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2009 DIGILAW 223 (GAU)

Rupam Talukdar v. State of Assam

2009-03-30

A.C.UPADHYAY, J.CHELAMESWAR

body2009
JUDGMENT Jasti Chelameswar, J. 1. The writ petition is filed with the prayer as follows: . . . 4. to declare an adjudge Section 107 of the Assam Panchayat Act, 1994 and Rules 4 and 9(1) of the Assam Panchayat (Financial) Rules, 2002 in so far those provisions relate to settlement of private market as unconstitutional and ultra vires, 5. to issue a writ of certiorari to set aside and quash the order bearing No. PDA. 141/2007/57 dated 1.8.2007 issued by the respondent No. 1 (Annexure-G), 6. to issue a writ of mandamus directing and commanding the Respondents to recall, rescind, cancel and/or otherwise forbear from giving effect to the said order dated 1.8.2007 and further to direct and command the said Respondents to issue necessary license to the petitioner for operating his private Bhabanipur cattle market (also known as Paschim Chaygaon cattle market). 2. The facts leading to the presentation of the writ petition are as follows: The petitioner's father one Shri Abala Kanta Talukdar established a market in the year 1979 on a piece of his patta land bearing KP Patta No. 30, Dag No. 224 covering a total area of six bighas. Admittedly the Paschim Chaygaon Gaon Panchayat was collecting some money from the above mentioned Shri Abala Kanta Talukdar and granting "permission/license" to operate his private market year to year up to 30th June, 2002. Thereafter the petitioner claimed that the above mentioned piece of property was transferred to the petition by his father and the transfer was mutated in the revenue records. Thereafter the petitioner was also running the above mentioned private market from year to year though he has been paying some amounts, the details of which may not be necessary for the purpose of this writ petition, year to year to the Gaon Panchayat. 3. When the so called permission granted by the Gaon Panchayat for the period commencing from 1.7.2006 to 30.6.2007 nearing completion the petitioner made an application dated 28.5.2007 before the respondent authority for granting of a "license" for the said private market for the year 2007-08. 3. When the so called permission granted by the Gaon Panchayat for the period commencing from 1.7.2006 to 30.6.2007 nearing completion the petitioner made an application dated 28.5.2007 before the respondent authority for granting of a "license" for the said private market for the year 2007-08. It appears that on earlier period, that is, for the Panchayat year 2006-07 when the petitioner was accorded with such permission by the Gaon Panchayat to run the market some body challenged such arrangement by way of WP(C) No. 4829/06 on the ground that the said settlement in favour of the writ petitioner was not preceded by any tender process. The said writ petition was eventually disposed of by an order dated 20.6.2007 by a learned Judge of this Court directing the first respondent to examine the matter in its entirety, having regard to the rival claims of the petitioners therein and the petitioner herein, who was the respondent in the said writ petition. 4. In view of the said order the petitioner approached the first respondent not, only for a resolution of the issues as pointed out by the order referred to earlier of this Court but also for a "permission" in favour of the petitioner to operate the private market for the year 2007-08. 5. Once again the petitioner approached this Court by way of WP(C) No. 3665/2007 seeking appropriate directions in the matter of grant of the necessary "license" sought by him for the year 2007-08. During the pendency of the said writ petition the first respondent, however, considered the case of the petitioner pursuant to the orders of this Court referred to earlier. By an order dated 1.8.2007 the first respondent opined that the private cattle market, which the petitioner and his father were running on their property, should be settled by inviting tenders. In view of the said order the WP(C) No. 3665/07 and another writ petition which was tagged on to the said writ petition came to be closed without examining the issue. 6. Challenging the correctness of the decision of the first respondent dated 1.8.2007 referred to earlier the petitioner herein filed a fresh writ petition being WP(C) No. 4193/2007. In the meanwhile the 4th respondent invited tenders on 8.8.2007 for settlement of the private market run by the petitioner. 6. Challenging the correctness of the decision of the first respondent dated 1.8.2007 referred to earlier the petitioner herein filed a fresh writ petition being WP(C) No. 4193/2007. In the meanwhile the 4th respondent invited tenders on 8.8.2007 for settlement of the private market run by the petitioner. This Court by an interim order dated 23.8.2007 in WP(C) No. 4193/2007 referred to earlier, directed that the respondents may proceed with the tender process initiated under the NIT dated 8.8.2007 but should not take any final decision in that regard without leave, of the court. The petitioner also participated in the said tender process. When the WP(C) No. 4193/07 was taken up for final hearing a tentative opinion, it appears, was expressed that in the absence of any challenge to the Rule 47 of the Assam Panchayat (Financial) Rules, 2002 it would be difficult to maintain the claim of the petitioner and, therefore, the petitioner withdrew the writ petition after obtaining liberty to file a fresh writ petition. Hence the present writ petition. 