# Gupta v. Rajghat Education Centre

- **Citation:** (2003) 3 ILRA 778
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-07-01
- **Case number:** Civil Misc. Writ Petition No. 43985 of 1997
- **Bench:** M. Katju, R.S. Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gupta-v-rajghat-education-centre-40201
- **Pages:** 17

## Headnote

Constitution of India-Article-226-U.P.
Krishi Utapadan Mandi Adhiniyam 1964
Sec. 7 (2) (b) Transfer of business
premises-Notification
issued-whole
seller of food grain and Vegetablesheld-Notification issued in the public
interest-to avoid congestion in the city -
Advocate
Commissioner's
report
in
favour of shifting market-can not be
interfered under writ jurisdiction

Held-Para 15

An Advocate Commissioner Sri J.J. Munir
Advocate, High Court by our order dated
22.04.2003 for inspecting the existing
mandis
of
foodgrains,
fruits
and
vegetables, etc. at Kanpur City and he
has submitted a report to which an
objection has also been filed by the
Mandi Samiti, Kanpur. In this report the
Advocate Commissioner after discussing
the facts in details has observed in
conclusion that it is apparent that the
public is put to great inconvenience due
to the existing subzi mandi.
1987 UPLBEC 394
1993 A.W.C. 1593
1983 ALJ 786
AIR 1981 S.C. 1127

Held- Para 25

Since it has been held that a Notification
under section 7 (2)(b) is a legislative
activity we are of the opinion that the
Court should exercise judicial restraint in
interfering with such legislative activity.
A Notification under section 7 (2)(b) is a
piece of delegated legislation and it can
be struck down only if (1) it violates
some provision of the parent Act, or (2)
it
violates
some
provision
of
the
Constitution.
In
our
opinion
the
impugned Notification dated 09.03.1981
and the subsequent Notification e.g. of
15.11.1997 are clearly within the ambit
of section 7 (2)(b) of the Act, and it has
not been shown that they violate any
other provision of the Act. Hence, it
cannot be said that these Notifications
are ultra vires any provision of the U.P.
Krishi Utpadan Mandi Adhiniyam, 1964.
http:\\allahabadhighcourt.nic.in
3 All] Kanpur Aloo Arhati Association and another V. State of U.P. and others
779
AIR 1981 SC 1127
1993 AWC 1513
AIR 1953 SC 375 (370)
AIR 1991 SC 1792 (Para-6)
AIR 1966 SC 416 (421)
AIR 1990 SC 1637
AIR 1977 SC 2279 (Para-16)

Constitution of India-Article-19 (1)(G)
whether
Notification
violates
the
provision of Art 19 (1) (g)

Held-Para 26

In our opinion they do not. The material
on record in these petition, which
includes the report of the Advocate
Commissioner
Mr.
Munir
and
Hon.
Justice Ganguly (Retd.) as well as the
affidavits of the respondents clearly
indicates that the present wholesale
mandis in Kanpur City are causing
immense traffic problems, congestion,
diseases, noise pollution etc. and have
become a headache for the public there.
Hence the shifting of the wholesale
mandis from the existing sites is clearly
reasonable. No doubt the petitioners
right to do business under Articles 19
(1)(g) is to some extent affected by the
impugned notification, but this right is
subject to reasonable restrictions under
Article 19 (6) of the Constitution.
Case law:
AIR 1958 SC 731
AIR 1969 SC 634 (vide para 52)
AIR 1981 SC 873
AIR 1986 SC 1323
1952 SCR 597
AIR 1952 - SC 1033
AIR 1970 SC 1453
AIR 1961 SC 1602
AIR 1978 SC 771
AIR 1982 SC 1016

## Text

_Characters 0–39,827 of 57,375. This is a partial read: ask again with offset=39827 for what follows._

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778 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
3. It is well settled, that ordinarily,
no writ lies against private body except a
writ of habeas Corpus vide Dr. A.K.
Gupta v. Rajghat Education Centre
2003 (1) AWC 503 and General
Manager,
Modipon
Fibre
Co.
v.
Narendra Pal 2003 ALJ 980 etc.

4. In paragraph 5 of the petition it is
stated that as per the Constitution and
Articles of Association of respondent no.
3 unless one is a member of the
association one cannot be provided with
film for exhibition of films from any other
member who is engaged in distribution of
films in U.P. and Delhi.

5. In our opinion a private body can
always make a rule restricting its
membership on certain conditions. The
respondent no. 3 is not an instrumentality
of the State and hence this writ petition is
not maintainable and it is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.07.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.S. TRIPATHI, J.

