C.W.P No.6520 of 2008 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision : October 29th, 2010 1. C.W.P No.6520 of 2008 The Subzi Mandi Arthi Association (Regd) vs State of Haryana & Ors 2. C.W.P No.17534 of 2009 Ashwani Kumar Batra vs State of Haryana and others, 3. C.O.C.P No.1100 of 2008 The Subzi Mandi Arthi vs Shri Raj Kumar, Financial Commissioner Association (Regd) and Principal Secretary to Govt. of Haryana, Agricultural Department. *** CORAM : HON'BLE MR. JUSTICE MUKUL MUDGAL, CHIEF JUSTICE HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. Chetan Mittal, Sr. Advocate with Mr. Vishal Garg, Advocate for the petitioner in CWP No.6520 of 2008. Mr. Robin Dutt, Advocate for the petitioner in CWP No.17534 of 2009. Mr. Sanjiv Pandey, Advocate for the petitioner in COCP No.1100 of 2008. Mr. Randhir Singh, Addl. A.G Haryana for respondents No.1 and 2. Mr. Sanjeev Kaushik, Advocate for respondents No.3 and 4. Mr. Arun Jain, Sr. Advocate with Mr. Vikas Chaudhary, Advocate for respondent No.5. Mr. Raman B.Garg, Advocate for respondents No.6 to 9. *** C.W.P No.6520 of 2008 ::2:: 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** MUKUL MUDGAL, CHIEF JUSTICE This judgment shall dispose of CWP Nos.6520 of 2008, 17534 of 2009 and COCP No.1100 of 2008. For the sake of convenience, facts are being taken from CWP No.6520 of 2008. As per the averments, the Municipal Council, Yamuna Nagar (respondent No.5) constructed 29 shops and 10 booths in the year 1976. Thereafter, in the year 1997-98, respondent No.5 constructed 51 booths measuring 10'x20' for their commercial interest in a new Mandi at some distance from the existing Sabji Mandi. It is averred in the writ petition that in the year 1999, some members of the Sabji Mandi Association apprehensive of the fact that respondents No.3 and 4 might declare the said 51 booths as a part of the existing Sabji Mandi, approached this Court by way of CWP No.8401 of 1999. Respondents No.3 and 4 specifically made a statement that 51 booths were constructed for different purposes and business, and by declaring the said booths to be the part of the existing Sabji Mandi the said purpose would be defeated. In view of the said statement, the aforesaid writ petition was dismissed as infructuous. Thereafter, on 8.10.2001, the matter regarding declaration of 51 booths as a part of the existing Mandi was investigated by the Chief Administrator. It was categorically observed by the Chief Administrator that as per Section 8 (ii) of the Punjab Agriculture Produce Markets Act, 1961 (for short “the Act”), no person or Municipal Council, Panchayat Samiti or other bodies can notify the sub yard within 5 kms of where the market is existing. C.W.P No.6520 of 2008 ::3:: During this period, some of the owners of the said 51 booths filed CWP No.10403 of 2002 seeking directions that the respondents-Marketing Board/Market Committee, Yamuna Nagar to issue licenses to them. The said writ petition was also opposed by respondents No.3 and 4. Ultimately, that writ petition was dismissed on 27.7.2004 with the following observations :- “ We have heard learned counsel for the parties. Although, the petitioners' grievance centres around the alleged refusal by the government to declare 51 shops constructed by respondent No.5 from being declared as part of sub-market yard notified on 15.3.1982, after hearing learned counsel for the parties and perusing the record, we are convinced that the prayer made by the petitioners cannot be granted because no tangible material has been placed on the record of the writ petition to show that they had ever made any representation or written request to the competent authority to declare the area of 51 shops adjoining the subzi mandi as part of the sub-market yard. Hence, the writ petition is dismissed leaving the petitioners free to represent to the competent authority for declaring the area of 51 shops constructed by respondent No.5 as part of sub-market yard declared vide notification dated 15.3.1982. However, it is made clear that this order shall not be construed as a mandate of the Court for C.W.P No.6520 of 2008 ::4:: declaring the area of 51 shops as part of the existing sub- market yard and the competent authority shall be free to take appropriate decision in accordance with law.” On the representation moved by the said persons consequent to the above mentioned order, the impugned notification was issued declaring the area of 51 booths as sub-market yards. In the written statement, the main ground taken is that the area under the aforesaid 51 booths is to be declared as sub-market. It has further been pleaded that the said area has been notified as sub market yard in the exercise of powers conferred under Section 