Ram Gopal Traders And Ors. vs Delhi Agricultural Marketing ...
2007 Latest Caselaw 2428 Del

JUDGMENT

S. Ravindra Bhat, J.

1. The petitioners are whole-sale grain traders and merchants. In these writ proceedings, they question a resolution of the Agricultural Produce Marketing Board (hereafter, 'the Board' by its resolution dated 14-9-2005 ('the impugned order') whereby it decided to allot space in the newly developed Agricultural Market (hereafter the 'New Narela Mandi') only to commission agents.

2. The Board is an apex institution, constituted under provisions of the erstwhile Delhi Agricultural Produce Marketing (Regulation) Act, 1976. That Act was repealed and replaced by the 1998 Act. The Board is entrusted with over all supervision and control of all the existing Market Committees, development of new markets, improvement in the marketing services and to provide additional facilities like grading and standardization. The Board supervises nine Agricultural Produce Marketing Committees which are functional in Delhi. In September, 1986, the erstwhile Board, acting under the old (repealed) Act, decided to shift an existing (i.e. the old) market place, or mandi dealing in foodgrains, from Narela to a new mandi at Narela. According to the notice issued on 12-9-1986, Category A and B licensees were entitled to space and allotment of plots in the new mandi. Land was acquired by the Delhi Government; it was paid by the Board from a fund, created out of market fees paid by traders and commission agents; it was known as the Market Development Fund. On 31-3-1989, the Board resolved that traders operating in the old market would be entitled to allotment of plots, upon development and shifting of the mandi to its new locale.

3. It is averred, and contended on behalf of the petitioner that the decision of the Board was reiterated in another resolution of 15-12-1997; it was similar to the criteria adopted for allotment of plots/ sites in other markets which were developed at the time, and faced similar administrative action of relocation. The petitioners felt aggrieved by a decision of the Board, revising its previous orders, and disqualifying them from allotment in the new mandi. This decision was taken on 24-5-2000. The decision was challenged before a batch of writ petitions, being WP 701/2002. It was contended that the body which took the decision was not a Board as no board was properly constituted, according to provisions of the Act, and that the decision was procedurally indefensible.

4. Learned Counsel, Shri S.K. Sinha relied upon the findings of this Court, recorded in its judgment dated 4-8-2005, to the effect that the decision to reverse the resolution of 1989 was not taken properly. The court directed the Board to carry out allotments in lines of Resolution No. 3 of 1989 within 90 days unless at a Board meeting held within such period, a clear and unambiguous policy decision on allotment were taken. It is contended that the impugned order is nothing but a mindless reiteration of the previous illegal decision and has to consequently suffer the same fate.

5. Learned Counsel relied upon the intervening decision in the resolution of 15-12-1997 and submitted that the Board was alive to the problems faced by wholesalers and traders who were not commission agents. Such people had been functioning on the basis of valid licenses granted and renewed from time to time. The Board had decided to allot plots to all of them on the basis of a cut off date in 1991. A similar decision for allotment of plots had been taken and implemented when other markets were sought to be relocated. There was no reason why a different policy was to be specially formulated and applied to the petitioners, who undoubtedly fell within the same class as those functioning in such other markets, receiving the benefit of relocation. Thus, the impugned decision was arbitrary and also liable to be set aside as the authorities did not take into account relevant considerations.

6. The respondent Board, in its counter affidavit, defends the impugned order, by which the eligibility for allotment was confined to commission agents, excluding the entitlement of traders and wholesalers, such as the petitioners in this case. It is contended on its behalf that the decision to allot the shops/phads only to such commission agents was necessitated due to a large number of applicants. The Board decided that to accommodate the maximum number of claimants, shops/ phads had to be divided into two working units. The first unit comprised of the basement and the ground floor; the second unit was on the first and second floor. It is claimed, with reference to the previous decision of this Court dated 4-8-2005, that barring the decision about the constitution of the Board, the court never held the decision to confine allotments to only one category of applicants, to be arbitrary. That part of the judgment has become final; even a third party letters patent appeal was filed. The appeal was rejected. Therefore, the reiteration of the previous policy decision cannot be re-opened on merits.

