2006 Supreme(Guj) 276

2006 (2) GCD 1701 (Guj)
Hon’ble Smt. Justice Abhilasha Kumari
Agricultural Produce Market Committee
Versus
Borsad Municipality & Anr.
Special Civil Application No. 7853 of 1993
Decided on 28/04/2006

Point in Issue :
Market area — Fruits and vegetable market — Operation of by Municipality — Propriety of — Finding as to.

Headnote:Head Note :

       Gujarat Agricultural Produce Market Act, 1963 (Guj Act 20 of 1964) — Section 2(xiii), 5, 6, 7, 8, 30 and 63 — Gujarat Municipalities Act, 1963 (Guj Act 34 of 1964) — Sections 47, 118, 209 and 263(a) — Market area — Fruits and vegetable market — Operation of by Municipality — Propriety of — Finding as to — The legal position in the matter is clear and not denied by respondent — Municipality either that the regulated items of fruits and vegetables as per notification by petitioner cannot be sold by operating a market within the market area declared by petitioner — Committee except by persons who have obtained a licence from petitioner Market Committee — Respondent has filed affidavit-in-reply — From the averments made therein it is clear that respondent is granting licence to vendors on daily basis and recovering fee from them — Respondent has thereafter filed second affidavit-in-reply having done total volte face contending that since vendors are using the Nagarpalika land unauthorisedly, therefore, Municipality was merely collecting fee or penalty — It is clearly an afterthought, casting a reasonable doubt upon the veracity of the contents — This Court can not be a mute spectator to blatant violation of the provisions of APMC Act — Court accordingly allowing the said petition passed consequential order with appropriate directions.

       Held :

       The admitted position is, that there is no dispute regarding the applicability of the APMC Act nor the validity of its provisions. The respondent Municipality does not deny the legal position that the regulated items of fruits and vegetables as per the Notification issued by the petitioner cannot be sold by operating a market within the market area as declared by the petitioner Market Committee, except by persons, who have obtained a licence from the petitioner Market Committee. The arguments and submissions of the learned Counsel for the respondent Municipality are to the effect that, as is clear from the additional affidavit in reply, the vendors are selling fruits and vegetables on the land of the respondent Municipality as unauthorized occupants, for which the “fees” or “penalty”, as contemplated under Section 118 of the Municipalities Act is being levied upon them. It is denied that any licence has been issued by the respondent Municipality to any of the said vendors. [Para 22]

       From this averment in the reply affidavit it is evident that the respondent Municipality is granting licence to vendors on a daily basis, without creating any lease in their favour and recovering a daily licence fee of Rs. 00.50 Ps./ Rs. 1.00 Ps. for the permission to use the Municipal premises from each vegetable/fruit vendor. This is precisely the grievance of the petitioner Market Committee. The receipts of Rs. 00.50 Ps. have been annexed as Annexure “B” collectively to the writ petition and they show that they have been issued by the Borsad Nagarpalika in the year 1992. [Para 25]

       In the additional affidavit-in-reply, the respondents have done a total volte-face. In the first affidavit-in-reply there is a categorical admission regarding the issuance of licences to vendors by the respondent Municipality. However, in the additional affidavit-in-reply, the respondent Municipality has diametrically changed its stand and is now contending that since the vendors are using the land of the Nagarpalika unauthorisedly, the respondent Municipality is collecting “fees” or “penalty” from them as permissible under Section 118 of the Municipalities Act but is not issuing licences. Both of these reply affidavits have been sworn on oath and duly affirmed. It is evident that, after the filing of the first affidavit-in-reply, the respondent Municipality has deliberately changed its stand, without there being any application for withdrawing the earlier affidavit. The less said about the method adopted by the respondent Municipality in this regard, the better but to say the least the additional-reply-affidavit is clearly an after thought, casting a reasonable doubt upon the veracity of the contents. However, the categorical admission in the first reply affidavit filed by the respondent Municipality cannot be over-looked or ignored by this Court and is duly taken note of.

        [Para 28]

       This Court cannot be a mute spectator to the blatant violation of the provisions of any valid law or statute which is holding the field such as the APMC Act. Neither can an illegality or violation of the provisions of such Statute be allowed to be perpetuated. The petitioner Market Committee and the respondent Municipality are both Statutory Bodies and it is presumed that the authorities constituted under them are manned by mature, law-abiding and responsible citizens. A situtation in which one Statutory Body is at loggerheads with another, both of which are operating within the same area, is, to say the least, extremely unhealthy and unpalatable. It does not send out a good message to the public and sets a bad precedent. The law applies equally to every person and both the petitioner and the respondent are constituted of individuals. Maybe, this alone has given rise to the conflict.

        [Para 36]

       After considering the entire factual and legal position, this Court is of the considered opinion that the writ petition deserves to be allowed. The writ petition is therefore allowed in the following terms:—

       (a) The respondent Municipality is restrained from permitting the unauthorized vendors of fruits and vegetables from selling the regulated items of the fruits and vegetables after purchasing them from the market yard or sub-market yard, without the requisite licence for doing the same from the competent authority which in this case is the petitioner Market Committee, on the land owned by the respondent Municipality.

       (b) It is directed that the competent authorities of the petitioner Market Committee and the respondent Municipality will hold meetings in order to resolve the issue in question amicable, in a spirit of mutual co-operation, so that the provisions of the APMC Act are not violated, directly or indirectly.

       (c) It is open to the petitioner Market Committee to resort to the procedure envisaged under Section 30 of the APMC Act.

       (d) It is also open to the respondent Municipality to take recourse to any provisions which are available to it under the Municipalities Act, including Section 209 thereof, to prevent unauthorized occupants/vendors from selling regulated items of fruits and vegetables without licences from the competent authority in this regard. [Para 38]

       Law Laid Down :

       Situation of conflict between Market Committee and Municipality cannot be permitted to continue in public interest.

       Appearance :

       Mr. Tushar Mehta, for the Petitioner(s) No. 1

       Mr. D.P. Kinariwala, for Mr. Rajesh R. Dewal, for the Respondent(s) No. 1

       Notice Served for the Respondent(s) No. 2

       Conclusion :

       Respondent Municipality cannot operate market of regulated items of fruits and vegetable within market area declared by petitioner — Committee therefore petition deserves to be allowed.

       Decided in Favour of :

       Petitioner

       Rule Made Absolute