P 474 e 1 t 7 CWP N013024 of2009 etc 1 vr 40 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARHe DATE OF DECISIOI I l 11 010 1CWP N0013024of2009 1 r Mls ChandgiRam Ram Niwas and others 0 C eeePetitioners I Versus Sl 0 I HaryanaStateAgriculturalMarketing Board and others 1 1r Z Respondents r2 2CWP Nol3141 of2009 t Mls VijayKumar Dinesh Kumar and others I 15 eeePetitioners 01 Cr Versus vawo Z ChiefAdininistrator HaryanaState AgriculturaIMarketing Board and CL others 3eCWPNol4153 of2009 MISDeePakKumar Baru Ram ropl and another W A eeePetitioners Versus HaryanaState AgriculturalMarketing Board 2nd others 1 1 4eCWP No14138 of2009 1 Radhika 2013.02.22 10: 15 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document P 111 175 1 rl CWP Noe13024of2009 etce 2 V 0 Mls Om Parkash SanjayKumar and others eeePetitioners Versus HaryanaStateAgriculturalMarketingBoard and others 5eCWP Nol53110f2009 1 Mls Bhatia TradingCo and others m eeePetitioners 0 Versus 0 I HaryanaState AgriculturalMarketingBoard and others 0 6eCWP No15307 of2009 Z Mls Jamindara TradingCo and others Ct r eeePetitioners 4 Versus CJO HaryanaState AgriculturalMarketing Board and others mw Z ll CORAM HONBLE MRJUSTICE PERMOD KOHLI Presentl MIRavi KapurAdvocate for thepetitioners 1 MrAkshayBhan Advocate Ce AllrGirish AgnihotriSr Advocate with MrNijayPal Advocate for respondents Permod KohliJ Keeping in vlew the common factual and questionsof law thesepetitionsare beingdisposedofbythis common order Radhika 2013.02.22 10: 15 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document W 476 7 4 b SIl 4 CWP N0013024of2009 etc 3 W ll The petitioners in all thesepetitions are licenseeshavingbeengranted licenses for the sale ofgrainsetc Admittedlyall ofthem were operatingin the Old Grain Market at Uklana Mandi District Hissar The HaryanaState AgriculturalMarketing Board lereinafter referredto as respondent Board9establisheda new grain Market at Uklana 110 plotsof the size of 20 x 50 were carved out in theyear 2002 Irlaccordancewith thepolicyof the StateGovernmentit was decided to allot plotsto theexistinglicensees 1 tZ at reservedpriceAs many as 86 existing licenceeswere found eligibleas 0 per the policylnorms fonnulatedby Existinglicensees C0 did not opt for the plots at the reservedpriceprobably on the groundthat i CD 1 thepricefIxed 1S t00 high79 plotswere thus sold in open auction in flrst I phaseand 31 plotswere left In so far as the existingl icenceesare Z concerned onlysuch licencecs were considered l allotment of plots 2 who C were holdinglicensesupto March 1995 Some of the presentpetilioners I though were existinglicenseesbut theyhad obtainedIicensesbetweenthe 08 CO years1995to 2000 and were not foundeligibleunder the norms laiddown Cr me fOr the purpose 31 plots Z were put to draw of lots on reserved Clm pnce on 162005 Only such licenseeswere permittedto participate 111 S draw of lots who had licencesupto 3122000 26 eligiblepersons were allotted plotson reserved priceand 5 persons were allotted plotson the basis of various COUlt directions as lS evident Irom the minutes of the C metin Of the Board held on 26532005some of he petitionersmentioned lll the writ petitionswere found eligibleHowever account of non on theycould not be allottedtheplotsin draw oflots It is alleged that such of the petitionerswho werenot allottedplotseither on account of or at the relevanttime were assuredthatthey Radhika 2013.02.22 10: 15 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 477 7191 0 5 h CWP Nol3024 of2009 etce 4 V 0 would be allottedplots 1 Oll reservedpricein Phase II It is further alleged 1 that Chief Minister of the State had assured to modi the existingpolicy layingdown eligibilityand such of the old licenseeswith five years licence would be considered for draw of lots In the meanwhile the Board decidedto allot the plotsby openauction The date of auction was 1 tlxed on 192008 The Board also took a decjsionon 2332008 to allot plotsto old licenseesof Catcha so as lo revise the j Q policyfor allotment Decision ofthe Board is reproduced hereunder 0 1Regardingallotmentof sholplotsto oId licenseesof 0 I category6iO Kacha Arhityallll the New Grain and C5 I Vegetable Markets The matter was discussedildetail In order to Z make the new markets fully operationalthe old markets may be dewnotiOedThe existingpolicylS defectiveto the extent I 08 that it has not taken into considerationthe factor of D of the old licensees Thus the m Board decidedto Z revlse the