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Himachal Pradesh High Court · body

2015 DIGILAW 1833 (HP)

Dinesh Kumar v. State of H. P.

2015-12-10

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. Petitioner is a local resident of Tehsil Chirgaon, District Shimla. He deals in the business of marketing apple crop during the apple season. Respondent No. 2-Board is the creation of the Himachal Pradesh Agricultural and Horticultural Produce Marketing (Development and Regulation) Act 2005, (hereinafter referred to as the ‘Act’) and constituted to approve for marketing the Agricultural/ Horticultural produce, development of effective marketing system, promotion of agricultural/horticultural exports and establishment/administration of proper markets for the sale of agricultural/horticultural produce in the State. Respondent No.1-State has also formulated the rules known as Himachal Pradesh Agricultural and Horticultural Produce Marketing (General) Rules 2006 (hereinafter referred to as the ‘Rules’ in short). Respondent No. 3 is the Marketing Committee established for the Districts of Shimla and Kinnaur at Dhalli. Respondent No. 3 is having its marketing yards at different places in Shimla and Kinnaur Districts. It is respondent No. 3 exercise all control over these yards and supervises all marketing activities in accordance with Act and the Rules framed thereunder. One of such yard of respondent No. 3 is situated at Rohru in District Shimla. The space is being provided to the traders on their applications submitted on prescribed performa by respondent No. 2. Section 40 of the Act which provides for the procedure to be followed for making an application by a person desirous to operate in the market area as a trader, commission agent etc. etc. reads as follows: 40.(1) Every person who in respect of notified agricultural produce, desires to operate in the market area as a trader, commission agent, weighman, harmal, syrveyor, ware houseman, contract farming sponsor, owner or occupier of the processing factory or any other market functionary, shall apply to the Secretary of the Committee for registration or renewal of registration in such manner and within such period as may be prescribed. The Secretary of the Committee shall be the authority to grant registration certificate with the prior approval of the Committee. Provided that any person may buy agricultural produce in the market yard/sub-market yard on day to day basis even without getting registered. Provided further that any person who desires to trade or transact or deal in any notified agricultural produce in more than one market area shall get registered, for respective function from the Managing Director of Board. Provided that any person may buy agricultural produce in the market yard/sub-market yard on day to day basis even without getting registered. Provided further that any person who desires to trade or transact or deal in any notified agricultural produce in more than one market area shall get registered, for respective function from the Managing Director of Board. (2) No broker, trader, weighman, surveyor, godown keeper or other functionaries shall, unless duly registered, carry on his occupation in a notified market area in respect of the notified agricultural produce under this Act. (3) Every application for such registration shall be accompanied with such fee as may be prescribed. (4) That Committee may register or renew the registration or refuse registration or renewal of the registration or cancel the registration on any of the following grounds: (i) if the applicant is a minor; or (ii) if the applicant has been declared defaulter: or (iii) if the applicant has been found guilty under this Act, the rules and bye-laws made thereunder. 2. The petitioner, who wanted to operate as a commission agent during apple season of this year in the market area Rohru, has applied for his registration as such vide application on prescribed performa, (Annexure P-2) to respondent No. 3. The registration, however, was refused to him as he failed to furnish security to the tune of Rs. 25,000,00/- by way of furnishing bank guarantee or in the shape of fixed deposit receipts. As a matter of fact, the application the petitioner has made was processed and vide Annexure R-53 dated 10.07.2015, respondent No. 3 called upon him to furnish security to the tune of Rs. 25,000,00/- in the manner as aforesaid. He failed to arrange for security and as such, the registration he sought was declined vide letter, Annexure P-5 to the rejoinder. Hence, this writ petition with the following prayer: “i. That the decision taken by the BOM dated 23.9.2014 in respect of fixation of registration fee of license for establishing private yard as a commission agent for buying and selling the apple crop at notified market area may kindly be quashed and set aside (i.e. Annexure P-4). ii. Hence, this writ petition with the following prayer: “i. That the decision taken by the BOM dated 23.9.2014 in respect of fixation of registration fee of license for establishing private yard as a commission agent for buying and selling the apple crop at notified market area may kindly be quashed and set aside (i.e. Annexure P-4). ii. that the respondents may be directed to grant the license in favour of the petitioner for establishing private yard as a commission agent for buying and selling the apple crop at notified market area Rohru District Shimla as per the provisions of Act and Rule:” 3. The complaint is that the decision, Annexure P-4, dated 23.09.2014 taken by the Board of Management of respondent No. 2 qua furnishing of security to the tune of Rs. 25,000,00/- in the form of bank guarantee or by way of pledging FDR/property is illegal and violative of Article 14 and 19(1) (g) of the Constitution of India. No such decision could have been taken without making amendment in the Rules. The condition of furnishing security to the tune of Rs. 25,000,00/-, according to the petitioner amounts to put unreasonable restriction on the right of a petty commission agent like him to obtain the registration certificate. Also that a commission agent, who establish a private yard in the market committee area for buying and selling the apple crop for a short duration of three months. 