Fruit And Vegetable Commission ... vs Delhi Agricultural Marketing ...
2004 Latest Caselaw 1289 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Prayers made in the petition are as under:-

"(a) issue a writ of prohibition, or any other appropriate writ, order or direction, restraining respondents No.1, 2 and 3 from displacing/dispossessing the members of the petitioner association from half of the space already occupied and in their possession on the auction-platforms at the Okhla Fruit and Vegetable Mandi;

(b) issue a writ of prohibition, or any other appropriate writ, order or direction, restraining the respondents no.1, 2 and 3 from enforcing and implementing the Agenda Item No.7 as contained in the minutes of the meeting of the Market Committee held on 23.8.2001 or any other similar resolution/agenda item;

(c) issue a writ of certiorari or any other writ, order or direction in the nature thereof, quashing and setting aside the resolution of the respondent No.2 at Agenda Item No.7 as decided in the minutes of the Market Committee meeting held on 23.8.2001;

(d) issue a writ of mandamus, or in the nature thereof, or any other writ, order or direction, directing Respondent No.5 to issue allotment/demand letter in respect of the auction-platforms constructed by it at the Okhla Fruit and Vegetable Market Mandi to the members of the Petitioner Association, and,"

2. Respondent No.1 is the Delhi Agricultural Marketing Board. Respondent No.2 is Agricultural Produce Marketing Committee. Respondent No.3 is the Chairman of respondent No.2. Respondent No.4 is the Lt. Governor of Delhi and respondent No.5 is the Delhi Development Authority.

3. First petitioner is a registered association of commission agents who are carrying on business from Okhla Fruit and Vegetable Market. Second petitioner is the acting President of the first petitioner. The petition has been filed in a representative capacity for the benefit of members of the first petitioner association.

4. Due to congestion in the existing Phool Mandi at Daryaganj, a decision was taken to relocate the same at a place in Okhla. Delhi Development Authority carried out development work at the site of the new mandi. It constructed shops and open platforms at the new site.

5. Since ownership of the site vested in DDA, DDA as owner was competent to license, lease or sell shops/space at the new mandi.

6. Delhi Agricultural Marketing (Regulation) Act, 1976 was promulgated. The said act made provisions regulating marketing of agricultural produce and establishment of markets for sale of agricultural produce in the Union Territory of Delhi. A board known as "The Delhi Agricultural Marketing Board" was constituted as per the said act. Mandate of the Act was to be carried out by the said board. For the purposes of management of different markets, marketing committees were to be constituted as per the said Act. With effect from 2.6.99, the Act of 1976 stood repealed and was replaced by the Delhi Agricultural Produce Marketing (Regulation) Act, 1998. Under the new Act, a board called the Delhi Agricultural Marketing Board stands constituted. The power and function of the Board, vide Section 17, is to exercise superintendence and control over the marketing committees. Under the new Act, marketing committees stand constituted.

7. Section 55 of the new Act lists the powers and duties of the marketing committees. Inter alia:-

(I) Maintenance including the regulation of admission to, and conditions for use of a market,

(II) Regulating the marketing of notified agricultural produce in the market area;

(III) Specifying any place or spot where a notified agricultural produce shall be stored, displayed or sold are the powers of the marketing committee.

8. Vide Section 55(2)(i) the marketing committee has the power to acquire, hold and dispose of any immoveable property necessary for the purpose of carrying out its duties.

9. Sub-section 3 of Section 4 of the Act reads as under:-

"(3) On a declaration being made under sub-section (1) no local authority shall, notwithstanding anything contained in any other law for the time being in force, establish, or authorise or allow to be established, or continue, or authorise the continuation of any place in the market area for the marketing of agricultural produce specified in the declaration."

10. Undisputably, since power to regulation admission to and impose conditions for use of a market as also the power to regulate the marketing of agricultural produce is vested in the marketing committee, no persons can carry on any work, be it sale, storage, weighment etc relating to agricultural produce within a market area, save and except with the permission of the marketing committee.

11. It is not in dispute that different kinds of licenses are issued by the marketing committee to persons who are desirous of carrying on trade within the precints of a market. Broadly the licenses issued are to operate as a trader, commission agent, broker, processor, weighman, measurer, surveyor and warehouse man. These licenses are issued by the marketing committee under Section 80 of the Act.

12. The market at Okhla, admittedly was not developed by the first or the second respondent. Admittedly, market has been developed and shops/open platforms have been constructed by DDA. Thus, DDA is the owner of the land, buildings and open platforms within the market area.

