* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4937/1997
FRUIT MERCHANTS ASSOCIATION (REGD.) & ANR .... Petitioners
Through Mr. Vikas Yadav, Advocate.
versus
DELHI AGRICULTRAL MARKETING BOARD & ORS. .... Respondent
Through Ms. Avnish Ahlawat, Adv. with Ms.
Latika Choudhary, Adv.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
ORDER
% 05.11.2009
1. The petitioner No.1, Fruit Merchants Association (Regd.), New Sabzimandi, Azadpur has filed the present writ petition for direction to Agricultural Produce Marketing Committee (APMC for short) to pay all legitimate past, present and future amounts demanded by the Northern Railway, the respondent No.3 herein, in respect of Railway sub yard at Azadpur, Delhi, which is also known as Kela siding. Originally members of the petitioner association were carrying on trade at Mori Gate, Ram Nagar and Ajmeri Gate. In 1977, the agriculture market shifted to Azadpur. In 1977, the petitioner No.1 association entered into a license agreement W.P.(C)4937/1997 Page 1 with the Northern Railway for use of the sub yard on payment of Rs.18,000/- per annum for parking of trucks etc. at the Railway sub yard.
2. The Delhi Agricultural Produce Marketing (Regulation) Act, 1976 (hereinafter referred to as the Act) was notified on 5th November, 1976. The Act provides for regulation of purchase, sale, storage and processing of agricultural produce and establishment of markets for agricultural produce and for matters connected therewith or incidental thereto. Under Section 8 of the said Act, the APMC was constituted. As per the notification dated 9th April, 1987, issued by Delhi Administration under Section 4(1) read with Section 6(2) of Act, the market located at new railway station, Azadpur bounded on the North-East by the railway line was declared a subsidiary market.
3. It is the contention of the petitioner that the Railway sub yard became and was included in the subsidiary agricultural market duly notified under the Act. Learned counsel for the petitioner has drawn my attention to Sections 25(1) and 25(2)(f) & (i) of the Act and has submitted that it is the responsibility and liability of the APMC to pay license fee to the Northern Railway, the respondent No.3. It is stated that the petitioners were/are paying market fee @ 1% of the sale price to APMC. It is submitted that the said market fee in fact generates huge surplus.
W.P.(C)4937/1997 Page 2
4. The relevant clauses of the Section 25(1) of the Act read as under:-
"25. Powers and duties of Market Committee-(1) Subject to the provisions of this Act, it shall be the duty of a market Committee-
(i) to implement the provisions of this Act, and of the rules and bye-laws made thereunder for the market area;
(ii) to provide such facilities for marketing of agricultural produce therein as the Board may, from time to time, direct;
(iii) to do such other acts as may be required in relation to the superintendence, direction and control of markets or for regulating marketing of agricultural produce in any place, in the market area, and for purpose connected with the matters aforesaid, and for that purpose, may exercise such powers and perform such duties and discharge such functions as may be provided by or under this Act.
5. Section 25(1) states that it shall be the duty of the market Committee to provide such facilities for marketing of agricultural produce therein as the Board may direct from time to time. For the said clause to apply there should be a direction from the Board to the market Committee to provide such facility. In this connection, my attention has been drawn to the minutes of the meeting of the Delhi Agricultural Produce Marketing Board dated 19th December, 1996. The said minutes record history of the Railway sub yard belonging to the Northern Railway. It is stated that the sub yard was being used by the petitioner No.1 association as a plot, for auction purposes on lease basis @ Rs. 18,000/- per month. On 24th W.P.(C)4937/1997 Page 3 December, 1982, the Railways increased the lease money to Rs.1,33,860/- per annum. However, on representation the aforesaid amount was decreased by the Railways to Rs.66,930/- per annum. The petitioner No.1 association paid the said lease money. With effect from 1st April, 1986, the Railways again in creased the lease amount to Rs.8,02,980/- per annum, but the petitioner No.1 association kept on paying Rs.66,930/- per annum under protest. This had resulted in the arrears of Rs. 78,92,498/-.
6. The Board in its meeting held on 19th December, 1996 considered various aspects including the calculations made by the APMC and funds available with them. It was noticed that Northern Railway had threatened to cancel the lease and refused to allow the petitioner No.1 association to use the said area in case of non-payment of arrears. It is recorded that the APMC as well as the Board had taken up the matter with the Northern Railway at various levels to write off or reduce the arrears but without any concrete results. The Railways were insisting on payment of full amount of arrears before they transfer the lease in the name of the APMC. The Board resolved that the "arrears of Rs.78,92498/- may be paid by APMC, Azadpur to the Railways on account basis." (emphasis supplied). It was further directed that all possible efforts would be made that Northern Railway should charge reasonable amount towards lease rent.
