Calcutta High Court (Appellete Side)
Sheoraphuli Kancha Sabzee Babsayee ... vs The State Of West Bengal And Others on 19 February, 2021
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
WPA No. 5495 of 2020
With
IA No: CAN 1 of 2020
(Old No: CAN 3882 of 2020)
With
CAN 2 of 2020
(Old No: CAN 3883 of 2020)
With
CAN 3 of 2020
(Old No: CAN 3892 of 2020)
With
CAN 4 of 2020
(Old No: CAN 3893 of 2020)
With
CAN 5 of 2020
(Old No: CAN 4489 of 2020)
With
CAN 6 of 2020
(Old No: CAN 4490 of 2020)
Sheoraphuli Kancha Sabzee Babsayee Samity and another
-Vs.-
The State of West Bengal and others
For the petitioners : Mr. Bikash Ranjan Bhattacharyya,
Mr. Saptansu Basu,
Mr. Uday Sankar Chattopadhyay,
Mr. Suman Sankar Chatterjee,
Mr. Santanu Maji,
Ms. Snigdha Saha,
Mr. Pronay Basak,
Mr. Subhayu Das
For the State : Mr. Kishore Dutta,
Mr. Debasish Ghosh,
Mr. Sayan Sinha
For the
respondent no.7 : Mr. Abhratosh Majumdar,
Mr. T. M. Siddiqui, Mr. Avra Mazumder 2 For the respondent no.8 : Mr. Samrat Sen, Mr. Amitava Mitra For the applicants in CAN 3892 of 2020 : Mr. Pingal Bhattacharya, Mr. Neil Basu For the applicants in CAN 3882 of 2020 and CAN 3883 of 2020 : Mr. Abhishek Halder, Mr. Arkaprava Sen Hearing concluded on : 09.02.2021 Judgment on : 19.02.2021 Sabyasachi Bhattacharyya, J:-
1. Petitioner No. 1, namely Sheoraphuli Kancha Sabzee Babsayee Samity, is a society registered under the West Bengal Societies Registration Act, 1961. Its members have been running wholesale business of vegetables at the Sheoraphuli market, situated beside the Sheoraphuli Railway Station, for quite a long time. Admittedly, some of them have valid trade licences and the others have applied for renewal, which is pending. Petitioner no. 2 is the Secretary of the petitioner no. 1-society.
2. Vide Memo No. 516/Con/Srp dated April 23, 2020, the Sub-Divisional Officer, Serampore, Hooghly (Respondent no. 5) intimated the Assistant Commissioner of Police-II, Chandannagar Police Commissionerate, Hooghly that, as per direction of Competent Authority, the Sheoraphuli market (beside railway station) would be shifted on and from April 24, 2020 to Sheoraphuli Regulated Market, 3 situated at Sasmalpara, Baidyabati (beside Delhi Road) following containment strategy of spreading COVID-19. A request was also made to ensure shifting arrangement smoothly to avoid any untoward incident.
3. By Memo No. 818 dated May 22, 2020, respondent no. 5 requested the Secretary, Hooghly Zilla R.M.C. to take necessary action for the facilitation of the concerned trader/commission agents regarding clearing of due taxes as per existing law in force, regarding renewal of R.M.C. licence and operation of the Sheoraphuli 'Haat' (market).
4. Both the memoranda have been challenged in the present writ petition.
5. Learned senior counsel appearing for the petitioners submits that the memo dated April 23, 2020 neither named the 'Competent Authority' under whose direction the memo was issued nor indicated the provision of law under which the market was sought to be shifted from its previous location to Sasmalpara, Baidyabati, beside the Delhi Road.
6. The impugned memo itself indicates that the shifting of market was undertaken following containment strategy regarding spread of COVID-19. Thus, such shifting could at best fall within the purview of the Disaster Management Act, 2005. If so, learned senior counsel argues, such shifting could at best be for a temporary period.
However, in the present case, the market was shifted on a permanent basis to a new facility. Post facto justification for such shifting, as given by the respondents in their subsequent action and in their 4 pleadings in the present writ petition, cannot validate such illegal action, it is submitted.
