VIPUL MANHARLAL SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioners, who are traders trading in finished agricultural products, viz. food -grains and pulses on wholesale basis, having their place of business located in the area, known as Kalupur Chokhabazar, situated at Jamalpur, have filed this writ -petition challenging the provisions under Sections 6(2), 8, 27(1), 28(1) and 28(2)(c) of the Gujarat Agricultural Produce Markets Act, 1963 and Rules 48, 56 and 57 of the Gujarat Agricultural Produce Market Rules, 1965. The petitioners have also challenged the public notice dated 6th January, 2016 and letter dated 1st March, 2016, issued by the 2nd respondent as well as the circulars dated 18.2.2016 and 29.2.2016, issued by 3rd respondent, by seeking declaration that they are ultra vires the Constitution of India.

(2.) The State of Gujarat has enacted Gujarat Agricultural Produce Markets Act, 1963 to consolidate and amend the law relating to regulation of buying and selling of agricultural produce and the establishment of markets for agricultural produce in the State of Gujarat. The said Act repealed the erstwhile Bombay Agricultural Produce Markets Act, 1939 and Saurashtra Agricultural Produce Market Act, 1955. By virtue of provision under Section 64(2)(i) of the Gujarat Agricultural Produce Markets Act, 1963, it has saved market area, principal market yard, sub -market yard and market proper declared under the repealed Acts.

(3.) Affidavit in reply has been filed by the Secretary of the market committee on behalf of 2nd respondent. While denying various allegations made by the petitioners, it is stated in the affidavit in reply that the petitioners have not disclosed that they are members of Kalupur Anaj Vepari Mahajan which earlier filed Special Civil Application No.8944 of 2015 challenging the power of market committee to charge market cess. It is stated that no stay has been granted in the said writ -petition. By filing Civil Application No. 331 of 2015, the said petitioners sought to restrain respondent no.2 market committee from taking any coercive steps for recovery of market fee. It is stated that without disclosing such facts, though the petitioners are part of the said writ -petition, the present writ -petition is filed. Further, reference is made to Special Civil Application No. 18832 of 2011 filed by Kalupur Anaj Vepari Mahajan and it is stated that the same was dismissed and the said order dismissing the said writ - petition has been confirmed in Letters Patent Appeal No. 1232 of 2011 by Division Bench of this Court. It is further stated in the affidavit in reply that the respondent no.2 market committee has been established in the year 1948 and Kalupur area is within the market area of 2nd respondent and at that relevant time, pulses, oilseeds, grains were not covered under the Schedule and only vegetables and fruits were included in the Schedule. As such, there was no occasion for respondent no.2 to regulate Kalupur market for grains, oilseeds and for the first time in the year 1993, schedules were amended by including the grains, pulses and oilseeds in the Schedule of the 2nd respondent market committee. Thereafter, the office bearers of respondent no.2 market committee had insisted the traders to take licence, but at that relevant time, traders in the Kalupur market requested that wherever the market committee will construct a market they would sit and take license. It is further stated in the affidavit in reply that the then office bearers of respondent no.2 market committee did not insist the traders relying upon the assurance of the traders in Kalupur market. Subsequently, land was purchased in the year 1998 and market had been constructed in the year 2007 at Jetalpur and open invitation had been given in the market, but unfortunately, few traders from Kalupur Anaj Vepari Mahajan accepted the offer and took shops/godowns at Jetalpur. It is further averred in the affidavit in reply that even the President of Kalupur Anaj Vepari Mahajan had also taken one shop in Jetalpur market yard which has been transferred to someone else and he did not carry on business there. Respondent no.2 market committee took control of the grains, oilseeds etc.. It is stated in the affidavit in reply that the merchants were charged 2% commission instead of 1% and were paid less price and that too after 15 days and some more time also. After the respondent no.2 market committee started functioning, auctions were started and commission had been regulated to 1% and payment was made immediately on delivery so that concept of open auction, correct weighment and cash payment had been started in the market area. It is further contended that Kalupur market is also interested market which is required to be regulated. It is further stated that in the year 2009, respondent no.2 market committee insisted on the traders trading in Kalupur market for taking licence. Against such action, Special Civil Application No. 18832 of 2011 was filed, which was dismissed and the said dismissal order was also confirmed by a Division Bench of this Court in the Letters Patent Appeal. When steps were being taken to collect the market fee by the respondent no.2 market committee, Special Civil Application No. 8944 of 2015 was filed and stay was also sought against recovery of market fees. Earlier, revision application was preferred before the government and ex -parte stay was granted, which was vacated subsequently. It is further pleaded that in any event, the petitioners cannot claim immunity under the Act as the petitioners are trading within the market area of 2nd respondent. With regard to the services extended by respondent no.2, in the affidavit in reply, it is specifically pleaded that respondent no.2 market committee is providing services. In the case of unnatural death of any licensed trader, labourer, agriculturist, they are to be covered as traders holding license from the respondent no.2 market committee. Respondent no.2 has also provided services for social work, services at the time of natural calamity, towards education and other services. Respondent no.2 market committee is putting up a project worth Rs. 900 crores in the market area where 5 lakh sq.yds of land has been purchased on Sardar Patel Ring Road where three markets ie. Vegetable, Fruits and Grains are to be constructed with facilities of godown, cold storage etc. Even cleaning and packing facilities are also provided in the market area. It is further pleaded in the affidavit in reply that when the merchants of the market yard were agitating against the market fees, it was clearly pointed out to traders by respondent no.2 that in near future Ahmedabad city is to be declared as Metro city and AUDA has also framed a policy to shift the wholesale market from the city to the place outside the city and the ownership of the Kalupur market is to be of the Ahmedabad Municipal Corporation It is pleaded that the traders working in Kalupur market shall be entitled to get a shop -cum -godown and other facilities at a reasonable price. It is averred that even now the market committee is prepared to provide facility of security in Kalupur market as well as other facilities for the traders in the area. But in any event, the market committee is collecting market cess and giving services as provided under the Act in the entire area and individual trader cannot claim a specific service from the market committee. Reference is also made in the affidavit in reply that in the earlier Special Civil Application No. 8944 of 2015 filed my the traders of Kalupur market, affidavit in reply is filed by the market committee. The said matter went up to the Hon'ble Supreme Court and the provisions of the Act challenged are held to be intra vires. While referring to various circulars issued for grant of license and collection of market fee, 2nd respondent prayed for dismissal of the petition.