Rajasthan High Court - Jaipur
M/S Bharat Ginger Trading Comp vs State (Agriculture Depa)Ors on 20 September, 2012
Author: Alok Sharma
Bench: Alok Sharma
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH O R D E R S.B. CIVIL WRIT PETITION NO.4171/2012 S.B. CIVIL MISC. STAY APPLICATION NO.3448/2012 (M/s. Bharat Ginger Trading Company Vs. The State of Rajasthan & Ors.) Date of Order : 20.09.2012 P R E S E N T HON'BLE MR. JUSTICE ALOK SHARMA Mr. Kamlakar Sharma, Sr. Advocate with Mr. V.K. Joshi, for the petitioner-firm. Mr. Lokehder Singh on behalf of Mr. I.R. Saini, AAG for the State. Mr. Pradeep Kalwania, Addl.G.C. for the respondents. Mr. Interjeet Singh, for respondent No.4. BY THE COURT
With the consent of the parties, the writ petition is being decided finally.
2. The petitioner-firm is aggrieved of the decision dated 01.02.2012 taken by the Director, Agriculture Marketing, whereby the appplication of the petitioner-firm, M/s Bharat Ginger Trading Company, Jaipur for exchange of its allotted plot No.C-256 with Plot No.A-3-A in the second phase of the Muhana Mandi Yard stood dismissed in view of the policy formulated in regard to exchange of plots effective 18.10.2010. The petitioner-firm has prayed that the aforesaid communication be quashed and set aside and a writ, order or direction be issued directing the State Government to approve the resolution dated 08.07.2010 passed by the Selection Committee of Krishi Upaj Mandi Samiti recommending the exchange of the petitioner-firm's allotted plot No.C-256 with Plot No.A-3-A in the second phase of Muhana Mandi Yard.
3. The Lal Kothi Mandi was denotified and business shifted to the Muhana Terminal Market. On an application made pursuant to an advertisement in this regard for allotment of a plot/shop in the Muhana Mandi Yard, under a lottery drawn, the petitioner-firm was allotted plot No.C-256 measuring 222.97 sq. ft. (30X80). Consequently, the petitioner-firm deposited the requisite amount of Rs.25,08,413/- as consideration for the allotment.
4. Circular dated 18.03.2010 allowed the allottees in various Krishi Upaj Mandi Samitis to apply for exchange of plot/shop within the respective Mandis on depositing the requisite amount as warranted in each case with the caveat that the exchange of plot/shop was to be confined to the same category size. Finding the allotted plot No.C-256 at Muhana Terminal Yard unsuitable for business in view of its isolated location in the present undeveloped state of the Mandi, the petitioner-firm submitted an application on 07.07.2010 for exchanging the same with plot No.A-3-A and agreed to abide by the terms and conditions of the circular dated 18.03.2010. In its meeting of 08.07.2010, the Mandi Samiti unanimously approved the proposal for change of allotment of the petitioner-firm from plot No.C-256 to plot No.A-3-A admeasuring 30X80 ft. in Alu Block and sent it to Director, Agriculture Marketing. The Director, Agriculture Marketing Department, processed the recommendation for exchange of plot No.C-256 with Plot No.A-3-A and put it up before the Hon'ble Minister in-charge. The Minister thought it fit first to make a query with regard to number of applications for exchange of plots allotted in the various Mandis and thereafter directed that the consideration of the application of the petitioner-firm be held back as the policy of exchange of plots enunciated in the then extant circular dated 18.03.2010 was to be amended.
5. Thereafter, it appears that vide order dated 18.10.2010, the Dy. Secretary, Agriculture Marketing Department, Government of Rajasthan, enunciated a policy that the exchange of plots/shops within the Mandis would be permitted only in such Mandis where business/trade had not been fully transferred and where the Mandi had not been fully developed. Conversely, it was provided that in Mandis where the business/trade had been fully transferred and facilities fully developed, permission would not be granted for the exchange of plots/shops. Thereupon in the context of the aforesaid circular dated 18.10.2010, a decision was taken not to allow the petitioner-firm's application dated 07.07.2010 for exchange of its plot. This was communicated by the Director, Agriculture Marketing Department to the office of the Chief Minister apparently on a query by the said office on the petitioner-firm's representation/complaint on the delay in consideration of its application for exchange of its plot.
