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Rajasthan High Court · body

2008 DIGILAW 2122 (RAJ)

Krishi Upaj Mandi Samiti v. Ashoka Oil Indus.

2008-09-09

R.C.GANDHI, R.S.CHAUHAN

body2008
JUDGMENT Hon'ble GANDHI, J.—These appeals have been preferred against the judgment dated 11.12.2007 delivered in a batch of writ petitions by the learned Single (Judge). All these appeals involve common questions of facts and law and are being decided by this common order. 2. To appreciate the controversy, the background of the case briefly stated is that City of Jaipur was established by Maharaja Sawai Jai Singh in Seventies of the 18th Century with a small population. The length and breadth of the constructed City was four kilometers in square known as Pink City. The eastern side of the City is known as Surajpole. One Kilometer, interior in the city, from Surajpole is a big crossing known as Badi Choupad, flanked by Zohari Bazar on southern side. After one kilometer therefrom is Ramganj Chowk, facing the gate of the Royal Palace. One kilometer away from Ramganj, there is a crossing known as Choti Choupad, flanked by Ajmeri Gate road on southern side. The last of the fourth kms. in known as Chandpole. 3. With the passage of time, the population increased and the business of buying and selling of the agricultural produce was being conducted in Zohari Bazar and Ramganj i.e. second and third km. of the City. These came to be known as Zohari Bazar Anaj Mandi and Ramganj Anaj Mandi. With the further tremendous increase of the population, the rural area on the outskirts of the City started urbanizing and it became difficult to run the business in these Anaj Mandis by the traders. The Government to regulate the business of the Agricultural produce enacted an Act known as Rajasthan Agricultural Produce Market Act, 1961 (hereinafter referred to as 'the Act'). Sections 3, 4, and 5 of the Act deals with declaration of market area, principal market yard and sub market yards for sale and purchase of agricultural produce respectively. Section 4 of the Act reads as under: "4. Sections 3, 4, and 5 of the Act deals with declaration of market area, principal market yard and sub market yards for sale and purchase of agricultural produce respectively. Section 4 of the Act reads as under: "4. Declaration of market area.-(1) After the expiry of the period specified in the notification issued under Section 3 and after considering such objection and suggestions as may be received before such expiry and after holding such enquiry as may be necessary, the State Government may, by notified in the notification under Section 3 or any portion thereof to be a market area for the purposes of this Act in respect of all or any of the kinds of agricultural produce specified in the said notification. (2) The State Government may, at any time by notification in the Official Gazette, exclude from a market area any area or include in any market area other area." 4. Section 5 of the Act deals with the declaration of Principal Market Yard/Principal Market Area and Sub Market Yards. Section 14 of the Act deals with power of Market Committee with regard to grant of licences to the Traders and Brokers. Those traders and brokers who have been granted licences are entitled to conduct their business in the Principal Market Yard and Sub Market Yards. Rules have also been framed by the Government for regulating the businesses under provisions of the Act. Under Rule 69, the Traders and Brokers have been categorized as Licenced Traders, 'A' Class Brokers, Trader 'A' Class Brokers (Joint) 'B' Class Brokers and Retailers. Rule 69 of the Rules reads as under: "69. Licenced Traders, 'A' class brokers, Trader 'A' Class Brokers (Joint) 'B' Class Brokers and Retailers.-(1) Subject to the provision of section 4 section 14 of the Act no person shall do business as a trader or 'A' Class broker, or, trader 'A' Class Broker (Joint) or 'B' Class Broker or Retailer in agricultural produce except under a permanent licence granted by Market Committee under this rule. (2) Any person desiring to hold such permanent licence shall make an application in Form VII for a permanent licence to the Market Committee and shall pay fee as may be specified in the bye laws subject to the maximum of Rs. 300/- (Rupees Three Hundred only). (2) Any person desiring to hold such permanent licence shall make an application in Form VII for a permanent licence to the Market Committee and shall pay fee as may be specified in the bye laws subject to the maximum of Rs. 300/- (Rupees Three Hundred only). (3) (a) On receipt of such application together with the proper amount of the fee, the Market committee may, after making such inquiries as may be considered necessary for the efficient conduct of the market area and after obtaining following, grant him a permanent licence in form VIII subject to the conditions specified therein — (i) On obtaining cash security or bank guarantee, (ii) On considering the conduct of the applicant. (b) The amount of cash security or bank guarantee under clause (a) shall be fixed by an order by the Director. (4) Notwithstanding anything contained in sub-rule(3) the Market Committee shall not grant a permanent licence