Ravindra Arvind Bande vs Smt. Vijaya Manohar Bande And Ors
2023 Latest Caselaw 2896 Bom

2023:BHC-AS:8941
                                                             WP1141-2022AWWP1120-2022.DOC

                                                                                             Santosh
                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CIVIL APPELLATE JURISDICTION


                                    WRIT PETITION NO. 1141 OF 2022
                                                WITH
                                 INTERIM APPLICATION NO. 2687 OF 2022
                                                WITH
                                    WRIT PETITION NO. 1120 OF 2022
                                                WITH
                                 INTERIM APPLICATION NO. 2686 OF 2022

                     Ravindra Arvind Bande
                     Adult, Occu. Business
                     R/at : Laketown Society, B11, Flat
                     No.903, Katraj, Pune 411 037                                  ...Petitioner
                                                  Versus
               1 Smt. Vijaya Manohar Bande
                 Age - Adult, Occupation - Household
               2 Sou. Swati Vijay Kale
                 Age - 40, Occupation - Household
                 Both residing at - Flat No. 904 E5,
                 Bramha Sun City, Wadgaon Sheri,
                 Pune 411 014
               3 Director, Marketing,
                 State of Maharashtra, Pune
                 Having address at - 3rd Floor, New
                 Central Building, Pune 411 001
               4 Administrator Agricultural Produce
                 Market Committee, Pune, Having
                 address at - Chatrapati Shivaji Market
                 Yard, Pune - 411 037
               5 Joint Director of Agricultural Marketing,
                 State of Maharashtra, Pune
                 Having address at - 3rd Floor, New
                 Central Building, Pune - 411 001
               6 State of Maharashtra
                 [Summons to be served on the learned
                 Government Pleader appearing for State
                 of Maharashtra under Order XXVII, Rule
                 4, of the Code of Civil Procedure, 1908                      ...Respondents



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Mr. Anil Anturkar, Senior Advocate, i/b Mr. Prathamesh
      Bhargude, for the Petitioner in both petitions.
Mr. S. C. Wakankar, for Respondent Nos.1 and 2 in
      WP/1141/2022.
Mr. Ashish Gaikwad, for Respondent Nos.1 and 2 in
      WP/1120/2022.
Mr. C. D. Mali, AGP for the State/Respondent Nos.3, 5 and 6
      in both petitions.
Mr. Pratap Patil, for Respondent No.4 in both petitions.


                                         CORAM: N. J. JAMADAR, J.

RESERVED ON: 9th MARCH, 2023 PRONOUNCED ON: 24th MARCH, 2023 JUDGMENT:-

1. Rule. Rule made returnable forthwith and with the

consent of the learned Counsel for the parties heard finally.

2. These petitions under Article 227 of the Constitution of

India assail the legality, propriety and correctness of a common

order dated 14th January, 2022 passed by the Joint Director

(Marketing) Maharashtra State, Pune, purportedly under

Section 52B of the Maharashtra Agricultural Produce Marketing

(Development and Regulation) Act, 1963 ("the Act, 1963"),

whereby and whereunder the appeals preferred by the petitioner

challenging the cancellation of the licence granted to the

petitioner in respect of a Stall bearing No.124 situated at

Chhatrapati Shivaji Maharaj Market Yard, Gultekdi, Pune and

the issue of the licence to respondent Nos.1 and 2, in respect of

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the very same Stall by the Market Committee, came to be

dismissed.

3. Background facts necessary for determination of these

petitions can be stated in brief as under:

(a) The petitioner claimed that late Manohar Bande, the

husband of respondent No.1 and father of respondent No.2, was

the petitioner's uncle. The petitioner and Manohar Bande were

jointly running a business under the name and style of M/s.

Shriram Traders at Stall No.124, Market Yard, Pune, which was

given on lease by the Agricultural Produce Market Committee,

Pune ("the Market Committee"), to respondent No.4, for a period

of 99 years, to Manohar Bande. The petitioner asserts petitioner

was looking after the entire business of M/s. Shriram Traders

exclusively as Manohar had been unwell for a long period before

he passed away on 29th December, 2017.

