Madras High Court
E. Thangasamy Raja, S/O. T.M.K. ... vs The Executive Officer, Ettayapuram ... on 31 March, 2004
Equivalent citations: AIR2004MAD441, AIR 2004 MADRAS 441
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT P.K. Misra, J.
1. Petitioner has filed the present writ petition for issuing writ of certiorarified mandamus for quashing the proceedings of the respondent in Na.Ka.No.149/2000 dated 27.5.2992 and directing the respondent to renew the licence in respect of the petitioner's market situated at Ward No.VI, Door Nos.175,176,177 at Ettayapuram Selection Grade Town Panchayat for conducting a weekly market on every Saturday.
2. Certain facts which are no longer in dispute and which are based on the observations made by the High Court in several previous litigations have to be noticed. The petitioner and his ancestors have been running a private weekly market at the place indicated by him for more than 40 years. The petitioner had applied for renewal of licence for the period starting from 1.4.1997 to 31.3.1998. The said application was rejected by the respondent by order dated 27.2.1997. The petitioner filed W.P.No.4131 of 1997. Learned single Judge of this Court by order dated 2.9.1997 allowed the writ petition and directed the respondent to renew the licence for conducting private weekly market. The respondent preferred W.A.No.1169 of 1997. The Division Bench while dismissing the writ appeal, modified the order of the learned single Judge by directing the respondent to consider the application for renewal of licence and pass appropriate orders. Thereafter, the respondent after making some inspection rejected the application on 21.11.1997 by indicating certain defects. The petitioner again approached the High Court by filing W.P.No.18910 of 1997. Learned single Judge after considering at length the various objections and after considering the report of the Advocate Commissioner appointed by the High Court, observed that rejection of renewal application was not justified. Accordingly the respondent was directed to consider the request of the petitioner and pass fresh orders within a period of 10 days. It was observed that the respondent should not raise other issues for refusing to grant licence. The respondent filed W.A.No.1535 of 1998. The Division Bench while dismissing the appeal, observed as follows :-
" . . . 5. We are unable to appreciate the contentions of the learned counsel for the appellant in this regard. As the respondent was holding the impugned private market licence for nearly four decades and that apart the finding of the learned single Judge in the light of the report filed by the Advocate Commissioner that the respondent had complied with all the conditions for grant of licence and therefore the refusal to renew the licence is unsustainable in the light of the findings given by the learned single Judge. We find no merit in the present writ appeal. Hence, finding no good and sufficient reasons to interfere with the order of the learned single Judge, the present appeal is summarily dismissed with a direction to the appellant Town Panchayat to consider the request of the respondent for renewal of his private market licence. It is also made clear that this order will not stand in the way of the appellant Town Panchayat to impose conditions that are required under the provisions of the relevant Act and Rules for grant/renewal of private market licence and the respondent is directed to comply with such condition scrupulously. ..."
3. It appears that thereafter the respondent took the matter to the Supreme Court by filing S.L.P.No.19090 of 1999, which was rejected on 20.4.2000. During pendency of the writ appeal, since the period of licence sought for had expired, the petitioner filed another application for renewal and such application was also rejected on the plea that writ appeal was pending. The said rejection was again challenged in W.P.No.7092 of 1999. The High Court by order dated 4.10.1999 directed the respondent to consider the application in the light of Section 262(3) of the Tamil Nadu District Municipalities Act. After the said order was passed and after S.L.P. was dismissed by the Supreme Court, the respondent by proceedings dated 6.11.2000 imposed the very same old conditions. The petitioner filed reply dated 5.7.2000 indicating that all amenities have been provided. After exchange of several more correspondence, the respondent by proceedings dated 17.9.2001 granted renewal of licence for conducting weekly market on every Wednesday by imposing certain conditions. The petitioner, possibly being tired by the repeated sojourns to the High Court, conducted weekly market on every Wednesday even though earlier he was holding market on Saturdays. Thereafter, the petitioner filed a fresh application to renew the licence and seeking permission to hold market on Saturdays as he was doing earlier. After filing such application on 27.2.2002, several reminders were sent on 26.3.1992 and 22.5.2002. By proceedings dated 27.5.2002, the respondent rejected the application to renew the licence for conducting weekly market on every Saturday by giving the specious reason that the respondent Panchayat was conducting market on Saturdays through bidder and granting licence for holding the weekly market on Saturdays will give rise to law and order situation. The aforesaid order is being challenged in the present writ petition.
4. Learned counsel for the respondent has contended that since the Panchayat was holding weekly market on Saturdays, the application for renewal of licence, so far as the petitioner is concerned, cannot be granted and the petitioner cannot be permitted to hold market on Saturdays.
5. Section 262 of the Tamil Nadu District Municipalities Act relates to grant of licence for private market and is extracted here under :-
" 262. Licence for private market.- (1) No person shall open a new private market or continue to keep open a private market unless he obtains from the council a licence to do so.
