Karnataka High Court
Malleshantayya S/O Gurushantayya ... vs Director Department Of Agriculture & ... on 5 October, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH, GULBARGA
DATED THIS THE 5TH DAY OF OCTOBER, 2012
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
WRIT PETITION Nos.85477-478/2012(APMC)
C/w
WRIT PETITION Nos.85479-480/2012(APMC) &
WRIT PETITION No.85481/2012(APMC)
IN W.P.Nos.85477-478/2012
BETWEEN:
1. MD TANVEER AHMED
S/O MD NASEER AHMED
AGE: 45 YEARS
OCC: BUSINESS
R/O SHOP NO. 26
APMC MAIN MARKET YARD
HUMNABAD, DIST. BIDAR - 585 401
2. ANILKUMAR
S/O GURUSIDDAPPA GULASHETTY
AGE: 42 YEARS
OCC: BUSINESS
R/O SHOP NO. 13
APMC MAIN MARKET YARD
HUMNABAD, DIST. BIDAR - 585 401
... PETITIONERS
(BY SRI SHIVANAND PATIL, ADVOCATE)
2
AND:
1. DIRECTOR
AGRICULTURE MARKETING COMMITTEE
NO.16, II RAJBHAVAN ROAD
POB. NO. 5309, BANGALORE - 01
2. AGRICULTURE PRODUCE MARKETING COMMITTEE
HUMNABAD, DIST. BIDAR - 585 401
REP. BY ITS SECRETARY
... RESPONDENTS
(BY SRI SHARANABASAPPA K. BABSHETTY, HCGP FOR R1,
SRI K.M. GHATE, ADVOCATE FOR C/R2)
THESE WRIT PETITIONS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE
A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT
OR DIRECTION OF THE LIKE NATURE AND THEREBY QUASH
THE IMPUGNED ORDER DATED 04.09.2012 IN FILE
No.KRAMAEE/285/ABGE/4/05 OF THE RESPONDENT NO 1 AS
PER AND NOTICE/ORDER DATED 04.09.2012 IN FILE No.
KRAUMASA/HU/665/2012-13 RELATING TO THE PETITIONER
No.1 AND THE IMPUGNED NOTICE/ORDER DATED 04.09.2012
IN FILE No.KRAUMASA/HU/663/2012-13 RELATING TO THE
PETITIONER No.2 AS PER ANNEXURE-K AND ANNEXURE-L
RESPECTIVELY AND ETC.
IN W.P.Nos.85479-480/2012
BETWEEN:
1. MALLESHANTAYYA
S/O GURUSHANTAYYA SALIMATH
AGE: 60 YEARS
OCC: BUSINESS
R/O SHOP NO.12
APMC MAIN MARKET YARD
3
HUMNABAD, DIST.BIDAR - 585 401
2. MOHD MOINUDDIN
S/O RAJA PATEL MANGALGI
AGE: 52 YEARS
R/O SHOP NO.25
APMC MAIN MARKET YARD
HUMNABAD, DIST. BIDAR - 585 401
... PETITIONERS
(BY SRI SHIVANAND PATIL, ADVOCATE)
AND:
1. DIRECTOR
AGRICULTURE MARKETING COMMITTEE
NO.16 II RAJBHAVAN ROAD
P.B.NO.5309, BANGALORE - 01
2. AGRICULTURE PRODUCE
MARKETING COMMITTEE
HUMNABAD, DIST. BIDAR - 585 401
REPT. BY ITS SECRETARY
... RESPONDENTS
(BY SRI SHARANABASAPPA K. BABSHETTY, HCGP FOR R1,
SRI K.M. GHATE, ADVOCATE FOR R2)
THESE WRIT PETITIONS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE
A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT
OR DIRECTION OF THE LIKE NATURE AND THEREBY QUASH
THE IMPUGNED ORDER DATED 4.9.2012 IN FILE
NO.KRAMAEE/285/ABGE/4/05 OF THE RESPONDENT NO 1 AS
PER AND NOTICE/ORDER DATED 4.9.2012 IN FILE
NO.KRAUMASU/HU/664/2012-13 RELATING TO THE
PETITIONER NO 1 AND THE IMPUGNED NOTICE/ORDER DATED
4.9.2012 IN FILE NO.KRAUMASA/HU/662/2012-13 RELATING
4
TO THE PETITIONER NO 2 AS PER ANNEXURE-K AND
ANNEXURE-L RESPECTIVELY AND ETC.
