Delhi High Court
Braj Bhan Rahul & Ors. vs Agricultural Produce Market Committee ... on 19 June, 2024
Author: Sudhir Kumar Jain
Bench: Sudhir Kumar Jain
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 13th March, 2024
Decided on: 19th June, 2024
+ W.P. (C) 8460-8474/2005
BRAJ BHAN RAHUL & OTHERS
..... Petitioners
Through: Mr. Anup Kumar Das,
Ms. Aayushi Gupta and
Mr. Nairit Bansal, Advocates
V
AGRICULTURAL PRODUCE
MARKET COMMITTEE & OTHERS
..... Respondents
Through: Mr. Ajay Kumar Bhatnagar,
Advocate for R-1 & R-2
CORAM
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
1. The present writ petitions are filed under Article 226 of the
Constitution of India for issuance of directions to the respondents for
quashing the orders of cancellation of licenses of the petitioners and
to restore and renew the 'A' Category licenses of the petitioners
issued to them under The Delhi Agricultural Produce Marketing
(Regulation) Act, 1998 (hereinafter referred to as "the Act") and
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Delhi Agricultural Produce Marketing (Regulation) General Rules,
2000 (hereinafter referred to as "the Rules").
2. The facts of the present case as stated in the petition are that
the petitioners were engaged in sale and purchase of fruits and
vegetables at Subzi Mandi, Shakarpur Pushta, Shahdara, Delhi. The
petitioners submitted Application Forms supported with necessary
documents with the respondent no.1 for obtaining 'A' Category
Licenses and were granted 'A' Category Licences for entire Trans
Yamuna Market Area after making proper enquiries and verification
of the facts stated in the Application Forms and the documents filed
by the petitioners along with Application Forms. The licenses were
granted for Subzi Mandi, Shakarpur Pushta, Shahdara, Delhi which
was an approved sub yard of the respondent no.1. The petitioners
were not having allotted shop/place in Fruit & Vegetable Market,
Ghazipur, Delhi-110096 and as such continued to carry on sale and
purchase of fruits and vegetables at Subzi Mandi, Shakarpur Pushta,
Shahdara, Delhi. The petitioners had deposited market fees regularly
in the office of the respondent no.1 at Shakarpur, Shahdara, Delhi.
The sheds of the fruits and vegetables were demolished on
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04.05.2002 and the petitioners were removed from Subzi Mandi,
Shakarpur Pushta, without giving any notice to them. The
respondents had assured the petitioners for providing sheds to the
petitioners at the newly constructed fruit and vegetable market at
Ghazipur, Shahdara, Delhi for carrying on sale and purchase of fruits
and vegetables but the respondents did not allot any shed or any other
place to the petitioners in Fruit and Vegetable Market, Ghazipur,
Shahdara, Delhi.
2.1 The respondent no.1 after demolition of the sheds from Subzi
Mandi, Shakarpur, Shahdara, Delhi issued Show Cause Notices to the
petitioners regarding cancellation of licenses of the petitioners. The
petitioners along with other licence holders filed Civil Writ Petitions
bearing no. 4570/2002 titled as Subhash & Others V Govt. of
N.C.T. of Delhi & Others and 1355/2003 titled as Sonia Kapoor &
Others V Govt. of N.C.T. of Delhi & Others before this Court for
allotment of alternative places at Ghazipur Fruit and Vegetable
Market, Delhi which were disposed of vide order dated 05.08.2003
with directions to take necessary decision in pursuance to the show
cause notices and responses received from the petitioners after due
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consideration of the documents within four months. The respondent
no.1 after order dated 05.08.2003, commenced a follow up action on
the basis of Show Cause Notices. The petitioners submitted reply to
the show causes notices wherein they denied the allegations of the
show cause notices regarding obtaining of the licenses by submitting
false and wrong information. The petitioners also submitted their
supporting documents along with replies to the show cause notices.
The Assistant Secretary of the respondent no.1 cancelled the renewal
applications of the petitioners by a common Order/Letter without
giving reasons and without proper scrutiny and verification of the
documents submitted by the petitioners in gross violation of order
dated 05.08.2003.
2.2 The petitioners filed their respective Appeals before the Vice
Chairman of the respondent no.2 i.e. Delhi Agricultural Marketing
Board under Section 82 of the Act. The petitioners also submitted the
documents along with Appeals and also denied allegations of the
respondent no.1. The Vice Chairman of the respondent no.2 did not
consider the Appeals properly and did not provide any opportunity to
the petitioners to present their cases and dismissed the Appeals
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mainly on the ground that since the Shakarpur Pushta Mandi has been
demolished, as such the appellants i.e. the petitioners have lost the
grounds of holding licenses. The Vice Chairman of the respondent
no.2 adopted unjustified approach while deciding the Appeals of the
petitioners. The orders of the Secretary of the respondent no.1 of
cancelling the applications for renewal of licences of the petitioners
and the subsequent dismissal of appeals by the Vice Chairman of the
respondent no.2 were unjustified, illegal and against natural justice.
