CIVIL WRIT JURISDICTION CASE No.1425 OF 1993 With CIVIL WRIT JURISDICTION CASE NO.3926 OF 1999 *** In the matter of applications under Articles 226 & 227 of the Constitution of India. *** (In CWJC No. 1425 of 1993) Mangal Prasad, son of Shri Sarjug Shah, resident of Sarkari Bazar, P.S. & Town Chapra, Dist. Saran..................................Petitioner Versus 1. Bihar State Agricultural Marketing Board, Panth Bhawan, Bailey Road, Patna through its Managing Director 2. The Agricultural Produce Market Committee, Chapra through its Secretary.................Respondents *** (In CWJC No.3926 of 1999) 1. Dilip Kumar Sahu, Son of Dhanik Chandra Sahu, Proprietor of M/s Kamla Stores 2. Moti Rai, Late Ram Chandra Rai , Proprietor of M/s Adarsh Kirana Bhandar 3. Raj Kumar Hisaria, son of Gauri Shankar Hisaria, Proprietor of M/s Hisaria Trading Company 4. Kanhayia Prasad, son of Mewa Sao, Proprietor of M/s India Traders 5. Yogendra Prasad, son of Mahendra Prasad, Proprietor of M/s Bankatesh Oil Industries 6. Kamta Prasad, son of Laxmi Sah, Proprietor of M/s Laxmi Flour Mills 7. Hari Lal, Son of Agnu Mahto, Proprietor of M/s Shiv Jai Stores, All are of Begusarai, P.S. Begusarai and District Begusarai --Petitioners Versus 1. The Agricultural Produce Market Committee, Begusarai, P.S. Begusarai, District Begusarai 2. The Market Secretary, Begusarai Agricultural Produce Market Committee, P.S. Begusarai, District Begusarai................Respondents *** For The Petitioners: Mr. N.K. Agrawal, Sr. Advocate M/s D.N. Tiwary & Saket Tiwary, Advocates For the Respondents: Mr. B.K. Singh „Chouhan‟ with Mr. Binod Kumar Singh, Advocates *** P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE JAYANANDAN SINGH *** 2 S.K.Katriar, J. Heard learned counsel for the parties. 2. The two writ petitions seek a common direction to their respective Bihar State Agricultural Produce Market Committee, that the rental for the premises in occupation of the petitioners in the market-yard at Chapra and Begusarai may not be realized. 3. A brief statement of facts essential for disposal of the writ petitions may be indicated. The facts will be derived from CWJC No. 1425 of 1993, except by specific reference to the analogous case. The petitioner was given occupation of a shop measuring 799 sq. ft., situate in the market-yard at Chapra. He got possession of the same in the year 1981. It was decided in 1989 that the shopkeepers in possession of the shops in the market-yard shall have to pay rental at the rate of Rs.1.25/- per square feet from the date of occupation. The petitioner had occupied the premises in 1981 and was, therefore, called upon to make payment of arrears of rent as well as future rent. The petitioner did not comply with the same leading to the impugned order dated 14.05.1992 (Annexure-3), whereby he was called upon to deposit the amount of arrears stated therein. The petitioner challenges the same on the sole ground that he was already paying market fee at the rate of 1% of the sale produce which includes the facility of the premises in his occupation. In other words, it is submitted that the petitioner can not be called upon to pay rental in addition to the market- fee. He relies upon the following judgments:- 3 (i) In the case of M/s Dwarkadas Marfatia and Sons Vs. Board of Trustee of the Port of Bombay (AIR 1989 Supreme Court 1642; (ii) In the case of M/s Ganesh Trading Co. & ors. Vs. The Bihar State Agricultural Marketing Board & ors. [1999 (2) PLJR 405]. 4. Learned counsel for the Bihar State Agricultural Marketing Board submits that it was made clear to the petitioner and all other occupants that the rental shall be over and above the market fee. He next submits that the Board, being a statutory authority, is duty bound to realize just and reasonable rent. He relies upon the judgment of a Division Bench of this Court in the case of M/s Jagarnath Durga Dutta & Anr. Vs. Bihar Agricultural Produce Market Committee & ors. [2003 (4) PLJR 251]. 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. The position is quite clear. We would first of all like to state that the Bihar Agricultural Produce Market Act, 1960 (hereinafter referred to as „1960 Act‟) has since been repealed by the Bihar Agricultural Produce Market (Repeal Act), 2006 (Bihar Act of 2006). Section 3 of the Act, 1960 reads as follows:- “3. Notification of intention of exercising control over purchase, sale, storage and processing of agricultural produce in specified area, - (1) Notwithstanding anything to the contrary contained in any other Act for the time being in force, the State Government may, by notification, declare its intention of regulating the purchase sale, storage and processing of such agricultural produce and in such 4 area, as may be specified in the notification. (2) A notification under sub- section (1) shall state that any objection or suggestion which may be received by the State Government within a period of not less than two months to be specified in the notification, shall be considered by the State Government.” 