IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.7566 of 2005 M/S Md.Ahmad Mumtaz Ahmad, son of Md. Jainul Ahmad, Shop no. 58, Principal Market Yard, Agricultural Produce Market Committee Patna through its Proprietor Mumtaz Ahmad, P.S. Sutanganj, District Patna. … Petitioner Versus 1.The Bihar State Agricultural Marketing Board, through its Administrator, Pant Bhawan, Bailway Road, Patna. 2. The Administrator, the Bihar State Agricultural Marketing Board, Pant Bhawan, Bailway Road, Patna. 3. Agricultural Produce Marketing Committee, Patna through Special Officer 4. The Special Officer, Agricultural Produce Marketing Committee, Mussalahpur, Patna 5. State of Bihar through Agriculture Production Commissioner, Government of Bihar, Patna. … Respondents ------------------- with Civil Writ Jurisdiction Case No.13810 of 2005 M/S Rayeen Brothers, through its Proprietor Furkan Ali, son of late Kashim, resident of Muhalla Dargah Road, Pathar-ki- Maszid, P.S. Sultanganj, District Patna, at present running his business of fruits at Mussalahpur Agricultural Produce Marketing Yard, Mussalahpur in the town and district of Patna. …. Petitioner Versus 1.The Bihar State Agricultural Marketing Board (Dissolved), through its Administrator,Pant Bhawan, Bailway Road, Patna. 2. The Administrator, the Bihar State Agricultural Marketing Board (Dissolved), Patna. 3.Agricultural Produce Marketing Committee, Mussalahpur, Patna through its Special Officer 4.The Special Officer, Agricultural Produce Marketing Committee, Mussalahpur … Respondents ---------------------------------- with Civil Writ Jurisdiction Case No.6261 of 2006 Hassan Imam, son of Md. Hussain Pahailwan, resident of Muhalla Khajekala, P.S. Khajekala, (Patna City), District Patna, Proprietor of M/s Hassan & Company in the premises of Krishi Utpadan Bazar Samiti, Mussalahpur, Patna … Petitioner Versus 1.The Bihar State Agricultural Marketing Board, through its Managing Director, Pant Bhawan, Bailway Road, Patna. 2. The Managing Director, Bihar State Agricultural Marketing Board, Pant Bhawan, Patna. 3. The Agricultural Produce Marketing Committee, 2 Mussalahpur, Patna, through its Secretary. 4. The Secretary, Agricultural Produce Market Committee, Mussalahpur, Patna. 5. The State of Bihar, through Agricultural Production Commissioner, Government of Bihar. 6. The Administrator for Bihar Agricultural Marketing Board, Patna 7. Special Officer, Agricultural Produce Marketing Committee, Mussalahpur, Patna … Respondents ---------------------------------- with Civil Writ Jurisdiction Case No.6799 of 2006 S.Zahid Hussain & Brothers, through its Proprietor Arif Hussain, son of late Shafait Hussain, resident of Muhalla Katra Mandi (Sultanganj), P.S. Sultanganj, District Patna. …Petitioner Versus 1. M/s Ahmad Mumtaz Ahmad, Shop no. 58, Principal Market Yard, Agricultural Produce Marketing Committee, Mussalahpur, Patna, through its Proprietor. 2. State of Bihar through Agricultural Production Commissioner, Government of Bihar, Patna. 3. Administrator, Bihar Agricultural Marketing Board, Patna. 3. Special Officer, Agricultural Produce Market Committee, Mussalahpur. … Respondents ---------------------------------- with Civil Writ Jurisdiction Case No.11651 of 2006 Md.Goush Alam Shoaib Alam through its Proprietor, Md. Shoaib Alam at Data Pirbahore, near Maszid in front of Patna University Library, Ashok Raj Path, Patna, P.S. Pirbahore, District Patna, at present running his business of Fruits at Mussalahpur Agricultural Produce Marketing Yard, Mussalahpur, in the town and district of Patna. … Petitioner Versus 1. The State of Bihar 2. The Bihar State Agricultural Marketing Board, through its Managing Director, Pant Bhawan, Bailway Road, Patna. 3. The Managing Director, Bihar State Agricultural Marketing Board, Patna. 4. The Agricultural Produce Marketing Committee, Mussalahpur, Patna, through its Secretary. 5. The Administrator, the Bihar State Agricultural Marketing Board, (Dissolved) 6. Special Officer, Agricultural Produce Market Committee, Mussalahpur, Patna …. Respondents --------- 3 For the Petitioner in : M/s Ajay & Ashish Kumar C.W.J.C. No. 7566/2005 Lal, Advocates For the Petitioner in : Mr. Upendra Prasad, Mrs. C.W.J.C. No. 13810/2005 Mrs, Veena Kumari Jaiswal& Mrs.Chandrakala Jaiswal, Advocates For the Petitioner in : Mr. Shambhu Sharan Singh, C.W.J.C. No. 6261/2006 Advocate For the Petitioner in : M/s S.C. Mishra & Nurul Hoda, C.W.J.C. No. 6799/2006 Advocates. For the Petitioner in : Mr. Naresh Kumar Malhotra, C.W.J.C. No.11651/2006 Sr. Advocate, Mr. Binod Kumar Sinha and Mrs. Mariya, Advocates. For the State in C.W.J.C.: Mr. D. K. Sinha, A.A.G. 2 & Nos.7566/2005&6799/2006 Mr. Prahalad Kr. Bhagat,G.P.13 For the State in C.W.J.C.: Mr. D.K. Sinha, A.A.G. 2 No. 13810/2005 For the State in C.W.J.C.: Mr. D. K. Sinha, A.A.G. 2 & No. 6261/2006 Mr. M.D. Singh, A.C. to G.P.3 For the State in C.W.J.C. : Mr. D. K. Sinha, A.A.G. 2 & No. 11651/2006 Mr. B.K. Singh Chouhan,G.P.VII For Respondent no.5 in Mr. Ajay, Advocate. C.W.J.C. No. 6799/2006 ----------- P R E S E N T HON’BLE MR. JUSTICE S. N. HUSSAIN ------------ 30/ 14.11.2011 All the aforesaid writ petitions have been heard together and are being decided by this common order as all the petitioners claim to be the licensees of the Agricultural Produce Market Committee of Mussalahpur, Patna ( hereinafter referred to as `the Committee’ for the sake of brevity) and are claimants of shop no. 58, situated in the Market Yard at Mussalahpur, Patna and only the basis of their respective claims are different, which are described hereinbelow. 