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CASE NO.: Appeal (civil)  4103 of 2006

PETITIONER: Jaipur Aloo Aaratiya Sangh and Ors.                              

RESPONDENT: State of Rajasthan and Ors.                                               

DATE OF JUDGMENT: 13/09/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G M E N T  [Arising out of SLP (Civil) No.14024-14026 of 2005] WITH

CIVIL APPEAL NO.  4104 OF 2006 [Arising out of SLP (Civil) No.14168-14170 of 2005]

S.B. SINHA,  J:

       Leave granted.

       The High Court of Rajasthan initiated a suo motu proceeding which  was in the nature of a public interest litigation.

       In the said proceeding it directed the State of Rajasthan and various  authorities including Jaipur Municipal Corporation, Jaipur Development  Authority, Rajasthan Housing Board to explain as to why:

"(a)    filth and squalor is not being removed, (b)     trucks are being allowed to be parked on  road sides, (c)     cattle and animals are allowed to roam  freely on city roads,  (d)     city roads are dug at several places and this  state of affairs is continuing for a long  period of time, and  (e)     hoardings are being permitted which are  hazard to the traffic."

       Maladies infesting in certain areas of the Jaipur City, amongst others  being, digging, cleaning of the city, shopkeepers, stray cattle, vehicles,  hoarding, minding electricity, water, hospitals, etc. were brought to the  notice of the High Court.   

       Several orders were passed by it from time to time in respect of traffic  congestion in the city.  In its order dated 14.8.2003, the High Court directed:

"One finds heavy vehicles parked on both sides of  the roads.  No truck or heavy vehicle, shall be  allowed to be parked on the city roads.  The  Transport Department and the Police Department  shall remove the trucks and the heavy vehicles,

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which are parked on the roads.

The Trucks shall not be allowed to enter or ply in  the city of Jaipur from 6 am to 10.30 pm.  The  trucks shall be permitted inside the city for loading  and unloading of the goods only from 10.30 pm to  6 am.  However, it will be open to the transporters  to book the orders during the day-time but the  entry of the heavy vehicles shall be regulated only  in accordance with the aforesaid directions."

       A complete ban was issued in regard to the entry of trucks in the town  of Jaipur from 6 a.m. to 10.30 p.m. The same affected carriage of vegetables  and fruits to the town of Jaipur.  In relation to the said order Appellants  herein intended to intervene.  An application in that behalf was filed by them  in the matter.  A monitoring committee was formed by the High Court  presumably to oversee implementation of its orders.  Appellants also filed an  application before the Monitoring Committee, details whereof are not  necessary to be noticed by us herein.  The Monitoring Committee which was  appointed by the High Court submitted a report on 2.1.2004 drawing the  attention of the High Court to various difficulties faced in the matter of  traffic management in the city stating:

"However, we feel it essential to recommend that  the Hon’ble Rajasthan High Court may kindly pass  appropriate orders for (i) shifting the Phal-Sabzi  Mandi from Lal Kothi to Village Sukia-Muhana  (near Sanganer) at the earliest and, if possible  within 2 (two months) and (ii) completion of the  outer ring road (outside the entire Jaipur City)  joining 200 ft. Express Highway/ Bye-pass (which  connects Ajmer Road to Delhi Road within 2(two)  years by starting the work thereof very soon or at  the most within 2 (two months."

       The High Court directed the State Government to furnish various  informations specified by it by way of an affidavit.   

       The State of Rajasthan, the Monitoring Committee and Appellants  Associations agreed in principle that the trucks can be allowed to exit from  Lal Kothi Sabzi Mandi to Gopalpura Bye-pass between 11.00 a.m. to 12.30  p.m. subject to the condition that they would not ply on any route other than  the specified ones and the trucks would carry the exist passes issued by the  competent authorities of Mandi Samiti.

       A notice was issued to Shri Radhey Shyam Pathak, President, Jaipur  Phal Sabzi and Aaloo Aadtiya Maha Sangh as to why proceedings for  contempt of court shall not be initiated against him.  On 27.8.2004, he was  present in the court.  He tendered apology.  The High Court accepted the  apology tendered by the alleged contemnor and discharged the rule.  While  doing so, it was directed:

"We have been told that the State Government has  invested lot of money for establishing a Mandi at  Mohana.  It appears that there are certain  difficulties which need to be ironed out.  The State  Government shall take effective steps for ironing  out the difficulties and making it feasible for the  Mandi to be shifted to Mohana within a period of  eight months."