existingpolicyto the extent Qm that the eligibilityfor allotmentof plotson basiswill be for all those licenseeswho have four years valid license of 6i 1 Katcha Arhityaon the dateon which the are invited for draw of C lots All otherconditionsshallremain the same 33 Under the aforesaiddecision the old marketswere to be denotifted and the existingiicenseeshavingfour years valid licenceof ii would be eligibl for allotmentof plotson basis The State Government issued notitlcationdated 112008 and substituted Radhika 2013.02.22 10: 15 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 478 19 41 ll CWP N0013024of2009 etc 5 r 11 81 f 11 Rule 3 Sub Rule 6l9for Clause6iii as underl n a 1 1 Only thoseCategory6iil Licensees shall be eligiblefor allotment of plotswho had valid licerise of four years on the dateof inviting for draw of lots 15 In view of the auction hotice for allotment of plotsbypublicauction 1 the aggrievedexistinglicensees filed appealsbefore Appellate Authority ChiefAdministratorHaryana State Marketing Board Sector6 i C2 Panchkula HaryanaIt appears that in view of some oral observations 0 duringthe pendency of the said appealsanotherauction was notified to be 0 I held on 2662009 Aggrieved ofthe same CWP No9355 of2009 was tlled CD 1 I before thisCourtl the said writ petitionauction was held subjectto the ultimate outcome of the writ petitionDuringthe pendency of the writ Z petition Chief Administratordismissed the appealvide order dated 7 0 2202009 In Vlew of the decision of the appellateauthoritythe writ I petition was dismissed as withdrawn with Iibertyto the order of cr5 m the appellateauthorityvide order dated 18 2009 passedby this Court C 7 The Appellate order dated 11009 1S subjectmatter of Z in these writ petitions In addition to the aforesaidorder tl the petitionershave also advertisementdated 3009 whereby open auction of the plots was scheduled to be held on 26009 bn conditionsspecified therein C The contentionraised bythe petitioners ts tWOfoldl 6a The existing licenseeshave a rightto allotmentof theplotson the fixed price and o9all thosepersonswho have existinglicenses operational for the last four years are eligiblefor siich allotmentln terms of the decisionof the 1 dated1 2008 Radhika 2013.02.22 10: 15 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 479 1 A 1 CWP N013024 of2009 etc 1yi nE7 6 6r h While issuingnotice of motion vide order dated 1 21 2009 this Court haddirectedthe respondents to keepreservedplots equalto the wnt petitionerssubjectto Ultimateoutcome of the writ petitions The claim of the petitionersfOr allotmentof plotsat New Grain Market have been seriouslycontestedby respondents inter alia on the grounds6i9 ofthese writetitions is questioned m 0 ln view ofthe of alternativestatutoryremedyofrevision before 0 the StateGovernmentunder Section40 of thePunjab 0 Agricultural Produce I MarketAc 1961 hereinafterreferredto as the 1961 Actl 629Thain 0 I the year 1997 the respondentBoardframed rules namelyHaryana AgriculturalMarketing Board Sale of Immovable Z PropertyRules 1997 r2 hereinafterreferredto as the 1997 Ruleslwhereunder it is providedthat r the immovablepropertiesbe sold onlybypublic auctlon The aforesaid I 08 Rules were however replacedby HaryanaState Agricultural 0 Board 6Saleof ImmovablePropertyRules 2000 referred to as Wm the Rules20009 Z 8Y Of hVlll four years licenseat the Clw timeof considerationThe relevantamendedrules of Rule 2000 are noticed as under1 l9All immovabieproperties tn lhe markels 1 C bythe Board or MarketCommittees Shallbe disposed of by way of auction in accordance with the provisionsof theserules The shopplotswill be allotted to the old licenseesof category iil of oId markets which 1S to be denotifled resulting in 1 of such licenseddealersof category6li on Radhika 2013.02.22 10: 15 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 4 80 1 CWP N013024of2009 etce 7 V k free hold basis for conductingbusinessof sale and purchaseof agriculturalproduce I Il the new markelS on the terms and conditionsnamely i1 In the marketswhere some auction have already been held the allotment shall be made on the basis of the averagepriceof the Iastauction i0In the marketswhere no auction has so far beenheld 1 the allotmentpriceshall be fixed at thirtyflve per cent 0 above the reserve price The reserve price shall be C0 I worked out as per the formulateapprovedby the 1 CD l e I Board vide its resolutiondatedthe first June 1987 or 1 any other fonnulateto be