2, C.W.J.C. No. 7566 of 2005 has been filed by M/s Md. Ahmad Mumtaz Ahmad challenging letter no. 1213 dated 16.06.2005, by which the Market Secretary of the Committee 4 cancelled the allotment of shop no. 58 in its favour with immediate effect and also for a direction to the respondents not to disturb the peaceful possession and continuation of possession of the petitioner in the said shop. The claim of the said petitioner is that it was engaged in fruit business since 1985 and applied for licence before the Committee in the year 1994, whereafter licence no. 29/1994-95 was granted to it, which was renewed from time to time till the filing of the writ petition. It is also claimed by the petitioner that on 10.08.2004 it applied for allotment of a shop in the said Market Yard and the Committee allotted the shop in question, namely, shop no. 58 to the petitioner on 15.12.2004, whereafter agreement dated 28.02.2005 was entered into between the Market Secretary and the petitioner. It was further submitted that only a few months thereafter the said allotment was cancelled by the Market Committee by impugned order dated 16.06.2005 as the petitioner was low in seniority at serial no.30, whereas, the shop had to be allotted according to seniority as per the order of the Managing Director of the Bihar State Agricultural Marketing Board, Patna (hereinafter to be referred to as `the Board’ for the sake of brevity) dated 10.06.2005 passed in Appeal No. 01 of 2005 with respect to the same shop no. 58. 3. The point raised by learned counsel for the petitioner was that no notice or information was given to the petitioner before issuing the impugned order of cancellation and no opportunity was given to it to place its case, which is violative of Article 14 of the Constitution of India. He also claimed that the petitioner was not a party to Appeal No. 01 of 2005 and hence the order of the Managing 5 Director dated 10.06.2005 was not binding on the petitioner and in any view of the matter the impugned order dated 16.06.2005 was contrary to the said order of the Managing Director dated 10.06.2005 as no direction was given to cancel the petitioner’s allotment, whereas, on the other hand by earlier order dated 11.08.2000 passed in Appeal No. 01 of 2000, the Managing Director of the Board himself directed cancellation of allotment of shop no. 58 to S. Zahid Hussain & Brothers as he was never in possession. It was further claimed that the said order dated 11.08.2000 was never challenged by the said S. Zahid Hussain & Brothers and hence it was followed by the authorities by allotting shop no. 58 to the petitioner, which was legal and proper. 4. The other point raised by learned counsel for the petitioner was that the cancellation of the petitioner’s licence was also illegal because there was no cancellation clause in the agreement between the petitioner and the Market Secretary. He also averred that according to paragraph no.8 of the counter affidavit filed by the respondents, the criterion for allotment of the said shop was seniority- cum-merit and hence seniority was not the sole criterion and the Board never selected solely on the basis of seniority as persons having licences even of 2004-05 had been allotted shops and hence the impugned order is an arbitrary exercise of power by the respondents. It was also claimed that several shops are available in the Market Yard and the petitioner being at serial no.30 is still entitled for allotment of a shop and hence it should be allowed to retain shop no. 58, whereas, other shops, which are going to be constructed as per paragraph no. 21 of the counter affidavit of the respondents, may be allotted to other 6 licensees and the petitioner has no objection therein. 