1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No.4403/2007 [Mahatma Phule Pushpa Utpadak Association through its President .vrs. State of Maharashtra through its Secretary and others] ............................................................................................................................................................................................. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ................................................................................................................................................................... Mr. R.L. Khapre, Advocate for the petitioner, Mr. J.B. Jaiswal, AGP for respondent no.1/State, Mr. U.S. Dastane, Advocate for respondent no.2/APMC, Mr. C.S. Kaptan, Advocate for respondent no.3/NMC, Mrs. U.A. Patil, Advocate for respondent no.4. ......... CORAM : K.J. ROHEE AND PRASANNA B. VARALE, JJ DATED : OCTOBER 7, 2008 1. Heard the learned counsel for the parties. 2. The petitioner is a registered Public Trust whose members are agriculturists principally growing flowers in their agricultural fields. According to the petitioner, the members thereof individually sell their agricultural produce on retail basis to the purchasers who purchase flowers for their personal consumption or for their family members. 2 3. On 1.9.2007 Respondent No.2 - APMC, Nagpur moved Respondent No.3 - NMC that since the petitioner has not obtained licence under the provisions of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963 the petitioner should be prohibited from continuing its activities in Netaji Market, Buldi. By acting on the said communication, Respondent No.3-NMC issued notice to the petitioner on the same day i.e. on 1.9.2007 calling upon the petitioner to vacate the market shed allotted to it in Netaji Market, Buldi. The petitioner has challenged the said communication/notice. 4. It was urged by the learned counsel for the petitioner that the petitioner sells flowers to the individual purchasers for which no licence is required to be obtained from Respondent No.2 - APMC. According to the learned counsel for the petitioner, APMC cannot insist for licence to the petitioner and consequently the action taken by Respondent No.3 - NMC on the basis of communication by Respondent No.2 - APMC is illegal and requires to be quashed 3 and set aside. 5. On the contrary, the learned counsel for Respondent No.2 - APMC submits that the members of the petitioner carry on Trade in selling of flowers in bulk to the Commission Agents and not to the individual consumers as contended by the petitioner. Under the provisions of Section 6 (1) of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963, such trade cannot be undertaken at any place except the market yard and that too without obtaining licence for that purpose. Since the petitioner has not obtained such licence, Respondent No.2 APMC was justified in requesting Respondent No.3 NMC to evict the petitioner from market shed in Netaji Market, Buldi. According to the learned counsel for the petitioner, before taking decision that the petitioner is required to obtain licence under Section 6 of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963, Respondent No.2 APMC has not given any hearing to the petitioner. Thus the decision is taken without following the principles of natural justice and as such the decision taken by 4 respondent no.2 APMC as well as the action taken by respondent no.3 NMC on the said decision are required to be quashed. In support of this submission, the learned counsel for the petitioner relies on M.P. State Agro Industries Development Corporation and another .vrs. Jahan Khan, AIR 2007 SC 3153, wherein it was held that : “where the major penalty of recovery of loss and stoppage of three increments imposed on delinquent is a major penalty - regulations envisage regular enquiry before major penalty is imposed - imposition of impugned penalty without holding enquiry was illegal - writ petition against impugned order was maintainable as the impugned order was passed in violation of principles of natural justice though alternate remedy was available”. 6. By relying on the ratio of this case, the learned counsel for the petitioner contends that it would be necessary in the present case to quash the communication and to direct the APMC to hear the petitioner before coming to the conclusion that the licence is required under Section 6 of the 5 Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963. 7. We find it difficult to appreciate this submission. In the present case, no doubt, no notice was given to the petitioner before taking decision by APMC. However, it does not mean that the petitioner cannot avail the remedy of preferring appeal against the said decision to the Director under Section 52 (B)(1)(a) of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963. In our opinion, considering the facts of the present case, when efficacious remedy was available to the petitioner, the petitioner should have approached the Director instead of asking this Court to invoke its extra-ordinary powers under Articles 226 and 227 of the Constitution of India. In view of this position, we are not inclined to entertain the petition. The same is consequently dismissed. 8. At this stage, the learned counsel for the petitioner, submits that the notice issued by Respondent No.3 – NMC for vacating the market shed should be quashed as the procedure laid down in Chapter VI-A of the City of Nagpur 6 Corporation Act, 1948 has not been followed by the Corporation. We are not inclined to do so, instead we extend protection to the petitioner from the eviction notice for a period of eight weeks from today or till the petitioner approaches the Director in appeal whichever is earlier. JUDGE JUDGE Gulande