       Appellants are, thus, before us.

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       The matter was heard by this Court at some length on 11.08.2006.   The following order was passed:

"We have heard the learned counsel for the parties  at some length.  The core issue appears to be the  shifting of wholesale fruit and vegetable market  from the existing market yard situated at Lal Kothi  to Village Mohana.  From the records, it does not  appear that the Rajasthan Agriculture Produce  Market Board has issued any notification in terms  of Section 3 or any other provisions of the  Rajasthan Agriculture Produce Market Act, 1961.   It is accepted that the wholesale dealers may be  asked to shift their business to a new market yard  which is declared as such.  Mr. Aruneshwar Gupta,  Addl. Advocate General stated that keeping in  view the issue raised by the petitioner, an affidavit  shall be filed before us within two weeks,  annexing therewith all the requisite notifications.   Let such affidavit be filed stating other relevant  facts, apart from those stated in I.A. 14 of 2006.   Reply to the said affidavit, if any, be filed within  one week thereafter."

       Mr. Aruneshwar Gupta, learned Additional Advocate General for the  State of Rajasthan at the outset pointed out that the notifications had been  issued by the State under various provisions of the Rajasthan Agricultural  Produce Markets Act, 1961.  A notification under Section 5(2) of the said  Act was also issued on 6th September, 1983.  Our attention was further  drawn to a notification which the Government of Rajasthan proposes to  issue, relevant portion whereof reads as under:

"The Government of Rajasthan established the  Agriculture Produce Market Committee (Fruit &  Vegetable), Jaipur vide Notification No. F.10 (68)  Agri-5/ 65 Dated: 6 July, 1966 which was  published in Rajasthan Gazette Dated: 14 July,  1966.  Now, since the Agriculture Produce Market  Committee (Fruit & Vegetable), Jaipur has  established New Market Complex Sukhiyan,  Muhana Road (Terminal Market) as the Principal  Market Yard, therefore, as per the provisions under  sub-section (2) of Section 5 of the Rajasthan  Agriculture Produce Marketing Act, 1961, State  Government while denotifying the earlier declared  Lal Kothi Principal Market Yard, hereby declares  the New Market Complex Sukhiyan, Muhana  Road (Terminal Market) as the Principal Market  Yard for the business of Fruit and Vegetable, in  place of Lal Kothi Principal Market Yard, which  shall be bounded as under\005

       Again, in exercise of powers conferred uner  Sub-section (3) of Section 4 of the aforesaid Act,  the Government of Rajasthan hereby notifies that  from the boundaries of the said Principal Market  Yard up to the present boundaries of Jaipur  Municipal Corporation, any local officer, even if  he is competent/ authorized under any law or any  other person, from the date of publication of this  Notification or thereafter, shall not grant  permission either for establishment/ to continue  any place for the sale- purchase of any of the  agricultural produce notified for the said Mandi  Area.

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       The Government of Rajasthan further  declares that under Sub-section (3) of Section 4 of  the above mentioned area from the boundaries of  the said Principal Market yard to the boundaries of  Jaipur Municipal Corporation shall be (Market  Property) Principal Market Area, as has been  defined in Part \026 10 of Sub-section (1) of Section \026  2 of the Rajasthan Agriculture Produce Marketing  Act, 1961."

       The learned counsel submitted that in view of the fact that the State is  required to comply with the statutory provisions of the Act, it should be  permitted to issue the proposed notification.   

       Dr. Rajeev Dhawan, Dr. A.M. Singhvi, learned senior counsel and  Mr. A. Mariaputham, learned counsel appearing on behalf of Appellants,  however, would urge that the proposed notification does not fulfill the  statutory requirements laid down under the said Act.  The learned counsel  argued that for issuance of such a notification due application of mind on the  part of the authorities of the State was imperative and not on the premise that  the High Court had passed an order in that behalf.  It was pointed out that the  proposed market-yard at Mohana was to be an additional principal market- yard, i.e., an additional market yard to the principal market-yard existing at  Lal Kothi and not a substitute thereof.   

       Although we have been taken through the various provisions of the  said Act and the notifications issued thereunder, we are of the view that this  Court should not express its opinion thereupon one way or the other at this  stage.   