Civil Misc. Writ Petition No. 43985 of 1997

Kanpur Aloo Arhati Association and
another

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri R.N. Singh
Sri Arun Kumar

Counsel for the Respondents:
Sri B.D. Mandhyan
Sri Ajay Sharma
S.C.
Constitution of India-Article-226-U.P.
Krishi Utapadan Mandi Adhiniyam 1964
Sec. 7 (2) (b) Transfer of business
premises-Notification
issued-whole
seller of food grain and Vegetablesheld-Notification issued in the public
interest-to avoid congestion in the city -
Advocate
Commissioner's
report
in
favour of shifting market-can not be
interfered under writ jurisdiction

Held-Para 15

An Advocate Commissioner Sri J.J. Munir
Advocate, High Court by our order dated
22.04.2003 for inspecting the existing
mandis
of
foodgrains,
fruits
and
vegetables, etc. at Kanpur City and he
has submitted a report to which an
objection has also been filed by the
Mandi Samiti, Kanpur. In this report the
Advocate Commissioner after discussing
the facts in details has observed in
conclusion that it is apparent that the
public is put to great inconvenience due
to the existing subzi mandi.
1987 UPLBEC 394
1993 A.W.C. 1593
1983 ALJ 786
AIR 1981 S.C. 1127

Held- Para 25

Since it has been held that a Notification
under section 7 (2)(b) is a legislative
activity we are of the opinion that the
Court should exercise judicial restraint in
interfering with such legislative activity.
A Notification under section 7 (2)(b) is a
piece of delegated legislation and it can
be struck down only if (1) it violates
some provision of the parent Act, or (2)
it
violates
some
provision
of
the
Constitution.
In
our
opinion
the
impugned Notification dated 09.03.1981
and the subsequent Notification e.g. of
15.11.1997 are clearly within the ambit
of section 7 (2)(b) of the Act, and it has
not been shown that they violate any
other provision of the Act. Hence, it
cannot be said that these Notifications
are ultra vires any provision of the U.P.
Krishi Utpadan Mandi Adhiniyam, 1964.
http:\\allahabadhighcourt.nic.in
3 All] Kanpur Aloo Arhati Association and another V. State of U.P. and others
779
AIR 1981 SC 1127
1993 AWC 1513
AIR 1953 SC 375 (370)
AIR 1991 SC 1792 (Para-6)
AIR 1966 SC 416 (421)
AIR 1990 SC 1637
AIR 1977 SC 2279 (Para-16)

Constitution of India-Article-19 (1)(G)
whether
Notification
violates
the
provision of Art 19 (1) (g)

Held-Para 26

In our opinion they do not. The material
on record in these petition, which
includes the report of the Advocate
Commissioner
Mr.
Munir
and
Hon.
Justice Ganguly (Retd.) as well as the
affidavits of the respondents clearly
indicates that the present wholesale
mandis in Kanpur City are causing
immense traffic problems, congestion,
diseases, noise pollution etc. and have
become a headache for the public there.
Hence the shifting of the wholesale
mandis from the existing sites is clearly
reasonable. No doubt the petitioners
right to do business under Articles 19
(1)(g) is to some extent affected by the
impugned notification, but this right is
subject to reasonable restrictions under
Article 19 (6) of the Constitution.
Case law:
AIR 1958 SC 731
AIR 1969 SC 634 (vide para 52)
AIR 1981 SC 873
AIR 1986 SC 1323
1952 SCR 597
AIR 1952 - SC 1033
AIR 1970 SC 1453
AIR 1961 SC 1602
AIR 1978 SC 771
AIR 1982 SC 1016

(Delivered by Hon'ble M. Katju, J.)

1. This writ petition and other
similar writ petitions are being disposed
off by a common judgment. Writ
petitions Nos. 43985 of 1997 and 43987
of 1997 relate to whole sellers of fruits
and vegetables in Kanpur city, while Writ
No. 27865 of 2000, Writ No. 27730 of
2000 and Writ No. 27711 of 2000 relate
to food grains whole sellers. Writ No.
27731 of 2000 and Writ No. 27864 of
2000 relate to whole sellers of Khandsari.

2. The petitioners in all these writ
petitions are wholesalers of various items
e.g. food grains, fruits and vegetables,
khandari sugar etc. in Kanpur City. The
common grievance of all the petitioners in
these writ petitions is that they have been
asked to shift their business premises
from the present place in the heart of
Kanpur
city
etc.
Kidwai
Nagar,
Cooperganj, Collectorganj etc. to a new
market yard called the Navin Mandi Sthal
at Naubasta (Hamirpur road) which is at
the outskirts of Kanpur City. All the
petitioners have been informed that if they
do not shift from their respective business
places to the Navin Mandi Sthal, the
Krishi Utpadan Mandi Samiti, Kanpur,
which is a statutory body, constituted
under the UP. Krishi Utpadan Mandi
Adhiniyam 1964 (hereinafter referred to
as an Act), would not renew their
licenses.

3. As stated in paragraph 9 of Writ
Petition
No.
27730
of
2000,
the
foodgrains traders had been issued notices
in the year 1977 to shift their business
premises (including shops and godowns)
to the Navin Mandi Sthal, Naubasta
Against those notices the dealers filed
various writ petitions which were allowed
on 21.09.1978 vide writ petition No. 4833
of 1978 and connected writ petitions.
Copy of the said judgment of this Court is
Annexure-4 to writ petition No. 27730 of
2000. In that decision this Court held that
there
was
no
statutory
provision
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780 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
empowering the State Government to
force a person to shift his place of
business. However subsequently by U.P.
Act No. 19 of 1979 the Act was amended
and section 7 (2)(b) was introduced which
states:-

"The State Government, where it
considers necessary or expedient in the
public interest so to do, may, by
notification:
(b)
declare
that
the
whole-sale
transactions of all or any of the specified
agricultural produce in respect of a
market area shall be carried on only at a
specified place or places within its
principal market yard or sub-market
yards."

