SCA/1316120/2008 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 13161 of 2008 With SPECIAL CIVIL APPLICATION No. 13649 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= HAJI GULAMNABI ISMAILBHAI SHAIKH - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR DILIP B RANA for Petitioner(s) : 1, MR UMANG OZA, AGP IN SCA NO. 13161 OF 2008 & MR VINAY S PANDYA, AGP IN SCA NO. 13649 OF 2008 for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1 - 2. DS AFF.NOT FILED (N) for Respondent(s) : 1 - 2. MR BS PATEL for Respondent(s) : 2, MRS RANJAN B PATEL for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 26/11/2008 COMMON ORAL JUDGMENT 1. With the content of the learned Counsel appearing for both the sides, the matters are finally heard today. SCA/1316120/2008 2/14 JUDGMENT 2. The short facts of the case appear to be that the petitioner of SCA No. 13161 of 2008, who shall be referred to as the licencee, was allotted shops by the respondent market committee, who is the petitioner of SCA No. 13649 of 2008. It is an admitted position that agreement is entered into by the licencee with the respondent market committee, which inter alia provides vide condition No. 7, that there shall be prohibition against use of the stall by any other party. Condition No. 11 provides that if the licencee for one reason or another, has discontinued use of the shops for more than three months, the licence shall automatically come to an end, and without notice the respondent market committee shall be entitled to take possession. Condition No. 15 provides that licencee shall pay electricity bill and other maintenance charges. 3. As per the market committee, since the petitioner discontinued to use the stall for a period exceeding three months and licence stood terminate. Further, as per the respondent market SCA/1316120/2008 3/14 JUDGMENT committee electricity bill of the Torrent Electricity Company remain unpaid, which resulted into discontinuation of the use of stalls, which were allotted to the petitioner. The same happened as back as in the year 2006- 2007. As per the respondent market committee, the stall is also used by some other persons. The respondent market committee considered the matter and proceeded to take over the possession and the possession has been taken over by the respondent market committee. At that stage, the petitioner had approached to this Court by preferring SCA No. 11688 of 2008 challenging the decision of the respondent market committee. The petitioner-licencee, withdrew the said SCA No. 11688 of 2008, with a view to approach before the State Government, by preferring Revision Application. The Revision Application was preferred before the State Government, and the State Government in the said Revision Application decided the matter against the respondent market committee. However, the say of the respondent market committee is that no SCA/1316120/2008 4/14 JUDGMENT opportunity was given by the State Government to put forward the case and even final order was not forwarded by the State Government to the respondent market committee. It is under these circumstances, the licencee has preferred the SCA No. 13161 of 2008, for seeking direction against the respondent market committee to implement order of the State Government. Whereas the respondent market committee has preferred the SCA No. 13649 of 2008 for challenging the decision of the State Government. 4. Heard Mr. Rana learned Counsel appearing for the petitioner-licencee in both the petitions, Mr. BS Patel learned Counsel appearing for the market committee in the respective petitions, Mr. Umang Oza learned AGP in SCA No. 13161 of 2008 for respondent No. 1 and Mr. Vinay S Pandya learned AGP in SCA No. 13649 of 2008. 5. It is an admitted position that the status of the petitioner is as the licencee of the respondent market committee. As the stalls have been allotted on licence basis, no right vest in the property of the respondent market committee SCA/1316120/2008 5/14 JUDGMENT of the licencee. The conditions as referred to hereinabove, of the agreement, are express and they provide for automatic termination of the licence, if the use is discontinued for a period of more than three months. The record further goes to show that during the accounting year from 1st April, 2008, no market committee fee is paid by the licencee, except of Rs. 44.50 paisa as against the volume of the work done by him. The market committee fee was paid during the earlier period. Therefore, if the stall is actually not used for doing the business or the purpose for which the licence has been granted, the very purpose of allotment of the stalls by the respondent market committee to licence- holder would be frustrated, since no income would be derived of the licence fee. The payment of Rs. 44.50 paisa as the market committee fee goes to show that it is no compliance to the condition for utilization of the shops for the purpose, with which, the same have been allotted to the petitioner. 6. The contention of the petitioner-licencee is SCA/1316120/2008 6/14 JUDGMENT that he was sick and therefore, unable to utilize the shops. Even, if such contention is considered for the sake of examination, then also as recorded by the State Government, he was under treatment of the Doctor from 9.7.2008. Therefore, the period from 1.4.2008 onwards, in any case up to 9.7.2008, remained as non- utilization of the stalls. If the period is considered from 1.4.2008 to 1.7.2008, period of three months would stand covered, attracting automatic seizure of the licence. Further, as observed earlier the licencee has agreed for the right with the respondent market committee to take back the possession, without notice and upon the consequence of cessation of the licence. Therefore, under these circumstances, if the respondent market committee has proceeded on the basis that the licence is cancelled and the possession is to be taken over and the possession is actually taken over, such action on the part of the respondent market committee cannot be said arbitrary, or