JUDGMENT
S.K. Katriar, J.
1. This writ petition is directed against the order dated 18-7-2001 (Annexure-1), passed by the Managing Director of the Bihar State Agricultural Marketing Board (respondent No. 3), in Appeal Petition No. 2 of 2000, under Section 129(V) of the Bihar Agricultural Produce Market Act, 1960 (hereinafter referred to as “the Act”). The appeal was directed against the order dated 21 -9-2000 (Annexure-28), passed by the Secretary, Agricultural Produce Market Committee, Mohania (respondent No. 12), whereby the application of respondent No. 15 (Vijay Sen Singh) to hold a cattle fair known as Vijay Virat Pashu Mela on his Raiyati land for the period 2000-2001 was rejected.
2. Respondent No. 15 was earlier granted licence for holding Mela for sale and purchase of cattle since 1-10-1996 on his Raiyati land bearing plot Nos. 323 & 324, Khata No. 173. Respondent No. 15 was granted
licence to hold the Mela for three days a week namely, Friday, Saturday and Sunday, apart from six occasions every year between the period 1-4-1999 for 31-3-2000. There was allegation against him that he was holding the Mela for more than the permissible days and was depriving the Committee of its legitimate revenue. This led to suspension of the licence for a period of one month by an order dated 24-6-1999, but he was found to be holding Mela in defence of such order of suspension which led to the order of cancellation of licence dated 7-8-1999. By order dated 7-8-1999 of respondent No. 12, the licence of respondent No. 15 to hold the Mela between 1 -4-1999 to 31-3-2000 was cancelled which was affirmed by the appellate authority on 16-11 -1999. The same was challenged before this Court in C.W.J.C. No. 11448 of 1999, which was dismissed by order dated 6-12-1999 (Annexure-22). Respondent No. 15 herein challenged the same by preferring L.P.A. No. 43 of 2000 which was allowed by order dated 1-2-2000 (Annexure-23), passed by a Division Bench of this Court, whereby the aforesaid orders dated 7-8-1999 and 16-11-1999, passed by the authorities under the Act, were set aside. The matter was remitted back to respondent No. 12 to pass a fresh order after supplying a copy of a particular report which was not supplied to him. The sole ground on which the appeal was allowed by the Division Bench was that on account of non-supply of a certain report adverse to respondent No. 15, he had suffered prejudice, inasmuch as he could not challenge the position that the said report was not with respect to the Mela of respondent No. 15. It was further directed that till the matter is decided by respondent No. 12, respondent No. 15 shall not hold the Mela in question. Pursuant to the order in L.P.A. No. 43 of 2000, respondent No. 12 passed the order dated 7-3-2000 (Annexure-24), whereby he held that the said report related to the Mela of respondent No. 15 and reiterated the earlier order of cancellation. It is relevant to state that the matter relating to cancellation of the licence for the period 1-4-1999 to 31-3-2000 rested with this order and attained finality. In other words, the adverse findings have remained intact and have become final.
3. Thereafter, respondent No. 15 applied on 11 -3-2000 in Form No. XIX for issuance of licence for the period 2000-2001, but perhaps no order was passed by the Secretary of the Market Committee. Respondent No. 15 filed an application on 13-4-2000 before the Secretary of the Committee (respondent No. 12) that he had already applied for grant of licence for the period 2000-2001 but the decision was yet to be taken. Thereafter, the Secretary informed respondent No. 15 that the proprietor of Madhuban Virat Pashu Mela (the petitioner herein) had objected to the grant of licence and direction has been sought for from the Board. Thereafter, respondent No. 15 preferred C.W.J.C. No. 4060 of 2000 Vijay Sen Singh v. Bihar State Agricultural Marketing Board) for direction to the Committee to grant the licence for the period 2000-2001. The same was rejected by a learned Single Judge of this Court by his order dated 14-7-2000 (Annexure-25), on the ground that he is not a “desirable person” within the meaning of Rule 129(iii)(c) of the Bihar Agricultural Produce Markets Rules, 1975 (hereinafter referred to as “the Rules”), and also on the ground that he had disentitled himself from any relief by the writ Court on account of suppression of material facts. Respondent No. 15 challenged the same by preferring L.P.A. No. 1023 of 2000 which was allowed by a Division Bench of this Court by order dated 21-8-2000, since reported in 2000 (4) PLJR 586 (Vijay Sen Singh v. Bihar State Agricultural Marketing Board), and the appropriate authorities were directed to consider the application for grant of licence in terms of Rule 129 of the Rules within the time granted by the Court. It is of importance to state that the Division Bench observed that so far as the said order dated 7-3-2000 (Annexure-24), passed by the Secretary of the Committee (respondent No. 12) is concerned, reiterating the earlier order of cancellation of licence for the period 1999-2000, the Division Bench did not express any opinion and observed that it was open to respondent No. 15 (appellant therein) to challenge the same in accordance with law. As stated hereinabove, respondent No. 15 herein never challenged this order and, therefore, cancellation of licence for the period 1999-2000 on the specified grounds has become final.
