Brijesh Kumar Upadhyay And ... vs State Of U.P. And Others
2011 Latest Caselaw 1636 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										    AFR
 
										Reserved
 
	Civil Misc. Writ Petition No. 24599 of 2011.
 
Brijesh Kumar Upadhyay and another.	  ........	    Petitioners.
 
					Versus
 
State of U.P. and others.			  ........	    Respondents.
 
					----------

Present:

(Hon. Mr. Justice Amitava Lala & Hon. Mr. Justice Ashok Srivastava)

Appearance:

For the Petitioners : Mr. P.N. Saxena, Sr. Advocate,

Mr. Amit Saxena.

For the Respondents : Mr. U.N. Sharma, Sr. Advocate,

Mr. Mukhtar Alam,

Mr. Satyaveer Singh,

Mr. D.D. Chauhan.

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Amitava Lala, J.-- By this writ petition, the petitioners have challenged the alleged resolution dated 05th March, 2011 and the order dated 19th April, 2011 passed by the Upper Mukhya Adhikari, District Firozabad, respondent no. 3 herein, refusing to renew the licence of the petitioners, and further prayed for a direction upon the respondent authorities to renew the licence of the petitioners for the year 2011-12 in accordance with law.

Petitioners' contention is that they are running a cattle market over their bhumidhari land, being Plot No. 834 situated in Village Pachokhar, District Firozabad, on Friday of each week since 1957. In the year 1977, the concerned Gaon Sabha passed a resolution giving itself the sole right to hold the cattle market in the said area on Friday and on the basis thereof filed a suit, being Original Suit No. 239 of 1977, before the appropriate Court for permanent injunction against the petitioners from holding the cattle market in the said area. Such suit was dismissed by the trial Court by its judgement and order dated 23rd February, 1985 while the first appeal filed by the Gaon Sabha against such judgement was allowed by judgement and order dated 25th January, 1991. Against such judgement, the father of the petitioners filed a second appeal, being Second Appeal No. 234 of 1991 (Laxmi Narain Upadhyay and others Vs. Gram Sabha Pachokra), which was allowed by this Court by judgement and order dated 11th March, 1998 and the suit was dismissed by categorically recording therein that right to hold the cattle market on his own land is a fundamental right, which can not be taken away. According to the petitioners, initially there was no requirement of obtaining licence for holding the cattle market, but since the year 1991-92 the question of obtaining licence from the appropriate Gaon Sabha arose, and the petitioners were granted licence to hold the cattle market from 1991-92 till 2010-11. For the year 2011-12, on 23rd February, 2011 the petitioners applied for renewal of licence along with no objection certificate of the Police Department, site plan, etc.. However, since no action was taken on such application, the petitioners made repeated representations. But when even then no heed was paid by the respondent authorities on the application of the petitioners, the petitioners filed a writ petition, being Civil Misc. Writ Petition No. 20696 of 2011 (Brijesh Kumar Upadhyay and another Vs. State of U.P. and others), to get an order in the nature of direction upon the authorities to decide the application for renewal. In such writ petition, on 13th April, 2011 a Division Bench of this Court was pleased to direct the counsel for the respondents to obtain instruction. Ultimately, on 19th April, 2011 the respondent no. 3 passed an order saying that as per the resolution of the respondent no. 2-Zila Panchayat and the respondent no. 4-Gaon Sabha, they will hold the cattle market jointly on Friday in the locality in order to increase public revenue, therefore, licence in favour of the petitioners can not be renewed.

Against this background, this writ petition has been filed by saying that such type of order passed by the authorities is in violation of fundamental right of the petitioners guaranteed under Article 19(1)(g) of the Constitution of India.