to any person, who has been declared insolvent by a competent court and may also refuse to grant permanent licence to any person whose operation in the market area are not likely to further efficient working of a market area under the control of the Market Committee. (5) The names of all such traders, 'A' class brokers, Trader 'A' Class Broker (Joint) 'B' Class Brokers and retailers shall be entered in a register to be maintained for the purpose. (6) Whoever, does business as a trader, 'A' Class Broker trader 'A' Class Brokers (Joint) 'B' Class Broker and retailer in agricultural produce in any market without a permanent licence granted under this rule shall on conviction be punished in accordance with sub-section (1) of section 28 of the Act." 5. Under Section 4 of the Act, Jaipur City as a whole has been declared as Market Area. Chandpole Anaj Mandi was declared as Principal Market Yard whereas Ramganj Anaj Mandi and Zohari Bazar Anaj Mandi were declared as Sub Market Yards under Section 5 of the Act. Subsequently, the Chandpole Anaj Mandi was notified as Sub-Market Yard in the year 1967. 6. Heard learned counsel for the parties and perused the record. 7. Because of the population congestion and other restraints in the City and particularly the traffic hazards as a result of flourishing business in the City, the Government decided to shift these Sub Market Yards outside the walled City. 6. Heard learned counsel for the parties and perused the record. 7. Because of the population congestion and other restraints in the City and particularly the traffic hazards as a result of flourishing business in the City, the Government decided to shift these Sub Market Yards outside the walled City. To achieve this purpose a chunk of land was acquired and Market Yard namely Surajpole was constructed with provision of shops to be allotted to the traders and brokers. Ramganj Anaj Mandi was de-notified on 19.05.1980 and newly constructed Market Yard Surajpole was declared as Principal Market Yard under Section 5 of the Act. Thereafter, Zohari Bazar Sub Market Yard was de-notified on 07.11.1989 and Sub Market Yard, Chandpole was de-notified on 07.05.2007 with the purpose that the Traders and Brokers will shift their businesses to the Principal Market Yard Surajpole. The business was shifted by some of the Traders and Brokers. The appellant served a notice dated 27.06.1995 upon the remaining traders and brokers to shift their business to Principal Market Yard by 30th July, 1999 failing which their licences shall be cancelled. Pursuant to this, all the Traders and Brokers of Sub Market Yard Zohari Bazar and Ramganj shifted their business but some continued to run their business in Sub Market Yard, Chandpole. 8. With further passage of time, because of the extensive business activities in the walled City, even after de-notification of Ramganj and Zohari Bazar Sub Market Yards, it became extremely difficult for the farmer community, traders and brokers to enter the City at proper time for conducting their business at Sub-Market Yard, Chandpole. It was not only traffic hazards alone but also the transportation and activities of the commuters as the City had grown to a larger size. It became extremely difficult for the farmers to transport their agricultural produce to the market. The Government realising this difficulty decided to get rid of this menace and framed a policy to construct a Sub Market Yard at Kukerkhera to shift Traders and Brokers of Chandpole. For that purpose, a Notification was issued for acquisition of land measuring 212 bighas and 15 biswas in the year 1987. Out of this, 83 bighas 15 biswas is still in litigation before the High Court. 9. For that purpose, a Notification was issued for acquisition of land measuring 212 bighas and 15 biswas in the year 1987. Out of this, 83 bighas 15 biswas is still in litigation before the High Court. 9. The appellant, in the meantime, notified Lalkothi as Sub Market Yard in the year 1991 and subsequently also notified Sodala as Sub Market Yard vide Notification dated 25.01.1992. Looking to the traffic problems and other restraints, these Sub Market Yards of Lalkothi and Sodala were de-notified on 03.03.1998. The de-notification caused tremendous problems to the farmers, traders, brokers and retailers. They filed representations before the Government and on consideration of their representations, the de-notification was withdrawn vide order dated 25.10.1989 and the status of Sub Market Yards was restored and till date the business of Agricultural Produce is being conducted in these Sub Market Yards. 10. After acquisition of the land, it was developed by the appellants carbing out 361 plots of the size of 20 feet x 50 feet each for construction of shops and godowns besides some sundry shops. The plots for shops and godowns were to be allotted to the Traders and Brokers whereas sundry shops were to be allotted to the persons doing ancillary and subsidiary work of agricultural produce. The appellants developed the area, about 129 bighas in the first phase. 