IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- (1) SPL. APPL. WRIT No. 912 of 2000 RAM KARAN CHOUDHARY V/S STATE OF RAJ.& ANR. (2) SPL. APPL. WRIT No. 559 of 2001 STATE & ANR V/S M/S KHEMA RAM RUGHA RAM (3) SPL. APPL. WRIT No. 178 of 2002 STATE & ANR V/S NOKHA KHADHYA VYAPAR MANDAL,NOKHA Mr. SS PUROHIT, for the appellant (in SAW No.912/2000) Mr. RAVI BHANSALI, for the appellant in SAW No.559/01 & 178/2002 and for the respondent in SAW No.912/2000. Mr. ANIL BHANDARI for the respondent in SAW No.559/01 & 178/2002. Date of Order : 10.1.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI MOHAMMAD RAFIQ,J. ORDER ----- These three appeals though arise out of different orders, having passed by different benches, relating to different areas, and having different facts, still ultimately involve the common question, and therefore, they are being decided by this common order. Appeal No. 912/2000 has been filed against the order passed by the learned Single Judge in Writ Petition No. 2734/2000, dismissing the writ petition, on the ground, that entire rights and liabilities flow from a contract between the petitioner and the Committee, and for enforcement of contractual relations, writ petition is not maintainable. It was also found, that it involves disputed questions of fact, and that, according to the judgment of Hon'ble the Supreme Court, in State of Himachal Pradesh Vs. Raja Mahendra Pal, the Constitutional Courts should insist upon the party to avail alternative remedy, instead of invoking the extra-ordinary writ jurisdiction of the Court, and then generous, general and casual approach was not approved to cloth the High Court with the power and jurisdiction under Article 226. Thus, it was found, that the petitioner can conveniently agitate the claim before the Civil Court. Thus, the writ petition was dismissed. Then, Appeal No. 178 has been filed against the judgment of the learned Single Judge dt. 7.8.2001, in Writ Petition No. 2300/99, finding, that this Court has considered the question of similarly situated auction, in the same auction, and in view of the view taken by the learned Single Judge of this Court regarding the same auction, granting indulgence to the petitioner in that case, it would not be proper to distinguish this case also, and therefore, it was directed that members of the association, those who have not withdrawn their amount 2 deposited at the auction, will be entitled to get their auctions regularised in accordance with law. With these observations, the writ petition was disposed. From this order it does not appear, as to in which case the view was taken by the learned Single Judge, no reference thereof is there, nor any judgment is available on the file. Be that as it may. This was a petition filed by Nokha Khadhya Vyapar Mandal. Then, Appeal No. 559/2001 arises out of the judgment of learned Single Judge dated 2.5.2001, passed in Writ Petition No. 2150/99. This was a petition also filed by a trader of Nokha. This is a detailed speaking judgment, running into four pages. It has been noticed therein, that the controversy lies in a very narrow compass, as the petitioner was auction bidder for a piece of land, from Krishi Upaj Mandi Samiti, hereafter referred to as ‘the Samiti’. He complied with all the terms and conditions incorporated in the Act, and Rules, framed for allotment, but he had been deprived of the possession of the said piece of land, on the ground, that the approval had not been accorded by the higher authorities, as contemplated under clause 10 and 15 of the conditions, wherein approval of the Director, of the auction bid, was required in every case. It was found, that there can be no quarrel to the settled legal proposition, that where the Act or the Rules provides for approval of such auction, the auction is 3 unenforceable and in-executable, unless the approval is sought by the authority. However, it was found, that any circular or executive instruction, issued by the State Government, in violation of statutory provisions of the Act, or the Rules, is null and void, and does not require to be observed, for the reason, that such circular/orders might be issued to oblige a particular section of society. Then, attention of the Court was invited to the circular issued by the State Government, for seeking approval of the Director of the Mandi Prishad, and the said circular was sought to be supported by legal authority comprised in Section 34-A. However, the learned Single Judge found, that it is settled proposition of law, that what cannot be done “per directum is not permissible to be done per obliquum”. Then, the judgment of Hon'ble the Supreme Court, in Jagir Singh Vs. Ranbir Singh, reported in AIR 1979 SC-381, was relied upon, for the