1. This order governs the disposal of Miscellaneous Petition No. 274 of 1960 also.
2. This petition under Article 226 of the Constitution is directed against the Municipal Committee, Piparia, the Collector, Hoshangabad, and the Sub-Divisional Officer, Sohagpur. The connected petition is directed against the Municipal Committee, Piparia, only.
3. The petitioners in these two petitions are dealers in grain and they also do the business of commission agents in the town of Piparia. 'The Municipal Committee, Piparia, resolved on 15-9-1960 to close the existing market and shift it to another site with effect from 15-10-1960 (An-nexures t and II). The Municipal Committee intimated the petitioners that they can carry on the business of selling and purchasing grain and practise as commission agents only within the limits of the new market and threatened to cancel their licenses to practise as brokers or adhtiyas if they continue to carry on business in the old market. The petitioners have challenged the resolution of the Municipal Committee as ultra vires and ineffective inasmuch as the present grain market was established under the Central Provinces and Berar Agricultural Produce Market Act, 1935 (No XXIX of 1935) (hereinafter referred to as the 'Act of 1935') and the Municipality is not, according to the provisions of that Act, entitled to establish any market within three miles of the existing market. It has also been pleaded that the municipality has not yet acquired the site on which the new market is proposed to be shifted and the facilities for carrying on the marketing business on the new site are not reasonable within the meaning of Section 50 of the C. P. and Berar Municipalities Act, 1922, (hereinafter referred to as the 'Municipalities Act'). In addition to these pleas, Shri R. K. Pandey, learned counsel for the petitioners, in Misc. Petition No. 274 of 1960 raises an additional point that the establishment of a new market or the shifting of the old market could be done only by framing suitable byelaws and not by a resolution.
4. It is not disputsd by Shri A. P. Sen for the respondent, Municipal Committee, that the present market was established under the Act of 1935 by a notification issued under that Act on 14-3-1942. The respondents have further stated that the municipality has power to establish a market independently of the establishment of markets under the Act of 1935. In addition, Shri Sen has raised some preliminary objections to the tenability of the petitions. He contends that as the petitioners have given notices to the Municipality and the State Government for filing a civil suit to obtain a declaration that they have a customary right to use the market site, they cannot maintain the present petitions for the same relief. It is further stated that the matter has been taken tothe Collector, Hoshangabad, under Section 53 of the Municipalities Act for quashing the resolution of the Municipality and the same matter cannot, therefore be agitated in these petitions. The third preliminary objection is that the market is being shifted to the new site at the instance of the petitioners and they are estopped from raising this point.
5. We shall first consider the preliminary objections. So far as the alternative remedy of filing a civil suit for a declaration to establish the customary right of the petitioners is concerned, it is pertinent to observe that in the petitions before us, we are not called upon to adjudge such a right in favour of the petitioners. The scope of the petitions is restricted to determining whether the resolution of the municipality directing shifting of the market is in conflict with the notification establishing the market under the Act of 1935 and whether the municipality could alter the 'site of the market by a mere resolution. Both these matters are independent of the customary right mentioned in the notices. Accordingly, we do not agree that relief should be refused to the petitioners on that ground.
6. It is admitted by the petitioners that the question of quashing the resolution has been taken up to the Collector under Section 53 of the Municipalities Act and is pending before him. However, the powers of the Collector under that Section can be exercised only on the ground that the resolution is likely to cause injury or annoyance to the public or to any class of body of persons or to lead to a breach of peace. It is not on these considerations that the petitioners have challenged the resolution before us. What they claim is that the resolution is in excess of the powers of the municipality and is ineffective being in conflict with the notification under the Act of 1935 establishing the existing market. This matter cannot be gone into by the Collector.
7. The third preliminary objection is equally without any merit. It is true that the grain merchants had themselves applied (Annexure 'J') for the shifting of the market. Some of the petitioners were signatories in the application. However, there can be no estoppel against law. If the closure of the existing market is without legal power, consent of the petitioners does not validate it. All the same, this is a matter which should be considered in awarding costs.
