Krishna Fruit And Vegetable ... vs Secretary, Apmc Ghazipur Subzi ...
2012 Latest Caselaw 2291 Del

 *      IN THE HIGH COURT OF DELHI AT NEW DELHI

 +                     Date of Decision: 10.04.2012

 %                          W.P.(C) 13279/2009


        KRISHNA FRUIT AND VEGETABLE COMPANY             ..... Petitioner
                       Through:  Mr. M. Mohsin Israily, Adv.

                      Versus


        SECRETARY, APMC GHAZIPUR SUBZI MANDI DELHI
                                                  ..... Respondent
                      Through:  Ms. Latika Chaudhary, Adv.


        CORAM:
        HON'BLE MR. JUSTICE VIPIN SANGHI

 VIPIN SANGHI, J. (Oral)

1. The petitioner has preferred this writ petition to seek a writ of

certiorari, quashing the orders dated 29.06.2005 and 05.06.2006

passed by the respondent. Vide the order dated 29.06.2005, the

respondent Agricultural Produce Marketing Committee (APMC),

Shahdara had informed the petitioner that the petitioner‟s application

to seek renewal of his licence could not be entertained as per Rule

18(5) of the Delhi Agricultural Produce Marketing (Regulation) General

Rules, 2000 (in short „Rules‟) on account of the lapse of the date of

renewal. The petitioner was informed that he could apply for a fresh

licence. By the impugned order dated 05.06.2006 the petitioner‟s

application to seek issuance of a fresh licence has been turned down

by placing reliance upon Rule 17(1)(c) of the Rules by observing that

the petitioner had not deposited any market fee during the preceding

year 2004-05, and earlier also during the year 2002-03, and by

observing that on five inspections being conducted during the period

March, 2004 and April, 2004, the petitioner was not found to be

carrying on the business.

2. The petitioner is the proprietor of M/s Krishna Fruit & Vegetable

Company. The case of the petitioner is that the petitioner obtained

licence under the aforesaid Rules in the year 2000. The said licence

was renewed year after year. The said licence expired on 31.03.2005.

The petitioner applied for renewal of the said licence. However there

was delay in making the said application. As aforesaid by the

impugned memorandum dated 29.06.2005 he was informed that his

application for renewal could not be entertained. Reliance was placed

on Rule 18(5).

3. The relevant extract of Rule 18 reads as follows:

"(3) An application for the renewal of licence shall be made at least thirty days before the date on which the licence is due to expire.

Provided further that the authority competent to renew a licence may, on the applicant‟s paying a penalty equal to the amount of annual licence fee, grant an application for

renewal made within thirty days after the date of expiry of the due date. The authority competent to renew a licence may remit the penalty in whole or in part, if it is satisfied, by recording in writing that the delay was for reasons beyond the control of the applicant.

Provided further that no licence shall be renewed for a part of the year.

(4) Every renewal of a licence granted under this rule shall be deemed to take effect from the date following that on which the licence has expired.

(5) Except as provided in sub-rule(3), every application for renewal of a licence made after the date of expiry thereof shall be treated as an application for the grant of a fresh licence."

4. A perusal of the Rules shows that an application for renewal of

licence is required to be made at least 30 days before the date on

which the licence is due to expire. However, the authority competent

to renew the licence may, on the applicant‟s paying a penalty equal to

the amount of annual licence fee, grant the application for renewal

made within 30 days after the date of expiry of the due date. Under

Rule 18(5) it is provided that except in respect of applications which

are made within 30 days of the date of expiry of the licence, every

application for renewal of a licence made after the date of expiry

thereof, shall be treated as an application for the grant of a fresh

licence.

5. Since the petitioner‟s licence expired on 31.03.2005, and the

petitioner applied for the renewal of the licence only on 17.06.2005,

the stand taken by the respondent in their

communication/memorandum dated 29.06.2005 cannot be said to be

unjustified or illegal. The said stand taken by the respondent is in

accord with Rule 18(5) of the said Rules. Consequently, the challenge

to the memorandum/communication dated 29.06.2005 fails.