4. Pursuant to the aforesaid
amendment the U.P. Government issued
Notification dated 09.03.1981 copy of
which is Annexure-5 to writ petition No.
27730 of 2000. This Notification issued
under section 7 (2)(b) stated that the
wholesale trade of certain commodities
mentioned in that Notification should be
conducted at Kanpur at the new mandi
site whose location has been specified in
the said notification. By subsequent
Notification dated 05.11.1997 Annexure6 to writ petition No. 27730 of 2000
several fruits and vegetables have also
been added to the items mentioned in the
Notification dated 09.03.1981. These
notifications have been challenged in this
bunch of petitions.

5. The petitioner no. 1 in Writ
Petition No. 43985 of 1997 is an
Association of whole sellers of potato and
other vegetables, which is registered
under the societies Registration Act. Its
members are carrying on the business of
purchase and sale of vegetables including
potatoes in wholesale under valid licenses
issued by the Krishi Utpadan Mandi
Samiti, Kanpur. True copy of the
Certificate of Registration of petitioner
no. 1 and a list of its members are
Annexure-1 and 2 to the writ petition.

6. It is alleged in paragraph 5 of
Writ Petition No. 43985 of 1997 that the
fruits and vegetables Mandi was uprooted
and established thrice in as many years at
Kanpur. In the year 1976 the Kanpur
Development Authority (KDA) vide its
resolution dated 25.06.1976 approved a
scheme to establish a modern and
organized fruits and vegetables market at
'O' Block, Qidwai Nagar, Kanpur and
invited the whole sellers of fruits and
vegetables situate at dense localities of
Badshahi
Naka
and
Cooperganj
to
purchase plots and shift to the new mandi.
By
a
subsequent
resolution
dated
15.02.1977 the KDA fixed the land rate at
Rs.100/- per sq. yard and decided to allot
plots on advance deposit of Rs.5750/-. A
total number of 730 big plots and 574
small plots were offered for allotment out
of which 442 were allotted by the year
1981 and by 1984 all the plots were
allotted and a fully developed and
organized fruits and vegetables market
started functioning at 'O' Block Qidwari
Nagar, Kanpur. A true copy of the
resolution
of
the
meeting
of
the
Association and KDA dated 24.04.1996
under the Presidentship of the Vice
Chairman, KDA giving details is annexed
as Annexure-4 to the writ petition. In the
lease deeds executed by the KDA in
favour of the whole sellers it was
specifically provided that since the KDA
had resolved that the subzi mandi should
be shifted from the crowded area of the
city on the land set apart for allotment to
such dealers at southern city extension
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3 All] Kanpur Aloo Arhati Association and another V. State of U.P. and others
781
scheme no. 2, Qidwai Nagar, Kanpur, the
plots are being allotted to carry on the
business of selling potatoes in the allotted
open space. The lease thus confines the
petitioners to do business of vegetables
only on the allotted land. True copies of
some lease deeds are Annexure-5 and 5A
to the writ petition. The Mandi Samiti,
Kanpur also joined in maintaining the
subzi mandi at Qidwai Nagar, Kanpur and
had invested Rs.204 lacs for maintenance
of sewage cleaning and internal road in
the year 1994. By notification dated
09.03.1981 issues under section 7 (2)(b)
of the Act, the State Government notified
the Naubasta market yard for wholesale of
39
specified
agricultural
produce,
excluding fruits and vegetables.

7. It is alleged in paragraph 12 of the
petition that for the reason best known to
the Mandi Samiti inspite of the aforesaid
notification
the
wholesale
trade
of
foodgrains could not be shifted and the
Mandi Samiti, Kanpur permitted illegal
trade of foodgrains outside the Naubasta
market yard. It is alleged that the Mandi
Samiti did not take effective steps to shift
the foodgrains trade to Naubasta. It is
alleged in paragraph 14 of the writ
petition that since the Mandi Samiti,
Kanpur failed to shift the foodgrains trade
to Naubasta inspite of the Notification it
had to justify the constructions of Navin
Mandi Sthal Naubasta and therefore in
order to protect any administrative action
against the officials of the Mandi Samiti,
Kanpur it proposed to shift the site of
wholesale trade in fruits and vegetables.
In paragraph 15 of the writ petition it is
alleged that whereas foodgrain trade is not
organized and is carried out in Kanpur in
various
congested
localities
causing
problem
of
transportation,
traffic
congestion, pollution and unhygienic
condition in Kanpur, the officials of the
Mandi Samiti, Kanpur proposed to shift
an
organized,
well
maintained
and
systematic fruits and vegetables mandi
established by KDA at 'O' Block Qidwai
Nagar between the year 1981 and 1984 to
Navin Mandi Sthal, Naubasta. It is alleged
that the object of taking this decision was
not to regulate the market at Qidwai
Nagar but this decision was taken in
connivance with the foodgrain dealers in
Kanpur and was initiated by the Chairman
and the Secretary of the Mandi Samiti,
Kanpur to save themselves from the
responsibility of shifting the wholesale
trade
of
notified
commodities
and
allowing an illegal trade to be carried on
in the congested city of Kanpur. The
Chairman, Mandi Samiti, Kanpur gave a
notice to the President of the petitioner
association to attend a meeting on
11.07.1997 vide Annexure-7 to the writ
petition. The petitioner submitted a reply
protesting against the proposal to shift the
wholesale trade of potato and vegetables
to Navin mandi Sthal, Naubasta vide
Annexure-12
to
the
writ
petition.
Thereafter the impugned notification
dated 15.11.1997 has been issued by the
Governor of U.P. under section 7 (2) of
the Act vide Annexure-12 to the writ
petition.