6. Mr. Kamlakar Sharma, Sr. Advocate with Mr. V.K. Joshi appearing for the petitioner-firm has submitted that the petitioner-firm was entitled to consideration of its application for exchange of its plot in Muhana Mandi Yard under the circular dated 18.03.2010 as the petitioner-firm's right of consideration for exchange of the plot / shop crystallised on 07.07.2010 on an application being made and considered by the Muhana Mandi Samiti. A recommendation made by the Mandi on 08.07.2010 which was forwarded to the Director, Agriculture Marketing. It is submitted that inexplicably the case of the petitioner-firm was not processed for over two months and instead held back deliberately till the formulation of a modified policy effective 18.10.2010. Counsel invoked the principle of administrative law that policies of the Government are only prospective and for the submission relied on the case of Tamil Nadu Electricity Board & Anr. Vs. Status Spinning Mills Ltd. & Anr. [(2008) 7 SCC 353]. Counsel submitted that the petitioner-firm's application and the recommendation made thereon prior to 18.10.2010 should have been processed by the Government without regard to the order/policy dated 18.10.2010 which ought to have been confined to applications for exchange filed thereafter.
7. Counsel alternatively submitted that the case of the petitioner-firm does not even otherwise fall in the cross hairs of the order dated 18.10.2010 inasmuch as it is an admitted position from the information obtained by the petitioner-firm under the Right to Information Act, 2005 (from the Muhana Mandi vide letter dated 10.04.2012) that the whole of the Fruit and Vegetable business had not been transferred to the Muhana Mandi inasmuch as not a single shop had even been constructed in second phase of Muhana Mandi Yard as on the date information was supplied. Counsel further pointed out that the letter dated 10.04.2012 aforesaid also admits the factum that the facilities in the Mandi were not fully developed and complete and development was still underway. It has been submitted that as per the layout plan of the Muhana Terminal Market 1403 plots are available for allotment and in the first phase a total of 311 plots were allotted out of which only 200 shops have been constructed by the allottees. It is further submitted that subsequently, 687 plots were allotted in the second phase of Muhana Terminal Market on 29.09.2008 including to the petitioner-firm in respect of which the petitioner-firm's case pertains and no shops yet have at all been built by the allottees. Counsel also submits that even otherwise 405 plots out of the 1403 plots are still unallotted including plot No.A-3-A for which the petitioner-firm had given its option for exchange in lieu of plot No.C-256. Counsel points out that the total area of Fruit and Vegetable block of Muhana Terminal Market is 6,29,843 sq. mtrs and as of now business is being done in approximately 6,000 sq. mtrs. and an area of 5,79,843 is lying vacant. Counsel would therefore submit that the restriction on the transfer of plots/shops even under the order dated 18.10.2010 do not even otherwise attract to the case of the petitioner-firm.
8. Per contra, Mr. Inderjeet Singh, Mr. Lokendra Singh and Mr. Pradeep Kalwania, Addl.G.C., appearing for the respondents would submit that even though a recommendation had been made by the Mandi Samiti vide its resolution dated 08.07.2010 that the application filed by the petitioner-firm on 07.07.2010 for exchange of its plot be allowed and forwarded for the approval of the Government on 16.08.2010, subsequently owing to the order dated 18.10.2010 issued by the State Government, the case of the petitioner-firm could not be processed by the Government. It is submitted that it is trite that an application has to be considered with reference to the legal position obtaining as on the date of its consideration. Counsel would submit that during the period when the petitioner-firm's application was in process, order dated 18.10.2010 prohibited the exchange of plots / shops in the Muhana Mandi as the business/trade therein had been fully transferred, Mandi fully developed and facilities provided. Counsel have submitted that the words business/trade has been fully transferred and facilities fully developed in the order dated 18.10.2010 have to be construed in the context of the notification for the transfer of business to the Muhana Mandi Yard beginning 2008. It is submitted that facilities requisite for functioning of shopkeepers in the area were fully developed and consequently in terms of the order dated 18.10.2010, the petitioner-firm was not entitled to exchange its plot as prayed for. It is submitted that the policy decision dated 18.10.2010 has not been challenged and until the said decision is put to challenge and set aside by this Court, the rights of the petitioner-firm for the exchange of its plot allotted have to be determined in accordance therewith. However, no controvert was made or credible material placed before this Court on the factual aspects of Mr. Kamlakar's submissions with regard to the vacant plots in the Mandi and the state of facilities as reflected in the Mandi's latter dated 10.04.2012.