without any authority under the law. SCA/1316120/2008 7/14 JUDGMENT 7. It may be recorded that this Court had an occasion to consider the similar question on the aspect of right of the licencee in the property of the market committee in SCA No. 75 of 2005 in case of GUJARAT STATE CO OPERATIVE MARKETING FEDERATION LTD. v. STATE OF GUJARAT decided on 12.5.2008. In the said case this Court inter alia observed at paragraph Nos. 6 to 11 as under: “6. Mr.Patel, learned Counsel for the petitioner submitted that even if the petitioner is a lessee of the godown, which is owned by the Market Committee, after the termination of the licence for taking possession of the godown, it is required for the Market Committee to file suit for eviction in the Civil Court and there is no power with the Market Committee to take possession. The said contention of Mr.Patel cannot be accepted for the simple reason that once the status of occupier in a property is as that of licensee, the moment licence is terminated, no right continues to remain in the proper and the licensor is entitled to take possession and, therefore, the action of the authority to take over the possession cannot be said without there being any authority under the law and hence the said contention is without any substance. 7. The contention of Mr.Patel that the suit for eviction must be filed by the Market Committee also cannot be accepted, because if under law the licensor which is Market Committee has power to take possession by the termination of the licence or upon the expiry of the licence, the Market Committee cannot be relegated to file civil suit for eviction, because it is the owner of the property and in the dominion control of the property. If such compulsion on the part of the Market Committee is read in respect to the management of its own property including market yard, it would result into absurd situation. It is required for the Market Committee to see that the property remains in full control and the same are allowed to be used by either licence holder or to any other person on licence basis when as per the provisions of the Transfer of Properties Act, no right continues with the licensee the moment the licence is terminated of the licensee and, if the Market Committee is compelled to file civil suit for eviction, it would SCA/1316120/2008 8/14 JUDGMENT result into prohibiting the party to exercise the rights which are otherwise available in law and, therefore, such a contention of Mr.Patel cannot be accepted. 8. In the present case, even if on the question of legality and validity of the action of the Market Committee for termination of the licence is considered, it appears that as per the Committee and the State Government, it is also found that the Market Committee had not allowed the godown to be used by the third party/ occupier and there is material produced on record to show that the payment is made by the occupier/third party by account pay cheque to the petitioner. There was no such authority with the petitioner to hand over the possession of the godown to third party, more particularly when the status of the petitioner was only as licensee. It is not even the contention of the petitioner is that such sub-letting was permissible as per the agreement of the licence. It may not be required to consider the contention that there is any violation of principles of natural justice. If the matter is considered as per the provisions of Transfer of Properties Act and the General Law. But since the Market Committee is a statutory authority, it has given opportunity of hearing to the petitioner and the order has been passed thereafter. If there was failure on the part of the petitioner to vacate the godown and if the Market Committee has taken possession of the godown, may be with the assistance of Police, such an action on the part of the Market Committee cannot be said to be unreasonable or arbitrary, because as observed earlier, the Market Committee is the owner and Licensor of the property and is in the dominion control of the property and the capacity of the petitioner was as of licensee and no right continued to remain in existence the moment the licence was terminated. 9. Mr.Patel, learned Counsel for the petitioner submitted that the action is taken in purported exercise of the power under Section 30 of the Gujarat Agriculture Produce Market Act(hereinafter referred to as "the Act") and he submitted that as per Section 30 of the Act, the power can be exercise only against the person who is found to be operating in the Market yard without holding valid licence. He submitted that the petitioner is having a valid licence and, therefore, power under Section 30 of the Act could not have been exercised and hence the action was beyond the scope of Section 30 of the Act and, therefore, the action deserves to be quashed and set aside. 10. It is true that as per the provisions of Section 30 of the Act, there is power for summary eviction against a person who is found to be holding in the market yard without holding licence, and such power relates to prohibiting and removing of the person in the market area if his activity is without valid licence. The language of valid licence is related to the holding of the licence under the Act. As such Section 30 of the Act had no applicability in a matter where the market committee has SCA/1316120/2008 9/14 JUDGMENT to take the possession of its own property, which has been given on licence basis to any person, may be holding licence or otherwise, for utilization on licence basis. The rights for maintenance of the property of a Market Committee would be governed by the provisions of the Transfer of the Properties Act and general law. Merely because reference is made under Section 30 of the Act, would not invalidate the action or would not render the action of the Market Committee as illegal or without authority, more particularly when this Court on merit has found that as per the General Law, the Market Committee would entitle to take action upon termination of the licence in the property or upon the expiry of the licence. 