BRIJESH KUMAR UPADHYAY Vs. STATE OF U P

JUDGEMENT

(1.) By this writ petition, the Petitioners have challenged the alleged resolution dated 5th March, 2011 and the order dated 19th April, 2011 passed by the Upper Mukhya Adhikari, District Firozabad, Respondent No. 3 herein, refusing to renew the licence of the Petitioners, and further prayed for a direction upon the Respondent authorities to renew the licence of the Petitioners for the year 2011-12 in accordance with law.

(2.) Petitioners' contention is that they are running a cattle market over their bhumidhari land, being Plot No. 834 situated in Village Pachokhar, District Firozabad, on Friday of each week since 1957. In the year 1977, the concerned Gaon Sabha passed a resolution giving itself the sole right to hold the cattle market in the said area on Friday and on the basis thereof filed a suit, being Original Suit No. 239 of 1977, before the appropriate 1Court for permanent injunction against the Petitioners from holding the cattle market in the said area. Such suit was dismissed by the trial Court by its judgment and order dated 23rd February, 1985 while the first appeal filed by the Gaon Sabha against such judgment was allowed by judgment and order dated 25th January, 1991. Against such judgment, the father of the Petitioners filed a second appeal, being Second Appeal No. 234 of 1991 (Laxmi Narain Upadhyay and Ors. v. Gram Sabha Pachokra), which was allowed by this Court by judgment and order dated 11th March, 1998 and the suit was dismissed by categorically recording therein that right to hold the cattle market on his own land is a fundamental right, which cannot be taken away. According to the Petitioners, initially there was no requirement of obtaining licence for holding the cattle market, but since the year 1991-92 the question of obtaining licence from the appropriate Gaon Sabha arose, and the Petitioners were granted licence to hold the cattle market from 1991-92 till 2010-11. For the year 2011-12, on 23rd February, 2011 the Petitioners applied for renewal of licence alongwith no objection certificate of the Police Department, site plan, etc.. However, since no action was taken on such application, the Petitioners made repeated representations. But when even then no heed was paid by the Respondent authorities on the application of the Petitioners, the Petitioners filed a writ petition, being Civil Misc. Writ Petition No. 20696 of 2011 (Brijesh Kumar Upadhyay and Anr. v. State of U.P. and Ors.), to get an order in the nature of direction upon the authorities to decide the application for renewal. In such writ petition, on 13th April, 2011 a Division Bench of this Court was pleased to direct the counsel for the Respondents to obtain instruction. Ultimately, on 19th April, 2011 the Respondent No. 3 passed an order saying that as per the resolution of the Respondent No. 2-Zila Panchayat and the Respondent No. 4-Gaon Sabha, they will hold the cattle market jointly on Friday in the locality in order to increase public revenue, therefore, licence in favour of the Petitioners cannot be renewed.

(3.) Against this background, this writ petition has been filed by saying that such type of order passed by the authorities is in violation of fundamental right of the Petitioners guaranteed under Article 19(1)(g) of the Constitution of India.