(b) The petitioner asserts that Manohar Bande had

executed a Will on 6th November, 2015 and bequeathed all of his

properties, including Stall No.124, to the petitioner. During the

lifetime of Manohar, in the year 2009, respondent No.2 the

daughter of Manohar, had executed a registered Release Deed

relinquishing her rights and interest in the property of Manohar,

which eventually came to be bequeathed to the petitioner.

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(c) In the year 2019, respondent Nos.1 and 2 instituted a

suit being RCS No.1915 of 2019 falsely alleging that the

registered Release Deed and Will were fraudulently obtained and

did not bind the respondent Nos.1 and 2.

(d) In the meanwhile, the Market Committee issued the

licence on 27th September, 2018 to carry on the trade from the

Stall No.124 to the petitioner. The licence came to be renewed

till the year 2023.

(e) On 10th August, 2019, an application was filed by

respondent Nos.1 and 2 before the Market Committee seeking

transfer of Stall No.124 in their name alleging fraud on the part

of the petitioner. On 6th February, 2021, the Market Committee

resolved to revoke the licence granted in favour of the petitioner

and by a subsequent order dated 23rd April, 2021, the licence

came to be granted in the name of respondent Nos.1 and 2,

without providing any opportunity of hearing to the petitioner.

4. Being aggrieved, the petitioner preferred appeals being

Appeal No.30 of 2021 and Appeal No.46 of 2021 before the

Director (Marketing).

5. Initially, by an order dated 22nd April, 2021, the Director

(Marketing) granted stay to the execution and operation of the

letter dated 9th April, 2021 conveying the decision of the Market

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Committee dated 6th February, 2021. By a further order dated

27th May, 2021, interim order was confirmed and continued till

the hearing of the appeal. However, on 28th October, 2021, the

Director (Marketing) vacated the interim order without providing

any opportunity of hearing to the petitioner. The petitioner was

thus constrained to approach this Court in Writ Petition

No.8270 of 2021 and Writ Petition No.8268 of 2021.

6. By an order dated 17th December, 2021 the writ petitions

were disposed by quashing and setting aside the impugned

order dated 28th October, 2021 and directing that the interim

order dated 22nd April, 2021, as confirmed by order dated 27 th

May, 2021, shall operate till the final disposal of the appeals by

the Director.

7. Eventually, by the impugned order, the Joint Director

(Marketing) was persuaded to dismiss the appeals holding inter

ali that the Manohar was only a lessee of Stall No.124 and could

not have bequeathed the same in favour of the petitioner

without prior permission of the Market Committee, the

petitioner had not disclosed to the Market Committee when the

licence was issued in favour of the petitioner that in a suit the

petitioner was directed to produce probate in respect of the

alleged Will of deceased Manohar, and since respondent Nos.1

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and 2 were the Class-I heirs of deceased Manohar and the

challenge to the Will propounded by the petitioner was

subjudice, the Market Committee was justified in cancelling the

licence granted in favour of the petitioner and granting the same

to respondent Nos.1 and 2.

8. The petitioner has thus again invoked the writ jurisdiction

of this Court.

9. Affidavits-in-reply are filed on behalf of respondent Nos.1

and 2 in both petitions.

10. I have heard Mr. Anturkar, the learned Senior Counsel for

the petitioner in both petitions, Mr. Wakankar, the learned

Counsel for respondent Nos.1 and 2 in Writ Petition No.1141 of

2022, Mr. Gaikwad, the learned Counsel for respondent Nos.1

and 2 in Writ Petition No.1120 of 2022, Mr. Patil, the learned

Counsel for respondent No.4 and Mr. Mali, the learned AGP for

the State/respondent Nos.3, 5 and 6 in both petitions. With the

assistance of the learned Counsel for the parties, I have perused

the material on record including the impugned orders.

11. At the outset, it is necessary to note that an issue of

tenability of the writ petitions in view of existence of an alternate

statutory remedy under Section 52B of the Act, 1963 was

raised. Maintainability of the petitions was assailed on the

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ground that an order passed by the Director (Marketing) is

expressly made appellable to the State Government under

Section 52B(1)(b) of the Act, 1963. In the face of an express

statutory remedy, according to the respondents, this Court

would not be justified in exercising the extraordinary writ

jurisdiction.

