CWP No.4361 of 1989 -1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CWP No.4361 of 1989 Date of decision December 15, 2011 M/s Sadhu Ram-Sukjit Mittar and others ....... Petitioner Versus State of Punjab and others ........Respondents CWP No.4776 of 1990 M/s Ramji Dass and Co. and others ....... Petitioners Versus State of Punjab and others ........Respondents CWP No.12111 of 1990 M/s Yash pal and Company others ....... Petitioners Versus State of Punjab and others ........Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. G. S. Dhuriwala, Advocate for the petitioners. Mr. Navdeep Sukhna, DAG., Punjab. Mr. Arun Kaundal, Advocate for Mr. Puneet Gupta, Advocate for respondent Nos. 2 and 3. **** 1. Whether reporters of local papers may be allowed to see the judgment ?No 2. To be referred to the reporters or not? No 3. Whether the judgment should be reported in the digest?No K. Kannan, J (oral). 1. All the three writ petitions are connected. In CWP No.4361 of 1989 -2 CWP No. 4361 of 1989 there are 20 petitioners who claim that they have established their businesses in the old grain market and when a notification was issued establishing a new market and the occasion arose that they were all required to quit, this writ petition has been filed to restrain the respondents namely the State of Punjab and the State Agricultural Marketing Board, from compelling the petitioners to shift the business to the new grain market. They sought a direction to permit the petitioners to carry on with the trade in the old market till the time they built up shops or plots were allotted to the petitioners. It appears that at the time of institution of the writ petition there had been an order of stay of the impugned notification. Subsequently on 18.2.1994 the interim orders have been vacated. 2. Apart from the statement which was filed soon after filing of the petition in the year 1989, the respondents have filed an application for disposal of the case in the light of the judgment of this Court in M/s Sheo Prasad Rajiv Vs. State of Punjab in CWP No. 4199 of 1991 decided on 24.12.1991. In that decision this Court had held that the old must give place to the new and if there was a scheme that allowed for auctioning of the markets in the new Mandi, the shopkeepers/agents were to avail of the same and they cannot seek for restraint against eviction. Even apart from a reference to the Full Bench decision on the basis of which it is requested that the petitioners' writ petition must be dismissed, the respondents have stated that petitioner Nos. 5, 8 and 13 are persons working at the new market, Kapurthala, while petitioners 3,4,6,10 and 15 are still working in the old market. It is further stated that 12 other petitioners are not working any more. As CWP No.4361 of 1989 -3 far as the petitioner Nos. 5, 8 and 13 are concerned, I would find that there is no requirement for giving any directions or reliefs. The case was still be required to be considered for the benefit of the remaining petitioners. 3. The Full Bench decision adverted to in the application filed by the respondents does not appear to conclude the issue. The same subject has again been a subject of consideration by the Hon'ble Supreme Court in M/s Labha Ram and Sons Vs. State of Punjab 1998 (5) SCC 207. The Supreme Court was considering the allotment of plots and land in new Mandis in terms of the Punjab New Mandi Townships (Development and Regulation) Act, 1969, wherein it was held that the Government always had wide powers in deciding in what manner and in what conditions the land and plots were to be allotted and such powers could not be used to the detriment of victims of the newly created Mandi. This observation came in the light of objections raised by the allottees in the old market who were displaced and who were required to be adjusted in the new market. While setting out the guidelines as to how the State will conduct itself in the manner of allotments, the Supreme Court held that the government shall provide preference to the allottees in the old market and fix any reasonable rate above reserved price for such persons. This judgment of the Supreme Court was delivered on 30.4.1998 and about the same time new rules have also been notified called as Punjab State Agricultural Marketing Board (Sale and Transfer) of Plots Rules of 1999. The Rules make provision for the manner of grant of licenses in the manner of allocation and the way the preferences have to be worked out. CWP No.4361 of 1989 -4 4. Counsel for the respondents states that the petitioners cannot have any benefit through fresh allotments in the new market because there are no vacancies in the market. Apart from an oral assertion I do not find any basis for such a contention. 5. From the fact that the case has been pending from the year 1989 and till the period now when the case is taken up, there have been important decisions of the Supreme Court and statutory changes that have recognized certain rights for persons in the old market. If the notification of a new market itself cannot be impeached and the persons in the old market could claim no more than a preferential right in the allotment, the grant for reliefs for a restraint against shifting the petitioners cannot arise. The petitioners' reliefs to such an extent ought to fail and therefore rejected. The respondents shall be at liberty to take appropriate action for ejectment in accordance with law. However, such of those petitioners who were licensees on the date when the impugned notification was made shall be entitled for consideration on a preferential basis for allotment if their rights had not already been brought for such preferential consideration. If for any reason it transpires that there are no shops/plots available for allotment, the list of the remaining petitioners shall be prepared with reference to their seniority and entitlement in the old market and before any allotment is made for any vacancy that may arise in future i.e. from the date of this order, the persons from amongst the petitioners in the order of seniority will be duly considered and if only the offer is not accepted in the order of seniority, the person next in line shall be considered till the list is fully exhausted. The petitioners are also at liberty to make a CWP No.4361 of 1989 -5 representation to the Authority concerned, giving details of vacant shops/plots for allotment. 6. In CWP No. 12111 of 1990 the writ petition contains the same prayer as has been set forth in CWP No. 4361 of 1990. The petitioners' prayer that the respondent shall be restrained from ejectment cannot obtain any favourable consideration. It is therefore rejected. No details are brought forth by any reply as regards the petitioners' continuance in the same property or whether they have been adjusted in the new market. Consequently, I assume that all the petitioners are still eligible for allotment in the manner of allotments. The petitioners' eligibility, their subsisting licenses at the time when the impugned notification was made shall be taken note of for preparation of the list of eligible preferential allottees and they may be adjusted in the same manner as ordered in the above writ petition. The above writ petition is also disposed of reserving to the petitioners a right of preferential allotment but they shall not be entitled to carry on any business in the old market and shall be liable to be ejected by the respondents in the manner known to law. 7. CWP No. 4776 of 1990 contains a prayer for protecting the rights of 18 petitioners who have sought for their right to continue their business in the old market. In the light of the reasoning made above, the petitioners shall not be entitled to such a right and they are liable for ejectment by the respondents in accordance with law. However, they shall also be considered in preferential allocation in the same manner as referred to above either in the existing vacant shops/plots and if they are not available to adjust them as and when CWP No.4361 of 1989 -6 vacancy arise by placing them above in the list of preferential allottees in the order of seniority. The writ petition is disposed of on the above lines. 8. All the writ petitions are disposed of. (K. KANNAN) JUDGE December 15 , 2011 archana