Naim Ahmad v. State of Uttarakhand and others

Present : Mr. Ghanshyam Joshi and Mr. Mohd. Azim, Advocates for the petitioner. Mr. Mahendra Singh Bisht, Brief Holder for the State/respondent no.1. Mr. Vipul Sharma, Advocate for respondent no.2. Mr. Sanjay Kumar, Advocate for the respondent no.3. Hon’ble Ravindra Maithani, J. (Oral) Counter affidavit filed on behalf of respondent no. 2 in WPMS No.1111 of 2025 and counter affidavit filed on behalf of respondent no. 2 in WPMS No. 1122 of 2025 are taken on record. Misc. Application (IA) Nos.3 of 2025 and 3 of 2025 respectively, stand disposed of accordingly.

2. Since common question of facts and law involved in both these writ petitions, they are heard together and are being decided by this common judgment.

3. record.

4. Heard learned counsel for the parties and perused the The challenge in both these petitions is made to the license granted to the private respondents in both these petitions 2 by the respondent no.2/Zila Panchayat, Udham Singh Nagar (“the Zila Panchayat”) for organizing Haat Bazar, once in a week.

5. It is the case of the petitioners that they are the Administrators of their respective Villages Gram Panchayat. They came to know that within their village territory, some outsiders have been organizing Haat Bazar; after inquiry, it was revealed that the Zila Panchayat has granted license to the private respondents, without notice to the respective Gram Panchayats. It is the case of the petitioners that Zila Panchayat has no authority to grant license for organizing Haat Bazar, within the territory of the petitioners’ Gram Panchayats. Therefore, challenge is made to the licenses that were granted to the private respondents in both these petitions, by the Zila Panchayat.

6. The respondent no.2/Zila Panchayat has filed its counter affidavit. Inter alia it is pleaded that the petitions are not maintainable because the Gram Sabha is not impleaded as party. According to the Zila Panchayat, under Section 106 of the Uttarakhand Panchayati Raj Act, 2016 (“the 2016 Act”), the Zila Panchayat is empowered to grant such licenses on private or public land.

7. The private respondents though represented, but have not filed any counter affidavit.

8. Learned counsel for the petitioners submits that within the petitioners’ Gram Panchayat territory, licenses have been granted by Zila Panchayat without any authority; no public notice 3 was issued; the licenses were issued in most opaque manner and without any authority.

9. Learned counsel for the Zila Panchayat submits that under Section 106 of the 2016 Act, Zila Panchayat has framed Bye- Laws with regard to organizing Haat, etc. and Clause 18 of the Bye- Laws applies in the instant case, which is with regard to grant of license for organizing market in the private land. It is argued that the Zila Panchayat has not discriminated in grant of license, even if, the petitioners approach the Zila Panchayat, they may also be granted licenses. He submits that the public notice is necessary for organizing markets, when such markets are to be organized on any public land. It is argued that in the instant case, the private respondents did seek permission to organize market once in a week in their own land and as per Clause 18 of the Bye-Laws framed by Zila Panchayat under Section 106 of the 2016 Act, such licenses have been granted. He also referred to the principle of law, as laid down by the Division Bench of this Court in Special Appeal No.50 of 2020, Sukhdev Singh vs. State of Uttarakhand and others, to argue that, in fact, the Zila Panchayat jurisdiction in such matter has already been upheld. He also submits that the respective Gram Panchayats in the instant case, has no Bye-Laws. Therefore, the action of the respondent no.2/Zila Panchayat may not be questioned.