12. Mr. Anturkar would urge that the challenge to the

maintainability of the petition is not well conceived. According

to Mr. Anturkar the contention that there is an alternate

efficacious statutory remedy rests on an incorrect

understanding of the provisions contained in Section 52B of the

Act, 1963. Mr. Anturkar would urge that Sub-Section (3) of

Section 52B itself is a complete answer to the challenge to the

maintainability of the petitions.

13. In opposition to this, an endeavour was made on behalf of

the respondents to persuade the Court to hold that the order

passed by the Director (Marketing) in appeal is amenable to a

further appeal before the State Government.

14. In order to appreciate the aforesaid challenge to the

maintainability of the petitions, it may be necessary to have a

reference to the provisions contained in Sections 8, 9 and 52B of

the Act, 1963.

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15. Section 8 reads as under:

"8. Power to cancel or suspend licences. (1) Subject to the provision of sub-section (3), a Market Committee may, for reasons to be recorded in writing, suspend or cancel a licence-

(a) if licence has been obtained through wilful misrepresentation, or fraud;

(b) if the holder thereof or any servant or any one acting on his behalf with his express or implied permission, commits a breach of any of the terms or conditions of the licence;

(c) if the holder of the licence in combination with other holders of licences commits any act or abstains from carrying out his normal business in the market with the intention of wilfully obstructing, suspending or stopping the marketing of agricultural produce in the market area in consequence where the marketing of any produce has been obstructed, suspended or stopped;

(d) if the holder of the licence has been adjudged an insolvent, and has not obtained his discharge; or

(e) if the holder is convicted of any offence under this Act. [(1A) Notwithstanding anything contained in sub-section (1), but subject to the provisions of sub-section (3), the Chairman and Secretary of a Market Committee acting jointly may, for reasons to be recorded by them in writing, by order suspend a licence for a period not exceeding 15 days for any reason for which a Market Committee may suspend the licence under sub-section (1)]. (2) Notwithstanding anything contained in sub-section (1), but subject to the provisions of sub-section (3), the Director may, for reasons to be recorded in writing by order suspend or cancel any licence granted or renewed under this Chapter.

(3) No licence shall be suspended or cancelled under this section, unless the holder thereof, has been given a reasonable opportunity to show cause against such suspension or cancellation."

16. Section 9 reads as under:

"9. Appeal Any person aggrieved by an order--

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(a) of the Market Committee refusing to grant or renew a licence, or cancelling a licence, or suspending any licence may, within thirty days from the date on which the order is communicated to him, appeal to the Director;

(b) of the Director refusing to grant or cancelling or suspending a licence may, within the like number of days, appeal to the State Government.

The Director or, as the case may be, the State Government shall, on such appeal, make such order as is deemed just and proper.

Provided that, before dismissing an appeal, the Director or as the case may be, the State Government, shall give such person a reasonable opportunity of being heard, and record in writing the reasons for such dismissal."

17. Section 52B reads as under:

"[52B. Appeal.

(1) Save as otherwise provided elsewhere in this Act, any person aggrieved by a decision taken or order passed under any of the provisions of this Act may prefer an appeal-

(a) to the Director where such decision is taken or order is passed by the Market Committee, its Chairman, Vice-Chairman, Secretary or any other officer empowered to exercise the powers of the Director,

(b) to the State Government, where such decision is taken or order is passed by the Director, (2) An appeal under sub-section (1) shall be made within a period of thirty days from the date of the decision or order appealed against.

(3) The order passed in the appeal by the Director or the State Government, as the case may be, shall be final."

18. Section 9 provides for an appeal to the Director against an

order of the Market Committee refusing to grant or renew a

licence, or cancelling or suspending a licence and, if such an

order is passed by the Director, an appeal is provided under

sub-clause (b) to the State Government.

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19. Section 52B is in the nature of a residuary provision

providing for an appeal against a decision taken or order passed

under the provisions of the Act, 1963 to the Director, where

such decision is taken or order is passed by the Market

Committee and its office bearers and officials, and to the State

Government where such decision is taken or order is passed by

the Director. Sub-section (3) of Section 52B however declares

that the order passed in appeal by the Director or the State

Government, as the case may be, shall be final.