(2) Application for such licence shall be made by the owner of the place in respect of which the licence is sought not less than thirty and nor more than ninety days before such place is opened as a market, or the commencement of the year for which the licence is sought to be renewed, as the case may be.
(3) The council shall, as regards private markets already lawfully established and may, at its discretion as regards new private markets, grant the licence applied for subject to such regulations as to supervision and inspection and to such conditions as to sanitation, drainage, water-supply, width of paths and ways, weights and measures to be used, and rents and fees to be charged in such market as the council may think proper; or the council may refuse to grant any such licence for any new private market. The council may, however, at any time, for breach of the conditions thereof, suspend or cancel any licence which has been granted under this section. The council may also modify the conditions of the licence to take effect from a specified date.
(4) When a licence is granted, refused, suspended cancelled or modified under this section, the council shall cause a notice of such grant, refusal suspension cancellation or modification in English and in a regional language of the district to be posted in some conspicuous place at or near the entrance to the place in respect of which the licence was sought or had been obtained.
(5) Every licence granted under this section shall expire at the end of the year."
6. A perusal of the aforesaid provision makes it clear that for opening a new private market or continuing to keep open a private market licence is required from the authorities. Sub-section (2) relates to procedure for making such application. Sub-section(3) relates to substantive power of the authority. A bare reading of sub-section (3) makes it clear that in respect of private market, which has been already established, the authority is bound to renew such licence. Discretion is given to the authorities so far as any new private market is concerned, but there is no such discretion regarding an existing market. This is clear from the expression "The council shall, as regards private markets already lawfully established . . . grant the licence applied for . . ." .
7. The relevant provision of sub-section (3) is to the effect " The Council shall, as regards private markets already lawfully established . . . grant the licence applied . . ." The expression used in respect of new market is " . . . The council . . . may at its discretion as regards new private markets, grant the licence applied for . . ." A comparison of the language used so far as the "existing market" vis-a-vis "new market" is concerned, while the Council has got discretion with regard to "new market", there is no such discretion with regard to the market already established. It is of course true that under sub-section (3), the Council may include the conditions relating to sanitation, drainage, water supply, width of paths and ways, weights and measures to be used, and rents and fees to be charged in such market. The use of the expression " . . . or the Council may refuse to grant for any new private market" also further strengthens the conclusion that so far as the existing market is concerned, the Council does not have any discretion to refuse renewal, but it can impose conditions as contemplated in sub-section (3). Similarly, the Council may suspend or cancel any licence in breach of any condition. However, there is no power to refuse renewal of licence so far as the existing market is concerned. In the present case, it is apparent from various earlier orders passed by the High Court in several litigations that the petitioner has been holding the market at least for 40 years.
8. From the materials on record, it is apparent that the petitioner had been carrying on the market on Saturdays. Subsequently, while refusing to renew licence to the petitioner, when the litigations were pending, the respondent has started conducting weekly market on Saturdays. The present impugned order indicates that since the respondent Panchayat was holding market on Saturdays through its bidder, it may give rise to law and order situation if the petitioner is permitted to have the weekly market on the very same day. If the Panchayat is not in a position to control the law and order situation if both the markets are held on Saturday, that would not justify the Panchayat to refuse to grant the licence of the petitioner for Saturdays. The Panchayat can very well shift the holding of the market on any other day convenient to it. Merely because it is a Panchayat, it does not have any priority for holding the market on a particular day. The fact that the petitioner was holding the market on Saturdays for a long period means that the petitioner has priority to hold the market on that day.
9. It is also to be noted that Section 267-A of the Tamil Nadu District Municipalities Act empowers the Council to acquire the rights of any person to hold private market and such acquisition shall be made under the Land Acquisition Act, 1894. Therefore, if the Panchayat wants to acquire the rights of the petitioner to hold the weekly market on Saturday, it has to take recourse to Section 267-A, if the circumstances so warrant. However, its action in refusing to renew the licence on the pretext that it will give rise to law and order situation appears to be hollow, thoroughly illegal, capricious and arbitrary. It is obvious that the very fact that the petitioner has been fighting to exercise his right by filing several writ petitions in the High Court has apparently enraged the respondent, which seems to be bent upon in refusing the application filed by the petitioner for renewal on some pretext or the other.
10. Having regard to the facts and circumstances of the case and keeping in view the several orders passed by the High Court on earlier occasions, the impugned proceedings dated 27.5.2002 is quashed and it is directed that the petitioner's application for renewal or fresh application for renewal should be considered in accordance with law and it should be borne in mind that the petitioner as the priority in right to hold the market on Saturdays and if the respondent is of the opinion that weekly market cannot be held at two different places on the very same day, the respondent would to well to shift its market day to any other suitable day. Keeping in view the recalcitrant attitude of the respondent, I direct the respondent to pay a consolidated costs of Rs.2,500/- to the petitioner. Pending application or the fresh application for renewal should be considered by the respondent in the light of the observations made within a period of four weeks from the date of receipt of a copy of this order.
11. Subject to the aforesaid directions, the writ petition is allowed. No costs.