IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. L.P.A. No.855 of 2011 (O&M) Date of decision: 18.5.2011 Haryana State Agricultural Marketing Board and another -----Appellant. Vs. M/s Chandgi Ram Ram Niwas & others -----Respondents. CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJESH BINDAL Present:- Mr. Partap Singh, Advocate for the appellants. --- 1. Whether the reporters of local newspapers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the digest or not? ADARSH KUMAR GOEL, ACJ 1. This appeal has been preferred against order of learned Single Judge directing the writ petitioners except those in CWP No.14153 of 2009 to be considered for allotment of plots in New Grain Market at a reserved price determined as per rules. 2. The writ petitioners were carrying on their business in Old Grain Market, Uklana Mandi, District Hisar. The appellant Marketing Board, a creature of Punjab Agricultural Produce L.P.A. No.855 of 2011 Markets Act, 1961, decided to establish a new Grain Market. Though decision to allot plots to existing licencees at reserved price was taken, the licencees raised an objection that the reserved price was too high. The appellants sold some of the plots in open auction except 31 plots which were allotted at reserved price. The left out licencees represented for allotment of plots at reasonable price on the ground that they were displaced from the old market and were entitled to reasonable alternative arrangement as per decision of the Hon’ble Supreme Court in M/s Labha Ram and sons and others v. State of Punjab and others AIR 1998 SC 2086. Since the appellants did not accept their demand and proposed to auction the available of plots, the aggrieved licencees approached this Court. The appellants contested their claim on the ground that since initially they did not opt for allotment at reserved price, they had no right to be considered for allotment at reserved price. 3. Learned Single Judge upheld the plea of the writ petitioners as follows:- “I have heard learned counsel for parties. It is not in dispute that all the petitioners are existing licensees and were carrying on their business in the old grain market in Uklana. It is equally admitted position that the government decided to wind up the existing grain market and to establish a new grain market. In the first phase, 100 plots of the size of 20' x 2 L.P.A. No.855 of 2011 50' were carved out in the year 2002. In terms of laid down norms under 1997 rules old licencees with five years were eligible on reserved price. However, all the 86 eligible licensees did not opt for plots on the reserved price meant for old licensees on the plea that the price is too high. Petitioners in CWP No.13141 of 2009 are all original eligible licensees who refused the offer at the fixed price. Petitioners in CWP Nos.13024, 15307 and 15311 of 2009 are those who were granted licences after 1995, but before October, 2000 whereas petitioners in CWP Nos.14138 and 14153 of 2009 have been granted licenses between 2001 to 2005. The first draw of lots was to be held for 86 eligible licensees on 16.12.2002. None of them came forward to seek allotment on reserved price. Second draw of lots again for old eligible licensees was scheduled to be held on 24.3.2003. Again none of them turned up. The Board accordingly conducted the open auction on 25.3.2003 when 16 plots were sold. Another open auction was held on 15.9.2004 wherein 64 plots were sold out of 111 plots. Open auction for remaining 31 plots was scheduled to be held on 8.6.2005. The same was cancelled on account of representation of old licensees. The respondent-Board accordingly decided to allot the remaining 31 plots on reserved price to old licensees. All the petitioners, except petitioners in CWP No.14153 of 2009, out of total 114 applicants were found eligible amongst 86 licensees under Rule 3 (1) (xii). Since number of plots were less than the eligible licensees, draw of lots was resorted to and all the 31 plots were sold on the reserved price by draw of lot held on 16.8.2005. The dispute 3 L.P.A. No.855 of 2011 seems to have arisen when second phase of New Grain Market was carved out with 116 plots. Respondents notified these plots for auction vide Annexure P-9. Such of the petitioners who were eligible when the first allotment was made on fixed price, but did not opt, seems to have changed their mind and became interested for allotment of plots. Rule 3 (1) (xii) provides for allotment of plots to the eligible licensees in the order of their seniority to be determined on the basis of their period of licence of Category (ii), though the allotment of number of plots will be decided through draw of lots. Respondents had fixed period of four years as qualifying period of licence for entitlement for allotment on fixed price as on the date of issuance of the notice for draw of lots. It is the case of the respondents that the second phase is not a new grain market, but only an extension of the original grain market. The eligible licensees were allotted plots on the basis of reserved price on 16.8.2005 which can be construed to be the