the purchase and sale of the notified agricultural produce. Under Section 6(2), the Government shall, after the establishment of a market by a market committee under sub-section 1 declare by notification, the area of the market and such area around the market as may be specified in the notification to be a notified market area for the purpose of this Act in respect of any notified agricultural produce.

12. Section 8 deals with trading in agricultural produce in notified area in accordance with the conditions of a licence granted to the traders by a market committee. Section 9 deals with the mode of alteration of notified area and the consequences of the same. Under Section 24 the market committee shall levy a fee on any notified agricultural produce bought or sold in the notified market area at a rate as specified in Section 24(1).

13. As far as the first ground is concerned, this Court is required to go into the contents of the notification to ascertain as to whether the same is in respect of notified area or market area or area of the market or notified market area as the three expressions above referred to cover three different areas. While the notified area covers the larger area, the notified market area covers the area less than notified area. The market area covers the area less than notified area and notified market area. However, both the notified market area and market area forms part of the notified area, that means different portions of notified area are the market area and notified market area. Any area notified by the Government under Section 4(1) is the notified area and the market committee for every notified area is constituted only to enforce the provisions of the and Rules and by-laws made under the new Act. There can be number of markets providing such facilities as established by the market committee. The actual area covered by each market is called the market area or the area of the market under Section 6(1) of the. Under Section 6(2), the Government shall, after the establishment of the market by a market committee, declare notified market area which includes the market area and such area around the market as specified in the notification that means the actual area covered by the market established under Section 6(1) and any specified area around the market.

14. As rightly argued by the learned senior counsel for the petitioner sangam, the different expressions used as notified area, market area or area of the market and notified market area in different contexts would support the stand taken by the petitioners regarding nature and extent of areas covered by three different expressions.

15. The reading of Section 6 would show that the licence is issued by the market committee to any traders to deal with agricultural produces within the notified area. Whereas under Section 24 the levy of fee by the market committee is on any notified agricultural produce bought or sold in the notified market area. It is to be noted herein that while the expression notified market area always Includes the market area, the expression market area does not necessarily include the area around the market. Now, only in the light of the above explanations, the controversy raised herein is to be necessarily dealt with and decided.

16. As already referred to, there are various G.Os. for notifying the Madurai District as notified area, for establishment of Madurai Market committee for such notified area and for notifying variety of agricultural produce in respect of that notified area and for the establishment of separate market within the notified area. G.O.Ms.No.1525, Agriculture (AM II), dated 05.08.1980, and G.O.Ms.No.1435, Agricultural Department, dated 13.08.1985, are the preliminary and final notifications for declaring Madurai District as notified area for the purpose of this Act in respect of various agricultural produces including black gram and red gram. G.O.Ms.No.2775, Agricultural Department is issued for the establishment of Madurai Market Committee under Section 5(1) of the old Act. Under Section 65 of the new Act, the description of red gram and black gram is amended as red gram in all forms and black gram in all forms. It is the admitted case that the Madurai Market committee has established such number of markets within erstwhile composite Madurai District. The 20 markets under the control of Madurai Market Committee covered under schedules I to III in G.O.Ms.No.11 are the number of markets established by Madurai Market Committee within Madurai, Theni and Dindigul Districts.

