Gujarat High Court
Vikasbhai Bharatbhai Jadav vs State Of Gujarat on 10 May, 2019
Author: Sonia Gokani
Bench: Sonia Gokani
R/SCR.A/3773/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 3773 of 2019
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VIKASBHAI BHARATBHAI JADAV Versus STATE OF GUJARAT ========================================================== Appearance:
MS. KRUTI M SHAH(2428) for the Applicant(s) No. 1,2,3,4,5,6 JIGAR J PATEL(7971) for the Respondent(s) No. 3 MR ADIL R MIRZA(2488) for the Respondent(s) No. 6 MR. MAULIK M SONI(7249) for the Respondent(s) No. 2 MR.DARSHAN A. DAVE(7921) for the Respondent(s) No. 4 NOTICE SERVED(4) for the Respondent(s) No. 5,7,8 PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1 UNSERVED WANT OF TIM(31) for the Respondent(s) No. 9 ========================================================== CORAM: HONOURABLE MS JUSTICE SONIA GOKANI Date : 10/05/2019 ORAL OPERATIVE ORDER
1. The petitioners are before this Court, challenging the order, Dated: 08.03.2019, passed by the learned 2nd Addl. Sessions Judge, Valsad, below Exhibit-23 in Criminal Revision Application No.14 of 2019, whereby, it confirmed the order passed by respondent No.9, Dated: 25.01.2019, in No. MAG/C.R.P.C.-133/Reg. No. 02/2018, prohibiting the trade activities at the plot in question.
2. The petitioners are the members of the trade association, which is involved in marketing and selling of mangoes and which is organizing seasonal market for trade in mangoes for last more than three decades on the said plot in question. Respondent No.3 is the owner of the said plot and the petitioners have taken the said plot on lease from respondent No.3 for organizing the seasonal market.
It is their say that the seasonal market is being organized for the betterment of the mango traders all Page 1 of 15 Downloaded on : Fri Jun 28 04:30:19 IST 2019 R/SCR.A/3773/2019 ORDER over the country.
2.1 On 25.01.2019, upon a complaint made by respondent No.2, respondent No.9, herein, passed an order under Sections 133, 138 and 141 of the Code of Criminal Procedure, 1973, and thereby, prohibited the trading or any other activity, related to the trade, on the said plot. It is the grievance on the part of the petitioners that respondent No.9 passed the aforesaid order, without giving an opportunity of hearing to them. They, therefore, approached the learned 2nd Addl. Sessions Judge, Valsad, against the said order, who, vide his order dated 08.03.2019, passed below Exhibit-23 in Criminal Revision Application No.14 of 2019, confirmed the order passed by respondent No.9. Hence, they are before this Court by way of the present petition.
2.2 In this matter, this Court had issued notice on 02.04.2019, making the same returnable on 04.04.2019. On due service of notice, the other side appeared. The pleadings of both the sides are over, now.
3. Affidavit-in-reply of respondent No.4 has come on record, the details of which may not be necessary to go into. However, apt it would be to refer to their contention that the traders are increasing day by day due to increase in production of mangoes in Dharampur and due to that the traffic problem has arisen. On account of the same, the Page 2 of 15 Downloaded on : Fri Jun 28 04:30:19 IST 2019 R/SCR.A/3773/2019 ORDER residents of Darbargadh area could not get access to their residences. This obstruction to the residents of the Darbargadh area and heavy traffic, led the APMC, Dharampur, to provide alternative accommodation to such traders at Village: Bamti, Taluka: Dharampur, District: Valsad, which is situated at a distance of two kilometers from Dharampur. According to him, the traders, who have moved to the new market place, have been able to carry out business, without any traffic issues. There is also provisions made for electricity, water, parking, toilet etc. The new market is situated near the Dharampur village and on Chikhli highway. This place is very convenient to all the traders, as huge trucks and vehicles are required to load and unload the mango boxes.
4. According to the petitioner, the amount charged by respondent No.4 is Rs.20,000/- per stall for one seasonal year, whereas, the amount charged by respondent No.3, for the same period, is Rs.10,000/- per stall.
