Rajasthan High Court - Jodhpur
M/S. Jivan Ram Durgesh Kumar vs State & Ors on 24 August, 2016
Author: Sangeet Lodha
Bench: Sangeet Lodha
CIVIL WRIT (CW) No.6486 of 2008
M/S. JIVAN RAM-DURGESH KUMAR
VS.
STATE OF RAJASTHAN & ORS.
1
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
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CIVIL WRIT (CW) No.6486 of 2008 M/S. JIVAN RAM-DURGESH KUMAR VS.
STATE OF RAJASTHAN & ORS.
Date of Order: 24.8.2016 HON'BLE MR.SANGEET LODHA,J.
Mr. Mahesh Bora, Senior Advocate with Mr.Nitin Goswami, for the Petitioner.
Mr.B.D.Gupta, for the respondent-State. Mr.Pankaj Gupta, for the Respondent no.3.
1. By way of this petition, the petitioner has questioned legality of order dated 22.4.08 passed by the Director, Agriculture Marketing, Government of Rajasthan, on the review petition preferred by the respondent-Krishi Upaj Mandi Samiti ('KUMS'), Sri Ganganagar, seeking review of order dated 31.7.07 passed by the Director, directing allotment of CIVIL WRIT (CW) No.6486 of 2008 M/S. JIVAN RAM-DURGESH KUMAR VS.
STATE OF RAJASTHAN & ORS.
2 platform and open space between two shops in favour of the petitioner, while keeping parity vis-a- vis other license holders, who though below in the preference list than the petitioner, were allotted the platform and open space as applied for.
2. The relevant facts are that the petitioner is carrying on the business of food grain since 1989 in the Mandi Yard, KUMS, Sri Ganganagar. The petitioner made an application for allotment of platform and open space lying vacant between two shops in the Market Yard claiming parity vis-a-vis other license holders namely, Swami Trading Company, Ramjidas Madan Gopal, M/s. Ganga Trading Company, Sri Ram Trading Company and Brijbhushan Rajpal. The KUMS, Sri Ganganagar, declined to allot the shop in favour of the petitioner and therefore, aggrieved thereby, the petitioner preferred a revision petition under Section 39 of the Agriculture Produce Market Act, 1961 (for short "the CIVIL WRIT (CW) No.6486 of 2008 M/S. JIVAN RAM-DURGESH KUMAR VS.
STATE OF RAJASTHAN & ORS.
3 Act"), before the Director, Agriculture Produce Market, which was allowed vide order dated 31.7.07 and while relying upon the directions issued by this court, vide judgment dated 2.12.98 rendered in S.B.C.Writ Petition No.3492/98 issued directions to the KUMS to allot the platform and space between the two shops to the petitioner on the same conditions on which the allotment was made in favour of M/s. Swami Trading Company and M/s. Kashiram Rajendra Kumar, which were below in the preference list than the petitioner.
3. The KUMS vide communication dated 10.10.07 addressed to the Director, Agriculture Produce Market, stating that 13 Years Allotment Policy is not in force and presently, the allotments are governed by Immovable Property Allotment Policy, 2005 ('Policy,2005') and therefore, it may be clarified that under which Policy the petitioner is to be allotted the platform and open space between the shops. The CIVIL WRIT (CW) No.6486 of 2008 M/S. JIVAN RAM-DURGESH KUMAR VS.
STATE OF RAJASTHAN & ORS.
4 Director, vide communication dated 1.11.07, responded in terms that the order dated 31.7.07 is self explanatory and no further guidance is required and further, directed that the petitioner herein, may be allotted the platform and open space on the same terms as it was allotted to M/s. Swami Trading Company and M/s. Kashiram Rajendra Kumar.
4. The KUMS in its meeting held on 16.2.08, resolved to allot the open space between the shop no.234-235 and the platform to the petitioner in compliance of the orde dated 31.7.07 passed by the Director, Agriculture Produce Market, Jaipur as aforesaid.
5. Despite resolution being adopted as aforesaid, the petitioner was not allotted the platform and the open space and instead the KUMS preferred a review petition before the Director, Agriculture Produce Market for review of order dated 31.7.07 purportedly under Section 32A of the Act accompanied by an CIVIL WRIT (CW) No.6486 of 2008 M/S. JIVAN RAM-DURGESH KUMAR VS.
STATE OF RAJASTHAN & ORS.
5 application under Section 5 of Limitation Act, 1953. The review petition was contested by the petitioner by filing a reply thereto. It was the specific stand taken by the petitioner in the reply that there is no provision under the Act which empowers the authority to review its own order and therefore, the review petition is not maintainable. However, the Director, Agriculture Produce Market without deciding the question regarding the maintainability of the review petition proceeded to allow the review petition and while setting aside the order dated 31.7.07, directed KUMS to maintain the parity amongst the business concern in respect of the allotment and take proceedings keeping in view, the directions issued by the Directorate vide letter dated 27.6.99. As a matter of fact, the letter issued by the Directorate is dated '27.5.99' and not '27.6.99' whereunder, it is laid down that the allotment of temporary platform may be made only for the CIVIL WRIT (CW) No.6486 of 2008 M/S. JIVAN RAM-DURGESH KUMAR VS.
STATE OF RAJASTHAN & ORS.
6 purpose of agglomeration. Hence, this petition.