5.1. Section 4 of the Repeal Act of 2006 reads as follows:- “4) Assets and liabilities of the Board to vest in the State Government- (i) On and from the date of coming into force of this Act, all assets, including moveable and immoveable owned, possessed or otherwise claimed to belong to the Board or the committee or samiti shall vest in the State Government. All liabilities including statutory and non-statutory, secured or unsecured shall be the liability of the State Government. (ii) Immediately after coming into force of this Act, „Administrator‟ and „Special Officer‟ shall take possession of all the assets immovable including land, building and such other assets which is owned or possessed by the Board or the committee or over which Board or Committee has a legal claim. „Administrator‟ or the „Special Officer‟ as the case may be shall take custody of all moveable including liquid assets in Banks, Post Office, or wherever it is kept, cash in hand etc. They shall take possession of other moveable assets including vehicles, equipments, plants, furnitures etc. (iii) Immovable and moveable assets in possession of „Administrator‟ or „Special Officer‟ as the case may be shall remain in their possession for and on behalf of State Government. 5 (iv) Administrator shall be competent to issue such direction as is deemed necessary and expedient to secure safe possession of immovable and movable assets and such direction shall be binding on the special officer and all others. (v) The State Government may issue such direction, order, instructions as in deemed necessary and expedient to maintain security and safety of assets or to prevent any kind of injury, damage or dissipation of assets and such direction, order or instruction shall be binding on all concerned including Administrator and Special Officer. (vi) All immovable assets of the Board or the Committee shall be utilized only for agriculture and farmer relating activities including establishment of agro-processing industries, horticulture, agro- service, agricultural marketing storage of agricultural produce.” 5.2. It is thus evident that Section 4 of 2006 Act provides that assets and liabilities of the Board shall vest in the State Government after repeal of 1960 Act. It is evident on a plain reading of Section 3 of the Act that the appropriate authority shall continue to realize rental. 6. The issue fell for the consideration of this Court in M/s Jagarnath Durga Dutta (supra), wherein it has been held that the levy of market fee is in addition to the occupational charge. In other words, the Board or the Market Committee, or its authorities under 2006 Act, are fully entitled to realize rental for the premises in question over and above the market fee. Paragraph 13 of the judgment is reproduced hereinbelow:- 6 “A few words about the levy. Occupational charges for occupation of shops & godowns at market yards is completely different from market fee payable under Section 27 of the Act or licence fee payable under Rule 98 of the Rules. Levy of occupation charge is for occupation of shops, godowns etc. The Market Committee is under no obligation to construct Warehouses or Shops and Godowns for the traders. It can not be treated as part of quid pro quo- an element of licence fee under Section 29 of the Act. The traders can not expect and insist on free-of-charge occupation of the shops, godowns etc. at the market yard. Another aspect is that shops, godowns etc. are limited in number. And it will amount to discrimination if some of them only are allowed free occupation of the shops, godowns etc. leaving the rest to fend for themselves. The right of the Market Committee to realize occupational charges or „rent‟ in the circumstances can not be challenged.” 7. We find one further justification for realization of the rental in addition to the market fee. As stated hereinabove, 1960 Act has been repealed. Therefore, there may perhaps be no longer the question of payment of market fee. Therefore, if the contentions advanced on behalf of the petitioner were upheld, the petitioner would continue to be in occupation of the premises without payment of rental. The contentions advanced on behalf of the petitioner are rejected. 