9. I have considered the submissions of the counsel for the petitioner-firm and the respondents and perused the writ petition as also annexures thereto.
10. In view of the opinion, I intend to take on the construction of the order dated 18.10.2010, it would suffice to consider whether the restrictive conditions of the order dated 18.10.2010 with regard to the exchange of plots/shops in Mandis attract to the facts of the petitioner-firm's case. The consideration of the aforesaid issue would demand the determination of the question as to whether trade / business has been fully transferred and the area of Muhana Mandi has been fully developed with the requisite facilities necessary for functioning of such Mandi on the day of the rejection of the petitioner-firm's application for exchange of its plot. The two conditions referred above have to be satisfied in the conjunctive, as the word in the order dated 18.10.2010 is ??? (and), for ousting the petitioner-firm's application for exchange filed on 07.07.2010.
11. On the facts narrated above earlier in this writ petition, it has been submitted by the Sr. Counsel for the petitioner-firm that it ought to be evident that business/trade has not been completely transferred to Muhana Mandi and that the Mandi is thus not fully developed. It is submitted that as a result its application for exchange ought to have been processed and allowed.
12. Counsel for the respondents have however submitted that the allotments in the first phase of the Mandi were made on 01.01.2008 whereupon the allottees started their business therein entailing full transfer of trade/business to the Mandi. In reply to para 15 of the writ petition by the respondent Nos.1 to 3, it has been stated that as the allottees had started their business in the Muhana Mandi, after the first phase allotment, the Mandi Yard has been deemed to be a developed Mandi Yard.
13. Yet soon thereafter in the reply to the writ petition, a differing interpretation on the words trade has been fully transferred has been taken by the respondents in respect of Shri Karanpur and Kishangarh Renwal Mandis. It has been stated in para 26 of the reply to the writ petition that as even after the allotment in the first phase of Shri Karanpur and Kishangarh Renwal Mandis as the business therein had not been transferred exchanges of plots in such Mandis subsequent to 18.10.2010 were allowed. Hence, effectively as per the respondents themselves, first phase allotments in a Mandi do not result an automatic transfer of business/trade to the Mandi or the Mandi being deemed to be fully developed.
14. In the present case, in contradiction of its stand in respect of Shri Karanpur and Kishangarh Renwal Mandis detailed in the immediately preceding paragraphs of the judgment, the respondent-State has set up a different case in respect of Muhana Mandi avering that as the allottees in the first phase of Muhana Mandi has started their business therein, the said Mandi has to be deemed to be a Mandi which had been fully developed and where the business/trade has been fully transferred. The respondent-State cannot be allowed to take such a contradictory stand in respect of two different Mandis. Aside of that, legal fiction, as of the Mandi deemed to be fully developed ordinarily, is a statutory construct. In the present case, the legal fiction of the Muhana Mandi deemed to have been developed has not even been sought to be created with reference to the executive powers of the State under Article 162 of the Constitution of India. Further, even the order dated 18.10.2010 does not speak of or visualise a Mandi being deemed to be fully developed where business/trade has been fully transferred. Quite obviously, the effort in the reply to the writ petition has been to set up a desperate new defence wholly misdirected. The respondent-State thus have not been consistent in its interpretation of the words business/trade fully transferred and development completed in Mandis as the words have been used in the order dated 18.10.2010.
