RAFIQ, J. - (1.) JAIPUR Aloo Aratia Sangh has filed this writ petition seeking to challenge validity of the notification dated 18. 10. 2006 and alternatively prayed for quashing the said notification to the extent it de-notified Lal Kothi Mandi Yard and has prayed for a mandamus upon the respondents to continue the same as sub-mandi yard and further alternatively, restraining the respondents from changing the nomenclature of D-block of Mohana Mandi Yard with the direction to the respondents to allot the shops to the members of the petitioner- Sangh as per the agreement in accordance with the originally prepared map.
(2.) I have heard Shri S. N. Kumawat, the learned counsel for the petitioner, Shri Indrajeet Singh, the learned counsel for the contesting respondent and Shri S. N. Gupta, the learned Deputy Government Advocate. Shri S. N. Kumawat, the learned counsel for the petitioner submitted that initially the members of the petitioner-sangh were running their trade from Anaj Mandi situated at Sanganeri Gate, but due to the increase in the population of the Jaipur City, the said mandi was shifted to Lal Kothi Main Mandi Yard and ever since the members of the petitioner-sangh were carrying on their business from that Yard. It was submitted that in a suo-motu public interest litigation by this Court, a statement was given by the counsel representing the State Government before this Court that an agriculture terminal market at Village Mohana near Sanganer, Jaipur shall be established and in that matter this Court granted eight months time for doing so. This direction was given without providing an opportunity of hearing to the petitioner and its members and correct facts with regard to allotment of land by Jaipur Development Authority (for short- JDA) for establishment of agriculture produce terminal market at Mohana were not brought to the notice of the Court. The petitioner and others affected therefore filed Special Leave to Petition before the Hon'ble Supreme Court which was decided by judgment dated 13. 9. 2006. In that judgment, Hon'ble Supreme Court noted the preparedness of the petitioner-sangh to shift their business to the shops allotted by Market Committee in Block-D. Matter was however disposed of with opportunity to the State Government to take requisite steps for implementation of the provisions of Rajasthan Agricultural Produce Markets Act, 1961 (for short- the Act of 1961 ). In the event, the legality or validity of the notification issued under that Act is challenged before the High Court, it was observed that the same shall be disposed of as early as possible. Shri S. N. Kumawat, the learned counsel for the petitioner argued that certain questions could not be raised in the earlier litigation because the controversy then was confined to the dispute as to transfer of Principal Mandi Yard Lal Kothi to Mohana New Yard and was not with respect to allotment of shops and internal shifting of the shops in the market at Mohana. The State Government vide its order 28. 9. 99 directed the Krishi Upaj Mandi Samiti, Lal Kothi to take any decision regarding business with the consent of society or the traders. The Mandi Samiti in turn has imposed certain conditions for the purpose of allotment of the lands in terminal market, Mohana. The Mandi Samiti by notice dated 1. 7. 2004 invited applications for allotment of shops on reserved price at the rate of Rs. 1,393/-per meter in the terminal market. On demand of the petitioner, Samiti vide letter dated 3. 7. 2004 supplied copy of the map of the complete yard in which specific blocks were shown for various nature of traders which indicated potato-onion shops on eastern side of the yard to be allotted to the members of the petitioner-sangh which was shown as 'd-Block'. The petitioner-sangh submitted a written consent letter on 7. 10. 2004 expressing their preparedness to shift to D-Block. However, contrary to earlier commitment, the Samiti started making allotment of the shops / land of D-Block to others which was challenged in S. B. Civil Writ Petition No. 1285/05 by the members of the petitioner-sangh as well as individuals. Subsequently, when the aforesaid SLP was decided by the Hon'ble Supreme Court and consequently the State Government issued fresh notification on 18. 12. 2004, the petitioner-sangh withdrew the aforesaid writ petition with liberty to file fresh one for challenging the notification as also raising other questions in regard to illegal allotment of the shops in the lands of Block-D to others. Shri S. N. Kumawat argued that most of the members of the petitioner-sangh are having 100 points out of 100 as per the criteria laid down by the respondent whereas the members of the other trading societies are having lessor numbers. The petitioners thus had a preferential right over any other sangh or union. The members of the petitioner-sangh are entitled to allotment of shops in originally specified D-Block or C-Block which was agreed to by the respondents also in the meeting held on 27. 9. 2004. In fact proceedings of such meeting were approved by the State Government also. The respondents therefore now cannot be permitted to change the place earmarked for the petitioner-sangh by changing the nomenclature of the block. In regard to challenge to the validity of notification dated 18. 