7. Learned senior counsel further submits that the wholesale vegetable market-in-question is the biggest such market in the entire Hooghly district and the second largest market in West Bengal has been continuing for about 500 years. The predecessors of the members of petitioner no. 1 started business therein by purchasing land in their names, which was inherited by its present members. The property was improved by the members and godowns constructed by making huge investments. The location of the market is at a vantage area, both in terms of the goodwill created, easy accessibility and transport facilities due to its proximity to the Sheoraphuli railway station. Arbitrary shifting of the market from such area would be to irreparable detriment to the wholesalers' interest.
8. Learned senior counsel for the petitioner argues that the establishment and continuance of the market and incidents thereof are governed by the West Bengal Agricultural Produce Marketing (Regulation) Act, 1972 (hereinafter referred to as "the 1972 Act") and the Rules of 1982 framed thereunder. Section 2 (1) (a) of the 1972 Act defines "agricultural produce", which includes the commodities sold in the market-in-question.
9. Section 2 (h) of the 1972 Act defines "market area" as any area declared to be a market area under Section 3. Section 3 (1) stipulates that the State Government may, by "notification", declare any area as 5 a market area within which purchase and sale of such agricultural produce as may be specified in the notification shall be regulated.
10. Sub-section (4) of Section 3 of the 1972 Act provides that the State Government may, by "notification", declare that a market area declared as such under sub-section (1) shall cease to be a market area with effect from such date as may be specified in the notification. On such declaration, it is provided, the market committee constituted for the market area shall stand dissolved and the consequences mentioned therein will follow.
11. Section 2 (1) (kk) of the Act provides that "notification" means a notification published in the Official Gazette. Hence, the petitioners argue, the impugned memo dated April 23, 2020, which brought about a permanent shift of the market area, could not have been issued by any "Competent Authority", let alone the Sub-Divisional Officer, without prior notification in the Official Gazette. There was no publication in the Official Gazette regarding the impugned shifting at any point of time, it is submitted.
12. Section 2(1)(g) of the 1972 Act defines "market" as a market established or declared as such under the Act for a market area and includes a principal market yard, a sub-market yard, a private market yard and consumers' or farmers' market, that is, Krishak Bazar or Brihat Krishak Bazar, etc. if any.
13. Section 4(1) provides that in every market area there may be one principal market yard and one or more sub-market yards, both managed by the market committee, one or more than one private 6 market yards or private markets managed by a licensee, and one or more famers' or consumers' market managed by a licensee. Sub- section (2) of Section 4 stipulates that the State Government may, after the issue of notification under Section 3, declare any specified place including any structure, enclosure, open place or locality in the market area to be a principal market yard or sub-market yard, and private market yard, consumers' or farmers' market, as the case may be.
14. Thus, it is argued by the petitioners, in the absence of any prior notification of market area in the Official Gazette under Section 3 of the 1972 Act, no new area could be designated as a market yard, sub- market yard, private market, farmers' market or consumers' market.
15. Even for de-establishment of a market by the State Government under Section 4A(d) of the 1972 Act, a prior notification in the Official Gazette is mandatory.
16. The Sheoraphuli market, it is argued, is in the nature of a private market and comes within the purview of the above Sections. Thus, the de-establishment of a market or designation of a new place as market area had to be preceded by an Official Gazette notification, the absence of which in the present case vitiates the impugned memo dated April 23, 2020.
17. Relying on Gazette Notification No. 1378-AM/P/5A-17/2013 dated October 17, 2014, which is annexed to the affidavit-in-opposition of respondent no.7, learned senior counsel for the petitioner submits that the entire area of the District of Hooghly was declared as a 7 market area under Section 3(1) of the 1972 Act, within which the purchase and sale of agricultural produce/produces as specified in the 1982 Rules shall be regulated. Thus, it is argued, the members of petitioner no. 1 have every right under the law to conduct wholesale business of agricultural produce in any location within the district of Hooghly, including the original location of the Sheoraphuli market near the railway station.
