CWP No.7494 of 1997 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.7494 of 1997 Date of decision: March 20, 2009. M/s Singla Trading Company ...Petitioner(s) v. Haryana State Agricultural Marketing Board & Anr. ...Respondent(s) CORAM:HON'BLE MR. JUSTICE SURYA KANT 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present: Shri S.K. Jain, Advocate for the petitioner. Shri Girish Agnihotri, Senior Advocate with Shri Vijay Pal, Advocate for the respondent No.1. Shri Ravi Kapoor, Advocate for respondent No.2. ORDER Surya Kant, J. - (Oral): This order shall dispose of CWP Nos.13362 to 13369 of 1992 and CWP No.7494 of 1997 as common questions of law and facts are involved therein. The facts have been taken from CWP No.7494 of 1992. The petitioner seeks quashing of the order dated 9.9.1996 (Annexure P-11) whereby its claim for allotment of the plot in the new grain market at Jind has been rejected. The undisputed facts are that the petitioner holds a licence CWP No.7494 of 1997 -: 2 :- No.595/B since May, 1987 as commission agent in the Grain Market at Jind. According to the petitioner-firm, it has been carrying on the business on the first floor of the premises No.523/12 located with the precincts of the old grain market. The firm is duly registered with the Sales Tax and Central Sales Tax authorities and has got a licence from the Food & Supplies Department as well. The Haryana State Agricultural Marketing Board (in short the Board) took a decision to establish a new grain market at Jind and also to de-notify the old grain market. A policy decision was taken by the Board on 1.6.1987 whereby 45% of the shops in a new grain market were decided to be reserved for the old licensees of category II to whom the plots were to be allotted by way of draw of lots provided that “such a licensee 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 de-notified”. The policy decision further provided that:- “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 denotified owing to the establishment of new mandi, such licensees shall not be eligible to take part in the draw of lots. Any licensee firm undergoing change in partnership CWP No.7494 of 1997 -: 3 :- 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”. The aforesaid policy decision was again clarified by the Board vide circular dated 16.5.1991 (Annexure P-3) further clarified its policy observing that in the absence of clear definition of 'premises”, a number of disputes had arisen in allotment of plots at Pipli, Jind and Ismailabad Mandis, therefore, it was decided to define the term “premises” in the following manner:- “Premises - “Premises” shall mean any floor of pucca shops facing the Mandi. Explanation 1. If a shop has two or three floors, it shall consist of two or three premises and each floor shall constitute a separate premises. 2. If any floor of a shop was temporary partition, it shall constitute only one premises. 3. If any floor of a shop has pucca partition and those partitions are more than two years old at the time of draw of lots,it shall constitute number of premises as per the partition but the premises facing the Mandi shall be eligible for the allotment of plot. 4. If the ground floor of a shop is partitioned in such a way that one portion has a frontage facing the Mandi CWP No.7494 of 1997 -: 4 :- and the other portion access from the service lane, the premises facing the Mandi shall be considered for allotment of a plot. 5. If the firm is occupying incidental space of a shop like Mezzanie floor, stair hall or space under the stair, part of verandah etc. that firm will not be considered to process any separate premises and it will not be considered for the allotment of a plot. The above clarification relating to defitnion of premises shall be made effective w.e.f. 8.10.90 when the Board approved the policy for allotment of plot at reserve price to all the eligible old licensees by draw of lots.” (emphasis applied) The solitary question which requires consideration is as to whether or not the petitioner is entitled for allotment of a plot being an old licensee in terms of the Board's policy dated 1.6.1987 as modified/clarified on 16.5.1991? It is the conceded position that the petitioner was more than two years old licensee on the relevant cut-off date. It is also not in dispute that the petitioner has been running the business of commission agent in the old grain market from a premises occupied by more than one firm. It is also an admitted fact that after the issuance of clarificatory instructions dated 16.5.1991 (Annexure P-3), the Market Committee, Jind re-surveyed the old grain market and found 22 firms including the petitioner firm