8. It is alleged in paragraph 19 of the
writ petition that before issuing the
impugned notification dated 15.11.1997
the respondents have failed to consider
the objections of the petitioners and have
completely ignored taking into account
that an organized fruits and vegetables
market was established at 'O' Block
Qidwai Nagar, Kanpur by the KDA
between the year 1981 and 1984 and has
been maintained by the KDA and the
Mandi Samiti, Kanpur at the costs of
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782 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
crores of rupees and that the market is
well developed and does not need any
change of site. In paragraph 20 of the writ
petition it is alleged that the vegetables
and fruits market at Qidwai Nagar has
been established in a wide open area with
broad roads in an extension scheme of the
City having no congestion, no traffic
problems, having well maintained lane,
sewerage and waste disposal system etc.
Hence there was no need to shift the
market to Naubasta. It is alleged that this
is being done in connivance with the
foodgrain dealers who refused to shift
their trades to Naubasta inspite of the said
notification. It is alleged in paragraph 28
of the writ petition that the wholesale
traders had invested lacs of rupees in
constructing their shops and had earned
goodwill in the organized market. The
shifting of the entire trade will cause great
hardships to the traders.

9. A short counter affidavit has been
filed in writ petition no. 43985 of 1997. In
paragraph 3 of the same it is stated that a
detailed counter affidavit has been filed in
writ petitioner no. 43987 of 1997, which
may be treated as the counter affidavit in
this case also.

10. We have perused the counter
affidavit in writ petition No. 43987 of
1997. In paragraph 3 of the same it has
been stated that similar notification under
section 7 (2)(b) have been upheld by this
Court as well as by the Supreme Court.
Vide M/s Amrit Rice Mill v. Krishi
Utpadan Mandi Samiti, 1987 UPLBEC
394, Karedin Jaiswal v State, 1993
AWC 1513, Vishal Traders v. State of
U.P., 1983 ALJ 786, R.K. Porwal v.
State of Maharashtra, AIR 1981 SC
1127, etc. Hence this petition is also
liable to be dismissed.
11. In Paragraph 4 of the counter
affidavit it is stated that the notification
under section 7 (2)(b) is legislative in
character and hence it was not necessary
to give opportunity of hearing before
issuing the same. The notification has
been issued in the public interest as the
wholesale market of fruits and vegetables
is in a congested locality and mostly fruits
and vegetables are brought by trucks and
other vehicles, and there is paucity of
space in the existing market yard. In
paragraph 7 of the same it is stated that
even if the fruits and vegetables market is
shifted three times in 50 years it makes no
difference. The notification was issued in
the public interest and to avoid congestion
in the City. Wholesale transactions in all
agricultural produce are to go outside the
main city, which has grown up as a
residential area. Carrying on wholesale
trade in specified produce is hazardous to
the residents and results in accidents due
to congestion of traffic and is also
unhygienic. Due to rainy season it
becomes impossible to transact business
and people at large are put to hardship.
After the wholesale trade is shifted to the
outskirts of the City in the declared
market area at Naubasta (Hamirpur road)
the fruits and vegetables can be taken by
the retail traders and sale can be made in
the city. It is further alleged that even if
the resolution was passed by the KDA in
the year 1976 to organize fruits and
vegetables markets in 'O' Blocks Qidwai
Nagar Kanpur that has outlived its utility
since the business has grown many times
and Kanpur city has grown many times.
Even if the resolution was relevant in the
year 1976 it is not relevant in the year
1999 or even in the year 1997 when the
notification was issued. The fruits and
vegetables arrive in several truckloads
daily causing congestion, and because of
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3 All] Kanpur Aloo Arhati Association and another V. State of U.P. and others
783
the rotten smell in the city the thickly
polluted area like Qidwai Nagar becomes
unhygienic. The wholesale trade is of a
very high magnitude and therefore the
administration felt difficulty in having
wholesale transactions of fruits and
vegetables in the existing market and it
has been decided to shift the trade to
Navin
Mandi
Sthal
at
Naubasta
(Hamirpur Road).

