Bombay High Court
Goroba Pandurang Gadekar vs The State Of Maharashtra And ... on 3 August, 2017
Bench: S.C. Dharmadhikari
1 PIL-88-2013 - JUDGMENT
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
PUBLIC INTEREST LITIGATION NO. 88 OF 2013 AND
CIVIL APPLICATION NO. 1619 OF 2014
Goroba S/o Pandurang Gadekar,
Age : 47 years, Occu. : Trader,
R/o : 'Bhagyarang Niwas', Moti Nagar,
Latur, Dist. Latur .. Petitioner
VS.
State of Maharashtra,
Through Principal Secretary,
Urban Development Department,
Mantralaya, Mumbai and others .. Respondents
----
Mr. P.R. Patil, Advocate and Mr. P.R. Tandale, Advocate for the
petitioner and applicant in CA
Mr. S.B. Yawalkar, A.G.P. for the respondents 1 to 4
Mr. V.D. Hon, Sr. Advocate i/b. Mr. A.V. Hon, Advocate for respondent
no.5
Mr. V.J. Dixit, Sr. Advocate i/b. Mr. B.N. Patil, Advocate for respondent
no.6
Mr. A.N. Irpatgire, Advocate for respondent no.7
----
CORAM : S.C. DHARMADHIKARI &
MANGESH S. PATIL, JJ.
RESERVED ON : 29-06-2017
PRONOUNCED ON: 03-08-2017
JUDGMENT :
1. Rule. Respondents waive service. By consent, Rule is
made returnable forthwith.
2 PIL-88-2013 - JUDGMENT
2. This Public Interest Litigation seeks the following reliefs :-
"A) By a writ of mandamus or orders or directions in
the nature of mandamus, respondent No.5 Latur
Municipal Corporation be directed to take action
against the illegal construction made by the
respondent No.7 M/s. S.B. Pallod Construction
Co., Latur and respondent No.6 Agricultural
Produce Marketing Committee, Latur in
accordance with the provisions Maharashtra
Regional & Town Planning Act, 1966.
B) By a writ of mandamus or orders or directions in
the nature of mandamus, Completion Certificate
as well as Occupancy Certificate may not be issued
to the respondent No.6 Agricultural Produce
Marketing Committee, Latur and respondent No.7
M/s. S.B. Pallod Construction Co., Latur."
3. In this Public Interest Litigation, two orders were passed.
One is dated 19/04/2017 and the another is dated 14/06/2017. They
read, as under :-
Order dated 19/04/2017 -
"1. Learned counsel for petitioner contends that
respondent APMC is not a local authority within meaning
of section 2(15) of Maharashtra Regional Town Planning
Act and, as such, the provisions of section 44 relating to
grant of exemption for obtaining development permission
does not apply.
2. Learned counsel for respondent-APMC has invited our
3 PIL-88-2013 - JUDGMENT
attention to section 12(2) of the Maharashtra
Agricultural Produce Marketing (Development &
Regulation) Act, 1963, which provides that
notwithstanding anything contained in any law for the
time being in force, every Market Committee shall, for all
purposes, be deemed to be a local authority. Even if it is
assumed that respondent no. 6 is a local authority and no
development permission is required, however, the
development that is being carried out shall have to be in
conformity with the building by-laws and regulations
permitting development within the Corporation area. The
construction plan shall have to be in conformity with the
development regulations framed by the Corporation. There
are certain deficiencies pointed out by the Municipal
Corporation which shall have to be ratified. Learned
counsel for respondent no.6 contends that the development
is being carried out in conformity with the rules and
regulations and, there is no violation at the instance of
respondent no. 6.
3. In the circumstances, we direct the Commissioner,
Municipal Corporation, Latur, to examine the development
plans submitted by respondent no. 6 and shall record
finding as to whether the plans and development are in
conformity with the development regulations. The
Commissioner, Municipal Corporation, Latur, shall extend
an opportunity of hearing to respondent no. 6 and
thereafter proceed to record his finding. The
Commissioner shall tender his affidavit to this Court on
the adjourned date.
4. Stand over to 13th June, 2017."
Order dated 14/06/2017 -
"1 The grievance in this Public Interest Litigation is
that a construction of purely commercial nature is carried
out and at the behest of Respondent No.6/APMC by
Respondent No.7/ Builder and Developer.
4 PIL-88-2013 - JUDGMENT
2 Interestingly, in the reply affidavit of Respondent
No.7, after alleging that the litigation is initiated because
of a business rivalry by another real estate developer, it is
stated in paragraph 2 that Respondent No.6 APMC has
executed the Development Agreement which is styled as
"Built, Operate and Transfer Basis" with Respondent No.7
on 03.05.1999. The Deponent says that the construction
of shops in pursuance of this agreement has been carried
out and is on the verge of completion. The Petitioner has
not raised any grievance from 1999 till 2013.
3 However, it is the Respondent No.7 who says that
Respondent No.6 is a Committee which is constituted by
the State Government by issuing a notification under
Sections 3 and 4 of the Maharashtra Agricultural Produce
Marketing (Development and Regulation) Act, 1963 (for
short "the APMC Act"). Respondent No.7 further says that
though the lands of Respondent No.7 are situated within
the municipal limits of Respondent No.5/ Municipal
Corporation, by virtue of Sections 3 and 4 of the APMC
Act the State Government by issuing a notification and
duly publishing the same in the official gazette has
specified the market area and this land is excluded from
the jurisdiction and purview of Respondent No.5. This
gentleman boldly says that the provisions of the
Maharashtra Regional Town Planning Act, 1966 (for
short "the MRTP Act") and the building bye-laws cannot
be made applicable to the market area by the State
Government. The market area specified by the State
Government under the control and supervision of
Respondent No.6, therefore, stands exempted from such
law.
4 Pertinently, we do not find any endorsement of such
legal position as is projected by Respondent No.7, but
Respondent No.6/APMC's affidavit filed on 13.02.2014 in
paragraphs 2 and 3 states as under :-
"2. I say that the respondent No.6 APMC is a statutory
authority and a body corporate as per the
5 PIL-88-2013 - JUDGMENT
provisions of Maharashtra Agricultural Produce
Marketing (Development and Regulation) Act,
1963. That, the respondent No.6 APMC is governed
by the provisions of the above referred Act and the
Rules thereunder. I say that as per the provisions of
Section 12(2) of the Maharashtra Agricultural
Produce Marketing (Development and Regulation)
Act, 1963 APMC is a local authority. I say that the
Market Committee are established for the
regulation of sale of agricultural produces and the
same are under the control of respondents 3 and 4.
