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2023 DIGILAW 1224 (KAR)

Janakiram And Ramulu v. Deputy Commissioner

2023-10-13

MOHAMMAD NAWAZ, RAJESH RAI K.

body2023
JUDGMENT MOHAMMAD NAWAZ, J. - In this writ appeal, the appellants have assailed the order passed in W.P.No.202065/2023 dtd. 26/9/2023. 2. In the writ petition, a certiorari was sought to quash Annexure-F issued by respondent No.1 - Deputy Commissioner, Raichur and Annexure-G and H, notices dtd. 18/7/2023 issued by respondent No.3 - Commissioner, CMC, Raichur. 3. The above writ petition was disposed of by the learned Single Judge, reserving liberty to the petitioners to agitate all the contentions before the competent authority. Para-5 and 6 of the order passed in the writ petition is extracted hereunder: "5. Having heard the learned counsel appearing for the parties and taking into consideration the provision contained under Sec. 322 of Karnataka Municipalities Act, 1964, liberty is reserved to the petitioners to agitate all their contention before the competent authority. All contentions of the parties are kept open. Accordingly, writ petition is disposed of. 6. This Court, granted interim order and same stands extended till 11/10/2023 to enable the petitioners to approach the competent authority, if so advised." 4. We have heard the learned counsel for the appellants and the learned counsel appearing for the respondents and perused the material on record. 5. As per the appeal averments, earlier there was one vegetable market for the entire city of Raichur, at Osmania market. The said market neither had the facilities nor the amount of space required to cater the requirements of the growing population, etc. There was no scope whatsoever either for farmers to directly sell their produce nor there was any scope for new vendors to find any ground. The said market was highly centralized and inconvenient for the city dwellers living at far of places to purchase vegetables. Looking into the fact that there was unhealthy concentration and centralization of vegetable market at Raichur which was causing inconvenience to the general public at Raichur city, spread at a diameter of more than 10 kilometers, the CMC, Raichur passed a resolution on 15/10/2022 to permit selling of vegetables at places such as Nijalingappa nagar, LBS Nagar, M. Veeranna Circle, Jawahar Nagar, ADSMT Layout and also passed a resolution to regulate the markets by imposing cess and taxes as provided in the Karnataka Municipalities Act, 1964 (KMC Act for short). Further, pursuant to the resolution, a notification was issued, inviting interested persons to execute the work of collection of taxes and one Shankar Reddy S/o Pampana Gouda was the successful bidder. The markets started functioning smoothly between 4.00 a.m. to 9.00 a.m. at several places including M. Veeranna Circle without causing any disturbance or nuisance to anyone. 6. The grievance of the appellants is that vide Annexure-F, the Deputy Commissioner, without any regard or respect to the resolutions passed by the CMC, Raichur issued an order to shift the vegetable market from M. Veeranna Circle to Old Osmania Market, without seeking any opinion from the affected parties. Further, in pursuance of the said order at Annexure-F, the Commissioner, CMC, Raichur has issued impugned notices at Annexures-G and H dtd. 18/7/2023. 7. It is the contention of the learned counsel for the appellants that the impugned order and the notices violated the fundamental rights of the appellants and it is issued with malafides at the behest of the powerful cartel in the Old Osmania Market and also at the instance of one N. Mahaveer claiming to be the President of Osmania Tarakari Maratagarara Kshemabhivrudhi Sangha, Raichur. 8. The learned counsel drawing the attention of the Court to Annexure-E, would contend that the CMC, Raichur has issued endorsement refusing to scrap the contract work by stating that the entire process is in accordance with law and therefore, contend that the impugned order and the notices reeks of malafides and the entire illegal exercise is done at the behest of the cartel represented by respondent No.4. 9. The learned counsel has also contended that respondent No.1 has not followed the procedure contemplated under Sec. 306 of KMC Act and therefore, the order at Annexure-F and impugned notices are illegal. 