12. In paragraph 8 of the counter
affidavit it is stated that most of the
wholesale traders in fruits and vegetables
applied for allotment of shops and they
have been allotted shops and some of
them had even been given possession at
the new mandi site. This writ petition has
only been filed to forestall shifting of the
trade. In paragraph 9 of the same it is
stated, that looking to the quantum of
arrivals, which is lacs of quintals daily,
the problem of road and sewerage has
multiplied
manifold.
They
are
not
functional, and hence shifting of trade of
wholesale in fruits and vegetables is
absolutely necessary. The roads have
developed potholes and there is no
sufficient place for parking trucks and
other auto vehicles. In paragraph 10 of the
same it is stated that there are sufficient
number of shops in Navin Mandi Sthal
and some of them have been allotted to
the traders in fruit and vegetables. The
Mandi Samiti has constructed more than
300 shops and the process of construction
of further shops is going on. In paragraph
11 of the same it is stated that the market
yard at Hamirpur road is suitable for
carrying on wholesale business in fruits
and vegetables as most of the arrivals are
from that side The Mandi Samiti is also
considering acquiring and developing a
new Mandi Sthal for other agricultural
produce. In paragraph 12 of the same it is
stated that notice was given to the whole
sellers to apply for shops and some of
them had even taken possession. There is
certainty of allotment of shops. None of
the whole sellers of fruits and vegetables
carrying on business in Qidwai nagar
would be left without allotment of shops,
and if any individual trader makes a
grievance regarding allotment he would
be allotted a shop. In paragraph 25 of the
same it is stated that only the wholesale
trade is being shifted and not the retail
trade.

13. An impleadment application has
been filed in this case by 119 dealers,
which was allowed by means of an order
dated 27.09.2003.

14. A short rejoinder affidavit has
been filed. In paragraph 4 of the same it is
stated that the rejoinder affidavit filed in
writ petition No. 43987 of 1997 may be
treated as the rejoinder affidavit in this
case also. We have perused that rejoinder
affidavit.

15. In this case we had also
appointed an Advocate Commissioner Sri
J.J. Munir Advocate, High Court by our
order dated 22.04.2003 for inspecting the
existing mandis of foodgrains, fruits and
vegetables, etc. at Kanpur City and he has
submitted a report to which an objection
has also been filed by the Mandi Samiti,
Kanpur. In this report the Advocate
Commissioner after discussing the facts in
details has observed in conclusion that it
is apparent that the public is put to great
inconvenience due to the existing subzi
mandi. They are also exposed to hazards
of disease and have to face problems of
traffic congestion in the entire area of
Qidwai Nagar.
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784 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
16. In the earlier part of the repot on
page
18
the
learned
Advocate
Commissioner has stated that upon
inspection of the Qidwai Nagar Mandi he
found the same to be a relocated, well
organized and planned mandi with ample
space within its premises for movement of
vehicles, loading and unloading of goods
etc. However at page 32 of his report the
learned Advocate Commissioner stated,
"As I was standing on the main public
road in front of the Mandi, I noticed a
uniformed guard wielding a lathi asking
a truck driver to move away his vehicle. I
rushed to the spot and made enquiries
from the guard. First, he refused to
answer but then relented. He identified
himself as Radhey Shyam, a security
guard with the Mandi. He confessed that
he had instructins from the Mandi
traders to ensure for two or three days
that no truck is parked on the public
road. A transporter standing nearby also
said that they had been asked for a few
days by the Mandi office bearers not to
park trucks on the road. It is thus evident
that the Mandi Office bearers show
managed the parking pattern of the
trucks during my inspection." At page 34
of his report the learned Advocate
Commissioner stated, "In conclusion it is
apparent that the public are put to great
inconvenience due to the existing subzi
mandi. They are also exposed to hazards
of disease and have to face problem of
traffic congestions in the entire area of
Qidwai Nagar." Thus, despite his earlier
observation in page 18 of his report, the
learned Advocate Commissioner has
ultimately accepted that the Qidwai Nagar
Mandi is causing problems of Traffic
congestion, diseases etc. On inspecting
the Navin mandi Sthal, Naubasta, which
is almost 6 km. from Kidwai nagar the
learned Advocate Commissioner after
detailed inspection, and consideration has
come to the conclusion that the traders of
Qidwai nagar, mandi would decidedly
suffer if the mandi is shifted to Navin
mandi Sthal, Naubasta as the latter does
not seem to be very congenial to the
traders. Though the Mandi Sthal is
located in a very large area, the shops
constructed there seem to be woefully
deficient for traders of perishables. The
shops may be suitable for wholesale of
foodgrains, but they are unsuitable for
fresh vegetables, fruits, potatoes etc. Also
while some of the shops at Kidwai Nagar
are designed to stock huge quantities of
commodities, they cannot be stocked at
the Naubasta shops. The Naubasta mandi
is 10 km. from the Transport Nager, and
this would lead to escalation in prices. He
has also observed that in Qidwai Nagar
mandi there are in existence about 1300
traders in vegetables and fruits alone
while Navin Mandi Sthal has at present
only a total of 348 shops as per the
statement of the Mandi Samiti officials
themselves.
The
learned
Advocate
Commissioner has stated that it does not
appear to be feasible that such a large
number of traders at Qidwai Nagar mandi
can be shifted to the new mandi site as the
same
is
short
of
accommodation.
However,
the
learned
Advocate
Commissioner has also observed that
more shops can be constructed at Navin
Mandi Sthal because space is available in
abundance.