11. Therefore, the said aspects, in my view, would not assume any importance for the purpose of deciding the substance of the matter as to whether the action of the Market Committee was justified in taking possession of the property in question or not. 8. It may be recorded that against the aforesaid decision, matter was carried before the Division Bench of this Court in Letters Patent Appeal No. 737 of 2005 (Coram: G. S. Singhvi, & A.S. Dave, JJ.) decided on 20.5.2005, and it was observed by the Division Bench of this Court as under: “After arguing the case for some time and on the basis of the instruction given by Mr. M.R. Shah, Chief Executive Officer of the appellant, Shri B.S. Patel made a request that his client may be permitted to withdraw the appeal with liberty to avail remedy by filing civil suit. At the same time, Shri Patel also made a request that the observations contained in the impugned order regarding the nature of possession of SCA/1316120/2008 10/14 JUDGMENT the appellant may be declared as per- incuriam and liberty may be given to the Civil Court to decide the issue after considering the evidence, which may be produced by the parties. Shri Dilip Rana, learned counsel for the Agricultural Produce Market Committee, Vadodara, respondent No.2, says that he does not have any objection. In view of the above, the appeal is dismissed as withdrawn with liberty to the appellant in terms of the prayer made. We also make it clear that the Civil Court, if approached by the appellant, shall decide the issue regarding the nature of possession of the appellant wholly uninfluenced by the observations contained in the order of the learned Single Judge.” 9. The aforesaid shows that the Division Bench did not interfere with the aforesaid view, after some arguments by the learned Counsel for the appellant and thereafter, the matter was withdrawn. 10.If the order of the State Government is examined in light of the aforesaid legal SCA/1316120/2008 11/14 JUDGMENT position, it can be said that the State Government has committed an error in interfering with the action of the market committee and it has lost sight of the important aspect that the petitioner-licencee had no right in the properties of the respondent market committee, which were allotted to him. It has also not considered that the petitioner-licencee has not used the stalls prior to 9.7.2008. 11.Under these circumstances, it can be said that the State Government has committed an error apparent on the fact of the record. If the right vest to the respondent market committee, as per law and as per the agreement to take back the possession and if the possession was already taken over, the action of the respondent market committee was not required to be interfered with in the revisional jurisdiction, which has been interfered with by the State Government. Therefore, it can be said that the State Government has exceeded in exercise of the jurisdiction, when the right of the parties were governed by the agreement and the law prevailing SCA/1316120/2008 12/14 JUDGMENT as per the Transfer of the Property Act read with the provisions of the Gujarat Agriculture Produce Market Act and the Rules. 12.Mr. Rana learned Counsel appearing for the petitioner contended that the respondent market committee has chosen not to take any action against certain persons, who have also discontinued to use the stalls and the petitioner is picked-up for taking action. Therefore, it was submitted that the action of the respondent market committee is arbitrary and therefore, this Court may interfere. 13.As such there is no authenticated or reliable material was available on record before the State Government as raised by the petitioner. Therefore, the respondent market committee had no occasion to deal with the same. Further, such persons are not parties to the proceedings before the State Government or before this Court. In any case, if the licence of the petitioner has ceased and the action is taken by the respondent market committee in accordance with law, it can hardly be resisted on the SCA/1316120/2008 13/14 JUDGMENT ground that no action is taken by the respondent market committee against others whose rights have also ceased. The present petition is not for seeking prayer against the respondent market committee for taking action against those persons, but the petitioner wants to take shelter of such contention to resist the action of the respondent market committee, which otherwise is found legal and in accordance with law as per the terms and conditions of the agreement. Therefore, such contention cannot be accepted. 14.Mr. Patel learned Counsel appearing for the respondent market committee appears to be right in submitting that the other ground on the basis of which the respondent market committee has communicated for cessation of the licence, namely other than use of discontinuation of the use, are also not considered by the State Government. 15.However, even if the ground, which is considered by the State Government is examined, the same cannot be maintained in the eye of law. SCA/1316120/2008 14/14 JUDGMENT Therefore, in any case order of the State Government cannot be sustained. Such may not require much discussion on the contention as sought to be canvassed by Mr. Patel learned Counsel appearing for the respondent market committee. 16.In the result Special Civil Application No. 13649 of 2008 is allowed and Special Civil Application No. 13161 of 2008 is dismissed. Rule made absolute in Special Civil Application No. 13649 of 2008 and rule is discharged in Special Civil Application No. 13361 of 2008. No order as to costs. 17.Mr. Rana learned Counsel appearing for the petitioner prayed that the operation of this order be stayed for some time, so as to enable his client to approach before the higher forum. 18.Considering the facts and circumstances, as no right in the property of the respondent market committee is found by this Court, such request is declined. (JAYANT PATEL, J.) Suresh*