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CASE NO.: Appeal (civil)  2300 of 2007

PETITIONER: M/s Ram Singh Vijay Pal Singh & Ors

RESPONDENT: State of U.P. & Ors

DATE OF JUDGMENT: 01/05/2007

BENCH: G.P. Mathur & R.V. Raveendran

JUDGMENT: J U D G M E N T

(Arising out of Special Leave Petition (Civil) No.4286 of 2004)

G. P. MATHUR, J.

       Leave granted. 2.      This appeal, by special leave, has been filed challenging the  judgment and order dated 5.9.2003 of a Division Bench of Allahabad  High Court, by which the writ petition filed by the appellants was  summarily dismissed at the admission stage.  3.      The appellants herein filed the writ petition before the High  Court under Article 226 of the Constitution praying for the following  reliefs : (i)     issue an appropriate writ, order or direction commanding the  respondents concerned to allot the shops/godowns to the  petitioners on hire purchase basis;

(ii)    issue an appropriate writ, order or direction commanding the  respondents concerned not to interfere, in any manner, on the  possession of the petitioners’ shops and godowns allotted to  them;

(iii)   issue an appropriate writ, order or direction commanding the  respondents concerned not to compel the petitioners to enter  into any agreement for taking shops/godowns allotted to them  on rental basis.

(iv)    issue any other or further writ, order or direction which this  Hon’ble Court may deem fit and proper in the circumstances of  the case.

The writ petition was filed on behalf of 143 firms and  individuals carrying on business in agricultural produce and the  respondents arrayed in the writ petition were (1) State of U.P. through  Director, Krishi Utpadan Mandi Parishad, Lucknow; (2) Krishi  Utpadan   Mandi   Samiti,   Pilibhit   through   its  Chairman;   and    (3) Secretary, Krishi Utpadan Mandi Samiti, Pilibhit.    

4.      The case set up by the writ petitioners in the writ petition is as  under.  The petitioners are dealers in agricultural produce and have  been granted licenses by the Krishi Utpadan Mandi Samiti, Pilibhit, to  carry on the said business.  They were earlier carrying on business in  Purana Galla Mandi in Pilibhit city.  After construction of Nawin  Mandi Sthal, they were directed to shift their business to the said  newly constructed premises.   Though the Nawin Mandi Sthal is at  considerable distance from the city area and it lacked basic  infrastructure, the petitioners shifted their business to the said place as

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it was intimated that a policy was being chalked out to give the shops  and sheds, etc. to the license holders on hire-purchase basis.   Subsequently in the year 1995, the Director, Mandi Parishad,  Lucknow, sent a letter that the shops, godowns and sheds will be  given to the license holders on hire-purchase basis.  In some places  like Haldwani, Rudrapur and Ghaziabad, in the State of U.P., the  shops and godowns were given to the license holders on hire-purchase  basis.  The writ petitioners were paying rent to Mandi Samiti, Pilibhit,  regularly and had been repeatedly requesting the authorities of the  Mandi Samiti to formally execute the document giving the shops and  godowns to them on hire-purchase basis.  However, instead of  executing the said documents, the respondents had given them notice  to execute an agreement with the Mandi Samiti, Pilibhit, whereunder  the shops and godowns will be given to them on lease on rental basis.    The writ petitioners who were carrying on business in the shops and  godowns since 1986 and had been regularly paying the rent to the  Mandi Samiti were under a bona fide impression that ultimately the  same shall be transferred to them on hire-purchase basis.   Some of the  writ petitioners had spent money in making improvements in the  shops and godowns under their occupation and the same was done  with the prior approval of the Mandi Samiti.  The proforma of the  agreement which was now given to the writ petitioners contained a  clause that after expiry of a period of 3 years, the rent shall be  enhanced by 10 per cent.  It was on these grounds that the writ  petition was filed seeking the reliefs as quoted above.   

5.      In reply to the writ petition, a counter affidavit was filed by the  Secretary, Krishi Utpadan Mandi Samiti, Pilibhit and the pleas taken  therein are as under.  The writ petitioners were carrying on business in  wholesale in specified agricultural produce and they had been allotted  shops, sheds and open space in Nawin Mandi Sthal for which rent is  charged.   All the basic amenities had been provided in the Nawin  Mandi Sthal which was quite close to the city.  The writ petitioners  had been allotted the shops etc. on rental basis and at no stage any  assurance was given that the shops, godowns or sheds would be given  to the writ petitioners on hire-purchase basis.  At the outset, it was  made clear to the traders that the Mandi Samiti was giving the shops,  godowns and sheds on lease for which rent would be charged.   It was  denied that anywhere in U.P. a different policy was adopted or that  shops or godowns had been given by the Mandi Samiti on hire- purchase basis. Regarding the letter of the Director allegedly sent in  1995, it was submitted that being a policy matter, it was the Mandi  Parishad (Board) alone which could take such a decision and the  Director had no authority to direct that the property of Mandi Samiti  shall be given to the traders of agricultural produce, who are license  holders, on hire-purchase basis. It was further submitted that the  Inspector General and Commissioner of Stamps, U.P. had sent a letter  dated 24.10.2002 to the Director, Mandi Parishad, U.P. that the  agreement which was to be executed between the Mandi Samiti  (Committee) and the traders required to be registered and stamp duty  in accordance with Article 35 of Schedule I (kha) of the Indian Stamp  Act (as amended in the State of U.P.) had to be paid. It was after  receipt of the said communication that the various allottees of the  shops, godowns and sheds of the Mandi Parishad were informed to get  the agreement (lease deed) registered.  It was specifically pleaded that  the uniform policy of the Mandi Parishad (Board) was to give the  shops, godowns and sheds to the traders of agricultural produce, who  had obtained licenses, on lease on rental basis and not to transfer the  property in their favour either on hire-purchase basis or otherwise.  

6.      The High Court on 5.9.2003 summarily dismissed the writ  petition by a brief order which reads as under :-         "Heard learned counsel for the parties.         The petitioner has an alternative remedy of filing a  revision under Section 32 of the U.P. Krishi Utpadan

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Mandi Adhiniyam, 1964 before the Mandi Parishad.

       The petition is dismissed on the ground of  alternative remedy. However, if a revision is filed the  same will be decided expeditiously."     

7.      We have heard Mr. Dinesh Dwivedi, learned senior counsel for  the appellants and Mrs. Shobha Dikshit, learned senior counsel for the  respondents.  

8.      The dispute here is governed by U.P. Krishi Utpadan Mandi  Adhiniyam, 1964 (hereinafter referred to as ’the Act’).   Sections 12,  26-A and sub-section (1) of Section 26-L of the Act read as under :- "12.    Establishment and incorporation of Committee.  \026 (1) For every Market Area there shall be Committee to  be called the Mandi Samiti of that Market Area, which  shall be a body corporate having perpetual succession  and an official seal and, subject to such restrictions or  qualifications, if any, as may be imposed by this or any  other enactment, may sue or be sued in its corporate  name and acquire, hold and dispose of property and enter  into contracts :

       Provided that the Committee shall not transfer any  immovable property except in accordance with a  resolution duly passed at any of its meetings by a  majority of not less than three-fourths of the total number  of its members and with the previous approval in writing  of the Board.

       (2)     The Committee shall be deemed to be a  local authority for the purposes of Land Acquisition Act,  1894 and any other law for the time being in force.

26-A.    Establishment of the Board. \026 (1) The State  Government shall, by notification in the Gazette, and  with effect from a date to be specified therein, constitute  a Board by the name of the State Agricultural Produce  Markets Board with its head office at Lucknow.

       (2)  The Board shall be a body corporate by the  said name having perpetual succession and a common  seal and may sue or be sued by the said name and  acquire, hold and dispose of property and enter into  contracts.  

