1 Lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION REVIEW PETITION NO.1144 OF 1997 WITH WRIT PETITION NO.2451 OF 1996 1 The Government of Maharashtra ] ] 2 The District Deputy Registrar for ] Co-operative Societies, Thane ].. Applicants. Versus 1 Smt.Shobha Sudhakar Mhatre ] residing at Post : Kon, Taluka ] Bhiwandi, District : Thane ] ] 2 Shri Dattatraya Laxman Lasure ] Kelkarwada, Bhidi Gally, Tilak ] Chowk, Kalyan ] ] 3 Shri Subhash Dattatraya Babde ] Bhoiwada, Vali-Peer Road, Kalyan ] ] 4 Shri Bhagwan Shankar Bhoir ] Residing at Kon, Taluka Bhiwandi ] District : Thane. ] ] 5 Shri Shahnawas Shamsuddin Dolare, ] Secretary,Peer Shahgul Hussain Saheb] Saheb Darga Trust, Village : Kon ] Taluka : Bhiwandi, District : Thane ] ] 6 The Agricultural Produce Market ] Committee, Taluka Bhiwandi ] District : Thane ] 2 7 Shri Naeem Salim Sheikh ] residing at village : Kon, Taluka : ] Bhiwandi, District : Thane. ].. Respondents. ] for self and on behalf of the others ] all Petitioners in Writ Petition No. ] 2646 of 1996 filed in this Hon’ble ] Court. ] Mr. C R Sonawane, AGP, for the Applicants Mr. Madhav Jamdar for Respondent No.7 CORAM : A M KHANWILKAR & R M SAVANT, JJ DATED : 06th April 2010 Per Court. 1. This Review Petition is for review of the order dated 16 th April 1996 passed in Writ Petition No.2451 of 1996. The said Writ Petition was filed for challenging Government Declaration dated 19 th March 1996 purportedly issued under Section 5(2) of the Maharashtra Agricultural Produce Marketing (Development Regulation) Act, 1963 declaring village Kon to be a sub market of Respondent No.2 for the trading of goats and vegetables. The challenge was on the ground that before issuance of the said declaration under Section 5(2) of the Act, the procedure required to be followed under Sections 3 and 4 read with Rule 51 of the 3 Bombay Agricultural Produce Market Rules of 1941 have not been complied with, for which reason, the declaration under Section 5(2) is vitiated. The Court accepted the said challenge and allowed the Writ Petition No.2451 of 1996 only on the finding that it is a common ground that without following due process provided under Sections 3 and 4 of the Act of 1973, the impugned declaration dated 19 th March 1996 has been issued. The question is whether the said approach permissible on facts and in law. 2. In the present case, it has now come on record that originally Bhiwandi Taluka of Thane District came to be declared as market area under Notification dated 16 th May 1957, issued in exercise of powers under the provisions of Bombay Agricultural Produce Markets Act, 1939. After coming into force of the Act of 1963, the Notification under Section 4(3) of the Act came to be issued on 6 th January 1971 declaring the area mentioned in Notification under Section 4(1) for regulating the marketing of agricultural commodities referred in the said Notification. 4 3. Before issuance of this Notification, the Notification under Section 4(A)(2) of the Act, 1939 which is para materia to Section 5(1) of the Act, 1963 came to be issued establishing a principal market in the market area. 4. Recently, the District Collector issued Notification dated 19 th March 1996 declaring that open land in village Kon Survey No.271, Hissa No.5/2 Part as a subsidiary market. It is this Notification which was the subject matter of challenge in Writ Petition No.2451 of 1996. 5. As aforesaid, this Court proceeded on the basis that the procedure under Sections 3 and 4 ought to have preceded before issuance of the said declaration under Section 5(2) of the Act. Section 5 of the Act reads thus :- “5. Establishment of markets. (1) For every market area, there shall be established a principal market, and there may be established one or more subsidiary markets 5 (2) The Director shall, as soon as possible after the issue of a notification under sub-section 1 of section 4, by a notification in the Official Gazette, establish any place (including any structure, enclosure, open place or locality) in any market area to be the principal market for the marketing of the agricultural produce specified in that notification; and may be the same notification, or any like notification, establish in any other like places in the market area, subsidiary markets for the marketing of such agricultural produce.” 6. From the plain language of this provision, it is noticed that for every market area if it is imperative to have a principal market, the appropriate authority is obliged to establish a principal market for every market area in terms of Section 5(1) of the Act. The said provision also provides that there will be established one or more subsidiary markets for every market area. The manner of establishing a principal market or subsidiary markets, as the case may be, is spelt out from Section 5(2). It postulates that as soon as possible, after the issuance of a notification under Section 4(1) of the Act, declaring the market area, the Director by the Notification, which is ascribable to Section 5(2) of the Act 6 published in the Official Gazette, shall establish any place in any market area to be principal market for marketing of the agricultural produce specified in the said Notification. It is open to the Director to notify an area as subsidiary market in the same Notification declaring the principal market or by a separate Notification to be issued under the said provision for establishing subsidiary market for the marketing of agricultural produce. 7. In that sense, taking recourse to procedure under Sections 3 and 4 of the Act as quintessence for issuance of declaration of establishing “principal market” or “subsidiary market”, as the case may be, under Section 5 is not necessary. That procedure is relevant for declaring the area as the market area for the purpose of Sections 3 and 4 of the Act. The principal market and subsidiary market would be essentially, the part and parcel of the larger market area notified under Section 4 of the Act. 8. Thus understood, the basis on which the order under review has been passed cannot be sustained on facts as also in law. 7 The same is, therefore, recalled and as a consequence of this order, the challenge in the petition would fail, for which reason the Writ Petition would stand dismissed. 9. Accordingly, the Review Petition No.1144 of 1997 is allowed and the Writ Petition No.2451 of 1996 is dismissed for the above reasons. Ordered accordingly. (R M SAVANT, J.) (A M KHANWILKAR, J)