10. 2006, Shri S. N. Kumawat, the learned counsel for the petitioner argued that the aforesaid notification is absolutely against the public interest and has been issued in excess of the powers conferred on the government by Section 5 of the Act of 1961. The respondents have denotified the existing Mandi Yard of Lal Kothi whereas there is no provision in Section 5 for denotification of existing Mandi Yard. Such a decision runs contrary to the overall admission of the respondents manifest in their various letters/ correspondence where Mohana Mandi Yard was intended to be terminal market in addition to existing Lal Kothi Mandi Yard. The State Government is thus estopped from denotifying the Lal Kothi Mandi Yard and the members of the petitioner Sangh cannot be asked to stop their business activities from 1. 4. 2007 from such yards. Section 5 of the Act merely empowers the Government to issue notice for declaring any enclose building or locality in any market area to the principal market yard or sub-market yard but does not empower them to de- notify an already existing principal market yard and therefore the impugned notification having been issued outside the authority of Section 5 is incompetent in law and liable to be set aside. He also argued that it is the duty of the State Government in the benefit of public to declare the market area under section 4 of the Act. But without notifying the specified area in Mohana as market yard under section 4 of the Act, denotification of the existing yard by impugned notification issued under section 5 is bad in law. Impugned notification denotifying the existing mandi yard seeks to place unreasonable restrictions on the fundamental right of the members of the petitioner association to trade which is violative of Article 19 (1) (g) of the Constitution, besides being arbitrary and discriminatory and therefore violative of Article 14 of the Constitution of India.
(3.) IT was further argued that there is no reason with the respondents to shift the originally set up D-Block as this amounts to making major changes in the lay out plant. In spite of the fact that the respondents are having vacant shops in the extended Block-C at the place of earmarked Block-D which is virtually the place of originally earmarked Block-D, the respondents are seeking to shift the members of the petitioner- sangh from eastern corner to western corner which is at the end of the yard. 75% of the shops of the existing Block-C are in fact covering the area of Block-D and are still lying vacant which are indicated in map. Most of the important shops in Block-A and C shown on western corner of the scheme have been alloted to the food traders in place of the members of the petitioner-sangh and it is behind them that four rows of shops have been kept vacant for the petitioner-sangh. This is an arbitrary and colourable exercise of power seeking to allot the shops at less important site to the members of petitioner-sangh. Impugned notification is therefore liable to be quashed and set aside. In the alternative, it has been prayed that the respondents be restrained from changing the nomenclature of D-block and be required to make allotment of the shops in that block to the members of the petitioner Sangh. Per contra, Shri Indrajeet Singh, the learned counsel appearing for the Mandi Samiti opposed the writ petition and argued that originally the Food and Vegetable Market was situated at Sanganeri Gate, Johari Bazar, Jaipur but looking to the shortage of space and heavy traffic problem, it was shifted to Lal Kothi Mandi Yard in the year 1984. With the increase in the population and expansion of the Jaipur City, however, this problem further aggravated and therefore the respondents decided to have new Krishi Upaj Mandi Yard at Village Mohana. A decision was also taken to establish fruit and vegetable Mandi too at Mohana. The counsel representing the State rightly informed this Court in suo moto public interest litigation that the process of establishing new Krishi Upaj Mandi Yard for fruit and vegetable was carrying on at village Mohana. The petitioner-sangh filed application for its impleadment as party in that public interest litigation and upon hearing them and all others, the division bench of this Court by its order dated 27. 2. 2004 directed in public interest for shifting of complete trade from Lal Kothi to Mohana within a period of eight months. The Hon'ble Supreme Court although noted the preparedness of the members of the petitioner- sangh to shift to Block-D but the Court categorically stated that it need not go into that question at this stage. In fact, the Hon'ble Supreme Court permitted the State Government to issue appropriate notification as may be necessary for enforcement of its policy / scheme in accordance with law. The respondents have invited applications from VA' class brokers/joint traders/allottee traders of Lal Kothi Krishi Upaj Mandi Yard for allotment of plot at Mohana vide advertisement dated 11. 6. 2004. Last date for submission of application was extended vide mandi notice dated 1. 7. 