20. A conjoint reading of the provisions contained in Section 9

and Section 52B of the Act would indicate that Section 52B(1)

starts with a saving clause by using an expression, "save as

otherwise provided elsewhere in this Act". Evidently, on a plain

reading, it becomes abundantly clear that the right of appeal

conferred by Section 52B is subject to the provisions contained

in the Act, 1963. If an appeal is expressly provided by any other

provisions of the Act, 1963, as in the case of a decision to grant

or renew a licence, or cancel or suspend a licence under Section

9 of the Act, the resort to the residuary provisions of appeal

under Section 52B of the Act is impermissible.

21. The matter can be looked at from another perspective. The

provisions contained in Sub-section (3) of Section 52B can also

be construed as a provision which otherwise restricts the right

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of appeal conferred by Sub-section (1) of Section 52B. It ordains

that an order passed by the Director or the State Goverment in

appeal, shall be final. If the intention of the legislature was to

provide an avenue of second appeal against the order passed by

the Director in exercise of the appellate power under Section

9(b) or Section 52B(1)(b), the legislature would not have

conferred finality to the order passed by the Director in appeal.

22. A clear distinction is thus discernible in the availability of

remedy of appeal. If the order is passed by the Director

(Marketing) in exercise of original jurisdiction an appeal to the

State Government is statutorily provided for. However, where an

order is passed by the Director in exercise of the Appellate

power an element of finality is attached to such order. In

substance, the scheme of the Act, 1963, which emerges from a

conjoint reading of the provisions contained in Section 9 and

Section 52B of the Act, is to provide one appeal against the

order of granting or renewing a licence, or cancelling or

suspending the licence and no more.

23. I am therefore not persuaded to accede to the challenge to

the maintainability of the petition on the ground of existence of

a statutory remedy. Even otherwise, is it trite that the existence

of an alternate efficacious remedy is a self-imposed restriction.

In a given case, the High Court is not precluded from exercising

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the writ jurisdiction even when there is an alternate remedy.

Failure to adhere to fundamental principles of judicial process

and natural justice are the grounds on which the High Court

may exercise the writ jurisdiction despite an alternate remedy.

24. On the merits of the matter, Mr. Anturkar would urge that

both the Market Committee and the Director (Marketing) have

approached the issue from an incorrect perspective. In the

backdrop of uncontroverted facts that after the demise of

Manohar licence was granted in the name of the petitioner, after

obtaining legal opinion, and before cancelling the licence no

notice much less an effective opportunity of hearing was given to

the petitioner, the Director (Marketing) fell in error in not at all

adverting to the said ground specifically raised in the appeal-

memo, urged Mr. Anturkar. It was further submitted that the

insistence on obtaining a probate of the Will of the deceased

Manohar was also misplaced. The fact that in a distinct

proceeding the petitioner was directed by the Civil Court to

produce probate for the petitioner's impleadment as legal

representative of deceased Manohar in the said suit, could not

have been the basis for negativing the claim of the petitioner.

Mr. Anturkar would urge that the order passed by the Civil

Court in RCS No.400 of 2017 is otherwise not in consonance

with law and has been assailed in a miscellaneous appeal.

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25. In opposition to this Mr. Gaikwad, the learned Counsel for

respondent Nos.1 and 2, strenuously submitted that the

substance of the matter cannot be lost sight of. Under the

purported Will, as many as 52 properties of deceased Manohar

were sought to be bequeathed in favour of the petitioner

completely disinheriting respondent Nos.1 and 2, the wife and

the daughter of the deceased. Such a disposition is wholly

inconceivable and unconscionable. Since the Civil Court had

directed the petitioner to produce the probate of the Will and the

said order was binding on the authorities under the Act, 1963,

they were fully justified in cancelling the licence in favour of the

petitioner and granting the same in favour of respondent Nos.1

and 2, who are indisputably the Class-I heirs of the deceased,

urged Mr. Gaikwad.

26. Mr. Gaikwad further submitted that what was sought to

be bequeathed under the purported Will of the deceased was

Stall No.124. The deceased had no dispositive power over the

said Stall as the deceased was a mere lessee thereof. The

Director (Marketing) was, therefore, within his rights in

observing that the leasehold rights therein could not have been

transferred without the prior permission of the Market

Committee.

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27. The learned AGP and the learned Counsel for respondent

No.4 supported the impugned orders.