5. There are other details also, which may not be necessary to be gone into.
6. Affidavit-in-reply of Respondent No.9, Dated: 16.04.2019, also has been brought on record, wherein, he has stated that he received an application from one Shri Sureshbhai Nanubhai Parera, complaining about the traffic conestion and hardships caused on account of the market being set-up at Page 3 of 15 Downloaded on : Fri Jun 28 04:30:19 IST 2019 R/SCR.A/3773/2019 ORDER Darbargadh bazar. Therefore, the proceedings under Sections 133 and 138 of the Code were initiated. It was submitted in the said application that during the summer season of mangoes, especially, from March to June, there is a constant traffic congestion on account of trucks, tempos, tractors etc.. It is, further, stated that, since, the heavy vehicles are plied, the traffic becomes so congested that it becomes difficult even for an ambulance to pass. The land, from which the petitioners were carrying out their trading activities, is a private property, which belongs to the erstwhile queen Divyadevi, who had rented the same to the members of the trade association for carrying out their activity of selling mangoes on a fixed periodical rent. There was a notification issued by the Addl. District Magisterial, Valsad, on 20.09.2005, whereby, from the area commencing from Tran Darwaja, Garden Road, Kailash Road, Ozarpada Road, a restriction was put on plying of heavy vehicles. It is also stated that a detailed report also had been called for from various authorities, on the basis of which respondent No.9 passed the said order. What weighed with him was the traffic congestion, on the roads leading to the Darbargadh compound. Essentially, because the land leading to the said place is very narrow. On account of that, school buses were not in a position to enter the said area and even ambulance also could not enter the same. Further, the constant traffic was also causing noise pollution to the local residents. The waste left behind was also leading to pollution.
Page 4 of 15 Downloaded on : Fri Jun 28 04:30:19 IST 2019R/SCR.A/3773/2019 ORDER Therefore, the reports of various authorities were also taken into consideration before passing the order.
6.1 According to respondent No.9, the petitioners also have been heard. It is also stated that others have already shifted and it is only a few, who have not shifted to the new market place and have made a grievance.
7. Additional affidavit also has been filed by respondent No.9, where also, it has been clearly denied and refuted that there was an attempt to favour the private APMC.
7.1 So far as the private dispute between the APMC and the traders is concerned, respondent No.9 chose not to enter into that arena. According to him, this Can be worked out by themselves. The decision was actuated by the issue of traffic and also other considerations, which he has sated in his first affidavit. It is also his say that Haat Bazar, which is going on for the last so many years is a weekly market, where, small traders sell grocery, clothes and other daily use items, which does not include the plying of any vehicle. It is, further, urged that Haat Market is permitted from 06:00 a.m. to 07:00 p.m. only. It is, further, urged as under at Paragraph-13:
"13. I further say and submit that as far as the strategic location of Darbargadh Page 5 of 15 Downloaded on : Fri Jun 28 04:30:19 IST 2019 R/SCR.A/3773/2019 ORDER compound is concerned, the same is surrounded by residential area. I say and submit that the width of the road adjoining Darbargadh compound are as per the map whereby the roads are classified into A,B, C,D, E. The respective width are A =12 mtr., B =12 mtr., C =12 mtr., D =12 mtr., E =12 mtr., respectively. I say and submit that GDCR, 2017, further mandates as per minimum road width of 30 mtr. For carrying out mercantile activity. A copy of the relevant abstract of GDCR, 2017 is annexed herewith and marked as ANNEXURE R VII. I say and submit that apart from this, tenure of Dharampur Land as per the City Survey Property Card is that of gamtal wherein also as per the GDCR, the wholesale market cannot be permitted. I further say and submit that as per the notification which is issued by the Urban Development and Urban Housing Department dated 12.10.2017, the classification of the development authorities and urban lands are made from category D-1 to D-9. I say and submit that as far as the Dharampur is concerned, the same falls within the classification D-7-B. A copy of the notification is annexed herewith and marked as ANNEXURE R VIII. Therefore, as far as the mercantile activity are concerned, as per the GDCR, minimum width of road is required is that of 30 mtr. I say and submit that the aforesaid details are provided with a view to give the correct picture as far as the strategic location and the relevant provisions which govern the land in question. I say and submit that the authorities are required to bring to the notice of the Hon'ble Court true and correct facts and therefore, the aforesaid aspects are brought to the notice of the Hon'ble Court."
