CIVIL WRIT JURISDICTION CASE No.11188 OF 2000 In the matter of an application under Article 226 of the Constitution of India. ______ 1. M/S. Kunjlal Madanlal, a Proprietorship firm having its place of business at Shop No. A/4, Krishi Utpadan Bazar Samiti, Shivdhara, P.S. Lal Bagh, District – Darbhanga through its Proprietor Shyam Sundar, son of late Madanlal Jasrajpuria. 2. M/S.Bam Bam Bhandar, a Partnership firm having its place of business at Shop No. A/9, Krishi Utpadan Bazar Samiti, Shivdhara, P.S. Lal Bagh, District – Darbhanga through its Partner Kishun Dev Sah, son of Shri Sukhdeo Sah. 3. M/S. Satyanarayan Ashok Kumar, a Proprietorship firm having its place of business at Shop No. B/37, Krishi Utpadan Bazar Samiti, Shivdhara, P.S. Lal Bagh, District – Darbhanga through its Proprietor Pramod Kumar Pansari, Son of late Satya Narain Pansari. 4. M/S. Baidyanath Nayak, a Partnership firm having its place of business at Shop No.D/15, Krishi Utpadan Bazar Samiti, Shivdhara, P.S. Lal Bagh, District – Darbhanga through its Proprietor Jaganath Prasad, son of Ram Chandra Nayak. 5. M/S. Bansidhar Agrawal, a Proprietorship firm having its place of business at Shop No. A/18, Krishi Utpadan Bazar Samiti, Shivdhara, P.S. Lal Bagh, District – Darbhanga through its Proprietor Badri Prasad son of Bansi Dhar Mahansaria. _____________ Petitioners Versus 1. The Bihar State Agricultural Marketing Board, Pant Bhawan, Bailey Road, Patna through its Managing Director. 2. The Managing Director, Bihar State Agricultural Marketing Board, Pant Bhawan, Bailey Road, Patna. 3. The Agriculture Produce Market Committee, Shivdhara, Darbhanga through its Secretary. 4. The Secretary, Agriculture Produce Market Committee, Shivdhara, Darbhanga. ___________ Respondents 2 For the petitioners : M/S. S D Sanjay and Akash Chaturvedi. For the respondents : M/S. B K singh ‘Chauhan’ and Binod Kumar singh. _______ P R E S E N T THE HON'BLE MR. JUSTICE AJAY KUMAR TRIPATHI Ajay Kumar Tripathi,J. All these petitioners by virtue of a lease agreement entered between them and the erstwhile Agriculture Produce Market Committee, Darbhanga were allotted certain shops in the market yards. At the relevant time rents had come to be fixed for occupation of the shops allotted to them. A lease agreement and the terms therein is available on record as Annexure-1 to the writ application. 2. There is no dispute that after the lease agreement entered some time in the year 1986, the petitioners have continued to occupy the premises and carried out their business and activity in the market yard. Subsequently vide a communication dated 21.9.2000, contained in Annexure-3, the Managing Director directed all the market committees that the adhoc arrangement for collection of rent from all those persons who have been allotted shops / godowns and other facilities of 3 similar kind has been completely discontinued and now they would be charged rent on a specified amount. From Annexure-3 it is evident that for the period 1.1.1990 to 30.11.1997 the amount was fixed at Rs.1/- per sq. feet and from 11.12.1997, Rs.1.75 per sq. feet. This decision contained in Annexure-3 is under challenge in the present writ application. 3. Submission of the learned counsel representing the petitioners is that this unilateral decision of revision is an arbitrary decision which cannot be allowed to be upheld or enforced against the petitioners. The second alternative argument is that there is no concept of any rent to be charged under the Market Act and therefore, the demand by the respondents on a specified amount as rent for the shops is misplaced. Yet another submission is that it is incumbent upon the market committees to provide all the facilities within the market area to the traders to carry out sale and purchase of notified commodities and providing shops and godowns is part and parcel of the obligation of market committees. If market fee is paid by a trader, then all these facilities should be included in the same. 4 The final alternative argument is that even if requisite power is accepted to enhance the rent the same cannot be done from retrospective effect. 4. Though no counter affidavit has been filed on behalf of the respondent erstwhile Bihar State Agricultural Marketing Board, which now stands dissolved by virtue of a Repeal Act enacted in the year 2006, assistance is rendered by the learned counsel representing the erstwhile Marketing Board on the issue. 5. His primary and first submission is that the right & liability between the petitioners and respondents flows from the lease agreement entered between them. The lease agreement does lay down provisions for charging rent for the allotted premises. No shops or godowns can be allotted to a trader gratis. The market fee which is charged is charged for other services which are rendered by the market committee for facilitating sale and purchase of the notified goods and it is not open to the petitioners to challenge the lease agreement by way of a writ application in the garb of revised notification of rent as contained in Annexure-3. The relationship of the parties will be governed by either the substantive provisions of the Transfer of Property Act or in the alternative the terms 5 and conditions of lease agreement. There is a provision for arbitration and if the petitioners feel that the unilateral enhancement of rent may be from a retrospective date, is in breach of the lease agreement, they have remedy embedded in the lease agreement itself. 6. Having heard rival contentions and the propositions urged at the bar on the dispute, the Court has no hesitation in recording that the challenge thrown by the petitioners to the powers of the market committee to revise rent, cannot be decided on the touchstone and provisions of the Bihar Agriculture Produce Market Act. The right and duty of the lessor and lessee flows from the agreement contained in annexure-1. If any of the parties feel that there is a breach of the lease agreement, remedy is available under common law or they may take recourse to the provisions relating to arbitration in this regard. 7. The factual position being what they are, the writ application is dismissed. Petitioners are relegated to either invoke the arbitration clause on the issue or take recourse to common law remedy if available to them in this regard. 6 8. It is however clarified that dismissal of the writ application is not a reflection on the merit of the dispute which will be decided on its own terms by the competent forum, after hearing the parties in this regard. (Ajay Kumar Tripathi, J) Patna High Court: The 13th April, 2010. R.K.Pathak (NAFR)