Rajasthan High Court - Jodhpur

Shrinath Lohiya vs State Of Raj. And Ors on 5 August, 2022

Bench: Vijay Bishnoi

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 798/2011

Shrinath Lohiya

----Petitioner Versus State Of Raj. And Ors.

----Respondent

For Petitioner(s) : Mr Shrinath Lohiya - petitioner present in person For Respondent(s) : Mr Dhanesh Saraswat Mr Mahesh Chandra Bishnoi

HON'BLE MR. JUSTICE VIJAY BISHNOI

Judgment / Order

05/08/2022

This writ petition is filed by the petitioner praying

following reliefs:

"It is therefore, most respectfully prayed that this writ petition may kindly be allowed and by a writ mandamus of any other appropriate writ order or direction on a writ be issued. Order dated 26.7.2010 passed in appeal No.47/2009 Annexure-12 and order Annexure-7 & 7A dated 4.11.87 be set aside and the matter may be remanded back to the respondent No.2 for deciding the same on its merit or this Hon'ble Court be pleased to call for the record of the aforesaid appeal No. and after hearing the petitioner be pleased to set aside and quashed the aforesaid order vide Annexure-12 & Annexure 7 & 7A passed by respondent No.2 and respondent No.4 or pass such order which Hon'ble Court deem fit and proper in the interest of justice."

A communication dated 04.11.1987 (Annexure-7) was

sent by Secretary, Krishi Upaj Mandi Samiti (Special Category),

Jodhpur (hereinafter to be referred as 'the Samiti') to M/s

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Jamnadass Gangadass & Company-respondent No.5 informing

that on the basis of family settlement documents, the godown

No.E-11-14 situated in main Mandi Yard is declared to be in the

ownership of Smt. Madhu Lohiya wife of Pukhraj Lohiya and the

same has been recorded. It is further informed that Smt. Madhu

Lohiya wife of Pukhraj Lohiya will be liable to pay the rent, Mandi

fees and for any other dispute, if so arise in future.

Another communication dated 04.11.1987 (Annexure-

7A) was also written by the Secretary of the Samiti to respondent

No.5 informing that on the basis of family settlement documents,

Shop No.B/5 situated in Main Mandi Yard is declared to be in

ownership of Pukhraj Lohiya son of Jamnadass Lohiya.

Annexure-12 is the order dated 26.07.2010 passed by

Director, Agriculture Marketing Board-respondent No.2, whereby

the appeal filed by the petitioner challenging the validity of the

communications dated 04.11.1987 (Annexures-7 & 7A) has been

dismissed.

Several grounds have been raised by the petitioner in

this writ petition assailing the validity of Annexures-7, 7A and 12.

The petitioner also filed several applications along with various

documents from time to time and submitted written arguments in

support of writ petition on different dates.

Arguing the writ petition, the petitioner has contended

that Secretary of the Samiti has illegally declared the ownership of

respondents Madhu Lohiya (dead) and Pukhraj Lohiya of the

godown No.E-11-14 and Shop No.B/5 respectively both situated at

main Mandi Yard. It is submitted that the ownership of the above

referred godown and shop was in the name of partnership firm. It

is further submitted that the said partnership was never dissolved

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and no such document of this effect has ever been produced by

the respondent Madhu Lohiya and Pukhraj Lohiya before the

Secretary of the Samiti but the Secretary of the Samiti has

converted the ownership of the aforementioned godown and shop

in favour of the proprietorship firm of Smt. Madhu Lohiya and

Pukhraj Lohiya illegally.

Arguments have also been raised by the petitioner to

the effect that the so called settlement deed, on the basis of which

the Secretary of the Samiti has declared the ownership of

respondent - Madhu Lohiya and Pukhraj Lohiya of the godown and

shop, was forged one and as such on the basis of the said

settlement deed, the action of the Secretary of the Samiti

declaring the ownership of respondents Pukhraj Lohiya and Madhu

Lohiya of the aforementioned godown and shop is absolutely

illegal. It is also alleged that the Director, Agriculture Marketing

Board - respondent No.2 without taking into consideration the

above facts has illegally dismissed the appeal filed by the

petitioner vide impugned order dated 26.07.2010.