8. The affidavit of Shri Yasin Allarakha Baloch, Director, Agricultural Marketing and Rural Page 6 of 15 Downloaded on : Fri Jun 28 04:30:19 IST 2019 R/SCR.A/3773/2019 ORDER Finance, Gandhinagar, also has been brought on record, pursuant to the order of this Court dated 30.04.2019, where, certain details were directed to be furnished, by the Sr. Officer, who is aware of the entire issue. and therefore, the Director chose to file his affidavit. It is submitted that the licensing provisions with respect to establishment of a private market, E-market etc. are contemplated under Section 31(C) of the Gujarat Agricultural Produce Markets Act, 1963. It is emphasized that, earlier, Section 31(2) (a)(ii) included the words, 'Trade of fruits and vegetables' in the statue. However, by way of notification dated 10.04.2015, an amendment was brought in the Gujarat Act 14 of 2015, whereby, there were in all 13 amendments brought into the aforesaid Act in the form of Gujarat Agricultural Produce Market Committee (Amendment) Act, 2015, which, now, makes amply clear that so far as establishment of the private market or APMC is concerned, after the amendment of 2015, there is no requirement of obtaining any license, since, the words 'trade of fruits and vegetables' have been deleted from sub-clause (ii) of Section 31(C) of the said Act. In other words, for the purpose of selling of fruits and vegetables in the private market, no license shall be required to be obtained by any person, who is desirous of establishing a private market or purchase agricultural produce from the farmers. For other agricultural produce, for establishing a private market, license would be required to be obtained from the Director of the Page 7 of 15 Downloaded on : Fri Jun 28 04:30:19 IST 2019 R/SCR.A/3773/2019 ORDER Marketing and Rural Finance. It is, further, stated that as far as private APMC, which is established and governed is concerned, the Director of Agricultural Marketing and Rural Finance, Gujarat State, has issued the license for the private market Maa Sharda Creators LLP, Dharampur, for establishment of a private market for all commodities at Bamti, which is at a distance of 5 kms. From APMC, Dharampur. It is urged that the license is issued on certain conditions, which the licensee would require to adhere to. So far as the regular local APMCs are concerned, the Director of Agricultural Marketing and Rural Finance is the regulating authority, whereas, in case of the private market or private APMCs, he is the monitoring as well as the licensing authority.
9. This Court after hearing both the sides exclusively, issued rule, as the matter would require consideration. However, considering the fact that season of mango would only lasts from April to June and the petitioners, who are before this Court, are the traders, operating for a season, they may miss out the current season, on account of the pendency of this matter, as there are various legal and factual issues to be adjudicated by this Court, and therefore, it was deemed appropriate to pass an interim order at the request of the petitioners.
9.1 The petitioners, who were six in numbers originally, later on moved an application being Criminal Misc. Application No. 1/2019 in this matter, Page 8 of 15 Downloaded on : Fri Jun 28 04:30:19 IST 2019 R/SCR.A/3773/2019 ORDER whereby, 64 more farmers have been permitted to be impleaded as party petitioners. These are the persons, who have already leased the place at Darbargadh and they have been operating their trade from there, whereas, rest of the members of the APMC have shifted to the new market place at Bamti village, where, the present petitioners have chosen not to shift.
9.2 Various averments, contentions and allegations and counter-allegations with regard to shifting of market place to village Bamti have been pressed into service. However, this Court would chose not to enter into the same, at this juncture. What has emerged on record, as is borne out from the affidavit of the Director, Agricultural Marketing and Rural Finance, Gandhinagar, is that the private APMC is permitted to Maa Sharda Creators LLP, Dharampur, for establishing a private market for all the commodities at village Bamti, Taluka: Dharampur. It clearly and unequivocally has emerged on record that pursuant to the amendment, by way of notification dated 10.04.2015, in Section 31(C) of the said Act, whereby, it was held that there is no requirement for obtaining the license for trading in the fruits and vegetables. Even for establishing a private market for purchasing the agricultural products from the farmers directly, so far as fruits and vegetables are concerned, no license shall be necessary. It, thus, clearly comes on record that any private market also can exist for the purpose of sale Page 9 of 15 Downloaded on : Fri Jun 28 04:30:19 IST 2019 R/SCR.A/3773/2019 ORDER of fruits and vegetables and those persons, who are desirous of getting the agricultural products from the farmers also can get them. Therefore, any insistence on the part of the APMC to conduct business at one particular place for regulating the trade would not only be not necessary to consider statutorily, such insistence is unsustainable.
9.3 The question, therefore, is as to whether to permit the present petitioners to continue their trading activity from Darbargadh, more particularly, when there is an order of respondent No.9 under Section 133 of the Code in wake of the complaints made by the local residents. The challenge made to such order before the revisional authority failed on technical grounds. However, before this Court, the substantive challenge in the petition and also the challenge to the order of shifting of market is at large, where issues of breach of audi alteram partem and breach of mandatory requirements before passing order under Section 133 of the Code are yet to be adjudicated. This Court is prima facie of the opinion that request to continue interim arrangement for continuing the trading activity should be permitted at Darbargadh, where lease amount is already paid and when sale of fruit and vegetables do not require any regulation or permission and private market is also permissible ensuring due precaution. In wake of the same, this Court needed to ascertain from the administration, and therefore, the learned APP at the behest of the Court obtained necessary instructions from respondent No.9 in relation to his stop gap Page 10 of 15 Downloaded on : Fri Jun 28 04:30:19 IST 2019 R/SCR.A/3773/2019 ORDER arrangement, as was requested for by the petitioners, on the ground that the petitioners have already paid a sum of Rs.17.25/- lakh towards lease to respondent No.3 and in the midst of the season, when there is an attempt to shift them after having paid this rent, it is extremely cumbersome for them to move to a new market place at Bamti, where, there is reluctance on the part of the petitioners to join, mainly on the ground that the said private plot belongs to Maa Sharda Creators LLP, Dharampur, where, son of the Chairman of the APMC is one of the partners. The considerable number of traders having shifted to the new market place at Bamti and only a few now are remaining and now, there being the question of only two months for the season of the mango, a request is made to allow them to continue, in the meantime.