7a. Under Section 3 of the Agricultural Produce Market Act, 1935, the State Government has been given the power to declare that any place or market is a market for the sale and purchase of agricultural produce. Section 16 provides that --
'no person shall, notwithstanding anything contained in any enactment for the time being in force, within the area of such market or within a distance thereof, to be notified in the Official Gazette in this behalf in each case by the State Government, set up, establish or continue or allow to be continued any other market for the purpose of the purchase and sale of agricultural produce'.
On the other hand, Shri A. P. Sen contends that the section does not prohibit a local authority from establishing a market as the word 'person' in Section 16 should be construed to apply only to individuals. As defined in Section 3 (Clause 42) of the General Clauses Act, 1837, 'person' includes 'any company or association or body' of individuals, whether incorporated or not'. It has been held in Pallonjee Eduljee and Sons v. Lonavala City Municipality, ILR (1937) Bom 782 : (AIR 1937 Bom 417) that the term 'person' includes a municipality. Accordingly, wehold that the prohibition under Section 16 of the Act of 1935 applies to the municipality also.
8. There is another reason why the Municipality cannot establish a market. The C. P. and Berar Agricultural Produce Market Act, 1935, has recently been repealed by the Madhya Pradesh Agricultural Produce Markets Act, 1960, (Act No. XIX of 1960) (hereinafter referred to as the Act of 1960). This Act received the assent of the President on 3-8-1960 and came into force on 15-10-1960. The resolution of the Municipal Committee Piparia, establishing the new market was passed on 15-9-1960, but the date for shifting the market was fixed by that resolution to be 15-10-1960. Accordingly, the provisions of the Act of 1960 would be applicable to the establishment of the market which was to take effect from the date on which the Act of 1960 came into force. Under subsection (5) of Section 3 of this Act, the local authority has been expressly prohibited from setting up, establishing or continuing any market within the market area or within such distance therefrom as may be notified in the Gazette. Under Section 43 of this Act, it is provided that 'the markets established or market areas declared under the said Act (i. e. repealed Act of 1935) shall be deemed to be markets established or market areas declared under this Act'. The notification issued under the earlier Act, therefore, continues to be in force and the market which was established in 1942 continues to be the market under the Act of 1960. The Municipal Committee, Piparia, therefore, could not establish any other market within three miles of the existing market and the resolution to that effect is in excess of the powers of the Municipality.
9. Shri A. P. Sen has drawn our attention to the proviso to Section 3 of the Act of 1960 which is as follows :
'Provided that nothing in this sub-section shall apply to --
(i) purchase or sale of such agricultural produce where it is sold by the producer of such person to a person who purchases it for his own private consumption,
(it) sale or purchase by head loads;
(iii) retail sale'.
His contention is that although the municipality has been debarred from setting up or continuing any market under Sub-section (5) of that section, it can still establish a market for any of the three purposes which are mentioned in the proviso. This is correct; but it does not give the municipality any power to discontinue the existing market to the extent to which it can function as a market under the Agricultural Produce Market Act
10. It is then argued that even if the existing market continues, the petitioners cannot practise as commission agents or Adhatias therein. The power of the Municipality to frame bye-laws for licensing brokers, commission agents, etc., is derived from Section 179(1)(c) of the Municipalities Act which is as follows :
'179 (1) :-- In addition to any power specially conferred by this Act the Committee may make bye-laws -
* * * * *
(c) :-- for licensing brokers, commission' agents, measures and weighmen practising their calling in public-places within the municipality. . . . . .'
It will be noticed that the licence relates to practising ot the profession in public places. A market established under the Agricultural Produce Market Act within the limits of the municipality would be a public place. The license cannot be restricted to any particular public place. The bye-laws framed by the municipality in this behalf will enure for the benefit of all these persons irrespective of the public place where they practise within the limits of the municipality. The petitioners have, therefore, a right to practise their profession in the existing market. This is, of course, subject to the byelaws of the Market Committee which may be framed under Section 17 of the Act of 1960. We are told that no such byelaws have yet been framed and the market Committee has also not yet been constituted.
