Vijaychand Pradeepkumar vs State of Rajasthan and Others

Vineet Kothari, J.—This order will dispose of batch of 13 writ petitions as per the Schedule given. The facts are illustratively taken from SBCWP No. 4666/2011- M/s. Vijaychand Padeep kumar vs. State of Rajasthan and Anr.

The petitioners have approached this Court by way of present writ petitions, inter alia, claiming that they had applied for allotment of shops in the new Mandi Yard, Pilibariga notified by the State Government in the year 2008 as new Mandi Yard for which the allotment of 254 shops was to be made on the basis of 99 years of lease under the notification issued on 12.2.2008 in a newspaper, a copy of which has been placed on record as Annex. 2. The said advertisement reads as under:

The petitioner claimed that though it had applied under the said notification, its application was. rejected and though no separate rejection order was communicated, the list of eligible applicants who were selected to be allotted the said shops, a list of total 202 members was notified in which list, his name was not there and in another list of ineligible candidates notified by the respondent--KUMS, Pilibanga, the name of petitioner figures at serial No. 43 and reasons assigned in column 4 of such list is 31 meaning thereby that one of the partners of the applicant firm was partner in other firms which were also carrying on business of the sale of agricultural produce under the licence given to them under Rajasthan Agricultural Produce Markets Act, 1961 in the same market area. After allotment of 227 shops, allotment of remaining 27 shops was undertaken by issuing another notification in the newspaper on 11.4.2011, a copy of which has been placed on record as Annex 7. The said notification dt. 11.4.2011 is also reproduced below for ready reference:

As per the averments made in the writ petition, the petitioner also applied again for allotment of one shop out of said 27 shops, but with the apprehension that this application will be rejected, again on the basis of allotment guidelines notified in the year 2005, a copy of which has been placed on record as Annex. 3, since one of the partner of the applicant firm is also existing partner in other licenced firm and therefore, the petitioner has approached this Court by way of aforesaid writ petition. Some of the petitioners in connected writ petitions were not allotted the shops in earlier allotment of 227 Shops in pursuance of earlier notification dt. 12.2.2008 quoted above on the ground that their turn-over of the preceding 3 years was not upto cut off level and therefore, as per the criteria laid down in Clause 4 of the Allotment Policy notified in the year 2005 effective from 25.4.2005, they were also rendered ineligible and even though they also applied for re-allotment of shops in pursuance of subsequent notification on 11.4.2011 (Annex. 7) quoted above, they would also be equally ineligible. Hence these writ petitions by them.

Reply to the writ petition has been filed in some of the writ petitions by Mr. Ravi Bhansali and Narendra Rajpurohit representing the respondents.

Mr. S.L. Jain, Mr. N.L. Joshi, Mr. R.D.S. Kharlia, counsels for the petitioners made the following submissions:

i) Since earlier Mandi Yard notified way back in the year 1961 was de-notified and new Mandi Yard was notified by KUMS, Pilibanga, respondent No. 2, therefore, condition No. 4(3) in Allotment Policy of 2005 could not be imposed and such restrictions would illegally deprive the petitioners of their right of allotment in new Mandi Yard because even if one of the partners, of the applicant firm is an existing partner of another firm or old partnership firm, it is not reasonable and valid to exclude such new applicant firm from the eligibility zone of consideration of applicants and therefore, this condition could not have been invoked to reject their applications in the course of previous allotment in pursuance of notification dt. 12.2.2008 Annex. 2 quoted above.

ii) Since similar reason is likely to be invoked for considering the fresh applications for allotment of 27 shops notified vide Annex. 7 dt. 11.4.2011, quoted above, they are entitled to a mandamus direction to the respondent -- Krishi Upaj Mandi Samiti to allot remaining 27 shops in preference to the petitioners over the other applicants.