10. This, of course, has been strongly resisted by the learned Advocate representing APMC on the ground of necessity of regulating the trade and the traffic both and also on the ground that the new market has been very well established, where, others are already operating peacefully and unhampered.
11. On seeking necessary instructions from the District Magistrate, learned APP has urged that two alternatives / options have been given, as directed by this Court, for making a temporary arrangement for the mango market for the season of 2019. After having discussion with the SDM and the PSI concerned, learned APP has urged that for minimizing the public Page 11 of 15 Downloaded on : Fri Jun 28 04:30:19 IST 2019 R/SCR.A/3773/2019 ORDER nuisance, it is urged that only petitioners / traders can be permitted to continue at Darbargadh with small vehicles during the fixed day time and the heavy vehicles can be permitted only for a limited time period at night from 08:00 p.m. to 06:00 a.m.. Apart from that they shall also have to install CCTV camera in all corners of the Darbrgadh including at the main gates to monitor the law and order situation. They also shall have to keep sufficient numbers of fire extinguishers and cleanliness shall be scrupulously maintained.
12. Option was given of the government vacant land, situated at Darothi, which is at a distance of about one kilometer from Darbargadh. Later on, however, the second option was withdrawn by the State on the ground that private parties cannot be given the said land, for the same being the government land, and therefore, the only option left is option one, where also, learned APP, on a detailed discussion with the SDM concerned, has urged that the heavy vehicles may not be permitted all throughout, as they may cause nuisance to the local residents so also may cause serious traffic issues.
13. Learned Advocate, Ms. Shah, after taking due instructions from the petitioners, who are also present before this Court, has urged that the petitioners shall not claim any right merely because in this season they being permitted to operate from Darbargadh area. She also, further, has ensured that Page 12 of 15 Downloaded on : Fri Jun 28 04:30:19 IST 2019 R/SCR.A/3773/2019 ORDER all the conditions that may be imposed by the Court shall be scrupulously followed and the undertaking to that effect shall be filed. She, therefore, urged that the subject to the final outcome of this petition, this interim arrangement may be permitted.
13.1 As sounded herein above, prima facie, this Court is of the opinion that till the vital points raised by the petitioners are adjudicated in the middle of the mango season, balance needs to be struck, whereby, the petitioners can be permitted to trade by ensuring that the residents in the vicinity are not put to any jeopardy as detailed hereinbelow.
14. This Court notices that, now, out of total 100 traders, only 75 traders remain, and as they have already taken the substantial area of Darbar Gadh on lease, they can be permitted to continue to operate from this area, i.e. upto 31st July, 2019, at least, for this season. The same shall be done on the following conditions:
(i)The petitioners are permitted to operate from Darbar Gadh for the current season only, i.e. from March, 2019 to July, 2019 only;
(ii) During the day time, i.e. from
12:00 p.m. to 06:00 p.m., only small
vehicles (Piaggio) shall be allowed to
operate, whereas, the heavy vehicles, i.e. Page 13 of 15 Downloaded on : Fri Jun 28 04:30:19 IST 2019 R/SCR.A/3773/2019 ORDER Eicher tempos, shall operate from 09:00 p.m. to 01:00 a.m. only;
(iii) CCTV cameras shall be installed in all corners of the leased area so also on the main gates for monitoring the law and order situation;
(iv) Fire extinguisher shall also be kept present in sufficient numbers for attending to such an eventuality;
(v)the petitioners shall ensure that no difficulty is caused as far as possible to the local residents due to their trade;
(vi) the petitioners shall also see to it that no inconvenience is caused due to garbage and all possible attempts shall be made for its collection and smooth disposal;
(vii) The petitioners shall file a detailed undertaking to this effect before the authority concerned;
(viii) Both the sides have agreed that that this arrangement shall not act as a precedent in the future.
15. The further hearing shall take place on 27th Page 14 of 15 Downloaded on : Fri Jun 28 04:30:19 IST 2019 R/SCR.A/3773/2019 ORDER June, 2019. In the event of any difficulty, it shall be open to the either side to approach this Court.
16. Let a copy of this order be given to the learned APP for her onward communication and compliance."
Direct service is permitted.
(SONIA GOKANI, J) UMESH/-
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