W.P.(C)4937/1997 Page 4
7. It is accepted position that the APMC subsequently negotiated with the Northern Railway and have acquired lease hold rights on the railway sub yards with effect from 1st April, 2000. Thereafter, members of petitioner No. 1 association are not paying any amount either to Northern Railway or to APMC for using the sub yard. The dispute, therefore, in the present writ petition only pertains to arrears of Rs. 78,92,498/- up to December, 1996 and thereafter till 31st March, 2000.
8. The petitioner No.1 had made payment of the entire arrears to the Northern Railway pursuant to the order dated 27th August, 1998 passed on the interim application. The said order records that the petitioner No.1 association had entered into an agreement with the Railways dated 24th November, 1977, for right to use the land at railway sub yard for parking, loading and unloading of trucks on a lease amount of Rs. 18,000/- per annum, which was subsequently revised to Rs. 87,000/- and then to Rs.8,02,980/- per annum. It was noticed that the petitioner No.1 association had defaulted in payment of the said lease amount. The contention that the lease amount should be paid by the APMC from the marketing fee, was rejected as there was no agreement between the APMC and the Northern Railway. The petitioner No.1 association had entered into a private contract with the Northern Railway to use the W.P.(C)4937/1997 Page 5 railway sub-yard and had agreed to pay the lease amount.
9. The resolution of the Board dated 19th December, 1996 relied upon by the petitioner, as noticed above does not given any direction. A suggestion has been given by the Board that APMC may make payment of the arrears on account basis. I do not think that the aforesaid resolution can be regarded as a resolution passed under Section 25(1)(b) of the Act, issuing direction to the APMC to provide the said facility. It is not a direction by the Board to APMC to provide facility for marketing of agricultural produce in future. The resolution in fact dealt with the problem of the arrears payable by the petitioner association to the Northern Railway in terms of the private agreement entered into by the petitioner association with the Northern Railway. The said resolution cannot be read as resolution directing the APMC to provide facility for marketing of agriculture produce. Under Sections 4 and 6 of the Act, the marketing area can be demarcated by making declaration and notification. However, mere declaration/notification does not result in acquisition or transfer of ownership rights in the properties located within that area. Demarcation of the subsidiary market at Azadpur by notification dated 9th April, 1987 did not result in acquisition and transfer of title in the sub-yard belonging to the Northern Railway. The sub-yard was being used by the W.P.(C)4937/1997 Page 6 members of the petitioner association pursuant to mutual understanding and agreement with the Northern Railway. APMC cannot be compelled under Section 25(1) of the Act to make the said payment. It may also be noticed that APMC had entered into negotiations and settled the issue with the Northern Railway soon after the petitioner No.1 association made payment of the arrears towards lease money. The Northern Railway refused to enter into any negotiations and transfer the sub yard to APMC till arrears were paid. It is stated that the arrears were paid only after the order dated 27th August, 1998 was passed by this Court, disposing of the interim application. Section 25 (1) does not stipulate that the marketing committee is liable and responsible for paying lease amount or other payments due and payable to third parties for using their property.
10. Sections 25(2)(f) and (i) of the Act read:-
"25(2)(f) maintain and manage the market,
including the regulation of admissions to, and
conditions for use of, the market;
(g) x x x x
(h) x x x x
(i) acquire, hold and dispose of any movable or
immovable property(including any equipment
necessary for the purpose of efficiently carrying out its duties);"
11. Sections 25(2)(f) & (i) relied upon by the counsel for the petitioner W.P.(C)4937/1997 Page 7 are also of not much assistance. Section 25(2)(f) stipulates that the Marketing Committee is to maintain and manage the market, including the regulations of admissions to, and conditions for use of, the market. The provision does not stipulate that APMC should pay the lease amount payable pursuant to mutual agreement between the petitioner No.1 association and Northern Railway for using the railway sub yard. Duty and function to manage and maintain the market does not impose obligation to pay rent to the Northern Railway. The petitioner association was making payment for using the land to the Northern Railway under their mutual agreement. It is not possible to accept that APMC should pay the lease money to Northern Railway as the said Committee was required to maintain and manage the market.
12. Clause 25(2)(i) permits and allows a marketing Committee to acquire, hold and dispose of any movable or immovable property for the purpose of efficiently carrying out their duties. The APMC in terms of the said clause acquired rights in the sub-yard after payment of arrears by the petitioner No.1 association. APMC cannot be directed to refund payments made by the petitioner association to the Northern Railway because of Section 25(2)(i) relied upon by the petitioners.
13. In view of the aforesaid, I do not find any merit in the writ petition W.P.(C)4937/1997 Page 8 and the same is accordingly dismissed of. There will be no order as to costs.
SANJIV KHANNA, J.
NOVEMBER 05, 2009
NA
W.P.(C)4937/1997 Page 9