IN THE HON’BLE
HIGH COURT OF JUDICATURE AT ALLAHABAD
I N D E X
IN
CIVIL MISC. WRIT
PETITION NO. OF 2009
(Under Article 226 of the Constitution
of India)
(DISTRICT – BULANDSHAHR)
M/S
Sharda Rice Mills, through its Proprietor Suresh Kumar Jain
--------------------------------------------Petitioner.
Versus
Krishi
Utpadan Mandi Samiti Khurja & others---------------Respondents.
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S.N.
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Particulars.
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Dates.
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Ann.
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Pages.
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1.
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List of
dates and Events.
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2.
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Stay
Application (Under Chapter XXII Rule 1 of High Court Rules, 1952)
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3.
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Writ
Petition (Under Article 226 of the Constitution of India)
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4.
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Copy of
the renewal of the licenses conducted under section 9 (1) and (2) pertaining
to Rice Mill.
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25.6.2004
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1
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5.
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Copy of
the renewal of the licenses pertaining to wholesale dealer and commission agent.
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25.6.2004
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2
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6.
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Copy
of the deposit receipt
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26.6.2006
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3
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7.
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Copy of
the deposit receipt.
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30.6.2007
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4
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8.
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Copy
of the application submitted to the Secretary for having renewal of licenses
of Rice Mill
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26.6.2008
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5
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9.
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Copy of
the application submitted to the Secretary for having renewal of licenses of
wholesale dealer and commission agent.
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26.6.2008
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6
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10.
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Copy of
receipt pertaining to Shop no. 14-B allotted to the petitioner.
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30.6.2004
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7
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11.
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Copy of
the Bank Draft sent to Secretary of Mandi Samiti.
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28.6.2008
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8
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12.
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Copy of
the notice issued to the petitioner.
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4.7.2008
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9
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13.
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Copy of
the reply submitted by petitioner before Secretary of Mandi Samiti
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8.7.2008
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10
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14.
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Copy of
the impugned order
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17.9.2008
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11
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15.
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Copy of
the memo of appeal containing all such grounds.
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3.10.2008
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12
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16.
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Copy of
written statement
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30.12.2008
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13
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17.
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Copy of
the objection filed upon written statement.
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7.1.2009
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14
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18.
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Copy of
the impugned order passed by respondent no.2
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3.2.2009
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15
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19.
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Copy of
the order and judgment passed in writ petition no. 60489 of 2006
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13.11.2006
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16
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20.
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Copy of
the order and judgment passed in writ petition no. 28001 of 2006
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19.5.2006
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17
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21.
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Affidavit.
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22.
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Vakalatnama.
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Dt/- March, 2009 ( YOGESH KUMAR SAXENA )
Advocate.
Counsel for the
Petitioner.
Chamber no. 139, High Court,
Allahabad.
IN THE HON’BLE HIGH COURT OF JUDICATURE AT
ALLAHABAD
LIST OF DATES AND EVENT
IN
CIVIL MISC. WRIT PETITION NO. OF 2009
(Under Article 226 of the Constitution of
India)
(DISTRICT – BULANDSHAHR)
M/S
Sharda Rice Mills, through its Proprietor Suresh Kumar Jain
---------------------------------------------Petitioner.
Versus
Krishi
Utpadan Mandi Samiti Khurja & others-------------Respondents
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Sl.no.
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Dates.
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Events.
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1.
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25.6.2004
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The
petitioner is whole sale trader and commission agent and having his licenses
in the name of M/S Sharda Rice Mills from the year 1970. His U.P. Sale Tax
number is KJ 0033822 for conducting the aforesaid business in furtherance of
the requirement of section 9 of Uttar Pradesh Krishi Utpadan Mandi Adhiniyam,
1964 (hereinafter referred as Act 1964) and the renewal of the licenses were
conducted under section 9 (1) and (2) pertaining to Rice Mill and whole sale
dealer and commission agent.
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2.
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30.6.2004
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The Shop
no. 14-B was allotted to the petition on 30.6.2004 in the Naveen Mandi Sthal,
for which the petitioner had deposited Rs.1000/- through receipt No. 06365
with the Secretary. However, the aforesaid shop no.14-B was not given to the
petitioner, in spite realization of aforesaid amount for the allotment of
Shop no. 14-B on 30.6.2004.
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3.
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19.5.2006
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This
Hon’ble Court has considered the question in respect of availability of few
shops being constructed by respondent Mandi Samiti, wherein the directions
were issued that petitioner jointly or individually may submit application
for raising construction of new shop as per direction given by this Hon’ble
Court in writ petition no. 60489 of 2006.
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4.
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26.6.2006
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The
renewal of license fees was realized by the Secretary of Mandi Samiti, Khurja
on 26.6.2006 for the year 2006-07.
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5.
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13.11.2006
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This
Hon’ble Court in identical matter in writ petition no. 28001 of 2006 also
passed order.