11. Shri A. P. Sen referred to the memorandum issued by the State Government on 25-2-1955 and contended that the operation of the Agricultural Produce Market Act has been stayed. The State Government has no power to stay the operation of an Act. However, if it is meant that the establishment of the market was cancelled by this memorandum, we may only state that as the market has been established by a notification, It could be disestablished by adopting a similar process and not by an executive order. Reading the memorandum we find that it is a reply to the Registrar of the Co-operative Societies, who had probably suggested the formation of a Market Committee. The word 'Nirwachan' used in the memorandum means 'election' and it is, therefore, clear that it was the election of the Market Committee alone which was postponed by this memorandum. There is nothing in the memorandum to show that the State Government intended to cancel the establishment of the market.
12. Lastly, Shri A. P. Sen pointed out that the State Government has recently issued Notification No. 1308/ XIV/I, dated 1-3-1960, signifying their intention to disestablish the market for sale and purchase of agricultural produce as previously declared by the Notification, dated 14-3-1942. Objections have been invited to the proposal and the matter would be decided by the State Government after hearing the objections. In view of this, he contended that the petitions should be dismissed. The action of the State Government to disestablish the market is yet in its formative stage and nothing final has so far been decided. The notification issued in 1942 would continue in force until necessary action under Section 4(1) of the Act of 1960 has been taken. Till then the municipality of Piparia has obviously no right to stop the petitioners from carrying on their business in the existing market.
13. Shri R. S. Dabir has also supported the petitions on the ground that the provision which has been madeon the new market site is not reasonable within the meaning of Section 50 (j) of the Municipalities Act. Further,the new site on which the new market is intended to belocated has not yet finally vested in the Municipal Committee, as the proceedings for acquisition of the land havenot yet been completed. On the first contention, themunicipality has, in return, given details about the facilities on the new site. On the second contention, ShriSen has stated that the State Government took possession of the site under Section 17 of the Land AcquisitionAct and has handed it over to the Municipality which hasdeposited the price of Rs. 13,000/- fixed by the Collector;but the matter is pending as the High Court has set asidethe award of the Collector and has directed fixation ofthe compensation afresh. It is not necessary for us togo into these points in view of our finding on the firstcontention that the municipality has no power to orderthe closing of the market established under the AgriculturalProduce Market Act,
14. In the connected Miscellaneous Petition, Shri R. K. Pandey has advanced an additional contention that the shifting of the market could only be done by framing, the necessary byelaws and not by a mere resolution. He relies upon Section 179 (1) (b-1) of the Municipalities Act and also the decision in Nagpur Kshatriya Khatik Samaj v. Nagpur Corporation, AIR 1959 Bom 112. In that case, the question of the validity of the order of the Corporation prohibiting the sale of meat in weekly markets was being, considered. It appears that the counsel on both sides had conceded that the matter could be regulated only by framing bye-laws. The question whether the site of a market could be shifted by a resolution did not at all arise for consideration in that case. Clause (b-1) of Section 179 provides for framing, of byelaws for 'inspecting and regulating the use of markets and prohibiting the levy of unauthorized dues therein'. Obviously, the matter covered by this clause does not relate to the establishment of a market but to inspection and regulation of the use of markets which question arises only after the market has been established. We do not find anything in the Municipalities Act prohitting the establishment of a market by the Municipality by-a resolution. The contention is without any substance,
15. In the result, both the petitions are allowed. A writ of mandamus shall issue in the followins terms : --
(1) that the Municipal Committee, Piparia, shall not take any steps for the closure of the existing market so-long as it continues as established under the Agricultural Produce Market Acts of 1935 and 1960; and,
(2) that the Municipal Committee aforesaid shall not restrain the petitioners from carrying on their business of grain-dealers, adhatias or dalals in the existing market and shall not cancel their licenses on account of their doing so.
Under the circumstances of the case, we direct thatthe parties shall bear their costs as incurred. Securityamount shall be refunded.