Fruit Merchants Association ... vs Delhi Agricultural Marketing ...
2009 Latest Caselaw 4494 Del

    *         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