       (3)     The Board shall for all purposes be deemed  to be a local authority.

26-L.   Powers and functions of the Board. \026 (1)  The  Board shall, subject to the provisions of this Act, have  the following functions and shall have power to do  anything which may be necessary or expedient for  carrying out those functions \026

(i)     superintendence and control over the working of  the Market Committees and other affairs thereof  including programmes undertaken by such  Committees for the construction of new Market  yards and development of existing markets and  Market areas;

(ii)    giving such direction to Committees in general or  any Committee in particular with a view to ensure  efficiency thereof;

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(iii)   any other function entrusted to it by this Act;

(iv)    such other functions as may be entrusted to the  Board by the State Government by notification in  the Gazette."

       The proviso to sub-section (1) of Section 12 of the Act would  show that the Mandi Samiti (Committee) is not empowered to transfer  any immovable property without the previous approval in writing of  the State Agricultural Produce Markets Board (Mandi Parishad).    Section 26-L of the Act deals with the powers and functions of the  Board.  The Director of Mandi Parishad (Board) has not been  conferred any power whereunder he may issue a general direction that  the shops, godowns and sheds of the Mandi Parishad shall be  transferred or sold to the traders on hire-purchase basis.   Therefore,  the appellants can derive no benefit from the letter of the Director  dated 4.11.1995, wherein it was mentioned that a decision had been  taken to give the shops on hire-purchase basis.   In the counter  affidavit the respondents have specifically asserted that the Board  never took any such decision to sell the property of the Mandi Samiti  to the traders either on hire-purchase basis or otherwise.  No  document has been filed to show that the Board ever took any such  decision.  It is the case of the respondents that the letter sent by the  Director was his own action which had never been authorized by the  Board.   At any rate the proposal made by the Director never fructified  as no such decision was taken by the Board and the Board never  authorized the Mandi Samities (Committees) of various districts in the  State to transfer the property of the Samiti in favour of the traders of  agricultural produce who had been allotted the shops, godowns and  sheds by the Mandi Parishad. In this view of the matter, the appellants  have no legal right to claim that the property be given to them on hire- purchase basis.

9.      Mr. Dinesh Dwivedi, learned senior counsel for the appellant  has next submitted that the writ petitioners were earlier carrying on  business from their own premises in Purana Galla Mandi in the city of  Pilibhit and they shifted to Nawin Mandi Sthal, where the Mandi  Samiti had made construction of shops and godowns, etc. which is at  considerable distance from the city and which lacked basic  infrastructure, on the assurance given by the Mandi Parishad that the  business premises would be sold to them on hire-purchase basis.    Learned counsel has submitted that after having shifted to the Nawin  Mandi Sthal which caused considerable inconvenience to the traders,  it is not open to the respondents to contend that the business premises  would be given to them by the Mandi Samiti on lease or rental basis.   In this connection it may be pointed out that the writ petitioners have  not filed any document whatsoever to show that either it was held out  or any assurance was given by the respondents that the business  premises would be sold to the petitioners on hire-purchase basis or  otherwise.  In fact, there is not a single piece of paper on record to  substantiate the allegation made by the writ petitioners.   Whether the  shops, godowns and sheds of the Mandi Samiti, which have been  allotted to the writ petitioners, should be given to them on lease or  should be sold to them on hire-purchase basis, is purely a matter of  policy as the property belongs to the Mandi Samiti or the Mandi  Parishad.  It is for the Mandi Samiti or the Mandi Parishad to take a  policy decision in this regard and the Court cannot examine the  correctness or otherwise of the said policy except in a very narrow  compass.   