proposition, that an authority cannot be permitted to evade a law by “shift or contrivance”, and it was concluded, that no approval was required in this case, and the auction made in pursuance of Annex. R/2/1 was required to be confirmed without seeking any approval or direction, from the authority concerned. Thus writ petition was allowed. Appeals No. 559 and 178 have been filed by the State and the Krishi Upaj Mandi Samiti, while Appeal No. 912 has been filed by the trader, against the State and the 4 Samiti. This matter relates to Krishi Upaj Mandi Samiti, Fruits, Vegetables and Woollen, Bikaner. The facts of the case in Appeal No. 912 are, that the appellant filed the writ petition, alleging, that the petitioner is a trader having license by the Samiti, dealing in agricultural produce. Then, after giving certain facts it was pleaded, that Mandi Samiti prepared a plan and earmarked 250 shops/godowns for being given on allotment by way of auction. It is alleged, that reserve price was to be fixed by the Samiti, and every bidder was required to deposit a sum of Rs. 5,000/- as earnest money. The allotment was to be made for a period of 99 years. Then, it is pleaded that the State Government issued an order dt. 27.9.1992, constituting a committee, for the purpose of allotment of plots, for shops and godowns. This has been produced as Annexure-2. Then, advertisement was issued being Annexure-5, containing terms and conditions of auction. By this Annexure-5 the auction was scheduled to be held on 15.7.1998. Then, certain pleadings have been taken about the exercise undertaken for fixation of reserve price. Then, it is pleaded that the auction was made on 15.7.1998 to 20.7.1998, and more than two years have passed, yet the market could not be developed, and the object of the Act (Rajasthan Agricultural Produce Markets Act, 1961) could not be achieved, as, had the auction been finalised, and remaining 3/4th price would have been 5 accepted and the possession of the plots would have been given to the petitioner, then by this time, the market could have been constructed, and developed. Then, it is pleaded that the Director had no authority, right or jurisdiction, to interfere in the matter, and to pass any order for canceling the auction, conducted by the Mandi Samiti, as the Committee was formed as per the directions of the State Government, which worked out the auction proceedings, and conducted the actual auction, and 1/4th price was deposited, and the bids were finalised, thereafter nothing remained there, and the petitioner has claimed to be entitled to get his plot, by depositing 3/4th price. With this, it is pleaded, that the association took up the matter with the Mandi Samiti, and the Mandi Samiti appraised the association of the letter Annexure-15, and a look at Annexure-15 shows, that thereby photo copies of the letter of the Directorate dt. 28.4.1999 and 15.6.1999 were enclosed. According to the petitioner, thereupon a representation was given to the Minister, but in vain, except that they received the letter dt. 17.7.2000, from the Mandi Samiti, asking the petitioner to receive back the amount, by producing the original receipt. This is produced as Annexure-17. The petitioner has precisely assailed this Annexure-17, interalia on the ground, that with depositing 1/4th price right has been created in the bidder, and in such circumstances, approval cannot be refused, much less without hearing the bidder, and thus, the action was 6 decried. It was pleaded, that there is nothing to show, that auction was conducted in any manner violative to any law. Then, justification was pleaded for fixation of reserve price, and it was prayed, that Annexure-17 may be quashed, and respondents be directed to receive the balance amount, and grant lease of the auctioned plot. Since this writ petition was dismissed immediately on its filation, as it was filed on 9.8.2000, and it was dismissed on 10.8.2000, reply was filed on behalf of Samiti before this Appellate forum, and the stand taken is, that the petitioner has concealed the material fact from this Court, and had made false statement, inasmuch as the final allotment could have been made only after receipt of acceptance from the competent authority, which was not given. Then, giving parawise reply, the material stand taken was, that the petitioner, while filling up the application form, agreed with the terms and conditions of the auction, in which one of the conditions is, that the entire auction shall be depending upon the consent of the Director, Agriculture Marketing, Jaipur, and that, this condition was also there in the application form itself. The copy has been produced as Annexure R/2. Then, it was pleaded that a notice was already published in the