The petitioner has, therefore, prayed that this writ

petition may be allowed and the relief prayed for in this writ

petition be granted.

Per contra, learned counsel appearing for the

respondents - Samiti has vehemently opposed the prayer of the

petitioner and argued that earlier also, the petitioner by way of

SBCWP No.1334/1996 had challenged the validity of

communications dated 04.11.1987 (Annexure-7 & 7A), however,

the said writ petition was dismissed by a Co-ordinate Bench of this

Court on 03.05.2006. The petitioner then preferred a review

petition before the Co-ordinate Bench of this Court, which too

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came to be dismissed on 01.08.2006. The special appeal preferred

by the petitioner against the judgment of the Co-ordinate Bench of

this Court was dismissed by the Division Bench of this Court on

19.12.2006. The review petition was also dismissed by the

Division Bench on 09.07.2008 and the SLP preferred by the

petitioner has also been dismissed on 11.02.2010.

Learned counsel for the respondents has, therefore,

argued that taking into consideration the above facts and

circumstances of the case, the Director, Agriculture Marketing

Board-respondent No.2 has not committed any illegality in passing

the impugned order dated 26.07.2010.

Learned counsel for the respondents has, therefore,

prayed that in view of the authoritative pronouncement of this

Court from time to time as well as of Hon'ble Supreme Court in

respect of same dispute, no interference is called for and the writ

petition deserves to be dismissed.

Heard the petitioner, present in person and learned

counsel for the respondents and perused the material available on

record.

It is not in dispute that the challenge of the petitioner

to the impugned communications dated 04.11.1987 came to be

dismissed by the Co-ordinate Bench and the Division Bench of this

Court and the SLP against the same has also been dismissed.

The petitioner preferred an application under Section

39 of the Rajasthan Agriculture Produce Markets Act, 1961 before

the Director, Agriculture Marketing Board-respondent No.2

challenging the validity of the communications dated 04.11.1987

(Annexure-7 & 7A), however, the respondent No.2, after taking

into consideration the fact that earlier also, the appeal preferred

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by the petitioner against the same communications has been

dismissed by the appellate authority and the other proceedings

initiated by the petitioner before the various authorities have also

been dismissed, has observed that no case for grant of any relief

is made out.

At this stage, it would be appropriate to refer the

orders passed by this Court as well as the Hon'ble Supreme Court

in respect of same controversy sought to be raised by the

petitioner in this writ petition.

In SBCWP No.1134/1996 filed by the petitioner, the Co-

ordinate Bench of this Court has passed the following order:

"By the instant petition for writ the following reliefs are claimed by the petitioner:-

(i) the judgments passed by the Secretary, Krishi Upaj Mandi Samiti dated 6.10.1995 (Anx.5) and by the Assistant Director dated 11.3.1996 (Anx.9) may please be quashed and set aside;

(ii) it may be declared that Shri Shrinath Lohiya petitioner is a partner in the firm M/s Jamnadas Gangadas & Co. & Jamnadas Gangadas and rights to do all work and business in the partnership firms and entitled to use godown E2-14 and Shop B-5 also to use for business the said Godown & Shop;

(iii) it may please be ordered to the Secretary, Krishi Upaj Mandi Samiti to issue permanent licence of firms Jamnadas Gangadas & Co. of E2-14 in the name of Smt. Madhu Lohiya and the petitioner Shrinath Lohiya as a partner and to M/s Jamnadas Gangadas B-5 in the name of Shri Pukhraj Lohiya & the petitioner Shrinath Lohiya as a partner;

(iv) and in the alternative it is prayed that the matter may please be remanded back to the Regional Assistant Director, Agriculture Marketing Department, Jodhpur for fresh disposal after calling from the record since 1975 of both the firms from the Secretary, Krishi Upaj Mandi Samiti and to consider the documents of the petitioner after giving opportunity to the petitioner afresh."