11. A Notice dated 19.12.2001, containing the criteria for allotment of the plots was issued by the appellants inviting applications from the desirous A Class Traders and Brokers of Sub Market Yard, Chandpole. Pursuant to the Notice, the appellant received 301 applications, out of which 47 applicants were found ineligible according to the criteria adopted by the appellant. A provisional list of the allottees was published on 08.09.2004 and final list on 27.12.2004. Accordingly, the plots were allotted to the eligible A Class Traders and Brokers. 12. At this stage, the traders and brokers of Sub Market Yards Lalkothi and Sodala and others, running their business in Market Area filed 30 writ petitions in the Court seeking relief of allotment of plots, on the ground that they are conducting the business of similar nature and should have also been allotted the plots for running their business in newly created Sub Market Yard Kukerkhera, tracing discrimination and the unreasonableness of the criterion. After disposal of the writ petitions, special appeals came to be filed against the judgment of the learned Single Judge. On hearing learned counsel for the parties, the Division Bench of this Court in case title Shyam Sunder Garg vs. State of Rajasthan & Others, so far as the challenge to the criteria is concerned, upholding the criteria observed as under: "We do not find any error in the order of the learned Single Judge dismissing the writ petition challenging the criteria of allotment of space/shops on the basis of marks awarded to the applicants based on market fee, turnover and the age of licence. Apart from the fact that fixation of criteria is a policy matter, we do not find any element of arbitrariness or unreasonableness in the criteria. The dismissal of the writ petitions on behalf of the traders whose licences stand cancelled or not renewed also does not warrant any interference, for if the applicant does not hold licence, it is plain that they are not eligible for allotment. As observed by the learned Judge, they may challenge the cancellation/non-renewal and subject to the result of the appeal, they may put forward claim for allotment." 13. Thereafter, the question before the Division Bench was as to how the remaining plots should be allotted for construction of shops and godowns. With regard to the entitlement of the writ petitioners and the manner to be adopted for allotment of the plots, the Division Bench observed as under: "The crux of the dispute lies in the question of preference, if any, to be given to the traders of Chandpole market vis-a-vis Lal Kothi, Sodala and Surajpole markets doing business in notified agricultural produce. It is true that in the notification of acquisition, mention was made of Chandpole Mandi but from the record it appears that the Government had taken a policy decision to shift all Anaj Mandis to the out skirt of the city. We do not find any distinction between the cases of traders doing business in notified agricultural produce at Chandpole and those doing similar business in notified agricultural produce at Lal Kothi, Sodala or Surajpole in principle. We do not find any distinction between the cases of traders doing business in notified agricultural produce at Chandpole and those doing similar business in notified agricultural produce at Lal Kothi, Sodala or Surajpole in principle. The problem has arisen on account of the fact that, number of shops constructed by the Market Committee so far-said to be 284-is short of the number of traders/applicants subject of course to their inter se placement in the merit list, that is, the marks awarded to them on the basis of volume of turnover, market fee and the age of licence. In our view, if the traders of these markets including Chandpole stand on par in all respects, there cannot be any classification inter se. The only thing required is to identify the trader/traders for allotment of the shop first. To this extent, we may clarify that traders of Chandpole market may be allotted shop(s) first, and thereafter allotment may be made to the traders of Lal Kothi, Sodala and Surajpole markets. As a matter of fact, we are inclined to think that if the number of shops constructed so far is short of applicants who are otherwise eligible for allotment, the respondent authorities may consider allotting space on which the concerned traders may construct shops on the terms and conditions which may be decided by the Market Committee. It goes without saying that the allotment of such space will be made to traders/applicants who are comparatively lower in merit and priority. It may be that some of them are equally placed in all respects; in that case, allotment may be made by lottery." 