10. A perusal of the material on record would clearly reveal that during Covid-19 lockdown and due to the restrictions imposed in the said period, to avoid concentration of population in the Old Market area, the District Administration and the CMC, Raichur established vegetable markets at various places such as Nijalingappa Nagar, LBS Nagar, M. Veeranna Circle, Jawahar Nagar, ADSMT Layout and permitted to operate between 4.00 a.m. and 9.00 a.m. Further, pursuant to the resolution dtd. 15/10/2022, vide Annexure-A and B of CMC Raichur, it was resolved to continue the said arrangement by collecting cess. 15/10/2022, vide Annexure-A and B of CMC Raichur, it was resolved to continue the said arrangement by collecting cess. Subsequently, as per Annexure-C tender was called for and one Shankar Reddy was given the contract of collection of cess from the vendors and the vendors were allowed to do business in the above places. 11. A perusal of Annexure-F issued by respondent No.1 - Deputy Commissioner reveal that, the said order to shift the vegetable market from M. Veeranna Circle to the Old Osmania Market was passed, considering the report dtd. 3/7/2023 of Superintendent of Police, Raichur as well as the report dtd. 5/3/2023 of CMC, Raichur. It is clearly stated that the said market is in the prime circle, due to which the public, including the students, the commuters, etc. have been put to inconvenience and hardship. It is also stated that since the vendors used to dispose of the rotten vegetables on the road, the same has caused nuisance inviting accidents and also since the surroundings were kept in an unhygienic condition, it is likely to spread diseases. 12. From the above, it could be seen that order at Annexure-F and subsequent notices were issued keeping in view the interest of the public and therefore, it cannot be said that the impugned orders are either arbitrary or malafide. 13. It is contended by the learned counsel appearing for respondent Nos.1 to 3 that the appellants have no locus to challenge Annexure-F, G and H as there is nothing to show that they have been vending vegetables at M. Veeranna Circle and even otherwise, they have no any right since they are not licensees or lease holders under the guise of which they are doing business. It is contended that as a temporary arrangement, due to the restrictions imposed during Covid-19 pandemic, so as to maintain social distancing, resolution was passed permitting to sell vegetables at different places and that by itself will not create any right on the vendors doing business pursuant to the said resolution. There is a considerable force in the said arguments advanced by the respondents. 14. There is a considerable force in the said arguments advanced by the respondents. 14. The learned counsel for the appellants has relied on the judgments in 1996 AIHC 147 [Gundappa vs. Divisional Commissioner, Gulbarga], (1972) 1 Mys.L.J. 453 [S. Mahadeva Singh vs. Divisional Commr.], 1983 (1) Kar.L.J. SN 40 [Thimmaiah vs. Divisional Commissioner], (1974) 1 Kar.L.J. SN 43 [S. Mahadeva Singh vs. Divisional Commr.] and 1999 AIHC 3994 [Mahiboobsab vs. TMC, Kerur]. It is contended that respondent No.1 under Sec. 306 of the KMC Act can only suspend the execution of any order or resolution of a Town Municipal Council and therefore, ordering to shift the market is not within his power. He would also contend that the procedure contemplated under clause-2 of Sec. 306 of KMC Act was also not followed. 15. The judgments relied on by the learned counsel for the appellants are not applicable to the case on hand. In those cases, the aggrieved persons were either granted license for putting up a construction, or they are lessees etc. In such circumstances, it was held that under Sec. 306 of the KMC Act, the Commissioner is not invested with the power of final disposal of any dispute between the parties. Hence, the contention of the learned counsel for the appellants cannot be accepted. In the instant case, as stated supra, at the time of Covid-19 pandemic, when restrictions were imposed, it was resolved to permit the sale of vegetables at different places. However, for the reasons assigned in Annexure-F, the market at M. Veeranna Circle was ordered to be shifted to Old Osmania Market, as a matter of policy involving public interest. Hence, the relief sought by the appellants cannot be granted. 16. For the above discussion, we find that there is no merit in the appeal. Consequently, the appeal is dismissed.