17. In pages 26 to 31 of his report
the learned Advocate Commissioner has
referred in detail to his meeting with
various people, many of whom handed
over
representations
to
him.
On
01.05.2002 about 31 resident of Qidwai
Nagar
gave
him
a
representation
expressing
unequivocal
support
for
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3 All] Kanpur Aloo Arhati Association and another V. State of U.P. and others
785
shifting of the mandi from Qidwai Nagar.
The learned Advocate Commissioner
spoke to many Doctors who stated that
the Mandi at Qidwai Nagar was causing
many problems e.g. road accidents, air
pollution etc. which cause Asthama and
Allergy, and had created unhygienic
conditions in the locality due to dumping
of rotten vegetables, which cause many
diseases. The Principals of some schools
also complained that the Qidwai Nagar
Mandi was causing problems of traffic
jams etc. Many traders also said that the
Qidwai Nagar mandi was causing adverse
effects on local trade and business. The
local market of retail business of cloth;
electrical goods, general merchants etc.
was once a flourishing market but due to
the increasing traffic flow in the mandi in
question the local market has been
deserted by the customers who avoid
visiting Qidwai Nagar due to traffic jam.
All trade there has flopped. Many citizens
said that they could not sleep due to the
constant movement of trucks and had to
face breathing problems. The truck
drivers
park
their
vehicles
in
the
residential area and indulge in nuisance.
The learned Advocate Commissioner has
also seen filth and garbage lying in the
side of the mandi and rotting vegetables.

18. The Krishi Utpadan Mandi
Samiti, Kanpur, has filed an objection to
the report of the learned Advocate
Commissioner and we have perused the
same. In paragraph 5 of the objection it
has been stated that the learned Advocate
Commissioner gave information about a
week before his visit to the parties as well
as to the their counsels and therefore the
traders at Kanpur were quite conscious
that the Commissioner has been appointed
and he would be visiting the place on
01.05.2003. Hence they managed that
there may be no rush in the market at the
time of his visit. They succeeded in
preventing the producers to bring their
produce through trucks at the time of
inspection and hence both the mandis
gave a deserted look and there was not
buying and selling at that time, which was
an unusual phenomenon. Hon'ble Mr.
Justice N.L. Ganguli (Retd.) who had
been
appointed
Commissioner
in
connected writ petition No. 43987 of
1997 (which related to food grains trade)
had visited the markets at Kanpur
incognito and he had submitted a report
that there was lot of congestion creating
unhygienic conditions and road blocks by
constant truck traffic and he has suggested
in his report that the entire wholesale
trade in foodgrains and fruits and
vegetables be shifted to Navin Mandi
Sthal. In paragraph 6 of the objection of
the mandi Samiti to the report of the
Advocate Commissioner it is stated that
the foodgrains mandi at Collectorganj and
Cooperganj, Kanpur is 120 years old. It is
in a very congested area and it is not
possible for trucks to move in the mandi.
The trucks are parked on the main road,
and from there goods are brought inside
the market. At the time when the learned
Advocate Commissioner visited the spot
it was deserted on account of his prior
intimation. The vegetables, fruits and
grains mandis of Kanpur are biggest
mandis is U.P. and the entry of trucks in
the city in daytime is prohibited. Hence
there is a long queue of trucks in the night
and they stand on the road blocking it.
Due to that the entire traffic during
evening and night hours makes it an
inaccessible place. Upto 11.00 o'clock in
the night there is a traffic jam. It takes
hours to reach from one point in the city
to another. Kanpur itself is a heavily
crowded city. The population of Kanpur
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786 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
has gone upto 50 to 60 lakhs and hence
the wholesale trade should go outside the
city and only the retail trade should
continue in the city. The report of the
SSP, CMO and the D.M. etc. filed with
the supplementary counter affidavit of the
Mandi Samiti shows that due to the
wholesale trade in foodgrains and fruits
and vegetables there is immense traffic
problems
and
unhygienic
conditions
resulting in epidemics. The wholesale
trade means trade of not less than 10
quintals in one transaction. If the
wholesale trade is taken outside the city
then 80% congestion would be removed
from the city. Only retail sale causing
only 20% problem would be left in the
city. In paragraph 11 of the same it is
stated that there is a lot of open space in
the new market yard and about 100 trucks
can be parked there. There are three types
of shops and small godowons constructed
120 years ago and since then production
and sale has increased manifold and the
mandis have consequently to be shifted to
a suitable place. During rainy season the
old mandis are inaccessible due to lack of
drainage, and they are often submerged
with water and filth. There has been
constant demand from the public that the
wholesale trade should be shifted to the
outskirts of the city. In Western countries
wholesale trade takes place about 10 to 20
km away from the city. In paragraph 16 of
the same it is stated that there are only
two main roads connecting Kidwai Nagar,
viz G.T. Road and Kalpi Lucknow road.
Everyday there is flow of 500 trucks on
these two roads loaded with potato, onion,
fruits and vegetables etc. and the trucks
are on the roads for hours together
completely block the traffic. There is no
parking place. There are about 10
educational
institutions,
which
vehemently protested against the running
of the wholesale trade in Kidwai Nagar.