6. Learned counsel appearing for the petitioner contended that vide order dated 31.7.07, the revision petition preferred by the petitioner under Section 39 of the Act, was allowed by the Director, Agriculture Produce Market after due consideration of the rival submissions and the directions were issued to the KUMS to allot the platform and open space between two shops to the petitioner on the same conditions on which the platform and open space was allotted in favour of M/s. Swami Trading Company and Kashiram Rajendra Kumar, who were admittedly below the petitioner in the preference list and therefore, in absence of any power of review under the Act, the Director had no jurisdiction to review its own order passed in favour of the petitioner as aforesaid. Learned counsel submitted that as a matter of fact, the order passed by the Director, stands executed by the KUMS by adopting CIVIL WRIT (CW) No.6486 of 2008 M/S. JIVAN RAM-DURGESH KUMAR VS.
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7 a resolution in its meeting held on 16.2.08 and therefore, there was no occasion for the KUMS to seek review of the order dated 31.7.07 passed by the Director, Agriculture Produce Market. Learned counsel submitted that it is not in dispute that the petitioner was above the firm M/s. Swami Trading Company and Kashiram Rajendra Kumar in the preference list and therefore, the directions issued by the Director, Agriculture Produce Market, directing allotment of the platform and open space to the petitioner at par with aforesaid firms, which were allotted the platform and open space ignoring the preferential claim of the petitioner, was just and proper and there was no occasion for the Director to review the said order. Accordingly, learned counsel submitted that the writ petition preferred by the petitioner deserves to be allowed as prayed for.
7. On the other hand, the counsel appearing for KUMS contended that the allotment policy prevalent CIVIL WRIT (CW) No.6486 of 2008 M/S. JIVAN RAM-DURGESH KUMAR VS.
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8 at the time of allotment in favour of M/s. Swami Trading Company and Kashiram Rajendra Kumar and their likes, is not in force inasmuch as, the said Policy stands substituted by a new allotment policy i.e. Policy, 2005 and therefore, the petitioner cannot be allotted the platform and open space under the Policy which is not in existence. Learned counsel submitted that in view of the letter dated 27.5.99 of the Director, Agriculture Produce Market, the open space is permissible to be allotted only for the purpose of agglomeration and therefore, taking into consideration, the said letter, the Director, Agriculture Produce Market, has rightly reviewed its earlier order.
8. I have considered the rival submissions and perused the material on record.
9. Indisputably, the petitioner is carrying on business of food grain in the Mandi Yard, KUMS, since 1989. It is not in dispute that the petitioner CIVIL WRIT (CW) No.6486 of 2008 M/S. JIVAN RAM-DURGESH KUMAR VS.
STATE OF RAJASTHAN & ORS.
9 was pursuing the matter for allotment of platform and open space since 1990. It is also not in dispute that the other firms/business concern have been allotted platform and the open spaces between the two shops by the respondent-KUMS. Admittedly, the firms M/s. Swami Trading Company and Kashiram Rajendra Kumar, which have been allotted the platform and open space, were below the petitioner in the preference list. In this view of the matter, the order passed by the Director, Agriculture Produce Market dated 31.7.07, directing allotment of the platform and open space to the petitioner at par with M/s. Swami Trading Company and Kashiram Rajendra Kumar, was just and proper and there was no occasion for the Director to review the said order allegedly on the basis of the letter dated 27.5.99 moreso when the said order dated 31.7.07 had already been implemented by the KUMS by adopting a resolution in its meeting held on 16.2.08.
CIVIL WRIT (CW) No.6486 of 2008 M/S. JIVAN RAM-DURGESH KUMAR VS.
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10
10. It is pertinent to note that the review petition was filed by the KUMS after taking a decision for implementation of the order dated 31.7.07 passed by the Director, Agriculture Produce Market, purportedly, under Section 32A of the Act, which as a matter of fact, deals with Composition of the offences. It is not the case of the respondents that the Director, Agriculture Produce Market is vested with the power under the Act to review its own order and thus, in absence of any power of review, the order impugned passed by the Director, Agriculture Produce Market, reviewing its earlier order passed in proceedings under Section 39 of the Act, is ex facie without jurisdiction.
11. In any case, it is not disputed before this court ignoring the preferential claim of the petitioner for allotment of the platform and open space,the firms/business concerns below the petitioner in the list were allotted the platform/open space and CIVIL WRIT (CW) No.6486 of 2008 M/S. JIVAN RAM-DURGESH KUMAR VS.
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11 therefore, the petitioner is entitled for allotment at par with the business concerns/firms, which have been allotted the platforms and open spaces as referred to in the order dated 31.7.07 passed by the Director, Agriculture Produce Market.
12. In view of the discussion above, the order impugned dated 22.4.08 passed by the Director, Agriculture Produce Market, Jaipur, deserves to be set aside and the order under review dated 31.7.07 passed by the Director, Agriculture Produce Market and the resolution dated 16.2.08 adopted by the KUMS pursuant thereto, deserve to be restored.
13. In the result, the petition succeeds, it is hereby allowed. The order impugned passed by the Director, Agriculture Produce Market, Jaipur, dated 22.4.08 is set aside. The order dated 31.7.07 passed by the Director, Agriculture Produce Market, Jaipur and the resolution dated 16.2.08 adopted by the KUMS, Sri Ganganagar, in compliance of order dated 31.7.07 CIVIL WRIT (CW) No.6486 of 2008 M/S. JIVAN RAM-DURGESH KUMAR VS.
STATE OF RAJASTHAN & ORS.
12 are restored. The KUMS, Sri Ganganagar, shall issue the order allotting the platform and open space to the petitioner in terms of resolution dated 16.2.08, expeditiously, in any case, within a period of one month from the date of receipt of certified copy of this order. No order as to costs.
(SANGEET LODHA),J.
Aditya/