Mohd. Yunus Prevez vs Agriculture Market Produce ...
2009 Latest Caselaw 2989 Del

    16
    * IN THE HIGH COURT OF DELHI AT NEW DELHI

    +       W.P.(C) 3349/2007

      MOHD. YUNUS PREVEZ              ..... Petitioner
                    Through        Mr. Anil Panwar, Adv. with
                                   Mr. Arun Gupta, Adv.

                   Versus

      AGRICULTURE MKT. PRODUCE COMM      ..... Respondent
                    Through   Mr. Ajay Bhatnagar, Adv.


      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA

                                 ORDER

% 04.08.2009

1. This is the third round of litigation. Mohd. Yunus

Prevez was one of the petitioner in W.P.(C) 7627/2000. The

petitioner was operating from Subzi Mandi, Shahadra, Delhi,

which was required to be shifted to Gazipur area due to

Delhi Metro project. The petitioner had made a request for

issue of category B license which was not issued. Writ

petition W.P.(C) No.7627/2000 was disposed of vide order

dated 22nd January, 2002 observing as under:-

"CWP No.7627/00 & C.M.11760/00

This matter has been pending since December, 2000. I have heard learned counsel for the parties.

The short surviving controversy in this case is with regard to the payment of the outstanding market fee. Learned counsel Mr. Panwar does not dispute the figures of outstanding market fee as shown at page 103 of the paper book (internal pages 4 & 5 of the

WPC No.3349/2007 Page 1 counter affidavit). It is stated that the parties at serial Nos. 10 & 11 are not the petitioners before the Court. After hearing the parties and considering that the matter involved is only clearing of the outstanding amounts, let the entire outstanding amount, as shown, be cleared by the petitioners in six monthly equal instalments commencing from 10.2.2002. In case the amounts are paid in six monthly instalments, as stated above and latest by 31.8.2002, the petitioners would be eligible for being considered for allotment of premises on licence basis on the usual terms and conditions of the respondents. They would be eligible for allotment, subject to availability of the space. The respondents shall, however, endeavour to accommodate the petitioners if the outstanding payments are made as stated and latest by 31.8. 2002.

The writ petition stands disposed of in the above terms."

(Emphasis supplied)

2. It is apparent from the order dated 22nd January

2002, that the objection raised by the Agricultural Produce

Marketing Committee (APMC for short) was that the

petitioner was liable to pay arrears of market fee and till the

arrears were paid, the petitioner was not eligible for grant of

said license. Accordingly, the Court directed that arrears of

market fee should be paid within 6 months and thereafter

the petitioners therein including Mohd. Younus Prevez would

be eligible for being considered for allotment of premises on

license basis on the usual terms and conditions.

3. The petitioner Mohd. Younus Prevez paid the license

WPC No.3349/2007 Page 2 fee in installments and cleared the arrears. However, he was

not granted licence for new subzi mandi at Ghazipur. He

along with four others had filed the writ petitions in this

Court in 2005. The said writ petitions were disposed of on

17th January, 2007, observing as under:-

"After some hearing it is agreed that if on verification it is found that the petitioners have paid the six monthly installments as directed in terms of the earlier orders passed by this Court and such petitioners had either not submitted appropriate applications or did not submit any application, the petitioners be permitted to apply afresh and on their furnishing appropriate application, the application be considered in accordance with the norms within a maximum period of two months from the date of submitting the complete application with the requisite fee. At the request of the learned counsel for the petitioners it is directed that the petitioners can appear before the Secretary of the respondent on 29.1.2007 for issuance of the forms to the qualified persons. The forms to be submitted within seven (7) days thereafter.

The petitions and the applications stand disposed of.

Dasti to learned counsels for the parties."

4. A bare perusal of the aforesaid order reveals that the

petitioners had alleged that the respondents were not

processing their applications for allotment of license in spite

of payment of arrears of the market fee. The Court directed

APMC to permit the petitioners to submit fresh applications

WPC No.3349/2007 Page 3 within 7 days with requisite fee and the said applications

would be considered within two months.

5. It may be noted that two of the petitioners, who had

filed W.P.(C) 7627/2000 were issued category B licenses by

the respondent APMC vide their resolution No.57/2004 after

they had filed contempt petitions in the High Court for non-

compliance of the order dated 22nd January, 2002. The

petitioner in fact had also filed a contempt petition before

this Court but the contempt proceedings were dropped

because the contempt jurisdiction was not invoked within

time.

