Punjab-Haryana High Court
M/S Sohan Lal Sube Singh & Ors vs The State Of Haryana & Ors on 5 December, 2008
Author: Surya Kant
Bench: Surya Kant
CIVIL WRIT PETITION NO.3403 OF 1993. ::-1-::
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH.
C.W.P. No. 3403 of 1993.
Date of Decision: 5th December, 2008.
M/s Sohan Lal Sube Singh & Ors. .Petitioners
through
Mr. H.N.Mehtani, Advocate
Versus
The State of Haryana & Ors. ...Respondents
through
Mr. R.D.Sharma, Sr. DAG, Haryana.
CORAM:
HON'BLE MR. JUSTICE SURYA KANT.
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
SURYA KANT, J.
This order shall dispose of CWP Nos.2872 to 2875, 3403, 4002, 4092 to 4096, 4158, 4598, 7805, 7915, 10908 , 16429, 16462 of 1993 and 1284 of 1994 as common questions of law and facts are involved in these cases. The petitioners seek a direction for allotment of plots to them in the newly established Grain Market at Indri, District Karnal. For the sake of brevity, the facts are being extracted from CWP No. 3403 of 1993.
[2]. The petitioners are partnership firms who claim to be running the business of Commission Agents at Grain Market, Indri on the basis of licences issued under Section 6[3] of the Punjab Agricultural Produce Market Act, 1961 [ for short 'the 1961 Act'] as applicable to the State of Haryana.
[3]. It is averred that petitioner No. 1 firm was originally CIVIL WRIT PETITION NO.3403 OF 1993. ::-2-::
granted licence in the year 1983. However, it was re-constituted and thereafter obtained a fresh licence on 12th April, 1990. Petitioner No.
2 Firm is also claimed to have got the licence in the year 1984 but upon reconstitution, was granted fresh licence on 16th April, 1990. Same is the situation in the case of petitioners No. 3 and 4, but petitioner No. 5 is stated to have obtained the licence on 13th April, 1987. In the connected cases also, the petitioner Firms originally got the licences prior to 9th September, 1987, though most of these firms were later on reconstituted and then obtained fresh licences on different dates.
[4]. There is no dispute that unless exempted by the Rules framed under the 1961 Act, no person is entitled to set up, establish or continue or allowed to continue purchase, sale, storage or processing of the agricultural produces within the notified market area except under a licence granted in accordance with the provisions of the Act and the Rules made thereunder. [5]. A new Grain Market was originally developed at Indri, District Karnal in the year 1973 by the Colonization Department, Haryana and all the plots/booths in the said Grain Market were disposed of in an open auction. Subsequently, with the winding up of the Colonization Department, the management and control of all such Grain Markets were transferred to the Haryana State Agricultural Marketing Board [for short 'the Board'] - a statutory authority constituted under the 1961 Act and the respective Market Committees.
[6]. Vide notification dated 20th August, 1987, the Government CIVIL WRIT PETITION NO.3403 OF 1993. ::-3-::
of Haryana expressed its intention to de-notify the Sub-Market Yard at the Old Grain Market, Indri and invited objections/suggestions, if any, in relation thereto. Thereafter, vide notification dated 9th September, 1987, the State Government abolished the afore-said Sub-Market Yard and vide a separate notification of the even date, established and declared a new Grain Market to be the "Principal Yard", heather-to regulating the sale or purchase of agricultural produces at the new Grain Market only. This obviously led to the up- rooting and consequential closure of business of the Commission Agents who were running their business in the old Grain Market. [7]. With a view to obviate hardship being faced by the old functional licensees/Commission Agents, the Board took a policy decision on 1st June, 1987, the relevant extracts of which read as follows:-
"4[i] The reservation in shop plot would be 45% for old licencee of category II only and 5% for Harijans. [a] OLD LICENCEES OF CATEGORY-II:- Old licensees of Category II only are eligible to participate in draw of lots for shops plots, provided such a licencee holds a valid licence for the past two years continuously preceding the date of auction/draw of lots as the case may be, and his premises is situated in the old Anaj Mandi likely to be denotified.
In case there are more than one occupation in the same premises the oldest first in that premises or the one which is agreed upon [ in writing] by all the firms occupying the same premises shall be eligible to participate in the draw of lots, provided further that a licencee even if having a valid licence for the past two years but having no premises in the Mandi which is to be CIVIL WRIT PETITION NO.3403 OF 1993. ::-4-::
denotified owing to the establishment of the new mandi, such licensees shall not be eligible to take part in the draw of lots.
Any licencee firm undergoing change in partnership due to the:-
[i] inclusion of the heirs of a partner;
[ii] addition of new partners but retaining the majority of old partners would be treated as a continuing firm for the purpose of participation in draw of lots".