2.3 The petitioners being aggrieved, challenged the orders of the
Assistant Secretary of the respondent no.1 and the Vice Chairman of
the respondent no.2 primarily on the grounds that the respondent no.1
granted the licenses to the petitioners under section 80 of the Act and
under Rule 12 of the Rules after making proper inquiries and
verification of the facts stated in the Application Forms and the
documents submitted along with Application Forms. The respondent
no.1 has renewed the licences of the petitioners from time to time
after making necessary inquiries and fresh verification of the facts
and the documents. The petitioners have deposited/paid market fees
regularly with the respondent no.1 at Shakarpur, Shahdara, Delhi till
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May, 2002. The petitioners at the time of demolition/removal of the
sheds at Shakarpur Subzi Mandi in the May, 2002 were assured by
the respondents to provide suitable places at Ghazipur Fruit and
Vegetable Market to carry their business. The Vice Chairman of the
respondent no.2 as Appellate Authority did not provide sufficient
opportunity to the petitioners to represent their Appeals and rejected
the Appeal on irrelevant ground of removal of sheds at Shakarpur
Subzi Mandi sub yard and the petitioners have lost the ground to hold
the licences. The petitioners prayed as under:-
A. issue a Writ of Mandamus or such other similar orders
thereby quashing the Orders of the Respondent No. 1 and
the Respondent No. 2 in respect of the cancellation of „A‟
Category Licences of the Petitioners;
B. pass appropriate directions to the Respondents to restore
and to renew the „A‟ Category licences of the Petitioners
w.e.f. the due date i.e. when the same were discontinued;
and
C. pass any such other or further order and/or direction,
which this Hon'ble Court may deem fit and proper in the
facts and circumstances of the case in the interest of justice.
3. The respondents no.1 and 2 filed counter affidavit wherein it is
stated that the petitioners were granted 'A' category licences to carry
on the trade and business as a wholesaler from their residential
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addresses. The respondent no.2 requisitioned all files pertaining to
the grant of 'A' Category Licences and thereafter an investigation
was conducted against then Secretary and other officials of
respondent no.1. The respondent no.2 during investigation found
certain irregularities in the grant of 'A' Category licences to the
traders of Subzi Mandi, Shakurpur Pushta, Delhi. The respondent
no.2 placed the then Secretary and Assistant Secretary-I of the
respondent no.1 under suspension. Anti-corruption Branch, Delhi
also registered a case vide FIR No. 10 dated 04.03.2003 under
section 120B IPC read with sections 420/468/471 IPC and section 13
(l) (d) of Prevention of Corruption Act, 1988.
3.1 The respondent no. 1 never assured the petitioners of any
alternative site or shed at Ghazipur Subzi Mandi, Delhi or at any
other place. MCD/PWD on 04.05.2002 removed the Mandi from
Shakarpur Pushta for construction of road which was raised on the
public land after encroachment. Rule 17(C) of the Rules required for
renewal of licence that the applicant should have carried on business
for at least one year prior to submitting application for renewal of
licence. The petitioners neither informed the respondent no1about
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this fact nor deposited market fee from 06.05.2002 onwards. The
respondent no1as per Rule 17(C) may refuse to grant or renewal of a
licence if the licensee has not been functioning during the preceding
year without any reasonable cause.
3.2 The respondent no.2 on checking of the records of the licenses
granted to the traders including the petitioners to carry out their trade
and business at Subzi Mandi, Shakarpur Pushta, Delhi found several
deficiencies in the documents of the petitioners which necessitated
issuance of Show-cause Notices to them and the petitioners were
informed accordingly. The petitioners were not parties in writ
petitions bearing no W.P. (Civil) 4570/2002 titled as Subhash &
Others V Govt. of N.C.T. of Delhi & Others and W.P. (Civil)
1355/2003 titled as Sonia Kapoor & Others V Govt. of N.C.T. of
Delhi & Others which were disposed of vide order dated 05.08.2003
with directions to the respondents to take necessary decisions in
pursuance of the Show Cause Notices and to consider explanations
received from the petitioners. The Show Cause Notices were issued
to the petitioners in November, 2002 i.e. prior to the order dated
05.08.2003 and every noticee was asked to show cause regarding
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irregularity/lapse/illegality about documents filed by them for 'A'
Category licence. The respondent no.1 in its meeting held on
14.01.2004 considered the explanations to the show-cause notices
submitted by the petitioners and decided that the petitioners were not
carrying on the business of fruits and vegetables. Accordingly,
renewal of licences pertaining to the years 2002-03 and 2003-04
could not be done and the licences of the petitioners were cancelled
after granting reasonable opportunity to the petitioners by issuance of
Show Cause Notices and after considering their explanations which
were not found satisfactory. The licences were cancelled on just and
sufficient reasons.
