ORDER
1. Rule, Service of rule is waived by Mr. Tushar Mehta for the respondent No. 1 and Mr. P. R. Abichandani, Ld. AGP for respondent Nos. 2 & 3.
2. In this petition under Article 226 of the Constitution, the petitioner who was earlier granted a licence for carrying on business as a general commission agent and as a trader in Stall No. 11-A the Sardar Patel Market Yard under the Agricultural Produce Market Committee (hereinafter referred to as the “APMC”( w.e.f. 17-8-96 on annual basis has challenged the non-renewal of the licence by the Impugned resolution dated 29-4-2000 (Annexure H) passed by the APMC which was thereafter confirmed by the Director of Agricultural Market and Rural Finance on 23-6-2000 (Annexure I).
3. After the licence was given to the petitioner on 17-8-96 as per Annexure A, the licence was renewed every year w.e.f. 1st October of the subsequent years. However when the petitioner submitted his applica-tion for renewal for the year 1999-2000 commencing from 1st October, 1999, the APMC issued a show cause notice dated 13-3-2000 (Annexure B) calling upon the petitioner to show cause as to why the petitioner’s application for renewal of the licence should not be rejected and why the petitioner should not be required to hand over possession of stall No. 11-A. The show cause notice was issued on the ground that the petitioner had transferred the stall to another party and the petitioner was employed with Ismailbhai having another stall in the same market yard, and, therefore, the licence was not required to be renewed in favour of the petitioner. The show cause notice was replied by the petitioner on 18-3-2000 as per the reply at Annexure D. A Sub-Committee of the APMC submitted a report against the petitioner. The Market Committee at its meeting held on 29-6-2000 passed Resolution No. 6 accepting the report and resolving that the licence in favour of the petitioner may not be renewed and the petitioner be required to hand over vacant possession of the stall to the Secretary of the Committee. Aggrieved by the said resolution, the petitioner went in appeal which came to be dismissed by the Director of Agricultural Marketing and Rural Finance vide order dated 23-6-2000 (Annexure I). Hence the petitioner has challenged the said orders before this Court.
4. At the hearing of the petition, Mr. B. G. Jani. Ld. Advocate for the petitioner has raised the following contentions :-
i. The impugned action of the Respondent Committee was in violation of the principles of natural Justice as the petitioner was not given a reasonable opportunity of hearing and producing the evidence in support of his case.
ii. The Impugned action was arbitrary as the petitioner and the petitioner’s father were carrying on the business in the stall in question with the help of the employees and the petitioner had not transferred the stall to any other person. The material on record was such that no reasonable person would arrive at the conclusion which has been arrived at by the Committee and therefore, the findings given by the Committee are perverse. The grounds on the basis of which the Committee has passed the impugned resolution are not sufficent and there is no warrant in law for coming to the conclusion that the
licence was not required to be renewed.
iii. The Impugned decision was otherwise also vitiated by malafides, as in the past, the petitioner’s father had made a complaint against the management of the APMC about the manner of allotting licences which allegations were found by the Registrar and the Director of Agricultural Marketing and Rural Finance to be true and, therefore, although on that occasion the Committee members agreed to allot a stall to the petitioner, subsequently, they settled the score with the petitioner’s father by taking the impugned decision.
5. On the other hand, Mr. K. G. Vakharla, Learned Sr. Counsel with Mr. Tushar Mehta, for the respondents and Mr. P. R, Abichandanl. Ld. AGP appearing for the State Government and Director of Agricultural Marketing and Rural Finance have opposed the petition and have raised preliminary objections to the effect that the petitioner has an alternative and efficacious remedy by way of a revision application before the State Government and also that the petition deserves to be dismissed for nonjoinder of necessary parties as the stall in question has already been allotted to another party and that if the impugned order is set aside, the new allottee will be adversely affected without getting any opportunity to submit his case.
It is further submitted that on merits also, the impugned decision was justified as the petitioner was employed elsewhere and the business in the stall in question was carried on by other persons as per the findings of fact given by the Committee and confirmed by the Director in appeal. Hence, this Court would not disturb those findings,
6. Before dealing with the rival submissions, it is necessary to set out the relevant provisions of the Gujarat Agricultural Produce Market Committee Act, 1965 (hereinafter referred to as the “Act”), the rules framed thereunder and the relevant conditions of the licence.
The provisions of the Act which are relevant for the purposes of this controversy read as under :-
“27. Licences, their issue renewal, suspension or cancellation etc. and appeals against refusal, suspension etc. of licence. – (1) On the establishment of a market Committee may, subject to rules, made in
that behalf, grant or renew a general licence or a special licence for the purpose of any specific transaction or transactions to a trader, general commission agent, broker………… or any person to operate in the
market area or part thereof or after recording its reasons therefor, refuse to grant or renew any such licence.
2. ……..
3. A market committee may, for reasons to be recorded in writing suspend or cancel a licence. –
(i) if the licence has been obtained through willful mis-representation or fraud, or
(ii) if the holder hereof or his servant or any person actions on his behalf with his express or implied
breach of any of the terms conditions or restrictions imposed by the licence, or
(iii) if the holder of the licence has been adjudged an Insolvent and has not obtained his discharge, or
(iv) if the holder of the licence is convicted of any offence under this Act.
Provided that no licence shall be suspended or cancelled unless the holder thereof has been given a reasonable opportunity to show cause against such suspension or cancellation.”