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6.
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30.6.2007
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The renewal
of license fees was realized by the Secretary of Mandi Samiti Khurja on
30.6.2007 for the year 2007-08.
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7.
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28.6.2008
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Bank Draft
dated 18.6.2008 was sent to Secretary of Mandi Samiti by the petitioner.
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8.
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26.6.2008
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The
renewal of license was done every year upto 2007-08 and as such when the
renewal of said licenses was required to be done for the year of 2008-09 then
the applications were filed on its prescribed proforma in furtherance of
provisions of section 9 of the Act readwith Rule 20 (1) and bye-laws 50 (2)
on its prescribed proforma no.20-G.
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9.
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4.7.2008
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Two fold
queries was made regarding delay in depositing required fees for renewal
after 30.6.2008 and for conducting business from Rice Mill instead of open
space provided at Naveen Mandi Sthal.
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10.
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8.7.2008
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Regarding
other objections pertaining to non-deposit of rent the petitioner had categorically
mentioned that Shop no. 14-B was allotted to him on 30.6.2004 and Rs.1000/-
through receipt no. 06365 has been realized from petitioner, but said shop
had not been given to the petitioner till date for conducting the aforesaid
business. It was prayed that renewal of licenses for the year 2008-09 may be
done by the Secretary.
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11.
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17.9.2008
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As per as
the reply pertaining to allotment of Shop no.14-B allotted to the petitioner,
for which an amount of Rs.1000/- through receipt no. 06365 on 30.6.2004 has
been realized from petitioner firm, nothing has been said in respect of
realization of aforesaid amount, which is still lying with respondent no.1,
but the said shop has not been given despite being allotted to the petitioner
in Naveen Mandi Sthal. It has not been said that how does renewal of licenses
has taken place from year 2004 onward as required rent of shop no. 14-B
amounting to Rs.1000/- is till lying with Secretary.
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12.
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3.10.2008
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Feeling
aggrieved by the aforesaid order the petitioner filed an appeal under section
25 of Act no. 1964 before respondent no.2.
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13.
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30.12.2008
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Nothing
has been said regarding cancellation of allotment of shop no. 14-B, which was
allotted to the petitioner on 30.6.2004, however, it has not been denied that
receipt no. 06365 amounting to Rs.1000/- was realized at the time of
allotment, but the said shop has not been given to the petitioner. On the
other hand the Tin shade no.8 has been allotted to him for which the
petitioner deposited Rs.792/- through receipt no.4320/431949 on 11.9.2006.
Thus it could not be said that petitioner is not conducting his business in
violation of section 7 (2)(b) of the Act 1964.
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14.
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7.1.2009
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The
objections were filed by the petitioner on the aforesaid written statement on
7.1.2009. It has been said that despite the argument have been conducted on
31.12.2008, the copy of written statement have not been given to the
petitioner at the time of aforesaid argument. It was stated that written
statement cannot be accepted at such a belated stage and appeal may be
decided on its merit. It was further stated that order dated 15.9.2008 is
pertaining to renewal of licenses for the year 2007-08, while its renewal has
already been done in the year 2007 itself and thus the order passed by
Secretary is liable to be set aside on account of non-application of mind.
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15.
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3.2.2009
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The appeal
filed by the petitioner has been dismissed on 3.2.2009 by the order passed by
respondent no.2. Hence present writ petition before this Hon’ble Court.
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Dt/- March, 2009 ( YOGESH KUMAR SAXENA )
Advocate.
Counsel for the
Petitioner.
IN THE HON’BLE
HIGH COURT OF JUDICATURE AT ALLAHABAD
CIVIL MISC.
AD- INTERIM MANDAMUS APPLICATION
NO. OF 2009
(Under Section 151 of the
C.P.C.)
On behalf
of
M/S
Sharda Rice Mills, through its Proprietor Suresh Kumar Jain
---------------------------Applicant/Petitioner.
IN
CIVIL MISC.
WRIT PETITION NO. OF
2009
(Under Article 226 of the Constitution of India)
(DISTRICT – BULANDSHAHR)
M/S Sharda Rice Mills, through
its Proprietor Suresh Kumar Jain,
Adopted son of Sri Hari Ram Jain,
resident of Vaishali Colony, Gali no.3, Khurja, District Bulandshahr.
----------------------------------Petitioner
Versus
- Krishi Utpadan Mandi Samiti Khurja, District Bulandshahr through its Secretary.
- Rajya Krishi Utpadan Mandi Parishad through its Regional Deputy Director (Administration/Marketing) U.P. A-3, Damodar Colony Garh Road, Meerut.
- Regional Deputy Director (Administration/Marketing) Rajya Krishi Utpadan Mandi Parishad U.P. A-3, Damodar Colony Garh Road, Meerut.
- State of Uttar Pradesh through its Secretary Agriculture, Govt. of U.P. Lucknow.