iii) Mr. Sanjeet Purohit, representing the petitioner in SBCWP No. 4864/2011 - M/s. Radheshyam Ramswaroop also submitted that the Policy Guidelines of 2005 were further amended vide amending notification (Annex. 2) dt. 14.10.2012 whereby clause 4(4) was added under the Policy Guidelines and therefore, the petitioner''s case deserves to be considered in accordance with the amended provisions of law, according to which since they had been in the seniority list on the basis of turn over that fell below the cut off limit, therefore, as per the amended law, their ineligibility was removed and the petitioner''s case accordingly deserves to be considered in the light of the amended position. Thus, the learned counsel for the petitioner submitted that they may be allotted the shops in pursuance of subsequent notification dt. 11.4.2011 for 27 shops.

On the other hand Mr. Narendra Rajpurohit for Mr. Ravi Bhansali submitted that as far as the criteria in allotment policy of turn over and partnership in other firm is concerned, they are perfectly just and legal criteria and the purpose is obviously to encourage the persons with higher turn over to shift to new Mandi Yard in which 254 shops/plots in question have been demarcated and to avoid those applicants whose partners are already, existing partners in other partnership firms carrying on said business, so that the new traders can be introduced in new Mandi area and therefore, these criteria provided in the allotment policy are reasonable and completely valid and the application of the petitioner was rightly rejected by the respondent Krishi Upaj Mandi Samiti at the time of earlier allotment of 227 shops and since the petitioners have already applied for subsequent allotment of 27 shops also in pursuance of subsequent notification dt. 11.4.2011 (Annex. 7), their application is bound to be considered according to the existing law in the form of Allotment Policy of 2005 as amended vide Annex. 2 dt. 14.10.2010 in SBCWP No. 4864/2011 -- M/s. Radheshyam Ramswaroop vs. State of Rajasthan & Ors. and it is premature for this Court to interfere with said decision making process for allotment of 27 shops now to be undertaken by the respondent -- Krishi Upaj Mandi Samiti, which was stalled because of interim orders granted in some of the writ petitions in the present set of writ petitions.

I have heard the learned counsel for the parties, perused the record at the case and relevant statutes and judgments cited at the Bar.

Relevant portion of Clause 4 of the Allotment Policy of 2005 deserves a mention here. The said clause 4 only applies to first phase of allotment while clause 7 deals with 2nd phase of allotment. Therefore, both these clauses 4 and 7 of the said allotment policy are reproduced hereunder including Clause 4(4) inserted vide amending notification dt. 14.10.2010 Annex. 2 in SBCWP No. 4864/2011--Radheshyam Ramswaroop vs. State of Rajasthan & Ors.

The contention of the learned counsel for the petitioners to the extent of challenge to the criteria prescribed under Clause 4(3) deserves to be noticed by this Court only to be rejected. This Court sees no unreasonableness and discriminatory classification, arbitrariness or perversity in the said criteria provided in the Allotment Policy, 2005. The criteria of turn over as well as criteria of any partner of applicant firm not being an existing partner of another already existing partnership firm are perfectly just, legal and valid criteria''s. The purpose of same is apparent and clear, namely to promote the persons with higher turnover to undertake their business in new Mandi Yard, while excluding the existing business firms whose partners are also partners in new applicant firms, in order to encourage the new traders whose partners and proprietors are not already existing licensed traders of agriculture produce. The classification so made for excluded categories of applicants for allotment of plots/shops in new Mandi Yard of Pilibanga laid down in the Allotment Policy, 2005, which is applicable to the State of Rajasthan as a whole, appears to be absolutely bonafide, legal and reasonable. The said challenge, therefore, fails and is, hereby rejected.

