IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15582 of 2006 India Fruit Company through its Proprietor Md. Salim, son of Late Md. Sharfuddin, resident of Data Pirbahore Lal Bagh, P.S. Pirbahore, District Patna. …. Petitioner Versus 1. The State of Bihar through the Agriculture Production Commissioner, New Secretariat, Patna. 2. The Administrator, Bihar Agricultural Marketing Board (Dissolved), Pant Bhawan, Bailey Road, Patna. 3. The Special Officer-cum-Sub-Divisional Officer, Agricultural Produce Market Committee Musallahpur (Dissolved), P.S. Sultanganj, District Patna 4. Durg Vijay Kumar, son of Ram Chandra Prasad, resident of Shop no. 79, Principal Market Yard, Agricultural Produce Market Committee, Musallahpur, Patna, P.S. Sultanganj, District Patna … Respodents ----- For the Petitioner : Mr. Abbas Haidar, Advocate For Respondents no. 1-3 Mr. Prahlad Kumar Bhagat, G.P. 13 For Respondent no. 4 : Mr. Ajay, Advocate ------ HON’BLE MR. JUSTICE S. N. HUSSAIN ------ O R D E R 08/ 14.11.2011 This writ petition has been filed by the petitioner challenging order dated 11.06.1999 (Annexure 1), by which the Market Secretary cancelled the allotment of shop no. 79 in the name of the petitioner and also cancelled his licence granted under the provisions of Bihar Agricultural Produce Markets Act, 1960 (hereinafter referred to as `the Act’ for the sake of brevity) for dealing in business of fruits etc. and further for directing the authorities concerned to renew the licence of the petitioner after accepting the legitimate due and restore peaceful possession of the shop after cancelling the allotment made in favour of respondent no.4 and for other ancillary reliefs. 2. The claim of the petitioner is that he has been doing 2 fruit business since more than five decades and initially he was doing business at Krishna Chowk near Patna Junction but subsequently he applied for licence and after all the procedural formalities, licence no. 743 of 1982-83 was granted to the petitioner by the authorities under the Act, whereafter in the year 1984 he was forced to shift his business to the Principal Market Yard, Musallahpur, whereafter Shop no. 79 was allotted to the petitioner by the said authorities on 06.05.1984 (Annexure 2) and since then he had been doing fruit business in the said shop on payment of rent regularly. 3. Learned counsel for the petitioner further stated that in the year 1994 the petitioner’s mother suffered from severe ailment, which continued and subsequently due to seriousness of her ailment, the petitioner took her to Delhi for treatment in the year 1998. However, the petitioner filed an application dated 29.12.1998 (Annexure 8) before respondent-authorities giving undertaking to deposit the entire market fees after returning from Delhi. It is specifically averred that during the years 1998 and 1999 no notice was received by the petitioner from respondent-authorities and all of a sudden the impugned order dated 11.06.1999 (Annexure 1) was issued by the Market Secretary cancelling the licence of the petitioner and allotment of Shop no. 79 on the ground that neither licence had been renewed nor market fee had been deposited since 1995-96. 4. Learned counsel for the petitioner further claimed that when the petitioner returned from Delhi in July, 1999 he found 3 his lock removed and another lock having been put by the respondents in his shop, hence he filed application dated 30.07.1999 (Annexure 9) before the Market Committee and the Bihar Agricultural Marketing Board (hereinafter referred to as `the Board’ for the sake of brevity) for annulling the aforesaid order. Considering the application of the petitioner, the Director of the Board issued letter dated 05.08.1999(Annexure 10) asking the Market Secretary to renew the petitioner’s licence and take steps as per Rule 98 of the Bihar Agricultural Produce Market Rules, 1975 (hereinafter referred to as `the Rules’ for the sake of brevity ). 5. In view of the aforesaid directions, the petitioner filed applications dated 07.08.1999 and 14.08.1999 (Annexure11 series) before the Market Secretary for renewal of his licence after accepting the market fee, but when no action was taken by the Market Secretary on the directions of the Board and the applications of the petitioner, the petitioner filed application dated 11.05.2000 (Annexure 12) before the Managing Director of the Board, who again passed order dated 16.05.2000 (Annexure 12A) directing the Market Secretary to renew the petitioner’s licence and inform about the same. In view of the said letter the petitioner again filed application dated 26.05.2000 (Annexure 13) before the Market Secretary. The Managing Director of the Board again wrote a similar letter dated 16.06.2000 (Annexure 13A) to the Market Secretary but the latter did not comply the said order and instead allotted shop no. 79 to respondent no. 4. 