7. Section 107 of the Assam Panchayat Act, 1994 and Rule 47 of the Assam Panchayat (Financial) Rules, 2002 or the impugned provisions whose constitutional validity is required to be examined in this Court in the present writ petition read as follows: 107. Settlement of private hat, ghat and fisheries, etc., by the Gaon Panchayat.- The powers of settlement of private hats, ghats an fisheries under the jurisdiction of the Gaon Panchayat shall be vested in the Standing Committee as under Sub-section (1)(i) of Section 22. 47. (1) Such markets or ferries or fisheries or pounds as are vested in or placed under the control and administrative of the Panchayat under Sections105, 106, 107, 108 and 109 of the Act shall be settled by inviting-sealed tenders affixing court fee stamp for such amount as has been prevailing otherwise and earnest money not below two percent of the minimum bid value for sale and settlement of the right to collect the authorised fees in respect of the markets or ferries or the fisheries and the pounds for a period coinciding with one Panchayats financial year. Earnest money so received shall be entered in a Register in Form No. 12 to the Schedule to these rules. Earnest money so received shall be entered in a Register in Form No. 12 to the Schedule to these rules. (2) Such tender notice shall be floated at least forty five days before the last day of Panchayat Financial year such tender notice shall state- Section 107 of the Assam Panchayat Act ostensibly authorises the Gaon Panchayat to settle private hatts, etc., under the jurisdiction of the Gaon Panchayat. Such a power is, by a statutory declaration, vested on the Standing Committee contemplated under Section 22 of the Act. 8. The expression "private hatt" is not defined under the Act but the expression "hatt" is defined under Section 2(19) as follows: 2(19) "Bazar, Hatt or Market" means any place within the administrative control of the local authority where persons assemble daily or bi-weekly or periodically for sale or purchase of article to human or animal consumption or of livestocks or of other merchandise. In other words it appears from the definition that any place where people gather either daily or periodically for sale or purchase of articles meant for the consumption either by human being or animals or of livestock or other merchandise is a "hatt", synonymously known as "market" or "bazar". The Section does not specify that such place where the above mentioned activities are carried on need to be either private property or property owned by some organ of the State. Therefore, irrespective of the ownership and title of the property on which such activities take place such a place is a market for the purpose of the Act. Section 107 authorises, as already noticed, the Standing Committee of the Gaon Panchayat within those jurisdiction a private hatt exists to settle such private hatt. 9. The expression "private hatt" and "settlement" occurring under Section 107 require an examination as both the expressions are not defined. In the absence of a definition of the expression "private hatt" and in view of the definition of the expression "hatt", noted earlier, the only inference we can draw is that when the Legislature used the expression "private hatt" it is to be understood as the place where people assemble either daily or periodically for sale or purchase of articles, livestock or other merchandise and the title and ownership of such place vests in some private parties, that is, persons other than the State and its instrumentalities. If that is the import of the expression "private hatt" the authority of the State to interfere with said activity by way of settlement is required to be examined. 10. A Constitutional Bench of the Supreme Court in Ganpati Singhji v. State of Ajmer and Anr. AIR 1955 SC 188 held at para 3 as follows: (3) It is admitted that the land on which the fair is normally held belongs to the appellant. That being so, he has a fundamental right under Article 19(1)(f)which can only be restricted in the manner permitted by Sub-clause (5). The holding of an annual fair is an occupation or business within the meaning of Article 19(1)(g), therefore, the appellant also has a fundamental right to engage in that occupation on his land provided it does not infringe any law imposing "reasonable restrictions on that right in the interests of the general Public", or any law. It was a case where the appellant before the Supreme Court challenged certain Rules framed by the Chief Commissioner of Ajmer for regulating cattle and other fairs in the State of Ajmer. The appellant was so compelled to challenge the said Rules because the appellant before the Supreme Court applied for a permission contemplated under the above mentioned Rules for running a cattle fair which he had been earlier running. Such permission was declined by the concerned District Magistrate. In the above mentioned background the Supreme held that the appellant before the Supreme Court had two fundamental rights under Article 19(1)(f), (which came to be repealed by a subsequent amendment) and Article 19(1)(g) to engage in the activity of running a cattle fair on his property and such rights are subject only to a reasonable restrictions imposed by law in the interest of general public. 