3.3 The petitioners were given proper opportunity of being heard
in Appeals. The respondent no.2 considered Appeals of the
petitioners but the petitioners could not give satisfactory
explanations. The petitioners did not produce documents to rebut
allegations as mentioned in Show Cause Notices and made
allegations. The respondent no.2 on basis of record noticed
observance of due process of law in cancellation of licenses; The
respondent no.2 also observed that the petitioners were not issued any
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licenses for Shakarpur Pushta but on different residential addresses.
The licenses were issued on the addresses which were situated much
far from trading place of the petitioners. The respondent no.2 passed
speaking orders while dismissing Appeals. The petitioners were
holding licenses at their residential addresses as such the petitioners
cannot claim as right allotment of sites/shop because the petitioners
were not having the licenses of a commercial space or shop.
3.4 The petitioners were encroachers on the land at Shakarpur
Pushta and they were moved out in May, 2002 for construction of a
road and connecting fly over. The respondents were not having
control to stop removal of encroachments at Shakarpur Pushta, Delhi.
The petitioners were not entitled for space/site/phar at Subzi Mandi,
Ghazipur as they were granted 'A' Category licenses at their
residential addresses. There is no space available at Subzi Mandi,
Ghazipur to accommodate the petitioners whose licenses were
cancelled in accordance with law and their appeals were also
dismissed. The licenses were to be renewed every year. Rule 18 of
the Rules lays down that a licence shall be valid for the period for
which it is issued and shall, subject to any order passed, be renewable
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by the competent authority on payment of fee prescribed for the issue
of such licence. The cancellation of licenses was neither arbitrary nor
illegal and was done after following due procedure. The respondent
no.2 passed speaking order while dismissing Appeals filed by the
petitioners. It was prayed that the petition be dismissed.
4. The petitioners filed a rejoinder wherein besides reiterating
contents of petition and denying contents of counter affidavit, it is
stated that the allegations contained in FIR bearing no. 0010/2003
dated 04.03.2003 registered by Anti-Corruption Branch did not have
any connection with the case of the petitioners. None of the licenses
issued to the petitioners is involved in said criminal case. FIR bearing
no. 0010/2003 dated 04.03.2003 was related only to those traders to
whom licenses were granted at Shahdara Subzi Mandi. The
petitioners were granted licenses when they were carrying on their
vegetable business at Subzi Mandi, Shakarpur Pushta. FIR bearing
no. 10/2003 has no concern with the licenses granted to the
petitioners, particularly the petitioners who were carrying on their
vegetable business at Shakarpur Pushta Subzi Mandi, Delhi. The
petitioners were having legal right to carry on their vegetable trade
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and business at any place in entire Trans Yamuna Area under the
terms and conditions of the licence. The respondents were not
empowered to discontinue renewal of the licenses of the petitioners
due to mere removal of Subzi Mandi, Shakarpur Pushta. The
petitioners were carrying on their vegetable trade and business from
private shops and from their own premises. The petitioners did not
leave Subzi Mandi, Shakarpur Pushta by themselves but MCD/PWD
forcibly removed the petitioners from Subzi Mandi, Shakarpur
Pushta. The respondents cannot refuse to renew the licenses on
ground that the petitioners did not have place to carry on their
business. The petitioners had submitted proper explanations to the
Show Cause Notices along with documents. The petitioners were
regularly carrying on business of fruits and vegetables and their
licenses cannot have been discontinued by the respondents. The
respondent no.2 dismissed Appeals filed by the petitioners by
adopting erroneous view that since Subzi Mandi, Shakarpur Pushta
was removed by MCD/PWD, as such the petitioners were not having
any place to carry on trade of fruits and vegetables.
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5. The petitioners also filed additional counter affidavits wherein
it is primarily stated that the orders passed by the respondents
whereby the licenses of the petitioners were cancelled are liable to be
set aside and the licenses of the petitioners be renewed.
6. The counsel for the petitioners advanced oral arguments and
submitted written submissions. It was argued that the petitioners were
granted licenses of 'A' Category in year 1999 after verification of
documents under Delhi Agriculture Marketing Regulation Act, 1998
read with General Rules, 2000 and were legally entitled to carry trade
and business of selling fruits and vegetables as wholesalers. The
licenses were renewed on yearly basis by the respondents but the
licenses of the petitioners were taken up for investigation in year
2002 on frivolous reasons. The respondents in November, 2002
issued show cause notices to the petitioners pointing out few
procedural irregularities in grant of said 'A' Category licenses to ·the
petitioners who were carrying on their business under licenses at
Subzi Mandi, Shakarpur Pushta, Delhi. MCD along with PWD
around May, 2002, removed Subzi Mandi, Shakarpur Pushta for
construction of flyover and road. The respondents issued show cause
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notices due to some deficiencies in applications for grant of 'A'
Category licenses.