As far as the consideration of the respective applications of the petitioners for the second phase of allotment of 27 shops in pursuance of notification (Annex. 7) dt. 11.4.2011 is concerned, this Court is of the considered opinion that the writ petitions are premature. Admittedly, the allotment of second phase of allotment of 27 shops undertaken in pursuance of Annex. 7 dt. 11.4.2007 has not yet been completed by the respondent Krishi Upaj Mandi Samiti. They are bound to undertake that decision making process as per existing policy of 2005 as amended by notification dt. 14.10.2010 and as fairly submitted by the learned counsel for the respondent Krishi Upaj Mandi Samiti that they are is bound to consider the applications for these 27 shops/plots in accordance with existing law. This Court is of the opinion that no mandamus or directions is required to be given to the respondents to comply and abide by the existing policy guidelines of 2005 as amended in 2010 at the time of consideration of the respective applications of the present petitioners and others who may not have even filed the writ petitions before this Court, but whose applications are pending before the respondent Krishi Upaj Mandi Samiti Pilibanga.

The contention of the learned counsels for the petitioners is that they will have the preference over other applicants because of their existing business and despite their partners being existing partners in other firms also does not have any merit since criteria of such classification has already been upheld by this Court as indicated above. The fresh applications for second phase of allotment of 27 shops are also bound to be considered only as per the existing Policy guidelines for which no premature intervention can be made by this Court in the present set of writ petitions. It is only after such allotments are made taking a considered decision by the respondent Krishi Upaj Mandi Samiti and if the petitioners are aggrieved with the same on justifiable reasons that a cause of action can be said to have arisen to the petitioner to invoke the jurisdiction of this Court or avail other appropriate legal remedy in accordance with law. It would be premature to consider the-claim of the petitioners in absence of those who are applicants, but are not before this Court at the stage. There is no justification to prejudge the decision making process of the respondent Krishi Upaj Mandi Samiti for allotment of the said 27 shops yet to be made by them. Therefore, only after such allotment is made and that the petitioners may make out a ground for assailing those decisions of 27 shops that they may be permitted to avail appropriate legal remedy.

The judgments cited at Bar by the learned counsel for the petitioners in the case of Labha Ram and Sons and Others Vs. State of Punjab and Others, wherein it was observed that in para 16 and 17 of the judgment by the Apex Court that in the matter of allotment of plots/shops in new market yard, the existing traders should be given preference. The preference to the erstwhile dealers may not be by providing free allotment of building or plots or allotment at a rate which is belong the reserved price. The Government may fix up any rate above the reserved price for such licensed dealers, but such fixation should not be at unreasonable rates.

The said judgment is not at all applicable to the facts of present case, since no such case is made out in the present set of facts where the application of the petitioner has been rejected on valid grounds in the first phase of allotment of shops, whereas fresh applications for second phase of allotments are yet to be decided and as far as rate of allotment of plot in question are concerned, the same has already been delineated in the notifications published as quoted above on DLC rates or at 1� times of DLC Rate in case of new applicants as the case may be, but that is not the question requiring consideration at the present stage.

The other judgments cited at the bar in the case of Gainda Ram and Others Vs. M.C.D. and Others, is also not applicable in the facts of the present case. In the said case, while dealing with the case of street hawkers in light of Article 19(1)(g) and 19(6) of the Constitution of India, the Hon''ble Supreme Court held that the schemes framed by the Municipal Corporation or Municipal Council for such street hawkers do not have statutory force and law regulating street hawking is necessary and therefore, the Court framed particular scheme for hawkers to continue with regulated Scheme till the appropriate law is enacted. On the basis of this Judgment the learned counsel for the petitioner sought to contend that the present petitioners deserves to be given preference as they have right to carry on the business in the new Mandi area since the earlier area has been de-notified. The cited judgment with great respects is of little avail to the petitioners in the present case. The street hawkers for whom Scheme was framed by the Apex Court have hardly any parity with the business traders whose business is regulated under the Rajasthan Agriculture Produce Market Act and Allotment Policy of 2005 as quoted above. Therefore, this judgment is of no avail to the petitioner. In view of the aforesaid, these writ petitions are found to be devoid of any merit and the same are accordingly dismissed. No order as to costs.