6. However, subsequently due to the strict attitude of 4 the Board, the Market Secretary vide order dated 07.02.2001 cancelled the allotment of shop no. 79 given to respondent no. 4, but thereafter took no action and after four years issued another letter dated 16.06.2005 (Annexure 14) asking respondent no. 4 to immediately vacate Shop no. 79 as his allotment had already been cancelled. In the said circumstances, the petitioner sent letter dated 04.09.2006 (Annexure 16) to the Managing Director of the Board, who called for a report from the Market Secretary in that connection, but no report was sent to the Managing Director of the Board and hence the petitioner was constrained to file this writ petition on 18.12.2006 for the aforementioned reliefs. 7. It is also stated in this connection that against the aforesaid orders dated 07.02.2001 and 16.06.2005, by which the Market Secretary cancelled the allotment of respondent no.4 and directed him to vacate shop no. 79, the said respondent no.4 filed C.W.J.CL No. 7625 of 2005, which was subsequently dismissed as not pressed by this Court vide order dated 28.07.2011 and hence no claim of respondent no. 4 survived with respect to the above- mentioned Shop no. 79. Furthermore respondent no.4 also did not contest this writ petition although he had full knowledge and information about the same, as he was also represented by his counsel. 8. In the aforesaid facts and circumstances, learned counsel for the petitioner argued that neither there was any resolution of the Market Committee, Musallahpur, Patna regarding the cancellation of the petitioner’s licence or cancellation of 5 allotment of shop no. 79 to the petitioner nor any notice with respect thereto was ever served upon the petitioner and the impugned order dated 11.06.1999 (Annexure 9) was passed without any enquiry in the matter and without following any procedure as prescribed in the Act and the Rules. It was also argued that the Market Secretary had throughout been acting whimsically ignoring even the specific direction of the Managing Director of the Board and also violating Rules 99 and 102 of the Rules. 9. On the other hand, learned counsel for respondent- authorities (respondents no. 1-3) vehemently opposed the contentions of learned counsel for the petitioner, but admitted that licence no. 743/1982-83 for carrying on business of fruits in the Market Yard was granted to the petitioner by the Market Committee and he was allotted Shop no. 79 being a senior licensee at that time in accordance with the guidelines of the Market Committee and the Board. However, he claimed that subsequently in the year 1988 it was found that the shop was locked and the petitioner was not doing any business activity and the rent was also not paid for the year 1997-98 and hence show cause notices dated 17.08.1998, 09.12.1998 and 23.03.1999 were sent to the petitioner, whereafter letter dated 23.02.1999 was also sent to him for depositing the arrears of rent of the shop, but the petitioner neither sent any reply to the said notices and letters nor did he pay any rent. Hence he averred that the licence of the petitioner was rightly cancelled vide order dated 11.06.1999 and the allotment of shop no. 79 to the petitioner was also cancelled, about which the petitioner was informed and the 6 order was pasted on the shop of the petitioner also. 10. Learned counsel for respondent–authorities also submitted that thereafter the said shop was allotted to respondent no. 4 but after thorough enquiry it was learnt that the said allotment was not in accordance with the rules and guidelines of the Market Committee and the Board and hence it was cancelled on 07.02.2001 and direction was given to respondent no.4 on 16.06.2005 to vacate Shop no., 79 immediately, against which respondent no.4 filed C.W.J.C. No. 7625 of 2005 and hence the claim of respondent no.4 is still not decided and is subjudice and in any view of the matter the petitioner had approached the Court after a long gap, as a result of which his claim has become stale and he is not entitled to any relief as prayed for. 11. From the aforesaid arguments of learned counsel for the parties and from the materials on record, it is quite apparent that as per the admission of the respondents themselves in their counter affidavit, the allotment made in favour of respondent no.4 was illegal and against the rules and