Manoj Maganlal Ghodke & Ors vs The State Of Mah & Ors
2017 Latest Caselaw 3554 Bom

                                       1      WP 5529 of 2006

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                         Writ Petition No. 5529 of 2006

     1)      Manoj Maganlal Ghodke,
             Age 44 years,
             Occupation : Service,
             R/o Gaolipura, Aurangabad.

     2)      Anil Kapoorchand Sancheti,
             Age 36 years,
             Occupation: Contractor,
             R/o Pagariya Residency,
             Vedant Nagar, Aurangabad.

     3)      Mohd. Harun Mohd. Siddique,
             Age 37 years,
             Occupation: Business,
             R/o Roshan Gate, Aurangabad.

     4)      Jagdish Devikaran Dhanuka,
             Age 35 years,
             Occupation: Business,
             R/o. Railway Station Bazar,
             Railway Station, Aurangabad.        ..    Petitioners.

                      Versus

     1)      The State of Maharashtra
             Through Director of Marketing
             Maharashtra State, Pune.

     2)      District Deputy Registrar,
             Co-operative Societies,
             Aurangabad.

     3)      The Agricultural Produce Market
             Committee, Jadhavwadi,
             Aurangabad
             Through its Secretary
             Aurangabad.                     .. Respondents.
                                   ----




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                                                 2             WP 5529 of 2006

     Shri. R.F. Totla, Advocate, for petitioners.

     Shri. A.S. Shinde, Assistant Government Pleader, for
     respondent Nos.1 and 2.

     Shri. S.V. Adwant, Advocate, for respondent No.3.

                                               ----

                                      Coram:        T.V. NALAWADE &
                                                    SANGITRAO S PATIL, JJ.

                                      Date:    23 June 2017.

     JUDGMENT (Per T.V. Nalawade, J.):

1) The petition is filed to challenge the

notifications issued by respondents dated 24-2-1995 and

17-4-1998. Further relief is claimed that the contents of

judgment and order of Writ Petition Nos.2145/2004 and

7123/2005 in respect of the aforesaid notifications are not

binding on petitioners and they are not in accordance with

provisions of law. Both the sides are heard.

     2)               In       the    area    known      as      "Old     Mondha"           of

     Aurangabad                city   a   market       was       established          under

Hyderabad Agriculture Markets Act 1339 Fasli. The

Maharashtra Agricultural Produce Marketing

(Development and Regulation) Act, 1963 (hereinafter

3 WP 5529 of 2006

referred to as "the Act") came into force with effect from

25-5-1967. Under the Act process was started for

establishment of market at other place like Jadhavwadi

Aurangabad and accordingly the District Deputy Registrar

of Cooperative Societies Aurangabad issued notification

on 18-10-1994 under sections 3(1)(2) and 4(3) of the Act.

In the notification objections were called. The process

about creation of such market was however started way

back in the year 1986. On 24-2-1995 the objections were

considered and decided after giving hearing even to the

counsels of the persons who had taken objections. All the

objections were considered and rejected by giving reasons

and then on the same day notification came to be issued

under sections 3 and 4 of the Act. In the same notification

it was made clear that previous market place at Old

Mondha will remain in existence for 30 days from the date

of notification and after that it shall be presumed that it is

closed. Admittedly in Government gazette this notification

was published.

3) The notification dated 24-2-1995 was

challenged in Writ Petition No.7123/2005 in this Court by

4 WP 5529 of 2006

Association of General Kirana Merchants, Traders, who

were doing business at Old Mondha, the previous market

place. On merits, the writ petition was dismissed. This

decision was challenged by filing SLP in Supreme Court

but the SLP also came to be dismissed.

4) Writ Petition No.2145/2004 was filed by as

many as 20 traders who had shifted to the market

declared in the aforesaid notification for giving direction

to the A.P.M.C., the Government and others to see that no

trader is permitted to carry on business at Old Mondha

place, at Juna Mondha. There was some grievance that

due to peculiar circumstances, the traders who had

shifted to new place were not in a position to compete

with those who were still carrying on business at Old

Mondha. Submission was made for the A.P.M.C. that it

will take steps to see that the market activity at Old

Mondha is closed and such undertaking was also given.