[8]. It was, thus, provided that 45% of the plots in the newly established Grain Market, shall be offered to the old licensees of 'Category-II' on 'reserved price' and by participation in the draw of lots, provided that -[i] such a licencee holds licence for the past two years continuously preceding the date of auction/draw of lots, as the case may be; [ii]his premises is situated in the old Grain Market likely to be de-notified; [iii] in case there are more than one occupants in the same premises, the oldest firm in that premises or the one which is agreed upon in writing by all the firms occupying the said premises, shall be eligible to participate in the draw of lots; [iv] even if a firm is having a valid licence for the past two years but having no premises in the Grain Market to be de-notified, shall not be eligible to take part in the draw of lots and [v] in case of all those partnership firms which have undergone changes due to inclusion of heirs of a deceased partner and/or despite addition of new partners, the majority of old partners are continuing in the firm, alone would be eligible for participation in the draw of lots.
[9]. The right of the existing licenced dealers for allotment of alternative sites in the new Grain Market due to their virtual CIVIL WRIT PETITION NO.3403 OF 1993. ::-5-::
displacement from the places where they had established themselves over the years and who were being compelled to abandon their trading at those places, has been well recognized by the Supreme Court also in the case of Prem Chand Trilok Chand & Ors. V State of Haryana & Ors., [1998] 5 SCC, 213 [decided on 7th August, 1991] in the following terms:-
"We are of the view that normally once the Government starts regulating the place of sale of agricultural produce covered by the Act and does not permit any other place to be used for the purpose, there is an inherent obligation of the Government to provide at the new site for all the licenced dealers sufficient accommodation for carrying on their trade and until that is done it would not be possible for the Government to direct closure of the old site".
[10]. Reiterating the aforesaid view in Labha Ram & Sons v State of Punjab & Ors., [1998]5 SCC, 207 their Lordships held that mere providing an opportunity to the existing licenced dealers to compete with the rest of the public for getting accommodation in the new Market is not sufficient to discharge the inherent obligation of the Government to provide sufficient accommodation to the existing dealers at the new market area. The right of an old licencee to seek allotment of an alternative site in the new Gram Market was recognized even where the old Grain Market was established by the Colonization Department.
[11]. It appears that instead of allotting 45% of the plots to the existing licence holders on reserve price through a draw of lots in terms of the policy dated 1st June, 1987 reproduced earlier, the Board CIVIL WRIT PETITION NO.3403 OF 1993. ::-6-::
and the Market Committee, Indri took a decision on 19th January, 1991 to hold a 'public auction' of the plots. Aggrieved at the said decision, 43 old licensees filed CWP No. 596 of 1991 which was, however, dismissed by this Court. The matter was taken to the Supreme Court by some of the old licensees in SLP [C] No. 14402 of 1991 [M/s Hokum Chand Ved Parkash & Ors. V State of Haryana & Ors.] and SLP [C] No.16493 of 1991 [M/s Sada Ram Ram Singh & Ors. V State of Haryana & Ors.] which were allowed on 2nd February, 1993 in the following terms:-
"The affidavit filed by the Executive Officer-cum- Secretary, Market Committee, now makes it clear that the five petitioners are not carrying on their business either in tents or in shops. The affidavit also states that no shops have been allotted to the five petitioners, although admittedly, they were carrying on their business in the old market and they have licences for carrying on the said business. There is no reason why these petitioners should be discriminated against when others who were carrying on their business in the old market were allotted shops. In the peculiar circumstances of the case, therefore, we direct respondent No. 3 the Market Committee to allot five shops to the five petitioners at the reserved price within six weeks from today. The petitioners will make fresh application for the shops within two weeks from today. The petition is disposed of as above".
[12]. It is not in dispute that in compliance to the directions issued by the Hon'ble Supreme Court, 16 old licensees have been allotted the plots. It has also been pointed out that there were in total 114 plots in the new Grain Market, out of which as per 45% CIVIL WRIT PETITION NO.3403 OF 1993. ::-7-::
reservation, 52 plots ought to have been allotted to the old licensees, as against the allotment to 16 old licensees only under the orders of the Supreme Court.
[13]. Taking clue from the order passed by the Hon'ble Supreme Court and claiming themselves to be the 'old licensees' who were running their business in the old Grain Market prior to 9th September, 1987, the petitioners also applied for inclusion of their names in the draw for allotment of the plots on 'reserved price'. Their request, however, was not acceded to by the respondents and the unallotted 25 shop plots and 18 booth plots were decided to be sold through open auction. Aggrieved, the petitioners have approached this Court.
[14]. While issuing notice to the respondents, the Motion Bench directed that "the auction held shall be subject to the decision of this writ petition".
[15]. The respondents have filed their counter-affidavit controverting the petitioners' claim mainly on the ground that majority of the petitioner-firms have obtained licences after 9th September, 1987 and are ineligible to claim the benefit of reservation under the policy dated 1st June, 1987. Some of them like petitioner No. 5 in CWP No. 3403 of 1993, though are admitted to be 'old licensees' but their claims are controverted on the ground of delay and laches as according to the respondents, these eligible petitioners did not come forward for allotment within a reasonable period and it is only after passing of the orders by the Supreme Court on 2nd February, 1993 that they have woken up and approached this Court at a belated CIVIL WRIT PETITION NO.3403 OF 1993. ::-8-::
stage.
[16]. I have heard learned counsel for the parties at a considerable length and perused the pleadings including the policy decisions as amended from time to time.
