Bombay High Court
B. Shantilal & Co. And Anr. vs State Of Maharashtra And Ors. on 6 October, 1988
Equivalent citations: AIR1989BOM226, 1988(4)BOMCR526
ORDER
1. It is a human instinct to resist any change. The resistance is considerably strong when it comes to change of place of residence or business. This petition which is filed in a representative capacity sets up one such resistance on the part of the Iron and Steel merchants who are carrying on business in the City of Bombay. This trade is mainly located in (I) Carnac Bunder, (2) Kharwa Galli, (3) Dharukhana, (4) Kurla and Vidyavihar etc. by the impugned notification the said business of Iron and Steel is sought to be shifted out of Bombay and located a Kalamboli in New Bombay. By that impugned notification which is dated 22nd September, 1986 Exhibit-A, to the petition, the respondent 2, the Bombay Metropolitan Region Development Authority made a declaration under S.3 (I) of the Bombay Metropolitan Region Specified Commodities Markets (Regulation of Location) Act 1983 inter alia declaring the whole of Bombay Metropolitan Region as the Market area and Kalamboli as the Market yard. The said notification was declared to be effective from 1st Jan. 1987. Since there was a substantial amount of representation on the part of the traders inter alia complaining that the site at Kalamboli had not been made suitable for shifting their trade as ti had not been provided with necessary facilities by a further notification dt. 29the Dec. 1986 the existing sites of business were declared to be sub-market yards up to 1st May, 1987. That notification was extended from time to time up to 31st Mar. 1988. The petitioners made representation that the market yard at Kalamboli was still not provided with the necessary facilities to shift the Iron and Steel trade and therefore the notification declaring the existing business sites as a sub-market yards should be further extended. Since this prayer was not favourably responded to, the petitioners were constrained to file the present petition.
2. It is the grievance of the petitioners which grievance has been reiterated by Mr. Taleyarkhan the learned Counsel appearing on their behalf that the respondents have not complied with their obligations under s.6 of the Act to provide alternate trade facilities in the Kalamboli Market Yards. Hence the insistence on the part of the respondents to shift the Iron and Steel Trade by bringing into force the provisions of Section 7 was wholly unjustified. The petitioners, in view of the laudable object behind the Act and the notification to deconjest the city of Bombay are willing to shift their trade to Kalamboli market yard. However, the respondents not having complied with their obligations to provide with the necessary suitable alternative facilities at the Kalamboli market yard as required under s. 6(I), the respondents were not justified in seeking to implement the provisions of S.7 where under the petitioners would be prohibited from carrying on their trade both in their present place of business as also, on account of the lack of facilities, as the proposed Kalamboli Market Yard. This action of the respondents Is unreasonable, irrational and arbitrary and violates the fundamental rights of the petitioners guaranteed, both under Arts. 19(I0(g) and 14 of the Constitution of India.
3. Before going into the merits of the matter it may be convenient to look at the salient features of the Bombay Metropolitan Region Specified Commodities Markets (Regulation of Location) Act 1983 under which the impugned action has been sought to be taken. As indicated in the preamble, this has been passed in order to regular location of market areas and wholsale markets in respect of specified commodities in the Bombay Metropolitan Region and to establish Market Committees to manage and control different market established in different market areas for different commodities. The Act provides for the establishment of a Development Authority for the purpose of planning, co-operating and supervising the proper, orderly and rapid development of the areas in the Bombay Metropolitan Region. It seeks to relieve the congestion and consequent traffic, accommodation and other problems which have arisen with the fact growth of population and commercial activities in Gr. Bombay particularly in South Bombay. It was therefore found desirable to shift wholesale markets for certain agricultural and non-agricultural products to other localities.
Under S.2 (18) o f the Act "wholesale trade" is defined thus:
"Wholesale trade" means sale or purchase of any commodity for purpose other than direct consumption or use by the purchaser, and shall include holding of stocks or warehousing of the specified commodity at any place in the market area or in any market yard for such trade; and any such seller, buyer, holder of stock or ware house keeper shall be deemed to be" a wholesale trader".