19. We have also perused the report
of Hon'ble Mr. Justice N.L. Ganguly
(Retd.) in Writ Petition No. 43987 of
1997. Hon'ble Ganguly has in his
findings in his report state that the
markets at Collectorganj, Cooperganj,
Kidwai Nagar, and Badshahi Naka are
congested and in the thickly populated
area of Kanpur. Wholesale business is
being carried on in the congested area of
the city. The condition of the roads is bad,
with ditches, and the narrow lanes often
causes traffic jams. Most of traders have
encroached on the Corporation footpaths,
which creates traffic congestion. He has
stated that the market yard at Naubasta is
bound with high walls connected with
road, with water and sewerage facilities,
Hospital, Post Office, Bank and Police
outpost. The distance of 11 km. Is nothing
in present days. The roads are good and
fast moving vehicles are available for
going to Naubasta.

20. From a Perusal of the facts as
disclosed in the affidavits in all these
connected writ petitions as well as from
the reports of Hon. Mr. Justice N.L.
Ganguly (Retd.) as well as Advocate
Commissioner Mr. J.J. Munir, it is evident
that the present wholesale goodgrains,
vegetables, fruits and khandsari mandis in
Kanpur
City
at
Kidwai
Nagar,
Cooperganj, Collectorganj, and Badshahi
Naka etc. are causing huge problem of
traffic congestion, pollution, spread of
diseases etc. Obviously this is because
these wholesale mandis were established
about a century ago and since then the
population of Kanpur City has gone up
several times. It is not necessary for us to
repeat in detail of all the allegations in the
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3 All] Kanpur Aloo Arhati Association and another V. State of U.P. and others
787
counter affidavit filed in these writ
petitions as well as in the reports of the
Commissioners appointed by this Court.
Suffice it to say that all these clearly
prove that the existing wholesale mandis
in Kanpur are causing huge problems for
the citizens of Kanpur and therefore it
would be in the public interest if they are
moved out to a more appropriate site.

21. It may be mentioned that a
wholesale dealer does not have to be in
direct contact with the public, unlike a
retailer. Hence even if the wholesale
business is carried on from a place outside
the city or at the outskirts the public will
not suffer.

The validity of section 7 (2)(b) of the
Act has already been upheld by a Division
bench of this Court in M/s Amrit Rice
Mil, Pilibhit v. Krishi Utpadan Mandi
Samiti 1987 UPLBEC 394.

22. In R.K. Porwal v. State of
Maharashtra AIR 1981 SC 1127 the
Supreme Court observed (vide paragraph
17) that shifting of a market yard is a
legislative act and not a judicial or
quasi-judicial function, and hence the
rules
of
natural
justice
have
no
application. In the same decision it was
also observed "Nothing may be expected
to remain static in this changing world
of ours. A market, which is suitably and
conveniently located today, may be found
to be unsuitable and inconvenient
tomorrow on account of development of
the area in another direction or the
congestion, which may have reduced the
market into an impossible, squalid place
or for a variety of other reasons. To so
interpret
the
provision
of
the
Agricultural
Produce
Marketing
Regulation
Act
as
prohibiting
the
abolition of a market once established
and bar the transfer of the market to
another place would, as we said, be to
defeat the very object of the Act."

23. In Karedin v. State of U.P. 1993
AWC 1513 this Court again upheld the
validity of section 7 (2)(b), and following
the decision of the Supreme Court in R.K.
Porwal's
case
(supra) held
that a
declaration under section 7 (2)(b) is a
legislative
function
and
hence
no
opportunity of hearing need be given.

24. It is well settled that a legislative
act cannot be challenged on the ground of
malafides, and its motive cannot be gone
into by the Court, vide K.C.G. Narayan
Deo v. State of Orissa, AIR 1953 SC
375 (370) Ashok v. Union of India, AIR
1991 SC 1792 (para 6), Narora Sugar
Mills v. State of M.P., AIR 1966 SC 416
(421),
Federation
of
Hotels
and
Restaurants V. Union of India, AIR
1990 SC 1637, R.S. Joshi v. Ajit Mills,
AIR 1977 SC 2279 (para16), etc. Hence
it cannot be said that the impugned
notifications
amount
to
colourable
exercise of power.

25. Since it has been held that a
Notification under section 7 (2)(b) is a
legislative activity we are of the opinion
that the Court should exercise judicial
restraint
in
interfering
with
such
legislative activity. A Notification under
section 7 (2)(b) is a piece of delegated
legislation and it can be struck down only
if (1) it violates some provision of the
parent Act, or (2) it violates some
provision of the Constitution. In our
opinion the impugned Notification dated
09.03.1981
and
the
subsequent
Notification e.g. of 15.11.1997 are clearly
within the ambit of section 7 (2)(b) of the
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788 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
Act, and it has not been shown that they
violate any other provision of the Act.
Hence, it cannot be said that these
Notifications are ultra vires any provision
of he U.P. Krishi Utpadan Mandi
Adhiniyam, 1964.