13. Since entry and conduct of business in a market area is regulated by the marketing committee, the committee has issued licenses to various persons for carrying on trade within the market. Members of the first petitioner association have licenses to function as commission agents/wholesalers within the market.

14. As noted above, shops and open platforms have been constructed by DDA within the market area. Since the marketing committee did not own the shops but had the power to regulate conduct of business within the market and was the authority competent to issue licenses to persons to operate within the market, it forwarded a list of eligible persons to DDA who were to be shifted from the Phool Mandi at Daryaganj to Okhla for being allotted a shop at Okhla Mandi.

15. It is not in dispute that shops at Okhla mandi were directly allotted by DDA to commission agents/wholesalers. 50 shops have been allotted in this category. 210 small shops have been directly allotted by DDA to petty vendors/mashakhors, of course, from out of the list of eligible persons forwarded by the marketing committee.

16. There was some dispute pertaining to the draw of lots held in the year 1985, but the same is of no relevance in the determination of the present petition.

17. Lay out plan of the market(Annexure P-1) would reveal that 50 shops meant for wholesalers/commission agents were constructed by DDA adjacent to the active truck parking site. On the other side of the shops, leaving a 4 mt. wide passage, covered platform space has been provided. Further across, leaving a 4 mt. wide passage, 210 small shops for petty traders/mashakhors have been constructed. Further across a parking space for hand carts and tempos has been provided. Further across retail shopping platform and car parking space is provided.

18. We have no problem so far as the shops are concerned, evidenced by the fact that lease deeds have been executed by DDA in favor of the allottees. Premium has been paid directly to DDA. Ground rent is being paid to DDA.

19. On 22.1.1998, DDA addressed a communication to the first petitioner in connection with allotment of platforms abutting the 50 shops constructed for commission agents/wholesale dealers. The letter reads as under:-

  "No.F.6(1)96/281                    Date: 22/1/98
 

From: Dy.Director (CE)
 

To
 

Sh.Balbir Singh Saini, President, 

Fruit & Vegetable Commission Agents 

Wholesale Traders Association (Regd.), 

Shop No.06, Okhla Mandi, 

New Delhi-110020.
 

Sub: Allotment of auction platforms in front of big shops to the Commission Agents Wholesale dealers at New Subzi Mandi Okhla.
 

Sir,
 

With reference to your letter No. FV/CA/300/97 dated 2.9.97 on the subject cited above, I am directed to inform you that your request for allotment of auction platforms in front of big shops has been considered and acceded to by the Competent Authority. These auction platforms will be allotted to the owners of the Commission Agents shops 1 to 50 on payment of current market rate as determined by the Finance Deptt. subject to the following conditions:-

1. That you will withdraw the court case if any against the DDA.

2. That you will clear the payment of the commission agents shop allotted to you, if due, to be eligible for allotment of the platforms.

3. That you will clear/vacate the site occupied by you at Phool Mandi Darya Ganj, in lieu of which the Commission Agents shop at New Subzi Mandi Okhla was allotted to you.

Yours faithfully,

Sd/-

Dy.Director (CE)"

20. Before letter aforesaid was written, part space of the covered platforms came to be occupied by some petty traders inasmuch as there was delay in handing over possession of the shops.

21. Petitioners state that the covered platforms were meant for purpose of auction of marketing produce. It is only the wholesalers or commission agents who are authorised to conduct auctions. Petty traders/mashakhors do not have the permission to conduct auctions and, therefore, it is only the wholesalers and commission agents who have a right to be allotted space on the covered platforms. Petitioners state that letter dated 22.1.1998 is a recognition of the aforesaid right of the members of the first petitioner.

22. As per the petitioners, till as late as 7.7.2004, DDA continues to recognise the validity and enforceability of its letter dated 22.1.1998. This, according to the petitioners, is evidenced by DDA's letter dated 7.7.2004. Same reads as under :-

"No.F.6(1)1994/CE/2519 Date: 7/7/04

To

Sh.Qasim Malik (General Secretary)

Fruit & Vegetable Commission Agents,

Wholesale Traders Association (Regd.),

Subzi Mandi Okhla,

New Delhi-110020.

Sub: Allotment of auction platforms in front of big shops to the Commission Agents owners of shops No.1 to 50.