5. C.W.J.C. No. 13810 of 2005 has been filed by M/s Rayeen Brothers for a direction to the respondents to allot the aforesaid shop no. 58 of Mussalahpur Market Yard as the petitioner has been doing fruit business since several decades and it shifted its business to Market Yard in open sky in the year 1988, whereafter licence no. 933 of 1988-89 was granted to it, which was renewed up to date and the petitioner has been regularly doing business since the date of licence and is the oldest licensee regularly paying market fee. Learned counsel for the petitioner further claimed that the petitioner has been trying since 1988 for allotment of a shop in the Market Yard, but it could not succeed for the reasons best known to the authorities and finally it filed an application on 25.07.2005 before the Managing Director of the Board, but no heed was paid to its application. Hence it claimed that the allotment of shop no. 58 to M/s Md. Ahmad Mumtaz Ahmad having been cancelled, the said shop be allotted to the petitioner. 6. C.W.J.C. No. 6261 of 2006 has been filed by one Hassan Imam for directing respondent-authorities to allot vacant shop no. 58 in the Mussalahpur Market Yard to the petitioner and also for restraining the respondents from interfering with his business on the Platform (verandah) of the Market Yard, which he is doing since several decades when licence was granted to him. Learned counsel for the petitioner claimed that the petitioner is doing fruit business since several decades and he applied for grant of licence of fruit vending in the year 1990 and, accordingly, on 23.06.1990 licence no. 1121 of 7 1990-91 was granted to the petitioner by the Committee. He further stated that the petitioner was doing business on the verandah of the Market Yard, which was not sufficient space for his business and hence he applied for allotment of a shop in the Market Yard on 16.06.1990. 7. He also claimed that when no heed was paid to the petitioner’s application and other subsequent licensees were allotted shops in the Market Yard, the petitioner filed C.W.J.C. No. 2535 of 2000, which was disposed of by a Bench of this Court on 19.05.2000 (Annexure 1) permitting the petitioner to withdraw the writ petition with the liberty to ventilate his grievances before the Managing Director of the Board by way of filing an application under section 38 of the Bihar Agricultural Market Act, 1960 ( hereinafter referred to as `the Act’ for the sake of brevity) and the Managing Director was directed to dispose of the petitioner’s application within a period of one month thereafter. It is further noted in the said order that learned counsel for the Board informed the Court on the basis of oral instructions from his client that there was no move at the moment to oust the petitioner from the space occupied by him on the verandah for his business. 8. Learned counsel for the petitioner also averred that in compliance of the said order of this Court, he filed an application before the Managing Director of the Board, which was disposed of by the Managing Director of the Board vide order dated 11.08.2000 (Annexure 2) holding that serial number of the petitioner was 9 in the seniority list (Annexure 4) and allotment of shop no. 58 has been 8 made in favour of S. Zahid Hussain & Brothers, who was above in the seniority list, but the allegation was that he had violated the terms of licence and was not in possession of the shop also and if that is so his allotment should be cancelled and the allotment of shop no. 58 shall be considered in favour of the licensees in accordance with their seniority. 9. Learned counsel for the petitioner also argued that when even thereafter no heed was paid to his claim, he filed C.W.J.C. No. 14040 of 2001 and in that case learned counsel for the Market Committee submitted that the Market Committee was going to take up a self financing scheme for construction of shops within the Mussalahpur Market Yard for the licensees to whom the Market Committee had been unable to provide any shop till now and for that purpose the Market Committee, after taking approval of the Board, would formulate a Scheme and issue a notice within fifteen days of the disposal of the writ petition and the petitioner and others might respond to it, whereafter the shops for them would be constructed under the said Scheme. On the basis of the aforesaid undertaking of learned counsel for the Market Committee, the writ petition was disposed of vide order dated 25.03.2003 (Annexure 7). When no step was taken by the authorities in that regard, the petitioner filed M.J.C. No. 2289 of 2003 as the Board did not fulfill its undertaking, but the said M.J.C. was dismissed by a Bench of this Court vide order dated 07.12.2004 as the situation was beyond the control of the authorities. However, observation was made that the petitioner might avail his remedies in accordance with law. 9 10. In the meantime the Market Secretary vide order dated 19/20.07.2004 (Annexure 8) decided to allot vacant land to the petitioner to construct his shop, which was approved by the Committee on the same date (Annexures 8 series). Thereafter sanction from the Board was required, but nothing was done by any of the authorities for reasons best known to them. It is also stated that in the said circumstances Appeal No. 01 of 2005 was filed by the petitioner, which was disposed of by the Managing Director of the Board vide order dated 10.06.2005 (Annexure 9) holding that 30 shops were going to be constructed near the Canteen in Mussalahpur Market Yard, but inspite of the aforesaid facts and circumstances neither any shop was constructed in that portion nor any allotment was made in favour of the petitioner. 