18. Challenging next the legality of the second impugned memo, dated May 22, 2020, learned senior counsel for the petitioners argues that the said memo cites clearance of "due taxes" as an excuse for sitting tight over the applications for renewal of licence of some of the members of the petitioner no.1-society, without specifying as to what was the quantum of tax actually due, if at all, and/or as to what was the basis of such demand. It is thus submitted that the respondents ought to be directed to take immediate steps for renewal of the licences of all members of petitioner no.1, whose renewal applications are pending.
19. Learned senior counsel appearing for the petitioners places reliance on Mohinder Singh Gill and Another v. The Chief Election Commissioner, New Delhi and Others [ (1978) 1 SCC 405 ] to contend that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional 8 grounds later brought out. Learned senior counsel for the petitioner argues that the memoranda under challenge in the present writ petition being cryptic and without reasons, the subsequent justifications of the decisions, sought to be brought on record by the respondents by way of pleadings and additional materials, will not suffice to validate the decisions, which were invalid and illegal in the first place.
20. Several applications for addition of party were filed in connection with the present writ petition, some of which were allowed previously. The added parties urge that a substantial portion of the vendors, who used to operate at the original location of the market at Sheoraphuli, have already shifted to the new venue. It is contended that the new market place has a significantly large area, as compared with the original site. Moreover, the new market place is larger in area, has better locational advantage, being situated beside the Delhi Road, and has much better and upgraded infrastructure and facilities than the previous site.
21. The added parties also plead that unlawful 'syndicates' having political affiliation used to rule the roost at the previous location near the Sheoraphuli railway station. Outsiders hampered the business of the valid licencees. Moreover, there was the issue of disposal of clinical waste from nearby medical facilities, which compounded the problem due to the huge amounts of solid waste spewed by the market. The market at its previous location allegedly also hampered the functioning of nearby educational institutions. 9
22. Respondent no. 8, the Inspector-in-Charge of the Serampore Police Station, also corroborates such stand on oath by filing affidavit and supports the impugned shifting of market place.
23. Learned Additional Advocate General, appearing for respondent no. 7 (the Secretary, Hooghly Zilla Regulated Marketing Society), reiterates the submissions of the added parties on the question of availability of a larger area and better infrastructure at the new market place. In addition, it is submitted that the decision to shift was taken over a considerable period of time, upon having several sittings with all stakeholders, including vendors and the market committee of the Sheoraphuli market. In support of such contention, learned Additional Advocate General banks on the minutes of two meetings dated February 21, 2018 and January 14, 2019 signed by the Sub- Divisional Officer, Serampore which were allegedly attended by various stakeholders including the Secretary, Hooghly Zilla Regulated Market Committee, as well as on documents pertaining to allotment of spaces in the new site of the market and proposals/cost estimates for development work to significantly improve the infrastructure of the market and logistics of the new market place, copies of which are annexed to the affidavit-in-opposition of respondent no. 7.
24. It is further submitted that the previous location was close to the Sheoraphuli railway station and was in a congested area. Operation of the wholesale market used to create serious traffic snarls and considerable inconvenience to the commuters and people of the locality. Solid waste and traffic management had become major issues 10 at the previous location. After initial doubts were raised by the vendors of the Sheoraphuli market about shifting to the new location, several discussions were held between the interested parties, leading to the respondent-authorities providing modern facilities and infrastructure at the new location. A market committee has been duly constituted in the fresh location and the market has already started functioning fully. A vast majority of the vendors have already shifted and are operating with valid licences therein. The area of the current site is about 38.5 acres, whereas the previous location comprised of about 4.5 acres only.
25. Learned Additional Advocate General next contends that several members of the petitioner no. 1-society admittedly do not have valid licences to sell agricultural produce, since their licences have expired long back. Moreover, the petitioners do not represent the interests of most of the wholesale vendors of the market-in-question. Thus, it is argued, the petitioners have no locus standi to maintain the writ petitioner.
26. Learned Advocate General, appearing for the State-respondent, reiterates the contention of respondent no. 7 on locus standi of the petitioners and relies on Seedsman Association, Hyderabad and Others v. Principal Secretary to Govt., A.P. and Others, reported at (2004) 9 SCC 56. In the said case, no details regarding the members of the appellant association and their activity had been given. The association was conspicuously silent about the nature and variety of seeds allegedly produced by it and the method or process adopted in 11 the production of seeds. There were no clear averments on various other aspects, for which it was held by the Supreme Court that it was not possible to arrive at the necessary factual finding that the foodgrains meant to be utilised as seeds had irretrievably lost their basic character, i.e. their consumption as food by human beings or animals or for extraction for the like purposes. The Supreme Court, therefore, refused relief to the appellants.