Section 3 provides for declaration by the Metropolitan Authority, on the re-commendation of the Metropolitan Region to be the market area in respect of any specified commodity. It provides for specifying one or more market yards and sub-market yards for the market area which may if necessary be located outside the market area. Section 4 provides that after the declaration of the market area under S. 3(I) the State Government shall constitute the first Market Committee. Section 5 provides that after the declaration of the market area for any commodity, the Chief Executive Officer shall publish a notice inviting from all persons lawfully engaged in the specified trade to register themselves with the market committee. Section 6 provides for the obligation of the market committee to provide every registered trader with suitable alternative facilities trader with suitable alternative facilities in the market yard to enable him to carry on his specified trade in the market yard. Section 7 prohibits, after the specified date, the carrying on the specified trade in any place in the market area other then the market yard or sub-market yard. That trade cannot be carried on except under and in accordance with the conditions of a licence granted in that behalf under the Act .
4. Chapter IV of the Act deals with the powers and duties of the Market Committee and S. 32 provides that in addition to the powers conferred and duties imposed upon it by or under this Act , a committee may-
(I) construct, maintain and manage the market yard including any buildings or structures;
(II) provide, maintain and manage the market yard or implement required in such yard;
(III) acquire, hold and dispose of any movable or immovable property;
(IV) grant, renew, refuse, suspend or cancel licences to carry on a specified trade in the market yard;
(V) regulate the entry of persons and vehicular traffic in the market yard;
(VI) collect or maintain, disseminate and supply information in respect of production, sale, storage, processing, prices and movement of commodities;
(VII) provide for the licensees and other persons visiting the market, common services including transport, storage, grading, weighing restaurants, petrol pumps, and temporary accommodation for persons visiting the market.
(VIII) Enforce the provision of this Act and rules, regulations, bylaws and conditions of the licences granted under the Act ; and (IX) Perform such other functions and duties as may, from time to time, be necessary or expedient for the purpose of maintaining or managing the market.
These are some of the salient provisions of the Act that ate relevant for the purpose of the disposal of this petition.
5. Mr. Taleyarkhan, the learned Counsel appearing in support of the petition submitted that under S.6 a definite obligation is cast on he Market Committee to provide "suitable alternative facilities " to enable the trade to carry on his specified trade in the market yard. The provision of suitable alternative facilities clearly contemplates a positive Act of allotment of some premises or something as can be seen from the first proviso to s. 6(I) According to him, it was clear that the Market Committee was bound to allot suitable alternate facilities even if it be at is own costs initially. "Suitable alternative facilities " means facilities of the kind, though they may not be in all respect so good, as that which the trader is currently enjoying. He relied on the decisions reported in (1953) 2 All ER 877 (878), (1965) 67 Bom LR 690 (691). He emphasised that apart from the reasonable needs of the trade the term suitable also contemplates growing needs in future to the trader who to be provided with alternative facilities. Reliance was placed on (1974) 76 Bom LR 240 (22-245).
6th October, 1988.
6. Mr. Taleyakhan pointed out that sub-Section (2) of S. 6 provides for a right of appeal from an order of allotment. Hence S.6(I) dealing with alternative facilities contemplates an application of mind by the Market Committee to the suitability of the alternative facilities which it is bound to provide. According to him the term "facility" means something that is built or installed to perform some particular function. It also means something that promotes the case of any action or course of conduct. it must imply something which is existing. According to him, S.32 provides for powers and duties of the Market Committee. Though the said Section used the term "may" having regard to the function of the Market Committee the same contained a command on the Market Committee to perform the duties provided in the said Section. Placing reliance on sub-sec. (I0 of S.32 he submitted that It enjoined the duty upon the Market Committee to construct, maintain and manage the market yard including any buildings or structures. The provisions of the said Section could not be only enabling or directory on account of the use of the word "may". It clearly lays down the duties. By placing reliance on the case of Rangaswami. Textile Commissioner v. Sagar Textile Mills (P) Ltd., he submitted that when there is a power coupled with duty the word "may" must be read as "shall" and has mandatory import. According to Mr. Taleyarkhan s. 35 empowers the Market Committee to dispose of immovable property such as buildings, stalls, shops, stands, pens or things, subject to such conditions, including charges or fees or contemplates that a licensee holding immovable property granted under s.35 may transfer such property to another specified trader. According to him all these provisions show that it is they duty and function of the Market Committee to provide such amenities as are requisite for a trader to carry on his trade at Kalaboli in nearly the same manner as he was doing in the present circumstances. According to Mr. Taleyarkhan there was nothing to show that the Market Committee ahs applied its mind in even a single case or has done the positive Act of allotment of suitable alternative facilities as contemplated under S.6. Even though the CIDCO may have provided "a reasonable modicum of facilities" it is clear that such facilities are neither suitable nor alternative to enable the traders to carry on their trade in Kalamboli.