-------------------------------Respondents.
To,
The Hon’ble the Chief Justice and
his other companion Judges of the aforesaid court.
The humble application of the above
named applicant/ petitioner most respectfully showeth as under: -
(i)
That
the full facts and circumstances of the case have been given in the
accompanying writ petition, it is expedient in the interest of justice that
this Hon’ble Court may graciously be pleased to stay the operation of impugned
orders dated 3.2.2009 (Annexure no. 15) dated 17.9.2008(Annexure no. 11) as the
same are null and void and further issue
ad- interim mandamus directing the respondent no.1 for the renewal of licenses
for the year of 2008-09 after accepting the fees for renewal of the said
licences deposited through Bank Draft dated 28.6.2008 sent through Registered
post within time, as per the provision of section 27 of General Clauses Act.
P R A Y
E R
It is, therefore, most respectfully prayed that this Hon’ble Court may
graciously be pleased to stay the effect and operation impugned orders dated 3.2.2009 (Annexure no. 15)
dated 17.9.2008(Annexure no. 11) as the same are null and void and further issue ad- interim
mandamus directing the respondent no.1 for the renewal of licenses for the year
of 2008-09 after accepting the fees for renewal of the said licences deposited
through Bank Draft dated 28.6.2008 sent through Registered post within time, as
per the provision of section 27 of General Clauses Act during pendency
of present writ petition before this Hon’ble Court. And/or pass such other
suitable order or direction, which this Hon’ble Court may deem fit and proper
in the present circumstances of the case.
Dt/-
March, 2009 ( YOGESH KUMAR SAXENA )
Advocate.
Counsel for the
Petitioner.
IN THE HON’BLE
HIGH COURT OF JUDICATURE AT ALLAHABAD
CIVIL MISC.
WRIT PETITION NO. OF 2009
(Under Article 226 of the Constitution of India)
(DISTRICT – BULANDSHAHR)
M/S Sharda Rice Mills, through
its Proprietor Suresh Kumar Jain,
Adopted son of Sri Hari Ram Jain,
resident of Vaishali Colony, Gali no.3, Khurja, District Bulandshahr.
----------------------------------Petitioner
Versus
- Krishi Utpadan Mandi Samiti Khurja, District Bulandshahr through its Secretary.
- Rajya Krishi Utpadan Mandi Parishad through its Regional Deputy Director (Administration/Marketing) U.P. A-3, Damodar Colony Garh Road, Meerut.
- Regional Deputy Director (Administration/Marketing) Rajya Krishi Utpadan Mandi Parishad U.P. A-3, Damodar Colony Garh Road, Meerut.
- State of Uttar Pradesh through its Secretary Agriculture, Govt. of U.P. Lucknow.
-----------------------------Respondents.
To,
The Hon’ble the Chief Justice and
his other companion Judges of the aforesaid court.
The humble writ petition of the
above named petitioner most respectfully showeth as under: -
1.
That by means
of this first writ petition, the petitioner is challenging the order dated
3.2.2009 passed in Appeal no. 213 of 2008 (M/S Sharda Rice Mills, through its Proprietor
Suresh Kumar Jain Versus Krishi Utpadan Mandi Samiti Khurja) as well as order dated 17.9.2008 passed by
respondent no.1 and 2 refusing to grant renewal of licenses of Rice Mill Firm,
one conducting for whole sale dealer and dealing another Commission Agent by
falsely alleging receipt of the renewal charges and the applications submitted
therein as time barred and no other writ petition against said order has been
filed or pending before this Hon’ble Court. The petitioner has not received any
caveat application so far in the present writ petition on behalf of
respondents.
2.
That the
petitioner is whole sale trader and commission agent and having his licenses in
the name of M/S Sharda Rice Mills from the year 1970. His U.P. Sale Tax number
is KJ 0033822 for conducting the aforesaid business in furtherance of the
requirement of section 9 of Uttar Pradesh Krishi Utpadan Mandi Adhiniyam, 1964
(hereinafter referred as Act 1964). The true copies of renewal of the licenses
conducted under section 9 (1) and (2) pertaining to Rice Mill and whole sale
dealer and commission agent dated 25.6.2004 are being filed herewith and marked
as Annexure no.1 and 2 to this writ petition.
3.
That it is
pertinent to mention here that even in last two years the renewal of license
fees were realized by the Secretary of Mandi Samiti Khurja on 26.6.2006 for the
year 2006-07 and on 30.6.2007 for the year 2007-08 by realizing an amount of
Rs.502/- (Rs.250/- each + Rs.2/-) for having the prescribed proforma for the
year 2006-07 and 2007-08. The true copies of receipts dated 26.6.2006 and
30.6.2007 are being filed herewith and marked as Annexure no.3 & 4
to this writ petition.
4.
