At, High Court of Gujarat At Ahmedabad
By, THE HONOURABLE MR. JUSTICE N.V. ANJARIA
For the Petitioner: Mihir Thakore, LD. Senior Advocate With Archana R. Acharya, Advocate. For the Respondents: R13, Prakash Jani, LD. AAG With Manan Mehta, AGP., S.H. Sanjanwala, LD. Sr. Advocate With Dilip L Kanojiya, Advocate.
1. The present common order shall treat and decide the captioned two Civil Applications filed under Article 226(3) of the Constitution, praying to vacate the ex-parter interim order passed in the respective Special Civil Applications.
2. The following interim order dated 23rd March, 2017 was passed in Special Civil Application Nos.6067 of 2017 and 6063 of 2017 while issuing Rule.
“Rule, returnable on 19.6.2017. Learned AGP waives service of notice of rule for respondents. Interim relief in terms of paragraph 20(E) is granted till then. All the parties shall complete their pleadings before the returnable date.
It would be appropriate for the petitioners to verify that whether persons against whom there are allegations in the petition are necessary parties to such litigation or not.”
2.1 What was prayed and granted in terms of paragraph 20(E) of the petition was to “direct all the respondents to act in accordance with law and not to evict the petitioners from the Ring Stalls allotted to them and/or create any hindrance in their business or removing their boards from the Ring Stalls allotted to them” during th pendency of the petition.
3. The batch of petitioners in the two petitions, 12 and 04 in number respectively, stated to have been engaged as wholesale vegetables commission agents who were granted the Ring Stalls being an open space admeasuring about 15X10 ft. in the Sardar Patel Market Yard of the Agricultural Produce Market Committee, Jamalpur, Ahmedabad. It appears that the Market Committee had passed Resolution dated 17th July, 2015 allott
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d the place which was described as open plot on lease/rental basis for a period of 11 months. At that time the grantees had paid Rs.07.50 lakhs and they further paid monthly the lease rental. The lease of the place was initially granted for 11 months and came to be extended from time-to-time, and at present such period has already expired. The original petitioners have been occupying the place and found paying rent as stated on their behalf.3.1 The relief which came to be prayed by filing the petitions was to direct that letter which was in the nature of report dated 30th January, 2017 by the District Registrar and Deputy Director, Agriculture Produce Market Committee, Ahmedabad was bad and illegal. Secondly, it was prayed to direct the Director not to act upon the aforesaid report of the District Registrar and to desist from taking any action under Section 47 or any other provisions of the Gujarat Agriculture Produce Markets Act, 1963. The third prayer was to direct all the respondents to act in accordance with law and not to evict the petitioners from the Ring Stalls allotted to them and not to create any hindrance in their business, etc.3.2 It may be noted that when interim relief order dated 23rd March, 2017 was passed in the Special Civil Applications, the said show-cause notice, though issued, was not served upon the petitioners. Subsequently three of the petitioners filed Special Civil Application No.8164 of 2017 incorporating a challenge to the said show-cause notice adding the prayer for setting aside notice, maintaining other prayers in repeat, which were prayed for in the other two petitions. As ordered on 24th August, 2017, the said petition was kept to be heard with the captioned cognate petitions. It was pointed out in course of hearing that in Special Civil Application No.8164 of 2017 interim order was passed directing not to disturb the possession which, however, was not extended while Rule was issued on 24th August, 2017.4. Pressing the prayer for vacating interim relief granted on 23rd March, 2017 in terms of Paragraph 20(E) of the petition, on behalf of the applicant-Agriculture Produce Market Committeeoriginal respondent No.3 in the petition, learned senior counsel Mr.Mihir Thakore with learned advocate Ms.Archana Acharya relied on to submit that the Ring Stalls which came to be allotted by the elected body to the petitioners formed part of internal 10 Mtrs. wide road in the market yard area which was not a place to be used for the purpose of having a Ring Stall for business. He sought to fortify his say by demonstrating the same from the map produced on record of the Civil Application (Annexure-D, Page 23). He submitted that 10 Mtrs. road cutting across horizontally and vertically within the market yard area has been occupying by the holders of the Ring Stalls thereat, because of which the entire passage has got blocked. It was next submitted that all the petitioners-holders of Ring Stalls have been served with the notice dated 11th April, 2017 to remain present on a particular day and to submit reply orally or in writing as to why the allotment of space for Ring Stall should not be cancelled.4.1 Learned Additional Advocate General Mr.P.K. Jani appearing for opponent Nos.13 and 14 – the District Registrar, Co-operative Societies and the Director, Agriculture Produce Market Committee respectively, put-forth his submissions to support the case of the applicant Market Committee for vacating the interim order. He submitted that functioning of Ahmedabad Agriculture Produce Market Committee which is one of the oldest Market Committee established in the year 1948, involves huge