3. I say that for achieving the aims and objects of the
establishment of Market Committees, the Market
Committees are required to carry on certain
development works within the area of market yards
and/or sub-market yards. I say that the Market
Committees are discharging the statutory
obligations. I say that by virtue of Section 44 of the
Maharashtra Regional and Town Planning Act,
1966 the Market Committees being local
authorities are exempted from obtaining the
construction permissions and from applicability of
the provisions of the Maharashtra Regional and
Town Planning Act, 1966. I say that, therefore,
obtaining of construction permission to the
development work to be carried in the area of
market committee and/or market yards, sub-
market yards is not necessary. I say that the
respondent No.6 Market Committee has till this
date has not obtained any construction permission
to the development work or construction work
within the area of market committee and/or
market yards, sub market yards considering the
exemption by virtue of Section 44 of the
Maharashtra Regional and Town Planning Act and
in such circumstances the public interest litigation
filed by the petitioner is without substance and
there is no merit."
5 It is stated that Respondent No.6/ APMC is
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required to carry on certain development works. It is
discharging statutory obligation. The APMCs being local
authorities are exempted from obtaining construction
permission and from applicability of the MRTP Act.
Therefore, obtaining of construction permission is not
necessary. Boldly, the APMC says that it has till date not
obtained any construction permission for this
development work or construction work within the area
of Market Committee or Market yard or sub-market
yards.
6 Section 44 of the MRTP Act postulates an
application for permission for development. It says that
except as otherwise provided by rules made in this
behalf, any person not being Central or State Government
or local authority intending to carry out any development
on any land, shall make an application in writing to the
Planning Authority for permission in such form and
containing such particulars and accompanied by such
documents, as may be prescribed. The argument raised in
this petition is, therefore, whether, "local authority" as
defined in Section 2 clause (15) of the MRTP Act would
include the APMC. That definition reads thus:-
"(15) "local authority" means -
(a) the Bombay Municipal Corporation constituted
under the Bombay Municipal Corporation Act, or
the Nagpur Municipal Corporation constituted
under the City of Nagpur Municipal Corporation
Act, 1948 or any Municipal Corporation
constituted under the Bombay Provincial
Municipal Corporations Act, 1949,
(b) a Council and a Nagar Panchayat constituted
under the Maharashtra Municipal Councils, Nagar
Panchayats and Industrial Township Act, 1965,
(c) (i) a Zilla Parishad constituted under the
Maharashtra Zilla Parishads and Panchayat
Samitis Act, 1961,
(ii) the Authority constituted under the
Maharashtra Housing and Area Development Act,
1976,
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(iii) the Nagpur Improvement Trust constituted
under the Nagpur Improvement Trust Act, 1936,
which is permitted by the State Government for
any area under its jurisdiction to exercise the
powers of a Planning Authority under this Act;"
7 A bare reading of this definition does not denote that
it includes a APMC. However, the Builder and Developer and
equally the APMC are relying upon a statutory exemption
and which according to them, flows from the statutes itself.
8 We do not see as to how at any hearing before the
Planning Authority, particularly Respondent No.5/
Municipal Corporation, such legal issues as are raised, can
be debated and conclusively decided. If the Municipal
Corporation, Latur is the Planning Authority and it says
that it will be hearing the APMC and passing an order, then,
it is surprising that such legal issues as are raised and noted
in this Court's order passed on 19.04.2017, would
necessarily have to be decided, but a creature of the law or
at least the authority designated as a planning authority by
law, would decide whether, the planning law applies or
planning law itself is inapplicable to APMC. With greatest
respect, to our mind, that is a function of this Court and we
cannot abdicate it in favour of any authority.
9 In such circumstances, we direct the Municipal
Corporation to be ready on this legal point on the next date.
No direction or decision of the Municipal Corporation will
have any bearing on this issue.
10 Stand over to 22.06.2017 on the supplementary
board."
4. On perusal of these orders, it is apparent that the essential
controversy lies in a very narrow compass. That is as under :-
8 PIL-88-2013 - JUDGMENT
. That Agricultural Produce Marketing (Development and
Regulation) Act, 1963 (for short "the APMC Act") setting up a
agricultural produce market committee, for the market area would
denote that market committee or committee constituted for a market
area within the meaning of Section 2 (j) is a 'local authority' and
whether that Agricultural Produce Market Committee achieves the
same status within the meaning of Section 2(15) of the Maharashtra
Regional and Town Planning Act, 1966 ("the MRTP Act" for short)
and hence, is a "Planning Authority" as defined in Section 2(19) of
that Act.
5. The facts necessary to appreciate the rival contentions are
as under:-
(a) The petitioner before us is in hotel business and is also
having a photo studio. His family is also in real estate business. He is
Member of the Standing Committee of the Latur Municipal
Corporation - respondent no.5. The petitioner is also an active
politician.
(b) The first respondent is State of Maharashtra through
9 PIL-88-2013 - JUDGMENT
Department of Urban Development, Mantralaya, Mumbai. It has
overall control of the urban and city administration. The State of
Maharashtra through this Department sanctions the development
plans. The second respondent is the Director of Town Planning,
Maharashtra State. The third respondent is the State once again but
through the Department of Co-operation, Marketing and Textile. It has
control over the Agricultural Produce Market Committees (for short
"APMC") in the State. The third respondent has power to sanction
disposal of the properties of APMCs and respondent no.4 is the
Director of Marketing, Maharashtra State. The fifth respondent is the
Latur Municipal Corporation whereas the respondent no.6 is the
APMC, Latur. The seventh respondent a private party, is impleaded
because it relies upon contract with the sixth respondent for
construction of a Shopping Complex within the area of operation of
respondent no.6.
(c) The claim is that the petitioner is filing this Petition in
public interest as a resident of the area. The construction that is
carried out was noticed by the petitioner and he sought necessary
information by making an application under the Right to Information
Act, 2005. The petitioner sets out the manner in which the
10 PIL-88-2013 - JUDGMENT
information was derived from the official records. He then says that as
per the agreement with seventh respondent, it had to construct 162
shops. 78 Shops were to be handed over to the sixth respondent -
APMC and remaining 84 shops were to be allotted or leased at the
discretion of the seventh respondent. It is alleged that the petitioner
met the Assistant Director of Town Planning and requested him to take
action in respect of this construction. A written representation was
handed over. It is submitted that there was no permission sought from
the respondent no.5 - Latur Municipal Corporation. Since no
permission was obtained for carrying out the construction /
development within the limits of Latur Municipal Corporation, the
petitioner prays for a Writ of Mandamus or any other appropriate
Orders or Directions, directing respondent no.5 to take action against
the illegal construction made by seventh respondent. He also seeks a
further direction so as to direct respondent no.5 - Latur Municipal
Corporation not to issue any Completion or Occupancy certificate in
respect of construction of the shops carried by the respondent no.7.
