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2018 DIGILAW 1606 (ALL)

Insram Ali v. Krishi Utpadan Mandi Samiti

2018-07-20

ABHAI KUMAR, DEVENDRA KUMAR ARORA

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JUDGMENT : 1. Heard Mr. U.K. Srivastava, learned Counsel for the petitioners and Mr. N.C. Mehrotra, learned Counsel for the respondents. 2. Petitioners have approached this Court under Article 226 of the Constitution of India, challenging the order dated 23.2.1998 passed by the opposite parties contained in Annexure Nos. 1 to 10, whereby petitioners' license granted under Section 17 of the U.P. Krishi Utpadan Mandi Adhiniyam, 1964 and the Rules framed thereunder for doing the fruit business in Naveen Fruit & Sabji Mandi within the premises of Dubaga Market area situated at Lucknow-Hardoi Road as well as the allotment of their shops, which situates in the aforesaid market area and allotted to them for doing their business, have been cancelled. 3. Shorn off unnecessary details the facts of the case are as under: While exercising the powers conferred under Section 6 of the U.P. Krishi Utpadan Mandi Adhiniyam, 1964 (hereafter referred to as the "Adhiniyam, 1964"), the State Government decided to establish a market area at Dubagga on Lucknow-Hardoi Road in order to avoid congestion and pollution in the vicinity of Chowk area. In pursuance thereof, specified portion of the aforesaid area has been declared as principal market yard known as Dubagga Naveen Phal Sabji Mandi. 4. According to the petitioners, they are fruit growers as they are engaged in growing mango, guavas in Tehsil Malihabad, District Lucknow. The object to establish the Dubagga Naveen Phal Sabji Mandi was to facilitate the fruit growers including the mango growers of the mango belt of Tehsil Malihabad, Lucknow to deal in the business of storage, sale and purchase of such precious fruits from the said market area. 5. It has been averred in the petition that in the Dubagga Naveen Phal Sabji Mandi, shops were also constructed for being allotted to the persons doing business in such market area. The shops constructed in the area of Dubagga Naveen Phal Sabji Mandi were divided into several categories including a category meant for allotment of such shops to the growers of vegetables and fruits. According to the petitioners, as they are the growers of fruits, therefore, they were included in such category. In this respect, petitioners and other similarly situated growers were required to deposit security amounting to Rs. 15,000/-, whereas old traders of Chowk Mandi engaged in the wholesale business of fruits and vegetables were required to deposit the security amounting to Rs. According to the petitioners, as they are the growers of fruits, therefore, they were included in such category. In this respect, petitioners and other similarly situated growers were required to deposit security amounting to Rs. 15,000/-, whereas old traders of Chowk Mandi engaged in the wholesale business of fruits and vegetables were required to deposit the security amounting to Rs. 10,000/- only. 6. It has been stated that besides the security amount already taken from the petitioners in respect of the aforesaid shop, the allotment of such shops was made in their favour on monthly rent of Rs. 210/- and the petitioners were directed to deposit six months' rent in advance. As directed in the allotment orders given to the petitioners, they deposited the advance rent of Rs. 1,260/-. Thereafter, the petitioners were regularly depositing the monthly rent of the aforesaid shops allotted in their favour. 7. According to the petitioners, they possessed the valid licenses for doing the business of storage, sale and purchase in the Dubagga Naveen Phal Sabji Mandi by the Krishi Utpadan Mandi Samiti, Lucknow. Since, the traders dealing in the wholesale business in vegetables and fruits in Chowk Mandi Area were not prepared to shift their business in the Dubagga Naveen Phal Sabji Mandi, therefore, the entire business was being done from the Chowk Mandi area. According to them, they were neither licensee in the Chowk Mandi area Lucknow nor they were doing any business in such market. In these backgrounds, till the Chowk Mandi was not completely shifted to the Dubagga Naveen Phal Sabji Mandi, they and other similarly situated fruits growers were not able to do their business from the shops allotted to them in Dubagga Naveen Phal Sabji Mandi. Ultimately, the District administration mounted pressure and also started coercive method to shift the Chowk Mandi to the Dubagga Naveen Phal Sabji Mandi. 8. Being aggrieved by the action of the District administration, Phal Sabji Vyapar Samiti, through its President Mohd. Usman, had approached this Court by filing writ petition No. 40 (M/B) of 1995. This Court directed the opposite parties including District Magistrate, Lucknow and the Director, Rajya Krishi Utpadan Mandi Parishad, U.P., Lucknow, to ensure a very speedy and prompt shifting of Chowk Mandi to Dubagga Naveen Phal Sabji Mandi. 9. Usman, had approached this Court by filing writ petition No. 40 (M/B) of 1995. This Court directed the opposite parties including District Magistrate, Lucknow and the Director, Rajya Krishi Utpadan Mandi Parishad, U.P., Lucknow, to ensure a very speedy and prompt shifting of Chowk Mandi to Dubagga Naveen Phal Sabji Mandi. 