6. The respondent APMC has now rejected the

application of the petitioner vide order dated 30th March,

2007 recording as under:-

"I have carefully considered the submission of Sh. Mohd. Yunus. A reference is made to Rule 17 of DAPM (G) (R) 2000. According to which grant, renewal or refusal of a license is subject to condition that the person applying for licence has to have premises to carry on business and the information stated in his application form has to be materially correct. It is correct (sic) on the part of Sh. Mohd. Yunus to state that Rule 17 is not applicable in this case. Such a presumption is today in correct. Further, it is incorrect for Sh. Mohd.

Yunus to contend that none of the present licenses had space when they were granted/licenses. The contention related to ownership is totally miss conceived and Shri. Mohd. Yunus never complied to prove premises on

WPC No.3349/2007 Page 4 ownership. As far as collection of revenue is concerned, same is subject to section 62 of DAPM act 1998 and Rule 38 o f DAPM (G) (R) 2000. the (sic) contention Shri. Mohd. Yunus that Rule 17 is not applicable as the land belong to Govt. of NCT of Delhi/APMC, it is found that same is not correct (sic) as the Rule 17 same is not correct as the Rule 17 is not subject to such condition, accordingly the grant of license can be refused under Rule 17(1) and (2) of DAPM (G) (R) 2000. It is also found that in his application firm, Sh. Mohd. Yunus mentioned the business address which according to him also stopped existing since 2001 when acquired for Delhi Metro hence the information stated by him in the application from was also not materially in correct (sic)."

7. The impugned order records that the petitioner

cannot be granted a license as he does not have

place/premises to carry on business at Subzi Mandi,

Ghazipur. It further states that reference to the earlier

premises at Subzi Mandi, Shahdara is not relevant as the

said mandi ceased to be in existence since 2001, when the

area was acquired for the Delhi Metro project. Lastly, it is

stated that the market fee has nothing to do with the issue

of license.

8. The aforesaid order suffers from procedural illegality as it

fails to notice the orders passed by the Court on 22nd

January, 2002 and 17th January, 2007, which have been

quoted above. The APMC has also failed to notice that till a

WPC No.3349/2007 Page 5 license was issued, the petitioner cannot have the business

place/premises at Subzi Mandi, Gazipur. License is an

essential pre-requisite condition for having business

place/premises. After a license is issued, the respondent

APMC allots premises from where business can be

undertaken. The question which was raised and required a

decision by the respondent APMC was that whether the

petitioner had necessary space/premises at Subzi Mandi,

Shahdara before the mandi was closed and not whether the

petitioner had business space in the new Subzi Mandi,

Gazipur. The order, therefore, refers to irrelevant facts and

material and does not give weightage to the orders passed

by the Court as well as the claim of the petitioner.

9. The respondent APMC has distinguished two cases of

Mr. Babu Taslim and Mr. Rasid Nabab, who were issued

category B license on the basis of order dated 22nd January,

2002. It is stated that Mr. Babu Taslim and Mr. Rasid Nabab

had submitted their applications along with requisite

documents for grant of category B license in time. The said

contention and reasoning is incorrect as by the order dated

17th January, 2007, quoted above, the petitioner was given

permission to file a fresh application. The respondent APMC

cannot go behind the order, after having accepted the same.

I may also note here that the petitioner had applied for issue

of category B license since the year 2000. The contention of

WPC No.3349/2007 Page 6 the respondent APMC that the petitioner did not apply for

category B license and had subsequently made the request

in the year 2007 is incorrect.

10. Another contention raised in the counter affidavit is that

the petitioner's case is one of renewal of license, which was

valid up to 31st March, 1994. This fact is not stated in the

impugned order dated 30th March, 2007. The respondent

cannot be permitted to raise this new contention for the first

time in the counter-affidavit in view of the judgment of the

Supreme Court in the case of M.S. Gill v. Chief Election

Commissioner, (1978)1 SCC 405. The parameters

applicable in the case of renewal of license are different

from the parameters applicable in the case of fresh or new

license. The conditions required to be satisfied are different.

Admittedly the earlier license issued to the petitioner was

valid upto 31st March 1994. This did not prevent the

petitioner to apply for a fresh license in the year 2000. When

the mandi was being shifted to new sabzi mandi at Gazipur,

the petitioner had filed an application for issue of a new

license and not renewal of an expired license.

11. In view of the aforesaid discussion, the writ petition

is allowed and the impugned order dated 30th March, 2007 is

set aside. The respondent APMC will pass a fresh order in the

light of the orders passed by this Court and on merits, within

a period of two months from today. The petitioner will

WPC No.3349/2007 Page 7 appear before the respondent APMC on 18th August, 2009 at

3.00 P.M.

SANJIV KHANNA, J.

    AUGUST 04, 2009
    NA/P




WPC No.3349/2007                                        Page 8