eligible for allotment of plots against 45% plots reserved for the old licensees (Annexure P-5). The name of the petitioner firm, however, was not CWP No.7494 of 1997 -: 5 :- included in the draw of lots. Finally, its claim has been turned down vide the impugned order dated 9.9.1996 (Annexure P-11) on the ground that the petitioner-firm has been carrying on business “along with M/s Kirpa Ram Jogi Ram on the ground floor of Shop No.523/18” and since a plot has already been allotted to M/s Kirpa Ram Jogi Ram, viz., the oldest licensee of the said premises, the petitioner is not entitled for allotment of any other plot. The petitioner's case, on the other hand, is that it has been carrying on its business in the same premises but on the first floor and not jointly with M/s Kirpa Ram Jogi Ram on the ground floor. Having heard Learned Counsel for the parties at some length and on perusal of the record, I am of the considered view that the manner in which the respondents have rejected the petitioner's claim for allotment of a plot at reserve price is totally arbitrary and unfair. Suffice it to say that the respondent authorities themselves had re-surveyed, found the petitioner and 21 more firms to be eligible for allotment of the plots on being satisfied that the petitioner fulfilled the eligibility criteria laid down in the policy dated 1.6.1987 read with the clarificatory circular dated 16.5.1991. Nevertheless, if the respondents had any doubt on the petitioner's claim of running its business from the first floor of the premises located in the old grain market, the authorities ought to have called upon the petitioner to satisfy its eligibility. Instead, the petitioner's claim has been turned down on the basis of an information which was prior in time than the report dated 29.7.1991 (Annexure P-5) submitted after the re-survey of the old grain market in which the petitioner was found eligible. Faced with this situation, Learned Counsel for the respondents CWP No.7494 of 1997 -: 6 :- submits that the clarificatory instructions dated 16.5.1991 being relied upon by the petitioner were later on withdrawn by the Board on 17.4.2004 retrospectively from the date of issue. Having given my thoughtful consideration to the contention, I do not find any merit in the same. The policy, on the basis of which a right has accrued in favour of the petitioner or given rise to a legitimate expectation, cannot be withdrawn retrospectively to take away such a right of consideration. Consequently, it is held that the instructions dated 16.5.1991, which were otherwise clarificatory in nature, remained operative till the same were withdrawn with effect from 17.4.2004. The right of the existing licensed dealers for allotment of alternative sites in the new grain market due to their virtual 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 Hon'ble Supreme Court in the case of Prem Chand Trilok Chand & Ors. v. State of Haryana & Ors. (1985)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”. Reiterating the aforesaid view in Labha Ram & Sons v. State CWP No.7494 of 1997 -: 7 :- of Punjab & Ors., (1985)5 SCC 207, their Lordship 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 licensee to seek allotment of an alternative site in the new grain market was recognized even where the old grain market was established by the Colonization Department. The entitlement of an old licensee for allotment of a plot in the new grain market at a reserve price to be fixed by the respondents, subject to fulfillment of eligibility conditions laid down in the policy dated 1.6.1987 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. No other point has been urged. The observations made herein-above also answer the preliminary objection taken on behalf of the respondents. For the reasons afore-stated, the writ petition is allowed; the impugned order dated 9.9.1996 is quashed and the respondents are directed to reconsider the petitioner's claim for allotment of a plot on reserve price in the new grain market at Jind, as per their policy decision, by including its name in the draw of lots, if any, to be held subject to, however, any re- verification, if so required by the respondents, regarding the petitioner's claim that it has been carrying on its business on the first floor of the CWP No.7494 of 1997 -: 8 :- premises located in the old grain market. The needful shall be done within a period of three months from the date of receipt of a certified copy of this order. Needless to say that till the petitioner's claim is finally settled, no third party rights shall be created qua the plot already kept reserved. March 20, 2009. [ Surya Kant ] kadyan Judge