7. In regard to the provisions of S. 7(I) Mr. Taleyarkhan submitted that the same contemplates the notification of a separate date by the Metropolitan Commissioner on which date the specified trade must cease functioning in the market area, except in the specified market yard. The scheme of the Act , therefore, envisages that the appointed date must be notified after the suitable alternative facilities are made available to the traders who are affected. According to him, unless such construction is put on S. 7(I), it will necessarily suffer from the vice of as unreasonable restriction, thereby not only violating Art. 14 but also Art. 19(I0(g) of the Constitution of India.
8. Mr. Releyarkhan further submitted that the Act which has sought to regulate the wholesale trade in specified commodities has by defining "wholesale trade" in S.2 (18) sought to include within its sweep each and every trader and dealer in the specified commodities. The definition being too wide suffers from the vice of over inclusion without having any nexus to the object sought to be achieved by the Act . It apart from the wholesale traders, Commission Agents are also included, their inclusion is unreasonable, irrational and arbitrary and violates the fundamental rights guaranteed both under Art. 14 and Art. 19(I)(g) of the Constitution of India.
9. Taking the last contention of Mr. Taleyarkhan for consideration, it has to be noted that the Act is an environmental legislation which seeks to decongest the crowded city of Bombay by relocating markets for some specified non-agricultural products like Textile and Iron and Steel. Section 2(15) defines "sale" thus.
" 'sale' with its grammatical variations and connate expression, means a sale of any commodity by one person to another for each or for a deferred payment or for any other valuable consideration , and includes a transfer or other system of payment of price by installment or a sale by an agent in behalf of another person for commission or other consideration '".
Section 2(7) defines " specified trade" thus:
" Specified trade ' means the wholesale trade in specified commodity".
Section 2(8) defines " wholesale trade" as follows:
" Wholesale trade" means sale or purchase of any commodity for purpose other than direct consumption or use by the purchaser, and shall include holding of stocks or warehousing of the specified commodity at any place in the trade area or in any markets area or in any markets yard for such trade, and any such seller . buyer , holder of stock or warehouse-keeper shall be deemed to be " a wholesale trader".