That the
renewal of license was done every year upto 2007-08 and as such when the
renewal of said licenses was required to be done for the year of 2008-09 then
the applications were filed on its prescribed proforma in furtherance of
provisions of section 9 of the Act readwith Rule 20 (1) and bye-laws 50 (2) on
its prescribed proforma no.20-G. The true copies of the applications submitted
to the Secretary for having renewal of licenses of Rice Mill and whole sale
dealer and commission agent dated 26.6.2008 for the year 2008-09 are being
filed herewith and marked as Annexure no.5 and 6 to this writ
petition.
5.
That the
renewal of licenses is done upto 30.6.2008 and as such the other Mills owners
and whole sales dealer and commission agents have got their renewal of license
fees deposited upto 30.6.2008 for the year 2008-09.
6.
That when the
renewal of licenses of Rice Mill and whole sale dealer and commission agent was
sought to be done for the year 2008-09, the petitioner sent his Muneem namely
Madan Lal to the office of Secretary, but the staff of Secretary namely C.P.
Sharma and Head Clerk refused to accept renewal form under the protest that
amount of rent of open space is lying due against the petitioner and as such
the renewal of license shall not be done.
7.
That on
26.6.2008 again the petitioner went to the office of Secretary, wherein he had
submitted that it is not possible to conduct the business in the open space of
the sale and purchase of the Paddy and Rice by the petitioner, who has got the
Rice Mill for production of Rice in the huge quantity, which cannot be dealt
with by sitting on the open space. However no other place was chosen by the
petitioner to establish the purchasing centre, except the place provided under
section 7 (2) (b) of the Act.
8.
That the
assurance was given that as soon as shop will be available for conducting
business of whole sale trader and commission agent in the agriculture produce
of Rice, the petitioner shall be allotted the proper accommodation, but despite
the aforesaid assurance given to the petitioner neither the shop was allotted
for conducting business, nor the fees of renewal of both licenses in the tune
of Rs.502/- (Rs.250/- each + Rs.2/-) was accepted in the office of Secretary on
28.6.2008.
9.
That the
petitioner had left with no other option except to get a Bank draft procured
amounting to Rs.502/-. The petitioner got the Bank Draft bearing no. 390306
issued on 28.6.2008 from State Bank of Patiyala, Khurja Branch and went again
to deposit the same in the office of Secretary, but despite waiting there in
the office of Secretary upto evening on 28.6.2008, the aforesaid Bank draft was
not accepted by the Secretary.
10.
That since on
28.6.2008 was Saturday and time for sending the Bank Draft through registered
post from postal department was only upto 2.00 P.M., the Bank Draft of Rs.502/-
for having the renewal of registration of both the licenses could not be
deposited on 28.6.2008 to the Secretary.
11.
That
ultimately the bank draft alongwith prescribed proforma containing the form of
renewal for the year 2008-09 was sent through registered post on 30.6.2008,
which was last date of deposit the prescribed fees of Rs.250/- for each form
total amount of Rs.502/-. Thus the aforesaid deposit of Rs.502/- through
registered postage send to Secretary of Mandi Samiti, shall be deemed to be the
deposit of prescribed fees within time upto 30.6.2008 for renewal of licenses
for the year 2008-09.
12.
That in this
regard it is relevant to mention here that the post office is the agent of
Secretary of Mandi Samiti and since the aforesaid form for renewal of licenses
alongwith prescribed fees of Rs.502/- by means of Bank Draft was sent on
30.6.2008, it shall be deemed that the forms for renewal of licenses were
deposited alongwith prescribed fees within time on 30.6.2008.
13.
That the Shop
no. 14-B was allotted to the petition on 30.6.2004 in the Naveen Mandi Sthal,
for which the petitioner had deposited Rs.1000/- through receipt No. 06365 with
the Secretary. However, the aforesaid shop no.14-B was not given to the
petitioner inspite realization of aforesaid amount for the allotment of Shop
no. 14-B on 30.6.2004. The true copy of the receipt dated 30.6.2004 pertaining
to Shop no. 14-B allotted to the petitioner is being filed herewith and marked
as Annexure no.7 to this writ petition.
14.
That the
aforesaid amount is still lying with the Mandi Samiti (respondent no.1), which has neither permitted the petitioner to
conduct his business from shop no.14-B allotted to him, but asked the
petitioner to conduct business on open space. It is submitted that transaction
of Rice as agriculture produce for Rice Mill cannot be done in open space of
Mandi Samiti on account of huge production of Rice Mill. Thus the whole sale
dealer Rice Mill, Tel Mill or Flour Mill are not being conducting business from
out side the Naveen Mandi Sthal from the year 2004 onward and their licenses
are being renewed on yearly basis upto 2007-08, as has been done in case of
petitioner.
15.