4. Pursuant to the order of the Division Bench in L.P.A. No. 1023 of 2000, respondent No. 12 passed the order dated 21-9-2000 (Annexure-28), whereby the application of respondent No. 15 for grant of licence to hold the cattle fair on his Raiyati land has been rejected on the ground that he had contravened the terms of the licence of the previous period by holding cattle fair every day. Respondent No. 15 had continued to hold Mela during the period of suspension of licence in defiance of the order and had also deprived the Committee of its lawful revenue. Respondent No. 15 has been defaulter in payment of the dues. Madhuban Virat Pashu Mela is held at a distance of 3 kms. which is in contravention of the Board’s letter No. 6075, dated 3-11-1999; It is also stated in the order that the Committee earns revenue of Rs. 70,000/- per year, whereas the income from Vijay Virat Pashu Mela is Rs. 30,000/-per year. In that view of the matter, respondent No. 15 is not a “desirable person” within the meaning of Rule 129 of the Rules, and the application for grant of licence for the period 2000-2001 has been rejected. Respondent No. 15 appealed which has been disposed of by the impugned order dated 18-7-2000 (Annexure-1).
5. The present writ petition has been preferred by the holders of Madhuban Virat Pashu Mela which commenced the process of challenge to the acts of respondent No. 15. The petitioner has been holding cattle fair on Raiyati lands close-by and is a commercial rival of respondent No. 15. It has been preferred on the supposition that the appeal of respondent No. 15 has been allowed by the impugned order and the licence for the period 200-2001 has been ordered to be granted.
6. Elaborate submissions have been advanced before me in support of the respective stand of the parties. Learned Counsel for the petitioner has in substance submitted that the order dated 21-9-2000 (Annexure-28) is correct in law and should not have been set aside by the appellate authority. Learned Counsel for the authorities under the Act (respondent No. 2 to 7 and respondent Nos. 10 to 12) has supported the impugned order and has also supported the stand taken by respondent No. 15. Respondent No. 15 has supported the impugned order and has assailed the validity of the order of the Secretary (Annexure-28).
7. In view of my appreciation of the impugned order and the nature of the order. I am going to pass, there is no need to discuss the rival contentions of the parties because the same have overlooked the substance of the impugned order. As I read the impugned order, it appears to me that he has refused to examine the merits of the matter on the ground that the period of licence applied for has expired and, therefore, there is no need to examine the issues raised before him and the validity of the order of the Secretary (Annexure-28) on merits. I am of the view that on account of long-drawn conflict between the parties, being a recurring issue, he ought to have examined the order of the Secretary (Annexure-28) on merits. Law is well settled that issues involving fixed tenures, for example grant of yearly licence, should in public interest be examined and decided by the Court even if no relief can be granted to the petitioner, provided the issues will recur. The law in this behalf has been enunciated in the Constitutional Law of India by H.M. Seervai (4th Edition), Volume 2, the relevant portion of which occurring at page 1117 is set out hereinbelow for the facility of quick reference:
Petitions challenging the grant of Government contracts for 1 year, and the grant of licences and permits for one year or lies are not dismissed as infructuous if they are heard after the period of one year. If important questions of law or principle are involved, those questions are decided even if no relief can be granted to the petitioner. This is all the more so in public interest litigation. As a standard text book puts it:
But in exceptional circumstances, the Courts taking a large view of public interest, have ordered the performance of a public duty when the time for performance had expired. In such cases, they have either treated the statutory time-limit as a merely directory provision or regarded the application for mandamus as an appropriate occasion for making a public declaration of legal rights.
Chandrachud C.J. observed that the Union Government had promulgated about 200 Ordinances between I960 and 1980 of which 19 had been passed in 1980. Having regard to the frequent use by the executive of a power to make a law of limited duration, it is submitted that for a Court to allow a. large section of our people’s rights to be affected by what may turn out to be illegal executive action without redress can only be described as an unjustified abdication of judicial power, and all the more so because the Ordinance before the Court affected the liberty of the subject under a law of preventive detention.
(3) See for example, Ghaio Mal and Sons v. Delhi (1959) S.C.R. 1424. (59) A.S.C. 65 ; Sudhir Kumar v. S.T.A. (63) A.Ass. 1 ; Rashbihari v. Orissa (69) A.SC. 1081 : (1969)2 S.C.R. 374.