6. The petitioner thereafter moved an application to secure a fresh

licence on 01.07.2005. By the impugned order dated 05.06.2006 that

application was turned down by the respondent. I may extract the

relevant portion from the impugned order which reads as follows:-

"And whereas the Director Agricultural considered the matter and observed that the firm had not deposited any market fee during 2004-2005 and earlier also during 2002-2003. Further it is also observed that five inspections were carried out during the March 2004 & April 2004 but the firm was not found carrying out his business.

And whereas as per Rule 17(1) of DAPM (R) General Rules, 2000, the Director may refuse the GRANT OF A Licence if the Licence has not been functioning during the preceding year without any reasonable cause.

And therefore, the applicant is not beyond doubt that he is not applying for the Licence only for voting purpose which is not permitted as per Rule 17(1)(b) of DAPM (R) General Rules, 2000.

Now therefore, the Director has being the competent authority considered the case and found that the case is not fit for grant of licence."

7. The petitioner sent his response to the said communication on

26.06.2006. The petitioner informed the respondent that for the

session 2002-03 the petitioner had deposited market fee of Rs. 2753/-

In respect of the year 2004-05, it was stated that the petitioner was ill

and therefore the petitioner did not carry on any business and deposit

any market fee for the said period.

8. The petitioner was informed vide communication dated

12.03.2007 that the petitioner could prefer an appeal before the Vice-

Chairman, Delhi Agricultural Marketing Board, Janakpuri, if he was

aggrieved by the order dated 05.06.2006. It appears that the

petitioner preferred an appeal against the non-renewal of his licence.

Vide communication dated 21.06.2007 he was informed that the

appeal dated 14.04.2007 against the non-renewal of the licence does

not lie before the Vice-Chairman, Delhi Agricultural Marketing Board,

Janakpuri.

9. The case of the petitioner is that his application for issuance of a

fresh licence was again taken up for consideration before the

Licensing sub-Committee, Shahdara in its meeting held on 10.01.2008.

In this meeting it was decided that the case of the petitioner be

referred to the Chairman who was competent to take a decision in this

regard. Further, the case of the petitioner is that his case was again

considered by the entire body of the Agricultural Produce Marketing

Committee, Shahdara in its meeting held on 19.03.2008. The decision

taken in relation to the petitioner‟s case in the said meeting reads as

follows:-

"The licence no. A-123 of M/s New Krishna Fruits & Vegetables Co. could not be renewed during the session 2005-2006 therefore, it is lapsed automatically. Thereafter, the firm has been repeatedly applying for renewal. The file was cancelled at the state of the Director. The committee unanimously grants the permission to renew the licence in view of the Resolution no. 27.04/28.01.2004 passed by the Board. But the Committee is also of the view that the file be checked by the Legal Advisor of the Board as well as by the Secretary of the Marketing Committee to find out if any rules are violated then the Committee be informed."

10. The petitioner submits that even after the said meeting, the

licence has not been issued on account of wholly misconceived legal

opinion given by the respondent‟s counsel. The said legal opinion

proceeded on the basis that the petitioner had been issued a show

cause notice to cancel the licence, whereas, according to the

petitioner,no such show cause notice was ever issued to the petitioner.

The legal opinion also proceeds on the assumption that the party could

have filed an appeal against the rejection of his application dated

05.06.2006, but that the same had not been preferred. The counsel

had opined that the petitioner was not covered by the board resolution

no. 27/04 dated 28.01.2004.

11. Since the petitioner did not receive a fresh licence, the present

petition has been preferred. The petitioner has also placed on record a

copy of the circular dated 20.02.2004 which makes a reference to the

board resolution no. 27/04 under agenda item No. 16 passed by the

Delhi Agricultural Marketing Board in its meeting held on 28.01.2004.

