East Delhi Fruits And Vegetables Thok … vs Shri Mukhtiar Singh And Ors. on 12 August 2005

Delhi High Court
East Delhi Fruits And Vegetables Thok … vs Shri Mukhtiar Singh And Ors. on 12 August, 2005
Equivalent citations: 2005CRILJ83, 123(2003)DLT401
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog

JUDGMENT

Pradeep Nandrajog, J.

1. In CWP No. 7627/00 filed by the petitioners, on 22.1.2002 following order was passed:-

“This matter has been pending since December, 2000. I have heard learned counsel for the parties.

The short surviving controversy in this case is with regard to the payment of the outstanding market fee. Learned counsel Mr. Panwar does not dispute the figures of outstanding market fee as shown at page 103 of the paper book (internal pages 4 & 5 of the counter affidavit). It is stated that the parties at serial Nos. 10 & 11 are not the petitioners before the Court. After hearing the parties and considering that the matter involved is only clearing of the outstanding amounts, let the entire outstanding amount, as shown, be cleared by the petitioners in six monthly equal Installments commencing from 10.2.2002. In case the amounts are paid in six monthly Installments, as stated above and latest by 31.8.2002, the petitioners would be eligible for being considered for allotment of premises on license basis on the usual terms and conditions of the respondents. They would be eligible for consideration for allotment, subject to availability of the space. The respondents shall, however, endeavor to accommodate the petitioners if the outstanding payments are made as stated and latest by 31.8.2002.

The writ petition stands disposed of in the above terms.”

2. Petitioners pray that action be taken against the respondents for having committed contempt of the order dated 22.1.2002 afore-noted.

3. Respondents are the office-bearers of the Delhi Agricultural Marketing Board and Gazipur Subzi Mandi, APMC Shahdara, Delhi.

4. Grievance of the petitioners is that having cleared the entire license fee, space has not been allotted to the petitioners in terms of the order dated 22.1.2002.

5. As per the reply filed, out of 8 writ petitioners only petitioners 1 and 8 namely Mohd.Tasleem Qureshi and Raseed Nawaz deposited the requisite dues by 31.8.2002. Additionally, it is stated that petitioners are confusing between the license required by a person to carry on trade within the precincts of a market and allotment of space within a market by APMC Committee for carrying on business. It is urged that the amount deposited by the petitioners was towards market fee in respect of business conducted by the petitioners in the past. It is urged that the petitioners were carrying on business as commission agents within the market area without obtaining the requisite license under the Delhi Agricultural Produce Marketing Regulation Act. As per rules of the marketing committee, for business conducted within the market, fee is payable. Notwithstanding that the petitioners were conducting business unauthorisedly, market fee had to be paid. It is urged that reference to the outstanding dues in the order-dated 22.1.2002 is towards these arrears. It is additionally urged that petitioners have been granted the license to act as commission agents at Ghazipur Subzi Mandi, APMC, Shahadra. It is stated that as per their seniority position, as and when space would be available, petitioners would be permitted to occupy the space under a license, as per policy.

6. Petitioners filed an additional affidavit on 24.10.2004. It is stated therein that out of 330 newly constructed shops, 323 have been licensed out. 7 are lying unallotted. It is further stated that one Smt. Meena Devi has been allotted, under a license, shop No. 323 in May, 2004, notwithstanding that her entitlement in terms of seniority is much below that of the petitioners.

7. In response to the additional affidavit, respondents have stated that Meena Devi was allotted a shop on compassionate ground after the death of her husband who was already a license holder with his brother at Ghazipur Subzi Mandi, APMC, Shahadra.

8. In the rejoinder to the reply to the additional affidavit, petitioners state that the respondents are accommodating persons who were affected by construction of Metro Rail in Delhi. Petitioners aver that these persons cannot be treated as senior to the petitioners.

9. On 15.4.2005, respondents placed on record the seniority list maintained by the Ghazipur Subzi Mandi, APMC, Shahadra.

10. The short question which arises for consideration is, whether in light of the facts as noted above, are the respondents liable to be punished for having committed contempt of this court by violating order dated 22.1.2002 passed in WP(C) No. 7627/00.

11. A Division Bench of this court in the decision reported as Agriculture Produce Market Committee v. Potato & Onion Merchant Association drew the distinction between a license required by a person desirous of carrying on trade within the precincts of a market yard and a license under the Easement Act to occupy a space in the market yard. Ratio of the decision is that the former license is a statutory license and the latter is a matter of a contract.

12. Petitioners have not placed any material on record to show that prior to 22.1.2002 they had obtained the statutory license from APMC to carry on business within the precincts of Ghazipur Subzi Mandi, APMC, Shahadra. Indeed, counsel for the petitioner virtually conceded that the outstanding amounts referred to in the order dated 22.1.2002 were in respect of outstanding market fee. I may additionally note that order dated 22.1.2002 clearly records that the payment is in respect of ‘outstanding market fee’.

13. Counsel for the petitioners did not dispute that as per the Delhi Agricultural Produce Market Regulations Act, turnover fee is payable by traders who carry on business within the precincts of a market.

14. Therefore, nothing turns on the assertion of the petitioners that they have cleared the outstanding amounts in terms of the order dated 22.1.2002.

15. Position appears to be that the petitioners were illegally acting as commission agents in the market. They did not have a license. They were illegally encroaching on public space within the market. To regularize the tresspass, respondents agreed that on the petitioners clearing the outstanding market fee, they would be considered and would be issued the statutory license to carry on business within the market area and further, subject to availability, space would be allotted. In this connection, language of order dated 22.1.2002 is clear. It is categorically recorded that ‘they would be eligible for consideration for allotment, subject to availability of the space.’

16. Pleadings of the parties show that as per the respondents seniority position of the petitioners is not senior enough to entitle them for being allotted a space within the market. Ms. Avnish Ahlawat, learned counsel for the respondent stated that plans for extension of the market have been finalized and it is expected that in the near future additional space would be available. Petitioners would, in all probability be accommodated in the next phase of allotment.

17. For being liable to be proceeded under the Contempt of Courts Act, 1971, if the charge is of violating an order of the court, mere infraction is not enough. Gravement of a contempt is intentional violation of an order passed by a court.

18. Pleadings of the parties as noted above shows that there is no intentional, much less contemptuous violation of the order dated 22.1.2002. Pleadings show that there is a serious dispute whether the seniority of the petitioners is senior enough, entitling them to be allotted space. Additional dispute is, whether other traders who are being affected by the construction of Metro Rail in Delhi can be accommodated in the Ghazipur Subzi Mandi, APMC, Shahadra. This dispute is a substantive dispute. In the present proceedings, this dispute cannot be resolved. Additionally for the reason, the persons affected have to be imp leaded as a party in any proceedings where a decision would be rendered which is likely to affect their right.

19. Notice of contempt is accordingly discharged.

20. Petition is dismissed.

21. No costs.