1 HIGH COURT OF UTTARAKHAND, AT NAINITAL Special Appeal No.266 of 2009 M/s Harish Singh Bachi Singh & Co. and others … Appellants Versus Director, Mandi Samiti, Navin Mandi, Haldwani, District Nainital … Respondents AND Special Appeal No.272 of 2009 Alu Phal Aarhti Vyapari Association Navin Mandi, Haldwani District Nainital … Appellant Versus M/s Harish Singh Bachi Singh & Co. and others … Respondents Dated:- 02nd July, 2010 Coram: Hon. Tarun Agarwala, J. Hon. B. C. Kandpal, J. Hon’ble Tarun Agarwala, J. (Oral) Since both the special appeals raise a common issue, the same is being decided together. 2. Heard Mr. Manoj Tiwari, the learned senior counsel assisted by Mr. Alok Mehra, the learned counsel for the appellant in Special Appeal No.266 of 2009, Mr. Lalit Belwal, the learned counsel for the appellant Alu Phal Aahti Vyapari Association in Special Appeal No.272/2009, Mr. T.A. Khan, the learned counsel for the respondent M/s Paradise Fruit Center and Mr. J. C. Belwal, the learned counsel for the Mandi Samiti. 3. These Special Appeals under Chapter VIII Rule 5 of the High 2 Court Rules have been filed against the judgment of the learned Single 3 Judge dated 10.12.2009 as well as against the order dated 24.12.2009 passed on the review application. 4. The essential facts leading to the filing of the appeals is that the Mandi Samiti framed a scheme in the year 2003 for the construction and allotment of the shops in Naveen Mandi yard at Haldwani. Against the allocation of the shops, one trader filed a suit and, thereafter, filed writ petition No.1258 of 2005 (M/S) in which an interim order was passed staying the policy with respect to the allotment of the shops. Eventually, the said writ petition was dismissed by a judgment dated 30th March, 2009. 5. Subsequently, fresh writ petitions were filed being aggrieved by the policy framed by the Mandi Samiti by which allotment of the newly constructed shops were being made to the traders and, therefore, prayed in the writ petitions that the Mandi Samiti respondent should be directed to make a fair allotment of 74 shops by adopting a proper criteria. The learned Single Judge, by an order dated 10.12.2009, held that the policy formulated by the Mandi Samiti is just and proper and requires no interference and while disposing of the writ petitions, the following directions were issued :- “It is therefore directed that as a first step the “mandi samiti” shall delete within a period of ten days from today, the names of those applicants, if any, from the list who already have a shop in the market yard, either in individual name or even as a partner of a firm. After deleting the names of such persons who are clearly ineligible for allotment as per its own policy of the “mandi samiti”, the “mandi samiti” shall prepare a list in descending order as per clause 1 of the policy by calculating the “mandi” fee given by the said applicants. In case the number of such applicants are less or equal than the number of shops then in such an eventuality the 4 shops will be allocated as per their names in the list and the use of lottery will not be for allocation of shops but only for the “choice” of shops. In case where the shops are less than the number of eligible candidates then as per the terms and conditions of its own policy, the shops shall be allocated by draw of lots, from these eligible candidates.” 6. One of the writ petitioners filed a review application contending that one of the directions issued by the court was not in consonance with the policy framed by the Mandi Samiti that there was an error apparent on the face of the record which required reconsideration. The learned Single Judge partly allowed the review application, and deleted one direction of the court and substituted it with a fresh direction. The direction so deleted is quoted hereunder:- “In case where the shops are less than the number of eligible candidates then as per the terms and conditions of its own policy, the shops shall be allocated by draw of lots, from these eligible candidates.” 7. The learned Single Judge while deleting the aforesaid direction substituted it with the following direction:- “In case the shops are less than the number of eligible candidates then as per the terms and conditions of the policy, the shops will be allocated to the first 74 candidates who are at the top in the eligibility list, which has been prepared in terms of the descending order of the market fee paid for the last three years.” 8. The appellants, being aggrieved by the aforesaid orders of the learned Single Judge, have now preferred the special appeals. 