news- paper about auction having been cancelled, and calling upon the bidders to take away the amount, which has been produced as Annexure R/3. It was pleaded, that by mere 7 depositing 1/4th amount, no rights have been created. Reply has also been given to various other paras of the writ petition, which need not detain us. Then, the facts of Appeal No. 559 are, that the petitioner therein filed the writ petition, alleging to be a licensed broker of 'A' Class and 'B' Class. Then, it was pleaded, that the Samiti earmarked place for about 183 shops, out of which 53 shops have been constructed, and remaining open space was to be given on license, for which conditions have been framed. According to which conditions, allotment has to be made through open auction, reserve price was fixed, every bidder was to deposit Rs.10,000/- as earnest money, and allotment was to be made for a period of 99 years. Conditions No. 3, 4, and 5 have been reproduced in the writ petition. Then, it is pleaded that the State Government constituted a committee for allotment vide order dt. 27.9.1982, Annexure-3. This is the same document as produced in Appeal No. 912, as Annexure-2. Then, it is pleaded that a notice was issued for auction to be held on 24th, 25th, and 26th February, 1999, and the advertisement has been produced as Annexure-4, wherein the petitioner participated, and gave the highest bid of Rs. 2,71,000/-, for Plot No. 175, and deposited 1/4th of the amount on 26th February, itself. Then, the matter was sent for approval. However, it was informed by the Director, to the Krishi Upaj Mandi Samiti, that sale has been approved for 53 8 bidders, and for remaining shops no approval was given, and on that basis, action cannot be annulled, or cancelled. Then, it is also pleaded that when the reserve price was notified in the advertisement, now the Committee is estopped from refusing to grant lease on the principle of promissory estoppel. Then, certain pleas were taken about sufficiency of the reserve price, and action being violative of principles of natural justice, and so on. With this, Annexure-7 has been sought to be quashed, and direction has been prayed, for being granted the lease of the shop in question. In this petition a reply has been filed on behalf of the Samiti, pleading interalia, that as per Section 34A, the Government has laid down certain guidelines, which are required to be complied. Then, it was pleaded that though the petitioner quoted certain terms and conditions of the auction, but has not mentioned the entire conditions, as some of them are clearly against him. Then, it is pleaded that according to advertisement an application form was required to be filled containing terms and conditions of the auction, which were to be agreed by the bidder, before taking part in the auction, thereafter only he was entitled to take part, provided he deposits security amount of Rs. 10,000/-, and true and correct copy of the application form, containing terms and conditions, has been produced as Annexure R/2/1, which clearly stipulated, that the entire action was dependent upon the consent of the Director, and that the conditions mentioned 9 in the advertisement were only few important conditions, and not all the conditions, because all the conditions can be seen from Annexure R/2/1 only. Copy of the advertisement has been produced as Annexure R/2/2. According to the respondent, since the auction was subject to the approval and conformity by the Director, the proposal was sent for approval by the Secretary, and the Director approved only the auction of 53 plots and directed re-auction of the remaining plots. It was submitted, that in view of the terms and conditions, no right accrues in favour of the petitioner, without approval from the Director. It was thus pleaded, that the Director had the power, and action was sought to be supported. Likewise, the State Government has also filed separate reply, and has practically adopted the reply of the Samiti, and again produced those very documents. Then, the facts in Appeal No. 178 are, that the Nokha Khadhya Vyapar Mandal had filed a writ petition, espousing the cause of various members of the association, obviously cause of its members, pleading interalia, that at the action the highest bidders deposited 1/4th amount, which bids have been pleaded to be just and proper, and therefore, the bidders are entitled to the plots. However, the matter was sent to the Director, even though it was not needed, and the Director approved only 53 plots, and for the remaining, approval was not given, rather fresh auction 10 was directed to be held. This information was communicated vide Annexure-4 dt. 15.6.99, which in turn refers to the communication dt. 6.5.1999, copy of