Mohd. Yashin vs Agriculture Market Produce ...
2009 Latest Caselaw 2990 Del

    20
    *         IN THE HIGH COURT OF DELHI AT NEW DELHI
    +         W.P.(C) 7314/2007

      MOHD. YASHIN                              ..... 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. Yashin 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 counter affidavit). It is stated that the parties at serial Nos. 10 & 11 are not the

WP (C) 7314/2007 Page 1 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.

Yashin would be eligible for being considered for allotment of

premises on license basis on the usual terms and conditions.

3. The petitioner Mohd. Yashin paid the license 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 separate writ petitions in this Court in 2005. The said writ

petitions were disposed of on 17th January, 2007, observing as

WP (C) 7314/2007 Page 2 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 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

WP (C) 7314/2007 Page 3 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. Yashin. 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 license 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. Yashin 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. Yashin to contend that none of the present licenses had space when they were granted/licences. The contention related to ownership is totally miss conceived and Shri. Mohd. Yashin never complied to prove premises on 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. Yashin 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. Yashin 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

WP (C) 7314/2007 Page 4 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 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.

WP (C) 7314/2007 Page 5 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 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. 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 appear before the

respondent APMC on 18th August, 2009 at 3 P.M.

SANJIV KHANNA, J.

    AUGUST 04, 2009
    NA




WP (C) 7314/2007                                                  Page 6