IN W.P.Nos.85481/2012
BETWEEN:
BABURAO S/O VEERAPPA PANCHAL
AGE: 62 YEARS, OCC:BUSINESS
R/O SHOP NO.27
APMC MAIN MARKET YARD
HUMNABAD, DIST. BIDAR - 585 401
... PETITIONER
(BY SRI SHIVANAND PATIL, ADVOCATE)
AND:
1. DIRECTOR
AGRICULTURE MARKETING COMMITTEE
NO.16 II RAJBHAVAN ROAD
P.B.NO. 5309, BANGALORE - 01
2. AGRICULTURE PRODUCE
MARKETING COMMITTEE
HUMNABAD, DIST. BIDAR - 585 401
REPT. BY ITS SECRETARY
... RESPONDENTS
(BY SRISHARANABASAPPA K. BABSHETTY, HCGP FOR R1,
SRI K.M. GHATE, ADVOCATE FOR R2)
THIS WRIT PETITION FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A
WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT OR
DIRECTION OF THE LIKE NATURE AND THEREBY QUASH THE
IMPUGNED ORDER DATED 4.9.2012 IN FILE
NO.KRAMAEE/285/ABGE/4/05 OF THE RESPONDENT NO 1 AS
5
PER AND NOTICE/ORDER DATED 4.9.2012 IN FILE NO
KRAUMASU/HU/666/2012-13 RELATING TO THE PETITIONER
NO 1 AS PER ANNEXURE-G RESPECTIVELY AND ETC.
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED, COMING ON FOR PRONOUNCEMENT OF ORDER
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioners are calling in question order dated 04.09.2012 (Annexure-R-2) passed by first respondent and notice/order dated 04.09.2012 Annexure-G directing the petitioners to hand over possession of the shops in their occupation.
2. Heard Sri.Shivanand, learned counsel appearing for petitioner, Sri.Sharanabasappa Babashetty, learned HCGP appearing for R-1 and Sri.K.M.Ghate, learned counsel appearing for R-2. Perused writ papers and the original records made available by learned counsel for R-2. 6
3. In these writ petitions the grounds urged, pleas put forward and prayer sought for are common as also the defence set up by the respondents. In view of the same they are taken up together and disposed of by this common order.
4. Petitioners were allotted shops situated at APMC yard, Humnabad in the year 1986 on leave-cum- licence basis since the said period expired show cause notices were issued to the petitioners and they were called upon to vacate and deliver possession of the shops in occupation and they were also notified that action in accordance with law would be taken if the possession of the shops are not handed over. Petitioners have submitted their replies and also sought for renewal/extension of lease-cum-licence for continuing the occupation of respective shops. Petitioners also alternatively sought to convert the leave and licence into a lease-cum-sale. Since respondent 7 authorities sought to enforce the notice issued to the petitioners and take possession of the shops, petitioners approached this court in W.P.Nos.80944/2012 and other connected matters. This court by order dated 05.06.2012 disposed of the writ petitions directing the second respondent to consider the replies submitted by the petitioners in response to the impugned show cause notices keeping in view the observations made therein. It was also made clear by this court that if there were violation of the terms and conditions of leave and licence by the petitioners, second respondent can take note of the same by putting the occupant/petitioner concerned on notice and then proceed to take decision in the matter and till such decision is taken and communicated to the petitioners by RPAD petitioners occupation of the shops in question i.e., on leave cum licence basis should not be disturbed. 8
5. Thereafter petitioners and other similarly placed persons are said to have made a joint representation to the second respondent on 10.07.2012 Annexure-F with a prayer their request for allotment of shops in their occupation on lease-cum-sale basis and till then their leave-cum-licence agreements be renewed. After placing the said representation in the meeting of the second respondent held on 12.07.2012 it has been resolved to reject the prayer of the petitioners which had been by them seeking conversion of leave-cum-licence to lease-cum-sale. The request of the petitioners is said to have been forwarded by the second respondent to the first respondent since first respondent was the competent authority to take a decision.
