THE KEONJHAR REGULATED MARKET COMMITTEE AND ANR. Vs. STATE OF ORISSA THROUGH SECRETARY, URBAN DEVELOPMENT AND ANR.
HIGH COURT OF ORISSA
The Keonjhar Regulated Market Committee And Anr.
State Of Orissa Through Secretary, Urban Development And Anr.
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S.K. Ray, J. -
(1.) THE Petitioners Nos. 1 and 2 are respectively Keonjhar Regulated Market Committee (hereinafter referred to as the Market Committee) represented by its Chairman and Secretary of that Committee. This writ application has been filed to quash Annexure -7 which is an order issued by the Under Secretary to the Government in its Urban Development Department to the District Magistrate, Keonjhar, copy of which has also been forwarded to the Petitioners under memo No. 516 dated 10 -2 -1972, for information and necessary action, and to injunct the opposite party No. 2 from carrying on any business in the agricultural produce in the market run by it.
(2.) BY notification No. 13700/CF dated 19 -7 -1966, issued under Sub -section (1) of Section 4 of the Orissa Agricultural Produce Markets Act, 1956 (hereinafter referred to as the Act) the State Government declared the areas specified in Schedule B thereto to be the market area of Keonjhar in the district of Keonjhar for the purpose of the said Act in respect of the agricultural produce specified in Schedule A annexed thereto. This notification was issued by the State Government in the Co -operation and Forestry Department. Again by another notification No. MIN, 22/66 -23049/CF7 -12 -1966, the State Government in the said department established a market committee comprising of the members enumerated in that notification. These two notifications are respectively Annexures 2 and 1 appended to the writ application. By another notification No. 66 -IN -5/70. 14412/CF dated 27 -6 -1970 issued in pursuance of Sub -section (5) of Section 4 of the Act, the State Government included the local limits of the Keonjhar Municipality and some other areas within the market area declared previously as per Annexure -2. The market committee, as initially constituted by the State Government, included the Chairman of the Keonjhar, N.A.C. as one of its members and it, by its resolution dated 18 -1 -1970, selected an area of Ac. 2.50 decimals of land, adjacent to the Municipality weekly market, for the purpose of setting up a market yard, being satisfied as to its suitability after a spot visit. This resolution was confirmed in its next meeting held on 24 -3 -1970. 'I he Chairman of Keonjhar N.A.C. was a consenting party to both these resolutions. (Annexures 4 and 5). Being moved by the Registrar of the Cooperative Societies, the State Government, in pursuance of Rule 46 of the Orissa Agricultural Produce Markets Rules, 1958, declared the selected site of Ac. 2.50 decimals as the market yard by notification No. 16168/CF dated 21 -7 -1970, which is Annexure -a. Subsequent to this notification, the market committee constructed a market yard on the site and fenced it all around with a total expenditure of about Rs. 10,000/ -.
In the meantime, the tenure of the first market committee having expired election was held for fresh membership of the market committee and the election result was declared by the S.D.O -cum -Election Officer of the Keonjhar regulated market committee on 25 -4 -1970. Since then the market committee comprises of new members. After reconstitution of the market committee, the aforesaid notification (Annexure -3) expanding the market area by inclusion of the local limits of Keonjhar Municipality was passed. It is alleged that the Chairman of the Keonjhar Municipality having lost his membership in the reconstituted market committee felt aggrieved by inclusion of the area of the Keonjhar Municipality within the market area and establishment of the market yard close to the Municipal weekly market area became instrumental in getting the impugned order, Annexure -7, passed. The operative part of this impugned order runs as follows:
In view of the above facts Government have been pleased to order that the operation of R.M.C. in Keonjhargarh Municipality near the Municipal Weekly Market may be stayed till a decision is taken on the report of the said committee.
This order was communicated to the Petitioners in memo No. 516 dated 10 -2 -1972 to the Chairman of the Market Committee for information and necessary action. Thereafter, the Registrar, Co -operative Societies on behalf of the Market Committee moved the Government in the Urban Development Department for its recall, but so far all his efforts have borne no fruit and the functioning of the market committee has practically been stayed for more than one and half years. This gave raise to the cause of action for filing of this writ application.
The sole contention of the Petitioners is that, the Urban Development of the State Government has no power or competency to issue the impugned stay order against the functioning of the market committee which is a statutory body and as such it has been passed completely without jurisdiction.
(3.) BOTH the opposite parties have filed their counters. Their objections essentially are:
(a) Market Committee has no legal entity inasmuch as, after issuance of the notification dated 27 -6 -1970, including the Municipality area within the market area, it has not been constituted in accordance with the provisions of Section 6(1)(iii)(a) of the Act.
(b) Notification dated 27 -6 -1970 encompassing the local limits of the Keonjhar Municipality area without the prior approval of the Municipal council is bad in law.
(c) The land comprising market yard has not been transferred to the market committee and the market committee, in fencing the market yard without obtaining permission of the Municipality under Rule 530 of the Orissa Municipal Rules has acted contrary to law and, as such, the impugned order Annexure -7 has been rightly passed.
(d) The provisions of the Act do not override the provisions of the Orissa Municipal Act and as under Section 297 read with Section 3(25) of the Orissa Municipal Act no person can open a new private market or continue to keep open a private market unless he obtains municipal licence to do so and as the market established by the market committee is a private market, the same cannot function in absence of a licence. Since licence having not been obtained, the Minister, Urban Development Department who is the Head of the Municipal organisations in the State is competent to pass the impugned order, Annexure -7.;
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