(d) In response to this Petition, respondent no.6 filed an
affidavit and submits that it is the Statutory Authority and a Body
Corporate as per the APMC Act. The sixth respondent relies upon the
11 PIL-88-2013 - JUDGMENT
Section 12(2) of the APMC Act. It is submitted that once it is
established for the regulation of sale of the agricultural produce, then,
within the area of Market Yard, it is also a 'local authority' as
understood by the MRTP Act. It is submitted that by virtue of Section
44 of the MRTP Act, the Market Committees being local authorities,
are exempted from obtaining construction permission. Thus, no
permission for development within the meaning of Section 44 of this
Act is necessary. Once the Market Committee has granted the
permission to carry out the construction, within the market area, then,
no further permissions are contemplated in law. The respondent no.6
has been bold enough to suggest that till date it has not obtained any
permission for development from the Planning Authorities,
particularly, respondent no.5 - Latur Municipal Corporation under the
MRTP Act.
(e) It is stated that the development agreement was executed
with the seventh respondent on 03/05/1999. He has completed part
development of 45 shops/blocks as per this agreement. Then, there is
a continuation of this agreement dated 20/07/2011 under which the
Market Committee has continued the arrangement. It is stated that
though Latur city has Municipal Corporation, it was necessary to set up
12 PIL-88-2013 - JUDGMENT
a fruit and vegetable market. The project was undertaken by the sixth
respondent - Market Committee. A comprehensive plan for
construction of shops within the market area / Market Yard was drawn
up. The object is laudable in the sense quality vegetables and fruits
would be made available not only to the residents of Latur but the
entire Latur district. The construction is of good quality.
(f) The petitioner's intent in pursuing this Public Interest
Litigation is not only to embarrass the respondents, but he is keen on
settling political scores. He is also a business rival and in the same
business as the seventh respondent. It is in these circumstances, that it
is urged that the Public Interest Litigation be dismissed.
6. Then what we have on record, is an affidavit of one Smt.
Sindhu Maruti Shinde. It is stated in that affidavit that the revised
development plan of the then Latur Municipal Council has been partly
sanctioned by the Government under the provisions of the MRTP Act.
It came into force with effect from 18/02/2002. As per this partly
sanctioned development plan, the land in question is included in
commercial zone. After referring to some of the provisions of the
MRTP Act, it is admitted that the sixth respondent started construction
13 PIL-88-2013 - JUDGMENT
in Gul Market Area without obtaining prior permission of the
Municipal Corporation which is required as per Section 44 and 45 of
the MRTP Act. It is in these circumstances, the Municipal Corporation
issued direction to Ward Officer to stop unauthorised construction and
initiate action on the said construction. Latur Municipal Corporation
initiated action against unauthorised construction of respondent no.6.
This affidavit is filed on 10/09/2014.
7. Then, there is an affidavit of the Commissioner of the
Latur Municipal Corporation and he says that the plot under reference
is situate on road. The APMC has proposed construction of the market
on the said plot and the building plans were prepared by the Architect.
These building plans have not been sanctioned by the Municipal
Corporation. It is stated that the APMC has constructed shops on the
said plot. Then it is claimed that on 30/06/2011, the Government of
Maharashtra, Urban Development Department published a Draft
Development Control and Promotion Regulation for the Municipal
Council and Nagar Panchayat in the State of Maharashtra vide its
Schedule - A and the same are applicable to Municipal Corporation,
Latur. They have become applicable from 21/11/2013. Then, the
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same contents are relied upon and of the affidavit filed by Smt.
Sindhu Maruti Shinde. All the details are provided and it is stated that
there are violations of the Development Control Rules. They are
pointed out at paragraph 5 of the affidavit and, therefore, it is alleged
that a notice has been issued against the unauthorised construction to
the APMC on 07/11/2013. Thus, the necessary action has been taken.
This affidavit is dated 15/12/2014.
8. Then, there is an affidavit of respondent no.6 which deals
with the contents of the affidavit-in-reply of the Municipal
Corporation. It denies that there are any deviations much less
violations of the building bye-laws. The Charge of the Municipal
Corporation of the violations or breaches pointed out, have thus been
denied in this affidavit filed on 16/06/2015.
9. There is an affidavit-in-reply of respondent no.7. After
making allegation against the petitioner and doubting the genuineness
and the bonafides of this litigation, it is admitted that the construction
work was commenced in 1999 and the petitioner did not raise any
grievance till 29/06/2013. It is on the verge of completion of this
15 PIL-88-2013 - JUDGMENT
work that the present Public Interest Litigation has been filed.
Thereafter, there is justification provided for the stand of the APMC.
Particularly, that the APMC is not required to obtain any permissions
under the MRTP Act. It is alleged that there is no violation of the
provisions of the MRTP Act. For all these reasons, it is submitted that
the PIL be dismissed. This affidavit is filed on 16/07/2014 though it
purports to deal with the affidavit of Smt. Sindhu Shinde.
10. Then, there is additional affidavit-in-reply filed by
respondent no.6 in which as well, the assertion is that the APMC is a
Statutory Body and local authority within the meaning of Section
12(2) of the MRTP Act.
11. There is a Civil Application bearing no. 1619 of 2914,
which is filed by the petitioner and it seeks an amendment to the
memo of the Writ Petition. By this Civil Application, it is urged that
the Corporation has issued a notice to the respondent no.6 and there is
a further direction of the Town Planner dated 12/11/2013 to the Ward
Officer that the work should be stopped.
16 PIL-88-2013 - JUDGMENT
12. It is on this material, that we have heard learned counsel
appearing for the parties.
13. Mr. P.R. Patil, learned counsel appearing for the petitioner
reiterates the allegations in the Public Interest Litigation and submits
that the development plan for the city of Latur is made under the
MRTP Act, 1966. Section 44 of the said Act envisages that except as
otherwise provided by Rules made in this behalf, any person not being
Central or State Government or local authority intending to carry out
any development on any land shall make an application in writing to
the Planning Authority for permission in such form and containing
such particulars and accompanied by such documents, as may be
prescribed.
14. Mr. P.R. Patil, learned counsel would submit that the
definition of the term 'local authority' as appearing in Section 2(15) of
the MRTP Act does not include an Agricultural Produce Market
Committee set up under the APMC Act. The definition of the term
'local authority', as appearing in the MRTP Act only must be looked at
17 PIL-88-2013 - JUDGMENT
and it is only such local authority which falls within the term/word
"Planning Authority", as defined in Section 2(19) of the MRTP Act.
Once the APMC is not included in this definition, then, by a
interpretative process, the said APMC cannot be brought in within the
purview of this definition. Once it is not brought in by the MRTP Act,
then, it is not necessary to refer to the definition of this term in the
APMC Act.
15. Apart from that, the definition of the word like 'local
authority' appearing in a different and distinct law, namely, the APMC
Act, cannot be read in another law, particularly, if the two laws are not
Pari Materia. It may be that for the purpose of the APMC Act, the
Market Committee may be a local authority but that is restricted to
that law. If that definition is imported and read in the MRTP Act, that
would be doing violence to the provisions of the MRTP Act and defeat
and frustrate the object and purpose of that law. Hence, this definition
of the term 'local authority', appearing in Section 2(g) of the APMC Act
should not be read in the MRTP Act.
