Madhya Pradesh High Court
Mohd. Fareed vs The State Of Madhya Pradesh on 1 March, 2012
Equivalent citations: AIR 2012 MADHYA PRADESH 87, (2012) 2 MPLJ 448 (2012) 2 MPHT 310, (2012) 2 MPHT 310
Author: Sanjay Yadav
Bench: Sanjay Yadav
HIGH COURT OF MADHYA PRADESH, JABALPUR
Writ Petition No.3957/2010
Mohd. Fareed and another..........................................................Petitioners
Versus
The State of Madhya Pradesh and others...............................Respondents
Writ Petition No.4880/2010
Abdul Habib and another.............................................................Petitioners
Versus
The State of Madhya Pradesh and others...............................Respondents
Writ Petition No.4890/2010
Ramjan Khan and another...........................................................Petitioners
Versus
The State of Madhya Pradesh and others...............................Respondents
Writ Petition No.6355/2010
Mohd. Irshad and others.............................................................Petitioners
Versus
The State of Madhya Pradesh and others...............................Respondents
For the petitioners : Shri Vivek Ranjan Pandey, Advocate.
For respondent : Shri Naman Nagrath, Additional Advocate General.
Nos. 1 and 2
For respondent : Shri Atulanand Awasthy with Shri R. P. Singh,
No.3 Advocates.
AND
Writ Petition No.10244/2010
Thok Sabji Vikreta Kalyan Sangh..................................................Petitioner
Versus
The State of Madhya Pradesh and others...............................Respondents
2
For the petitioners : Shri Vivek Ranjan Pandey, Advocate.
For respondent : Shri Naman Nagrath, Additional Advocate General.
Nos. 1 and 2
For respondent : Shri Atulanand Awasthy with Shri R. P. Singh,
No.3 Advocates.
For respondent : Shri Piyush Bhatnagar, Advocate.
No.4
............................................................................................................
Present : HONOURABLE SHRI JUSTICE AJIT SINGH
HONOURABLE SHRI JUSTICE SANJAY YADAV
.............................................................................................................
ORDER
(1.3.2012) The following order of the Court was delivered by :
Ajit Singh, J. This order shall also dispose of Writ Petition Nos.6322, 6355, 4880, 4890, 10244, 3887 and 612, all of 2010. All these petitions were heard together because they relate to a common issue.
2. There is an old fruit and vegetable market known as "Nav Bahar Sabji Mandi" since last 20/25 years in the city of Bhopal. The Sabji Mandi is, in fact, situated in the heart of city. With the passage of time, the population of the city has increased manifold. This has resulted into huge congestion and lack of space for fruit and vegetable traders in the Sabji Mandi. The State Government therefore, taking note of the difficulties of such traders, by notification dated 9.11.2000 issued under section 3 of the Madhya Pradesh Krishi Upaj Mandi Adhiniyam, 1972 (in short, "the Adhiniyam") for the first time established a new market yard for fruit and vegetable traders having 56 acres of land at a place called Karond in Bhopal. On 22.12.2006 the Krishi Upaj Mandi, Bhopal (in short, "the Mandi Bhopal") also for the first time prescribed the rates for different fruits and vegetables. Thereafter, on 27.2.2007 a list of allotment of land and structures, by way of auction, was issued. But the auction, which was scheduled for 6th, 7th and 8th of September 2007, for some reason could not be held.
33. In the year 2007 the land and structures of the market committee, constituted under section 11 of the Adhiniyam, were required to be allotted in accordance with the provisions of the Madhya Pradesh Krishi Upaj Mandi (Allotment of Land and Structures of Marketing Committee/Board) Rules, 2007. The State Government however, in exercise of powers conferred by section 79 of the Adhiniyam, by notification dated 25.5.2009 repealed the Rules of 2007 and framed new Madhya Pradesh Krishi Upaj Mandi (Allotment of Land and Structures) Rules, 2009 (in short, "the Rules"). Rule 3 of the Rules enumerates the general principles of allotment of land and structures of marketing committee. Its sub-rule (1) states that no land or structure of a market committee shall be allotted except the manner as provided in these rules. According to sub-rule (2) the land or structure shall be allotted only for a purpose which is conducive to marketing of agricultural produce or desirable for the convenience of agriculturists or for a purpose ancillary thereto. Sub-rule (3) states that allotment of land or structures shall be made on `licence' generally for a period of 30 years and not on lease while sub-rule (4) provides that no person shall be allotted more than one plot or structure. According to sub-rule (5) allotment of land or structure for a shop-cum-godown or a godown shall be made only to a person who holds a licence, as the case may be, as a trader/processor or warehouseman under the Adhiniyam. Sub-rule (6) very clearly states that the system of auction or invitation of offers in sealed covers/envelops shall be followed for allotment of land or structure meaning thereby that the allotment of land or structure can be made only by auction or by invitation of offers in sealed covers/envelopes. Sub-rule (7) is in two parts (a) and (b). The first part 7(a) states that in the event of transfer of market yard to a new market yard, traders, who possess licence under the Adhiniyam, who are allottees of land or structure in the old premises and are continuously trading for five years, prior to the date of auction, shall be given preference for allotment of plot or structure in the first auction and in the event of subsequent auction, all licensee traders shall be allowed to participate. The second part 7(b) provides that in the event of establishment of market yard for the first time after notification or establishment of a section of yard for the purpose of marketing of any 4 specified produce, preference will be given for allotment of plot or structure in the auction to such traders who are licensee under the Adhiniyam and who have been engaged in the previous years for trading of that specified produce.
4. On 5.1.2010 and 18.1.2010 auction for allotment of lands at the newly established market yard Karond was held in which 2771 fruit and vegetable traders, who were licensees, participated and out of them 2027 were allotted the lands. Thus, now 744 such traders have been left without allotment. The offset price of the land in the auction was fixed at Rs.251/- per square feet and the offers received were from Rs.280/- to Rs.1820/- per square ft.
5. The petitioners, who are fruit and vegetable traders in the Nav Bahar Sabji Mandi, were opposed to the auctioning of lands at the market yard Karond from the very beginning. Some of them, therefore, did not participate in the auction proceedings. And some who participated could not succeed in the allotment of lands in their favour. Aggrieved, they have filed the present petitions challenging the validity of the entire auction proceedings held on 5.1.2010 and 18.1.2010 and also the vires of sub-rule (7) of Rule 3 of the Rules.
6. It is argued on behalf of the petitioners that as they have been operating from Nav Bahar Sabji Mandi, they have preferential right over allotment of lands in the newly established market yard and therefore the auctioning of such lands, by merely allowing them to compete with the outsiders in open auction, is illegal, arbitrary and unreasonable. According to the petitioners the auctioning of lands, by keeping the auction open to all licensees without giving preference to the traders from Nav Bahar Sabji Mandi who were being shifted to the market yard Karond, is improper. The petitioners have also argued that action of the State Government and of the Mandi Bhopal amounts to depriving them to carry on their trade which is violative of their right guaranteed under Article 19 of the Constitution of India. The petitioners have further submitted that since, despite of being old traders, they have not been given preferential treatment, there is violation of Article 14 also. The 5 petitioners, in support of their submission, have placed reliance on the decision of the Supreme Court in Labha Ram And Sons v. State of Punjab (1998) 5 SCC 207 wherein it is held that Government has inherent obligation to provide sufficient accommodation to all the existing licensed dealers having regard to the handicaps they suffer due to creation of new marketing complex and that the obligation is not discharged by merely allowing them to compete with the outsiders in open auction. According to the petitioners, sub-rule (7)(a) and (b) of Rule 3 of the Rules is, therefore, ultra vires the Constitution.
7. The State Government, in reply, has defended the validity of sub- rule (7)(a) and (b) of the Rules and also the allotment of lands by auction to the fruit and vegetable traders having licence at the newly established market yard. The State Government in the return has denied that petitioners will be deprived of their source of livelihood in the event of lands not being allotted to them at the newly established market yard because they can still carry on their present business as petty traders in the same Nav Bahar Sabji Mandi in view of section 6 (iii) of the Adhiniyam. According to the State Government, in the newly established market yard, allottees of land are entitled for doing marketing of bulk agriculture produce from where the petty traders can purchase agriculture produce and thereafter sell the same at other places and therefore the petitioners, who are petty traders, are entitled to carry on their business as before. Interestingly, the State Government has also relied upon the decision of Labha Ram And Sons (supra).