9. According to the petitioners, the Chowk Mandi could be completely shifted to Dubagga Naveen Phal Sabji Mandi between the month of November-December, 1997. After complete shifting of Chowk Mandi to Dubagga Naveen Phal Sabji Mandi, the running of the day-today business by the petitioners could be found possible. Therefore, the petitioners required the receipt books for transacting day-to-day business in prescribed Form-9 and also requested for accepting further rent of the shops for December, 1997 and onwards. The opposite parties, instead of issuing the receipt books and accepting the rent of the shops, cancelled their licenses as well as allotment of the shops in question by means of the impugned orders. 10. Hence, the instant writ petition. 11. Submission of the learned Counsel for the petitioners is that though in the impugned order of cancellation dated 23.2.1998, it has been referred that the show cause notices were sent to the petitioners by means of registered post as well as through special messenger and also by publication in some local newspapers in its issue of 30.1.1998 but this statement of fact made in the impugned order of cancellation is seriously disputed as none of the petitioners had received any show-cause notice dated 28.1.1998 as referred in the impugned order. 12. Learned Counsel for the petitioners have further submitted that perusal of the impugned order of cancellation reveals that either the name of the petitioners or in some cases the name of their father or in other cases their residential addresses have been incorrectly stated which clearly make the service of the alleged show-cause notices on the petitioners by means of registered post as highly doubtful. Besides this, petitioners further disputed the personal service of such notices through a special messenger as alleged in the impugned order of cancellation. Thus, the impugned orders suffer from serious defects and show the colourable exercise of power. 13. Besides this, petitioners further disputed the personal service of such notices through a special messenger as alleged in the impugned order of cancellation. Thus, the impugned orders suffer from serious defects and show the colourable exercise of power. 13. Elaborating his submission, learned Counsel for the petitioners submits that petitioners are neither defaulters in the payment of mandi license fee nor they committed default in the payment of monthly rent of the shops allotted to them but the opposite parties without due application of mind have proceeded to cancel their mandi licenses and allotment of their shops on non-existent reasons as well as on surmises and conjectures. 14. Learned Counsel for the petitioners has further submitted that neither the provisions of Section 17 of the Act nor the Rules framed thereunder or the terms and conditions of the mandi licenses granted to the petitioners can be said to have been contravened by the petitioners in any manner whatsoever and, therefore, the grounds taken for cancelling their licences and the allotment of their shops in the impugned orders dated 23.2.1998 are arbitrary, illegal and against the provisions of the Act and the Rules framed thereunder as well as the conditions of the licenses granted to the petitioners. 15. Per contra, Counsel for the respondents has submitted that the traders and association have also filed writ petition Nos. 4379 of 1993 (M/B), 40 of 1995 (M/B), 77 of 1995 (M/B), 1842 of 1995 (M/B) and 896 of 1996 (M/B). In these writ petitioners, relevant directions were issued on number of times. In compliance of the order of this Court, the Director, Mandi Parishad, appeared in person on 9.1.1998 and submitted before this Court that some irregularities were committed, which would be set at rest. In pursuance to the order of this Court, the Director Mandi Parishad constituted a Committee consisting of seven top financial, administrative and legal officers of Mandi Parishad to resolve the controversy in the matter. The said Committee, after due investigation, submitted its report dated 20.1.1998, in which it was recommended that those persons who have been allotted shops at Dubagga Market Yard but are not carrying their business, their license as well as allotment of shops may be cancelled after adopting due procedure of law and if vacant shops are available after such cancellations, the same should be allotted to person desirous of shops on priority basis viz. (1) priority to those who are petitioners, having deposited Rs. 1000/- in the year 1984 and are carrying on business at present (irrespective of quantum of their work); (2) priority to those who have deposited Rs. 1000/- in 1984 and are carrying on business but are not petitioners; and (3) priority to those who have not deposited Rs. 1000/- in 1984 but are petitioners and are carrying on business. 16. Counsel for the respondent has submitted that the aforesaid report of the Committee was examined by the Director and vide order dated 22.1.1998, instructions/directions were issued to the effect that (1) allotment of all existing allottees be re-examined and amongst them, all ineligible allottees be given show cause notices (individual) for cancellation of the said ineligible allotment; (2) allotments of ineligible non-petitioners be cancelled on merits after following the procedure of law/rules; (3) details of allotments of ineligible petitioners be put up before this Court and the Court's permission be taken for cancelling the same; (4) vacant shops may be earmarked for allotment as per priority laid down by the Committee. 