16. Mr. P.R. Patil also invited our attention to the Standardised
Building Bye-laws and Development Control Rules for "A" Class
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Municipal Councils of Maharashtra and submitted that the same
specifically deals with building in the APMC zone (see Rule 15.3.7).
This stipulation in the said Bye-laws would negate the stand of the
APMC. Hence, this Public Interest Litigation be allowed as the
Municipal Corporation has made its stand very clear.
17. The PIL is not contested by the State or the Municipal
Corporation but by the APMC - respondent no.6.
18. Mr. V.J. Dixit, learned Senior Counsel appearing for the
APMC would submit that Section 12(2) of the APMC Act has been
added by Maharashtra Act 10 of 1984. The wording of Sub-Section
(2) of Section 12 would indicate as to how the APMC Act and the
concept of 'local authority' therein would prevail over any other law
for the time being in force. That would include the MRTP Act. The
intent is further made clear by employing the words "for all purposes,
be deemed to be a local authority" appearing in this Sub-Section.
There is a fiction created which discloses intent of the legislature. The
APMC Act is a Code by itself. It is a comprehensive enactment. The
Act also envisages making of Rules and the provisions of the Act and
19 PIL-88-2013 - JUDGMENT
the Rules under the APMC Act would have to be read together. If they
are so read, it is clear that the development within the APMC area /
Market Yard can be controlled by the APMC alone. The APMC will not
necessarily encourage unauthorised and unplanned building activity
within its area. It will regulate the development. In such
circumstances, it is submitted by him that the stand of the APMC as
reproduced in the affidavit-in-reply is correct and should be upheld.
In support of his contentions, Mr. Dixit, relied upon the order dated
14th July, 2011 passed by a Division Bench of this Court at Nagpur
Bench of this Court in Writ Petition no. 2551 of 2011 (Giriraj
Venugopal Naidu Vs. State of Maharashtra and others). Mr. Dixit also
places reliance upon the judgment of the Hon'ble Supreme Court in
the case of Union of India and others Vs. R.C. Jain and others
reported in AIR 1981 S.C. 951(1).
19. Mr. Irpatgire, learned counsel appearing on behalf of the
respondent no.7 relies upon his affidavit-in-reply and the statements
therein. Mr. Irpatgire submits that this Public Interest Litigation is not
bonafide. The conduct of the petitioner would indicate, as to how he is
a business rival and has business interests. He does not come to Court
20 PIL-88-2013 - JUDGMENT
till 80% of the construction is made. The construction activity has
commenced in 1999 and is virtually complete. Now, at the stage of
issuance of Completion Certificate, and permission to occupy, he has
rushed this Court. For these reasons, this Public Interest Litigation be
dismissed.
20. For properly appreciating the rival contentions, we would
have to first refer to the Maharashtra Agricultural Produce Marketing
(Development & Regulation) Act, 1963. This is an Act to develop and
regulate the marketing of agricultural and certain other produce in
market areas and markets [including private markets and farmer
consumer markets] to be established therefor in the State; to confer
powers upon Market Committees to be constituted in connection with
or acting for purposes connected with such markets; to establish
Market Fund for purposes of the Market Committee and to provide for
purposes connected with the matters aforesaid.
21. Chapter I of this Act contains preliminary provisions and
Section 2 appearing therein contains the definitions. The word 'local
authority' is defined in Section 2 (g) to include a Panchayat Samiti.
21 PIL-88-2013 - JUDGMENT
The word 'Market' is defined in Section 2(h) and the word 'Market
Area' is defined in Section 2(i).
22. The word 'Market Committee' is defined in Section 2(j),
which reads as under :-
" "Market Committee" or "Committee" means a
committee constituted for a market area under section
11 and includes the Bombay Agricultural Produce
Market Committee established under clause (a) of sub-
section (1A) and the Divisional or Regional Market
Committee declared under clause (a) of sub-section (1-
B) of section 13 and; a committee or committees
constituted as a result of amalgamation of Market
Committees or division of a Market Committee under
section 44;"
23. The word 'prescribed' is defined in clause (m) of Section
2, to mean prescribed by Rules under the APMC Act and the term
'rules' is defined under Section 2(p), to mean rules made under the
APMC Act.
24. Section 3 deals with Market Areas and Markets. Section 3
provides for notification of the intention of regulating marketing of
agricultural produce in specified area. Then, the Declaration of
regulation of marketing of specified agricultural produce in market
22 PIL-88-2013 - JUDGMENT
area is dealt with by Section 4. Section 5 deals with the Establishment
of markets. Then, by amendments, Chapter I-A is inserted and it deals
with establishment of National Integrated Produce Market. Chapter
I-B deals with Direct Marketing, Establishment of Private Market and
Farmer-Consumer Market. Chapter I-C deals with Contract Farming
Agreement. Chapter II deals with Marketing of Agricultural Produce,
the Regulation of Marketing therein, grant of licences, power to cancel
or suspend licences, Appeal, Provision for settlement of disputes and
then comes Chapter III which deals with Constitution of Market
Committees. Section 11 and 12 appear therein, and read as follows :-
"11. For every market area, there shall be established
by the State Government Market committee consisting
of the Chairman, a Vice-Chairman and other members
and different Market Committees may be established for
regulating the marketing of different kinds of
agricultural produce for the same market area, of any
part thereof. The Market Committee shall have all such
powers and discharge all such functions as are vested in
it by or under this Act.
12. (1) Every Market Committee shall be a body
corporate by the name of "the ............ Agricultural
Produce Market Committee" and shall have perpetual
succession and a common seal and may in its corporate
name sue and be sued, and shall be competent to
contract, acquire and hold property, both movable and
immovable, and to do all other things necessary for the
purpose for which it is established :
23 PIL-88-2013 - JUDGMENT
Provided that, no immovable or movable
property the value of which exceeds the prescribed
limits shall be acquired or disposed of by the Market
Committee without the prior permission of the Director.
(2) Notwithstanding anything contained in any
law for the time being in force, every Market
Committee shall, for all purposes, be deemed to be a
local authority.
....................."
25. A bare perusal of these two Sections would denote that
Establishment of Market Committees is provided by Section 11
whereas Incorporation of Market Committee is dealt with by Section
12. Sub-Section 2 is appearing therein, that Sub-Section (2) opens
with a non obstante clause but it is common ground that such non
obstante clause and further legal fiction contemplated by
Section 2, should not be read, so as to extend it for the purpose other
than intended to be achieved.
26. If we peruse further Chapters and particularly, Chapter IV,
it would indicate that a Market Committee after being set up and
established so also incorporated, its powers and duties have been
defined. They are defined in Chapter IV. Cost of supervision is dealt
24 PIL-88-2013 - JUDGMENT
with by Chapter IV-A. Since the Market Committee is a Body
Corporate and can sue and be sued so also it having a perpetual
succession, naturally it must have its own Officers and servants. That
power is conferred by Chapter V. It must also have its funds and,
therefore, the Market Fund is dealt with by Chapter VI. By Chapters
VII and VII-A, trade allowances which are prohibited and
establishment of State Agricultural Marketing Board is contemplated.