10. Learned counsel for the private respondents in both the petitions submits that the private respondents have obtained licenses, as per Rules by payment of fee, on their own land for organizing market. 4

11. Section 106 of the Act empowers the Zila Panchayat to frame its Bye-Laws and it also makes separate head, under which, such Bye-Laws may be made. Head ‘D’ relates to Bye-Laws relating to Markets, slaughter-houses, sale of food, etc. This issue, in fact, has already been settled by this Court in the case of Sukhdev Singh(supra). In the case of Sukhdev Singh (supra), this Court has interpreted the provisions of the law on this aspect and observed as hereunder:- “8. Section 106(2) of the 2016 Act relates to matters for which a Zila Panchayat has been conferred power to make bye-laws. Head “D”, in Section 106(2) of the 2016 Act, relates to markets, slaughter-houses, sale of food etc, and clause (a) thereunder prohibits the use of any place as a slaughter-house, or as a market or shop for the sale of animals intended for human food or of meat, or of fish, in default of a licence granted by the Zila Panchayat or otherwise than in accordance with the conditions of a licence so granted. Sub-clause (e) of Head “D”, in Section 106(2) of the 2016 Act , empowers the Zila Panchayat to prescribe conditions subject to which the areas or locality in respect of which licences for the purposes of sub-head “D” may be granted, refused, suspended or withdrawn. Section 104 of 2016 Act. relates to the powers, functions and duties of the Zila Panchayat and, under Section 104(9), a Zila Panchayat has been conferred the power to categorize as a Haat market, a Haat of a Gram Panchayat market and Zila Panchayat Haat market for working of Haats and markets in rural areas.

9. On a conjoint reading of Section 104(9) with Section 106(1) and 106(2) D (a) and (e) of the 2016 Act, the Zila Panchayat appears to have been conferred the power to grant a license for running of a Haat market. While it is true that, besides Section 106(2) of the 2016 Act, the bye-laws framed by the Zila Panchayat also traces its power to the 1961 Act which has since been repealed, it is settled law that, as long as power exists, mere quoting of a wrong provision would not denude the authority of the power to frame bye-laws. (Pine Chemicals Ltd. v. Assessing Authority : (1992) 2 SCC 683). 5

10. The power of the Gram Panchayat to frame bye-laws, under Section 22(1)(xii), Section 46(5)(d) and Section 46 (11) of the 2016 Act is traceable to Section 29(2) and, in view of Section 125 (b), it appears that any bye-laws, to be framed by the Gram Panchayat, requires approval of the Zila Panchayat concerned. It unnecessary for us, however, to dwell on this issue, since it is not in dispute that the subject Gram Panchayat has not made any such bye-laws till date and, unless and until the bye-laws framed by the Zila Panchayat, are held illegal, the said bye-laws would operate and govern the grant of licenses for running of Haat markets in the rural areas of the concerned district.”

12. During the course of hearing, learned counsel for the Zila Panchayat has referred to the Bye-Laws framed under Section 106 of the 2016 Act to argue that Clause 2 to 6 of the Bye-Laws relate to holding of markets on public place. He submits that for those licenses, public notice is required to be given. But, he further refers to Clause 18 of the Bye-Laws framed under Section 106 of the 2016 Act by the Zila Panchayat to argue, that in case license is sought for holding market on private land, in such eventuality public notice is not required. It is argued that in both the instant matters licenses were given for holding market on private land.

13. In fact, Clause 18 of the Bye-Laws has framed under Section 6 of the 2016 Act makes provisions for grant of license for organizing markets in the private land. It has some procedure given under this Clause 18. It does not stipulate to give any public notice, whereas Clause 2 to 6 of the same Bye-Laws makes provisions of auction for organizing market at public places.

14. Admittedly, in the instant case, the private respondents have been granted licenses to run market in their private properties which, in view of the foregoing discussion have been granted in accordance to the provisions of the Bye-Laws framed by the Zila 6 Panchayat under the 2016 Act. Therefore, there is no reason to make any interference. Accordingly, the petitions deserve to be dismissed.

15. The petition is dismissed, accordingly. (Ravindra Maithani, J.)

01.08.2025 Sanjay SANJAY KANOJIA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=e50e50b49596520698eff87e0a08bbd504686 df4d1afc60f54a287831dec46fe, postalCode=263001, st=UTTARAKHAND, serialNumber=26EEB7122ED0DD23233A255DD8EC45 0A84B515A087CAEFD1B3179A7DEAE40699, cn=SANJAY KANOJIA