7(2) of the Act. Section 7 of the Act is reproduced herein below :- “ 7. Declaration of market yards- (1) For each notified market area there shall be one principal market yard and one or more sub-market yards as may be necessary. (2) The State Government may, by notification, declare any enclosure, building or locality in any notified market area to be principal market yard for the area and other enclosures, buildings or localities to be one or more sub-market yards for the area.” It is further stated that this administrative power of the government is best left to the discretion of the government and cannot be interfered with unless it is shown to be perverse or patently arbitrary. To allay the apprehensions of the petitioners that the said declaration may affect their business adversely, affidavits were sought from those booth owners that in case they are granted licenses under Section 10 of the Act as Kacha Artiyas for the sale of vegetables then they would not indulge in any C.W.P No.6520 of 2008 ::5:: other business except for the sale of vegetables. It is further stated that in the meanwhile, yet another person who felt aggrieved by the proposal to declare the said area as sub market yard, had filed CWP No.734 of 2008 which was disposed of by this Court on 17.1.2008 in the following terms :- “ The petitioner is at liberty to file a detailed representation to convey objections to the declaration of the Market as Sub Market. Representation, if any, shall be decided within 3 months.” It is further averred that consequent to the above said order, the matter was reconsidered by respondent No.1 who passed a detailed speaking order on 17.3.2008. In the circumstances, it was pleaded that the writ petition be dismissed. Learned counsel for the petitioners have vehemently argued that the respondents having taken the categoric stand in the earlier writ petitions wherein they had opposed the prayer for declaration of the area in question as sub market yard cannot now be permitted to take this turn around. It is further argued that as per Section 8(2) of the Act, a sub market yard cannot be set up within 5 Kms of the main market yard. It is also argued that against the decision to grant licenses, ultimately the matter reached the Hon'ble Supreme Court by way of SLP No.14136 of 2006. The Hon'ble Supreme Court remanded the matter back to this Court for a fresh decision. We find that respondent No.1 has considered the entire matter in the right perspective. As regards the plea of the petitioners regarding the turn around in the stand, the learned Financial Commissioner has held as C.W.P No.6520 of 2008 ::6:: under :- “ xx xx xx As far as the plea raised by the petitioner regarding earlier decision taken by the then authorities is concerned, though it is correct that the matters regarding issuance of licenses in the 51 shops was investigated and affirmed by the then Chief Administrator of the Board as well as the higher authorities, yet it can hardly be accepted that the matter cannot be re-considered again in the changed circumstances.....” Respondent No.1 has considered the facts as per the existing ground-realities. There is huge increase in population, arrival of produce, and requirement of general public. He sought a report from the Deputy Commissioner, Yamuna Nagar who also recommended that in view of the changed scenario, the present action would be beneficial to the farmers, the Market Committee as well as the public at large. In our considered opinion, the stand of respondent No.1 cannot be termed to be meritless. It must be remembered that this Court had subsequently directed the respondents to take a fresh look at the matter, while disposing of CWP No.10403 of 2002. In such administrative matters, a Court cannot sit in appeal. The only limited scope for interference is whether there is demonstrated perversion or palpable arbitrariness. These conditions have not been shown to exist in the present case. The petitioners have further raised the issue of non-availability of required infrastructure in a bid to buttress their stand regarding constituting the booths in dispute as sub market yard. With regard to that C.W.P No.6520 of 2008 ::7:: also, the stand taken is that most of the required infrastructure is in place and whatever augmentation is required would be commissioned. With respect to this argument, we direct respondents No.3 and 4 to take all necessary steps to see that the requisite infrastructure is made available so that stakeholders can take optimum use of the market yard/sub market yard. With these observations, these writ petitions, as also the Contempt Petition stand disposed of. ( MUKUL MUDGAL ) CHIEF JUSTICE ( AJAY TEWARI ) October 29, 2010. JUDGE `kk'