26. The question, which arises, is
whether
the
impugned
Notifications
violate any provision of the Constitution.
In our opinion they do not. The material
on record in these petition, which includes
the report of the Advocate Commissioner
Mr. Munir and Hon. Justice Ganguly
(Retd.) as well as the affidavits of the
respondents clearly indicates that the
present wholesale mandis in Kanpur City
are causing immense traffic problems,
congestion, diseases, noise pollution etc.
and have become a headache for the
public there. Hence the shifting of the
wholesale mandis from the existing sites
is clearly reasonable. No doubt the
petitioners right to do business under
Articles 19 (1)(g) is to some extent
affected by the impugned notification, but
this right is subject to reasonable
restrictions under Article 19 (6) of the
Constitution.

27. It may be mentioned that to test
the reasonability of a restriction we have
to see the subject matter, extent of
restriction, the mischief which it seeks to
check, etc. The reasonableness of the
restriction has to be determined in an
objective manner and has to be seen from
the point of view of the interest of the
general public and not merely from the
point of view of the persons upon whom
the restrictions are imposed vide Hanif
Quareshi vs. State of Bihar A.I.R. 1958
SC
731.
Moreover
the
impugned
notifications cannot be said to be
unreasonable merely because in a given
case they may operate harshly vide State
of Gujrat vs. Shantilal AIR 1969 SC 634
(vide para 52). As observed by the
Supreme Court in Laxmi Khandsari Vs.
State of U.P. AIR 1981 SC 873, Trivedi
vs. State of Gujrat AIR 1986 SC 1323,
State of Madras Vs. Row 1952 SCR 597,
Peerless vs. Reserve Bank AIR 1992 SC
1033, Harakchand vs. Union of India AIR
1970 SC 1453 etc. the nature of the right
alleged to have been infringed, the
underlying purpose of the restriction
imposed and the extent and urgency of the
evil sought to be remedied thereby,
disproportion
of
the
imposition,
prevailing conditions at the time etc. are
the relevant consideration for determining
whether the restriction is reasonable.

28. Further, as held in Jyoti Pershad
vs. Union Territory of Delhi AIR 1961 SC
1602, the standard of reasonableness must
also vary from age to age and be related
to the adjustments necessary to solve the
problems which communities face from
time to time. In adjudgining the validity
of the restriction the Court has necessarily
to approach the question from the point of
view
of
the
social
interest
which
legislation intends to promote vide
Puthumma vs. State of Kerala AIR 1978
SC 771, P.P. Enterprises vs. Union of
India AIR 1982 SC 1016, Joyoti Prasad
vs. Union Territory of Delhi (Supra) etc.

29. Judged by these standards the
impugned Notifications cannot be faulted
on the ground of lack of reasonableness.
As stated in the counter affidavits filed in
these connected writ petition and the
report of the Commissioners, the existing
wholesale mandis in Kanpur have become
the cause of immense traffic congestion in
Kanpur City, apart from causing diseases
pollution etc. Hence shifting the mandis
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3 All] Kanpur Aloo Arhati Association and another V. State of U.P. and others
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to the outskirts of the city or beyond is
clearly reasonable.

30. It must be remembered that
certain matters are by their very nature
such as had better be left to the
administrators
instead
of
Court
themselves seeking to substitute their own
views and perception as to what is the
best way in which to remove aberrations
creeping into that field. The present is
clearly an instance where this Court
should not interfere with the steps taken
by the respondents to resolve a pressing
problem. In matters of policy the Courts
have a limited role and it should only
interfere with the same when it is clearly
illegal. That clearly is not the case here.
The impugned Notifications are a salutary
step for undoing a mischief, which was
crying out for redress for a long time. And
they are not illegal.

31. As observed by the Supreme
Court in Mohd. Hanif Qureshi v. State
of Bihar, AIR 1958 SC 731, the Court
must
presume
that
the
legislature
understands and correctly appreciates the
need of its own people. The legislature is
free to recognize degrees of harm, and
may confine its restrictions to those where
the need is deemed to be the clearest.

32. In our opinion the State should
not be hampered by the Court in dealing
with evils at their point of pressure. All
legislation, including delegated legislation
(such as the kind we are examining) is
essentially ad hoc. Since social problems
nowadays are extremely complicated, this
inevitably entails special treatment for
distinct social phenomena. If legislation is
to deal with realities it must address itself
to variations in society. The State must
therefore be left with wide latitude in
devising ways and means of social control
and regulation, and the Court should not,
unless compelled by the law, encroach
into this field.

33. As Justice Frankfurter of the
U.S.
Supreme
Court
observed
in
American
Federation
of
Labour
v.
American Sash and Door Co., 335 US
538(1949);