That the
impugned order has been passed by respondent no.1, which is contrary to object
sought to be achieved and has been passed with ulterior consideration. It is
evident by perusal of order that although the renewal of licenses had already
been done for the year 2007-08, but it has been written in the impugned order
that petitioner sought for renewal of licenses for the year 2007-08 by moving
applications on its prescribed proforma of 20-G and by depositing Rs.502/-
through Bank Draft no. 390306 issued from State Bank of Patiyala, Khurja
Branch. The true copy of the Bank Draft dated 28.6.2008 sent to Secretary of
Mandi Samiti is being filed herewith and marked as Annexure no. 8
to this writ petition.
16.
That it has
illegally mentioned in the impugned order that since the aforesaid Bank Draft
was received in the office of Secretary on 2.7.2008 through Registered Post, it
shall not be deemed to have been received within stipulated time period upto
30.6.2008. In this regard it is already submitted that Post Office is agent of
Secretary under section 27 of General Clauses Act and as such the deposit of
fees of renewal of two licenses is within time.
17.
That it is
further mentioned here that on 4.7.2008, two fold queries was made regarding
delay in depositing required fees for renewal after 30.6.2008 and for
conducting business from Rice Mill instead of open space provided at Naveen
Mandi Sthal. The explanation was sought from petitioner on 5.8.2008, in which
two fold objections were raised regarding renewal of licenses. The first
objection is pertaining to the deposit of the license fees beyond the
prescribed limit upto 30.6.2008 and as such it is alleged that section 17 (1)
and Rule 17 (4) of Act have been violated.
18.
That the
second allegation is pertaining to the requirement of section 7 (2)(b) wherein
the place of business is shown at Junction Road Khurja, while open space no.8
is said to have been allotted at Naveen Mandi Sthal is said to be place of
transaction. The true copy of the notice dated 4.7.2008 issued to the
petitioner is being filed herewith and marked as Annexure no. 9
to this writ petition
19.
That the
petitioner submitted his reply, in which he has categorically submitted that
when the petitioner went there to deposit license fees so many times upto
30.6.2008 all the time he was denied for acceptance of aforesaid renewal fees
under the guise that till petitioner may not deposit rent of Tin Shade allotted
to him, the renewal license fees required to be deposited upto 30.6.2008 shall
not be accepted. Thus the aforesaid fee was sent through registered post on
30.6.2008, which shall be deemed to have been deposited within time.
20.
That regarding
other objections pertaining to non-deposit of rent the petitioner had
categorically mentioned that Shop no. 14-B was allotted to him on 30.6.2004 and
Rs.1000/- through receipt no. 06365 has been realized from petitioner, but said
shop had not been given to the petitioner till date for conducting the
aforesaid business. It was prayed that renewal of licenses for the year 2008-09
may be done by the Secretary. The true copy of the reply submitted by
petitioner before Secretary of Mandi Samiti on 8.7.2008 is being filed herewith
and marked as Annexure no.10 to this writ petition.
21.
That inspite
the aforesaid reply that the license fees has been deposited upto 30.6.2008 and
since it has been sent through registered post, the Post office being agent of
respondent no.1, the deposit of fees for renewal of license shall be deemed to
have been done within time.
22.
That as per as
the reply pertaining to allotment of Shop no.14-B allotted to the petitioner,
for which an amount of Rs.1000/- through receipt no. 06365 on 30.6.2004 has
been realized from petitioner firm, nothing has been said in respect of
realization of aforesaid amount, which is still lying with respondent no.1, but
the said shop has not been given despite being allotted to the petitioner in
Naveen Mandi Sthal. It has not been said that how does renewal of licenses has
taken place from year 2004 onward as required rent of shop no. 14-B amounting
to Rs.1000/- is till lying with Secretary. The true copy of the impugned order
dated 17.9.2008 is being filed herewith and marked as Annexure no. 11
to this writ petition.
23.
That feeling
aggrieved by the aforesaid order the petitioner filed an appeal under section
25 of Act no. 1964 before respondent no.2. The true copy of the memo of appeal
containing all such grounds mentioned in earlier paragraphs dated 3.10.2008 is
being filed herewith and marked as Annexure no.12 to this writ
petition.
24.
That in
furtherance of aforesaid appeal the written statement was filed on behalf of
respondent no.1. In reply to the paragraph no.7 and 8 it has been admitted that
renewal of licenses was done upto 2007-08, which has been done from last 20
years at the same place of Rice Mill/ Factory, but nothing has been said
regarding earlier issuance of renewal of the licenses.
25.
That nothing
has been said regarding cancellation of allotment of shop no. 14-B, which was
allotted to the petitioner on 30.6.2004, however, it has not been denied that
receipt no. 06365 amounting to Rs.1000/- was realized at the time of allotment,
but the said shop has not been given to the petitioner. On the other hand the
Tin shade no.8 has been allotted to him for which the petitioner deposited
Rs.792/- through receipt no.4320/431949 on 11.9.2006. However no other place
was chosen by the petitioner to establish the purchasing centre, except the
place provided under section 7 (2) (b) of the Act.