6. First respondent after examining the issue by order dated 04.09.2012 directed the second respondent to reject the prayers of the petitioner, and auction the shops under Rule 14 of the Karnataka Agricultural 9 Produce Marketing (Regulation of allotment of property in market yards) Rules, 2004 [hereinafter referred to as `Rules'] and also approved the resolution passed by the second respondent committee. It is pursuant to this order dated 04.09.2012 Annexure-R-2 which was not produced by the petitioners at the time of filing of the petition on the ground that same has not been furnished to them and seeking dispensation of the production of order dated 04.09.2012, this court had dispensed with production of the said order dated 04.09.2012 by allowing I.A.No.1/2012 vide order dated 20.09.2012 and pursuant to the said order notice dated 04.09.2012 Annexure-G has been issued to the petitioners which are impugned in the present petition.
7. Submissions of Sri Shivanand Patil, learned counsel appearing for the petitioners is summarized as under:
10
(i) Petitioners are licenced market functionary and were allotted shops in question on lease-cum-licence basis in the year 1986-1987 under Rule 13 of the Karnataka Agricultural Produce Marketing (Regulation of Allotment of Property in Market Yards) Rules, 2004 and they have right under sub-rule (2) of Rule 12 to seek for allotment/conversion to lease-cum-sale basis and such right created in their favour to seek allotment of the shops in question in their favour by way of lease-cum-sale cannot be done away without assigning valid reasons;
(ii) In view of the same, fresh right cannot be created in favour of third parties by trying to auction through tender.
11
(iii) Though Annexures-K and L are termed as show cause notices, in fact they are orders directing the petitioners to vacate and hand over possession of these shops.
(iv) Respondents cannot auction the shops in question by way of tender-cum-
auction by resorting to Rule 14 since the said Rule is inapplicable to the shops in question and recourse has to be taken only by resorting to allotment under three modes as contemplated under the Rules and particularly Rule
13.
(v) Person opting under Rule 14 need not be a licenced functionary and any person can apply, whereas shops in question being allotted to the petitioners or persons similarly placed 12 can only be allotted to licenced market functionary and as such, Rule 14 cannot be invoked at all.
(vi) In the event of the respondents not renewing licence of the petitioners they cannot invoke Rule 14 but have to take recourse to Rule 13 itself to allot shops in favour of the person - market functionary who is standing in the queue.
(vii) As per Annexure-M whose licence term came to an end have been extended by renewing the licence for further period and no reasons are forthcoming as to why petitioners are being singled out.
(viii) On instructions from one of the petitioner who is present before Court, learned counsel for petitioner submits that market fee has been collected from 13 the customers upto February, 2012 and remitted to market yard and thereafter it is not collected or remitted on account of pendency of disputes.