14. Another dispute before the learned Division Bench was with regard to the allotment of the plots to the traders doing business in non-agricultural produce in Sub Market Yard, Chandpole. The Division Bench dealing with this, observed as under: "As regards traders doing business in non-agricultural produce, it was argued that the non-agricultural produce such as cattle feed is made from notified agricultural produce, and, therefore, it is not correct on the part of the respondents to treat them as traders dealing in non-agricultural produce and deny them space/shop. As seen above, the Rajasthan Agricultural Produce Markets Act has been enacted to regulate "buying and selling of agricultural produce", among other things. As seen above, the Rajasthan Agricultural Produce Markets Act has been enacted to regulate "buying and selling of agricultural produce", among other things. Section 4(2) of the Act, also prohibits "purchase or sale" of any agricultural produce specified in the notification. Thus if a particular commodity is sold which is not included in the list of agricultural produce in the Schedule but is made from the notified agricultural produce, it prima facie appears that the business would involve purchase of agricultural produce. The Act relates to "purchase or sale" and if purchase of agricultural produce takes place and the same is converted into non-notified agricultural produce and then sold, we do not think, the traders should be denied allotment only on the ground that the produce sold by them is not a notified agricultural produce. Having made these observations we leave it to the Market Committee to determine whether a particular commodity in the business of sale of which the trader is engaged-should be allotted shop/space or not. However, we must clarify that the question of allotment of shops/space to such traders doing business in notified agricultural produce is complete and all of them have been allotted shops/space." 15. Thereafter, S.R. Trading Company, A Class Trader, filed writ petition seeking direction to the respondents for allotment of the plot. The Company was not working either in the Principal Market Yard or Sub Market Yards. On consideration of his claim, the writ petition was dismissed. The Company preferred D.B. Special Appeal No. 897 of 2007. While consideration of the appeal, notice of the judgment dated 19.03.2007 of the Division Bench was also taken. The Division Bench came to the conclusion that the S.R. Trading Company has no right to seek the relief prayed for and the appeal was dismissed with the following observations : "The reliance on the aforesaid judgment by the counsel for the appellant in the present fact situation is misconceived. For one, the appellant is not a trader carrying on business either at Chandpole market or Surajpole market. He is also not doing business at Lal Kothi or Sodala sub-markets. The appellant is carrying on business at Govind Nagar East, Amer Road, Jaipur which is neither a notified market nor a notified sub-market. For two, the appellant never made any application pursuant to the notice dated 20.12.2001. He is also not doing business at Lal Kothi or Sodala sub-markets. The appellant is carrying on business at Govind Nagar East, Amer Road, Jaipur which is neither a notified market nor a notified sub-market. For two, the appellant never made any application pursuant to the notice dated 20.12.2001. For three, the appellant does not fit in any of the categories mentioned by the Division Bench in its order dated 19th March, 2007." 16. The third observation of the learned Division Bench is that the appellant therein has not applied pursuant to the notice dated 20.12.2001. We make it clear that the notice dated 20.12.2001 was only for inviting applications from the Traders and Brokers of Sub-Market Yard, Chandpole, therefore, the appellant —S.R. Trading Company, was not having any opportunity to file an application pursuant to the notice dated 20.12.2001. 17. It is noticed by us that taking leaf from the judgment delivered by the earlier Division Bench on 19.3.2007, a large number of writ petitions came to be filed in the High Court claiming the same relief as per the observations of the Division Bench contained in the judgment. A batch of 51 writ petitions was disposed of vide judgment, under appeal, observing that the observations made by the Division Bench vide judgment dated 19.3.2007 applying mutandis mutandi to the writ petitioners and directed the appellant to consider the claims of the writ petitioners for allotment of the plots. 18. Against the order of the learned Single Judge these appeals have been preferred on the ground that the directions passed by the learned Single Judge cannot be complied with as the number of shops is less and the number of the contenders-petitioners is more. 86 shops were allotted as per criteria to the Traders and Brokers on the direction of earlier Division Bench. Since, the shops were available, these could be allotted. Presently the petitioners are large in number whereas remaining shops are only 36. 19. The Krishi Upaj Mandi Samiti in the meantime framed a policy and according to the policy, the remaining shops which have not been allotted can be allotted in the second phase of allotment. Since, the shops were available, these could be allotted. Presently the petitioners are large in number whereas remaining shops are only 36. 19. The Krishi Upaj Mandi Samiti in the meantime framed a policy and according to the policy, the remaining shops which have not been allotted can be allotted in the second phase of allotment. During the course of the proceedings, the appellant presented an application seeking permission of the Court to place on record a copy of the policy framed by the Government for allotment of the shops phasewise, which was permitted and directed by the Court to be placed on record. The policy indicates the method and manner for allotment of the shops phasewise. 