which was never provided. Then, in substance, the challenge to the action of Director, is practically on the same ground, as raised in Writ Petition NO. 2150/99, giving rise to Appeal No. 559, and practically similar is the reply. Arguing the appeal no. 912 it was contended by the learned counsel for the appellant, that the learned Single Judge was clearly in error, in dismissing the writ petition, on the ground of it involving the disputed questions of fact, so also on the ground of availability of alternative remedy. According to the learned counsel, the basic facts about the plot having been put to auction, the petitioner having given highest bid, having deposited 1/4th amount on that day itself, and that auction having been cancelled by the Director, are all facts which are not in dispute, and the only question was, as to whether the Director had any jurisdiction, to interfere in the matter, much less to cancel the auction, as the appellant had claimed, that with deposit of 1/4th price, the auction stood finalised, and the rights accrued to the petitioner. Thus, none of the grounds given by the learned Single Judge are sustainable, and the order is liable to be set aside. Then, arguing on merits, it was contended, that the respondent Samiti is the statutory body, and is governed by the 11 provisions of the Act, and the Rules framed thereunder, which no-where provide for any such confirmation from the Director, or State, much less does it confer any power to cancel the allotment, and that being the position, there is no escape from the conclusion, that the petitioner is entitled to be given the plot, by receiving the remaining 75% amount, which the petitioner is always prepared to pay. Thus, the order is wholly without jurisdiction, and is liable to be quashed. On the other hand, learned counsel for the respondent, instead of addressing on the grounds given by the learned Single Judge, contended on the lines of the pleadings taken in the reply, and contended, that a look at the advertisement Annexure-5 itself shows, that as an eligibility condition to participate in a bid, the necessary requirement is, that for that purpose application form has to be obtained by depositing Rs. 100/-, then that application form is submitted by filling in completely, along with security amount of Rs. 5,000/-, upto 10th July, 1998, and the advertisement does not give the condition of auction, but only purports to give important information, “MUKHYA JANKARI”. With this it is contended, that accordingly the petitioner filed application, and the proforma of the application has been produced as Annexure- R/2/1, which clearly shows, that the applicant has carefully read the terms and conditions, and has prayed for 12 being permitted to participate in the auction, agreeing with the conditions, and the conditions are contended to be as many as 28, out of which Condition no. 13 clearly stipulates, that after depositing of 25% of the bid money, balance 75% shall be paid by the bidder within the specified time, after receiving the approval from the Director. Likewise, again in Condition No. 16 it is stipulated, that the possession of the plot shall be delivered to the successful bidder, only after receiving concurrence from the Director. Thus it is clear, that requirement of approval was one of the conditions of the auction, which the petitioner had agreed, and therefore, it is not open to him to decry the action of the Director, in not according approval of the auction. It was also contended, that the petitioner has not produced, or even challenged the original order of the Director, declining to approve the auction, and Annexure-17 is merely communication, informing to take back the amount deposited by the petitioner, by submitting original receipt. In rejoinder, learned counsel for the petitioner appellant contended, that the petitioner was never communicated the order Annexure R/1, whereby the auction was cancelled. Then, regarding Annexure R/2, it was contended, that the documents as produced by the respondent are mere photo stat copies, not bearing any signature of any authority, and in any case, do not bear any signature 13 of the petitioner, as, if the petitioner had submitted this application, or appended his signatures, the respondents could have very well produce the original, or authenticated copy of the document bearing the petitioner's signature. In that view of the matter the petitioner is not bound by this Annexure R/2, and maintained, that action of the Director is wholly without jurisdiction. Other arguments were made by the either side, on the aspect of determining reserve price, its correctness or otherwise, but then, we need not dilate on that aspect, as the main question is, as to whether