Smt. Ramo Devi & Ors. vs Agricultural Produce Marketing ...
2011 Latest Caselaw 3706 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Date of decision: 3rd August, 2011.

+                                W.P.(C) 9786/2006

%      SMT. RAMO DEVI & ORS.                    ..... Petitioners
                   Through: Mr. Ajay Garg, Adv.

                                 Versus

    AGRICULTURAL PRODUCE MARKETING COMMITTEE
    & ANR                                      ..... Respondents
                 Through: Mr. C.S. Parashar & Mr. Sachin
                           Sharma, Advocates for R-1.
                           Ms. Geeta Mehrotra, Adv. for R-2.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.     Whether reporters of Local papers may                     Yes
       be allowed to see the judgment?

2.     To be referred to the reporter or not?             Yes

3.     Whether the judgment should be reported            Yes
       in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petition seeks mandamus to the respondent Agricultural Produce

Marketing Committee (APMC) to allot a site/place of 44 sq. ft. preferably in

Block-A of the Auction Platform at New Sabzi Mandi, Azadpur, Delhi and

in the alternative seeks compensation from the respondent APMC.

2. The petitioner claims to have been a 'Mashakhore' carrying on

business in Old Sabzi Mandi since before the time the trade was shifted

therefrom to New Sabzi Mandi, Azadpur. It is further the claim of the

petitioner that he was unsuccessful in getting an alternative site in New

Sabzi Mandi; that the DDA on 9th July, 1978 invited applications for

allotment of 'Mashakhore Phar' in Block-A covered platform; that the

market at New Sabzi Mandi was thereafter vested in the respondent APMC;

that the petitioner had applied for a 'Mashakhore Phar' for which

applications aforesaid were invited and was vide letter dated 24th October,

1981 of the respondent APMC allotted 44 sq. ft. space in Block-A of the

Auction Platform on the terms and conditions contained therein.

3. The counsel for the petitioner has contended that notwithstanding the

aforesaid allotment of 24th October, 1981, the petitioner was not delivered

possession. Finding that this writ petition has been filed only in or about

May 2006 i.e. after 25 years from allotment, it was enquired from the

counsel for the petitioner as to why the petitioner has approached the Court

after such long delay.

4. The counsel for the petitioner contends that though allotment had been

made but possession was not being delivered by the respondent APMC not

only to the petitioner but to the other allottees also and some of whom had

preferred writ petitions in this Court, one such writ petition being Civil Writ

Petition No.326/1979 titled Piyare Lal Vs. DDA decided vide judgment

dated 1st August, 2002, at page 110 of the paper book.

5. A perusal of the said judgment shows that the claim of the petitioner

therein was of being a licensee and not a 'Mashakhore'. However the Court

found that the petitioner therein had made the application as a 'Mashakhore'

and the Court proceeded to determine the rights of the petitioner therein as a

'Mashakhore'. The judgment records that the petitioner therein was also

made an allotment in 1981 but the matter was kept languishing for

considerable period and on 17th October, 1987 special functional permit was

granted to the petitioner therein in Platform-A as a retailer of vegetables.

The Court then proceeded to consider whether the petitioner therein was

entitled to any allotment in pursuance to the letter of 1981. It was held that

since the letter of 1981 shows that the allotment was on purely temporary

basis as a licensee and was not a permanent arrangement and that the

arrangement which was continuing was in terms of the special functional

permit, no direction as sought for allotment could be made. The only

direction which the Court issued was of the special functional permit granted

to the petitioner in that case to operate till determination by the APMC. It

was further directed that all such similarly situated persons were to be dealt

with similarly and if the special functional permits were to be brought to an

end, the respondent APMC would consider the feasibility of alternative site

for such persons.

6. The counsel for the petitioner contends that the petitioner herein is

similarly situated as the petitioner in that case.