26.
That it could not be said that petitioner is
conducting his business in violation of section 7 (2)(b) of the Act 1964,
simply on account of the fact that the address of the location of Rice Mill is
mentioned in the renewal Farm on account of non allotment of the shop at Navin
Mandi Sthal, Khurja . The true copy of the written statement dated 30.12.2008
is being filed herewith and marked as Annexure no.13 to this writ
petition.
27.
That the
objections were filed by the petitioner on the aforesaid written statement on
7.1.2009. It has been said that despite the argument have been conducted on
31.12.2008, the copy of written statement have not been given to the petitioner
at the time of aforesaid argument. It was stated that written statement cannot
be accepted at such a belated stage and appeal may be decided on its merit. It
was further stated that order dated 15.9.2008 is pertaining to renewal of
licenses for the year 2007-08, while its renewal has already been done in the
year 2007 itself and thus the order passed by Secretary is liable to be set
aside on account of non-application of mind. The true copy of the objection
filed upon written statement on 7.1.2009 is being filed herewith and marked as Annexure
no.14 to this writ petition.
28.
That the
appeal filed by the petitioner has been dismissed on 3.2.2009 by the order
passed by respondent no.2. The true copy of the impugned order dated 3.2.2009
passed by respondent no.2 is being filed herewith and marked as Annexure
no.15 to this writ petition.
29.
That the
impugned order has been passed in contraventions to the settled proposition
based upon the effect of service under section 27 of General Clauses Act,
wherein it has been laid down that if the papers alongwith the fees for renewal
of licenses was deposited on 30.6.2008, it shall be deemed to have been
deposited within time on 30.6.2008 and thus the requirement of depositing the
fees for renewal of licenses shall be deemed to have been deposited within
stipulated time period.
30.
That as far as
address of Rice Mill at Junction Road Khurja is concern, it shall not be deemed
that petitioner is not conducting the
business at Naveen Mandi Sthal, wherein he had already deposited the required
rent of Rs.1000/- towards shop no.14-B allotted to the petitioner. If the said
shop even after the allotment has not been given, the petitioner had deposited
the rent of Tin shade no.8 on 11.9.2006 through receipt no. 4320/431949 amounting
to Rs. 792/- and renewal of licenses have been done on the basis of deposit of
said amount in the year 2006-07.
31.
That nothing
has been stated in respect of gross impropriety committed by the respondent
no.1 in refusing to get the renewal of licenses for the year 2007-08, while on
the other hand the renewal was prayed for the year 2008-09, but this aspect of
matter has not been dealt with while rejecting the appeal filed by the
petitioner. Thus the impugned order passed on 3.2.2009 is liable to be set aside
by this Hon’ble Court.
32.
That this
Hon’ble Court has considered the question in respect of availability of few
shops being constructed by respondent Mandi Samiti, wherein the directions were
issued that petitioner jointly or individually may submit application for
raising construction of new shop as per direction given by this Hon’ble Court
on 19.5.2006, then it shall be considered by the Director. The true copy of the
order and judgment dated 13.11.2006 passed in writ petition no. 60489 of 2006
and order dated 19.5.2006 passed in writ petition no. 28001 of 2006 are being
filed herewith and marked as Annexure no.16 and 17 to this writ
petition.
33.
That the findings of the Appellate authority
in exercise of the power conferred upon the said Appellate authority U/S 25 of
the Act are perverse and wholly beyond jurisdiction in the matter of renewal of
the licence fees, which is deposited within time. However it could not be said
that petitioner is conducting his business in violation of section 7 (2)(b) of
the Act 1964, simply on account of the fact that the address of the location of
Rice Mill is mentioned in the renewal Farm on account of non allotment of the
shop at Navin Mandi Sthal, Khurja. No other place was chosen by the petitioner
to establish the purchasing centre, except the place provided under section 7
(2) (b) of the Act.
34.
That in the
present case shops has been allotted to the petitioner, for which he had
already paid rent in the year 2004 on 30.6.2004 towards his allotted shop
no.14-B. It is further submitted that rent of Shade no.8 allotted to the
petitioner for which he had already paid rent in 2006 on 11.9.2006. Thus it
could not be said that there has been violation of provisions of section 7 (2)
(b) of the Act. However, the appeal filed under section 25 of the Act was only
confined under section 17 (1) regarding non-renewal of license despite the
deposit of fees that aforesaid renewal within time through registered post,
which shall be deemed to be agent of respondent no.1. Thus the impugned order of
rejection of appeal is based on irrelevant consideration and as such both the
orders passed on 17.9.2008 and 3.2.2009 are liable to be set aside by this
Hon’ble Court.
35.
That under
these circumstances, it is expedient in the interest of justice that this Hon’ble
Court may graciously be pleased to quash the impugned order dated 3.2.2009 and
17.9.2008 passed by respondent no.2 and 1 respectively.