The power of Control vesting in the Officers is especially dealt with by
Chapter VIII and by Chapter IX, penalties are provided. By Chapter X,
Miscellaneous provisions are incorporated.
27. While it is true that the Market Committee has power to
execute contracts and, therefore, the contract like the one executed
and entered with respondent no.6 may fall within the purview of
Section 33, still, what the law envisages is that a Market Committee
holds the property, movable and immovable, so as to enable it to
discharge all the functions and exercise the powers conferred by the
APMC Act.
28. If one has a look at Section 11 and 12, it is evident that
the Market Committee is established for regulating the marketing of
25 PIL-88-2013 - JUDGMENT
different kinds of agricultural produce for the same market area or any
part thereof. The Market Committee shall have all such powers and
discharge all such functions as are vested in it by or under the APMC
Act. By Section 12, it is clarified that the APMC shall have perpetual
succession and common seal and may in its corporate name, sue and
be sued.
29. It shall be competent to contract, acquire and hold
property, both movable and immovable and to do all other things
necessary for the purpose for which it is established. That is how the
proviso to Sub-Section 1 of Section 12 has been inserted. Therefore,
immovable property has been permitted to be held or acquired so as to
do all the other acts necessary for the purpose for which the APMC is
established and powers are conferred. This is to achieve and fulfill the
aim and object of the Act. It must have powers so as to enable it to
discharge all such functions, as are vested in it by or under the APMC
Act. Hence, it is clear that the fiction and the non-obstante clause in
Sub-Section 2 of Section 12 cannot be extended and read in the MRTP
Act, 1966. That would mean the APMC and the APMC Act displaces a
legislation like the MRTP Act, which achieves an altogether distinct but
26 PIL-88-2013 - JUDGMENT
wider object and purpose. A meaning will have to be given to the term
and word 'local authority' for subserving the object and purpose of
both enactments. The meaning which would bring both enactments in
collision with each other, must be avoided. These two Acts operate in
different areas and fields. The MRTP Act being a later enactment,
serves a larger public cause and interest.
30. The MRTP Act is an Act to make provision for planning the
development and use of land in Regions established for that purpose
and for the constitution of Regional Planning Boards therefor; to make
better provisions for the preparation of Development plans with a view
to ensuring that town planning schemes are made in a proper manner
and their execution is made effective; to provide for the creation of
new towns by means of Development Authorities; to make provisions
for the compulsory acquisition of land required for public purposes in
respect of the plans; and for purposes connected with the matters
aforesaid.
31. The provisions of the Act must be interpreted so as to
uphold and subserve this object and purpose. Therefore, when we see
27 PIL-88-2013 - JUDGMENT
the objects of this Act, what we notice is that Chapter I contains
preliminary provisions in which the definitions appear in Section 2.
The definition of the term 'development' in Section 2(7) reads as
under:-
" "development" with its grammatical variations means
the carrying out of buildings, engineering, mining or
other operations in or over or under, land or the
making of any material change, in any building or land
or in the use of any building or land or any material or
structural change in any heritage building or its
precinct and includes demolition of any existing
building, structure or erection or part of such building,
structure of erection; and reclamation, redevelopment
and lay-out and sub-division of any land; and "to
develop" shall be construed accordingly;"
32. The word 'development right' is defined in Section 2(9A).
It reads as under:-
"2(9A) "development right" means right to carry out
development or to develop the land or building or both
shall include the transferable development right in the
form of right to utilise the Floor Space Index of land
utilisable either on the remainder of the land partially
reserved for a public purpose or elsewhere, as the final
Development Control Regulations in this behalf
provide;"
33. Then, the definition of the term 'local authority' defined in
Section 2(15) is very relevant and reads thus:-
28 PIL-88-2013 - JUDGMENT
" "local authority" means -
(a) the Bombay Municipal Corporation constituted
under the Bombay Municipal Corporation Act or the
Nagpur Municipal Corporation constituted under the
"City of Nagpur Corporation Act, 1948, or any
Municipal Corporation constituted under the "Bombay
Provincial Municipal Corporations Act, 1949."
34. Thereafter, the word 'Planning Authority' is defined in
Section 2(19). Section 2(27) defines the word 'Regulation' to mean a
regulation made under Section 159 of the MRTP Act and includes
zoning, special development control regulations and other regulations
made as a part of a Regional Plan, Development Plan, or town
planning scheme.
35. A combined reading of these definitions together with all
the provisions, which are contained in Chapters I to Chapter IX, proves
that this is a comprehensive and complete legislation made in order to
plan the development and use of land, to make better provisions for
the preparation of Development plans with a view to ensure that town
planning schemes are made in a proper manner and their execution is
made effective to provide for the creation of new towns by means of
Development Authorities to make provisions for the compulsory
29 PIL-88-2013 - JUDGMENT
acquisition of land required for public purposes in respect of the plans
and for purposes connected with the matters aforesaid. The preamble,
therefore, takes care to broadly indicate the nature of the provisions
which are inserted Chapterwise, so as to plan the development and use
of land.
36. It is, therefore, not possible for us to agree with Shri Dixit,
that we must go by the term 'local authority', as appearing in the
APMC Act. For, that would ignore the definition of the said term in the
Planning law, namely, the MRTP Act. The Planning law gives a status
or position, to the local authority and makes it a Planning Authority
and, thereafter, includes within it, the Authorities specified in Section
2(19)(a) and (b). In the circumstances, to hold that the law relating
to Agricultural Produce Marketing Committee makes Agricultural
Produce Market Committee a 'local authority', it would necessarily
mean that it is a 'local authority' for the purposes of the MRTP Act,
which would not only be improper but would do violence to the plain
language of the Statute, namely, the MRTP Act.
37. It is too well settled that when the language is plain,
30 PIL-88-2013 - JUDGMENT
unambiguous and clear, then, there is no scope for interpretation.
If a literal meaning of the term creates an anomaly or absurdity, then,
alone regard would be had to the consequences and not otherwise.
In the present case, advisedly Agricultural Produce Market Committee
has not been defined as 'local authority' in Section 2(15) of the MRTP
Act. It is only such authorities like Municipal Council, Nagar
Panchayat, Zilla Parishad, Maharashtra Housing and Area
Development Authority and Nagpur Improvement Trust, which are
defined as 'local authority' and at the same time, that local authority
which is permitted by the State Government for any area under its
jurisdiction to exercise the powers of a Planning Authority under the
MRTP Act, then that authority would be a local authority. We have not
seen any provision in the APMC Act, which gives such a status or
designation to the Agricultural Produce Market Committee.