Sir,

With reference to your letter No. F2(1)2K/FVCA/17 Dt.02.06.04 and in continuation to this office letter no. F6(1)/1994/CE/1584 dt.23.05.2003 on the subject cited above, I am directed to inform you that your request for allotment of auction platforms in front of big shops has been considered and acceded to by the Competent Authority. These auction platforms will be allotted to the owners of the Commission Agents shops 1 to 50 on payment of current market rate as determined by the Finance Deptt. Subject to the following conditions:-

1. That they will withdraw the court case if any against the DDA.

2. That they will clear all dues.

3. That they will clear/vacate the site occupied by them at Phool Mandi Darya Ganj, in lieu of which the shops at New Subzi Mandi Okhla have been allotted to them. Individual references are being sent to them.

Yours faithfully,

Sd/-

Asstt.Director CE DDA"

23. Petitioners state that their members have withdrawn court cases and have paid a premium demanded for the shops allotted to them by DDA. They have vacated the site occupied by them at Phool Mandi, Daryaganj and there is no reason why DDA should not allot the auctioned platform space to its members inasmuch as DDA is bound by its letter dated 22.1.1998, reiterated on 7.7.2004. As per the petitioners, its representations dated 19.11.1998, 27.9.2001, 20.2.2002, 10.3.2002, 30.3.2002 and 10.4.2003 have gone unheeded by DDA.

24. Petitioners state that they have learnt about the fact that the 2nd respondent passed a resolution on 23.8.2001 at the 21st meeting of the marketing committee. Resolution was to the effect that the covered platform would be allotted to petty traders/mashakhors.

25. Present petition came to be filed when petitioners learnt about the resolution dated 23.8.2001. Prayers made are as noted in para 1 above.

26. Fulcrum of the case of the petitioners is, as pleaded in para 19 of the writ petition. The same reads as under:-

"The petitioner submits that respondents nos.1 and 2 do not have any powers to either allocate or allot any shops, auction-platform or any part of the market area to any person including any licensee operating in the Market Committee. It is stated that the Market has been constructed by the DDA. The allotment and allocation of all the areas within the precints of th Okhla Fruit and Vegetable Market have also been done by the D.D.A. Even as of present, D.D.A is the only Authority which is empowered to allot or to allocate any area to any person, agency of licensee within the precints of the Okhla Fruit and Vegetable Mandi. It is submitted that the respondents No.1 and 2 do not have any power to allot or allocate any shop, auction-platform or any other area within the Okhla Fruit and Vegetable Mandi."

27. As per the counter affidavit filed by DDA, in para 5 of the preliminary submissions, it is pleaded as under:-

"(5) That 50 auction platforms are pending for allotment since 1984. The allotment of these platforms to the owners of the commission agents can be considered on the following conditions at the current market rates only when:

A. They will withdraw the court case if any.

B. They will make the payment of the commission agents shops allotted to them if any due.

C. They will clear/vacate the site occupied by them on Phool Mandi, Daryaganj in lieu of which the allotment was made to them at Okhla, Subzi Mandi."

28. defense of the second respondent is that DDA has no jurisdiction to allot the platform space to any person. Reliance is placed upon Annexure R-1 (undated document) which purports to be a handing over document. Inter alia, said document records that the charge of fruit and vegetable market at Okhla has been handed over by DDA to the second respondent. It is specifically recorded that covered auction platforms 52 mts. x 18 mts. each and one covered auction platform 96 mts. x 16 mts. has been handed over. Document further records that one retail plat form 11 mts. x 76 mts. has been handed over. Besides aforesaid platforms, amenities in the form of urinals, toilets, dust bins, water tank, pump house etc have been handed over. According to the second respondent, since the platforms have been handed over by DDA to it, it is said respondent which is empowered to deal with the platforms.

29. It is the further case of the second respondent that under sub-section 3 of Section 4 of the Act, no local authority has the power to establish or authorise or allow to be established, any space in the market area for the marketing of agricultural produce. It is further the case of the second respondent that under Section 55, power to maintain and regulate the marketing of agricultural produce in a market area, which would include sale and delivery of agricultural produce, is the power of the marketing committee. It is specifically pleaded that power to specify a place or a spot where agricultural produce would be stored or displayed for purposes of sale by open auction is the power of the committee. Accordingly, it is pleaded that DDA would have no right to allot space on the covered platform to any person, said power being within the exclusive domain of the marketing committee.

30. A perusal of the Act would reveal that it intends to regulate the marketing of agricultural produce and establishment of markets in the National Capital Territory of Delhi. By virtue of sub-section 3 of Section 4, no local authority is authorised to establish any place as a market area. Further, the marketing committee(s) has been vested with the power, under Section 55(2)(i), to acquire, hold and dispose of immoveable property for the purpose of efficient discharge of its duties. Further, under Section 55(2)(g), the marketing committee has the power to regulate the marketing of agricultural produce in a market area, which power includes the power to specify a place or a spot where notified agricultural produce shall be stored or displayed for purpose of sale by open auction.