In my judgment Mr. Taleyarkhan's apprehension that the aforesaid clauses have sought to include within its sweep each and every dealer in iron and steel is not justified. In my view, the said provision do not includes retail dealers Iron and Steel. Hence when a dealer purchase Iron and steel for personal consumption such transactions are not covered within the ambit of the definition of "wholesale trade" as contemplated in S. 2(18). However , a dealer who purchases or stocks Iron and Steel for the purpose of sale of retail dealers would be covered within the definition of" wholesale trade" as provided in S. 2(18). To this extent Mr.Sanghavi the learned Counsel on behalf of the respondents has fairly conceded. Mr. Taleyarkhan, however, submitted that the definition of "wholesale trade" contained in S.2(18) should not and could not be construed to include within its ambit the Commission Agents who though amy operate from the market area within the city of Bombay may not be bringing and taking out of transporting any stocks of Iron and Steel within or outside Bombay. If such traders are covered under the Act , the definition of wholesale trade" would suffer from the vice of over i9nclusion without having any nexus to the object to be achieved by the classifications. This would impose unreasonable restriction on the right of such traders to carry on their business and would be hit by the provisions of Act . 19(1) (g) of the Constitution of India. Reliance was placed on the case of State of Maharashtra v. Mrs Kamal Sukumar Durgule wherein the provisions of S.2(f) of the Maharashtra Vacant Lands (Prohibition of Unauthorized Occupation and Summary Eviction ) Act . (66of 1975) was held to be ultra vireos by inter alia observing as follows (at p. 128) Section 2(f) (b) suffers from yet another vice in that, in treats all persons alike irrespective of how their are situated in the matter of their involvement in the consideration of unauthorized structures and their interest therein. Classification requires division into characteristics Such division into classes which are market by common characteristics Such division has to be founded upon a rational basis and it must be direct , Section 2(f) and the other cognate provisions of the Act make no distinction at all between owners of lands who have themselves constructed unauthorized structures and those others on whose lands unauthorized structures have been constructed by transpassers. The latter class of owners who are silent speculations to the forcible and lawless deprivation of their title to their property have been put by the Act on par with the transpassers who, taking law into their own hands, defy not merely private owners but public authorities.
10. Mr. Singhavi submitted that the business of commission agents was included within the definition of wholesale trade and it was rightly so included. Even though a Commission Agent may not be importing goods within the marled area of the city of Bombay, he having purchased the goods, was the lawful owner. If was open to such a trader to arrange for delivery either outside market area or import the goods within the market area of the city of Bombay . Business of such a trader who did not import such goods within the excluded it would be difficult on the part of the department to trace and prosecute the offenders rendering the Act inoperative.
11. In my view there is no justification to include the business of such commission agents who carry on their business in the market area within the city of Bombay but do not either import or export their goods within or outside the market area within the definition of "wholesale trade" as defined in S.2(18) .If the definition were to include such traders, the definition would suffer from the vice of over inclusion without having any nexus to the object sought to be achieved by the Act . the said provision in that case would infringe upon the fundamental rights of such dealers to carry on., trade which right is guaranteed under Art. 19(1)(g) and the same would not be saved by the provisions of Art. 19(6) as the same would not be making of any law which impose in the interest of the general public . reasonable restrictions on the exercise of the right to carry on the trade or business. In these circumstances the definition of " wholesale trade" under S. 2(18) will have to be read down so as to excluded from its ambit the business of commission agents who carry on their trade within the market area of the city of Bombay without in any manner importing or exporting Iron and Steel for the purpose of sale. It will therefore have to be held that the business of commission agents who do not either import area for the purpose of resale are not covered by the provisions of the Act .
12. The next question that arises for consideration is whether the respondents have provided suitable alternative facilities within the Kalamboli Market Yard and whether they are justified in invoking the provisions of S. 7 of the Act so as to deber the trade in any place in the market area other then in the market yard at Kalamboli. Mr.Taleyarkhan contended that on proper construction of contended that on proper construction of S.6(I0, it will have to be held that it was incumbent for the respondents to provide alternative accommodation to each of the traders as nearly of the same standard and style as the one enjoyed by them, in the city of Bombay. He relied upon the definition of the term "Facility" in Black's Law Dictionary as meaning something that is built or installed to perform some particular function. It also means something that promotes the ease of any action or course of conduct. He also relied upon the definition of "facilities", to mean that which promotes the ease of any action, operation, transaction, or course of conduct. The term normally denotes inanimate means rather than human agencies. The word "facilities" embraces anything which aids or makes esier the performance of the activities involved in the business of a person or corporation. He further relied on the decision is Barnard v. Towers reported in (1953) 2 All ER 877 wherein dealing with the Rent Restrictions Act it was held that accommodation shall be deemed to be suitable if it was of the kind as the tenant was enjoying. Hence the alternate accommodation which the tenant was required to share was held not to be a suitable alternate accommodation. Reliance was placed in the case of Krishnaji Dattatraya Bapat v. Dr. Shankar Ramchandra Abhyankar reported in (1965) 67 Bom LR 690 a case under the Bombay Rent Act , the Term "Suitable residence" as contained in s.13 (I) (I) of that Act was held to be one suitable for the tenant's reasonable needs and the needs of his family. Further reference was made to the case of Prabhakar Reghunath Dixit v. B.S. Kothare reported in (1974) Bom LR 240 wherein the term "suitable residence" under the Bombay Rent Act was held to mean suitable to the tenant and all the members of his family wherein growing needs of the family could not be ignored.