The contention of the petitioner is that a licence was granted by Krishi Upaj Mandi Samiti to M/s Jamnadas Gangadas & Co. to undertake business in the mandi area at Krishi Upaj Mandi, Mandore, Jodhpur. The Krishi Upaj Mandi Samiti

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also allotted a godown to the partnership firm referred above on 29.11.1979. An another shop bearing No. B-5 was also allotted to Jamnadas Gangadas & Co. on 17.7.1975. According to the petitioner the respondents No.5 and 6 alongwith him were the partners in the partnership firm but they illegally got the licence to use the godown allotted to the firm in their names by getting the petitioner deleted as partner.

The counsel for the petitioner at the time of hearing confined his arguments with regard to prayer No.(iii) only. According to counsel for the petitioner the Secretary, Krishi Upaj Mandi Samiti erred while renewing licence in favour of the firm Jamnadas Gangadas & Co. for godown No. E-2-14 and B-5 by showing respondents No.5 and 6 respectively as proprietor of the firm.

A reply to the writ petition has been filed on behalf of the respondents stating therein that renewal was made as a consequence of family settlement and also on basis of a request made by the partners of the partnership firm by various communications. Counsel for respondent Krishi Upaj Mandi Samiti at thetime of hearing placed on record photocopies of certain letters perusal of which clearly show that the petitioner himself agreed for making renewal of the aforesaid godowns in question in the name of firm Jamnadas Gangadas & Co. by showing the respondents No.5 and 6 as their proprietor.

In view of it, I do not find any merit in the writ petition. The same, therefore, is dismissed with no order to costs."

The review petition filed by the petitioner against the

aforesaid order dated 03.05.2006 also came to be dismissed on

01.08.2006 by the following order:

"To review the judgment dated 03.05.2006 passed by this Court, this review petition is preferred by the petitioner on the count that the family settlement on basis of which the writ petition is disposed of, is highly disputed and in fact, it does not exist.

I have considered the arguments advanced by the petitioner. I do not find any reason to interfer in the review petition as documents concerned is part of record.

Accordingly, the review petition is dismissed. It is open for the petitioner to

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challenge the order impugned by way of filling an appeal."

Against the orders dated 03.05.2006 and 01.08.2006

passed by the Co-ordinate Bench of this Court, the petitioner

preferred D.B.Civil Special Appeal (W) No.598/2006 and the

Division Bench of this Court dismissed the said appeal by the

following order:

"Having heard learned counsel for the appellant we are of the opinion that no case is made out for interfering with the impugned order. The appellant-petitioner, in the guise of filing writ petition against the order of Krishi Upaj Mandi Samiti on the renewal of licence on the basis of document submitted by the erstwhile partner of the firm jointly, seeks to get inter se dispute between himself and respondents Nos.4 and 5 decided through writ petition. The said documents on the basis of which license has been renewed in favour of the respondent-firm has not been denied. What has been stated by the appellant is that said award has since given way to later happening between the parties. In fact, the present writ petition is directed to get rid of the effect of said settlement which is in the domain of private lis. Such disputes between the parties about their personal rights whether in the form of rights to property or business cannot be litigated under extra-ordinary writ jurisdiction. The petitioner-appellant must choose other appropriate forum if he wants to get out of the earlier settlement of impinging their validity and get his rights viz-a-viz the respondents No.5 and 6 declared. Apparently, the writ jurisdiction is not an appropriate remedy for settling those inter se private disputes between family or partners indirectly by challenging the order of Krishi Upaj Mandi Samiti.

In our opinion, the learned Single Judge was right in dismissing the writ petition and we are in agreement with the learned Single Judge. The special appeal is, therefore, dismissed."

Against the aforesaid order, the petitioner preferred a

review petition before the Division Bench, which too came to be

dismissed on 09.07.2008 by the following order:

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"Heard.

No case is made out for interference.

The review petition is dismissed."

SLPs preferred by the petitioner before the Hon'ble

Supreme Court came to be dismissed by following order: