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Sunday, August 28, 2016

Division Bench of the High Court affirmed the order of the Single Judge directing the appellant herein to allot a shop to the respondent- writ petitioner in Gazipur Mandi and also issue of category ‘B’ license to him under the provisions of Delhi Agricultural Produce Marketing (Regulation) Act, 1998.= writ petitioner supported the impugned order but submitted that there are available surplus shops at Gazipur market and the petitioner was willing to offer 10 per cent over and above the highest auction bid. He has filed a copy of the letter dated 29th June, 2016 in response to an application under the RTI which is as follows : “1. There are a total No. of 354 ‘B’ Category license holders in Gazipur Mandi, out of which, 309 license holders have been allotted new shops. Out of the above 21 license holders are in waiting list for shops under construction. 2. As many as 9 blocks are constructed and ready in Gazipur Mandi. It has 288 ‘B’ category shops. In 1 block 32 shops of ‘B’ Category are raised. 3. In block 10 which is under construction, 21 shops of ‘B’ category have already been allotted. 4. All the shops under construction and also those which are already constructed are under the Jurisdiction of the Office of the Parishad. The remaining shops are also under the jurisdiction of the Office of Parishad.”= it is clear that the respondent- writ petitioner is no longer to be displaced from his existing place of business. He was duly considered for the available shops in Okhla with the persons displaced from Phool Mandi, Darya Ganj who were eligible for an alternative allotment of shops, but he could not succeed. We have also noted the stand of the appellant that Gazipur Mandi shops are for the allotment of shops to persons who have been displaced from Shahadra, in which category the case of the respondent does not fall. It is not the case of the writ petitioner that he has been discriminated against or otherwise denied fairness in action. Thus, strictly speaking, the writ petitioner has no legal right for allotment of a shop at Gazipur. However, since his claim has been under consideration since long, he could be considered with other eligible applicants, for allotment of shop, subject to a surplus shop being available. we dispose of this appeal by modifying the impugned order to the effect that the case of the respondent, along with all eligible persons, be considered, subject to the availability of a shop, within six months, in accordance with law.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        civil APPELLATE JURISDICTION

                        civil APPEAL NO.8267 OF  2016
              (arising out of S.l.p. (civil) no. 11247 of 2016)

delhi agricultural marketing board           …APPELLANT

                                   VERSUS

hakumat rai                                       ...RESPONDENT


                               J U D G M E N T


ADARSH  KUMAR  GOEL,  J.



1.    leave granted.  This appeal has been preferred  against  the  judgment
and order dated 29th January, 2016 in LPA No.535 of 2015 passed by the  High
Court of Delhi whereby the Division Bench of the  High  Court  affirmed  the
order of the Single Judge directing the appellant herein to allot a shop  to
the respondent- writ petitioner in Gazipur Mandi and also issue of  category
‘B’ license to him  under  the  provisions  of  Delhi  Agricultural  Produce
Marketing (Regulation) Act, 1998.

2.    The above order came to be passed on the writ petition  filed  by  the
respondent.  The averments in the petition are: The writ  petitioner  was  a
commission agent of fruits and vegetables at Phool Mandi,  Darya  Ganj,  New
Delhi.  The appellant- Delhi Agricultural Marketing Board  was  a  statutory
body to regulate the marketing of  agricultural  produce  and  had  declared
certain areas as market areas.  In the year 1998, the said  Mandi  at  Darya
Ganj was de-notified and the commission  agents  were  to  be  shifted  from
there.  License of the petitioner was not renewed as the market was  shifted
to Okhla where a new market was to be constructed by the  Delhi  Development
Authority (DDA).  The petitioner  was  included  in  the  list  of  eligible
persons but was not successful in the draw of lots held in 1987.  Those  who
were allotted shops at Okhla were shifted from Darya Ganj in the year  1992.
 Thereafter, the petitioner made a representation in the year 1994 for  some
alternative site at Keshopur Mandi, Tilak Nagar, Delhi which was  closer  to
his residence as he was not successful in the draw of lots held in the  year
1987.  In the year 1999, the name of the petitioner was recommended  by  the
Secretary, APMC but he was not allotted a  shop.   In  the  year  2002,  the
petitioner again represented that as no shops were available  in  Okhla,  he
may be accommodated at new wholesale market.  In 2003, the Agenda Item  No.8
for allotment of shop to the petitioner was approved on 18th December,  2003
but he was not allotted a shop.  In 2008,  the  petitioner  represented  for
allotment of shop at Gazipur market and again in the year  2011,  he  sought
allotment  of  shop  at  Keshopur,  Okhla,  Gazipur  or  any  other  market.
Earlier, he had approached the High Court in Writ  Petition  (Civil)  No.547
of 1993.  He was given liberty to file representation.  He also relied  upon
the order dated 24th January, 2003 in another case in Writ Petition  (Civil)
No.790 of 2000.  In substance, the case put forward by  the  petitioner  was
that he was running his business at Darya Ganj since long and  as  the  said
market had been de-notified, he was entitled to be allotted  an  alternative
shop at Gazipur or any other newly developed market.

3.      The writ petition was opposed by the appellant  by  submitting  that
‘B’ Category license can be granted only to the persons  owning  a  shop  in
the market area/ yard of the APMC.   Alternative  shops  in  Gazipur  market
were being given only to  those  who  were  bona  fide  licensees  of  APMC,
Shahdara.  Thus, the petitioner was not eligible for allotment  of  shop  in
the said market.  The learned Single Judge allowed the writ petition on  the
ground that the petitioner was waiting for allotment of shop since the  year
1985 and was entitled to be accommodated at  Gazipur  particularly  when  no
other markets were coming up in the near future.  The  observations  of  the
learned Single Judge are :

“6.1  I have asked Mr. Sinha, the learned counsel for the respondent  as  to
whether the petitioner’s case  was  considered  by  the  Board.   Mr.  Sinha
informs me that the petitioner’s case was rejected, as  the  petitioner  was
not found eligible.
6.2   On being queried further, as  to  when,  a  decision,  to  reject  the
petitioner’s claim, was taken by the Board.  Mr. Sinha candidly stated  that
there was no reference to the same in the counter  affidavit.   This  apart,
the record  would  show  that  no  document  has  been  filed,  which  would
demonstrate that the petitioner’s case was rejected.
6.3   On the contrary, there are documents on record  which  show  that  the
APMC has approved the case of the petitioner, and it is the Board which  has
not moved further in the matter.
6.4    Undeniably,  under   the   Delhi   Agricultural   Produce   Marketing
(Regulation) Act, 1998, APMC is an adjunct of  the  Board.   Therefore,  the
recommendations of  the  APMC,  should  carry  the  necessary  weight.   The
petitioner has waited long  enough  for  the  relief  in  the  matter.   The
genuineness of the case and/  or  the  eligibility  of  the  petitioner  for
allotment is not in doubt as is recorded in APMC’s letter dated 12.8.1999.
7.    Therefore, given the facts and circumstances obtaining  in  the  case,
according to me, the petitioner is entitled to the reliefs as prayed.
7.1   Mr. Sinha says that the directions sought for  allocation  of  a  shop
are not feasible as,  under  the  policy,  shops  in  Gazipur  can  only  be
allotted to those persons, who were carrying on business  at  Shahdara.   In
my view, present piquant situation  is,  a  creation,  of  respondent’s  own
making.
7.2   Having regard to  the  fact  that  the  petitioner  has  been  waiting
patiently for relief since 1985, if not earlier, the  respondent  will  have
to make necessary accommodation for the petitioner.  This is especially  so,
since, Mr. Sinha says that there are no other  “mandis”,  which  are  coming
up, except one, in Gazipur, in the near future.  To ask  the  petitioner  to
wait  for  any  further,  will  be  a  travesty  of  justice.   Accordingly,
necessary directions are issued in terms of the relief  sought  for  by  the
petitioner.
7.3   In view of the  above,  the  respondent  will  allot  a  shop  to  the
petitioner in the Gazipur Mandi, and thereafter, also issue a  category  ‘B’
License to the petitioner.”



4.    The Division Bench of the High Court upheld  the  above  direction  as
follows :
“11.  We may also deal with the submissions of the learned counsel  for  the
appellant.  The contention is that as the respondent’s name did  not  figure
in the draw of lots, he became ineligible.  It was put  to  learned  counsel
for the appellant to show if there is any policy  that  an  eligible  person
seeking an alternate place at Okhla Mandi would become  ineligible  in  case
he did not succeed in the draw of lots.  Learned counsel has not  been  able
to show any such policy on record.  The contention is  clearly  without  any
merits.  Regarding the contention of learned counsel for the appellant  that
the impugned order would cause confusion inasmuch as  the  shops  which  are
being constructed at Gazipur are only meant for those who have been  working
at Shahdra Mandi, the impugned order rightly states that this is  a  piquant
situation which is a creation of the appellant’s own making.”


5.    We have heard learned counsel for the parties.

6.    The main  contention  raised  on  behalf  of  the  appellant  is  that
allotment of  shop  in  a  notified  market  area  is  not  a  legal  right.
Accommodation in the  notified  area  depended  upon  the  number  of  shops
available.  Further, vide notification dated  2nd  September,  2014  it  was
notified that no license will now be required for the  marketing  of  fruits
and vegetables in Delhi except in the  notified  market  areas.   Thus,  the
appellant could continue to carry on his  business  at  Phool  Mandi,  Darya
Ganj.  If he was not to  be  displaced  from  the  place  of  his  business,
subject to his having right to occupy the shop from the premises  where  the
business was being carried on, the appellant  was  under  no  obligation  to
allot an alternative shop  to  rehabilitate  him.   The  case  of  the  writ
petitioner was considered from  time  to  time,  but  since  the  number  of
claimants was more than the shops available, he  could  not  be  allotted  a
shop. The High Court had directed allotment of shop to  him  merely  on  the
ground that he was waiting from a long  time.   Moreover,  in  view  of  the
notification dated 2nd September, 2014, no license is required for the  writ
petitioner to continue at the present  place  of  his  business.   The  said
notification is as follows :

 “Now, therefore, in exercise of the powers  conferred  by  sub-section  (I)
and  (4)  of  Section  4  of  the  Delhi  Agricultural   Produce   Marketing
(Regulation)   Act,   1998,   and   in   supersession    of    notifications
Nos.F.50(3)/77/DAM(i)   dated   14.01.77,    F.6(II)/78-DAM/7371-92    dated
21.11.78, F.8/4/83-DAM/ MR (i) dated  01.12.92,  F.8(2)/85-DAM/MR/Vol.II/420
dated 29.01.2001 and F.8/4/83-DAM/MR (ii) dated 01.12.92, in so far as  they
relate to Fruits and Vegetables mentioned in the schedule to the above  Act,
the Lt. Governor of National  Capital  Territory  of  Delhi  is  pleased  to
declare that regulation of  marketing  of  fruits  and  vegetable  mentioned
above shall  cease  beyond  the  markets/  market  yard/  sub-yards  of  the
respective marketing committees namely APMC MNI Azadpur, APMC  Keshopur  and
APMC Shahdara, with immediate effect, and henceforth market  area  of  these
committees with respect to fruits and vegetables shall  have  the  following
boundaries…”
                                                            (emphasis added)

7.    Learned counsel for the  respondent-  writ  petitioner  supported  the
impugned order but submitted that  there  are  available  surplus  shops  at
Gazipur market and the petitioner was willing to offer 10 per cent over  and
above the highest auction bid.  He has filed a  copy  of  the  letter  dated
29th June, 2016 in response to an application under  the  RTI  which  is  as
follows :
“1.   There are a total No. of 354 ‘B’ Category license holders  in  Gazipur
Mandi, out of which, 309 license holders have been allotted new shops.   Out
of the above 21  license  holders  are  in  waiting  list  for  shops  under
construction.
2.    As many as 9 blocks are constructed and ready in  Gazipur  Mandi.   It
has 288 ‘B’ category shops.  In  1  block  32  shops  of  ‘B’  Category  are
raised.
3.    In block 10 which is under construction,  21  shops  of  ‘B’  category
have already been allotted.
4.    All the shops under construction and  also  those  which  are  already
constructed are under the Jurisdiction of the Office of the  Parishad.   The
remaining shops are also under the jurisdiction of the Office of  Parishad.”


8.    On due consideration of the submissions made by  learned  counsel  for
the parties, it is clear that the respondent- writ petitioner is  no  longer
to  be  displaced  from  his  existing  place  of  business.   He  was  duly
considered for the available shops in Okhla with the persons displaced  from
Phool Mandi, Darya Ganj who were eligible for an  alternative  allotment  of
shops, but he could not succeed.  We  have  also  noted  the  stand  of  the
appellant that Gazipur Mandi  shops  are  for  the  allotment  of  shops  to
persons who have been displaced from Shahadra, in which  category  the  case
of the respondent does not fall.  It is not the case of the writ  petitioner
that he has been discriminated  against  or  otherwise  denied  fairness  in
action.  Thus, strictly speaking, the writ petitioner  has  no  legal  right
for allotment of a shop at Gazipur.   However,  since  his  claim  has  been
under consideration since long, he could be considered with  other  eligible
applicants,  for  allotment  of  shop,  subject  to  a  surplus  shop  being
available.

9.    In these circumstances, we dispose of this  appeal  by  modifying  the
impugned order to the effect that the case of  the  respondent,  along  with
all eligible persons, be considered, subject to the availability of a  shop,
within six months, in accordance with law.


                                                        ………………………………………………J.
                                                         ( V. GOPALA GOWDA )



                                                        ………………………………………………J.
                                                       ( ADARSH KUMAR GOEL )
New Delhi;
August 24, 2016.


ITEM NO.1A-For JUDGMENT      COURT NO.8             SECTION XIV

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

C.A. No........./2016 @ Petition(s) for Special Leave to Appeal (C)  No(s).
 11247/2016

DELHI AGRICULTURAL MARKETING BOARD              Petitioner(s)

                                VERSUS

HAKUMAT RAI                                     Respondent(s)

Date : 24/08/2016 This petition was called on for pronouncement of JUDGMENT
today.

For Petitioner(s)       Mrs. Avnish Ahlawat, Adv.
                     Dr. Monika Gusain,Adv.
                        Mr. Hari Om Yaduvanshi, Adv.

For Respondent(s)
                     Ms. Madhusmita Bora,Adv.


            Hon'ble Mr. Justice Adarsh Kumar Goel  pronounced  the  judgment
of  the  Bench  comprising  Hon'ble  Mr.  Justice  V.Gopala  Gowda  and  His
Lordship.
            Leave granted.
            The appeal is disposed of in  terms  of  the  signed  Reportable
Judgment.

|(VINOD KUMAR JHA)                      | |(MALA KUMARI SHARMA)                  |
|AR-CUM-PS                              | |COURT MASTER                          |


          (Signed Reportable judgment is placed on the file)

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