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Judgment
Dr. Chauhan, J.—The instant appeal has been filed u/s 18 of the Rajasthan High Court Ordinance, 1949 against the judgment and order dated 5-11 -1993 passed in S. B. Civil Writ Petition No. 2541/92. By the aforesaid judgment and order, the writ petition of respondent No. 1 had partly been allowed holding that the appellant-Samiti can charge the market fee from respondent No. I but the appellant-Samiti cannot insist that the respondent No. I has to take the agricultural produce through the principal market yard/market yard to its manufacturing unit.
The respondent No. 1, carries on the business of oil mill and admittedly his oil mill is situated within the market area notified under the provisions of Rajasthan Agricultural Produce Markets Act, 1961, hereinafter called ''the Act'', was served a show cause notice on 24-5-90 contained in Annex.-1 to the writ petition to explain why he has not shifted to principal market yard in spite of the fact that he had been allotted a shop therein and if his explanation was not found satisfactory, why action should not be initiated against him and in the meanwhile, his licence granted u/s 14 of the said Act was suspended for a period of six months. The order of suspension of the licence was also communicated to the respondent No. I/petitioner vide order dt. 8-6-1990 contained in Annex.-2 to the writ petition. Respondent No. I/petitioner made an application and gave an undertaking dated 3-7-90 contained in Annex. R.2/9 that he would shift after the rainy season to the principal market yard and abide by the provisions of the Aet and the Rajasthan Agricultural Produce Markets Rules, 1963, hereinafter called ''the Rules''. There had also been a meeting of traders and officers of the appellant-Samiti on 3-12-90 wherein a large number of traders including the present respondent No. 1 /petitioner participated and gave an undertaking that they would shift their business within the principal market yard by 8-12-90. The said memorandum of compromise/agreement is contained in Annex. R.2/10. On the basis of the aforesaid undertakings, the licence of the respondent No. 1 was renewed under the provisions of Section 14 of the Act. Instead of complying with the undertaking and the terms of agreement, the respondent No. 1 filed a writ petition before this court praying that the appellant-Samiti be restrained from charging the market fee from him; restraining the appellant-Samiti from insisting that sale and purchase should be made from the market yard; restraining the appellant-Samiti from insisting on the respondent No. 1''s shifting his business to the market yard and further restraining the appellant-Samiti to cancel or suspend the licence of respondent No. 1 and to issue a further direction to the appellant-Samiti to renew the licence of the respondent No. I from time to time. In the writ petition, various allegations had been made against the appellant-Samiti particularly sufficient facilities had not been provided under the market yard and charges of exhorbitant fee etc. The appellant-Samiti filed a counter-affidavit controverting all the allegations. The appellant also took a stand that respondent No. I had given the undertaking to shift his business and entered an agreement with the appellant-Samiti and, therefore, his writ petition should not be entertained as he did not comply with the said undertaking/agreement. The learned single Judge vide his impugned judgment and order held as under:
i. Once a market area has been declared under the Act then no sale and purchase can take place other than the market area i.e. either in principal market yard or in sub-market yard;
ii. All the sales and pure bases of the agricultural produce taken within the said market area are subject to market fee;
iii. The commercial establishment of the respondent No. I/petitioner was admittedly within the market area and thus, even if he brings the oil seeds from outside the market yard then too, he has no option but to pay the market fee;
iv. Rule 64 requires that all the produce which are brought in the market area for sale, they have to be sold in the market area and in no other place;
v. If the market fee has already been paid as the agricultural produce has been purchased from other market yard then under Rule 58 of the Rules, the trader shall produce a declaration in Form 11 in the prescribed manner that on the notified agricultural produce, fee has already been levied in other market area of the Samiti;
vi. However, the Market Committee cannot insist that the trader/respondent No. I shall have to take the agricultural produce through the principal market yard to its manufacturing unit.
The appellant being aggrieved from the last observation that the trader cannot be forced to take the agricultural produce through the market yard if it has been purchased from outside the said market yard, has preferred this appeal.
Heard Mr. M. S. Singhvi, learned counsel for the appellant and Mr. N. P. Gupta, learned counsel for the respondent No. 1.
Mr. Singhvi has submitted that once the respondent No. 1/petitioncr had given the undertaking to shift in the market yard as referred to above and on his undertaking, the suspension of his licence had been revoked and further been renewed, it was not open for him to challenge the order of the appellant-Samiti to shift in the principal market yard.
In Maharashtra State Road Transport Corporation Vs. Balwant Regular Motor Service, Amravati and Others, the Apex Court has held that once an order is passed which is accepted by the other side and benefit has been driven out of it, it is not open to the said party to challenge the said order.
Moreover, a party cannot be allowed to blow hot and cold in the same breath which is based on the principle of election. In R.N. Gosain Vs. Yashpal Dhir, the Hon''ble Supreme Court has observed as under (at page 355):
"10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that ''a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid and then turn round and say it is void for the purpose of securing some other advantage''."
Thus, it is settled law that after taking advantage under an order, a party may be precluded from saying that it is invalid and asking to set it aside.
In view of his acquiescence alone, the respondent No. I/petitioner should have been found non-suited to maintain the writ petition before this court.