7. The counsel for the respondent APMC has opposed the petition by

filing a counter affidavit. He has contended that the petitioner has

approached this Court after considerable delay and is not entitled to any

relief. It is further pleaded that the petitioner after allotment in his favour

never pursued the matter and never approached APMC for taking possession

of the allotted space for 25 years till 2006 and that now no space is available

in Block-A or in Block-D as the same is already allotted to potato vendors,

onion vendors, Govt. agencies and farmers for selling their respective wares.

8. The claim of the counsel for the petitioner of being similarly situated

as the petitioner in Civil Writ Petition No.326/1979 cannot be accepted. The

petitioner in that case had been granted a special functional permit in the

year 1987 and which has admittedly not been granted to the petitioner.

9. The counsel for the petitioner faced with the same contends that it was

for the respondent APMC to have granted the special functional permit to

the petitioner also who had also been issued the allotment letter in 1981 and

the non-grant of special functional permit to the petitioner is also attributable

to the respondent APMC only and thus the respondent APMC cannot derive

any advantage therefrom.

10. There is no merit in the aforesaid contention. The petitioner if

interested in pursuing the trade from New Sabzi Mandi ought to have, at

least in the year 1987 when special functional permit was granted to some of

the persons who had been issued allotment letters in 1981, approached

APMC for grant of the said permit and having not approached the

respondent APMC for the same, cannot be heard to make a grievance thereof

after long lapse of time.

11. The counsel for the petitioner has contended that just like the

allotment letter had been sent at the address of the petitioner, the special

functional permit ought to have also been sent at the address of the

petitioner. It is contended that the petitioner is a poor and illiterate person

and such persons cannot be expected to be in the know of all the rules, laws

and procedure and it is for the respondent APMC to ensure that equal

opportunity is meted out to all similarly situated persons.

12. I do not find merit in the said contention also. The petitioner

admittedly had no right either in the Old Sabzi Mandi or for any license or

permit in the New Sabzi Mandi as has been found in the judgment in Piyare

Lal (supra) also. It was only a beneficial measure which was being extended

to the persons such as the petitioner. It is well nigh possible that the

petitioner at the then contemporaneous time was not interested in carrying

on business from New Sabzi Mandi, Azadpur and/or finding business there

to be not lucrative shifted his trade elsewhere and has preferred this petition

now when the business in New Sabzi Mandi, Azadpur has grown and

become lucrative.

13. Such persons who, when relocation was underway did not cooperate

in relocation and were not willing to suffer the hardships/inconveniences

inherent in relocation, cannot seek the benefits intended for those who have

to undergo such hardships. The Schemes for relocation are framed to soften

the blow suffered on displacement from the old site. However, now when

the new site is fully developed, the petitioner cannot claim a right under the

Scheme. The petitioner is presumed to have been, in such long span of

time, carrying on business elsewhere and the petition appears to have been

filed to take advantage of the increased volume of business in the New Sabzi

Mandi, Azadpur. The Supreme Court in Chandigarh Admn. Vs. Jagjit Singh

(1995) 1 SCC 745 held such petitions to be more in the nature of a gamble

rather than for vindicating legitimate rights.

14. I have enquired from the counsel for the petitioner as to whether the

special functional permits granted to others have been continued till now or

not inasmuch as in Piyare Lal liberty was granted to the respondent APMC

to determine the same at any time. The counsel states that he has no

instructions in this regard.

15. I may also notice that there is not a single letter/representation from

the petitioner after 1981 claiming the space allotted to him and/or

complaining that while others had been granted special functional permit, he

had not been. A reading of the writ petition shows that the petitioner was

fully aware of the happenings in the petition preferred by Piyare Lal and if

that were to be so, then there is no reason for the petitioner to have not

demanded the special functional permit as were allotted to others. The only

inference is that the petitioner till then did not want to carry on business at

New Sabzi Mandi, Azadpur.

16. In the circumstances there is considerable merit in the contention of

the counsel for the respondent APMC that there has been a sea change since

the year 1981/1987 and now no space is available for grant of any relief to

the petitioner.

17. There is thus no merit in the petition; the same is dismissed. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) AUGUST 03, 2011 bs