27. Learned counsel for the respondents-authorities also rely on an unreported judgment rendered on April 18, 2011 by the Jabalpur Bench of the Madhya Pradesh High Court in Writ Petition No. 1794/2011 (Prabhat v. Barkatulla University, Bhopal & Anr.). The Division Bench authoring the judgment held that a writ petition for enforcement of the rights of its members, as distinguished from the rights of the association as a body, can be filed by the association acting through its office bearer or member, whether it is registered or unregistered, incorporated or not, only when the association can satisfy the court that if an adverse decision is given in that petition all the members of that association or "body of individuals" will be bound by the decision. The members of the association must be clearly determinate and identifiable and there should be Rules of such association or a legally binding special resolution of its general body for such representation in the litigation, so as to bind the members by the decision in such litigation. The Bench declined to entertain the writ petition by the association on that score.
12
28. In this context, learned Additional Advocate General cites Mohd.
Murtaza and Others v. State of Assam and Others, reported at (2011) 12 SCC 413, where the Supreme Court held that citizens ordinarily do not go to wholesale markets but to retail markets. Hence, if wholesale market is not situated within city limits it will not cause any inconvenience to public in general. If such wholesale market is situated within city limits, it was held, there will be hazards of traffic congestion, air and noise pollution, health and hygiene problems. No doubt, shifting of shops of wholesalers will cause some hardships to some individuals, but public interest prevails over private interests and certain matters are best left to administrative authorities. Courts have a limited role in policy matters and should only interfere when it is clearly illegal and not with steps taken by the authorities to resolve a pressing problem crying out for redress for a long time and it is not illegal.
29. Since the market-in-question is a wholesale (as opposed to retail) market, the principle laid down in the above judgment, it is contended, is squarely applicable to the present case.
30. The respondents contend that in view of the decision to shift the Sheoraphuli market to Sasmalpara, Baidyabati being in the nature of administrative action, prior publication of a notification in the Official Gazette was not required. Such decision was taken not merely for administrative convenience, but also for the benefit of the vendors and buyers who transact wholesale business of agricultural produce. It was taken upon prior interactions with all interested parties. In the 13 absence of any illegality in the impugned memoranda, there is no scope for interference in the writ jurisdiction.
31. However, vide Gazette Notification No. 1366-AM/P/5A-17/2013 dated October 17, 2014 (annexed to the affidavit-in-opposition of respondent no. 7), the entire market area, for which Sheoraphuli Regulated Market Committee and certain other such committees were constituted under Section 5 (3), read with Section 5 (1), of the 1972 Act, were declared to cease to be a market area with immediate effect and the said Market Committees in respect of the said market areas were dissolved. This invalidated the Notification dated August 22, 2008, whereby the Sheoraphuli 'Hat' (market) was declared as a sub- market yard under Section 4 (1) of the Act, also annexed to the opposition of respondent no. 7.
32. As regards the renewal of licence, the respondents argue that such renewal is not a matter of right of the applicants, particularly since the licences of many of the members of petitioner no. 1 have expired long back. The eligibility of the applicants and the adherence to formality in applying for renewal have to be gone into by the concerned authority before such renewal. As such, it is submitted, there ought not to be a blanket direction to renew/issue licence to all members of the petitioner no. 1-society.
33. Learned Additional Advocate General submits that the prayer for renewal of licence, made in the writ petition, is designed to avoid the consequences of Section 13, sub-sections (1) and (4) of the 1972 Act, which provide respectively that after six months from the declaration 14 of any area as a market area, no person shall, within the market area, carry on business or act as a trader, etc. or sell or purchase agricultural produce and allied activities and that a licence issued under Section 13(3) may be renewed for the prescribed period by the Market Committee or the Board, as the case may be, from time to time on application made in this behalf by the licensee and on payment of a fee equal to the fee payable for the issuance of the licence at the first instance.