Consequently, we cannot elevate the Agricultural Produce Market
Committee, to a Planning Authority. In the scheme of the planning
legislation, therefore, the Agricultural Produce Market Committee is
not a local authority.
38. It is also well settled that while interpreting the non
31 PIL-88-2013 - JUDGMENT
obstante clause and construing the legal fiction, the following two
principles have to be borne in mind.
39. The first principle, is as highlighted in the work of the
renowned and learned Author Mr. Justice G.P. Singh, 'Principles of
Statutory Interpretation' at page 403. He opined and commented,
thus:-
"Further, the wide amplitude of a non obstante clause
must be kept confined to the legislative policy and it can
be given effect to, to the extent Parliament intended and
not beyond the same. Therefore, while interpreting a
non statute clause the court is required to find out the
extent to which the Legislature intended to give it an
overriding effect."
40. The learned Author's comments and which are widely
acclaimed and respected, are based on the principles laid down in the
decisions of the Hon'ble Supreme Court of India.
41. In that regard, he has referred to two judgments, which
have a bearing on this issue. We quote the following principles
emerging from these judgments :-
32 PIL-88-2013 - JUDGMENT
The Honourable Supreme Court in ICICI Bank Ltd. vs. SIDCO
Leather Ltd. And others, AIR 2006 SC 2088, observed thus:-
"38. The non-obstante nature of a
provision although may be of wide amplitude,
the interpretative process thereof must be kept
confined to the legislative policy. Only because
the dues of the workmen and the debt due to
the secured creditors are treated pari passu
with each other, the same by itself, in our
considered view, would not lead to the
conclusion that the concept of inter se
priorities amongst the secured creditors had
thereby been intended to be given a total go-
by.
39. A non-obstante clause must be
given effect to, to the extent the Parliament
intended and not beyond the same."
. The Honourable Supreme Court in Central Bank of India vs.
State of Kerala and others, (2009) 4 SCC 94, observed thus:-
"103. A non obstante clause is generally
incorporated in a statute to give overriding
effect to a particular section or the statute as
a whole. While interpreting non obstante
clause, the court is required to find out the
extent to which the legislature intended to do
so and the context in which the non obstante
clause is used. This rule of interpretation has
been applied in several decisions."
42. In this regard, it would be useful to refer to the judgment of
the Honourable Supreme Court in Ramdev Food Products Pvt. Ltd. vs.
33 PIL-88-2013 - JUDGMENT
Arvindbhai Rambhai Patel and others, AIR 2006 SC 3304, observed
thus:-
"68. The non obstante nature of a
provision although may be of wide amplitude,
the interpretative process thereof must be kept
confined to the legislative policy. A non
obstante clause must be given effect to, to the
extent the Parliament intended and not
beyond the same."
43. Equally, as far as the legal fiction goes, once again the
learned Author has, based on the principles laid down in the Hon'ble
Supreme Court's judgments, carved out the guiding factors. He has
opined and commented that a legal fiction should not be carried
beyond the purpose it seeks to achieve in the sense and in any event, it
cannot go beyond the statutory object and purpose it seeks to achieve.
For that the Statute in which same appears, would have to be borne in
mind. The subject of the Statute, its object and purpose, the context in
which the legal fiction is created, all have an important bearing and a
role to play. They cannot be ignored, so as to apply the legal fiction in
all circumstances and cases not contemplated by the Statute. The
Author further opined and commented on page no. 418, as under:-
At page 418 : "A legal fiction in terms enacted 'for
purposes of this' will cover the entire Act but is normally
34 PIL-88-2013 - JUDGMENT
restricted to that Act and cannot be extended to cover
another Act."
.......
At page 418 - 419 : "As was observed by James, L.J.:
"When a statute enacts that something shall be deemed
to have been done, which in fact and in truth was not
done, the court is entitled and bound to ascertain for
what purposes and between what person the statutory
fiction is to be resorted to." "When a legal fiction is
created", stated S.R.Das, J., "for what purpose, one is
led to ask at once, is it so created?"
44. These principles emerge from the following judgments of
the Hon'ble Supreme Court and we quote :-
. The Honourable Supreme Court, in State of Karnataka vs.
K.Gopalakrishna Shenoy and another, (1987) 3 SCC 655, observed as
under:-
"10. ..... The very terms of Section 38
limit the deeming effect caused by the absence
of a Certificate of Fitness to the rights
conferred under Section 22 pursuant to the
registration of a vehicle. There is, therefore,
no scope for extending the deeming provision
in Section 38 to Section 3(1) and the
Explanation thereto of the Taxation Act. In
fact the Explanation to Section 3(1) clearly
sets out that the deeming effect conferred by it
will have overriding force on Section 3(1).
This is made clear by the words "for the
purposes of this Act" contained in the
35 PIL-88-2013 - JUDGMENT
Explanation. The operative force of the
deeming provision contained in Section 38
being restricted to Section 22 of the Motor
Vehicles Act has been correctly noticed by the
Karnataka High Court in Naraina Reddy case
and the High Court has held at page 322 as
follows:
The legal fiction created by Section
38 of the Motor Vehicles Act is only for the
purpose of Section 22 of that Act and cannot
be extended to the Taxation Act."
. The Honourable Supreme Court, in State of Travancore-
Cochin and others vs. Shanmugha Vilas Cashewnut Factory, Quilon, AIR
1953 SC 333, observed as under:-
"(37) ....... That is to say, the
Explanation creates a legal fiction. Reference
may be made to Income Tax Commissioner,
Bombay v. Bombay Trust Corporation, AIR
1930 P.C. 54 at p.55 (G), where Viscount
Dunedin explains the meaning of a legal
fiction.
(38) When a legal fiction is thus created,
for what purpose, one is led to ask at once, is
it so created? In in re Coal Economising Gas
Company, (1875) 1 ch. D. 182 (H), the
question arose as to whether under S.38 of
the Companies Act, 1867, a shareholder
could get his name removed from the register
on the ground that the prospectus was
fraudulent in that it did not disclose certain
facts or whether his remedy was against the
promoter only. James, L.J., said at pp.188-9:
"The Act says that an omission shall be
36 PIL-88-2013 - JUDGMENT
deemed fraudulent. It provides that
something which under the general law
would not be fraudulent shall be deemed
fraudulent and we are dealing with a case
of that kind. Where the Legislature
provides that something is to be deemed
other than it is, we must be careful to see
within what bounds and for what purpose
it is to be so deemed. Now the Act does
not say that the prospectus shall be
deemed fraudulent simpliciter but that it
shall be deemed fraudulent on the part of
the person wilfully making the omission
as against a shareholder having no notice
of the matter omitted; and I am of
opinion that the true intent and meaning
of that provision is to give a personal
remedy against the wrongdoer in favour
of the shareholder."
So it was held that the fiction did not operate
as against the Company and there could,
therefore, be no rectification of the register.