turn-over of vegetables, and that the functioning has been adversely affected because the petitioners are allotted the Ring Stalls on the road/passage portion of the market yard. He submitted that because of the occupation of the petitioners upon the allotment as above, the trucks carrying vegetables are unable to enter the market yard and they cannot go to-and-fro. He further submitted that the elected body when assumed the power in the year 2015, misused and misapplied the provisions of Circular dated 17th June, 2000 issued by the Director, Agriculture Produce Market Committee, Gujarat State, which permitted allotment of 10% of the total Ring Stalls or less than 10 Stalls, whichever is less, to be allotted by the Market Committee without tender. The Ring Stalls allotted to the petitioners, submitted learned Additional Advocate General, was without tender, in breach of the conditions of the circular and that all the above, the allotment came to be made at the open place on the road portion which resulted into serious hardships, as the road and passage passing through market yard stands occupied.4.2 Learned senior counsel Mr.S.H. Sanjanwala for the original petitioners was vehement in opposing the prayer vacating interim relief. He, at the outset, submitted that application under Article 226(3) was not liable to be entertained on the sole ground that the interim relief was granted on 23rd March, 2017 and the application for vacation of interim relief under Article 226(3) was filed with lazy approach after about four months in August, 2017. He submitted that urgency of the matter and quick action by the aggrieved party who has suffered ex-parte interim relief, was the spirit and purpose of provision of Article 226(3). He submitted that a party cannot invoke provision at belated point of time. This submission is required to be terminated at this stage itself without having any substance, in asmuch as on a bare reading of Article 226(3) of the Constitution, it does not refer to any time element or time dimension to require a party to file application thereunder for eviction of ex-parte interim relief timebound. It permits application by party who had suffered ex-parte interim relief to move such application provided the conditions of Article 226(3) fulfilled.4.3 It was further submitted by learned senior counsel that the Market Committee itself had allotted the Ring Stalls to the petitioners after passing Resolution, therefore now it cannot turn around to make a case that it was illegal or irregular allotment. He cited the principle that no person should be allowed to take an advantage of his own wrong, buttressing the same pressing into service the decision in Bharatiya Seva Samaj Trust v. Yogeshbhai Ambalal Patel [(2012) 9 SCC 310].4.4 It was next submitted that not only the petitioners were granted space for Ring Stalls under a Resolution passed by the APMC, but they were the lessees on payment of rent and the rent is still being paid and accepted by the Market Committee. It was submitted that they cannot be evicted except in accordance with procedure in law. Learned senior counsel further submitted that after the order for interim relief was passed, the petitioners issued show-cause notice. He questioned the validity of the show-cause notice itself and submitted that action taken purportedly under Section 47 of the Gujarat Agriculture Produce Markets Act, 1963 could not have been taken by applying the said provision. Learned senior counsel was fair to point out that by filing Civil Application Nos.5283-5284 of 2017 in the two petitions respectively, prayer has been made to stay all the proceedings pursuant to the show-cause notice dated 11th April, 2017.5. As noticed, the case of the original petitioners has been that they are allotted Ring Stalls at the Sardar Patel Market Yard by passing Resolution, on rent basis and that they have been paying the rent, yet as per the report prepared by the Director, they would be subjected to adverse action of vacating. Against this broad case, the facts put-forth in the present Civil Applications are that elected body at the applicant – Market Committee which came into power in February, 2015, misapplied the instructions in the Resolution dated 17th July, 2015 and proceeded to allot space as Ring Stalls to the petitioners-allotees in open violation of the norms. The details of the Stalls allotted are stated in paragraph 2.3 of the application. The condition in Circular dated 17th June, 2000 that the Market Committee can allot 10% of the total Stalls in the market yard or less than 10 in number, whichever is less as per the rules mentioned in the Circular, could not be disputed. It is stated that the allotment on the basis of the rent note executed in favour of the person concerned for a period of 11 months and 29 days. Though the period of rent note was subsequently extended, there is no dispute that subsequently it was not extended and presently, such rent note is not in currency.5.1 It is specifically pleaded by the applicant that the allotment of Ring Stalls at the market yard has been in the 10 ft. wide passage which leaves no space for ingress and outgress to the stall holders, traders coming to the market area and the vehicles seeking entry inside the market area. It is stated that in the plan sanctioned by the competent authority, the area which has been allotted to the petitioners was required to be kept open as passage. The space where the Ring Stalls were allotted was not open space as such but at the road/passage meant for entry and exit and for