By this resolution it had been decided to grant fresh licenses to those

who failed to apply for renewal/amendment of their licence within the

prescribed time, in lieu of previous/lapsed licenses, with the condition

that they will loose the seniority of previous licenses and will be

allotted new number.

12. The submission of Mr.Israily, learned counsel for the petitioner is

that in the light of the aforesaid resolution the respondent could not

have rejected the petitioner‟s application for issuance of a fresh

licence. Mr. Israily places reliance on orders passed in few other writ

petitions which have also been placed on record. The Courts have

relied upon the aforesaid resolution no. 27/04 and given effect thereto

and directed issuance of fresh licenses even in cases where the earlier

licence had lapsed and the fresh licence had been applied for

belatedly.

13. Learned counsel for the respondent, on the other hand, places

strong reliance on Rule 17(1)(c) of the Rules to submit that the

petitioner is not entitled to seek issuance of a fresh licence as,

admittedly, the petitioner had not carried on any business during the

financial year 2004-05 and had not deposited any market fee during

that period. Rule 17(1)(c) of the Rules reads as follows:-

17. Refusal to grant or renew a licence

(1) The committee or where the committee has not been constituted or started functioning, the Director may, as the case may be, refuse the grant or renewal of a licence, inter alia, if-

(a) .....................

(b) .....................

(c) the licence has not been functioning during the preceding year without any reasonable cause.

(d) ...................

(e) .................

(f) .................

(g) ................."

14. Learned counsel submits that the petitioner had not preferred

any appeal against the impugned order dated 29.06.2006 or against

the order dated 05.06.2006, and the only appeal preferred was against

the refusal to renew the petitioner‟s licence. She further submits that

the ground of illness was taken for the first time in the communication

dated 26.06.2006. No such ground had been taken earlier either while

applying for renewal of the licence on 17.06.2005, or even when the

fresh licence was applied for on 01.07.2005. Learned counsel submits

that since the petitioner appears to have gone out of business, he

cannot be considered for grant of fresh licence as there is immense

pressure on the respondent for issuance of licences after the market

has been shifted to Ghazipur. She submits that there is derth of space

in the said market and the petitioner could be seeking

renewal/issuance of a fresh licence only for the purpose of trading his

licence.

15. Learned counsel for the petitioner submits that the petitioner

was not well during the relevant period i.e., 2005-06 and therefore

could not carry on his business. In support of this submission, the

petitioner has placed on record a medical certificate issued by Dr.

A.H.Zaidi, B.Sc., B.U.M., M.S. (Alig.) dated 08.11.2010. This medical

certificate certifies that the petitioner was suffering from L.Spondylitis

for a period of 82 days with effect from 15.03.2005 to 04.06.2005 and

that he was absent from duty as it was absolutely necessary for the

treatment/restoration of his health. The said certificate also contains a

note to the effect "Not Valid for Court or medicolegal purpose".

16. Having heard learned counsels for the parties, I do not find any

merit in this petition and I am inclined to dismiss the same.

17. I have already held that in the face of Rule 18(5) of the Rules,

the stand taken by the respondent in its memorandum dated

29.06.2005, that the petitioner should apply for a fresh license and the

application for renewal cannot be considered, is unassailable.

18. The mainstay of the petitioners submissions are the resolution

passed by the APMC, Shahdara in its meeting held on 19.03.2008, and

the resolution No.27/04 dated 28.01.2004 passed by the Board. So far

as the minutes of the meeting of the APMC, Shahdara dated

19.03.2008 are concerned, the resolution to renew the petitioners

license, in view of resolution No.27/04, was subject to the file being

checked by the legal advisor of the Board as well as by the Secretary

of the Marketing Committee to find out of if any rules are violated.