8. The Mandi Bhopal has adopted the submissions of the State Government and defended its action of allotment of lands by auction. Pursuant to the direction of the High Court, Secretary of the Mandi Bhopal also filed an affidavit on 9.7.2010 stating therein that the committee has taken a decision to develop 12.30 acre of land of the newly established market yard and allot the same to the remaining 744 licence traders by auction. The Secretary has further stated that for the licencee traders, who could not participate in the auction proceedings due to their weak financial condition and the traders who are below poverty line, the Mandi Bhopal has already constructed three platforms 6 having sheds and 12 similar platforms were under construction which will be allotted to them by auction. The Municipal Corporation, Bhopal, has also adopted the submissions of the State Government.
9. The vires of sub-rule (7) of Rule 3 of the Rules, which has been challenged, reads as under:
"3. General principles of allotment.-
(1) xxxxxx
(2) xxxxxx
(3) xxxxxx
(4) xxxxxx
(5) xxxxxx
(6) xxxxxx
(7) (a) In the event of transfer of market yard to a new market yard, traders, who possess licence under Section 32 of the Act, who are allottees of land or structure in the old premises and are continuously trading for five years, prior to the date of auction, shall be given preference for allotment of plot or structure in the first auction. However, all licensee traders shall be allowed to participate in the subsequent auction.
(7)(b) In the event of establishment of market yard for the first time after notification or establishment of a Section of yard for the purpose of marketing of any specified produce, preference will be given for allotment of plot or structure in the auction to such traders who are licensee under Section 32 of the Act and who have been engaged in the previous years for trading of that specified produce."
10. The legislative competence of the State Legislature to make the Rules is not denied by the petitioners. We shall, therefore, examine whether the above quoted sub-rule (7) is so arbitrary that it cannot be said to be in conformity with Article 14 of the Constitution or that it is violative of Article 19 of the Constitution or it is contrary to the decision of the Supreme Court in the case of Labha Ram (Supra).
11. In the case of Labha Ram the State Government had declared a new Mandi where it allotted plots by auction without providing any 7 concession for the existing traders despite they being badly affected by the establishment of new market. The Supreme Court, without disturbing the power of the State Government to sell plots by auction, remanded the matter with a direction to provide preference to the existing traders in the matter of allotment. The Supreme Court, while so directing, also took care by not suggesting that the Government should give preference to such traders by providing free allotment of plots or to fix a rate below the reserved price and left it open to the Government to fix reasonable rate above the reserved price.
12. We have already seen above that for the allotment of land under the Rules, only system of auction or invitation for offers in sealed covers is followed and in both sub-rule (7)(a) and sub-rule (7)(b) of Rule 3 of the Rules care has been taken to give preference in the auction of land to genuine old allottees or traders, as the case may be. Sub-rule (7)(a) of Rule 3 of the Rules deals with a situation when there is a transfer of market yard to a new market yard. In such an event, the sub-rule clearly provides that the traders who possess licence under the Adhiniyam, who are allottees of land or structure in the old premises and are continuously trading for five years prior to the date of auction, shall be given preference for allotment of land in the first auction but all licensee traders shall be allowed to participate in the subsequent auction. Sub- rule (7)(b) deals with a different situation i.e. when there is a establishment of market yard for the first time after notification or establishment of a section of yard for the purpose of marketing of any specified produce. This sub-rule also clearly provides that preference will be given for allotment of land or structure in the auction to such traders who are licensee under the Adhiniyam and who have been engaged in the previous years for trading of that specified produce. The object of the sub-rule is to protect the existence of genuine licencee traders by giving due preference and also to prevent favoritism or nepotism to traders in the allotment of lands to them. The sub-rule is, therefore, neither arbitrary nor contrary to the decision of the Supreme Court in Labha Ram case.
813. In the present case, market yard at Karond for fruit and vegetable trade has been established for the first time. Allotment of lands at the newly established market yard to the fruit and vegetable traders by giving preference in the auction to the traders of the same trade has already been made. The petitioners have not alleged favoritism or nepotism in such allotment to the traders. The petitioners were admittedly carrying the trade of fruit and vegetable in the market area which has not been notified under the Adhiniyam. They have also not denied the contention of the State Government as well as of the Mandi Bhopal that they can continue to sell fruit and vegetable as petty traders from the same Nav Bahar Sabji Mandi. Thus, it cannot be held that their right under Article 19 of the Constitution has been violated.
14. For these reasons, we also find the allotment of lands by auction at the newly established market yard Karond to the fruit and vegetable traders, who have been engaged in the previous years of trading of that specified produce, is legal and proper.
15. In the result, the petitions fail and are dismissed. However, no order as to costs.
(AJIT SINGH) (SANJAY YADAV) JUDGE JUDGE ps