36.
That it is
further prayed that the respondent no.1 may be directed for the renewal of licenses for the year of 2008-09
after accepting the fees for renewal of the said licence deposited through Bank
Draft dated 28.6.2008 through Registered post within time, as per the provision
of section 27 of General Clauses Act.
37.
That the
petitioner has got no other equally effective and speedy alternative remedy
except to approach this Hon’ble Court by invoking its extra-ordinary writ
jurisdiction under Article 226 of the Constitution of India, inter-alia on the
following amongst other grounds:
G R O U N
D S
a.
Because, the petitioner is whole sale trader and
commission agent and having his licenses in the name of M/S Sharda Rice Mills
from the year 1970. His U.P. Sale Tax number is KJ 0033822 for conducting the
aforesaid business in furtherance of the requirement of section 9 of Uttar
Pradesh Krishi Utpadan Mandi Adhiniyam, 1964 (hereinafter referred as Act
1964).
b.
Because, the renewal of license was done every
year upto 2007-08 and as such when the renewal of said licenses was required to
be done for the year of 2008-09 then the applications were filed on its
prescribed proforma in furtherance of provisions of section 9 of the Act read
with Rule 20 (1) and bye-laws 50 (2) on its prescribed proforma no.20-G.
c.
Because, the impugned order has been passed in
contraventions to the settled proposition based upon the effect of service
under section 27 of General Clauses Act, wherein it has been laid down that if
the papers alongwith the fees for renewal of licenses was deposited on
30.6.2008, it shall be deemed to have been deposited within time on 30.6.2008
and thus the requirement of depositing the fees for renewal of licenses shall
be deemed to have been deposited within stipulated time period.
d.
Because, the renewal of licenses is done upto
30.6.2008 and as such the other Mills owners and whole sales dealer and
commission agents have got their renewal of license fees deposited upto
30.6.2008 for the year 2008-09.
e.
Because, on 28.6.2008 was Saturday and time for
sending the Bank Draft through registered post from postal department was only
upto 2.00 P.M., the Bank Draft of Rs.502/- for having the renewal of
registration of both the licenses could not be deposited on 28.6.2008 to the
Secretary.
f.
Because, ultimately the bank draft alongwith
prescribed proforma containing the form of renewal for the year 2008-09 was
sent through registered post on 30.6.2008, which was last date of deposit the
prescribed fees of Rs.250/- for each form total amount of Rs.502/-. Thus the
aforesaid deposit of Rs.502/- through registered postage send to Secretary of
Mandi Samiti shall be deemed to be the deposit of prescribed fees within time
upto 30.6.2008 for renewal of licenses for the year 2008-09.
g.
Because, the post office is the agent of
Secretary of Mandi Samiti and since the aforesaid form for renewal of licenses
alongwith prescribed fees of Rs.502/- by means of Bank Draft was sent on
30.6.2008, it shall be deemed that the forms for renewal of licenses were
deposited alongwith prescribed fees within time on 30.6.2008.
h.
Because, the Shop no. 14-B was allotted to the
petition on 30.6.2004 in the Naveen Mandi Sthal, for which the petitioner had
deposited Rs.1000/- through receipt No. 06365 with the Secretary. However, the
aforesaid shop no.14-B was not given to the petitioner inspite realization of
aforesaid amount for the allotment of Shop no. 14-B on 30.6.2004.
i.
Because, the aforesaid amount is still lying
with the Mandi Samiti (respondent no.1), who has neither permitted the
petitioner to conduct his business from shop no.14-B allotted to him, but asked
the petitioner to conduct business on open space.
j.
Because, the transaction of Rice as agriculture
produce for Rice Mill cannot be done in open space of Mandi Samiti on account
of huge production of Rice Mill. Thus the whole sale dealer Rice Mill, Tel Mill
or Flour Mill are not conducting
business from out side the Naveen Mandi Sthal from the year 2004 onward and
their licenses are being renewed on yearly basis upto 2007-08 as has been done
in case of petitioner.
k.
Because, the impugned order has been passed by
respondent no.1, which is contrary to object sought to be achieved and has been
passed with ulterior consideration. It is evident by perusal of order that
although the renewal of licenses had already been done for the year 2007-08,
but it has been written in the impugned order that petitioner sought for
renewal of licenses for the year 2007-08 by moving applications on its
prescribed proforma of 20-G and by depositing Rs.502/- through Bank Draft no.
390306 issued from State Bank of Patiyala, Khurja Branch.
l.
Because, it has illegally mentioned in the
impugned order that since the aforesaid Bank Draft was received in the office
of Secretary on 2.7.2008 through Registered Post, it shall not be deemed to
have been received within stipulated time period upto 30.6.2008. In this regard
it is already submitted that Post Office is agent of Secretary under section 27
of General Clauses Act and as such the deposit of fees of renewal of two
licenses is within time.
m.