28. From the perusal of the impugned order it becomes

evident that the fact that the Civil Court had directed the

petitioner to produce a probate when the petitioner had sought

impleadment as the legal representative of deceased Manohar in

RCS No.400 of 2017, which was instituted by the deceased and

Arvind Bande, the brother of the deceased, against one

Chandrakant Bande, weighed with authorities. A copy of the

said order (Exhibit-E in Writ Petition No.1141 of 2022) indicates

that when the petitioner sought impleadment the learned Civil

Judge by an order dated 19th June, 2019 directed the petitioner

to produce probate in respect of the Will and ruled that,

thereafter, the Court would decide whether to allow the

petitioner to bring himself on record as the legal representative

of Manohar.

29. Mr. Anturkar submitted that the aforesaid order passed by

the Civil Court does not take into account the provisions

contained in Section 213(2) read with Section 57 of the Indian

Succession Act, 1925. As the Will was made beyond the

ordinary original civil jurisdiction of this Court and it relates to

immovable property also situate beyond the said limits, the

petitioner was legally not enjoined to obtain probate before

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establishing his rights on the strength of the Will of late

Manohar.

30. I am mindful of the fact that the legality and validity of the

order passed by the learned Civil Judge in RCS No.400 of 2017

is not being tested in this petition. However, requirement of the

probate, in law, cannot be said to be wholly irrelevant.

Indisputably, leasehold rights which were purportedly

bequeathed under the Will of late Manohar were in respect of

the property situated at Pune and the alleged Will was also

purportedly executed at Pune.

31. In the case of Clearnace Pais and Others vs. Union Bank

of India1 the Supreme Court enunciated that a combined

reading of Sections 213 and 57 of the Indian Succession Act,

1925 would show that where the parties to the Will are Hindus

or properties in dispute are not in territories falling under

Section 57(a) and (b), Sub-section (2) of Section 213 applies and

Sub-section (1) has no application. Consequently, a probate will

not be required to be obtained by a Hindu in respect of a Will

made outside those territories or regarding the immovable

properties outside those territories.

1AIR 2001 SCC 1151.

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32. This Court in the case of Bhagwanji Karsanbhai Rathod

vs. Sarajmal Anandraj Mehta2 has also enunciated the law in

respect of a Will pertaining to the properties at Pune, as under;

"8. On conjoint reading of the above provisions, it would appear that only Wills specified in Clause (a) and (b) of Section 57 of the Act would require the executor or legatee to obtain probate letters of Administration from the Court of competent jurisdiction so as to pursue the right arising under the Will to its logical end. This legal position is reinforced from the exposition of our High Court in Ahmed s/ o. Abdul Latis vs. Ghisia Hira Teli (AIR 1945 Nag 237) as well as Jyoti w.o. Jagdish Singhai vs. State of Maharashtra (1979 Mh LJ 308). Therefore, the first question that needs to be considered is; whether the subject Will is covered by Section 57, Clause (a) and (b) of the Act? As mentioned earlier, it is not in dispute that the suit property is situated at Pune and the Will was also executed at Pune. If that is so, it is not possible to countenance the submission that Section 57(a) and (b) of the Act would apply. Understood thus, it was not necessary for the petitioner to obtain probate so as to proceed with the execution proceedings."

33. There is a more fundamental issue about the decision

making process by the Market Committee. In exercise of the

writ jurisdiction, it is trite, the Court is more concerned with

the decision making process rather than the merits of the

decision.

34. Indisputably, post the demise of Manohar, the Market

Committee issued a licence to the petitioner on 27th September,

2018 to carry on the trade from Stall No.124. It is

incontrovertible that the licence granted in favour of the

petitioner was renewed for the period 2021 to 2023. Respondent

Nos.1 and 2 made an application for revocation of the licence

2 AIR2003 Bombay 387.

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granted in favour of the petitioner and, instead sought grant of

licence to them. In the view of the said application, the Market

Committee by its resolution dated 6th February, 2021 resolved to

grant licence to respondent Nos.1 and 2 in respect of Stall

No.124 and cancel the licence issued to the petitioner. A

communication dated 9th April, 2021 giving effect to the

aforesaid resolution followed, which was the subject matter of

Appeal No.30 of 2021 before the Director (Marketing).

