MAHESH HARILAL KHAMAR Vs. B N NARASIMHAN

JUDGEMENT

(1.) This petition raises a short question about the period of limitation for filing an appeal before the Director of Agricultural Marketing and Rural Finance respondent No. 1 herein under the provisions of sec. 27 sub-sec. (5) of the Gujarat Agricultural Produce Market Act 1963 hereinafter referred to as the Act. It also raises the question as to whether respondent No. 1 has the power and authority to condone the delay in preferring an appeal before him. In order to appreciate the nature of controversy posed for my consideration in the present petition it is necessary to have a look at a few relevant facts.

(2.) The petitioner had applied for grant of licence as General Commission Agent for the year 1980-81. The said application was given to respondent No. 2 Market Committee which is registered under sec. 9 of the Act and which is having its office in the city. Upto April 1980 the wholesale business in the vegetables was carried on at Bhagubhais Vanda situated in Dhalgarvad in the city. The said wholesale market has been shifted to the new market situated outside Jamalpur gate known as Sardar Patel Market. The petitioner had a licence of General Commission Agent at the time when the wholesale business was carried on at Bhagubhais Vanda. As stated above the petitioner had applied for grant of a fresh licence as General Commission Agent for the year 1980-81 to the respondent No. 2 Market Committee. Under sec. 27 sub-sec. (1) of the Act the concerned Market Committee subject to the rules made in that behalf can grant or renew a general licence or a special licence for the purpose of any specific transaction or transactions to a trader general commission agent broker weighman surveyor warehouseman or any person to operate in the market area or part thereof or after recording its reasons therefore refuse to grant or renew any such licence. The petitioner had accordingly given his application to the 2nd respondent invoking its power under sec. 27 (1) for granting the said licence to the petitioner. The said 2nd respondent Market Committee by its resolution passed at its meeting on 25/04/1981 refused the petitioners prayer for grant of a licence for the year 1980-81 on the ground that he had violated the bye-laws of the Agricultural Produce Market Committee and the conditions of licence held by him. I am not at all concerned with the merits of the said refusal and hence I do not dilate on that question any further. The decision of the 2nd respondent Market Committee refusing to grant the requisite licence to the petitioner for the year 1980-81 was communicated to the petitioner by a letter of the Secretary of the Market Committee dated 6-5-81. It appears that the said letter was received by the petitioner on 8-5-81. The aforesaid order of the second respondent refusing to grant the requisite licence to the petitioner as General Commission Agent is appealable to the first respondent Director under section 27(5) which provides that any person aggrieved by an order refusing to grant or renew a licence or suspending or cancelling any licence may appeal within thirty days from the date of the comuunication of the order to him. Once an order was made by the Market Committee under the Act as in the present case it become appealable to the respondent No. 1 herein within 30 days from its communication to the petitioner. Accordingly the normal period of limitation of 30 days would have expired on 7-6-81 and by that time the petitioner was required to prefer an appeal before the first respondent Director of Agricultural Marketing and Rural Finance but in the meanwhile the petitioner preferred a writ petition being Civil Application No. 1844 of 1981 on 19/05/1981 in this High Court. He challenged the decision of the second respondent Market Committee refusing to grant him the requisite licence for the year 1980-81 and he also challenged some of the provisions of the Gujarat Agricultural Produce Markets Act and the Rules. This petition came to be dismissed as withdrawn on 13/07/1981 before a Division Bench of this Court. B.J. Divan C.J. and N. H. Bhatt J. allowed the petitioner to withdraw his aforesaid petition on 13/07/1981 Notice was ordered to be discharged but the ad interim relief granted on 22-5-81 was allowed to continue for two weeks from 13 to enable the petitioner to approach the appellate authority. The aforesaid order of this court is placed at Annexure A to the petition. This order clearly postulates that the petitioners aforesaid writ petition was not entertained by this court as the petitioner was relegated to the alternative remedy of appeal to the first respondent Director and two weeks time was given to the petitioner to approach the appellate authority during which time ad interim relief was extended Thereafter the petitioner preferred the statutory appeal provided under sec. 27(5) of the Market Act before the first respondent on 21/07/1981 i.e. within 8 days of the withdrawal of his petition before this court.

(3.) When this appeal came up for hearing before the first respondent an objection was raised on behalf of the Market Committee that the appeal was barred by limitation. On behalf of the petitioner it was contended before the first respondent Director that he was allthroughout agitating the same question about the legality of the order of the Market Committee refusing to grant the requisite licence to him for the year 1980 by preferring Writ Petition in the High Court and when the High Court refused to entertain the petition on the ground that the petitioner had alternative remedy of appeal he preferred appeal before the Respondent No. 1 Director and consequently no question of limitation would arise. But in any case if appeal is found to be barred by limitation the delay deserved to be condoned in the interest of justice. A contention was raised on behalf of the Market Committee to the effect that sec. 5 of the Indian Limitation Act would not apply to the proceedings before the first Respondent Director and hence the first respondent bad no jurisdiction to condone the delay. This contention was repelled by the first respondent by holding that sec. 5 of the Indian Limitation Act would be applicable on account of the fact that sec. 29(2) of the Limitation Act 1963 and the provisions of secs. 4 to 24 the Limitation Act would apply to any special law which provides a period of limitation different from the one that was provided in the Limitation Act and as Gujarat Agricultural Produce Market Act was providing for a different period of limitation it was a special law within the meaning of sec. 29 of the Act and consequently the provisions of sec. 5 of the Limitation Act did apply but thereafter the first respondent curiously held that the petitioner had made out no case whatsoever for condoning the delay and therefore dismissed the appeal as time barred. The aforesaid order of the first respondent is dated 31/08/19031 It has brought the dis-satisfied petitioner to this court by way of the present proceedings under Article 226 of the Constitution of India for issuance of a suitable writ for quashing and setting aside the impugned appellate order of the Director at Annexure B to the petition. The petitioner has also prayed for a writ of mandamus directing the respondent No. 2 Market Committee to grant licence to the petitioner for the year 1980-81 But it is obvious that if the petitioner succeeds in getting his first prayer regarding quashing of the impugned Appellate order Annexure `B granted the appeal will have to be sent back to the first respondent for decision on merits. Consequently the said decision of the Appellate authority cannot be pre-empted by seeking the grant of any final relief at this stage as prayed for in prayer B of the petition. I will have therefore to consider the main and the only relevant question which is posed for my consideration in the present proceeding as to whether the appeal preferred before the first respondent by the petitioner could have been dismissed as time barred or was required to be decided on merits.