the guidelines of the Board and hence it was cancelled. The challenge of respondent no.4 vide C.W.J.C. No. 7625 of 2005 also ended after dismissal of the said writ petition as not pressed by respondent no.4 on 28.07.2011. In the said circumstances, respondent no.4 has no claim left in the said shop no. 79 nor he appears to be interested in it. 12. The admitted facts of this case clearly show that the then Market Secretary had been acting whimsically and illegally for the reasons best known to him, due to which the petitioner had 7 been denied the occupation of the said shop no. 79, which is lying vacant since so many years causing loss to the public exchequer, specially when the petitioner had been filing applications before the authorities and has claimed before this Court also that he is ready to pay the entire dues provided the cancellation of his licence and allotment of the shop to respondent no.4 are revoked. 13. Rules 99 and 102 of the Rules empower the Market Committee to suspend and cancel the licence granted to the traders and specific procedure is prescribed therein, but there is nothing to show that the said procedure had been followed by the then Market Secretary, while taking steps against the petitioner. Neither any enquiry report with respect to the matter has been produced nor there is any material to show that the notices alleged to have been sent by the then Market Secretary had been actually served upon the petitioner nor even there is any publication of notice if it was not served upon the petitioner. Most interestingly, the respondents have failed to produce any resolution of the Market Committee in this regard, which clearly shows that the Market Secretary had been acting whimsically against the petitioner and in that process he did not even care for the specific rules provided in the Statute. 14. From the orders/letters dated 05.08.1999 and 16.05.2000 issued by the Managing Director of the Board to the Market Secretary clearly showed that the higher authorities were fully aware of the illegalities committed by the then Market Secretary and hence he was repeatedly being directed to renew the 8 petitioner’s licence immediately and to take steps as per Rule 98 of the Rules for renewal/re-issue of the petitioner’s licence after receiving the fees provided therein, which the petitioner was through out ready to pay but even the said specific direction of the higher authorities was not complied by the Market Secretary. Realizing the said attitude of Market Secretary, the Managing Director of the Board called for a report from the then Market Secretary with respect to the aforesaid matter in the year 2006, but even then no report was sent to the Managing Director of the Board and hence after few months the petitioner filed this writ petition. 15. In the said circumstances, there is no question of any delay on the part of the petitioner, rather the delay was caused due to the illegalities committed by the Secretary himself, who not only violated the clear provisions of law, but also disregarded the specific directions of the higher authorities and committed illegalities one after another by cancelling the allotment of the petitioner and allotting the shop in question to respondent no. 4, which was subsequently cancelled as the entire process was found to be illegal and against the provisions of Law. 16. In the aforesaid facts and circumstances, this writ petition is allowed, order dated 11.06.1999 (Annexure 1) cancelling the petitioner’s licence no. 743/1982-83 and allotting Shop no. 79 to respondent no. 4 is hereby quashed and respondent-authorities are directed to revoke the cancellation of the said licence of the petitioner and renew the same after accepting the entire dues as required under the Act and the Rules from the petitioner and also to 9 restore peaceful possession of Shop no. 79 in favour of the petitioner. The petitioner must approach the Administrator of the Board (now dissolved ) and the Special Officer of Market Committee, Mussalehpur, Patna (now dissolved ) along with a copy of this order within one month from today, whereafter the said authority would calculate the entire dues with regard to the licence and the shop as per the provisions of the Act and the Rules and inform the petitioner within one month of production of a copy of this order. Thereafter, the petitioner must deposit the entire amount due as directed by the said authorities within one month, whereafter, the licence of the petitioner should be immediately renewed and possession of shop no. 79 be handed over to the petitioner by the authorities,. MPS/ ( S. N. Hussain, J.)