20. The undisputed facts are that the policy decision was taken by the Government for shifting Sub-Market Yard, Chandpole to Kukerkhera Sub-Market Yard. Land was purchased for developing comprehensive market at Kukerkhera. The policy of the Government has the bearing that because of the traffic hazards and other restraints it is difficult to run the business by the traders, brokers and retailers in Sub-Market Yard, Chandpole. The notification of shifting of Sub-Market Yard, Chandpole was issued on 19.12.2001. This notification has not been challenged till date. The eligible Traders and Brokers who filed their claims pursuant to the notification dated 19.12.2001, the plots have been allotted to them. The writ petitioners who came before the Court taking leaf from the judgment of the Division Bench dated 19.03.2007, the Court directed to consider their claims. The appellant considered their cases and allotted 86 plots to them. The allotment of the plots to these persons has also not been challenged. 21. The plea of the learned counsel for the appellants is that out of 361 plots carbed out on spot for allotment to the Traders and Brokers, two have been reserved for Processing Unit, 14 for farmers category and out of remaining 345 pots, 223 plots have been allotted pursuant to the notification dated 19.12.2001. 86 plots have been allotted pursuant to the directions of the Court and there are only 36 plots available with the appellant for allotment. The number of contenders for allotment of the plots at present is over one hundred. There are in all 2587 Traders and Brokers. To implement the order of the learned Single Judge, the appellants require 2587 plots. All cannot be accommodated in one go. The number of contenders for allotment of the plots at present is over one hundred. There are in all 2587 Traders and Brokers. To implement the order of the learned Single Judge, the appellants require 2587 plots. All cannot be accommodated in one go. The policy of the appellant contains for the development of the area acquired for construction of the plots for running the business by the Traders and Brokers which are to be allotted phasewise. 22. The plea of the learned counsel for the respondents is that the appellants have considered the writ petitioners whose writ petitions were disposed by the Court directing the appellant to consider their cases for allotment of the plots and allotments have been made. Accordingly, they are also required to be similarly treated and the appellants are similarly duty bound to make allotment to the writ petitioners, instead of coming in appeal before this Court. 23. The plea of the learned counsel for the respondents is very appealing as it appears that the respondents should have been dealt with the same yardstick. The appellant has projected its difficult that since the number of contenders is much and number of plots presently available are only 36, therefore, it is not possible for them to apply the same yardstick which has been applied for allotment of 86 shops as per the orders of the Court. 24. We find that if the respondents are aggrieved of the non-allotment of the shops or any violation of the judgment of the Court by the appellants, they can seek recourse by either challenging the allotment orders, or it gives them a fresh cause of action as similar treatment has not been extended to them. 25. So far as the legal position vis-a-vis case of the respondents is concerned, the plea is that they have approached to the Court first, therefore, they are entitled to the same relief and the appellants should have made allotment of the plots to them. 25. So far as the legal position vis-a-vis case of the respondents is concerned, the plea is that they have approached to the Court first, therefore, they are entitled to the same relief and the appellants should have made allotment of the plots to them. Learned counsel for the respondents in support of his plea has relied upon the judgment of the Supreme Court delivered in case title Ashok Alias Somanna Gowda and Another vs. State of Karnataka reported in (1992) 1 SCC 28 wherein the Apex Court accepted the plea of the petitioners therein and observed that those who have approached the Court, they are entitled to relief and the Apex Court directed that the candidates who have approached the Court, whatever may be their merit, should be considered and selected against the seats. 