17. Counsel for the respondents has submitted that in furtherance of the report of the Committee dated 20.1.1998 and decision of the Director dated 22.1.1998, all allotments made in Dubagga Naveen Phal Sabji Mandi were re-examined and it was found that total 235 allotments were made. 22 persons were allotted B-type shops, 117 C-type shops and 96 persons modular shops. Out of 235 persons, one name was repeated twice and two persons were allotted shops at Naveen Mandi Sthal at Sitapur Road. Thus, three shops accordingly fell vacant and hence actual allotments of only 232 persons were re-examined and their suitability were judged. 18. Learned Counsel for the respondents has submitted that in re-examination, prima facie 47 allottees were found ineligible and were served with show-cause notices individually, through registered post as well as through publication in daily newspaper "Dainik Jagran' dated 30.1.1998. After service of notices, 21 persons submitted their reply in writing and remaining 26 persons did not submit any reply despite proper service of notice. Those who submitted their replies were also accorded opportunity of personal hearing and the matter was examined on merit. 19. After service of notices, 21 persons submitted their reply in writing and remaining 26 persons did not submit any reply despite proper service of notice. Those who submitted their replies were also accorded opportunity of personal hearing and the matter was examined on merit. 19. In these backgrounds, submission of the learned Counsel for the respondents is that after construction of the Dubagga Naveen Phal Sabji Mandi and after issuance of notifications under Section 7 (2) (b) of the Adhiniyam, 1964 dated 15.5.1991 and 19.4.1997, the Chairman and the Secretary of the Market Committee had illegally and arbitrarily allotted the shops to those persons including petitioners, who did not have any business in the old market. They were given licenses and allotted the shops for the first time to take away the rights of those traders, who had to shift to the new market yard. The Court had in the writ petition filed by the traders against the shifting of the trade summoned the Director of the Krishi Utpadan Mandi Parishad. The Director had admitted that the Chairman and the Secretary of the Market Committee had committed illegalities in allotting the shops to the new licensees, who were granted licenses for first time to carry on the business, purportedly for the reasons that the traders in old market will get an opportunity to demonstrate to the Court that there are no more shops available in the new market yard. The Director assured the Court to reexamine the matter and found from the report dated 22.1.1998 of the committee appointed by him that many allottees including the petitioners were not eligible for allotment of the shops as they were granted license in the same year prior to allotment. They did not fulfill the condition of payment of requisite market fees, as a proof and entitlement of business for allotment of shops. Therefore, the impugned orders of cancellation has rightly been passed and there is no illegality or infirmity in the impugned orders. 20. We have examined the submissions of the learned Counsel for the parties and gone through the record. 21. The object of allotment of shop was to shift the old traders to the new market yard to regulate the business. 20. We have examined the submissions of the learned Counsel for the parties and gone through the record. 21. The object of allotment of shop was to shift the old traders to the new market yard to regulate the business. The conditions of the license clearly provided that the trade had to be shifted to new market yard and that if the allottee keeps the shop locked for more than three months, the allotments were liable to be cancelled. 22. It is admitted that shops were kept locked for about two years and that the business was not started in the new shops, and that petitioners had no business in the old market yard. It is thus apparent that the petitioners had obtained allotment by misrepresentation. 23. It is also relevant to mention that on account of illegalities/irregularities committed by the certain officials, allotments of shops was made to ineligible person, which is evident from the report submitted by the Committee. The assertion of the petitioner that the impugned orders of cancellation has been passed in violation of the principle of natural justice is also incorrect and misleading as ample opportunity was afforded at every stage. 24. Apart from above, it may be pointed out that the identical writ petition i.e. writ petition No. 721 (M/B) of 1998, in which similar order dated 23.2.1998 impugned in the present writ petition was challenged, has already been dismissed by a Co-ordinate Bench vide judgment and order dated 14.9.2009 by observing that the order cancelling the license and allotment of the shops does not suffer from any error of law. Thus, no interference under Article 226 of the Constitution of India is made out. 25. The writ petition is, accordingly, dismissed. Costs easy.