SUNDERLAL Vs. STATE

JUDGEMENT

(1.) BY this application under Article 226 of the Constitution of India, the Petitioners question the validity of a notification issued by the State Government on 5th April 1962 (published in the Gazette dated 27th April 1962) withdrawing an earlier notification issued on 16th November 1949 declaring the market at village Tendumundi a public market under Section 116(1) of the Central Provinces and Berar Local Government Act, 1948 (hereinafter referred to as the Act). The Petitioner Sunderlal is the owner of a part of the land of the market area. The other Petitioners, who are shopkeepers, had their stalls in the market. Their prayer is that a writ of certiorari be issued for quashing the notification dated the 5th April 1962.

(2.) UNDER Section 49(1) (VII) of the Act, the control and administration of, and the responsibility for the establishment and management of, markets is with the Janpada Sabha. Section 116 (1) gives to the government the power to declare any place within the Janpada area as a public maket. The power is exercisable on a representation made by the Sabha to that effect. On 16th November 1949, the Government issued a notification under Section 116 (I) and (2) of the Act declaring the market at village Tendumundi within the Janjgir Janpada area in Bilaspur district to be a public market. The Government had also issued a notification on 28th September 1949 declaring the market area at Ghugri, a village adjoining Tendumundi, to be a public market under Section 116(1). This market was under the control and administration of the Janpada Sabha of Raigarh. In 1952 both Ghugri and Tendumundi village came to be included in one and the same Tehsil, namely Tehsil Sakti, and were thus placed under the local administration of the Janpada Sabha, Sakti. Both these markets continued to function till the impugned notification was issued. It appears that early in 1961 some persons owning the land on which Tendumundi market was located protested, by serving notices on the Janpada Sabha, against the use of their land as market area without payment of any compensation. Thereupon the Chief Executive Officer of the Janpada Sabha, Sakti, made a recommendation to the Collector, Bilaspur, that as there was a notified public market at Ghugri, adjacent to Tendumundi market, and as Ghugri market area was more suitable and convenient for the holding of a market than the Tendumundi market area, it was not necessary to incur any expenditure in the acquisition of land belonging to private persons on which the Tendumundi market was located and that the Tendumundi market should be disestablished. This recommendation of the Chief Executive Officer was approved by the Collector who then moved the Government for the issue of a notification disestablishing the Tendumundi market. In consequence, the Government issued the impugned notification of 5th April 1962 which is as follows -

(3.) IN our judgment, the Petitioner's contention that the notification dated the 5th April 1652 disestablishing the Tendumundi market is invalid must be upheld. It is obvious from the text of the notification that the Government purported to issue it in the exercise of its powers under Section 161 of the Act. But that provision does not give to the Government the power to cancel a notification issued in the exercise of any of the provisions of the Act. Section 161 runs as follows -