approvedbythe Board from Z 2 tlme to time iiiIOnlythose categoryii9Iicenseesshall be eligibilefor X C6 allotmentof plotswho had valid licenseof two years OO on the date of flrst auction the case of mandis 1 1I1 m Z where some auctions havealreadybeenheld In the Qa case of already mandis whereno auctions haveSo far beenheld the licenseeshould have valid licenseof categoryiil for at leastfive yearsas on 1 January20001 the case of Mandis to be C 111future the licenseeshouldhave at Ieast two years 1 licnse of categoryii9 on the date of issuance of notitlcationunder Section4 of the Land Auction Act 1894 Act of 18941or the dateof transferof land to the Market Committee if the land 1S obtained Radhika 2013.02.22 10: 15 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 481 1 1 1 CWP N0013024of2009 etc 8 74 t V0 otherwise as thecase may be i 4 ivsuch licensees must have paidmarket fee of at least Rs50001 annuallyfor the last two Provided that in case of a category6iil licensee who does not pay market fees himself his annual turnover duringthe last two vears should be at least rupeestwo lakh flftythousand 35 1 1 r Clause 6iiil of Sub Rule of Rule 3 was further amended vide 0 Notiflcationdated 192009 wherebysuch of Categoryii licenseeswere C I madeeligiblefor allotment of plotswho had valid licence of four yearson C9 the datefixed for inviting for draw oflots I haveheardlearned counsel for partiesIt is not in disputethat all the Z t2 petitioners are existinglicenseesand were carrying on their businessin the Q old grainmarket lll Uldana Il 1S equallyadmitted positionthat the govemment decided to wind up the existing grainmarket and to establish C6 C a new grain market In the first phase 110 plotsofthe Slze of 20x 50 mm were Carvedout in the year 2002 In terms of laid down Z norms under 1997 rules old licenceeswith five years Qm were eligibleOll reserved price However a11the 86 eligiblelicenseesdid not opt for plotson the reserved price meant for old licensees on the pleathat the price lS t00 high Petitionersin CWP N013141of 2009 are all originaleligiblelicenseeswho C re81sedthe offer at the fixed price Petitionersin CWP Nos3024 15307 and 15311 of 2009 are those who were grantedlicencesafter 1995 but bfOre October 2000 whereaspetitioners in CWP Nos4138 and 14153of 2009 have beengrantedlicensesbetween2001 to 2005 The flrst draw of lots was to be held for 86 eligiblelicenseeson 16122002 None of them Radhika 2013.02.22 10: 15 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document i 41 482 CWP No13024 of2009 etc S 9 v 1 came forward to seek allotmenton reservedprice Second draw of lots again for Old eligibielicensees was scheduled lo be held on 241 200 Againnone of them turned up The Board conducted he open auction on 253003 when 16 plotswere Sold Another open auction was held on 1592004 wherein64 plotswere sold out of 111 plotspen auction for remaining 31 plotswas scheduledto be eheldOll 82005 The 9 same was cancelled on aCcount of representationof old licensees The 1 tr decidedto allot 31 plotsOll 0 reserved price to old licensees All the petitionersexcept CO petitioners111 I CWP No14153 of 2009 out of total 114 applicantswere foundeligible CD 1 amongst 86 licenseesunder Rule 3 19xiil 4 I Since numberofplotswere less 1 than the eligiblelicenseesdraw of lots was resbrtedto and all the 31 plots Z 2 were sold on the reserved priceby draw of lot held 1682005 The on Ct dispute seems to havearisen when secondphaseofNN Grain Marketwas I a5 carved out with 116 plots notilled theseplots for auction OO vide AnnexureP9 Such of the Cr petitionerswho were eligiblewhen the first V allotmentwas made on ftxed Z price but did not opt seemsto havechanged Ll their mind and becameinterestedfor allotmentof plotsRule 3 ll xiil providesfor allotmentof plotsto theeligiblelicensees in the order of their seniorityto ii9 though the allotmentof numberof plotsWill be decidedthrough draw of lots had fixed periodof four vears C as qualifying periodof a licence for entitlementfor aallotmenton ftxed price as on the date of lssuanceof the notice for draw of lots It is the case of the respondents that the second phaseiS not a new grainmarket but onlyan extension of the originalgrainmarket The eligiblelicenseeswere allottedplotson the basis Radhika 2013.02.22 10: 15 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 4 83 1 1 CWP N0013024of2009 etc n 10 11 0 ofreserved priceon 1682005 which can be construedto be the crucial 11 0 or 11 t 1 the