M/s Sharma Brothers vs Uttarakhand Krishi Utpadan Mandi Parishad & Others

Ramesh Ranganathan, CJ

This appeal is preferred against the order passed by the learned Single Judge in Writ Petition (M/S) No.361 of 2019 dated 16.09.2019.

The appellant herein filed Writ Petition (M/S) No.361 of 2019 seeking a writ of certiorari to quash the decision take in the meeting dated 26.12.2018 convened by the Krishi Utpadan Mandi Parishad; a writ of certiorari to quash the letter dated 28.01.2019 issued by respondent no.2; and a writ of mandamus commanding respondent nos.1 and 2 to cancel the license of respondent no.3, or alternatively dispose of the proceedings with regards cancellation of the license of respondent no.3 which are pending in lieu of non-payment of arrears.

The order, impugned in the Writ Petition, was the minutes of the meeting dated 26.12.2018 wherein it was resolved that, in relation to allotment of shop No.123 to the third respondent herein, it was decided on the basis of the affidavit filed both by the appellant-writ petitioner and the third respondent earlier, and on the basis of practicality of business at the place already constructed i.e three east facing shops, there would be new south facing shops in an equal area; the first right of selection of shops is that of the appellant-writ petitioner; and, in relation to this, the third respondent had given its letter of consent.

On the said order being subjected to challenge before this Court, the learned Single Judge observed that the appellant-writ petitioner, who had two shops i.e. Shop Nos.C-121 and C-122, had given an affidavit of consent; on the basis of the affidavit given by them, the shops were being demolished; the impugned order stated that choice would be given to the appellant-writ petitioner to choose two shops out of three ; and since the entire action had been taken in consultation with the appellant-writ petitioner, and for construction there was also the consent of the appellant-writ petitioner in the form of an affidavit, no interference was liable to be made by the Court.

While an order passed, on the consent of parties, cannot be subjected to challenge thereafter, the contention urged before us by Mr. Shivam Sharma, learned counsel for the appellant, is that the consent given by the appellant-writ petitioner was in complete variance with the order impugned in the Writ Petition. Learned counsel would draw our attention to the affidavit filed by the appellant-writ petitioner before the authorities wherein the appellant-writ petitioner gave his consent for the third respondent, who was allotted Shop No.C-123, to be allotted a newly constructed south facing shop adjacent to Shop No.C-1 equivalent to the area of his shop; and for only the tin shed of C-123 to be removed and joined with Shop Nos.C-121 and C-122 to be allotted to the appellant-writ petitioner.

As noted hereinabove, the consent given by the appellant-writ petitioner was not unequivocal, but was conditional. While it was open to the authorities concerned to pass an order in terms of the letter of consent, the order impugned in the Writ Petition is at variance with the consent given by the appellant-writ petitioner.

We may not be understood to have held that the Mandi Parishad is bound by the consent given by the appellant-writ petitioner. All that we hold is that the Mandi Parishad could have taken action, contrary to what the appellant-writ petitioner had consented to, only after putting him on notice, and giving him an opportunity of being heard. We are satisfied therefore that the order impugned in the Writ Petition, which was passed without affording the appellant-writ petitioner an opportunity of being heard, is vitiated for violation of the rules of natural justice.

Mr. Vipul Sharma, learned counsel for respondent nos.1 and 2, states that a show-cause notice would be issued to the appellant-writ petitioner within three weeks from today. The appellant shall submit his reply thereto within four weeks from the date of receipt of the show-cause notice. The Mandi Parishad shall, thereafter, pass a reasoned order, dealing with the contentions raised by the appellant-writ petitioner in the reply to the show-cause notice, and communicate their decision to the appellant-writ petitioner at the earliest and, in any event, within four weeks from the date of receipt of the appellant-writ petitioner's reply to the show-cause notice. The decision taken by the Mandi Parishad in this regard shall also be communicated to the third respondent in the Writ Petition.

Both the orders impugned in the Writ Petition, and the order under appeal, are set-aside. The Special Appeal is disposed of in terms of the directions hereinabove mentioned. No costs.