5 9. Special Appeal No.272/2009 has been filed by Alu Phal Aarhti Vyapari Association, who had also filed the review application. The appellant is aggrieved by the direction of the learned Single Judge by which the court directed the Mandi Samiti to prepare the list which does not contain the name of a trader, who had a shop in the market yard either in his name or even as a partner of a firm. The appellant submitted that such direction was not in consonance with the scheme and that the appellants have a fundamental right under Article 19(1)(g) to trade and get a shop allotted in their name, even if they possess a shop in the Mandi yard. The learned counsel further submitted that subsequent to the passing of the order, the Mandi Samiti prepared a list deleting their names, but subsequently gave a certificate that the appellant does not have a shop in their names and consequently filed the appeal for certain directions. 10. Special Appeal No.266 has been filed by M/s Harish Singh Bachi Singh & Company contending that the learned Single Judge committed an error in partly allowing the review application and passing a fresh order, which was against the policy framed by the Mandi Samiti. The learned counsel for the appellant submitted that the order passed in the review application was not only against the policy of the Mandi Samiti, but, the recall application was not maintainable nor could it be allowed. The learned counsel submitted that the learned Single Judge has acted as the appellate court in allowing the review application which could not have been done. 11. Having heard the learned counsel for the parties, the court finds that the directions given by the learned Single Judge is in consonance with the policy framed by the Mandi Samiti. A perusal of the policy indicates that priority was to be given to those traders who had no shops allotted to them and who were paying the Mandi fee. Clause 1 of the scheme indicates that a list would be prepared from those eligible 6 traders, who had no shop allotted in their name and who were paying Mandi Fee. Clause 1 indicated that the list would be prepared in the descending order, namely, that a trader who was paying the highest fee would be placed at serial no.1 and a person paying a lower Mandi fee would come at serial no.2. and so forth. In the light of this provision, the learned Single Judge found that there were 147 applicants and that the total number of shops constructed were 74 in number. The learned Single Judge accordingly directed that the Mandi Samiti would prepare a list of those applicants who do not have a shop in the market yard either in the individual name or even as a partner of a firm. Such direction in our view is in consonance with the scheme framed by the Mandi Samiti namely that the shops would be allotted to those traders who do not have a shop. The contention of the learned counsel for the appellant in Special Appeal No.272 of 2009 is, consequently, bereft of merit. At this stage, the contention of the learned counsel for the appellant that the Mandi Samiti has itself certified that the appellant do not have a shop and have arbitrarily been ousted from the list and therefore a direction should be issued is also bereft of merit. Such information was not before the learned Single Judge nor such documents could be considered in the appeal. In view of the aforesaid, Special Appeal No.272 of 2009 lacks merit. 12. With regard to Special Appeal No.266 of 2009, the submission of the learned counsel for the appellant that there was no error apparent on the face of the record and consequently the order could not be reviewed by the learned Single Judge is patently bereft of merit. The submission of the learned counsel for the appellant that earlier order directing the shops to be allocated by draw of lots was in consonance with clause 6 of the scheme is wholly erroneous and misconceived. From a combined reading of clause 1 and 6 of the scheme, it is clear that the list of eligible candidates who do not have a shop in the market yard was to 7 be prepared in the order on the basis of the market fee 8 payable by such applicants. The court clarified the scheme by holding that where the number of applicants are less than or equal than the number of shops, then in such an eventuality, the shops would be allocated as per their names in the list and that the use of lottery will not be for allocation of the shops but only for the choice of shops. The learned Single Judge further directed that if the shops were less then the number of eligible candidates then the shops would be allocated by draw of lots. This part of the order was recalled and substituted by an order that in the event the shops were less than the number of eligible candidates then the shops would be allocated on the basis of the eligibility list in the order of seniority. In our view, the learned Single Judge rightly substituted the aforesaid direction replacing the direction of allotment of shop by draw of lots. The earlier direction was against clause 1 and 6 of the scheme. We find that there was an error apparent on the face of the record, which the learned Single Judge rightly rectified it by its order dated 24.12.2009. 13. In view of the aforesaid, we do not find any infirmity in the orders passed by the learned Single Judge. The Special Appeals fail and are dismissed. In the circumstances of the case parties shall bear their own cost. Dated 02.07.2010 LSR (B. C. Kandpal, J.) (Tarun Agarwala, J.)