6.1 The details of deficiencies mentioned in show cause notices
issued to the petitioners and their respective replies would reveal that
such deficiencies as pointed out by the respondents were curable and
procedural without having any affect on grant of licenses. The
counsel for the petitioners referred various deficiencies which were
pointed out by the respondent no.1 such as affidavit/undertaking were
without date; copy of ration card appeared to be tampered;
Application Form was without signature of applicant; Application
Form was without photograph of the applicant and signature differs;
overwriting in rent agreement without signatures of witnesses and
landlord; NOC without date and attested on 03.12.1999; site map
leaded verification; no photograph and signature of family head in
ration card; signature differed on documents etc. It was further
argued that the petitioners submitted written replies to the show cause
notices and also submitted notarized documents to correct
deficiencies. The respondent no.1 accepted applications and issued
licenses only after completion of legal formalities which were
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renewed on year to year basis. The petitioners are ready and willing
to correct any deficiency in documents submitted to the respondents.
However, the respondent no.1 failed to consider the explanations and
submissions of the petitioners in right prospective and rejected such
explanations and also did not grant any opportunity to rectify the
procedural lapses.
6.2 The counsel for the petitioners further argued that the
petitioners also filed statutory Appeals before the respondent no.2 to
impugn orders of the respondent no. 1 which were dismissed by
passing identical and similar orders by observing that the petitioners
were holding licenses on their residential addresses and therefore,
they cannot claim as matter of right allotment of site/shop/phar
because the petitioners were not having the licenses of a commercial
space or shop and such plea was not raised by any party. The
respondent no.2/Appellate Authority failed to give personal hearing
to the petitioners in respect of such observations.
6.3 The respondent no.1 had itself written residential addresses of
the petitioners on their respective licences. There was no legal bar to
issue statutory licenses on residential addresses. The counsel for the
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petitioners further argued that procedural defect falls within the
purview of irregularity and capable of being cured and should not be
allowed to defeat the substantive right accrued to the litigant without
affording reasonable opportunity and relied on M/s. Ramnath
Exports Pvt. Ltd. V Vinita Mehta & Another, (2022) 7 SCC 678.
The counsel for the petitioners also referred National Highway
Authority of India V Madhukar Kumar, 2021 SCC OnLine SC
791; Southern Power Distribution V Hinduja National Power,
2022 Livelaw (SC) 117. The petitioners were not granted oral hearing
while passing orders in gross violation of Principle of Natural Justice.
The respondents have acted mala fide and without authority of law to
cancel the statutory licenses which were renewed in the past. It was
argued that the petitioners be granted reliefs as prayed for.
7. The counsel for the respondents also advanced oral arguments
and submitted written submissions. He argued that the petitioners
were granted 'A' Category license to carry on the trade & business of
selling fruits and vegetables as wholesaler. The files pertaining to
grant of licenses were investigated after few years and various
irregularities were noticed in grant of "A'' Category licenses to the
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traders of Shakurpur Pushta, Delhi. The then Secretary and Assistant
Secretary of the respondent no.1 were placed under suspension as
result of said investigation. The Anti-corruption Branch, Delhi also
registered a case vide FIR no.10 dated 04.03.2003 under section
120B read with sections 420/468/471 IPC and section 13(1)(d) of
Prevention of Corruption Act, 1988.
7.1 It was further argued on behalf of the respondents that
MCD/PWD on 04.05.2002 removed the Shakarpur Mandi for
construction of road as it was situated on encroached public land. The
respondent no.1 also noticed various deficiencies in the documents of
the petitioners on basis of which the petitioners were issued 'A'
Category licenses and accordingly show cause notices were issued to
them to inform about deficiencies and also about false and wrong
information furnished by them at the time of submitting respective
application forms for grant of 'A' Category license. The respondent
no.1 in its meeting held on 14.01.2004 considered explanations
submitted by the petitioners to the show cause notices and decided
that the petitioners were not carrying on the business of fruits and
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vegetables. Accordingly, renewal of licences of the petitioners was
not done after 2003-2004 and their licenses were cancelled.
7.2 It was further argued that the petitioners also filed Appeals
before the respondent no.2 and the Appellate Authority after giving
opportunity of being heard to the petitioners, considered all
contentions raised in the Appeals. The respondent no.2 opined that
the petitioners neither submitted satisfactory explanations nor
produced any evidence to prove that allegations levelled in show
cause notices were wrong. The Appellate Authority accordingly
dismissed the appeals. It was also found that the petitioners were
holding licenses on their residential addresses and as such cannot
claim allotment of site/shop/phar as matter of right as the petitioners
were not having the licenses of a commercial space or shop.
7.3 It was further argued that the petitioners were granted licenses
on the basis of the documents submitted by them and renewal of the
licenses in subsequent years depended upon validation and correction
of the documents. It was found that the licenses were obtained by
submitting fake and wrong information and accordingly show cause
notices were issued to the petitioners along with relevant portion of
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fact finding inquiry and irregularities observed concerning the
licenses of the petitioners. The licenses were cancelled in accordance
with law. The respondent no.2 by passing speaking orders dismissed
the Appeals of the petitioners. It was argued that present writ petition
be dismissed being without any merit.