8. Sri K M Ghate, learned counsel appearing for respondent No.2 would submit that petitioners have violated the terms of the lease cum licence conditions and duration of the said leave-cum-licence having come to end petitioners are not entitled for renewal or for obtaining lease-cum-sale . He also contended that on 21-10-2011 APMC has revised the rentals payable by occupiers of the shops and petitioners cannot claim to pay rents fixed for the earlier point of time and what is being paid by the petitioners is not in accordance with revised rent and petitioners are not entitled to continue in these shops. He has also contended that petitioners are not using the shops allotted to them for activities to which they were allotted for and as such, it has been 14 resolved to resume the shops let out in favour of petitioners. It is also contended that petitioners have no right to seek conversion of leave-cum-licence into lease- cum-sale. They further contend that under sub-rule (6) of Rule 16 leave and licence need not be renewed for default in payment of dues to the market committee or non-compliance with the terms and conditions of the agreement. It is contended that subsequent to disposal of writ petition 80956/2012 on 05.06.2012 representation filed by petitioners was considered in the meeting of second respondent- AMPC Committee held on 12.07.2012 and a decision was taken to reject the said request and same has been communicated to the petitioners on 04.09.2012 and contends that possession of the shops have been taken on 20.09.2012 and writ petition has become infructuous in view of the order passed by 1st respondent on 04.09.2012 - Annexure-R-2 which was communicated to the petitioners and as such, he prays for dismissal of writ petition. 15
9. In reply, Sri Shivanand Patil, learned counsel appearing for petitioner would contend that as on the date of filing of presenting writ petitions, order dated 04.09.2012 as per Annexure-R2 was not communicated to the petitioner nor furnished and the say of the second respondent in this regard is erroneous and no material has been placed to demonstrate that such order has been communicated to the petitioner or served upon them. He would submit that possession has not been delivered and shops in question is still in the custody of the petitioners and he further contends that a seal has been put up over the locks put up by the petitioners to the shops in question and as such, he prays for allowing writ petitions.
10. Having heard the learned Advocates for the petitioners and respondents and having perused the records made available by the learned counsel for 16 second respondent and the statement of objections filed by second respondent, it can be noticed that undisputedly petitioners are in occupation of shops at the APMC market yard, Humnabad from 1986/1990. Having taken these shops on leave-cum-licence basis way back in the year 1986/1990 and the period having expired, show cause notices came to be issued to petitioners on 03.02.2012, calling upon them to quit, vacate and deliver possession of the respective shops by intimating them that in the event of shops in their occupation are not handed over to 2nd respondent APMC, action would be initiated against them in accordance with law to take possession of these shops. On receipt of said show cause notice, petitioners submitted their replies and sought for renewal/extension of leave-cum-licence and to continue occupation of their respective shops. Petitioners also prayed for allotment of shops on lease-cum-sale basis. 17
11. On account of non consideration of their representations and in view of second respondent's attempt to take possession of shops in question from petitioners they had approached this court in W.P.80944/2012 and other connected matters. Said writ petition came to be disposed of by order dated 05.06.2012 Annexure-H whereunder certain directions came to be issued and writ petitions came to be disposed of. Hence the relevant paragraphs under which directions came to be issued requires to be extracted for consideration of rival contentions raised in these writ petitions. The said directions reads as under:
"5. Keeping in view the facts and circumstances of the case and the Regulation 12(2), in my opinion, there is an obligation on the part of the APMC to consider, with the prior approval of the Director of Agricultural Marketing the request made to convert the leave and licence of the petitioners into lease-cum-sale basis or the claim for extension/renewal of leave-cum-licence of the shops in question. Till such decision is taken, it 18 is unjust on the part of the APMC to dispossess the petitioners from the shops under their occupation. The impugned notice/s being only show cause notice/s, in view of the replies submitted, in the above view of the matter/s, it is unnecessary to quash the same.
In the result, writ petitions stand disposed of. The APMC., Humnabad is directed to consider the replies submitted by the petitioners in response to the impugned show cause notice/s, keeping in view the observations made supra and in accordance with law. If there is any violation of the terms and conditions of leave and licence by the petitioners, APMC can take note of the same by putting the occupant/petitioner concerned on notice and then proceed to take decision in the matter. Till such decision is taken and communicated to the petitioners by RPAD., the petitioners' occupation of the shops in question i.e., on leave and licence basis be disturbed.19
12. In the light of direction given by this court it has to be examined as to whether steps have been taken by the parties as directed by this court. There cannot be any dispute that the notices which were impugned in W.P.80944/2012 and connected matters was held to be show cause notices and replies given by the petitioners was directed to be considered by the second respondent. In continuation of the said replies submitted by the petitioners further representation has also been submitted by the petitioners on 10.07.2012 vide Annexure-J to the second respondent requesting to recommend to the first respondent to allot the shops in their occupation on lease-cum-sale basis and till then leave-cum-licence agreements be renewed. It is the contention of second respondent that said representations came to be considered in its meeting held on 12.07.2012 as per the proceedings at Annexure- R-1. A perusal of the minutes of the meeting, Annexure-R-1 would disclose at subject No.4 the issue 20 in question as directed by this court in W.P.80944/2012 and other connected matters came to be taken up for consideration. The resolution passed on the said subject though not disclose that the representations of the petitioners have been considered in proper perspective, the reasoning given in the said resolution would indicate that representations of the petitioners have been turned down and/or rejected on the ground petitioners are carrying on other activities other than to which the shops were obtained by them from second respondent. It would also indicate that one of the allottees namely Sri.M.D.Moinuddin has been allotted shop no.29 in main market on lease cum sale basis. The said resolution would indicate that request of the petitioners to convert leave and licence basis to lease cum sale basis is rejected on the ground of violation of Regulation 11. It is also contended in the statement of objections filed by the second respondent that payment of rent amount to APMC shops has been 21 revised and fixed at Rs.1696/- for small shops and Rs.2251/- which is for the period of 33 months and what has been paid by petitioners is earlier rent and as such petitioners are not entitled to continue in the said shops and hence notice was issued by the second respondent calling upon the petitioners to vacate the shops is just and proper. In other words the contention of the second respondent is there has been violation of terms of the leave cum licence and as such they have initiated action. The resolution dated 12.07.2012 Annexure-R-2 would also indicate that requests or prayer of the petitioners to allot the shops on lease cum sale basis is not being entertained on account of violation of Regulation 11. If so, as already ordered by this court on 05.06.2012 second respondent was required to issue notice to the petitioners of any violation of the terms and conditions of leave and licence granted to them and could have thereafter proceeded to take decision in the matter. Admittedly no 22 such exercise has been undertaken. Having passed the resolution that there has been violation of Regulations it has forwarded the said resolution to the first respondent who by communication dated 04.09.2012 Annexure-R-2 has approved the said resolution and permitted second respondent to proceed to call for tender cum auction of the shops in question as provided under Regulation 14. This decision taken by the respondents is contrary to the directions issued by this court while disposing of W.P.80944/2012 on 05.06.2012. On this short ground itself the impugned order/notice is liable to be quashed without going into the other contentions raised by the parties and by reserving liberty to the respondent to undertake the exercise as already ordered by this court, since the records would not indicate about such an exercise having been undertaken by the respondents.
For the reasons aforesaid, following order is passed:23
ORDER
1. Writ petitions are hereby allowed and Notice/order dated 04.09.2012-Annexure-K issued by second respondent as well as order No.KME/285/DEVELOPMENT-4/05 DTD 04.09.2012 issued by first respondent are hereby quashed.
2. Second respondent is hereby directed to issue notice to the petitioners of any violation of the terms and conditions of leave and licence if any and consider the objections filed thereto effectively and in proper perspective and thereafter pass orders in accordance with law.
Said exercise shall be completed within a period of three months.
3. Respondents shall also consider the representation of the petitioner to convert leave and licence of the petitioners into leave cum sale basis as provided under the regulations and as 24 observed by this court while disposing of W.P.80944/2012 and other connected matters on 05.06.2012.
4. Till such decision is taken and communicated to the petitioners by RPAD, petitioners possession in respect of the shops allotted to them shall not be disturbed.
5. Second respondent shall also issue notice to the petitioners for dues of any licence fee/rental. Petitioners are hereby directed to pay such revised licence fee as may be demanded by the second respondent from the date it has been made applicable to other shops in the market yard within one month from the date of such demand being raised on petitioners and in the event of said amount is not paid second respondent would be at liberty to proceed to recover possession of the shops from the petitioners in accordance with law. 25
6. Costs made easy.
Ordered accordingly.
Sd/-
JUDGE *sp/SBN