traffic movement of people and vehicles inside the market area.5.2 The facts further show that the irregularity and illegality in allotment of Ring Stalls in the market yard was having been noticed, opponent No.14 – Director of APMC initiated inquiry seeking to act under Section 47 of the Act. He addressed a communication to the District Registrar, Co-operative Societies, seeking report on this aspect – (i) The area which has been allotted, whether is could have been granted? (ii) What was the purpose of the area mentioned in the plan sanctioned by the Market Committee? (iii) Because of the ring stalls whether any hindrance/ problem has been caused to the agriculturists, businessmen and customers? (iv) Whether the market committee has verified the circumstances for allotment of the area or there is any irregularity in the same? In response, the District Registrar solicited a report from the applicant – Market Committee. A report came to be submitted by the applicant – Market Committee on 29th December, 2016 submitting necessary explanation along with separate documents.5.3 Thereupon the District Registrar and Deputy Director addressed letter dated 30th January, 2017 opining for taking appropriate action for cancellation of allotment made to the petitioners. It is at the juncture of addressing this letter that the petitioners rushed to file a petition and obtained interim relief. The submission made by learned senior counsel for the applicant herein could not be brushed aside lightly that when the petition was filed, cause of action cannot be said to have been arisen as it was only a report submitted and no further steps requiring the petitioners to evict the place were taken.5.4 Significantly, a further and subsequent development took place after the aforesaid report dated 30th January, 2017, which was that the Director, Agriculture Produce and Rural Marketing, proceeded to issue show-cause notice dated 11th April, 2017 to each of the petitioner fixing the date of hearing and asking the petitioners to show cause about cancellation of the Ring Stalls allotted to them in the place of passage/road in the market yard. As noted above, by filing Special Civil Application No.8164 of 2017, some of the allotees have already challenged the said notice. In the captioned Special Civil Application No.6067 of 2017 and Special Civil Application No.6063 of 2017, there is no such prayer made so far to challenge the said show-cause notice, nor the said development has been added in the pleadings by seeking any amendment. Civil Applications being Civil Application No.5284 of 2017 and Civil Application No.5283 of 2017 respectively have been filed seeking stay of the show-cause notice, wherein notices are issued without any further order.5.5 As already noticed, the interim relief prayed for and granted in terms of paragraph 20(E) seeks a direction against the respondents to act in accordance with law and not to evict the petitioners. The show-cause notice dated 11th April, 2017 to the petitioners is issued by which the respondent authorities have been acting in accordance with law and asking the petitioners to submit their explanation. There is no gainsaying that the showcause notice could have been properly issued by the respondent in compliance of the due procedure to act in accordance with law.6. This being the show-cause notice is evidently a step in the process which may culminate into a decision by the authority, for which however each of the petitioner-allotee are afforded opportunity of hearing to defend their case. The said notice is part of exercise of powers. The said notice appears to have been issued after the aforesaid report dated 30th January, 2017, does indicate that the decisional process is underway and no decision is taken. The petitioners would have an opportunity to put-forth their case in response to the said showcause notice. They would be able to submit that for consideration in accordance with law all the aspects and contents which are raised on their behalf by their learned senior counsel.6.1 In other words, when the show-cause notice is issued and no final decision is taken and any such decision is yet to culminate in accordance with law, the whole conduct on part of the petitioners to approach this Court appears to be a hurried-up act. In these circumstances, interim relief against eviction is not required to be continued, when such eventuality has not arisen and the show-cause notice is pending awaiting the defence and explanation of the petitioners. There is no decision with which the petitioners can be said to be aggrieved so as to be entitled to enjoy the interim relief as prayed for in the main petition.7. For all the aforesaid reasons and the circumstances obtained inclusive of the above aspect of the show-cause notice pending to culminate into a decision in accordance with law, the interim relief granted in the main petition is not liable to be continued and requires to be vacated. Hence, the interim relief granted in Special Civil Application No.6067 of 2017 and Special Civil Application No.6063 of 2017 in terms of paragraph 20(E) as per order dated 23rd March, 2017 is hereby ordered to be vacated.Rule is made absolute.FURTHER ORDERAt this stage, learned senior advocate Mr.S.H. Sanjanwala requested that the order may be stayed for 15 days.In the facts and circumstances of the case, more particularly for the reasons assigned and the grounds weighed with the Court for vacating interim relief, the Court does not see any merit in the request to be exceeded to, hence the same is rejected.