8. It is reflecting that the petitioners were granted 'A' Category
licenses by the respondent no.1 for doing business of sale and
purchase of fruits and vegetables at Subzi Mandi, Shakarpur Pushta,
Shahdara, Delhi. The sheds of the petitioners in Subzi Mandi,
Shakarpur Pushta were demolished on 04.05.2002 by the public
authorities i.e. MCD/PWD. The respondent no.1 issued Show Cause
Notices to the petitioners regarding cancellation of their licences. The
licence holders filed the Civil Writ Petitions bearing no. 4570 of
2002 titled as Subhash & Others V Govt. of N.C.T. of Delhi &
Others and 1355 of 2003 titled as Sonia Kapoor & Others V Govt.
of N.C.T. of Delhi & Others which were disposed of vide order
dated 05.08.2003 directing the respondent no.1 for taking necessary
decision in pursuance to the show cause notices and after considering
responses along with documents received from the petitioners. The
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replies were submitted by the petitioners wherein they denied
allegations mentioned in show cause notices regarding obtaining of
the licences by submitting false and wrong information. However, the
Assistant Secretary of the respondent no.1 cancelled the renewal
applications of the petitioners by a common order. The petitioners
filed Appeals before the Vice Chairman of the respondent no.2 i.e.
Delhi Agricultural Marketing Board under Section 82 of the Act and
also submitted the documents along with Appeals besides denying
allegations of the respondent no.1 but Appeals were dismissed by the
Appellate Authority. The main grievance of the petitioners was that
the respondent no.1 granted the licences to the petitioners after proper
inquiries and verification of the documents and the respondent no.1
has renewed the licences after inquiries and fresh verification of the
documents and further the Appellate Authority i.e. the Vice
Chairman of the respondent no.2 did not provide sufficient
opportunity to the petitioners to present their case in Appeals. The
counsel for petitioners also argued that the petitioners were granted
'A' Category licenses after verification of documents which were
renewed on yearly basis. The respondent no.1 in pursuance of show
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cause notices issued in November, 2002 on allegations of procedural
irregularities in grant of said A Category licenses which were
curable, refused to renew and cancel the licenses without giving
opportunity of being heard. The respondent no.2 also dismissed
Appeals preferred by the petitioners against law and by passing
identical and similar orders. The counsel for the petitioners primarily
argued that the petitioners were not granted oral hearing while
passing impugned orders passed by the respondents no.1 and 2 in
gross violation of principle of natural justice.
8.1 The respondents pleaded that the respondent no.2 conducted
investigation in matter of grant of 'A' Category licences and
irregularities were notices during investigation in the grant of 'A'
category licences to the traders of Subzi Mandi, Shakurpur Pushta,
Delhi. The Anti-corruption Branch, Delhi also registered FIR bearing
no.10 dated 04.03.2003 under section 120B IPC read with sections
420/468/471 IPC and section 13(1)(d) of Prevention of Corruption
Act, 1988. MCD/PWD on 04.05.2002 removed the Subzi Mandi
from Shakarpur Pushta being situated on public land and for
construction of road. The petitioners being licensees were not
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functioning and carrying their business during the preceding year
without any reasonable cause which was a mandatory requirement as
per Rule 17(C) of Delhi Agricultural Produce Marketing (Regulation)
General Rules, 2000. The respondent no.2 on checking of the records
of the licences including the petitioners noticed several deficiencies
in the documents submitted by the petitioners. The respondent no.1
decided not to renew licences for years 2002-03 and 2003-04 in its
meeting held on 14.01.2004 after considering explanations to the
show-cause notices submitted by the petitioners and the licences of
the petitioners were cancelled. The respondents stated that licensees
were cancelled after granting reasonable opportunity to the
petitioners and on just and sufficient reasons. The respondent no.2
passed speaking orders while dismissing Appeals. The petitioners
were not entitled for space/site/phar at Subzi Mandi, Ghazipur as
claimed by them because the petitioners were granted 'A' Category
licensees at their residential addresses. The counsel for the
respondents also argued that various irregularities were noticed
during investigation in grant of 'A' Category licenses to the traders of
Shakurpur Pushta, Delhi and accordingly show cause notices were
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issued to the petitioners. The respondent no.1 did not renew licences
of the petitioners after 2003-2004 and their licenses were cancelled. The
Appellate Authority has decided Appeals filed by the petitioners after
giving opportunity of being heard to the petitioners. The petitioners
have obtained licenses by submitting fake and wrong information.