4. The petitioner who claims himself to be a petty commission agent had applied for his registration as such to carry on the business in the notified market area to earn his livelihood. However, he has been refused the registration on the ground which is not only arbitrary and harsh but oppressive also. It has been pointed that unreasonable restriction imposed in the matter of carrying out trade and business violates the fundamental rights of a citizen guaranteed under Article 19 of the Constitution of India, no unreasonable restriction not consistent with the said Article can be imposed. 5. In reply to the writ petition, the stand of respondents No. 2 and 3 is that the source of power of respondent No. 2-Board to impose such restriction flows from the statute i.e. the Act itself and that the provision qua furnishing of security to the tune of Rs. 5. In reply to the writ petition, the stand of respondents No. 2 and 3 is that the source of power of respondent No. 2-Board to impose such restriction flows from the statute i.e. the Act itself and that the provision qua furnishing of security to the tune of Rs. 25,000,00/- was made with a view to protect the interest of farmers and growers, as in the recent past, the traders/commission agents fled away leaving the liability of crores of rupees towards the farmers and growers. The respondent-Board could not settle the disputes till date for want of their whereabouts. The farmers and apple growers are now running from pillar to post to recover their hard earned money. 6. On hearing learned counsel representing the parties on both sides and also going through the record, so far as 2nd relief is concerned, the writ petition qua the same has become infructuous because the apple season is now over. So far as the further grouse that the decision taken by the Board of Management of respondent No. 2 to ask for security to the tune of Rs. 25,000,00/-, from a person like the petitioner for his registration as a trader/commission agent to carry on the business in the local market area allegedly illegal, arbitrary, harsh and without any authority, the reference can be made to Section 39(2) of the Act, which reads as follows: “In order to maintain stability in the market (a) take suitable measures to ensure that traders do not buy agricultural produce beyond their capacity and avoid risk to the sellers in disposing off the produce, and (b) grant license only after obtaining necessary security in cash or bank guarantee according to the capacity of the buyers.” 7. It is seen that under the provisions ibid the board in order to maintain stability in the market and also that traders do not buy agricultural produce beyond their capacity and thereby to protect the risk of the sellers in disposing of their produce made provisions to grant license only after obtaining necessary security in cash or bank guarantee as per the buying capacity of the traders/commission agents. The object of such provisions, pure and simple is to protect the interest of the farmers and fruit growers. Therefore, it cannot be said that respondent No. 2 has no authority to make provision of furnishing security. The object of such provisions, pure and simple is to protect the interest of the farmers and fruit growers. Therefore, it cannot be said that respondent No. 2 has no authority to make provision of furnishing security. The power so vested with respondent No. 2-Board, however, is controlled by the capacity of a person who applies for his registration as a trader in a particular market area to buy agricultural/horticultural produce. The decision Annexure P-4 (Colly.) of the Board of Management of respondent No. 2 not take care of this aspect of the matter and rather levy the security to the tune of Rs. 25,000,00/- at flat rates to all traders, irrespective of their financial capacity to buy the crop. On account of such decision, the person similarly situated to the petitioner seems to have deprived from obtaining the registration to carry on their business in the market yard area at Rohru. Any how, as already said, the season of this year is now over. This Court, however, feels that a direction to respondent No. 2 to take into consideration the capacity of a person applying for his registration as trader/commission agent to carry on business in the market area while fixing the amount of security to be furnished in future, would serve the ends of justice. 8. Therefore, this writ petition is disposed of with a direction to respondent No. 2 to lay down the criteria in the matter of fixing amount of security after taking into consideration the capacity of a person, an applicant to the grant of license to carry on business in any market area in the State in future. Pending application(s), if any, shall also stand disposed of.