13. In my view, the aforesaid decisions dealing with the alternative suitable accommodation in rent restriction legislation cannot strictly be applied while construing the present Act which is essentially an environmental legislation. It would not be permissible to equate suitable alternative facilities to suitable alternative accommodation. On a proper perspective of the provisions of the present Act it only means that the respondents are enjoined with duty to provide suitable facilities at the alternative site where the market yard is sought to be established. If the Respondents ensure that the wholesale traders in Iron and Steel, whose business is sought to be shifted to the Market yard, are provided with reasonable and adequate facilities to carry on their trade the obligation under S. 6(I) can be said to have been met. It will be difficult to accede to the submission of Mr. Taleyarkhan that it is the obligation of the respondents to provide each and every trader with a proper accommodation of a type as similar as possible to the one which is enjoyed before he can be asked to shift to Kalamboli and before he can be prevented from carrying on his business at his present site within the city of Bombay. It is also not possible to accede to the contention of Mr. Taleyarkhan that the provisions of accommodation by CIDCO would not obviate the liability of the respondents from providing appropriate accommodation. In my view all that is required of S.6(I) is to ensure the availability of suitable alternative accommodation. The same may be provided either by the respondents or through their agents such as CIDCO. The same may be provided either on account of these being an independent transaction between the CIDCO and the traders or at the instance of the respondents themselves. Once the suitable alternative facilities exist or are provided the obligation under S.6(I) will be met.
14. In regard to the contention of Mr. Teleyarkhan regarding the powers and duties of the Committee as provided under S.32, it may be pertinent to note that the said Section appears in Chap. IV. The said chapter deals with the powers and duties of the Market Committee. Section 32 provides that in addition to the powers conferred and the duties imposed upon it by or under the Act the Committee may perform the various items contemplated in Cls. 1 to 9 of the Section. It is appearent that the functions and obligations contemplated under the said Section are in addition to the functions and obligations contemplated under S. 6 which Section finds place in Chap. II which deals with the declaration of the Market Area and the Market Yards. Having regard to the scheme of the Act and the object sought to be achieved it is not possible, as suggested by Mr. TaleYarkhan, to construe the term "may" to mean "shall" on the ground that the said Section lays down powers coupled with duties. In my view, the term "may" will have to be given its ordinary grammatical meaning and the provisions of S.32 will have to be held as enabling provisions. Hence merely because s.34 empowers the Committee to levy fees and Ss. 35 and 36 provide for transfer of immovable property of the Committee and S.37 provides for execution of contracts the same would not assist the contention of Mr. Taleyarkhan that the provisions of S.32 are mandatory. Hence it could not be permissible by placing reliance on the provisions of S.32 to hold that it was incumbent on the part of the respondents to provide for constructed accommodation to each and every trader before he can be asked to shift to Kalamboli market from their present premises in the City of Bombay.