9. The principles of natural justice involve a procedural
requirement of fairness and have become an essential part of any
system of administrative justice. Natural Justice is considered to be
part of rule of law. The Supreme Court in Sangram Singh V
Election Tribunal Kotah, AIR 1955 SC 425 observed that none
should not be condemned unheard and decision should be reached
behind the back. The Supreme Court in Maneka Gandhi V Union of
India, AIR 1978 SC 597 emphasized that natural justice is an
essential element of procedure established by law and state action
must be right, just and fair and not arbitrary, fanciful and oppressive.
It was held that Article 14 of the Constitution strikes at arbitrariness
of state action and ensures fairness and equality of treatment. It was
also observed in Union of India V Tulsi Ram Patel, AIR 1985 SC
1416 that Article 14 is not creator of principles of natural justice but
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it is constitutional guardian of Article 14. The Supreme Court in
Mohinder Singh V Chief Election Commission, AIR 1978 SC 851
observed that the principles of natural justice are bones of healthy
government. The Supreme Court in Indian Oil Corporation
Limited and others V Shashi Prabha Shukla and Another, (2018)
12 SCC 85 observed as under:-
33. (a) public authority in its dealings has to be fair,
objective, non arbitrary, transparent and non
discriminatory. The discretion vested in such an authority,
which is a concomitant of its power is coupled with duty
and can never be unregulated or unbridled. Any decision or
action contrary to these functional precepts would be at the
pain of invalidation thereof. The State and its
instrumentalities, be it a public authority, either as an
individual or a collective has to essentially abide by this
inalienable and non negotiable prescriptions and cannot act
in breach of the trust reposed by the polity and on
extraneous considerations. In exercise of uncontrolled
discretion and power, it cannot resort to any act to fritter,
squander and emasculate any public property, be it by way
of State largesse or contracts, etc. Such outrages would
clearly be unconstitutional and extinctive of the rule of law
which forms the bedrock of the constitutional order.
The Supreme Court in Southern Power Distribution
Company Limited of Andhra Pradesh (APSPDCL) & Another V
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M/s Hinduja National Power Corporation Limited & Another,
2022 Livelaw (SC) 117 and also cited by the counsel for the
petitioners observed as under:-
Every action of a State is required to be guided by the
touchstone of non arbitrariness, reasonableness and
rationality. Every action of a State is equally required to be
guided by public interest. Every holder of a public office ·is
a trustee, whose highest duty is to the people of the country.
The Public Authority is therefore required to exercise the
powers only for the public good.
9.1 The principles of natural are equally applied in purely
administrative functions. The Supreme Court in A.K. Kraipak V
Union of India, AIR 1970 SC 150 observed that the principles of
natural justice are applicable to administrative inquiries and
established that observance of principles of natural justice in decision
making process of the administrative body having civil
consequences. The Supreme Court again in Neelam Mishra V
Harinder Kumar Paintal, AIR 1990 SC 1137 observed that
administrative order involving civil consequences must be passed in
accordance with notions of fairness.
9.2 The purpose of the principles of natural justice is to prevent
miscarriage of justice. The expression audi alteram partem implies
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that a person must be given an opportunity to defend himself and
ensures that no one should be condemned unheard. Audi alteram
partem makes it obligatory for an authority that a party should not
suffer in person or in purse without an opportunity of being heard and
implies that before an order is passed against any person a real,
reasonable and effective opportunity of being heard must be given to
him. The rule of fair hearing is consisting of two components which
are notice and hearing. It is basic principle of natural justice that the
authority should give to the affected party a notice of the case against
him so that he may defend himself adequately. Notice is starting
point of any hearing and sine qua non of fair hearing. The
administrative authority is also required to afford reasonable
opportunity to the party to present his case. A real, rational and
effective hearing includes disclosure of all relevant material or
information which the authority wishes to use against the individual
in arriving to its decision. The administrative authority cannot take a
decision on the basis of any material unless the person against whom
it is sought to be utilised is given an opportunity to rebut or explain
the same.
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9.3 The courts in exercise of judicial review are concerned with
the legality rather than the merits of the case. The courts are not a
forum to hear appeals from the decision of the authority and would
not interfere in exercise of discretion by an authority. The court
cannot substitute its own decision for that of decision taken by an
authority. The judicial review is different from an appeal as court
while hearing appeal is concerned with merits of decision under
appeal. It was observed in Chief Constable of North Wales Police
V Evans, (1982) 3 All ER 141 that judicial review is concerned with
the decision making process and not with the decision. It was also
observed in Lonrho plc. V Secretary for State for Trade and
Industry, (1989) 2 All ER 609 that judicial review is a protection
and not a weapon. The Supreme Court of India in Tata Cellular V
Union of India, (1994) 6 SCC 652 also observed that judicial review
is concerned with reviewing of the decision making process itself but
not the merits of the decision. It was also observed in S. R. Bommai
V Union of India, AIR 1994 SC 1917 that the courts in exercise of
judicial review in field of administrative law are not concerned with
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the merits of the decision but with the manner in which the decision
was taken or order was made.