19. Obviously, the APMC, Shahdara could not have breached the

statutory rules which were applicable in the case of the petitioner. The

resolution No.27/04 dated 28.01.2004 which provides for grant of a

fresh license to those who fail to apply for renewal/amendment of

license within the prescribed limit, in lieu of the previous/lapsed

license, also has to be read in conjunction with the rules. Rule 17(1)(c)

is amply clear. In no uncertain terms, it provides that the committee

or the director, as the case may be, may refuse to grant or renew the

license, inter alia, on the ground that the licensee has not been

functioning during the preceding year, without any reasonable cause.

The APMC, Shahdara was cautious, while passing the resolution dated

19.03.2008 by providing that the petitioners case be checked for

violation of any rule.

20. The purport of the resolution No.27/04 dated 28.01.2004 cannot

be that a fresh license would be granted even in such cases, where the

grant of the license is barred by the statutory rules. In the present

case, admittedly, the petitioner did not function during the preceding

year, i.e. 2004-05. The legal opinion dated 26.04.2008, no doubt,

appears to be inaccurate on various factual aspects. However, it

makes reference to the rejection of the petitioners application for grant

of a fresh license vide order dated 05.06.2006 on the basis of Rule

17(1)(c) of the Rules. Therefore, the legal opinion that the petitioner

case will not be covered by the board resolution No.27/04 appears to

be correct.

21. The submission of Mr. Israily that the petitioner has been able to

disclose a reasonable cause for not functioning during the preceding

year 2004-05 is wholly unsubstantiated and not convincing. As

submitted by the respondent, no ground of illness was set up by the

petitioner, when the petitioner applied for renewal of the license on

17.06.2005 belatedly. No such ground was raised when the petitioner

applied for issuance of a fresh license on 01.07.2005. Only after

issuance of the impugned communication dated 05.06.2006, the

petitioner for the first time stated in his communication received on

26.06.2006, that he could not deposit any market fee during the year

2004-05, as he was ill. Neither any further details were given about

the illness, nor any medical certificate or documents in support thereof

were produced.

22. Even with this petition, the petitioner did not produce any

documents in support of his plea that he and his wife were ill. Only

with the rejoinder, the aforesaid medical certificate has been

produced. This medical certificate is highly unreliable. It has been

issued on 08.11.2010 in relation to an illness allegedly suffered during

the period 15.03.2005 to 04.06.2005. This certificate does not even

state that Dr. A.H. Zaidi, B.Sc, B.U.M., M.S. (Alig) had treated the

petitioner Ramesh Pandit. It is startling to see that the author of the

said certificate claims to remember the nature of the petitioners

suffering and the exact period of the alleged sufferance of the

petitioner, i.e. between 15.03.2005 to 04.06.2005 even after more

than five years thereof.

23. I was inclined to initiate an enquiry into the authenticity of the

said certificate. However, Mr. Israily has requested that the same be

not done. This certificate, in any event, pertains only to 15 days of the

financial year 2004-05. It is not explained as to why the petitioner did

not carry on any business during the entire financial year 2004-05, and

did not deposit any market fee during that period. Therefore, it cannot

be said that the petitioner has been able to disclose any reasonable

cause for not functioning in the preceding year, i.e. 2004-05.

24. I may also note that during the course of hearing, it was

submitted by learned counsel for the petitioner that he had been

carrying on business at Gazipur Sabzi Mandi, and even now he was

being challaned. To enable to the petitioner to place on record the

documents in support of this submission, the matter was adjourned on

09.04.2012 and taken up today.

25. The petitioner has only produced a one page affidavit dated

10.04.2012, which is taken on record, stating that the petitioner deals

in the business of food and vegetables in the Gazipur Sabzi Mandi.

However, not a single challan has been issued to the petitioner.

Consequently, the claim of the petitioner that he is still carrying on his

business remains unsubstantiated.

26. For the aforesaid reasons, I find no merit in this petition and the

same is dismissed, leaving the parties to bear their respective costs.

VIPIN SANGHI, J APRIL 10, 2012 mb/sr