11. Examined in the light of the above decision of the Supreme Court it is rather difficult to understand the expression "settlement" occurring under Section 107 of the Assam Panchayat Act. But as a matter of continuing practice the respondents have been inviting tenders from year to year for making such settlement contemplated under Section 107 of private hatts. In other words the right to use of private property is being granted to the highest bidder by the State for a limited period and for a specific purpose. But as a matter of continuing practice the respondents have been inviting tenders from year to year for making such settlement contemplated under Section 107 of private hatts. In other words the right to use of private property is being granted to the highest bidder by the State for a limited period and for a specific purpose. The above mentioned facts clearly make the transaction a lease as defined under Section 1051 of the Transfer of Property Act. The only hitch is that such a right pre-supposes the existence of some legally recognised and transferable right in the property. In the case of land belong to private parties there cannot be any right in favour of the State to lease out the property in favour of third parties and collect consideration for such lease. 12. The fact that either the petitioner or people who are similarly situated who are owners of the landed property on which such, hatts/markets are being conducted have either been asking for a licence from the Panchayat or they participated in the tendering process earlier does not enable the State to ignore the constitutional provisions and trample upon the fundamental rights of the petitioner under Article 19(1)(g) or constitutional right in Article 300A which prohibits the State from depriving any person of his property save by way of authority of law. It may be mentioned here that the law contemplated under Article 300A should not only be the letter of law authorizing such deprivation but a law which otherwise conforms to the requirement of the various other provisions of the Constitution like the 2nd proviso to Article 31A which prescribed that when landed property of any person is acquired, which is otherwise within the ceiling limit applicable to such person prescribed under any law, the state is bound to pay compensation which is required to be the market value of the property. As a matter of fact the Assam Panchayat Act under various provisions like Sections 23,55 and 87 authorises the Panchayats at various levels to acquired, hold and dispose of property. The above mentioned provisions stipulate the procedure by which such acquisition is to be effected. While the Gaon Panchayats are authorised under Section 23 to acquired any property Section 23 it does not authorise acquisition of property by way of compulsory acquisition, necessarily implying that such acquisition could only be a contract. The above mentioned provisions stipulate the procedure by which such acquisition is to be effected. While the Gaon Panchayats are authorised under Section 23 to acquired any property Section 23 it does not authorise acquisition of property by way of compulsory acquisition, necessarily implying that such acquisition could only be a contract. On the other hand in the case of Anchalik Panchayats under Section 55(4) the Anchalik Panchayats are authorised to acquire landed property by resorting to compulsory acquisition under the provisions of the Land Acquisition Act. 55(4) Where an Anchalik Panchayat requires land to carry out any of the purpose of this Act, it may negotiate with the persons having interest in the said land, and if it fails to reach at an agreement, it may make an application to the Deputy Commissioner of the district for acquisition of land, who may, if he is satisfied that the land is required for a public purpose, take steps where permitted by law to acquire the land under the provision of the relevant Land Acquisition Act, and such land shall on acquisition, vest in the Anchalik Panchayat. Similarly Section 87 authorises the Zilla Parishad to acquire landed property compulsorily by resorting to Land Acquisition Act in the manner specified under the said section which is similar to the procedure under Section 55(4). 13. Therefore, in our view the provision under Section 107 of the Assam Panchayat Act is not only inconsistent with the provisions of Sections 23, 55 and 87 but also repugnant to the provisions of Article 300A read with 2nd proviso to Article 31A. 14. Faced with the above situation, the learned Counsel for the state attempted to argue that the authority granted under Section 107 to settle the private hatts is in substance an aspect of the responsibility entrusted to the Gaon Panchayat under Section 19, Clause (xvii). Section 19 authorises the Gaon Panchayat to perform the various functions which under the above mentioned Clause includes the functions of regulating cattle fairs and festivals. 19. Functions of Gaon Panchayat.- Subject to such conditions as may be specified by the Government from time to time, the Gaon Panchayat shall perform the functions specified below-.... XVII. Marnkets and Fairs.- (1) Regulation of fairs including cattle fairs and festivals. 15. No doubt that Section 19 of the Assam Panchayat Act authorises the State to regulate the markets and cattle fairs. XVII. Marnkets and Fairs.- (1) Regulation of fairs including cattle fairs and festivals. 