SOPARIWALA EXPORTS Vs. STATE OF GUJARAT

JUDGEMENT

(1.) . The petitioner - Sopariwala Exports, a partnership firm has filed this petition through its partner and Power of Attorney Holder Mr.Yunus Abdul Gaffar Fazlani under Article 226 of the Constitution of India and prayed that a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction be issued declaring Entry `Tobacco' in the Schedule to the Gujarat Agricultural Produce Markets Act, 1963 (for short "Act of 1963") as unconstitutional and the respondents, their agents and servants be restrained from taking any action against the petitioner, its agents, servants and officers for not obtaining licence as required under Section 8 of the Act of 1963, or for not making payment of market fees or for not complying with any other regulations in the said Act.

(2.) It is the case of the petitioner that the Government of Gujarat, in exercise of its powers under the Act of 1963, had established 10 exclusive market yards for regulation of sale and purchase of tobacco. Thereafter, by notification published on 28.03.1997, the State Government had abolished this market area by placing "tobacco" as regulated item within the competence and jurisdiction of 30 Market Committees mentioned in the said notification (Annexure `A'). Thereupon, market committees named in the said notification were insisting for licence and payment of market fees under the provisions of the said Act but the petitioner was resisting the directions of the market committees, as, it was carrying business of exporting `tobacco', without licence from the market committees and without payment of market fees. The notification dated 28.03.1997 (Annexure `A') was challenged by the petitioner along with others before this Court by way of Special Civil Application No. 5418 of 1998 which has been admitted by this Court and pending for final disposal. During the pendency of that writ petition, the parliament enacted "The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003" (for short Act of 2003) coming into force with effect from 01.05.2004. According to the petitioner, with the Act of 2003 coming into force with effect from 01.05.2004, the petitioner is not required to pay any licence fees to the market committees, due to the repugnancy between the Act of 2003 and the Act of 1963 and the provisions of the Act of 1963 including `tobacco' in the definition of `Narcotics' in the Schedule is ultra vires and unconstitutional.

(3.) . Whether there is a repugnancy between the new Central Act of 2003 and the State Act of 1963 or not ? For deciding this question, relevant provisions with the object of the State Act are required to be considered by us. From the object and reasons of Gujarat Act 17 of 1985, it clearly appears that in order to ensure proper planning and development of agricultural produce markets all over the State in a balanced manner as also to provide among other things, technical, financial and legal assistance through market committees, it was proposed to establish a statutory body under the Act of 1963. The Central Government which extends financial assistance under the central scheme for development of regulated market yards and sub-market yards had also made a suggestion for establishment of such statutory body in the State. Thus the sole purpose or object of the Act is to ensure proper planning and development of agricultural produce markets all over the State in a balanced manner. Coming to the provisions of the State Act of 1963, "agricultural produce" is defined under Section 2(i) of the said Act which is as under :