7. Counsel for the respondent urged that earlier there was a proposal to allot one shop to each person or licensee but, over a period of time the arrival of agricultural produce increased manifold. This has led to a demand for more commission agents to handle the increase volume of work. Only 174 plots were created in the area, of which 147 can be developed, as 27 are facing litigation; they are subject to interim orders of this Court. The previous decision of 15- 12-1997, it is contended cannot bind the Board for all times, as it has to discharge its functions on the basis of prevailing factual conditions.

8. The above narration discloses that the Board decided to shift the old market, and develop an new place for construction of a new market place in Narela. Although the old resolution of 1989, of the erstwhile Board undoubtedly discloses that two category of existing licensees, i.e. Category A and Category B licensees, were entitled to be allotted shops, the subsequent thinking appears to have altered. A sub-committee of the Board, after considering all factors, decided on 22-1-1990, that since there were limited plots, in the first instance, only 'B' category licensees (i.e. commission agents) would be eligible for allotment; those holding licenses as on 1-8-1986, were to be considered. The decision alluded to as the Board's policy or resolution of 15-12-1997 is not an order or policy of the Board; it records minutes of meeting in the office of the Chief Minister, where the Chief Minister, a Parliamentary secretary, Secretary of the Board, Joint Secretary of the Board and two Administrators of the Agricultural Marketing Committees of Narela and the Deputy Secretary of one Committee were present. These undoubtedly indicate that the persons involved in the meeting were of opinion that commission agents and wholesalers should be allotted shops. The Board appears to have later had second thoughts; however due to defective nature of the meeting held by it, and irregularities, this Court felt that the decision could not be sustained. Nevertheless, in the previous order of this Court, it was held that:

Under Article 226 of the Constitution, it is not for this Court to substitute its preferred decision or views with that taken by a creature of the statute. This observation is made in the context of the Petitioner's submission that the Category A License [traders/ wholesalers] require space within the Market on a much more urgent basis than commission agents. The Board under the 1998 Act is the proper authority or body empowered to take a decision on the respective needs of the parties, after considering all relevant factors. If there are no mala fides or absurdity in the decision, and if there are no violations of the law, judicial review under Article 226 of the Constitution would not be called.

9. It is no doubt a fact that no one is under a compulsion to trade with commission agents. The farmer, or one brining in his produce in the market, can deal with the wholesaler. Yet, once a decision is taken to deal with a commission agent, the transaction has to be within the market. The are of operation of such agents is confined to the market place. On the other hand, the grain trader can transact outside of the market, provided he pays the prescribed fee, for the sale. To facilitate this, the Board permits clearing of its accounts on a fortnightly basis. Presumably, after considering all these factors, as well as the number of existing category B licenses, the Board reversed its earlier thinking, and decided that for the present, allotments would be confined to eligible commission agents.

10. Judicial review is concerned with the legality, procedural regularity, and bona fides of decision making; courts cannot act as appellate bodies, judging the wisdom of a particular policy decision. Another aspect which has to be borne in mind is that there is no law, rule or regulation which binds down an executive or statutory agency, sans settled rights, or estoppel, to a policy choice, preventing review, as and when required. Administrative or executive functioning implies a dynamic process, requiring flexibility, with attendant leeway to adjust and re-visit policies, assimilating changing times and new developments. If the courts were to hold down executive agencies to policies, they would stultify and undermine executive functioning, which is unwarranted.

11. In view of the above discussion, this Court finds no infirmity, illegality or irregularity in the impugned order, confining eligibility of those desiring allotment in the Narela grain market, to commission agents. The petitions therefore have to fail; they are dismissed, without any order on costs.