Rule 56 in so far as the same is relevant reads out as under : –
“56. Licensed traders and general commission agents. – (1) Any person desiring to obtain a licence to do business as a trader or a general commission agent in agricultural produce in any market area or part thereof shall make a written application in such form as the market committee may determine to the market committee and shall pay such fees as may be determined by the market committee subject to a maximum of Rs. 200: …….
2. On receipt of such application together with the proper amount of the fee, the market committee may, after making such in-quiries as may be considered necessary and on the applicant agreeing to abide by the provisions of the Act; rules and bye-laws and Such other conditions as may he laid down by the market committee for holding such licence grant to him the licence applied for.
3. Notwithstanding contained in sub-rule (21 the market committee mav refuse to grant
or renew a licence to any person who in its opinion is not solvent or whose operations In the market area are not likely to further efficient working of the market or are likely to impede the smoothw working of the market under the control of the market committee.
4. The licenge shall be granted for a period of one year after which it may be re-newed on a written application in such form as may be determined by the market committee, and after such inquiries as are referred to in sub-rules (21 as may be considered necessary and on payment of full fees as payable for fresh licence;
Provided that all licences shall remain in force from the date of issue till 30th Spetember following unless suspended or cancelled earlier.
5&6. ……………….
Condition Nos. 13, 14 & 15 of the License translated in English reads as under :-
“13. The business can be done only in the name in which the licence has been Issued. The licence cannot be transferred In favour of any other person.
14. The trading/business of the produce cannot be entered into with a non-licenser under the rules.
15. You will responsible for the acts of your helper or employees in the business. You will have to intimate about the change in the helper or employees. Except the registered representatives, no other person can work on behalf of the licensor.
7. A perusal of the aforesaid statutory provisions clearly indicates that a licence already granted may be suspended or cancelled if, interalia, the holder thereof or his servant or any person acting on his behalf with his express or Implied permission, commits a breach of any of the terms, conditions or restrictions imposed by the licence, these are the parameters for cancelling a licence. The parameters for not renewing the licence cannot ordinarily go beyond the parameters for cancelling the licence. The provisions of sub-Rule (3) of Rule 56 are, therefore, required to be read in light of the provisions of sub-Sections (1) & (3) of Section 27.
The submission of Mr. Vakhariya for respondent APMC is that licence is given to
an individual to do business as a trader in the market area and hence the licence is to be given to an individual for doing the business and he is not permitted to transfer the business to any person or to transfer the possession of the stall to another person.
The submission is valid in so far as it goes. The licence is to be given to a person for carrying on the business and not for transferring the possession of the stall by way of sub-letting or on licence basis, but the Act and the Rules themselves do not rule out the practice needs of the licence holder In taking assistance of employees and agents. Sub-Section (3) of Section 27 provides that if the holder of the licence or his servant or any person acting on his behalf with his express or implied permission commits a breach of any of the terms, conditions or restrictions imposed by the license, the licence is liable to be cancelled.
8. The controversy in the instant case is whether the petitioner was carrying on the business in Stall No. 11-A with the assistance of any of his family members or employees or whether the petitioner had transferred stall No. 11 -A to another party on lease or licence basis, and whether the business was being carried on in the name of the petitioner. Although, this question is a mixed question of law and facts, the decision not to renew the licence cannot be taken without giving the licence holder a reason-able opportunity of being heard. It is true that the Market Committee did issue a show cause notice pointing out the allegation against the petitioner. However, after the petitioner submitted his reply, the APMC or Its Sub-Committee did not give the petitioner any personal hearing where the doubts raised by the Committee about the defence pleaded by the petitioner could be tested or where the petitioner could have been permitted to produce the evidence in support of his case that he was himself carrying on his business but with the assistance of employees and/or family members. The Court, therefore, accepts the contention raised on behalf of the petitioner that he was not afforded a reasonable opportunity of being heard.
9. In the above view of the matter, it is not necessary to give any finding on any other contentions raised on behalf of the petitioner which contentions are kept open. Hence the impugned orders are required to be set aside
and the matter is required to be remanded to the APMC to hold a fresh inquiry wherein the petitioner shall be given an adequate opportunity of being heard and leading evidence including documentary and oral evidence in support of his defence.
10. The petitioner is therefore allowed in terms of the following :-
i. The impugned resolution/report and orders dated 29-4-2000 and 23-6-2000 at Annexures G & H respectively are hereby quashed and set aside.
ii. If the petitioner submits further statement/representation alongwith the documents, if any, to the APMC within one month from today, the Sub-Committee of the APMC shall give a personal hearing to the petitioner with an opportunity to clear Such doubts as may be raised in connection with the documents produced by the petitioner and any further clarifications which the Sub-Committee may seek.
iii. At the personal hearing, the petitioner shall also be permitted to produce the Account Books and other material in support of his case not he was carrying on business at the relevant time with the help of his employees/agents and/or family members.
After giving such personal hearing, the Sub-Committee shall submit Its report to the APMC and the APMC shall take a final decision in the matter without being Influenced by its previous decision which is being set aside by this order. The APMC and also the Sub-Committee shall keep in mind the observations made in Para 7 of this Judgment.
11. Since the allotment of the stall was made in favour of another party, as far back as on 29-4-2000 and since the Court has not gone into the merits of the dispute, the Court does not propose to disturb the allotment in favour of the third party which is not a party to this petition. In case, the petitioner succeeds and the Committee decides to renew the petitioner’s licence for the year 1999-2000 and subsequent years, the petitioner shall be allotted the next available shall in the same market yard.
12. The petition is accordingly partly allowed in the aforesaid terms. Rule is made absolute with no order as to costs.