11. Learned counsel for the petitioner specifically argued that the petitioner was one of the oldest licensees of the Committee, but he has been deprived of any shop in the Market Yard inspite of repeated orders of the Managing Director of the Board and even the orders of the High Court are not being followed although they were passed as per the undertaking given on behalf of respondents themselves. He further argued that shop no. 58 is vacant as no allotment has been made to any other person after cancellation of the allotment of the earlier allottee S. Zahid Hussain & Brothers and moreover there was no occasion for allotting any shop at present to the licensees, to whom spaces have already been allotted. He also argued that the petitioner is not only one of the oldest licensees but is also the oldest applicant for allotment of the shop and has been approaching 10 the authorities of the Committee and the Board for allotment of a shop since 1990 and for the said purpose he has also approached this Court on several occasions and the claim of the petitioner had always been appreciated but inspite of that no allotment of shop has been made in favour of the petitioner. 12. C.W.J.C. No. 6799 of 2006 has been filed by S. Zahid Hussain and Brothers for directing the authorities to restore Licence No. 911 of 1987-88 of the petitioner-firm and to grant him possession of shop no. 58 of Mussalahpur Market Yard and also for quashing the order/letter cancelling the aforesaid licence and allotment of the said shop in favour of the petitioner and for other ancillary reliefs. 13. Learned counsel for the petitioner stated that the petitioner is doing his business in Mussalahpur Market Yard since long and was granted licence no. 911 of 1987-88 for the said purpose, whereafter on 29.11.1999 the petitioner applied for allotment of a shop and finally on 17.12.1999 shop no. 58 in Mussalahpur Market Yard was allotted to the petitioner and, accordingly, on 31.12.1999 the petitioner deposited the security money, whereafter lease deed dated 05.01.2000 was executed between the parties and possession of shop no. 58 was given to the petitioner on 25.03.2000. He also claimed that the petitioner deposited rent for January and February, 2000 and had been regularly doing his business in the said shop and, accordingly, his licence was renewed for 2004 and the agreement was revalidated for 11 months from 01.02.2003, but thereafter the petitioner’s proprietor’s wife fell ill and subsequently died of Cancer on 04.02.2006. He 11 averred that taking advantage of the said situation the Market Secretary and respondent no.5 M/s Md. Ahmad Mumtaz Ahmad occupied the petitioner’s shop without cancelling the petitioner’s licence for allotment of shop, for which no notice was ever received by the petitioner. Hence he claimed that the action of the respondents, apart from being against the procedures prescribed under the Rules, was violative of the principle of equity and natural justice and hence the petitioner had no remedy but to approach this Court. 14. C.W.J.C. No. 11651 of 2006 has been filed by Md. Goush Alam Shoaib Alam for directing the respondent-authorities to allot any shop and/or shop no. 58 situated in Mussalahpur Market Yard to the petitioner’s firm, which was the oldest firm having licence no. 764 of 1978-79, due to which he is at serial no. 1 of the licensees and has been doing fruit business since 1978-79 without allotment of any permanent shop in Mussalahpur Market Yard . 15. Learned counsel for the petitioner claimed that the petitioner was earlier doing fruit business since 1975 at Krishna Chowk, Frazer Road, Patna and subsequently licence no. 764 of 1978-79 was granted to him by the Managing Committee, whereafter in 1981-82 the petitioner shifted his business on the open verandah of Mussalahpur Market Yard and subsequently the number of his licence was changed to licence no. 764 of 1982-83, which was renewed up to 2006-07. Learned counsel for the petitioner further claimed that he applied for allotment of at least one shop before the Secretary on 14.06.1988 and 11.01.1989, but no shop was allotted to the petitioner and in the meantime shops were allotted to several subsequent 12 licensees without considering the claim of the petitioner. Hence the petitioner filed an application on 22.08.2006 before the Market Secretary of the Committee, which was not heeded to and hence the petitioner filed this writ petition. 