1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR Writ Petition No.1361 of 2008 Kanhaiyalal S/o Durgaji Petre, Aged about 46 years, R/o Sihora, Tahsil Tumsar, District Bhandara. ... Petitioner Versus 1. The Agriculture Produce Market Committee, Gondia, through its Secretary, District Gondia. 2. The District Deputy Registrar, Co-operative Societies, Gondia, District Gondia. 3. Kapoorchand S/o Yojram Rahangdale, R/o Rapewada, Tahsil and District Gondia. ... Respondents Shri Subhash Paliwal, Advocate for Petitioner. Shri Anoop Parihar, Advocate for Respondent No.1. Smt. B.H. Dangre, Additional Government Pleader for Respondent No.2. Shri Anant Dixit, Advocate for Respondent No.3. CORAM : D.D. Sinha & Prasanna B. Varale, JJ. DATE : 12th August, 2008 2 Oral Order : 1. Heard the learned counsel for the respective parties. 2. By the present petition, the petitioner is challenging the action of respondent Nos.1 and 2 of denying him right to participate in the tender process. 3. It is contended by the learned counsel for the petitioner that the Tender Notice was issued by respondent No.1-Market Committee on 11-3-2008, whereby the tenders were invited for collection of market fees on cattle, sold in the Cattle Markets as well as in the Sitting Markets within the area of operation of APMC for the period from 1-4-2008 to 31-3-2009. The last date of submission of tenders was 17-3-2008 and the tenders were opened on the same day. 4. The learned counsel for the petitioner has submitted that Clause 3 of the Tender Notice stipulates that the tenderer should be a resident of Gondia District only and should submit a certificate of residence issued by the Gram Panchayat or Municipal Council, Gondia. It is contended that this Clause in the Tender Notice is violative of the fundamental right 3 guaranteed to the petitioner under Article 19(1)(g) of the Constitution. The learned counsel for the petitioner has contended that the petitioner is a resident of Sihora, Tahsil Tumsar, District Bhandara, and in view of the provisions of Article 19(1)(g) of the Constitution, being a citizen of this country, has a right to practise any profession, or to carry on any occupation, trade or business in any part of the country. It is contended by the learned counsel for the petitioner that the provisions of sub-clause (6) of Article 19 of the Constitution further stipulates that nothing in sub-clause (g) shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the rights conferred by the said sub-clause. 5. The learned counsel for the petitioner has submitted that in other words, the restrictions on fundamental right guaranteed by the Constitution to the citizens of this country under Article 19(1)(g) cannot be taken away except by operation of law imposing restrictions, which are reasonable in nature, and not otherwise. It is contended that in the instant case, the above-referred Clause 3 of the Tender Notice dated 11-3-2008 violates fundamental right of the petitioner guaranteed under Article 19(1)(g) and, therefore, the tender notice is violative of Article 19(1)(g) of the 4 Constitution, and hence, the impugned Tender Notice is unsustainable in law. 6. It is further contended by the learned counsel for the petitioner that the provisions of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963, nor the rules made thereunder enable the Market Committee to impose any restriction – reasonable or otherwise – on the fundamental rights of the petitioner, and, therefore, the action of the Market Committee permitting the residents of Gondia District only to submit tenders is not only unreasonable but, for want of legislation in this regard, is also unsustainable in law. The learned counsel further submitted that clause 3 of the Tender Notice is also violative of Article 14 of the Constitution, since it discriminates amongst the class of citizens, who are similarly circumstanced. 7. The learned counsel for the petitioner, therefore, contended that equality before law is a fundamental right guaranteed by the Constitution to all the citizens of this country within the territory of India and, therefore, Clause 3 of the Tender Notice, being violative of Article 14 of the Constitution, cannot be sustained in law. 5 8. The learned counsel for respondent No.1/Market Committee, on the other hand, supported the action of the Market Committee and contended that the issuance of Tender Notice dated 11-3-2008 as well as stipulation in clause 3 of the said Tender Notice are in conformity with the provisions of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963 and the rules made thereunder and, therefore, the action is sustainable in law. 9. It is contended by the learned counsel for respondent No.1/Market Committee that Section 29 of the said Act deals with the powers and duties of the Market Committee. One of the duties of the Market Committee mentioned sub-clause (xvii) of sub-section (2) of Section 29 of the said Act is to levy, take, recover and receive charges, fees, rates and other sums or money to which the Market Committee is entitled. It is submitted that the Market Committee is empowered to impose requisite fees on the sale of cattle in the weekly market and is also entitled to recover the same from the persons concerned. The learned counsel for respondent No.1/Market Committee further contended that Section 31 of the said Act empowers the Market Committee to levy and collect the fees in the prescribed manner at such rates as may be decided by it and Rule 33 deals with the procedure pertaining to collection of fees by the Market Committee. It is submitted that 6 the fees payable as per Rule 33(1) is required to be collected by the employee of the Market committee, who is not below the rank of permanent Clerk of the Committee. However, in the instant case, the State Government vide order dated 9-1-2008 has exempted the Market Committee from the application of the provisions of Rule 33 and, therefore, the Market Committee issued the Tender Notice calling for the tenders for collection of market fees from the Cattle Markets as well as Sitting Markets. 