Again in Ex parte Walton, In re Levy, (1881)
17 Ch.D. 746 at p.756 (I), referring to S.23
of the English Bankruptcy Act, 1869, James,
L.J., said :
"When a Statute enacts that
something shall be deemed to have
been done, which in fact and in truth
was not done, the Court is entitled
and bound to ascertain for what
purposes and between what persons
the statutory fiction is to be resorted
to."
The above observations were quoted with
approval by Lord Cairns and Lord Blackburn
in Arthur Hill v. East and West India Dock
Co., (1884) 9 A.C. 448 (J). Lord Blackburn
37 PIL-88-2013 - JUDGMENT
went on to add at page 458:
"I think the words here 'shall be deemed
to have surrendered' ........ mean shall
be surrendered so far as is necessary to
effectuate the purposes of the Act and
no further;.....""
45. It would be useful to refer to the judgment of the
Honourable Supreme Court, in Ashoka Marketing Ltd. And another vs.
Punjab National Bank and others, AIR 1991 SC 855, observed thus:-
"57. In Shri Ram Narain v. The Simla
Banking and Industrial Co. Ltd., 1956 SCR
603 : (AIR 1956 SC 614) this Court was
considering the provisions contained in the
Banking Companies Act, 1949 and the
Displaced Persons (Debts Adjustment) Act,
1951. Both the enactments contained
provisions giving overriding effect to the
provisions of the enactment over any other
law. This Court has observed:
"Each enactment being a Special
Act, the ordinary principle that a special law
overrides a general law does not afford any
clear solution in this case." (p.613 of SCR) :
(at p620 of AIR).
"It is, therefore, desirable to
determine the overriding effect of one or the
other of the relevant provisions in these two
Acts, in a given case, on much broader
considerations of the purpose and policy
underlying the two Acts and the clear
intendment conveyed by the language of the
relevant provisions therein." (p.615 of SCR) :
(at p.622 of AIR)"
38 PIL-88-2013 - JUDGMENT
46. The legal fiction in the APMC Act, therefore, cannot be
extended to include anything which is not in its purview or sweep.
The necessity to set up a Market Committee for a Market Area is to
enable marketing of agricultural produce and to facilitate that activity.
All that makes a Market Committee, self-sufficient so as to enable it to
discharge its powers and functions under the APMC Act positions that
Market Committee to be a local authority. That is to achieve a status
envisaged by the APMC Act. The APMC Act will not make a
Agricultural Produce Market Committee a Planning Authority under
the MRTP Act, when the legislature consciously does not include it in
the definition of that very term defined in the latter Act. The law
makers are presumed to be aware of the earlier laws in the field or
such laws which define identical words and phrases used and
employed in the latter Special law. Merely because there are
provisions, which enables the Agricultural Produce Market Committee
to acquire and hold property and to do all other things necessary for
the purpose for which it is established, does not mean that when the
construction and development activity is commenced within the area
of its operation, it will not require any permission from the Authorities
39 PIL-88-2013 - JUDGMENT
under the planning law. That would mean Agricultural Produce
Market Committee not only acquires and hold property but also
regulates the development of property and connected activities, as if,
for that area, it is a Planning Authority. It must be placed in that
position by the relevant Statute and scanning of the APMC Act and its
provisions does not demonstrate that it is so placed. It is apparent that
Market Area have to be notified. Therefore, the State Government has
a discretion to declare its intention by notification in the Official
Gazette of regulating the marketing of such agricultural produce, in
such areas as may be specified in the notification. It is that area which
is styled as a Market Area (See Section 4(2)(i)). It also includes an
area deemed to be a Market Area under Clause (a) of Section 1A of
Section 13. It is then apparent that establishment of a market and
principal market area or one or more subsidiary markets, as provided
by Section 5, has to take place.
47. It is then, Chapter II comes into operation. Thereafter, for
every market area, there shall be established by the State Government
a Market Committee for regulating the marketing of different kinds of
agricultural produce for the same market area, or any part thereof.
40 PIL-88-2013 - JUDGMENT
It is common ground that the area comprising of Greater Bombay and
Turbhe Village in Thane Taluka of Thane District and such other area
or areas as may be specified by the State Government by notification
in the Official Gazette, from time to time shall be deemed to be a
market area for the purposes of the Act and the Market Committee for
that area would be called as the Bombay Agricultural Produce Market
Committee. Eventually, all this is to enable the Market Committee to
perform its functions and to discharge its duties by exercising the
powers referred in Section 29. We do not think that Sub-Section (2) of
Section 29 can be read in isolation so as to enlarge the regulatory
powers of the Market Committee grant it the status or position of a
Planning Authority. That being not the legislative intent, nor the
prescription, by a process which Mr. Dixit wants us to adopt, we
cannot confer the above status. That would completely displace the
Planning law. That would mean that when it comes to Agricultural
Produce Market Committee, the Market Area within its power and
control, it is a Planning Authority and it performs all the functions and
discharges all the obligations of a Planning Authority qua the Market
Area. That has to be specifically provided in the applicable Statute
and it is not permissible in law to read the above into it.
41 PIL-88-2013 - JUDGMENT
48. We cannot also read the provisions by which State
Government can make Rules and traceable to Section 60 of the APMC
Act, as suggested by Shri Dixit. A perusal of the Rules and particularly,
Section 60(2)(p) would indicate that for preparing plans and estimates
for works proposed to be constructed partly or wholly at the expenses
of the Market Committee, and the grant of sanction to such plans and
estimates may be provided provided by the Rules. However, merely
because such plans and estimates for works proposed to be
constructed partly or wholly at the expenses of the Market Committee
and the grant of sanction to the same will not make the Market
Committee a Planning Authority for all purposes. It is only for the
works proposed to be constructed partly or wholly at the expenses of
the Market Committee, that a limited authority is granted to the
Agricultural Produce Market Committee to allow any construction to
be made. Even if it is made within its area but by a private agency for
it, it cannot go ahead and sanction and approve the plans itself. It
cannot permit a developer and builder to develop a land within the
area or jurisdiction of a Planning Authority by ignoring the Planning
Statute itself. It would mean dispensing with the requirements
42 PIL-88-2013 - JUDGMENT
stipulated by the planning law and allowing a private party to put up
construction beyond permissible limits and set out in the planning
legislation. It would mean the entire regime then is taken over by the
Agricultural Produce Market Committee and merely because the
construction is in the Market Area, or a Market Yard, but by a private
agency, all the powers of a Planning Authority vest in the Agricultural
Produce Market Committee necessarily. The Statute has not intended
this to be the position and, therefore, has not provided the necessary
back up or conferred the Agricultural Produce Market Committee with
wide powers. Therefore, any other construction and not contemplated
by Section 60(2)(p), would come within the purview of the Planning
law and even if any construction or works proposed to be constructed
at the expenses of the Market Committee, the grant of sanction of such
plans and estimates may be by the Agricultural Produce Market
Committee but the Agricultural Produce Market Committee will still
have to abide by the planning legislation. If the works proposed to be
constructed completely defeat the planning legislation and set it at
naught, then, that would mean the Agricultural Produce Market
Committee can ignore and brush aside a legislation like MRTP Act,
which is intended to achieve larger public good. The Planning
43 PIL-88-2013 - JUDGMENT
Authority as defined in the MRTP Act includes Municipalities,
Panchayats etc. because they govern the entire City, Town, District etc.
A very wide authority, power and jurisdiction is vested in them, which
cannot be displaced by the APMC.
49. As far as planning, development and its regulation as
contained in the MRTP Act, it is that Act and its provisions which
would be the Governing law. We have no hesitation therefore, in
rejecting the argument of Shri Dixit to the contrary.
50. In the present case, it is an admitted position that no
permission was obtained by respondent no. 6 while making the
construction. It has completely set at naught the Standardised
Building Bye-laws and Development Control Rules for "A" Class
Municipal Councils of Maharashtra (for short "Standardised Bye-
laws") which make specific provisions for Agricultural Produce Market
Committees by Bye-law / Rule 15.3.7. Those have not been adhered
to at all. Rule 15.3.7 specifically deals with Building in A.P.M.C. zone.
All that is contemplated by Rules 15.3.7.1, 15.3.7.2, 15.3.7.3, 15.3.7.4,
15.3.7.5 and the notes below them would have to be followed as they
44 PIL-88-2013 - JUDGMENT
are applicable. It is in these circumstances, that building and
construction so also development activity in Agricultural Produce
Market Committee zone is controlled and regulated so that it does not
violate the planning law. Consequently, not only Rule 15.3.7 but all
Regulations and Rules prior thereto as applicable to the constructions
and development activity in a commercial zone, would have to be
strictly complied with. This subserves the larger public interest for the
ecology and environment is preserved and protected by the Regulatory
regime. Secondly, the areas do not become polluted or environment
hazards. Unregulated and uncontrolled construction activity leads to
multiple problems and is a health hazard. Therefore, public health is
adversely affected. Once matters of public health and public interest
are at stake, then, all the more, we are not in agreement with Shri
Dixit that the Agricultural Produce Market Committee is a Planning
Authority for the purpose of the MRTP Act.
51. Once this conclusion is reached, and the principle issue is
dealt with, then, nothing more needs to be decided. The factual
aspects being undisputed, it goes without saying that the respondent
no.6 would have to obtain all the permissions and approvals and if
45 PIL-88-2013 - JUDGMENT
they are not in place, it is open for the Planning Authority to exercise
its Regulatory and Controlling powers to deal with the construction
activity which is ex-facie unauthorized and illegal.
52. Before concluding, we would like to impress upon the
Agricultural Produce Market Committee that, if it relies on a judgment
reported in Union of India and others Vs. R.C. Jain and others
(cited supra), then, that judgment itself clarifies that if the word and
expression is defined specifically in a law, then, we cannot borrow
definition of that term from another legislation or law and,
particularly, the General Clauses Act. It is very clear from the
following observations in this judgment that the Court will have to
guard itself against such a course. Therefore, we must refrain from
borrowing the meaning attributed to the expression as was attempted
before the Hon'ble Supreme Court from another law as that is not a
sound Rule of interpretation to seek the meaning of words used in an
Act, in the definition clause of other Statute. The definition of the
expression in one Act must not be carried into another. The Hon'ble
Supreme Court in this context, held as under:-
"Though the expression appears to have received
treatment in the Fundamental Rules and the Treasury
46 PIL-88-2013 - JUDGMENT
Code, we refrain from borrowing the meaning
attributed to the expression in those rules as it is not a
sound rule of interpretation to seek the meaning of
words used in an Act, in the definition clause of other
statutes. The definition of an expression in one Act
must not be imported into another. "It would be a new
terror in the construction of Acts of Parliament if we
were required to limit a word to an unnatural sense
because in some Act which is not incorporated or
referred to such an interpretation is given to it for the
purposes of that Act alone" (per Loreburn L.C. in
Macbeth and Co. v. Chislett, 1910 AC 220). For the
same reason we refrain from borrowing upon the
definition of 'Local Authority' in enactments such as the
Cattle Trespass Act, 1871 etc. as the High Court has
done."
53. This is the precise test which we have applied and in the
case before the Hon'ble Supreme Court, it was a permissible exercise
because the expression that the Supreme Court was interpreting and
construing was not defined in the Payment of Bonus Act. Therefore,
the Hon'ble Supreme Court had to turn to the General Clauses Act.
Such is not the position of the legislations before us.
54. As a result of the above discussion, the Public Interest
Litigation succeeds. Rule is made absolute in terms of prayer clause
(A).
47 PIL-88-2013 - JUDGMENT
55. After the conclusion of hearing, our attention was invited
to order dated 22nd February, 2008 passed by this Court in Writ Petition
no. 838 of 2006.
56. Identical argument by Agriculture Produce Market
Committee, Jalgaon was canvassed and the Agriculture Produce
Market Committee termed itself as 'local authority' and, therefore,
exempted from seeking any permission to raise construction on its own
premises.
57. In repelling this contention, a Division Bench of this Court
in WP/838/2006 (supra), speaking through the Hon'ble the Chief
Justice Swatanter Kumar, as His Lordship then was, held as under :-
"3. This argument is misconceived in law. Section
2(3) and (8) defines the expression "Appropriate
Authority" and "Development Authority" under the
Maharashtra Regional and Town Planning Act, 1966 and
Section 43, proviso (ii) & (iii) states that no permission
as contemplated under Section 43 of the Act is required
for carrying out works by any authority by exercise of
powers under any law for time being in force. None of
these provisos refer to 'local authority' under the
Maharashtra Agricultural Produce Marketing Act, 1963.
Certainly the Committee is a body corporate and can
hold and own property in its own name as required
48 PIL-88-2013 - JUDGMENT
under Section 12 of the Act. Sub section (2) of Section
12 states that notwithstanding anything contained in
any other law for time being in force, every Market
Committee shall, for all purposes be deemed to be a
local authority. The reference to the expression 'local
authority' is obviously for the purpose and object of
Maharashtra Agricultural Produce Marketing Act, 1963
and Regulations framed thereunder. This law cannot
override the provisions of the Maharashtra Regional
Town Planning Act, 1966 as that is a special legislation
for the purpose of development and contemplates that
every person or body is expected to get the plan
sanctioned before they raise construction, so as to keep
in conformity with the development plan published by
the Town Planning Authority in accordance with law.
Merely because the petitioner is a Committee cannot
frustrate the basic law and raise construction in its own
way infringing the law in force."
58. We respectfully concur with this view already taken but for
additional reasons.
59. Consequently, Civil Application no. 1619 of 2014 also
stands disposed of.
[MANGESH S. PATIL] [S.C. DHARMADHIKARI]
JUDGE JUDGE
arp/