10.     In Netai Bag v. State of West Bengal (2000) 8 SCC 262, this

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Court held as under in para 20 of the reports : "20. The Government is entitled to make pragmatic  adjustments and policy decision which may be necessary  or called for under the prevalent peculiar circumstances.  The court cannot strike down a policy decision taken by  the Government merely because it feels that another  decision would have been fairer or wiser or more  scientific or logical. In State of M.P. v. Nandlal Jaiswal  (1986) 4 SCC 566 it was held that the policy decision can  be interfered with by the court only if such decision is  shown to be patently arbitrary, discriminatory or  malafide. In the matter of different modes, under the rule  of general application made under the M.P. Excise Act,  the Court found that the four different modes, namely,  tender, auction, fixed licence fee or such other manner  were alternative to one another and any one of them  could be resorted to. ............................................"

       In the well known case of BALCO Employees Union v. Union  of India (2002) 2 SCC 333, a Three Judge Bench summarized the law  on the point as under : "In a democracy, it is the prerogative of each  elected Government to follow its own policy. Often a  change in Government may result in the shift in focus or  change in economic policies. Any such change may  result in adversely affecting some vested interests. Unless  any illegality is committed in the execution of the policy  or the same is contrary to law or mala fide, a decision  bringing about change cannot per se be interfered with by  the Court. It is neither within the domain of the Courts  nor the scope of the judicial review to embark upon an  enquiry as to whether a particular public policy is wise or  whether better public policy can be evolved. Nor are the  Courts inclined to strike down a policy at the behest of a  petitioner merely because it has been urged that a  different policy would have been fairer or wiser or more  scientific or more logical.         Wisdom and advisability of economic policies are  ordinarily not amenable to judicial review unless it can  be demonstrated that the policy is contrary to any  statutory provision or the Constitution. In other words, it  is not for the Courts to consider relative merits of  different economic polices and consider whether a wiser  or better one can be evolved. In matters relating to  economic issues, the Government has, while taking a  decision, right to "trial and error" as long as both trial and  error are bona fide and within limits of authority. For  testing the correctness of a policy, the appropriate forum  is the Parliament and not the Courts........................"

       In Federation of Railway Officers Association v. Union of India  (2003) 4 SCC 289, it was held as under in para 12 of the reports :- "12.    In examining a question of this nature where a  policy is evolved by the Government judicial review  thereof is limited.   When policy according to which or  the purpose for which discretion is to be exercised is  clearly expressed in the statute, it cannot be said to be an  unrestricted discretion.  On matters affecting policy and  requiring technical expertise the Court would leave the  matter for decision of those who are qualified to address  the issues. Unless the policy or action is inconsistent with  the Constitution and the laws or arbitrary or irrational or  abuse of the power, the Court will not interfere with such  matters."

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This being the settled position of law no direction can be issued to the  respondents to transfer the shops, godowns or sheds to the writ  petitioners on hire purchase basis. 11.     The principal relief claimed by the writ petitioners is that a writ  of mandamus be issued commanding the respondents to allot the  shops, godowns and sheds to the writ petitioners on hire-purchase  basis.  The principles, on which a writ of mandamus can be issued  have been settled by a catena of decisions of this Court.  In The Bihar  Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh  AIR 1977 SC 2149, this Court observed as under: - "A writ of mandamus can be granted only in a case  where there is a statutory duty imposed upon the officer  concerned and there is a failure on the part of that officer  to discharge the statutory obligation.  The chief function  of a writ is to compel performance of public duties  prescribed by statute and to keep subordinate tribunals  and officers exercising public functions within the limits  of their jurisdiction.  It follows, therefore, that in order  that mandamus may issue to compel the authorities to do  something, it must be shown that there is a statute which  imposes a legal duty and the aggrieved party has a legal  right under the statute to enforce its performance."

12.     The writ petitioners have absolutely no legal right to claim that  the shops, godowns or sheds be transferred to them on hire-purchase  basis.   In these circumstances the relief claimed by them cannot at all  be granted and the writ petition was rightly dismissed.   13.     Having given our careful consideration to the submissions  made by learned counsel for the parties, we are of the opinion that the  appellants have failed to make out any ground for granting any relief  to them, as claimed in the writ petition.  The appeal is accordingly  dismissed with costs.