10. It is, therefore, submitted by the learned counsel for respondent No.1/Market Committee that though Clause 3 of the Tender Notice permits residents of Gondia District only to submit tenders, the restriction imposed cannot be said to be without authority of law or for want of legal competency. The learned counsel for respondent No.1/Market Committee further contended that the said clause is not violative of Article 14 of the Constitution, since Clause 3 applies only to the class of people who are residents of Gondia District only. The learned counsel has submitted that since the petitioner is not a resident of Gondia District, the stipulation in Clause 3 of the Tender Notice is not violative of Article 14 of the Constitution. 11. The learned Additional Government Pleader for respondent No.2 7 has contended that respondent No.1/Market Committee under the Act and the Rules is empowered to levy and collect the market fees. However, since the Government has exempted the Market Committee from application of the provision of Rule 33(1) of the Rules, the Market Committee had to issue the Tender Notice for deploying an agency for collecting the market fees from the Cattle Markets as well as the Sitting Markets and, therefore, the action taken is in view of the power vested in the Market Committee under the provisions of the Act and the Rules. 12. We have given our anxious thoughts to the contentions raised by the respective parties and perused the provisions of Article 19(1)(g) and (6) of the Constitution as well as the provisions of the Act and the Rules. It is not doubt true that all the citizens of this country have a right to practise any profession or carry on any occupation, trade or business in any part of the country in view of Article 19(1)(g), which is a fundamental right given and guaranteed by the Constitution. At the same time, the State is not prevented from making any law imposing reasonable restrictions on the exercise of rights conferred under Article 19(1)(g) of the Constitution. 13. The Agriculture Produce Market Committee being a Local Authority in view of Section 12 of the Act, is also a 'State' within the meaning 8 of Article 12 of the Constitution. It is also not in dispute that Section 31 of the Act empowers the Market Committee to levy and collect fees in the prescribed manner at such rates as may be decided by it. Similarly, the provision of Rule 33(1) of the Rules empowers the Market Committee to collect fees payable under the Act by the employee of the Committee not below the rank of permanent Clerk. It is, therefore, evident that the power to levy fees and collect the same is a statutory power vested in the Market Committee. In normal course, in view of the provision of Rule 33(1) of the Rules, the employee of the Market Committee not below the rank of permanent Clerk could collect the market fees payable under the Act. In the instant case, in view of the power exercised by the State Government under Section 59 of the Act, the provision of Rule 33(1) of the Rules is exempted from application and, therefore, the Market Committee has to evolve a procedure whereby the collection agent was required to be appointed by undertaking the tender process. It is, therefore, evident that, in the instant case, Clause 3 in the tender document incorporated by the Market Committee cannot be said to be without authority of law. The observations made by the Division Bench of this Court in para 25 of the judgment in Pratibha Industries Ltd., Mumbai and another v. State of Goa and others, reported in 2006(5) Mh.L.J.737, are relevant, which read as under : 9 “Turning to the second aspect of challenge based on the touchstone of Article 19(1)(g), there is no fundamental right in a citizen to carry on business whatever he chooses and his right must be subject to reasonable restrictions imposed by the executive authority in the interest of public convenience as laid down by the Apex Court in the case of T.B. Ibrahim vs. Regional Transport Authority, AIR 1953 SC 79. It has also been reported in the case of Achutan C.K. vs. State of Kerala, AIR 1959 SC 490 that there is no fundamental right to enter into contractual relations with the Government. But even an individual has no legal right to carry on business with the Government.” In the instant case, right of the petitioner to practise any profession or to carry on any occupation, trade or business in the District of Gondia is neither violated nor curtailed by any action of respondent No.1/Market Committee. Clause 3 of the tender document, which permits residents of Gondia District only to submit tenders does not offend the fundamental right of the petitioner under Article 19(1)(g) of the Constitution, since the procedure for collecting fees evolved by the Market Committee is as per the provisions of the Act and the Rules and, therefore, the contention of the learned counsel for the petitioner that respondent No.1/Market Committee has no authority 10 of law cannot be accepted. 14. So far as infringement of right of equality before law is concerned, the contention canvassed by the learned counsel for the petitioner in this regard also cannot be accepted. In the instant case, Clause 3 of the Tender Notice applies equally to the class of people who are the residents of Gondia District. There is no discrimination amongst the people who are residents of Gondia District. The petitioner not being the resident of Gondia District falls in a separate class of people, who are not residents of Gondia District. It is well settled that the reasonable classification in the interest of general public by itself will not offend the provisions of Article 14 of the Constitution; provided the same is done to serve the public good. It is the case of the Market Committee that if the tenderer is from local area, i.e. Gondia District, he is not only aware about the local situation, but in case of a dispute, it is easier for the Market Committee to effectively pursue the dispute raised against such person. 15. For the reasons stated hereinabove, no case is made out for indulgence. The Writ Petition is dismissed. JUDGE JUDGE 11 Lanjewar