the Director had any authority to take the action, as taken, not to approve the auction. Then, arguing the other two appeals, being No. 178 and 559, learned counsel for the appellant submitted, that since in view of Annexure R/2/1 it is clear, that in Condition No. 10 it was clearly stipulated, that after depositing 25% of the bid amount, balance 75% shall be paid, approximately within a period of one month, on auction being approved by the Director, and then Condition no. 13 further stipulates, that the possession shall be delivered to successful bidder, only after receiving concurrence from the Director, and thus, the Director had the power to approve, or disapprove the auction. Then assailing the reasonings of the learned Single Judge, it 14 was contended, that of course there is no quarrel with the legal proposition, that whatever is prohibited by law to be done, cannot be done by an indirect and circuitous contrivance, nor any one can be permitted to evade the law, but then under the Act, and/or the Rules, there is no provision whatever, laying down the procedure or conditions, as to how such allotment is to be made, and/or how the auction is to become final. Thus, this area is a completely gray area, and therefore, if the Mandi Samiti had laid down conditions, including conditions requiring approval from the Director, it cannot be said to be tentamounting to resorting to any circuitous contrivance, or violation of law. With this it was submitted, that since according to advertisement Annexure R/2/2, every aspirant to participate in the auction, is to obtain application form by paying Rs. 100/-, then is to fill up that form completely, along with security amount of Rs. 10,000/-, and obtain other informations from the office, and it is with eyes open, that the bidders had appended their signatures on the conditions, and deposited the security amount, and thereupon only, they were allowed to participate. As such, once having participated, by agreeing to the conditions, it is not open to them, now to turn around, and decry, or ask for ignoring of those conditions. It was also contended, that the conditions are laid down in accordance with the guidelines given by the State Government, which the State is competent to lay, by virtue of Section 34-A of the Act, 15 and therefore, the impugned order passed in Writ Petition No. 2150, is liable to be set aside, and since the impugned order in Writ Petition No. 2300 has only been passed taking into account the order passed in Writ No. 2150, both the orders are liable to be set aside. Learned counsel for the respondent, on the other hand, in these appeals, supported the impugned order, by maintaining the stand, that the Director had no jurisdiction. Thus, from the narration of the facts of these cases it is clear, that the main controversy involved in the matters is, as to whether the auction made by the auction committee, was required to be approved by the Director, and/or the Director has any say, or authority, or jurisdiction, in the matter? So far as Appeal No. 912 is concerned, at the outset we may observe, that we are not able to appreciate, and are also not agreeing with, the reasonings given by the learned Single Judge, for dismissing the writ petition, more so when, at that time, other matters were already pending before this Court, and which matters had subsequently been allowed. It is significant to note, as contended by the learned counsel for the appellant that the factual part of the matter is not at all in dispute. Then 16 since the views of the other learned Single Judge, about the powers of the Director, are under challenge in other two appeals: the question of the powers of the Director is required to be gone into, on merits, by us in these appeals, and was required to be gone into by the learned single judge. To start with we may have a bird's eye view of the provisions of the Act, and the Rules made thereunder. Chapter I is about definitions, chapter II is about constitution of markets, then chapter III is about market committee, its constitution, incorporation, functions and duties, appointment of sub-committees and joint committees, appointment and salaries of servants of the market committee, members, officers etc. to be deemed public servant, execution of contracts, power of market committee to issue licenses, suspension or cancellation of licenses granted under Section 14, then power to remove the persons from market yards, appeals against certain specified orders, then power to collect market fees, and then the provisions have been made for market committee fund. Then, provision is made for the purpose for which the fund is to be expended, power to borrow is provided, and power to acquire land is provided. Then, Chapter