9.4 The power of judicial review reflects reconciliation of two
conflicting principles. First, the courts have not been given power to
hear appeals against the decision taken by an authority as the
legislation has conferred power on administrative authorities to take
decisions and secondly, the administrative authority must act within
the bounds of law and power and the courts have to exercise power of
judicial review to keep administrative authorities within the confines
of law.
10. The petitioners were granted 'A' Category licenses for selling
fruits and vegetables in Subzi Mandi, Shakurpur Pushta, Delhi which
were renewed subsequently from time to time. The respondent no.1
issued show cause notices dated 25.11.2002 to the petitioners
wherein it was mentioned that the petitioners have taken licence by
submitting false and wrong information for wrongful gains as
revealed from findings of the fact finding Committee and relevant
portion of fact finding enquiry concerning the individual petitioner
was also enclosed with the show cause notice. The respondent no.1
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through Assistant Secretary-1 asked the petitioners to show cause as
to why their licenses should not be cancelled for lapses as mentioned
in show cause notices on their part. The petitioners were directed to
file reply to show cause notices within 07 days. The petitioners as
such before cancellation of their 'A' Category licenses were issued
show cause notices and relevant portion of findings of fact finding
enquiry was also enclosed with the show cause notices. The
petitioners also filed their respective replies wherein it is primarily
stated that objections raised under show cause notice were wholly
frivolous and have been raised to defeat the case of the petitioners
regarding allotment of a shop/site/phar at Ghazipur Mandi. It was
also stated that the licenses were issued to the petitioners after
completion of requisite and necessary formalities and necessary
documents were submitted by the petitioners along with application
for grant of licenses. The licenses were renewed in the years 2000,
2001 and 2002. The petitioners also explained and replied to other
allegations as mentioned in show cause notices.
10.1 The counsel for the respondents argued that subsequent to
grant of 'A' Category licenses to the petitioners, several deficiencies
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were found in the documents submitted by the petitioners and
accordingly show cause notices were issued to the petitioners
informing them about deficiencies and false and wrong information
submitted by the petitioners. The counsel for the petitioners argued
that deficiencies pointed out by the respondents were curable and
without having any bearing effect on grant of licenses and their
validity. The Tabular Charts pointing out deficiencies as per
respondents in the documents or information given by the petitioners
in applications submitted by the petitioners for grant of licenses and
replies given by the petitioners were filed in compliance of orders
dated 13.05.2010 and 02.09.2021 which are perused. The perusal of
Tabular Chart filed in compliance of order dated 13.05.2010 reflects
that the petitioners did not mention accurate information in
applications submitted for grant of 'A' Category licenses and there
were various discrepancies in the documents submitted along with
applications. The petitioners were required to furnish accurate
information in application forms and correct and right documents
were also required to be submitted along with applications. The
discrepancies as detailed in Tabular Charts cannot be permitted or
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allowed to be corrected subsequently as pleaded by the petitioners
and many of such discrepancies cannot be cured procedurally. There
is no force in arguments advanced by the counsel for the petitioners
that deficiencies pointed out by the respondents were curable and
without having any bearing effect on grant of licenses and their
validity.
10.2 This court vide order dated 05.08.2003 passed in Civil Writ
Petitions bearing no. 4570/2002 titled as Subhash & Others V Govt.
of N.C.T. of Delhi & Others and 1355/2003 titled as Sonia Kapoor
& Others V Govt. of N.C.T. of Delhi & Others directed the
respondent no.1 for taking necessary decision in pursuance to the
show cause notices and after considering responses along with
documents received from the petitioners. Thereafter the Assistant
Secretary of the respondent no.1 vide order dated 11.03.2004
cancelled the renewal of licenses of the petitioners. The perusal of
order dated 11.03.2004 reflects that the documents submitted by the
petitioners for renewal of licenses for years 2002-2003 and 2003-
2004 were examined on 14.01.2004 by the concerned committee in
pursuance of show cause notices issued to the petitioners and
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thereafter, after due consideration in pursuance of directions given by
this court vide order dated 05.08.2003, the respondent no.1 has
cancelled application for renewal of licenses for years 2002-2003 and
2003-2004. The respondent no.1 before passing the order dated
11.03.2004, had given sufficient opportunity of being heard to the
petitioners by issuing show cause notices and also considered replies
submitted by the petitioners. The respondent no.1 as such followed
principles of natural justice before passing order dated 11.03.2004
which cannot be termed as arbitrary, perverse or discriminatory. The
petitioners were given real, rational and effective hearing which
included issuance of show cause notices and disclosure of relevant
material which the respondent no.1 actually used against the
petitioners before passing order dated 11.03.2004. There is no legal
force in arguments advanced by the counsel for the petitioners that
deficiencies pointed out by the respondent no1 as detailed in
respective show cause notices issued to individual petitioners were
curable without having any bearing effect on grant of licenses. The
respondent no.1 duly considered explanations and submissions of the
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petitioners in right prospective and thereafter rejected such
explanations after following principles of natural justice.