       The public interest involved in the matter pending before the High  Court is apparent.  The High Court intended to deal with some of the  maladies which are existing in the town of Jaipur.   

       Although the High Court in exercise of its jurisdiction under Article  226 of the Constitution of India was entitled to pass appropriate orders in the  said proceedings in public interest but where the requirements of law are to  be complied with, the court ordinarily should not dispense therewith.  The  Act is a regulatory one.  While regulating the trade in agricultural produces,  the State can issue notification as a result whereof the trade by the dealers in  vegetables or fruits may have to be carried within the premises notified  therefor.  The Act contemplates steps to be taken at various stages.  When  such a step is taken indisputably the validity of the action of the State will  have to be judged keeping in view the nature of restraint and other relevant  factors including the public interest involved.   

       In Jan Mohammad Noor Mohammad Begban v. State of Gujarat and  Another  [1966] 1 SCR 505, this Court opined:

"\005Reasonable restrictions on the right of a citizen  to carry on trade \027 retail as well as wholesale \027  may be placed by legislation. The test of the  validity of the restrictions lies in the nature of the  restrictions and not in the nature of trade. If  regulation of trade in agricultural produce by the  declaration of market area and imposition of  restrictions may be regarded as reasonable when  operating on the wholesale trade, it would be  difficult to hold that the identical restrictions when  operating on retail trade may be deemed  unreasonable. We do not think that the  observations made by this Court in Mohammad  Hussain case justify the argument urged by the  petitioner. Challenge to the validity of Sections 5

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and 6 must therefore fail."

       Having regard to the fact that the State was required to take certain  steps under the Act, we are of the opinion that it should be permitted to carry  out its statutory functions.   

       We, therefore, permit the State to issue appropriate notification (s) as  is/ are necessary for enforcement of its policy/ scheme in accordance with  law.

       We are not oblivious of the fact that the State at one point of time  intended to declare the specified area at village Mohana as a terminal point.   The State has sought to explain the same stating:

"It is respectfully submitted that Terminal Market  is only the name of the main Mandi Yard, Mohana.   The Scheme is divided in three phases, involving  total area of 223 hectares.  In first phase mandi  yard has been develoed in total area of 78 hectares  as against only 2.78 hectares at Lal Kothi.  Out of  78 hectares 63 hectares have been dedicated to the  shops and traders and 15 hectares have been  utilized for common facilities i.e. office etc.  It is  respectfully submitted that the Mandi Yard at  Mohana is situated at 17 Kms. from the zero mile,  Jaipur.  It is respectfully submitted that an amount  of Rs. 25 crores has been spent on the development  of infrastructural facilities at Mandi Yard Mohana  and Rs. 15 crores has been spent for acquisition of  land for the establishment of Mandi Yard at  Mohana, Jaipur.  The facilities of street light,  electricity, lighting, block connection, internal  roads, auction complexes, boundaries, farmers  facilitation center, post office building, two bank  buildings, Sulabh complex, labour sheds,  development of truck stand, drinking water  facility, sewage system, drinking water system,  internal road (II phase), park fountain and  plantation, signboard at National Highway etc.  have been developed\005"

       Our attention was further drawn to the fact that the members of  Appellants Associations also agreed to shift their business to the shops  allotted by the Market Committee in Block D.

       We need not go into the said question as this stage.   

       We, as at present advised, permit the State of Rajasthan to issue  notifications leaving the question of the validity thereof, if raised by  Appellants or others, by the appropriate Bench of the High Court.   

       We would, however, like to make an unusual request.  The State  appears to have spent crores of rupees in developing the specified place at  the proposed site of the market-yard/ terminal point at village Mohana.   Whether it was meant to be a terminal point or principal market-yard is one  question but another is as to how soon the shops constructed therein and  other utilities provided for, should be put to use.   

       While giving opportunity to the State to take requisite steps for  implementation of the provisions of the said Act, in the event, the legality or  validity of the said notifications is challenged before the High Court, the  same may be disposed of by the High Court as quickly as possible.  This  order shall, however, not mean that the High Court in the existing public  interest litigations would not be entitled to pass appropriate order (s) in

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regard to vehicular traffic and/ or other questions pending before it.

       The appeals are allowed to the extent mentioned hereinbefore.  In the  facts and circumstances of this case, there shall, however, be no order as to  costs.