Under the statutory provisions Section 4 of the Act provides for declaration of the market area. Section 14 empowers the Market Committee to issue licence and renew the same after its expiry in accordance with the rules and bye-laws which includes the permission to operate in market area on payment of prescribed fee. Section 15 provides for suspension or cancellation of alicence granted u/s 14 if there is any breach of terms and conditions of the licence or for the reasons mentioned therein. Section 17 empowers the Market Committee to collect the market fee and Section 39 provides for the revisional power of the Director of the Market Committee in case any person is aggrieved by any order passed by the Market Committee. The Director has the power to examine the legality or propriety of any decision or order passed by the Market Committee under the rules and he has further been empowered to modify, annul or reverse the said order.
The scheme of the Act has been examined by the courts from time to time and the provisions of the Act had been found to be intra vires. It has been held that establishment of regulated markets is a well known expedient for ameliorating the condition of agricultural purchasers by eliminating the middle man and bringing the consumers in direct contact with the purchasers and thereby seeking an ordered plan of agricultural development. (Vide Jan Mohammad Noor Mohammad Begban Vs. State of Gujarat and Another, . In Bhikam Chand v. The State AIR 1966 Raj 142 , this court observed that the provisions of the Act provide for a scheme of marketing in agricultural commodities for better regulation of the trade of buying and selling agricultural commodities by providing for the control of the various trading activities in specified areas by introduction of the system of compulsory licencing of the trade. The Hon''ble Supreme Court examined the provisions of the similar Act in the case of Sreenivasa General Traders and Others Vs. State of Andhra Pradesh and Others, , and observed that supervision of the operations in the notified market area can be more conveniently done, if business is carried on in a specific area or areas intended for that purpose.
In Rikhab Chand Jain v. State of Rajasthan, 1978 3 WLN (UC) 10, this Court has observed that the provisions contained in Rule 64 are essential for the proper and effective implementation of the provisions of the Act as it will assist the Market Committee in better enforcing of the terms and conditions of the licences issued by it u/s 14 of the Act and in collecting the market fees u/s 17 of the Act.
While interpreting the provisions of similar Act enacted by the Punjab Legislature, the Full Bench of Punjab and Haryana High Court in Harnam Das Lakhi Ram Vs. The State of Punjab and Others, observed that it is immaterial whether the said sales or purchases take place in the principal market yard or sub-market yard or even outside such yards. The provisions of the Act regulate the sales and purchases of the agricultural produce alike without discrimination.
In State of Rajasthan Vs. Mool Chand and Others, this Court has held that exemption is only in case of the purchaser, if the purchase is for his own private use and he purchases by way of retail sale and thus made it quite clear that if a trader purchasing it for the purpose of further processing, the exemption of market fee and the provisions of the Act etc. will not be available to him. Rule 64 of the Rules specifically provides that the agricultural produce brought into the market shall pass through the principal market yard or sub-market yard or yards. It has been provided to have the complete control and regulate the business activities. If a particular provision is interpreted that it is not mandatory for the trader to take the goods through the market yard, the provisions of the Act would not be effectively enforced and the purpose of enacting the Act itself would be frustrated.
In Tinsukhia Electric Supply Co. Ltd. Vs. State of Assam and others, the Constitution Bench of the Apex Court observed as under (at page 152 of AIR):
"The courts strongly lean against any construction which tends to reduce a Statute to futility. The provision of a Statute must be so construed as to make it effective and operative, on the principle ''utres magis valeat quam pereat''. It is, no doubt, true that if a statute is absolutely vague and its language wholly intractable and absolutely meaningless, the Statute could be declared void for vagueness. This is not in judicial review by testing the law for arbitrariness or unreasonableness under Article 14; but what a court of construction, dealing with the language of a Statute, does in order to ascertain from, and accord to, the Statute the meaning and purpose which the legislature intended for it......... It is, therefore, the court''s duty to make what it can of the Statute, knowing that the Statutes are meant to be operative and not inept and the nothing short of impossibility should allow a court to declare a Statute unworkable. In Whitncy v. IRC 1926 AC 37, Lord Dunedin. said (AC p. 52): "A Statute is designed to be workable, and the interpretation thereof by a court should be to secure that object, unless crucial omission or clear direction makes that end unattainable".
The language of Rule 64 is crystal clear, which cannot be said to be vague or ambiguous and it requires no interpretation at all. Even if it is required, it is to be given as to make provisions of the statute effective and workable. Therefore, the direction of the learned single Judge that the appellant-Samiti shall not force the respondent No.l/petitioner to take the goods through the principal market yard or yard is inconsistent with the purpose for which the statute has been enacted.
Moreover, the Court cannot pass an order contrary to the statutory rules nor it can issue direction restraining the authorities to give effect to legal provisions (vide Union of India and Another Vs. Kirloskar Pneumatic Company Limited, and State of U. P. and others Vs. Harish Chandra and others, . Similarly in A.P. Christians Medical Educational Society Vs. Government of Andhra Pradesh and Another, the Hon''ble Supreme Court observed as under:
"Direction in clear transgression of the statutory provisions cannot be given. The court cannot direct an authority to disobey the statute to which it owes its existence. There cannot be anything more destructive of the rule of law than a direction by the court to disobey the laws."
Thus, in view of the above, we are of the considered opinion that the provisions of Rule 64 of the Rules have to be given effect to regulate and control the trading activities of the traders and, thus, the appeal is liable to be allowed and direction issued by the learned single Judge to the effect that the respondent No. 1/petitioncr shall not be forced to lake the goods through the principal market yard is liable to be set aside otherwise the statute would be rendered unworkable.
In view of the above, the appeal succeeds and is allowed. The aforesaid direction that the appellant-Samiti shall not force the respondent No. 1 to take his goods through the market yard is set aside. However, there shall be no order as to costs.