35. It is pertinent to note that before cancelling the licence,

the Market Committee did not claim to have given any

opportunity of hearing to the petitioner. Neither the resolution

nor the impugned communication dated 9th April, 2021 advert to

the fact that an opportunity of hearing was given to the

petitioner. As noted above, sub-section (3) of Section 8 of the

Act, 1963 mandates that no licence shall be suspended or

cancelled under Section 8 unless the holder thereof, has been

given a reasonable opportunity to show cause against such

suspension or cancellation. In view of this peremptory nature of

the provision, the Market Committee could not have proceeded

to straightway cancel the licence granted to the petitioner sans

an opportunity of hearing.

36. An endeavour was made on behalf of the respondents to

wriggle out of the situation by canvassing a submission that the

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petitioner had obtained the licence by misrepresentation and

suppression of facts. Without delving into the factual aspects, it

would be suffice to note that the language of sub-section (3) of

Section 8 leaves no manner of doubt that even where a licence is

proposed to be suspended or cancelled on the ground of

misrepresentation, an opportunity of hearing is warranted. Any

other view would render the salutary safeguard of opportunity

of hearing nugatory as the authority cancelling or suspending

the liecence without giving opportunity to show cause would

endeavour to justify its action on one or the other ground.

37. It would be contextually relevant to note that in the appeal

before the Director (Marketing), the petitioner had taken a

specific ground that the Market Committee had cancelled the

licence without providing an opportunity of hearing (ground 'd').

It does not appear that the Director (Marketing) considered the

challenge from the said perspective.

38. The upshot of the aforesaid consideration is that the

decision of the Market Committee to cancel the licence was in

flagrant violation of the express statutory provision contained in

Section 8(3) of the Act, 1963 and principles of natural justice.

39. Resultantly, the impugned order as well as the decision of

the Market Committee under resolution dated 6th February,

2021, and communicated vide letter dated 9 th April, 2021,

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deserve to be quashed and set aside. As a necessary corollary,

the decision of the Market Committed to grant licence to

respondent Nos.1 and 2 also deserves to be quashed and set

aside. The matter is, therefore, required to remitted to the

Market Committee for afresh decision after providing an effective

opportunity of hearing to the parties.

40. In the context of the consequential directions, it is

expedient to note that this Court in the order dated 17 th

December, 2021 in Writ Petition No.8268 of 2021 and Writ

Petition No.8270 of 2021 had noted that there was a serious

dispute between the parties as regards the occupation and

possession of Stall No.124. The Court thus declined to delve into

the aspect as to who was in actual occupation and possession of

Stall No.124. The petitioner contends that despite the aforesaid

order dated 17th December, 2021, the petitioner has been

restrained from carrying trade from Stall No.124. In the

circumstances, I deem appropriate to direct that till the Market

Committee takes a fresh decision regarding the grant of licence

none of the parties shall be permitted to carry on the trade from

Stall No.124. Resultantly, only after the decision of the

Market Committee the successful party would be permitted to

carry on the trade from Stall No.124 on the basis of a valid

licence.

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41. Hence, the following order:

:ORDER:

(I) The petitions stand allowed in the following terms:

(a) The impugned common order dated 14th January,

2022 passed by the Joint Director (Marketing)

stands quashed and set aside.

(b) The decision of the Market Committee to cancel

the licence granted to the petitioner in respect of

Stall No.124 under Resolution dated 6 th

February, 2021, and vide communication dated

9th April, 2021 and the decision dated 23 rdApril,

2021 to grant the licence in respect of the said

stall to respondent Nos.1 and 2 also stand

quashed and set aside.

(c) The matter stands remitted to the Market

Committee for afresh decision after providing a

reasonable opportunity of hearing to the

petitioner and respondent Nos. 1 and 2.

(d) The Market Committee shall take a decision as

expeditiously as possible and preferably within a

period of two months from the date the parties

appear before the Market Committee.

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(e) The parties shall appear before the Market

Committee on 5th April, 2023.

(f) Till the Market Committee takes an appropriate

decision, none of the parties shall be permitted

to carry on the trade from Stall No.124.

(II) Parties shall bear their respective costs.

(III) Rule made absolute to the aforesaid extent.

(IV) In view of the disposal of the petitions, Interim

Applications do not survive and stand disposed.

[N. J. JAMADAR, J.]