15. Mr. Taleyarkhan next contended that it was not permissible for the respondent to issue a notification under S.7 along with the Notification under S.3. according to him, the Authority who could issue the Notification under S.3 was the Metropolitan Authority who would issue the declaration on the recommendations of the Metropolitan Commissioner. It was after the notification under S.3 was issued declaring a market area and the market yard that the State Government was required by a Separate notification under S. 4 to constitute the first market committee. Similarly it was after the declaration of the Market Area and the Market yards under s.3 that the Chief Executive Officer under the provisions of S.5 was required to issue Public Notice inviting all persons lawfully engaged in the specified trade to apply in writing for registering themselves with the Market Committee. It is the duty of the Chief Executive Officer under S.5(4), on being satisfied that the applicants were actively and lawfully engaged or intending to carry on the specified trade to include their names in the Register to be maintained by him and every such registered person was eligible to get a licence as provided under S.33. according to Mr. Taleyarkhan, it was only after following the aforesaid steps namely after notification under S.3 was issued after the first Market Committee under s.4 had been constituted, after the Chief Executive Officer had invited applications and had registered the traders and after the Market Committee had provided with suitable alternative facilities as contemplated in S.6 that a notification under S.7 prohibiting the trade in areas other than the Market at Kalamboli could be issued. In the present case the Notification dated 22nd Sept. 1986 issued under S.3(I) itself appointed the 1st Jan. 1987 as the appointed date under s.7. Such a notification could not be valid as it was only on the 23rd Jan. 1987 that the first Committee was appointed under S.4. the public notices inviting applications for registration under S.5(I0 were issued thereafter on the 7th Dec. 1987.
16. Mr. Singhvi, the learned Counsel, however, submitted that though the notification dated 22nd Sept. 1986 issued under S.3 itself provided for the appointed date to be on 1st Jan. 1987 2nd Respondent by its Notification dt. 29th Dece. 1986 has declared more sub-yards in respect of the areas where the traders were carrying on their business. The said Notification was effective up to 1st of May, 1987. By a further notification dt. 27 the April 1987 duration of the earlier notification was extended up to 1st Aug. 1988 and by further notification dt. 30th Dec. 1987, it was further extended up to 1st April, 1988. Thereafter by the interim orders passed in this petition the same had been continued up to date. According to Mr. Singhvi, the appointed date provided under the Notification dt. 22nd Sept, 1986 had virtually been extended and the subsequent notifications had permitted the continuance of the business in the present place of business declaring additional sub-yards.
17. In my judgment, though it may be true that the notifications dt, 29th Dec. 1986, 27th April, 1987 and 30th Dec. 1987 has the effect of legalising the business in the present business sites and had, in effect postponed the appointed date notified in the notification under S.3 (I) dt. 22nd Sept. 1986 the same would not render the notification valid. On the expiry of the period contemplated under the notifications dt. 29th Dec. 1986, 24th April 1987 and 30th Dec. 1987 appointed date would still continue to be the 1st of Jan. 1987, in my judgment, it was not permissible to the Respondents by one notification to declare the Market area and the Market yard under S.3(I0 and by the same notification declare the appointed date under S.7(I). This had been done without complying with the intervening formalities of appointing the first Committee and issuing public notice for inviting applications for registration under S.5 and making provision of alternative facilities as provided under S.6(I). Hence without disturbing the notification dt. 22nd Sept. 1986 is no far as the same seeks to declare the market area and the market yards. I hold that the declaration of the appointed date being 1st Jan. 1987 under S.&(I) will have to be set aside. It will of course be open to the respondents to re-issue a notification specifying the date for the coming into operations of the provisions of S.7(I).