15. No doubt that Section 19 of the Assam Panchayat Act authorises the State to regulate the markets and cattle fairs. The question is whether such a power to regulate the markets can be exercised in such a way so as to completely deny the petitioner of his right to carry on a trade or business on a piece of property owned by him. We are sad to notice that almost sixty years after the decision of the Supreme Court reported in Rashid Ahmed v. The Municipal Board, Kairana AIR 1950 SC 163 the respondents still resort to an unconstitutional practice in view of the language of Section 107 of the Assam Panchayat Act. It is necessary to notice the facts, the issue and the decision of the Supreme Court in the above mentioned case. The petitioner before the Supreme Court (under Article 32) in the above mentioned case was carrying on wholesale business in vegetables and fruits within the local limits of the Kairana Municipality. On the 1st January, 1950 the Municipality brought into force certain bye-laws. Just before coming into force the bye-laws the Municipal Board put to auction the right to carry one wholesale business in vegetables. One Habid Ahmed became the highest bidder of such an auction. The effect of such an auction was held by the Supreme Court to be "presumably meaning thereby the monopoly right to wholesale business of vegetables". The petitioner before the Supreme Court also applied for a licence to continue his business. The Board rejected such an application. Subsequently a notice was issued to Rashid Ahmed the content of which was extracted by the Supreme Court in the above mentioned Judgment and it reads as follows You are hereby informed that the Municipal Board, Kairana, have given the contract of wholesale purchase and sale, of the vegetables, which is in force from the 1st day of January, 1950. It has been repeatedly promulgated, in the city by the beat of drum, through a Khakrob (sweeper) that excepting the contractor of vegetables the Municipal Board, Kairana, nobody shall deal in wholesale purchase and sale of vegetables at a place other than the one approved by the Municipal Board aforesaid (i.e., the place near police Post Imam). It has been repeatedly promulgated, in the city by the beat of drum, through a Khakrob (sweeper) that excepting the contractor of vegetables the Municipal Board, Kairana, nobody shall deal in wholesale purchase and sale of vegetables at a place other than the one approved by the Municipal Board aforesaid (i.e., the place near police Post Imam). As against this, you in the first place kept selling vegetables by wholesale, at the house near Jama Masjid otherwise known as Wizwala, despite occasional verbal warnings requiring you to desist therefrom, which were conveyed through an employee of the Board. On your failure to comply, your were warned by a notice in writing, dated 3rd January, 1950. The notice was duly served on you. But still you paid no heed. Accordingly a complaint was lodged against you, under the bye-laws, quoted above, in the Court of Pargana Officer, Tahsil Kairana. The complaint is still pending. Now your are selling wholesale by auction, vegetable at another place in Jama Masjid Bazar, which is a thoroughfare: Your above conduct is unlawful and in contravention of the Municipal Board's Bye-law 2 pertaining to vegetable contract Moreover, highly prejudicial as it is to the interest of both the contractor and the Board you are warned that after this notice has been served on you, you should cease to sell anymore vegetable in breach of the bye-laws above mentioned. Herein fail not. Therefore, Rashid Ahmed approached the Supreme Court. The Board did not assign any reason for rejecting the application of Rashid Ahmed. Before the Supreme Court it was argued that there was no provision under the bye-laws of the Municipal Board to grant such licences as sought by Rashid Ahmed. In the back ground of the above mentioned facts the Supreme Court opined that "the fact that the respondent Board had already auctioned the contract to Habib Ahmed might conceivably had some bearing on the refusal to grant a licence to the petitioner." The Supreme Court noticed that bye-law No. 2 of the Municipal Board recognised that "everybody will be entitled to do business at the place fixed by the respondent Board but as a result of a monopoly in favour of the contractor Habib Ahmed having been created, nobody else can do business at that place, as contended by the learned advocate for the respondent Board". In the background of the above mentioned fact the Supreme Court held- If it requires a licence then under Section 241(2)(a) the respondent Board cannot refuse such licence except on the ground that the place where the market or shop is established fails to comply with any condition prescribed by, or under the Act. It is conceded that the rejection of the petitioner's application was not based on any such ground but that it was because there was no bye-law authorising the issue of any licence. The Constitution by Article 19(1) guarantees to the Indian citizen the right to carry one trade or business subject to such reasonable restrictions as are mentioned in Clause (6) of that Article. The position, however, under bye-law 2 is that while it provides that no person shall establish a market for wholesale transactions in vegetables except with the permission of the Board, there is no bye-law authorising the respondent Board to issue the licence. The nett result is that the prohibition of this bye-law, in the absence of any provision for issuing licence becomes absolute. Further, bye-law 4 contemplates the grant of a monopoly to a contractor to deal in wholesale transactions at the place fixed as a market. Acting upon that provision, the respondent Board has granted monopoly to Habib Ahmed and has put it out of its power to grant a licence to the petitioner to carry on wholesale business in vegetables either at the fixed market place or at any other place within the municipal limits of Kairana. This certainly is much more than reasonable restrictions on the petitioner as are contemplated by Clause (6) of Article 19. This being the position, the bye-laws would be void under Article 13(1) of the Constitution. On the other hand, if there is no bye-law requiring the petitioner to take out licence, then there can be no justification for the respondent Board to stop the petitioner's business or to prosecute him. 16. Close on the heels of Rashid Ahmed's case (supra) came another judgment of the Supreme Court reported in Mohammad Yasin v. Town Area Committee, Jalalabad and Anr. AIR 1952 SC 115 where the issue though was not identical with the issue in Rashid Ahmed but was substantially similar. 