34. Learned Additional Advocate General relies, in this context, on a communication dated May 26, 2020 by the Secretary, Hooghly Zilla R.M.C. to the Sub-Divisional Officer, Serampore alleging non- compliance of Section 13, sub-sections (1) and (4) by more or less two hundred traders/commission agents of fruits and vegetables in the Sheoraphuli 'Hat', who had been running their business without valid R.M.C. Licence since long time, for which they were liable to prosecution under Section 34 of the Act.
35. Upon hearing learned counsel for the parties and perusing the relevant law and the materials on record, it transpires that, vide Gazette Notification No. 1366-AM/P/5A-17/2013 dated October 17, 2014, the entire market area under the Sheoraphuli Regulated Market Committee (including the site of the Sheoraphuli 'Hat') ceased to be a market area and the Market Committee stood dissolved, thus denuding the business, run by the members of the petitioner no. 1 at the said location, of legal sanction under the 1972 Act. 15
36. Since the entire Hooghly District had been declared to be a market area vide Gazette Notification No. 1378-AM/P/5A-17/2013 dated October 17, 2014, there was no legal bar for the concerned authorities to re-locate the Sheoraphuli 'Hat' to some other area after it ceased to be a market area. The said notification, read in conjunction with Notification No. 1366-AM/P/5A-17/2013, specifically excluded the Sheoraphuli market and certain other specific locations from the designated 'market area', which now extended to the rest of the Hooghly district.
37. It is relevant to note that none of the above Gazette Notifications were challenged by the petitioners.
38. Although no specific Gazette Notification has been produced by the parties to show that the new location at Sasmalpara, Baidyabati (near the Delhi Road) was declared to be a 'market area', principal market yard, sub-market yard, consumers' or farmers' market and/or private market, there is no legal hurdle in shifting the Sheoraphuli market to Sasmalpara, since the latter location falls within the rest of the Hooghly district (which has been declared to be a 'market area' in its entirety) than those named in Notification No. 1366-AM/P/5A- 17/2013, even in the absence of any specific notification declaring the new location to be a market area, principal or sub-market yard, etc.
39. Even from a practical perspective, it is evident from the materials on record that the new location at Sasmalpara is far superior to the previous site at Sheoraphuli in terms of area, logistics and facilities for 16 a wholesale vegetable and fruit market, particularly taking into account the yardsticks laid down in Mohd. Murtaza (supra).
40. The ratio of Mohinder Singh Gill (supra), relied on by the petitioners, is not applicable in terms to the present case. The said report was dealing with an order of the Election Commissioner, which was supposed to specify reasons. The present challenge, however, is not confined to any particular order but to the shifting of the Sheoraphuli market in general. As shown clearly by the respondents from the materials on record, the impugned Memo dated April 23, 2020 was not the focal point of the decision to shift, but is merely one of the various components of such shifting. The pandemic situation, although cited in such Memo, was only one of the immediate reasons for such shift.
41. The process of shifting had started long back, reasonably soon after the Sheoraphuli market ceased to be a market area in 2014, and comprised of a long, interactive process involving all stakeholders. The new site was developed, meeting the demand of the traders, and adequate logistics, facilities and infrastructure were provided there, at considerable expenditure of public money, to mitigate the grievances of the vendors holding valid licences. A substantial number of traders and commission agents have already shifted to the new site and the market has commenced functioning full-swing at the new location. On a balance, the vested interest of a few vendors, who might have invested money in the land housing the previous market at 17 Sheoraphuli, has to give way to the larger public interest in shifting the same to a better and larger location.
42. The act of purchasing plots of land in the Sheoraphuli area and investing therein by some individual vendors does not ipso facto validate the running of wholesale vegetable business from there. As per the scheme of the 1972 Act, "market" includes private market yards, thus subjecting such yards to the provisions of the Act as well. Hence, to trade in wholesale agricultural produce, vendors of private markets must also hold licences under Section 13 of the 1972 Act.