16. The ground taken by learned counsel for the petitioner in this regard was that admittedly the petitioner was the oldest licensee as per the seniority list dated 25.08.2006 (Annexure 4A) and the shops were to be given as per the seniority list, which is apparent from order dated 23.05.1991 passed by a Division Bench of this Court in C.W.J.C. No. 2607 of 1991. In this regard, he also referred to direction of the Special Officer of the Committee and the Managing Director of the Board dated 06.01.2004 and 09.08.2006 (Annexures A & B to the counter-affidavit). Learned counsel for the petitioner also averred that if allotment of shop is cancelled on the ground of non-seniority, the petitioner should have to be considered first even for shop no. 58, which was vacant as its earlier allotment to M/s Md. Ahmad Mumtaz Ahmad was cancelled as he was much junior. 17. On the other hand, learned counsel for the authorities of the Board and the Committee, who are respondents in all the aforesaid writ petitions, stated that the licences are given to the applicants for doing business in the Market Yard, whereas allotment of shop is made as per the date of application for allotment of shop and not as per the seniority in licence. He further stated that if applications for allotment are sought by the Committee by issuance of a notice and several licensees apply within the time prescribed 13 therein, seniority in licences only amongst such applicants has to be considered. 18. Learned counsel for the said respondents also stated that this Court, vide order dated 23.11.2006, passed in C.W.J.C. No. 7566 of 2006 specifically observed that transparent policy was required for allotment and cancellation of shops to the licensees in the Market Yard of the Committee. In this connection, he also referred to the decisions of this Court dated 23.05.1991 and 25.03.2003 passed respectively in C.W.J.C. No. 2607 of 1991 and C.W.J.C. No. 14040 of 2001. 19. Learned counsel for respondent-authorities also argued that earlier allottee of shop no. 58 was S. Zahid Hussain & Brothers, but he did not do his business in the said shop nor paid rent or fees and let it out to another person, which was against the specific provisions of law and hence his licence and allotment were rightly cancelled by the authorities concerned. He further claimed that the licensees, whom shops have already been allotted, be allowed to continue, whereas, the remaining shops may be directed to be allotted to the applicants as per their dates of applications and seniority. 20. It may be noted that the claims of each of the writ petitioners are with respect to shop no. 58, which has been challenged by petitioners of other writ petitions on the same grounds, which they had raised in support of their own respective writ petitions and the said claims have already been discussed above separately for each writ petitioners. The respective claims of the parties have to be looked into and decided in accordance with the purpose and provisions of the 14 laws laid down by the legislature from time to time in that regard and settled by the decisions of Courts. 21. The Bihar Agricultural Produce Markets Act was enacted in 1960 to provide for the better regulation of buying and selling of agricultural produce and the establishment of markets for agricultural produce in the State. Hence primary consideration for the development of agricultural marketing was to reorganize the existing system so as to secure for the farmer of his due share of the price paid by the consumers and subserve the needs of planned development. For the purposes of these objectives, arrangements were required to be made for the efficient distribution of marketable agricultural articles from producing areas to consuming areas and also for eliminating mal-practices associated with buying and selling of agricultural produce, which directly and adversely affected the farmers. 22. With the aforesaid reasons, provisions had been included in the Act for establishment of a market area including a principal Market Yard and Sub-Market Yard and for every market area a Market Committee was provided in the Act and was established as such. Furthermore, for doing business in the said Market Yard, a provision for grant of licences to the applicants was also made in the Act. In furtherance thereof some shops were also to be constructed in the market area for allotment to the licensees, who applied for the same, whereas the other licensees were free to do their business in the open area. 23. In the aforesaid circumstances, it is quite apparent 15 that the scheme of the Act and the Rules framed thereunder was that every licensee had to do business within the market premises only and not outside and for that purposes they were free to use open spaces in the market area. In furtherance thereof some shops