VIJAY SEN SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE dispute in this letters patent appeal from the judgment and order of a learned Single Judge [reported in 2002(1) PLJR 264] of this Court on a writ petition relates to grant of licence for cattle fair/mela at village Kalyanpur in the district of Kaimur (Bhabua). The parties to the dispute are the appellant, who is proprietor of Vijay Virat Pashu Mela and respondent no. 15 Pushp Kumar Singh @ Pushp Kumar, proprietor of Madhuban Virat Pashu Mela Akorhi (Durgawati) (hereinafter referred to as 'the respondent '). Both of them were granted licences for holding cattle fair. While the appellant 'slicence was for holding the fair on Fridays, Saturdays and Sundays of the week, the respondent 'slicence was for Mondays, Tuesdays and Wednesdays, besides special occasions. The dispute arose when complaint was made to the effect that the appellant was holding the fair on all the seven days of the week and within 3 kms. of the place where the respondent was holding the fair. This led initially to suspension and then cancellation of the appellant 'slicence giving rise to dispute which, I am afraid, is not going to die with this order. The licences of the kind are granted for one year -from April to March and, therefore, in a sense on the expiry of the particular year any dispute arising out of the grant or cancellation of licence should come to an end, whereafter the parties interested have to apply for fresh licence and the matter thus has to be considered de novo. In the instant case had it been so simple, this appeal could have been easily disposed of as having become infructuous. The case was finally heard on 22.3.2002 followed by holidays upto 31.3.2002, that is. the last day of the licence year. However, disposal of the case as being infructuous may not be fair to the parties in view of different orders passed in the past including the two orders which are subject matter of this appeal. It therefore seems desirable to pass a speaking order. As rightly observed by the learned Single Judge, dispute involving fixed tenure, such as, grant of yearly licence should in public interest be decided by the court even if no relief can be granted to the parties, if the dispute is likely to recur in future.

(2.) THE factual background of the case may be noticed first. But before that it would be appropriate to refer to some of the provisions of the Bihar Agricultural Produce Market Act. 1960 (in short the 'Act ') and the Agricultural Produce Market Rules, 1975 (in short 'the Rules ') under which the licence in question has been granted. The Act has been enacted to provide for better regulation of buying and selling of agricultural produce and the establishment of markets for agricultural produce and for matters connected therewith. Section 3 of the Act provides that the State Government may by notification declare its intention of regulating the purchase, sale, storage and processing of such agricultural produce and in such areas as may be notified in the notification. Under section 4 of the Act, upon the expiration of the period specified in such notification and after considering objections and suggestions as may be received by it the State Government may declare the area specified in the said notification or any portion thereof to be a market area for the purpose of the Act in respect of all or any kind of agricultural produce specified in the notification. On or after the date of publication of the said notification or from any date as may be specified therein, no municipality or other legal authority or other person, notwithstanding anything contained in law for the time being in force, shall within the market area or within a distance thereof to be notified in the official gazette, set up, establish or continue, or allowed to be set up, established or continued any place for the purchase, sale, storage or processing of any agricultural produce so notified except in accordance with the provisions of the Act, the Rules and the Bye -laws framed thereunder. Rule 129 of the Rules lays down that no person or authority shall within the market area or within the distance notified under section 4(2) set up, establish or continue any place for the purchase, sale, storage etc. of the notified agricultural produce except in accordance with the terms and conditions of the licence in form XX issued in that behalf by the Market Committee. I shall come back to Rule 129 again and notice its relevant provisions later in this judgment. At this stage, while referring to the statutory provisions, it may be mentioned that section 5 of the Act provides for establishment of market yard in the market area constituted under section 4 of the Act, while section 6 provides for establishment of Market Committee for every market area.

(3.) THE appellant challenged the said order of cancellation before the Managing Director of the Marketing Board in appeal which was dismissed on 16.11.99 and the order of cancellation was thus upheld. The appellant thereafter filed a writ petition, CWJC No. 11448/99 before this Court which was dismissed by a learned Single Judge. In letters patent appeal (LPA No. 43/2000), however, on 1.2.2000 the said orders dated 7.8.99 and 16.11.99 were set aside and the matter was remitted to the Market Committee for passing a fresh order. In passing the said order the Division Bench took into account the submission of the appellant that the licence had been cancelled on the basis of a report of the Executive Magistrate even though the report related to another fair. The appellant filed representation before the Market Committee which was rejected on 7.3.2000. The Secretary, Market Committee noted that the aforesaid report of the Executive Magistrate related to the appellant 'sfair. However, as the year 1999 -2000 was about to expire, on 11.3.2000 the appellant applied for fresh licence for the next year i.e. 2000 -2001 but no order was passed in the matter. The appellant was informed by the Market Secretary that he had sought guidance from the Marketing Board. The appellant approached this Court in CWJC No. 4060/ 2000 which was dismissed on 14.7.2000. The appellant, however, again succeeded before the Division Bench in LPA No. 1023/ 2000. While setting aside the order of learned Single Judge and holding that the appellant was not guilty of suppressing any material fact in the writ petition and thus the petition could not be dismissed on that ground, the Division Bench observed that the power to grant licence under Rule 129 of the Rules is vested in the Market Committee and once the appellant had applied before the Market Committee it should have decided the matter and should not have sought any persmission from the Marketing Board before taking final decision in the matter, placing reliance on decision of the Supreme Court in Commissioner of Police, Bombay V/s. Gordhandas, AIR 1952 Supreme Court 16. Accordingly, on 21.9.2000 while allowing the appeal the Court directed the concerned respondents to consider the question relating to grant of licence in terms of Rule 129 of the Rules within the time specified in the order. The Court clarified that it was not expressing any opinion on the merit of the claim of the appellant nor on the merit of the order dated 7.3.2000 by which Secretary, Market Committee had reiterated the earlier order of cancellation of licence for the year 1999 - 2000. Pursuant to the said direction of this Court, the Secretary, Market Committee considered the case of the appellant but refused to grant licence by order dated 21.9.2000. Against that order the appellant preferred appeal before the Managing Director of the Marketing Board. On 18.7.2001 the appeal was allowed with a direction to the Secretary, Market Committee to consider the matter afresh in terms of Rule 129 (3) (iii) of the Rules. On 31.7.2001 the licence was granted by the Market Committee for the year 2001 -2002. The order of the Managing Director dated 18.7.2001 and the grant of licence dated 31.7.2001 were challenged by the respondent CWJC No. 10390/2001 (giving rise to this appeal) which was allowed on 7.12.2001 with a direction for fresh consideration. Later, on application for modification of the order, registered as MJC No. 3162/2001, the learned Single Judge also set aside the impugned licence dated 31.7.2001 on 4.1.2002. The present appeal was filed on 9.1.2002 challenging the order dated 7.12.2001. Later an amendment petition was filed challenging the second order dated 4.1.2002.