17. The reading of the preliminary notification in G.O.Ms.No.458, dated 30.10.1996 and final notification in G.O.Ms.No.11, dated 08.01.1998, would reveal that the same are issued in respect of the notified area of twenty markets under the control of Madurai Market Committee, specified in the schedules for evaluating the agricultural market produces. The twenty markets mentioned in the schedule I to III are Madurai, Melur, Thirumangalam, Theni, Usilampatti, Cumbam, Bodinayakanur, Dindigul, Ottanchatram, Bathalagundu, Gopalapatty, Palani, Natham, Vadipatti, T.Kallupatti, Andipatti, Uthamapalam, Vedasandur, Vadamadurai and Chinnamanur. The particulars made available herein would reveal that the markets established at Madurai, Melur, Thirumangalam, Vadipattai, T.Kallipatti do fall within Madurai District and other markets fall within Theni and Dindigul Districts. It cannot be disputed that the Madurai District comprised of vast areas and the markets by name Madurai, Melur, Thirumangalam, Vadipatti and T.Kallupatti covers only a portion of the area. 18. As far as the area covered under G.O.Ms.No.1435 is concerned, the same is in respect of entire Madurai District, G.O.Ms.No.11 is in respect of only such of those markets as mentioned in Schedules I to III under the control of Madurai Market committee. The area declared under G.O.Ms.No.11 is, as already pointed out by the learned senior counsel for the petitioner sangam, notified area of the 20 markets that means market area and not notified market area. If it is the notified area of the market, it means only the actual area covered by each market. If it is notified market area, there shall be notification notifying the market area and such area around the markets mentioned in Schedules I to III. The omission to use the expression entire market area denotes the intention of legislature that it is intended to be implemented only in respect of the area covered under each of the markets specified in the schedules I to III and not in respect of any other specified area around such markets. Had it been the intention of legislature to cover more area, that is market area and such area outside the Market area the notification ought to have used the expression notified market area and ought to have indicated the extent of such area around the markets.

19. The plain reading of the G.O. only gives such an interpretation and no other interpretation is possible in the context of definition of notified area, the notified market area and the expression used in Section 6(2) as area of the market. It is not in dispute that till date no notification is issued declaring the notified market area, that is covering the area of the market and such area around the market in respect of the markets specified in the Schedules I to III. That being the factual position, the argument advanced on the side of the petitioner that G.O. is applicable only in respect of the traders dealing in buying and selling the specified agricultural produce within the market area of the named markets and not in respect of traders, who carry on business in the area outside the markets deserves merit and acceptance.

20. The same reasoning is applicable to the second ground raised on the side of the petitioner sangam that the area covered under preliminary and final notifications should be one and the same. In this context, reading of G.O.Ms.No.458, dated 30.10.1996, would reveal that it is in respect of the markets, as mentioned in Schedules I to III under the Madurai Market Committee to be the notified markets for regulating the marketing of agricultural produces mentioned against each market, that means the same is only in respect of the named markets and the area covered under the named markets. Whereas the different expression is used in G.O.Ms.No.11, as if the same is notified to regulate the marketing of agricultural produces mentioned against each in the notified area of the twenty markets under the control of Madurai Market Committee. Though the expression used is slightly different, the intention disclosed is that it is meant for regulated markets named in the schedule I to III. As already stated, the area of the market is lesser than the notified market area. When the preliminary notification shows that it is only in respect of the regulated markets, the final notification can be only in respect of the same area, that is the area of the twenty markets and cannot be larger than the area mentioned in the preliminary notification. Such inconsistency in the final notification insofar as it relates to the area is without jurisdiction and against law and in contravention of the procedure laid down under the and in violation of the principles of natural justice for want of any opportunity to the person concerned for raising any objections or suggestions, as contemplated under Section 3 of the.

21. Viewing from both the angles, the notification vide G.O.Ms.No.11 cannot be implemented or enforced in respect of the traders outside the area of Madurai Market.

22. The last ground raised is questioning the very existence of Madurai Market committee by virtue of Section 9(2) of the. It is so raised only on the basis of the bifurcation and consequential reconstitution of revenue Districts. It is not in dispute that the erstwhile composite Madurai district consisted of Madurai, Theni and Dindigul. When the notification for declaring Madurai District as notified area was issued, the same was in respect of larger area covering Madurai, Theni and Dindigul and its surroundings. The Government has by G.O.Ms.No.152, dated 02.06.1998, bifurcated the revenue Districts of Ramanathapuram, Perambalur, Dindigul, Thoothukudi, Namakkal, Sivagangai, Karur, Theni, Tiruvallur and Thiruvarur for setting up separate market committees. Consequent upon the bifurcation of revenue districts, Ramanathapuram market committee was trifurcated into Ramanathapuram, Virudhunagar and Sivagangai. Trichy Market committee was trifurcated into Trichy, Perambalur and Karur. Madurai Market Committee was trifucated into Madurai, Dindigul and Theni. Salem Market Committee was bifurcated into Salem and Namakkal. Tirunelveli Market Committee was bifurcated into Tirunelveli and Thoothukudi. Thanjavur Market Committee was bifurcated into Thanjavur and Tiruvarur. The Chengalpet Market Committee was trifurcated into Chengalpet and Thiruvallur. Under the same G.O., the Government has accorded sanction for the post of Secretary and one post of Manager for each of the newly formed market committees. It cannot be disputed that the above trifurcation and bifurcation is effected in pursuance of the power vested with the Government under Section 9(1) of the. Section 9(2) of thespeaks about the consequence with effect on and from such date as may be specified in the notification for bifurcation of the notified area. 23. For better appreciation, Section 9(2) is extracted hereunder;

Section 9.Alteration of notified area, etc.:- (1)..