16. Close on the heels of Rashid Ahmed's case (supra) came another judgment of the Supreme Court reported in Mohammad Yasin v. Town Area Committee, Jalalabad and Anr. AIR 1952 SC 115 where the issue though was not identical with the issue in Rashid Ahmed but was substantially similar. The factual background of Mohammad Yasin in the language of the Supreme Court is as follows: (2) The case sought to be made out in the petition may be shortly stated as follows: The petitioner is a wholesale dealer in fresh vegetables and fruits at Jalalabad in the district of Muzaffarnagar in the State of Uttar Pradesh and claims to have been carrying on such business for the last 7 years or so at his shop situated in the town of Jalalabad. The vegetable and fruit growers used to bring their goods to the town and get them auctioned through any of the vegetable dealers of their choice who used to charge one anna in the rupee as and by way of commission. The respondent Committee which is a Town Area Committee has framed certain bye-laws under which all right and power to levy or collect commission on sale or purchase of vegetables and fruits within the limits of the town vest in the respondent Committee or any other agency appointed by the Committee and no one except the respondent Committee is authorised to deal in wholesale vegetables and fruits and collect the commission thereof in any place and in any event. The respondent Committee has by auction given the contract for sale of vegetables and fruits and for collecting the commission for the current year to the respondent Bishamber who, it is alleged, has never dealt in vegetables and fruits. The respondent Committee has not set up any market nor has it framed any bye-laws for issue of licences to the vegetable and fruit merchants. The bye-laws also provide for prosecution for the breach of any of the provisions of these bye-laws. Although, in terms, there is no absolute prohibition against carrying on business as wholesale dealer in vegetables and fruits, the result of the bye-laws requiring the wholesale dealers to pay the prescribed fee of one anna in the rupee to the contractor who holds the monopoly is, in effect, to bring about a total prohibition of the business of the wholesale dealers in vegetables and fruits. In the background of the above mentioned facts the petitioner before the Supreme Court argues that his fundamental right guaranteed under Article 19(1)(g) to carry on trade and business was infringed. The Supreme Court upheld the contention and directed as follows: [9] In this view of the matter the petitioner is entitled to a suitable order for protection of his fundamental right. The prayer in the petition, however, has been expressed in language much too wide and cannot be granted in that form. The proper order would be to direct the respondent Committee not to prohibit the petitioner from carrying on the business of a wholesale dealer in vegetables and fruits within the limits of the Jalalabad Town Area Committee until proper and valid bye-laws are framed and thereafter except in accordance with a licence to be obtained by the petitioner under the bye-laws to be so framed. 17. The facts of the present case are substantially similar. The order dated 1.8.2007 passed by the 1st respondent herein, in substance holding that the private market being run by the petitioner herein and his father at an earlier point of time should be settled by inviting tenders, is wholly illegal as it not only deprives the petitioner of his constitutional right to property recognised under Article 300A but also violates his fundamental right to carry on the business, which is not otherwise prohibited by any law, on his own property. We cannot really blame the respondents for their action in view of the language of Section 107 of the Assam Panchayat Act. We are, therefore, of the opinion that Section 107 of the Assam Panchayat Act is plainly unconstitutional as it violates Article 300A and also Article 19(1)(g) of the Constitution. 18. Consequently Section 107 of the Assam Panchayat Act and Rule 47 of the Assam Panchayat Financial Rules are declared unconstitutional. The petitioner would be entitled to carry on his business of conducting a cattle market on his private land. The respondents did not bring to out notice any other provision which requires any kind of a permission or licence to be obtained for running of such a market, from any one of the authorities of the state including the respondents herein except the provisions of Section 107 of the Assam Panchayat Act and Rule 47 of the Assam Panchayat Financial Rules. 19. The writ petition is accordingly allowed. 1. 19. The writ petition is accordingly allowed. 1. 105. Lease defined.- A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. Petition allowed.