On the other hand, by filing an affidavit the respondent no. 4-Gaon Sabha has contended that the earlier writ petition filed by the petitioners, being Civil Misc. Writ Petition No. 20696 of 2011, is still pending. Further, the suit, about which the reference has been made by the petitioners, was filed against Laxmi Narain Upadhyay, since deceased, the father of the petitioners, to restrain him from holding cattle market over his plots on Friday and within an area four kilometres of the plots of Gaon Sabha for the remaining days of the week. The facts in the suit were that Gaon Sabha has been holding cattle market over its Plot Nos. 832, 835, 836 and 837 from much before the year 1956. Earlier the cattle market was being organized by the Gaon Sabha itself but subsequently right to hold the cattle market was auctioned on year to year basis. The petitioners' father was a Clerk/ Scribe engaged in the cattle market on behalf of the Gaon Sabha. He along with two other persons purchased the Plot No. 834 in the year 1963 and with the help of other defendants-appellants therein started holding the aforesaid cattle market on their plot on every Friday. In the second appeal, this Court recorded the finding that in the absence of any rule or bye-laws the Gaon Sabha can not exercise the power of regulating the Melas, Markets and Hats within its area. However, in exercise of the powers contained under Section 239 of the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 (hereinafter in short called as the "Adhiniyam, 1961"), the Zila Panchayat framed the bye-laws for regulating Melas, Markets and Hats within its area. Said bye-laws were published in U.P. Gazette No. 4888, 21-3(4) 1991-92 dated 12th June, 1993. The respondent no. 3 has not renewed the licence of the petitioners by its order dated 19th April, 2011 and the effect of the order is that the petitioners are prohibited from using their place as a market in view of Section 251 of the Adhiniyam, 1961. The order dated 19th April, 2011 is appealable. Therefore, the present writ petition is liable to be dismissed on the ground of alternative remedy.

It has been further submitted by the respondents that admittedly, earlier there was no power under the law. However, since when the bye-laws were made effective, one has to obtain renewal of the licence. It gives a right to do something upon immovable property to the grantee which would in the absence of the same be unlawful. The licence does not create any right in favour of grantee and, as such, no writ of certiorari can be issued in favour of the petitioners, therefore, the writ petition is also liable to be dismissed on that ground too. In support of their contention, the respondents have relied upon a Division Bench judgement of this Court reported in 2003 (1) AWC 296 (Smt. Siraj Nasir and others Vs. Union of India and others). According to the Division Bench of this Court, there is a difference between a lessee and a licensee, therefore, a licensee can not claim right over the land in doing business without licence as if he is a lessee. After refusal to renew the licence, carrying on business is illegal.

As we have understood from the ratio propounded in the aforesaid judgement, by and large leasehold right gives some sort of permanency, which is not available to a licensee, being temporary in nature. In the instant case, we find that licence will be granted on year to year basis. Therefore, admittedly no perpetual right is available to the petitioners. On the other hand, the plinth of the petitioners' case as under Article 19(1)(g) of the Constitution of India, which speaks about the right to practise any profession, or to carry on any occupation, trade or business, is hit by Article 19(6) of the Constitution. Petitioners' right, if any, is reasonably restricted as under:

"19(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,--

(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or

(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise."

If we go through Article 19(6)(ii) of the Constitution, as aforesaid, we shall be able to see that by reasonable restrictions the State, Corporation, or State controlled authority, are empowered and can carry on trade, business, industry or service in total or partial exclusion of the citizens. In the instant case, Zila Panchayat and Gram Panchayat, being public bodies, themselves wanted to do the business in exclusion of the petitioners by non-renewal of their licence. Therefore, they themselves can not be prohibited from doing so as per Article 19(1)(g) of the Constitution. The respondents' case is that they want to do business for the purpose of enhancing public fund in exclusion of private fund. Public purpose prevails over private purpose.

Moreover, in the open Court, the respondents have made an offer to give licence to the petitioners provided they want to hold the cattle market on any other day. We are not concerned with the same because it is discretion of the authority concerned to give permit or not to give permit to the petitioners to carry on the business on the same day but on a different time and on different date. But one thing is clear that by virtue of Article 19(6)(ii) of the Constitution if the State wants to do business of such nature in exclusion of the petitioners either wholly or partially, they can not be prohibited.

Against this background, the writ petition is dismissed at the stage of admission, however, without imposing any cost.

In any event, passing of this order will no way affect the right of the petitioners to approach the concerned respondent authorities for resolving the issue about fixation of any date and/or time with regard to holding of cattle market by them.

(Justice Amitava Lala)

I agree.

(Justice Ashok Srivastava)

Dated:12 May, 2011.

SKT/-

Hon'ble Amitava Lala, J.

Hon'ble Ashok Srivastava, J.

Under the authority of the Hon'ble Chief Justice additional cause list has been printed for the purpose of delivery of judgement and the same has been delivered at 2.00 P.M. in the Court upon notice to the parties.

The writ petition is dismissed, however, without imposing any cost.

Dt./- 12.05.2011.

SKT/-

For judgement and order, see order of the date passed on the separate sheets (five pages).

Dt./-12.05.2011.

SKT/-