18. The next and possibly the last question that requires consideration is regarding the provisions of suitable alternative facilities at the market yard at Kalamboli. In regard to the site at Kalamboli the CIDCO had invited applications for allotment of warehouse plots and has in fact allotted 1900 plots to various dealer sin iron and Steel. There have also been agreements between CIDCO and the plot-holders for the construction of the boundary walls. Though there was considerable controversy as to whose obligations it was to construct the same, it is common ground that up to date 62 K.M. out of 77K.M. length of boundary wall has already been constructed. Once it is held that the Respondents under the provisions of Section 6 are not obliged to offer accommodation but were required to provide only the facility I am satisfied that the site at Kalamboli is an adequate alternate site for shifting wholesale iron and steel trade. It has been provided and the electric power has been taken up to the mains and on applications for connection being made and requisite fees being paid the electric power will be connected to individual plots. It has further come on record that the Respondent 2 has constructed a large building with ground and two floors known as Central Administrative Building. This has been constructed by the CIDCO in order to provide common services like Banks. Post and Telegraph Officers, Restaurants. First-aid Unit and Market Committee office, CIDCO site office etc. it is further common ground that three major trade associations namely (I) Steel chamber of India (2) Bombay Iron Merchants association (3) Darukhana Iron. Steel and Scrap Merchants Association have been allotted plots and Steel Chamber of India has started construction on its plots. It is also common ground that (I) the Steel Authority of India (2) Tata Iron and Steel Company Ltd, and (3) Indian Iron and Steel company who command over 50% of the Iron and Steel trade have shifted their business to the Kalamboli Market yard. Apart from the provisions of electricity CIDCO in collaboration with Maharashtra Industrial Development Corporation (MIDC) and the Maharashtra Water Supply and Sewerage Board (MWSSB) have arranged for adequate supply of water to the Kalamboli Steel Market Yard. The MIDC and MWSSB have assured the uniform supply of water at the rate of 3 million litres per day which would cater the anticipated population of 20000 persons at its optinmum level. Over and above this at the behest of CIDCO the Mahanagar Telephone Nigam has constructed a 2000-line telephone exchange and this was commissioned on 27th Mar. 1986. This exchange has remained unutilised till this day. On account of the shifting of the Iron and Steel trade in Kalamboli the Mahanagar Telephone Nigam have planned an extension of its exhange by addition of 1000 lines i.e. from 200 to 3000lines in 1988-89.
19. A residential zone consisting of 6656 houses has been developed. The said 6656 houses which have been built admeasure between 12 to 94 sq. metres and are ready to eater to the economically weaker sections, low income group, middle and higher income groups. Loan assistance from HUDCO with interest rates ranging from 7% to 12 1/2% with repayment facilities ranging from 81/2 years to 19 years ahs already been arranged. Moreover plots for construction of Bungalows for Iron and steel traders have also been provided in the nearby New Panvel node provided in the nearby New Panvel node situated at a distance of 3-4 kilometres from Kalamboli . though at present there exists only one Police out-post, a full fledged Police Station has been sanctioned and the financial liability for the same have been approved. Kalamboli market yard has been provided with a truck terminal which caters for parking and washing facilities for over 500 trucks with the following facilities:
1) A large office building having Built up area of 2, 744 sq. mts. For 130 office units, 2 banks, 2 restaurants and 3 shops.
2) 167 Transit Godowns.
3) 33 Repair Workshops.
4) 14 Restaurants.
5) 4 Petrol Pumps.
6) 3 Lodging Houses.
7) 2 weigh bridges.
8) 5 spare Part shops.
20. In my judgment the aforesaid facilities which are not available at Kalamboli are adequate and the obligation under S.6(I) can be said to have been met. It is true that the facilities may not be identical to the one available to the traders in their present site of business. However if one has to live in Society one is expected to cater to the growing needs of the Society. If the Act , which is essentially an environmental legislation, seeks to deconjust the Bombay City certain hardships would be inevitable. As along as the Act does not impose any unreasonable restrictions on the right of business guaranteed under Art. 19(1)(g) of the Constitution no fault could be found with it. Therefore, it will not be permissible for the petitioners to resist any longer the shifting of their place of business to the market yard at Kalamboli. It would however be reasonable to expect that some time will be required for the petitioners to sift their place of business from their present market yards to the market yard at Kalamboli. I am, therefore, inclined to grant time up to 31st Aug. 1989 for the said purpose.
21. In the result, the petition partially succeeds only in so far as it challenges the declaration of the appointed date issued under the notification dt. 22nd Sept. 1986. While confirming that notification in so far as it relates to the declaration of the Market area and the Market yards under S.3(I0 the declaration of the appointed date under S.7(I) is quashed. The rest of the challenge contained in the petition is negatived.
The Rule is made partially absolute in the above terms. The Respondent 2 will be at liberty to issue the fresh notification declaring the appointed date under s.7(I). After the issuance of the said notification the provisions of S.7 (I) will come into operation with effect from 1st Sept. 1989.
The petitioners are granted time up to 31st Aug. 1989 for the purpose of shifting their trade to the Kalamboli Market Yard.
22. Order accordingly.