31. It is thus clear that DDA would have no power to establish a market. DDA would have no power to authorise any person to act as a wholesaler, commission agent or a retail seller within a market. DDA would also have no power to specify a place or a spot where agricultural produce could be stored or displayed for purposes of sale within a market area. Said domain undoubtedly is that of the marketing committee.

32. But the question at hand is a little different. Admittedly, Okhla Mandi has been notified as a market by the Board/Committee under the Act. It was open to the Board/Committee to acquire the land in exercise of power under Section 55(2)(i) and develop the market on the acquired land. Had the committee done so, committee could have sold, transferred or allocated shops and open platforms as per policy decision to be taken by the committee. But having not acquired the land, it merely acts as the regulatory authority. The committee required DDA to acquire the land and develop the same as per plan. It is DDA which has spent money on construction of the shops and erection of the platforms. The ownership of the shops and the platforms vests in DDA.

33. As the regulatory authority, the committee has issued license to various category of persons to operate within the market. To this extent, DDA would be bound not to make allotment of any space within the market to a person not holding the requisite license from the committee. Further, DDA would have no power to allot space earmarked for a particular activity to a person not holding the requisite license to perform said functions relating to a space/site within the market for if DDA were to do so, it would amount to DDA authorising a person to carry on an activity within the market, a field within the exclusive domain of the marketing committee.

34. Restriction on the power of DDA to allocate shops/space within the market would thus be subject to a two fold restriction. Firstly, DDA cannot allocate a site to a person other than for the specified purpose to which the site has to be used as per sanctioned plan. Secondly, DDA cannot allot a site to a person who does not hold the requisite license under the Committee.

35. Subject to the two limitations aforesaid, since ownerships vests in DDA, DDA would be authorised to deal with the usable sites in the market.

36. It would equally be permissible for DDA to hand over sites to the committee. If DDA were to do so, it would be open to the committee to deal with the sites.

37. Committee relies upon an undated not which records that the charge of the fruit and vegetable market at Okhla has been handed over to it. Inter alia, structures listed as being handed over to the Committee are: 3 covered auction platforms (dimensions noted in para 17 above) and one retail platform. However, counter affidavit of DDA would reveal that stand of DDA is that it is empowered to deal with the platforms. Counter affidavit of DDA suggests that the auction platforms are meant for 50 shops constructed for wholesalers/commission agents. Letters of the DDA dated 22.1.1998 and 7.7.2004 definitely show that DDA asserts its ownership right qua the platforms.

38. Since DDA asserts ownership of the platforms and the committee asserts right over the platforms under the undated document (Annexure R-1) to the counter affidavit of respondents 1 to 3, issue has to be inter se resolved between DDA and the committee. Issue has to be resolved more so because the undated note under the caption "Handing Over Of Charge Of Fruit And Vegetable Market At Okhla" records:-

The following structures are being handed over to the APMC:

1. COVERED AUCTION PLATFORM No.of structures

i) 2 Nos. (Size -52M x 18M) 2 Nos.

ii)1 No. (Size -96M x 16M) 1No.

2. RETAIL PLATFORM

i) 1 No. (Size - 11M x 76M)

39. If DDA has handed over the platforms to APMC, whether the same are for maintenance or management needs to be inter se resolved between DDA and the Committee. If the covered platforms have been handed over to APMC for management, DDA would loose the right of management qua the platforms which perforce would mean that DDA would have no right to allot space on the platforms to any persons. If, however, platforms have been handed over for maintenance to APMC, it would be a right of DDA to allot space on the platforms. Of course, while allotting space on the platform, DDA would have to ensure that the person to whom space is allotted on the platform holds the requisite license from APMC.

40. Writ petition is accordingly disposed of with a direction to DDA and to the respondents 1 to 3 to take a decision within 6 weeks from today whether right to maintain the platform space has been transferred by DDA to respondent No.2 or not. If it is decided as a result of the deliberation that the right to manage the platforms has been transferred to APMC, entitlement of members of the first petitioner for allotment to space on the platforms would be considered by APMC within 6 weeks thereafter. Space would be allotted as per decision so taken. If, however, decisions is that the platforms continue to vest in DDA, DDA would be bound by the letters dated 22.1.1998 and 7.7.2004. In such eventuality, DDA would allot space on the auctioned platforms to wholesalers/commission agents holding valid licenses under respondent no.2. Subject to fulfilllment of conditions of allotment by the allottees, possession of the platform space would be handed over by DDA.

41. No costs.