Because, nothing has been stated in respect of
gross impropriety committed by the respondent no.1 in refusing to get the
renewal of licenses for the year 2007-08, while on the other hand the renewal
was prayed for the year 2008-09, but this aspect of matter has not been dealt
with while rejecting the appeal filed by the petitioner. Thus the impugned
order passed on 3.2.2009 is liable to be set aside by this Hon’ble Court.
n.
Because, this Hon’ble Court has considered the
question in respect of availability of few shops being constructed by
respondent Mandi Samiti, wherein the directions were issued that petitioner
jointly or individually may submit application for raising construction of new
shop as per direction given by this Hon’ble Court on 19.5.2006, then it shall
be considered by the Director.
o.
Because, in
the present case shops has been allotted to the petitioner for which he had
already paid rent in the year 2004 on 30.6.2004 towards his allotted shop
no.14-B. It is further submitted that rent of Shade no.8 allotted to the
petitioner for which he had already paid rent in 2006 on 11.9.2006. Thus it
could not be said that there has been violation of provisions of section 7 (2)
(b) of the Act. However, the appeal filed under section 25 of the Act was only
confined under section 17 (1) regarding non-renewal of license despite the
deposit of fees that aforesaid renewal within time through registered post,
which shall be deemed to be agent of respondent no.1. Thus the impugned order
of rejection of appeal is based on irrelevant consideration and as such both
the orders passed on 17.9.2008 and 3.2.2009 are liable to be set aside by this
Hon’ble Court.
p.
Because, the findings of the Appellate
authority in exercise of the power conferred upon the said Appellate authority
U/S 25 of the Act are perverse and
wholly beyond jurisdiction in the matter of renewal of the licence fees, which
is deposited within time. However it could not be said that petitioner is
conducting his business in violation of section 7 (2)(b) of the Act 1964,
simply on account of the fact that the address of the location of Rice Mill is
mentioned in the renewal Farm on account of non allotment of the shop at Navin
Mandi Sthal, Khurja. No other place was chosen by the petitioner to establish
the purchasing centre, except the place provided under section 7 (2) (b) of the
Act.
q. Because, in
the present case shops has been allotted to the petitioner, for which he had
already paid rent in the year 2004 on 30.6.2004 towards his allotted shop
no.14-B. It is further submitted that rent of Shade no.8 allotted to the
petitioner for which he had already paid rent in 2006 on 11.9.2006. Thus it
could not be said that there has been violation of provisions of section 7 (2)
(b) of the Act. However, the appeal filed under section 25 of the Act was only
confined under section 17 (1) regarding non-renewal of license despite the
deposit of fees that aforesaid renewal within time through registered post,
which shall be deemed to be agent of respondent no.1. Thus the impugned order
of rejection of appeal is based on irrelevant consideration and as such both
the orders passed on 17.9.2008 and 3.2.2009 are liable to be set aside by this
Hon’ble Court.
P R A Y E R
It is, therefore, most respectfully prayed that this Hon’ble Court may
graciously be pleased to: -
(ii)
Issue a writ,
order or direction in the nature of certiorari quashing the impugned order
dated 3.2.2009 passed by respondent no.2(Annexure no. 15) in Appeal no. 213 of
2008 (M/S Sharda
Rice Mills, through its Proprietor Suresh Kumar Jain Versus Krishi Utpadan
Mandi Samiti Khurja as well as
order dated 17.9.2008(Annexure no. 11) passed by respondent no.1.
(iii)
Issue a writ, order or direction in the nature
of mandamus declaring the impugned orders dated 3.2.2009 (Annexure no. 15) dated
17.9.2008(Annexure no. 11) as null and void and further directing the respondent
no.1 may be directed for the renewal of licenses for the year of 2008-09 after
accepting the fees for renewal of the said licences deposited through Bank
Draft dated 28.6.2008 sent through Registered post within time, as per the
provision of section 27 of General Clauses Act.
(iv)
Issue any
other suitable order or direction, which this Hon’ble Court may deem fit and
proper in the facts and circumstances of the case.
(v)
To award the
cost of the writ petition in favour of the petitioner.
Dt/- March, 2009 ( YOGESH KUMAR SAXENA )
Advocate.
Counsel for the
Petitioner.
Chamber no. 139, High Court,
Allahabad.
IN THE HON’BLE
HIGH COURT OF JUDICATURE AT ALLAHABAD
ANNEXURE
NO.
IN
CIVIL MISC. WRIT
PETITION NO. OF 2009
(Under Article 226 of the Constitution
of India)
(DISTRICT – BULANDSHAHR)
M/S
Sharda Rice Mills, through its Proprietor Suresh Kumar Jain
--------------------------------------------Petitioner.
Versus
Krishi
Utpadan Mandi Samiti Khurja & others---------------Respondents.
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