26. Learned counsel for the respondents in contra has relied upon the judgment of the Supreme Court delivered in case title Dr. Santosh Kumari (Mrs.) vs. Union of India and Others reported in (1995) 1 SCC 269 . The earlier judgment (supra) did not find favour with the Apex Court and observed that directions made in Ashok's case are in view of the particular facts and circumstances of that case and the Apex Court dealing with this proposition directed that those who have approached the Court cannot be granted relief only on the ground simplicitor that they have approached the Court and observed as under: "8. The third respondent who appeared in person and we must say, she put forward her case with admirable clarity and grace-submitted that inasmuch as none of the said six candidates including Dr. Vibha Aggarwal and Dr. Shiv Prasad Aggarwal have chosen to approach the court complaining of their non-admission, they should not be considered for admission against the said seat and that she, who had approached the court at the earliest possible moment, should be admitted to that seat. She relied upon the decision of this Court in Ashok vs. State of Karnataka in support of the said submission. It is not possible to agree. The allotment of seats should go according to merit. It does not depend upon who comes to court and who does not. The matter is one of principle and should not depend upon who comes to the court. A more deserving candidate may not have the means to approach the court...... It is not possible to agree. The allotment of seats should go according to merit. It does not depend upon who comes to court and who does not. The matter is one of principle and should not depend upon who comes to the court. A more deserving candidate may not have the means to approach the court...... The submission of the third respondent cannot, therefore, be accepted. The direction made in Ashok related to selection to the post of Engineers and was made in the particular facts and circumstances of that case. The direction made therein cannot be treated to be one of general application." 27. Learned counsel for the appellants has also replied upon the judgment of the Supreme Court delivered in case title U.R. Jal Nigam and Another vs. Jaswant Singh and Another, reported in (2006) 11 SCC 464 which is based on the facts that a judgment was delivered by the Court and taking leaf from that judgment, the other petitioners approached the Court seeking the same relief. The Apex Court pronounced that those who have come, taking shelter from the judgment of the Court, cannot be granted the relief and dealing with this issue, the Apex Court observed as under: "6. The question of delay and laches has been examined by this Court in a series of decisions and laches and delay has been considered to be an important factor in exercise of the discretionary relief under Article 226 of the Constitution. When a person who is not vigilant of his rights and acquiesces with the situation, can his writ petition be heard after a couple of years on the ground that same relief should be granted to him as was granted to person similarly situated who was vigilant about his rights and challenged his retirement which was said to be made on attaining the age of 58 years. A chart has been supplied to us in which it has been pointed out that about 9 writ petitions were filed by the employees of the Nigam before their retirement wherein their retirement was somewhere between 30.6.2005 and 31.7.2005. Two writ petitions were filed wherein no relief of interim order was passed. They were granted interim order. A chart has been supplied to us in which it has been pointed out that about 9 writ petitions were filed by the employees of the Nigam before their retirement wherein their retirement was somewhere between 30.6.2005 and 31.7.2005. Two writ petitions were filed wherein no relief of interim order was passed. They were granted interim order. Thereafter a spate of writ petitions followed in which employees who retired in the years 2001, 2002, 2003, 2004, and 2005, woke up to file writ petitions in 2005 and 2006 much after their retirement. Whether such persons should be granted the same relief or not ?..." 28. The Apex Court further pronounced on the proposition in Para No. 16 which reads as under: ".....16. Therefore, in case at this belated stage if similar relief is to be given to the persons who have not approached the court that will unnecessarily overburden the Nigam and the Nigam will completely collapse with the liability of payment to these persons in terms of two years' salary and increased benefit of pension and other consequential benefits. Therefore, we are not inclined to grant any relief to the persons who have approached the court after their retirement." 29. Here in the present case also, the respondents filed writ petitions taking leaf from the judgment dated 19.3.2007 seeking same relief which cannot be granted to them in terms of the law laid down by the Supreme Court vide judgment (supra). 30. We have seriously thought over the claims and counter claims of the appellants and the respondents. Dismissal or allowing the appeal will not solve the problem of either of the parties. A solution has to be found out. To resolve this controversy, we dispose of these appeals in following terms : (i) The appellants shall advertise remaining plots providing opportunity to all the Traders and Brokers doing their business in Sub-Market Yards and the Market Area. (ii) We grant an opportunity to the appellants to allot plots in second phase after advertising these plots with other plots, if carved out for allotment, in accordance with the policy framed by the appellants. (iii) In case, the appellants decide to allot these 36 plots as per their necessity without waiting for advertising the plots earmarked for the second phase, the appellants are directed to advertise and allot the same within reasonable time according to the policy.