(4) R. v. Norwich (Mayor) (1830) 1 B & Ad. 310 ; Rochester (Mayor) v. R. (1858) E.B. & E. 1024 ; R. v. Hartley Revising Barrister (1912) 3 K.B. 518 ; R. v. Woodbury Licensing JJ. Ex. p. Rouse (1960) 1 W.L.R. 461 (Mandamus to convene licensing meeting refused after expiry of a statutory date, justices had refused licence after inadvertently fixing the date for holding the meeting too late).
(5) Vice-Restaurant Inc. v. Montreal (1959) S.C.R. 58.(Canoada).
(6) See de Smit, Judicial Review of Administrative Action, 4th Ed. p. 560. 8. Similar exposition of law occurs at page 1678 of the same volume:
It is submitted that a writ petition should not be dismissed as futile in respect of an order passed from time to time (which has expired when the petition is heard) when the power to pass that kind of order is challenged. Thus, if the Police Commr. bans a procession each year during a particular religious festival, and the persons aggrieved dispute his right in law to do so, by a petition promptly filed, the Court ought to determine the right on the merits, even if the order imposing the ban has expired when the petition is heard, for to dismiss the petition would be to deprive citizens of their fundamental rights under circumstance where they would have no other remedy at all and to give a charter to a public authority to violate fundamental rights with impunity. In Ghaio Mal & Sons v. Delhi, the Sup. Ct. held that in view of the undisputed practice that a licence once granted by the Chief Commr. was almost automatically renewed by the Collector from year to year, it could not be said that the writ application and the appeal had become infructuous on the expiry of the period of the licence in dispute, and it was only proper that the appeal should be heard on its merits. Again in Sudhir Kumar v. S.T.A. where the validity of a temporary permit was challenged, the Court went into the question even though on the day when the petition was heard the permit had expired and no mandamus could be granted. But the Court held that the temporary permit granted in the case was not legal. It is submitted that the course adopted by the Sup. Ct. and the High Court was correct. However, it has been held that a petition challenging an order of reversion is not futile because the petitioner retired before the petition was heard, for if the reversion order was quashed, he would be entitled to relief in respect of arrears of pay and pension as though he had never been reverted.
95. (1959) S.C.R. 1424 (59) A.SC. 65 ; Ratilal Bhogilal v. Gujarat (1965) Guj 571 : (66) A. Guj. 224, 248 (where on order suspending and cancelling a licence for arms was without jurisdiction and void, a writ quashing the order would not be infructuous because “Firstly, there is ignominy of the charge that the petitioner is guilty of something which is prejudicial to the security of public peace, and secondly, his chances of procuring a fresh licence are greatly prejudiced if the cancellation of his licence is allowed to
remain).
96. (63) A.A.S.S. 1, Ratilal Bhogilal v. Gujarat (1965) Guj. 571 (See f.n. 95 above).
97. Ram Chandra v. West Bengal (64) A. Cal. 265.
9. The Supreme Court has held in its judgment (Ganpatisinghji v. State of Ajmer) that a right to hold a fair on one’s own land was a fundamental right under Article 19(1)(f) which could only be restricted in the manner permitted by Article 19(5). The holding of an annual fair was also an occupation or business within the meaning of Article 19(1)(g). Therefore, a citizen had also a fundamental right to engage in the occupation on his land provided that it did not infringe upon any law imposing “reasonable restrictions” on that right in the interest, of the general public. The reasonable restrictions have, in the present case, upon been imposed by Rule 129, and the order dated 5-11-1960 of the State Government in the Revenue Department, and circulated by the Board’s letter No. 6075, dated 3-11-1999 (Annexure-31 to the petitioner’s supplementary affidavit), to the effect that two Melas should be separated by at least three miles.
10. In that view of the matter, the impugned order dated 18-7-2001 (Annexure-1), passed by the Managing Director of the Board, in Appeal Case No. 2 of 2000 (Vijay Sen Singh v. State of Bihar and Ors.) is hereby set aside, and the matter is remitted back to him for a fresh consideration and order in accordance with law, apart from the following considerations:
I. Right to hold a fair on one’s land is a fundamental right within the meaning of Article 19(1)(f), subject to “reasonable restrictions” of that right in the interest of the general public, as stated in paragraph 9 hereinabove.
II. In the present context, “reasonable restrictions” have been imposed by Rule 129 of the Rules.
III. “Reasonable restrictions” have also been sought to be imposed in the present case in terms of Board’s letter No. 6077, dated 3-11-1999, read with the Government’s order dated 5-11-1960 (Annexure-31 to the petitioner’s supplementary affidavit), wherein it has been stated by way of providing guidelines that two cattle fairs within a distance of 3 miles may not be permitted.
IV. Whether or not respondent No. 15 (Vijay Sen Singh) is a “desirable person” within the meaning of Rule 129 of the rules inter alia in view of the adverse findings with respect to earlier year which have become final.
11. The writ petition is accordingly allowed but without any order as to costs.