[17]. The entitlement of an old licencee for allotment of a plot in the new grain market at a reserved price to be fixed by the respondents, subject to fulfillment of eligibility conditions laid down in the policy dated 1st June, 1987, requires no elaborate discussion. In the light of the decisions cited before and also of a Division Bench of this Court in the case of Haryana State Agricultural Marketing Board v Bharat Bhushan Aggarwal, 1998[2] PLR, 824, suffice it to say that the respondents are obligated to offer plots to the eligible old licensees on reserve price.
[18]. The bone of contention between the parties, however, pertains to the eligibility of the petitioner-firms, as majority of them are stated to have obtained licences after 9th September, 1987 when the new Grain Market came to be established and, thus, did not possess two years old licence along with the premises in the old grain market. Contrary to it, the petitioners claim that the partnership firms came into existence much prior to 9th September, 1987 and were having licences prior thereto but 'fresh licences' were obtained only due to change of partners at a later stage.
[19]. Adverting to the first objection that the petitioners have obtained the licences after 9th September, 1987, in my considered view, the policy dated 1st June, 1987 is self-explanatory and explicitly deals with a situation where some of the partners of a firm have CIVIL WRIT PETITION NO.3403 OF 1993. ::-9-::
changed for the reasons enumerated in the policy itself. In other words, if the petitioner-firms came into existence prior to 9th September, 1987 and got the licences and were also fulfilling other eligibility conditions laid down in the policy dated 1st June, 1987 including the change of one or the other partner due to death of the existing partner or otherwise but the partnership firm continued to be dominated by the existing majority partners, there appears to be no tangible valid reason to deprive such partnership firms from allotment of the plots on reserved price as per the policy decision dated 1st June, 1987. The question as to whether a particular firm fulfills the eligibility conditions contained in the policy dated 1st June, 1987 is, however, purely a question of fact which can not be satisfactorily determined by this Court in exercise of its extra-ordinary writ jurisdiction as the same would require the petitioner firms to produce the supporting material, like [a] original partnership deed; [b] original licence issued under Section 6[3] of the 1961 Act; [c] the amended/modified new partnership deed; [d] Sales Tax Registration of the old and new firm etc.; [e] Income Tax Returns of the old and new firms; and [f] the new licence obtained after 9th September, 1987 etc., so as to arrive at a just conclusion. Such an exercise can be effectively undertaken only by the Board Authorities through a Committee.
[20]. The respondents' objection of delay and laches against those petitioner firms who are otherwise eligible under the policy dated 1st June, 1987, carries no substance. The material on record reveals that the decision to sell the shop/booth plots through an open CIVIL WRIT PETITION NO.3403 OF 1993. ::-10-::
auction [instead of allotting 45% thereof to the existing licence holders on a reserved price as per the policy] was taken in the year 1991 only, though the Grain Market was notified on 9th September, 1987. The said decision came to be challenged in a writ petition filed by 43 old licensees and finally culminated into the order dated 2nd February, 1993 [Annexure P-1] passed by the Hon'ble Supreme Court. The least that could be expected of the respondents was to uniformly apply the law of the land and extend equal treatment to all the eligible old licensees by allowing them to participate in the draw of lots. Contrary to that, the respondents forgot their legal obligation and decided to earn profit out of the left out plots through 'public auction'. The petitioners approached this Court even before the said auction could be held. Keeping these facts and circumstances in view, it would be totally unfair to accuse the petitioners of sleeping over their rights and/or not approaching the Court within a reasonable period. That apart, no prejudice whatsoever has been caused to the respondents on that count.
[21]. For the reasons afore-stated, these writ petitions are allowed to the extent that such of the petitioners, who fulfill the eligibility criteria laid down in the policy decision dated 1st June, 1987 shall be included in the draw of lots for allotment of plots on the reserve price. Regarding those petitioner-firms whose eligibility is under dispute, the Chief Administrator, HSAMB is directed to constitute a Committee of Three Senior Officers who shall call upon these petitioners to produce the relevant records to prove that they are also eligible for inclusion in the draw of lots under the policy CIVIL WRIT PETITION NO.3403 OF 1993. ::-11-::
dated 1st June, 1987. Such an exercise shall be completed by the Committee within a period of four months from the date of receipt of a copy of this order. Needless to say that whosoever petitioner is found eligible after such an exercise, shall also be included in the draw of lots and/or allotted the plot on the reserved price. [22]. It is true that the auction which was scheduled to be held in the year 1993 was subject to the outcome of these writ petitions. At this stage, I do not propose to cancel the allotments made by the respondents in favour of the highest bidders through that public auction. It is, however, directed that in case sufficient unallotted plots are not available with the respondents to accommodate those of the petitioners who are and/or found to be eligible under the policy dated 1st June, 1987, the respondents shall carve out additional plots for them. In case some additional land is needed to be acquired for the said purpose, it shall be open to the respondents to take such necessary steps and then re-determine the reserve price of the plots accordingly. The entire exercise shall be completed within a period of six months. No order as to costs.
December 5, 2008. ( SURYA KANT ) dinesh JUDGE