crucial or the relevant date for the purpose of allotment of plots to the old licensees. Even when 31 plots were allotted, such of the licensees who had earlier declined the offer on the reserved price were allowed to participate in the draw of lots and have been allotted the plots. Similar treatment cannot be denied to other old licensees at least to those who were eligible on 16.8.2005. The right of the existing licensees has also been considered by Hon'ble Supreme Court in case of M/s Labha Ram and sons and others vs. State of Punjab and others, JT 1998 (3) SC 636 wherein it has been observed as under:- 4 L.P.A. No.855 of 2011 “10.It is noted that learned judges did not doubt the correctness of the principle that Government has an inherent obligation to provide all the licensed dealers sufficient accommodation for carrying on their trade. But can it be said that such obligation stands discharged merely by allowing them to compete with outsiders in the open auction. It must be remembered that even without any special provision the existing traders can have such a right to compete with rest of others. We find much force in the contention of the learned counsel for the appellant that merely providing an opportunity 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 the existing traders at the new market area hence, it is difficult to concur with the view adopted in Chand Ram Ram Chand vs. State of Punjab (Supra). XXX XXX XXX XXX 15. It is easy to contend that the existing traders can still operate from their old places but then for the conduct of their business for sale of agricultural produce they have to come to new Mandi. It would mean that they have to come to the new Mandis for conduct of their routine business but for 5 L.P.A. No.855 of 2011 rudimentary business they could continue to do the same at old places. The fact remains that any trader would like to conduct his business of sale and purchase of agricultural produce at the platform close to his shop.” Petitioners in all these writ petitions except petitioners in CWP No.14153 of 2009 were eligible when plots were allotted on fixed price. However, due to lesser number of plots, they could not be allotted plots. Now more plots have been carved out in this New Grain Market. Their right cannot be defeated by passage of time or the government decides to allot the plots by open auction with the sole object of earning more revenue. Admittedly, no sale is permissible in the old grain market, the same having been de-notified. Thus, the existing licensees cannot operate from the old premises as has been observed by the Hon'ble Supreme Court. It has come on record that out of 116 plots carved out in Phase II, 53 plots were sold by open auction on 26.6.2009. Thus, 63 plots are still available. These plots can be allotted to the petitioners, except petitioners in CWP No.14153 of 2009 who obtained licences only in the year 2004 and had not completed the requisite period of license. Rule 3 (1) of the 2000 Rules further provides for allotment of plots where some auction has already taken place on the basis of average price of the last auction where the old market stands de- notified. This rule provides a valid, rational and reasonable basis for allotment of plots on fixed price. Petitioners except in CWP No.14153 of 2009 were 6 L.P.A. No.855 of 2011 eligible on the date of auction i.e. 16.8.2005. They are entitled to be considered for allotment. This petition is accordingly disposed of with the following directions:- (i) Petitioners in all the writ petitions except petitioners in CWP No.14153 of 2009 shall be considered for allotment of plots in New Grain Market on fixed price to be determined in terms of Rule 3 (1) of 2000 Rules by utilizing 63 plots in New Grain Market. The process of consideration shall be completed within a period of three months. Successful petitioners in draw of lots will be allotted the plots within one month thereafter on payment of the requisite price or any such other manner as may be prescribed under Rules of the respondent-Board. CWP Nos.13024, 14138, 15307, 15311 and 13141 of 2009 are allowed in the above manner whereas CWP No.14153 of 2009 is dismissed.” 4. We have heard learned counsel for the appellants. 5. Learned counsel for the appellants submits that the licencees having been given option once and they having failed to make choice for allotment of plots at reserved price, the appellants were not required to wait in perpetuity and were entitled to sell the available plots by auction. 6. We are unable to accept the submission. While closing the old market and setting up a new one, rights of the old licencees could not be ignored and they could not be placed at 7 L.P.A. No.855 of 2011 par with other persons interested in purchasing the plots. Though they had raised objection on earlier occasion to the reserved price, if the plots were available, their claim could not be ignored as rightly held by learned Single Judge. 7. No interference is, thus, called for. The appeal is dismissed. (ADARSH KUMAR GOEL) ACTING CHIEF JUSTICE May 18, 2011 ( RAJESH BINDAL ) Ashwani JUDGE 8