- (1.) B. S. Chauhan, Dilip Gupta, J. This petition has been filed for quashing the order dated 31st March, 2006 passed by the Director, Rajya Krishi Utpadan Mandi Samiti, Lucknow (hereinafter referred to as the 'director') and for a direction upon the respondents to allot remaining 27 shops at Lahsun Mandi, Etah strictly in accordance with the list prepared in the year 2002 pursuant to the advertise ment dated 15th August, 2002.
(2.) THE averments made in the Writ Petition indicate that an advertisement was issued on 15th August, 2002 by the Mandi Samiti for allotment of 30 newly constructed shops at Lahsun Mandi, Etah. This allotment was to be made on the basis of average Mandi fee/turnover of the last three years. Pursuant to the aforesaid advertisement a list was prepared in the year 2002 containing the names of all the applicants in order of their average Mandi fee/turnover of the last three years. This list was, how ever, not implemented for quite some time as a result of which a Writ Petition being Civil Misc. Writ Petition No. 27462 of 2003 was filed by certain traders for a direction upon the respondents to allot the shops in their favour on the basis of the list prepared by the respondents in the year 2002. A counter-affidavit was filed by the Mandi Samiti in answer to the averments made in the Writ Petition. THE list prepared in the year 2002 was admitted and it was stated that it had been prepared on the basis of average market fee/turnover for the last three years. It was also categorically stated that this very list would be placed before the Allotment Committee for the pur poses of allotment of shops and, there fore, the petitioners should have no grievance. THE said petition was ul timately allowed by a detailed judgment and order dated 4th May, 2005. THE said judgment is quoted below: "it appears to this Court that this is high time to interfere with the matter and direct the concerned respondents to allot the shop rooms as per the list of allottees of the year 2002 within a period of one month from the date of communication of this order positive ly. Strict compliance is needed because good amount of money of the petitioners are involved in this respect and there is no reason available till this date why the allot ment will not be given. It is expected that the State authorities will act fairly and justly. Accordingly, the writ petition stands disposed of. " The Mandi Samiti, however, moved an application for recalling the order dated 4th May, 2005 on the ground that the circular dated 17th January, 2004 had been issued by the Director under which the allotment of the shops was to be made on the basis of open auction. This application was disposed of by the Court by the order dated 16th December, 2005 and the order is as follows: "this is an application for recalling the order dated 4th May, 2005. It has been con tended by the learned Counsel for the respon dents that the order was not passed by this Court on merits. It appears from the order that respondents were directed to allot the shop-rooms as per list of allottees of the year 2002 within a period of one month from the date of communication of this order positively. Therefore, the order was passed on merit. By making this application within time, the learned Counsel for the respondents contended that there is dispute in respect of allotment of shop-rooms because there are number of allottees and unless auction is not made, such allotment cannot be done. No such provision was there at the time when the order in 2000-02 was passed. When the allotment was made, the subsequent circular came for the purpose. We are not concerned in respect of allotment of more than one per son by auction as per new scheme or as per execution of old scheme in respect of others. Our order is restricted only in respect of three writ petitioners therefore, that should be complied with within a period of one month from the date of communication of this order as per old scheme and in view of the same we think that the application for the recall of the order can be converted into application for modification giving opportunity of hearing to the respondents and petitioners and by consent of the parties, application is treated as such. Strict compliance will be made by the respondents in respect of the time framed by this Court from the date of com munication of this order. " The Mandi Samiti then issued an advertisement on 18th January, 2006 for allotment of those very shops for which the allotment had been initiated under the advertisement dated 15th August, 2002. This advertisement was challenged by certain traders by filing Writ Petition No. 5668 of 2006. However, during the pendency of the aforesaid Writ Petition the Mandi Samiti con cluded the entire allotment proceed ings and as such Writ Petition No. 10720 of 2006 was also filed for quashing allot ment proceedings. The aforesaid two Writ Petitions were finally disposed of by this Court by the judgment and order dated 3rd March, 2006 by issuing direc tions to the Director, Mandi Samiti, Lucknow to consider the case of the petitioners within six weeks and the ques tion of the list prepared in the year 2002 was also left to be considered by the respondent authority at the time of passing the order. Writ Petition No. 7259 of 2006 was also filed by certain traders against the aforesaid auction of Mandi Samiti. In the said petition the Court gave directions to the Director, Mandi Samiti to consider the cast of other similarly placed persons also.
(3.) IN pursuance of the aforesaid directions passed by this Court, the Director, Mandi Samiti passed a detailed order on 31st March, 2006. The Director concluded that the list prepared in the year 2002 should not be implemented as auction was required to be held under the circular dated 17th January, 2004. The subsequent allot ment made on the basis of the auction held on 27th January, 2006 was also cancelled and it was ordered that the fresh auction should be held. The petitioners have challenged that part of the order of the Director by which the list of the year 2002 was rejected. Sri Rakesh Bahadur, learned Counsel appearing for the petitioners has submitted that the circular dated 17th January, 2004 can have no pos sible application to the list already prepared in the year 2002 on the basis of the advertisement issued on 15th August, 2002 and, therefore, reliance placed by the Director on the aforesaid circular dated 17th January, 2004 is to tally misconceived. He has further sub mitted that in the counter-affidavit filed by the Mandi Samiti in Writ Petition No. 27462 of 2003 it was clearly admitted by the Mandi Samiti that the list prepared in the year 2002 was in accordance with the circular which required the average market fee and turnover for the last three years to be taken into considera tion and that it is this list which would govern the allotments to be made by the allotment committee and, therefore, the petitioners should have no grievance. Placing reliance on the aver ments made by the Mandi Samiti in the said counter-affidavit Sri Rakesh Bahadur, learned Counsel for the petitioners submitted that the Mandi Samiti cannot now turn around and contend that this list prepared in the year 2002 shall not be implemented. He further submitted that the Mandi Samiti gave relief to the three petitioners who filed the said Writ Petition No. 27462 of 2003 by allotting three shops to them and, therefore, it cannot deny the allot ment of shops to the petitioners who had been placed much above the said three petitioners in the said list.;