Thus all the traders carrying on business at old place

were to be shifted to the new place. This Court in Writ

Petition No.2145/2004 held that the previous area was

denotified area and so nobody can be allowed to do

5 WP 5529 of 2006

business at that place. Retailers were however allowed to

carry on business at the old place. It appears that interim

order made by this Court in the present writ petition by

which stay was refused, was challenged in SLP. Initially

for some period there was interim relief granted by the

Supreme Court but it came to be vacated on 15-5-2007

and ultimately the petition itself came to be dismissed.

5) It can be said that after the decision of Writ

Petition No.2145/2004 one more attempt was made to

challenge the notification by filing Writ Petition

No.1374/2007. Present learned counsel for the petitioner

Shri. Totla was appearing for the petitioner in the said

matter and relief was claimed to set aside a part of the

aforesaid notification by which the market place at old

place Mondha was closed. This petition was disposed of

without granting any relief.

6) In spite of the aforesaid three decisions of this

Court and the circumstance that the Apex Court had

dismissed the challenge to the decision of Writ Petition

No.7123/2005, present writ petition came to be filed on 2-

6 WP 5529 of 2006

8-2006. Following specific reliefs are claimed in the

petition.

(A) By issuing Writ of Certiorari or any other appropriate Writ, order or directions under article 226 of Constitution of India calling for the records of the impugned notifications from the respondents and after examining the legality and validity therein, may kindly be quashed and set aside the impugned part of notifications dated 24-2-95 and 17-4-98 i.e. "that the present market place (Mondha) will remain in existence for 30 days from the date of publication of notification in the Government Gazette and thereafter it will be treated as closed as it is not in accordance with the sec.3(1)(2) and sec.4(3) of the Maharashtra Agricultural Produce Marketing Committee (Regulation Act, 1963)"

(B) It be declared that decision contains in the judgment and order in both the writ petitions bearing No.2145/04 and W.P. No.7123/05 in respect of above portion of notification be declared as not binding on the petitioners and it is contrary and not in accordance with the provisions of law."

Learned counsel for the petitioner submitted that the

following legal point was not specifically raised and

decided in the previous matters :

"Whether the law requires similar and separate procedure to be followed for denotifying old markets and only after that old market can be closed ?"

7) This Court has already mentioned the relevant

7 WP 5529 of 2006

contentions and the decisions given by this Court in

previous writ petitions. It can be said that in the same

notification both the parts were dealt with viz.

establishment of new market and closure of previous

market. Both parts of the notification were under

challenge in the aforesaid petitions and the orders made

by this Court which were confirmed by the Apex Court

show that this Court had observed that previous market

was denotified and nobody can be allowed to trade in the

old market. On this point, the learned counsel for the

petitioners placed reliance on the observations made in

the case reported as 1971 Mh.L.J. 37 (Mathura Prasad

vs. Dossibai N.B. Jeejeebhoy). It is observed by the

Apex Court that "if the question before Court is purely of

law and it relates to the jurisdiction of the Court, the rule

of res judicata cannot preclude party affected from

challenging the validity on law point. If previous Court

had no jurisdiction to give such decision, the point

decided cannot be treated as the point finally decided

having bar of res judicata to subsequent proceeding."

There cannot be dispute over this proposition. The facts

of the present matter are altogether different and relevant

8 WP 5529 of 2006

facts are already quoted. Thus on the face of it, it can be

said that there is no need to reconsider the point raised in

the present matter.

8) The learned counsel has raised a point of

requirement of separate procedure for closure of previous

market and so to some extent this Court is addressing the

point raised. The definition of "market" is given in section

2(h) of the Act and it runs as under :

"Market" means any principal market established for the purposes of this Act and also a subsidiary market under section 5.

9) Section 5 of the Act provides for establishment

of markets and it runs as under :

"5. Establishment of markets: (1) For every market area, there shall be established a principal market, and there may be established one or more subsidiary markets.

(2) The Director shall, as soon as possible after the issue of a notification under sub-section (1) of section 4, by a notification in the Official Gazette, establish any place (including any structure, enclosure, open place or locality) in any market area to be the principal market for the marketing of the agricultural produce specified in that notification; and may by the same notification, or by like notification, establish in any other like places in the market area, subsidiary markets for the marketing of such agricultural produce."

                                         9       WP 5529 of 2006

     10)              In view of mention of section 4(1) in section 5

of the Act it can be said that the procedure laid down in

sections 3 and 4 of the Act is applicable for establishment

of markets. It is already observed that before issuing

notification of establishment of market, objections were

called and the objections were decided after giving

hearing to the persons who had taken the objections. The

provision of section 4(2) and (3) runs as under :

"4. Declaration of regulation of marketing of specified agricultural produce in market area.

(1) . . . .

(2) On any declaration being made under sub-section (1) no local authority or any other person shall thereafter, notwithstanding anything contained in any law for the time being in force, establish, authorise or continue or allow to be established, authorised or continued any place in the market area for the marketing of that agricultural produce.

(3) Subject to the provisions of section 3, the State Government may, at any time by notification in the Official Gazette, exclude from a market area any area, or include therein an additional area, or may direct that the regulation of the marketing of any agricultural produce in any market area shall cease, or that the marketing of any agricultural produce (hitherto not regulated) shall be regulated in the market area.

11) The aforesaid part of the provision of section 4

of the Act shows that after declaration made under sub

section (1) of section 4, the activity which was there of

10 WP 5529 of 2006

traders prior to the date of declaration cannot be

continued. In this provision in place of word 'market area"

the term "market' needs to be read. The aforesaid part of

section 4 shows that the previous market ceased to exist

when notification of market is issued under section 5 of

the Act. In view of these provisions, it cannot be said that

separate procedure needs to be started for closing the

previous market under the Act.

12) There are more provisions making the things

clear and they are sections 63 and 64. These provisions

show that the previous Act, Hyderabad Agricultural

Markets Act 1339 Fasli stood repealed when the Act came

into force and the provisions of the Act now need to be

used and seen for deciding the dispute of the present

nature. Thus, every time when a new market is

established under section 5 of the Act, when there was

already a market, it needs to be presumed that after

establishment of new market under section 5, previous

market should be closed.

                                        11         WP 5529 of 2006

     13)              On the aforesaid point learned counsel for the

petitioners placed reliance on the cases reported as 1974

Mh L J 378 (Zilla Parishad Bhandara v. APMC) and AIR

1982 Bombay 284 (Bhausaheb Tavnappa Mahajan v. State

of Maharashtra & Others). The facts involved in these two

cases were totally different. The observations made in

these two cases are of no help to the petitioners.

14) The learned counsel for the petitioners placed

reliance on observations made by the Apex Court in the

case reported as AIR 1971 SC 306 (Narendrajit Singh Vs.

The State of U.P.). In that case, the Apex Court has laid

down that separate notifications under sections 4 and 6 of

the Land Acquisition Act, 1894 need to be issued as the

purposes behind these two notifications are different.

Specific provisions involved in the matter were considered

and there is no such specific provision in support of the

case of the present petitioners. On the contrary, the

provisions of the Act quoted show that there is no need of

such separate procedure. So, the point is answered

accordingly. Reliance was placed on one more case

reported as AIR 1982 Kerala 126 Kerala High Court

12 WP 5529 of 2006

(Dakshayini v. Madhavan). The facts of this case also show

that different point was involved like the period of

limitation. The observations made in this case by Kerala

High Court have also no application as the aforesaid

provisions of the Act are self explanatory and no confusion

is created by them.

15) The aforesaid circumstances show that even

after challenge to the notification had failed upto the

Supreme Court, some interested persons and probably

the traders who were not ready to shift to new market,

continued to create litigation to see that the things are

protracted. Fortunately in the present matter this Court

had refused stay and further the Apex Court had also

vacated the stay immediately when it was brought to the

notice of the Apex Court that the matter was already

considered on merits up to the Supreme Court. This Court

holds that there is no force in the aforesaid contentions

made for the petitioners and no relief can be granted to

the petitioners in the present petition. In the result, the

petition stands dismissed. Rule stands discharged.

             Sd/-                                  Sd/-
     (SANGITRAO S PATIL, J.)               (T.V. NALAWADE, J.)