relevant date for the purpose of allotmentof plotsto the old licensees Even when 31 plotswere allotted such of the licenseeswho had earlier declined the offer on the reservedpricewere allowed to participatein the draw of lots and have been allotted the plots Similar treatment cannot be denied to other old licenseesat least to those who were eligibleon 1682005 The rightof theexistinglicenseeshas also been consideredby 1 C Honble Supreme Court in case of Mls Labha Ram and sons and others 0 VSe State of Punjaband others JT 1998 SC 636 wherein it has been 0 I observedas under2 CD 101t is noted that did not doubt I the correctness of the principlethat Governmenthas an inherent to provideall the licensed dealers Z sucient accommodationfor carrying on their trade But can it be said that such obligationStands merelyby Ir allowing them to competewith outsidersin the open auctiol lt e must be rememberedthat even without any special I prOVlSlOllthe existing traders can have such a right to a5 competewith rest of others We find much force in the contentionof thelearnedcounselfor theappelIant 0 that merelyproviding an opportunlty to competewith the rest Cr of the publicfor gettingaccommodationin the new Market 1S am not sufficient to the inherent Z of the Govnment to providethe existing tradersat the new market lm area hence it is difflcult to concur with the view adopted 111 ChandRam Ram Chand vs e XXX XXX xxx XXX 15t is easyto contendthat theexisting traders can still operatefrom their old placesbut then for the conducl of their Cen haveto come to new Mandi It would mean that theyhave to come to the new Mandis for conduct of their routine businessbut for businesstheycould continue to do the same at old placesTheact remains that any trader would 1ike to conduct his businessof sale and purchaseof agricultural produceat theplatform close to his shop 37 Petitionersin all these writ petitionsexceptpetitionersin CWP Nol4153 of2009 were eligibleWhen plotswere allottedon flxed price Radhika 2013.02.22 10: 15 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 8 4744 713 4 84 1 6 1A 1 r 1 CWP N013024 of2009 etce 11 41 n p V 93 However due to lesser number of plotstheycould not be allotted plots 9t Now more plotshave been carved out in this New Grain Market Their rightcannot be defeatedby passageof time or the govemmentdecides to allot the plotsby open auction with the sole objectof earningmore revenue Admittedly no sale is in the old grainmarket thesame havingbeen deenotified Thus the exisling1icenseescannot operatefrom theold premises as has beenobservedbytheHonble Supreme Cour It has 1 C come on record that out of 116 plotscarved out 111Phase Il 53 plotswere 4 0 sold byopen auction on 2602009 Thus 63 plotsare still available These 0 I plotscan be allotted to thepetitionersexceptpetitioners in CWP N014153 CD of 2009 who obtained licences onlyin the year 2004 and had not I the requisiteperiodof license Rule 3 6ll of the 2000 Rules further Z ptpvidesfor allotmentof plotswhere some auction hasalreadytaken place on the basis ofaverage priceofthe last auction wherethe old marketstands X denotified This rule providesa valid rational and reasonable basis for 08 10 allotmentof plotson fixed price Petitionersexceptin CWP No4153 of 1 7 2009 were eligible on the date of auction ie 1682005 Thev are entitledto Z be consideredfor allotment tl This petition lS accordinglydisposedof with the following directions iIPetitioners in all the writ petitionsexceptpetitioners in CWP No4153 of r 2009 shall be considered for allotment of plotslll New Grain Market on fixed priceto be determinedln terms of Rule 3 619of 2000 Rules by e utilizing 63 plots111New Grain Market The processof consideration shall be wirhin a periodof threemonths Successfulpeloners IIl draw of lots will be allotted the plotswithin one month thereafter on Radhika 2013.02.22 10: 15 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document 4 85 A 4 CWP N0013024of2009 etce 12 r Y paymentof the requisiteprice or any such other manner as may be prescribedunder Rules ofthe CWP Nos3024 14138 15307 15311 and 13141 of 2009 are allowed in the abovemanner whereasCWP No14153 of2009 is dismissed 0 000 L3 PERMOD KOHLlI mm JUDGE m t 111102010 MFK 0 1 1 0 NOTE Whether to be referred to Reporteror notYES C5 I Z f I4 1 2 e WlVe C2 r 08 010 Weo Z Il d ak Radhika 2013.02.22 10: 15 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:26 I attest to the accuracy and integrity of this document