(2) When the limits of the notified area for which a market committee is established are altered under sub-section (1), the following consequences shall, with effect on and from such date as may be specified in the notification, ensure, namely:-

(a) the market committee shall stand dissolved and its members shall vacate their offices as such members;

(b) a new market committee shall be established and constituted for the new notified area in accordance with the provisions of Section 5 and Section 10;

(c) the licence, if any, granted by the dissolved market committee shall be deemed to have been granted by the new market committee having jurisdiction and shall continue to have effect accordingly for the remainder of the period for which it was granted;

(d) there shall be transferred to the new market committee such portion of the dissolved market committees funds and other assets, debts and obligations as the Government, may, by order, direct and the rights and liabilities of the dissolved market committee in respect of civil and criminal proceedings, contracts, agreements and every other matter or thing arising in, or relating to, any part of the notified area within the jurisdiction of the new market committee shall vest in the new market committee...

24. As per the relevant provisions of law under Section 9(2)(a) consequent upon the alteration of the limits of the notified area for which a market committee is established, the market committee shall stand dissolved and its members shall vacate their offices as such members. Under Section 9(2)(b), a new market committee shall be established and constituted for the new notified area in accordance with the provisions of Sections 5 and 10. Under Section 10 every market committee shall consist of 16 members and shall be constituted in the manner specified and out of 16 members, eight would be producers of the notified agricultural produce in the notified area nominated by the Government in consultation with the Director of whom at least three shall be small farmers and another three shall be marginal farmers. Three persons shall be licenced under sub-section (1) of Section 8 in the notified area in respect of any notified agricultural produce. One producer of any notified agricultural produce must reside in the notified area and all the 16 persons thus above stated shall be nominated by the Government in consultation with the Director and Registrar, as the case may be, etc. and the name of the members of the market committee nominated under Section 10 shall be notified by the Government in Tamil Nadu Government Gazette.

25. As rightly argued by the learned senior counsel for the petitioner sangam, after trifurcation and bifurcation of the then existing market committees, the new market committees ought to have been duly constituted in the manner as contemplated under Section 10 of the Act, as the market committee is the competent authority to enforce all the rules and regulations and to levy fee in respect of the traders of the notified area. Without establishing the new market committee, the question of enforcing any declaration to regulate the marketing of agricultural produces in either of the notified area or notified market area does not arise herein. In the absence of new market committee consisting the new committee members, a vacuum is created and without filling up the same, no further action shall be initiated or notified in the name of the erstwhile market committee and fresh notification ought to have been issued. The saving clause of Section 67 does not deal with the situation arising out of alteration of the limits of notified area effected under Section 9(1). Even otherwise, the repealed and saving clause Section 67 cover the issue relating to any notified area, market committee and the Office of such market committee notified under the old Act.

26. The present notification in G.O.Ms.No.11, dated 08.01.1998, is issued under the new Act and any alteration of market committee area would invoke the consequences contemplated under Section 9 (2) and in the absence of any separate notification for filling up the vacuum already created, no action under the earlier notification can be initiated and the implementation and enforceability of any liability arising under the old Act in respect of the traders outside the area of the market or market area which is sought to be restrained herein does not arise herein.

27. Thus, for the discussion held above, this Court is inclined to agree with the contention raised by the petitioner sangam that G.O.Ms.No.11 cannot be implemented in respect of red gram in all forms and black gram in all forms in respect of the traders trading outside the Madurai Market area and the petitioner sangam is hence entitled to get the relief as sought for herein.

28. In the result, the writ petition is allowed as prayed for. No costs.