11. The petitioners pleaded that they were granted licenses for
Subzi Mandi, Shakarpur Pushta, Shahdara, Delhi and continued to
carry on sale and purchase of fruits and vegetables at Subzi Mandi,
Shakarpur Pushta, Shahdara, Delhi. The petitioners were assured by
the respondent no.1 for providing sheds at the newly constructed fruit
and vegetable market at Ghazipur, Shahdara, Delhi after being
removed from Subzi Mandi, Shakarpur Pushta due to its demolition
on 04.05.2002. The respondents pleaded that the petitioners were
never assured for allotment of sheds/spaces/phars at Fruits &
Vegetables Market, Ghazipur, Shahdara, Delhi and PWD/MCD
demolished Subzi Mandi, Shakarpu Pushta, Delhi on 04.05.2002
being raised after encroachment on public land and for construction
of road. The petitioners did not place any document or other material
to show that they have ever been assured by the respondent no.1 for
allotment of shed/space/phars at Ghazipur Subzi Mandi. The claim of
the petitioners is without any justified basis and cannot be
entertained.
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12. The petitioners pleaded that they filed Appeals before the Vice
Chairman of the respondent no.2 under Section 82 of the Act to
impugn order dated 11.03.2004 but Vice Chairman of the respondent
no.2 without considering the Appeals properly and providing any
opportunity to the petitioners to present their cases, dismissed the
Appeals vide order dated 08.02.2005 mainly on the ground that the
petitioners have lost the grounds of holding licenses as Shakarpur
Pushta Mandi was demolished. It was alleged that Vice Chairman of
the respondent no.2 after adopting unjustified approach, dismissed
appeals illegally and against principles of natural justice. The
respondents no.1 and 2 alleged that the petitioners were given proper
opportunity of being heard in Appeals and could not give satisfactory
explanations. The respondent no.2 passed speaking orders while
dismissing Appeals.
12.1 The perusal of order dated 08.02.2005 reflects that the
petitioners filed appeals under section 82 of the Act to impugn order
dated 11.03.2004 issued/passed by the respondent no.1 whereby the
applications of the petitioners for renewal of their licenses for 2002-
2003 onwards was rejected. The petitioners in appeals contended that
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they were issued 'A' Category licence which was renewed for
subsequent years for operating in Shakarpur Pushta where clearance
drive was launched by PWD in May, 2002 for facilitating
construction of road. It was further contended that Show Cause
Notices issued by the respondent no.1 have been properly replied and
licences were not obtained by misrepresentation of facts and as such
there was no ground for refusal under Rule 17 of the Rules or under
section 81(1)(a) of the Act. It is also reflecting that that the
respondent no.2 gave opportunity of hearing to the petitioners and the
respondent no.1. The respondent no.2/Appellate Authority further
observed that the respondent no.1 had issued show cause notice to
the petitioners as per Rule 15(i) of the Rules read with bye-law 34 of
the APMC, Shahdara wherein grounds for cancellation of licence
were mentioned. It was also observed that the petitioners submitted
reply to the respondent no.1 which was considered by the respondent
no.1 and thereafter the respondent no.1 vide order dated 11.03.2004
had cancelled the licenses. The respondent no.2/Appellate Authority
finally observed that the petitioners/appellants have neither
contended nor supported genuineness of documents pointed as
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irregular by the respondent no.1. The respondent no.2 further
observed that the petitioners were granted licenses much earlier
which were renewed subsequently and as such it was not open for the
respondent no.1 to raise such allegations as mentioned in show cause
notices. The respondent no.2 in order dated 08.02.2005 also observed
that the petitioners could not produce any document to rebut
allegations as mentioned in show cause notices. It reflects that the
respondent no.2 as appellate authority applied its mind on material
produced on record and passed a reasoned order. The respondent no.2
also observed that licenses were issued to the petitioners on addresses
other than Subzi Mandi, Shakarpur Pushta which was demolished by
the local authorities being encroachment on public land. The
respondent no.2 had failed to consider that the petitioners were
granted 'A' Category licenses to carry fruit and vegetables business
at Shakarpur Pushta. However this observation of the respondent no.2
does not render the order dated 08.02.2005 invalid in law. Otherwise
the respondent no.2 passed the order dated 08.02.2005 on basis of
valid reasons. There is no infirmity in the order dated 08.02.2005
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passed by the respondent no.2. There is no force in arguments
advanced by the counsel for the petitioners.
13. There is no infirmity or illegality in the order dated 11.03.2004
passed by the respondent no.1 and the order dated 08.02.2005 passed
by the respondent no.2. There is no merit in the present petitions,
hence the present petitions are dismissed along with pending
application, if any.
14. The Registry is directed to amend the cause title as per the
amended memo of parties.
DR. SUDHIR KUMAR JAIN
(JUDGE)
JUNE 19, 2024
J/AM
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