2004. In the lay out plan that was prepared and supplied to all concerned, Block A & B have bee shown for fruits, Block C has been shown for vegetables and Block D has been shown for potato and onion. While in the first map, the size of this block was shown as 25ft x 80 ft. whereas on receiving demand from different unions including the petitioner-sangh the size of the shop was then revised to 30ft. x 80ft. The Jaipur Phal Subji Aloo Artiya Maha Sangh also submitted a representation on 29. 1. 2004 in this regard. It was as a consequence of this representation that the Director, Agriculture Marketing Board wrote a letter on 20. 9. 2004 to the Administrator, Rajasthan State Agriculture Marketing Board, Jaipur for amendments in the lay out plan and change in the size of the shops and also requested for giving two gaps in one row of the shops. A meeting of the Board was held on 21. 9. 2004 in which the decision was taken for certain amendments in the lay out plan. It was thereafter that meeting of Allotment Committee was held on 27. 9. 2004 in which allotment of lands for construction of shops to the eligible firms was made. The Committee in its meeting dated 27. 9. 2004 invited various traders associations. Though initially they participated in the meeting but later on boycotted the same. The Allotment Committee looking to the demands of all concerned decided to re-designate the blocks. There was heavy demand of shops from those engaged in vegetable business, therefore, 275 shops of C & D Blocks were renamed as Block C. Some of the shops of Block-C were kept reserved for further extension/expansion. Since the traders dealing in the business of onion and potatoes were lesser in number, therefore, the Allotment Committee decided to allot them shops in Block-A where less number of shops were available. Some of the plots in Block-A were further kept vacant for further expansion. This decision was taken on 21. 9. 2004 and was very well known to the members of the petitioner-sangh. They are now estopped from challenging the same at this belated stage after three years. In fact, after allotment of the plots in C-Block which also include the originally earmarked D-Block, the allottees have also started construction of their shops. The learned counsel has also produced copy of the minutes of the meeting held on 27. 9. 04. It was argued that while the petitioner had already filed the writ petition No. 1285/05 which was later withdrawn on 18. 10. 06, they did not challenge re-designation of Block-C and D jointly as Block-C at that stage and therefore they are now estopped from doing so. It is submitted that the Government has rightly issued the notification dated 18. 10. 2006 as per the opportunity granted by the Hon'ble Supreme Court. The very purpose of setting up of new yard at Mohana is to relieve the city of Jaipur from traffic congestion. This decision was in fact taken in public interest and was enforced expeditiously in compliance of the directions issued by this Court in suo motu public interest litigation. Learned counsel argued that the challenge to notification dated 18. 10. 2006 is wholly misconceived in as much as Government was well within its rights in notifying new Krishi Upaj Mandi Samiti (Vegetables and Fruits), Mohana and at the same time denotifying Lal Kothi Mandi Samiti in exercise of powers conferred upon it by Section 5 of the Act. It was submitted that a road measuring 220 feet has been provided from the main entrance of the Mandi Yard and on the left side of the road is Block-A in which allotment shall be made to the petitioners whereas on the right side of the road Block-C has been shown. There is therefore not major difference in the approach of both the blocks. Shri Inderjeet Singh, learned counsel for the respondent Samiti submitted that notification issued under Section 4 of the Act, is perfectly valid. Market area for fruit and vegetable was been notified way back in the year 1975 in which Tehsil Sanganer has also been included and present village Mohana falls under Tehsil Sanganer. Copy of the notification dated 4. 12. 1975 has been placed on record. It was argued that the respondents have invested huge amount of Rs. 15 crores for acquisition of land and for establishment of mandi yard at Mohana. The Government has spent a further amount of Rs. 27 crores for providing the facilities like street light, electricity, lighting, block connection, internal roads, auction, platforms, boundaries, farmers facilitation center, post-office building, bank buildings, sulabh complex, labour sheds, development of truck stand, drinking water facilities, sewerage system, park, foundation and plantation, sign boards at national highway etc. Now at this stage, the petitioners cannot be allowed to defeat the very purpose and object of setting up new yard. In the notification issued on 18. 10. 2006, Lal Kothi was closed down and it was notified that the trading from Mohana Mandi was to commence from 1. 4. 2007. Now the State Government vide amended notification dated 4. 4. 2007 has extended the date for shifting of trade in new Krishi Upaj Mandi Yard Mohana from 1. 4. 2007 to 30. 9. 2007. It was therefore prayed that the writ petition having no merit be dismissed. ;