15. The words business/trade has been fully transferred and Mandi has been fully developed have not been defined and have therefore to be construed in a common sense manner and as understood in common parlance. In this context, it would be profitable to recall that out of 1403 plots as per layout plan of Muhana Terminal Market, 311 plots were allotted in the first phase out of which 200 plots have been developed and shops constructed. In the second phase to which the case of the petitioner-firm pertains, 687 plots were allotted and yet not a single plot developed and a shop constructed. Further 405 plots remain vacant and unallotted. These facts are on record and borne out the letter dated 10.04.2012 issued by the Muhana Mandi Samiti itself in pursuance to an application under Right to Information Act and where it has also been admitted consequently that the business/trade to the Muhana Mandi has not been transferred and the second phase development in Mandi not yet complete, but still underway. This view appears to have been taken by the State in respect of Shri Karanpur and Kishangarh Renwal Mandis. And therefore as admitted by one Mr. Anil Gupta, Dy. Sec. Agriculture (Gr.2), Government of Rajasthan in his additional affidavit filed pursuant to the order dated 03.09.2012 passed by this court has stated that Sandhu Traders were allowed exchange of plot in Shri Karanpur Mandi on 07.01.2011 and one Birdhi Devi was allowed exchange of her plot on 23.11.2011 in Kishangarh Renwal Mandi i.e. after the order dated 18.10.2010. It is an admitted position that allotment in both the Mandis had been made much prior to year 2011 in the first phase some time in the year 2008. There has thus been a palpable discrimination against the petitioner-firm by the mischief of reading and applying the order dated 18.10.2010 varyingly. 16. In view of the facts on record, I am of the considered view that the business/trade was not fully transferred to the Muhana Mandi and development work therein is yet incomplete and underway. As such, the right of the petitioner-firm for exchange of plot with reference to the enunciated policy dated 18.03.2010 cannot be denied even with reference to order dated 18.10.2010 the restrictive conditions whereof have been found to be absent in the facts of the petitioner-firm's case.
17. Further, it is an admitted fact that scores of plots in second phase of Muhana Mandi Yard including plot No.A-3-A remain vacant. The purpose of the Muhana Terminal Market is to facilitate business. The Muhana Mandi Market is still in the process of being fully developed as admitted in the information provided to the petitioner-firm under the Right to Information Act under letter dated 10.04.2012. In the interregnum, the petitioner-firm as an allottee in a lottery holds a plot which by stroke of luck lies deep in the undeveloped part of the Mandi with little business even while severals plots more suitably located for the business remain vacant. That is why one of the two cumulation restrictions imposed under the order of 18.10.2010 was placed in respect of Mandis where complete development had not taken place (?????? ??????? ?????????? ????? ??? ?? ???? ??? ?? ??? ????? ????? ??? ?? ?????? ???? ??? ??). No third party rights stands to be prejudiced if the exchange sought is allowed on payment of the requisite charges as the Mandi Samiti has already endorsed the petitioner-firm's application and recommended its case for exchange. The firm's counsel has also stated that the petitioner-firm has already deposited the additional charges with the Government payable in respect of plot Nos.A-3-A as a corner plot subsequent to recommendation of the Mandi Samiti. It is also not in dispute that plots allotted in other Mandis, Sri Karanpur (Sandhu Traders on 07.01.2011) and Kishangarh Renwal (Smt. Birdhi Devi on 23.11.2011) have been allowed to be exchanged despite first phase allotments of plots therein in 2008 and the case of the petitioner-firm cannot be distinguished therefore the petitioner-firm is entitled to similar treatment.
18. For the aforesaid reasons, this writ petition is allowed. The Director's decision dated 01.02.2012 as conveyed to the Dy. Secretary in the office of the Chief Minister, Secretariat, Jaipur is set aside. It is directed that the respondents forthwith process in a non-discriminatory manner, a la the applications for the exchange of plots of Sandhu Traders on 07.01.2011 (Shri Karanpur) and Smt. Birdhi Devi (Kishangarh Renwal) on 23.11.2011, the application filed by the petitioner-firm on 07.07.2010 for exchange of its plot No.C-256 with plot No.A-3-A in the second phase of Muhana Mandi Yard as duly approved on 08.07.2010 by the Mandi Samiti and forwarded to the approval of the State on 16.08.2010. The petitioner-firm shall be free to file a detailed representation in support of its application for exchange of its allotted plot from C-259 to A-3-A Muhana Mandi. The consideration be completed as directed hereinabove by a reasoned and speaking order within four weeks from receipt of a certified copy of this order.
19. Stay application needs no address in view of the writ petition being allowed.
(ALOK SHARMA), J MS/-
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Manoj Solanki, Jr. P.A.