8. The question of reasonableness of rate of rent has also to be considered. Reasonableness of rent for occupation of premises for commercial purposes was considered by the Supreme Court in M/s Dwarkadas Marfatia and Sons (surpa) wherein it has been observed that rent should be reasonable and not exploitative. 7 Paragraph 27 of the judgment is reproduced hereinbelow:- “We are inclined to accept the submission that every activity of a public authority especially in the background of the assumption on which such authority enjoys immunity from the rigours of the Rent Act, must be informed by reason and guided by the public interest. All exercise of discretion or power by public authorities as the respondent, in respect of dealing with tenants in respect of which they have been treated separately and distinctly from other landlords on the assumption that they would not act as private landlords must be judged by that standard. If a governmental policy or action even in contractual matters fails to satisfy the test of reasonableness, it would be unconstitutional. See the observations of this Court in Kasturi Lal Lakshmi Reddy (AIR 1980 SC 1992) (supra), and R.D. Shetty v. International Airport Authority of India, (1979) 3 SCR 1014 at p. 1034 : (AIR 1979 SC 1628 at pp. 1637- 38).” 9. Paragraph 18 of the judgment in M/s Jagarnath Durga Dutta (surpa) is also reproduced hereinbelow:- “I have already observed above that in view of the relevant provisions of the Market Act relating to relationship between the Market Committee and the Marketing Board, the all pervasive control of the Board over the Market Committees cannot be doubted. In fact this is what the Full Bench in the case of Dhirendra Kumar Akela (supra) had also observed. By the impugned letter dated 2.9.88 the Board simply revised the rates. The petitioners admittedly were in occupation of the premises and paying the same amount for several years. It is relevant to mention that before fixing the revised rates on 8.4.88 the rent/occupational charges had been re-fixed but on receipt of the objections by different traders‟ 8 organizations the matter was reconsidered and the rates were modified. As per the revised rates the traders are required to pay the rent/occupational charges @ 1.25 per square feet with respect to the shops and godowns situate at the market yards at Patna City, Musallahpur, Muzaffarpur, Dhanbad, Bokaro, Ranchi & Jamshedpur falling in category A and, similarly, rent/occupational charges has been fixed @ Rs.1.00, Rs.0.70, and Rs.0.50 with respect to shops and godowns situate at Market yards falling in categories B, C and D respectively. The categorization is on the basis of trading potential. It goes without saying that trading potential at different places/market yards is not same and therefore the classification cannot be said to be arbitrary. It would not be out of place to mention here that the rent/occupational charges were again enhanced during pendency of earlier cases by letter no.597 dated 5.2.98 i.e. after about ten years of the previous revision on account of rise in cost of construction and maintenance of market yards, giving rise to another batch of writ petitions in 1999.” 10. There is one more aspect of the matter. This rate of rental has continued ever since 1981 till date. Continuing the same rate of rent ever since the date of occupation in 1981 is too reasonable. On consideration of the whole matter, it appears to us that payment of rental within the busiest area of the township of Chapra at the rate of 1.25 per sq. ft. since 1981 is just and reasonable. In fact, the petitioner cannot make a grievance about the rate of rental. 11. C.W.J.C.No.3926 of 1999 is at the instance of 7 petitioners, who are in occupation of separate shops in the market yard at Begusarai where rental has been higher because of higher trade potential. We 9 consider the same also to be just, proper and reasonable. 12. In the result, there is no merit in these writ petitions and are dismissed. The authorities shall be entitled to recover the unpaid amount of rental along with simple interest at the rate of six per cent from the due dates till the date of realization. (S. K. Katriar, J.) J. N. Singh, J. I agree (J. N. Singh, J.) Patna High Court, Patna The 28th July, 2010 N.A.F.R. (B.T.)