43. In view of the 2014 Notification, by which Sheoraphuli market ceased to be a market area, no vendor had a right to carry on wholesale vegetable or fruit business from there, thus negating any possibility of a licence being issued/renewed for conduct of such business from the said area.
44. The ratio of Seedsman Association (supra), relied on by the respondents, is not applicable to the present case. The finding of vagueness and insufficiency in pleadings in the said case pertained specifically to the subject-matter under consideration there. The question which arose there was whether the members of the concerned association carried on business in certain kinds of seeds which were regulated by the Seeds Act, 1966 and the relevant Agricultural Produce Act of Andhra Pradesh. The cardinal concept around which the decision revolved was whether the commodity-in- question was 'seeds' and therefore not exigible to market fee or was 'foodgrains' and therefore exigible. In such context, the Supreme 18 Court held that the writ petition was vague and insufficient in pleadings as to what type of seeds the members of the association were doing business in. Thus, the absence of pleadings on that score assumed significance.
45. In the present case, however, the writ petition clearly avers that the members of the petitioner no. 1-society have been carrying on wholesale business in agricultural produce, thus coming within the purview of the 1972 Act.
46. Prabhat v. Barkatulla University (supra), however, clearly lays down that, unless the members of the suing association are clearly determinate and identifiable, the result of the litigation does not bind all members of the association. The said decision of a Division Bench of the Madhya Pradesh High Court undoubtedly has much persuasive value in the present context.
47. However, the said ratio, though otherwise applicable to the present case, is rendered academic here since, even if the petitioners succeeded, only the members of petitioner no. 1 would be bound by the outcome of this writ petition; however, all traders holding valid licence to carry on wholesale business of agricultural produce in the new location of the market-in-question would not be so bound. Thus, even without resorting to the ratio of Prabhat (supra), the petitioners have no locus standi to represent the interest of other traders/agents, who are not the members of petitioner no. 1 but still hold, or are eligible to get, valid licences to carry on such business at the new location of the market.
19
48. In the present writ petition, the petitioners cannot be said to represent the interest of the entire trading community which is eligible to run business at the shifted site of the market. Moreover, admittedly, many of the members of the petitioner no. 1-society do not hold valid, updated licences as on date. Even if benefit of doubt were to be given to the petitioners, keeping in mind the wide scope of the writ jurisdiction, and it was assumed that the writ petition was maintainable at least at the instance of some of the members of the petitioner no. 1, the petition is doomed to fail otherwise, since no illegality and/or arbitrariness has been shown in the impugned shifting of market area.
49. The administration acted within its permissible authority and on sound, legally tenable grounds for the public benefit, which overrides overwhelmingly the individual interests of some traders, who might be represented by the petitioners.
50. As regards the renewal of licence, the right of such renewal is subject to compliance of Section 13 (4) of the 1972 Act. Such renewal is not a blanket right but circumscribed by discretion of the respondent- authorities, to be exercised in accordance with law. In the present case, it will be well within the authority of the respondents to consider the violation of Section 13 of the 1972 Act and the scope of consequent penal action under Section 34 of the Act, which may have an indirect bearing on the renewal of licence. However, it is premature and unnecessary for the present purpose to enter into the merits of the question of renewal. Suffice to say that the respondents ought to 20 decide on the applications for renewal of licence, if any, made by the members of the petitioner no. 1-society at an early date. As far as the impugned Memo No. 818 dated May 22, 2020 is concerned, it contained no final decision but merely sought tax clearance to be ensured prior to renewal of licence, which does not afford any cause of action for challenge.
51. Accordingly, WPA No.5495 of 2020 is dismissed without any order as to costs. The respondents shall, however, ensure that the pending applications for renewal of licence under Section 13(4) of the West Bengal Agricultural Produce Marketing (Regulation) Act, 1972, if any, made by the members of the petitioner no.1-society, are decided in accordance with law as expeditiously as possible, subject to the petitioners handing over to the respondents a specific list of such members whose applications for renewal are pending, along with relevant particulars and dates of such applications.
52. Connected pending applications also stand disposed of accordingly.
53. Urgent certified copies, if applied for, be supplied to the parties upon due compliance of all requisite formalities.
( Sabyasachi Bhattacharyya, J. )