R 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF MAY 2019 BEFORE THE HON’BLE MR. JUSTICE G.NARENDAR WRIT PETITION No.1701 OF 2017 (APMC) BETWEEN:
C. Vijaykumar Aged 48 years, S/o Channamailappa Partner, Shop No. B-24, Vegetable Commission Agent Opp: KSRTC Raitha Bhavan, Davanagere – 577003. …Petitioner (By Sri B.R.Satenahalli, Adovate) AND:
1. The Director of Agricultural Marketing No.16, 2nd Raj Bhavan Road, Bangalore – 560 001.
2. Secretary Agricultural Produce Market Committee, Davanagere – 577003.
3. Smt. Azgari Banu Major W/o. late Dastagiri Sab Door No.552/1, Narasaraja Road (Next to NTC Lorry Office) Davanagere City, Davanagere – 577003. …Respondents (By Sri Anandeeswar D.R., HCGP for R1;
Sri J.M. Anil Kumar, Advocate for R2 and Sri H.Mallah Goud, Advocate for R3) This Writ Petition is under Articles 226 and 227 of Constitution of India praying to set aside the order dtd:7.10.2015 issued by the R-1 as per Annexure-B, etc.
This Petition coming on for Preliminary Hearing in ‘B’ Group this day, the Court made the following:
O R D E R Heard the learned counsel for the petitioner and the learned counsel for the respondents.
2. The petitioner is before this Court praying for the following reliefs:
(a) to set-aside order No.Kru.Ma.E/Abhivi- 1/Khathava/167/15 dated 7.10.2015 issued by the first respondent as per Annexure-B;
(b) to issue a writ of mandamus directing the respondents 1 and 2 to execute a lease cum sale deed in favour of the petitioner in respect of Shop No.1B-24 situated in APMC Yard, Davanagere in which the petitioner is running his business on such terms and conditions as the Market Committee may deem fit.
3. The case of the petitioner is that he is a market functionary holding a valid licence and that the petitioner was allotted a shop bearing No.B-24 in the year 2000 and since then, the petitioner is carrying on his business paying upto date market fee and duly following and carrying on business in compliance with the provisions of Karnataka Agricultural Produce Marketing (Regulation and Development) Act, 1966.
4. It is the case of the petitioner that he has inducted a partner by name Sri.D.R.Fareed, S/o Abdul Rahman in the year 2003-04 in order to improve his business. That the said Sri.D.R.Fareed, the newly inducted partner died leaving behind the 3rd respondent as his legal representative. That the 3rd respondent has submitted her application to continue the Leave and Licence agreement in her name in respect of Shop No.B-24. That pursuant to the same, the first respondent succumbing to extraneous pressure, without applying their mind issued the order dated 07.10.2015 sanctioning the leave and licence in the name of the 3rd respondent under Rule 18(2) of the Karnataka Agricultural Produce Marketing (Regulation of Allotment of Property in Market Yards) Rules, 2004.
5. It is the case of the petitioner that the execution of the leave and licence of the 3rd respondent is contrary to the mandate of the Act and the Rules. It is further contended that once an allotment is made in favour of the individual allottee, the allotment is non- transferrable and that there is no provision under the Act for either transferring the same in favour of the 3rd party or converting the status of the licencee from an individual to partnership or vice-versa. That the proceedings is contrary to the provisions of Rule 8(1) of the allotment Rules, 2004. That the impugned order is contrary to the provisions of Rule 8(1) of the 2004 Rules and the impugned order is without authority of law and hence vitiated.
6. Learned counsel for the petitioner would invite the attention of the Court to the licence which admittedly is issued in the name of the petitioner Sri.C.Vijaykumar and there is no dispute with regard to the fact that the licence was originally granted in favour of the petitioner and that thereafter the petitioner has constituted a partnership firm and inducted the husband of 3rd respondent as a partner in the said firm. The order impugned is produced as Annexure-B to the writ petition.
7. What could be observed from the impugned Annexure-B is that the Market Committee by resolution dated 17.04.2015 as per resolution No.11 has decided that the leave and licence agreement be executed in favour of the 3rd respondent whose late husband was carrying on the business under the licence which was originally granted in favour of the petitioner.
8. Per contra, learned High Court Government Pleader contended that the writ petition is wholly not maintainable. It is admitted that the licence was indeed granted in favour of the petitioner and that the petitioner was also allotted the premises No.B-24 on leave and licence basis. That the petitioner has inducted the husband of the 3rd respondent as a partner on 20.03.2004 under a legally constituted partnership deed, a copy of the same is produced as Annexure-R3. That there onwards ie., from 2005-06 to 2008-09 the partnership firm obtained a licence as commission agents and the agency was also declared as the partnership firm .
9. Learned High Court Government Pleader would invite the attention of the Court to Annexure-R4.
10. On perusal of the Annexure-R5, it is seen that the licence has been renewed in the joint names of 3rd respondent’s late husband and the petitioner. A copy of the partnership deed is also produced as Annexure-R6. Annexure R5 is dated 16.06.2011. Annexure R5 was pursuant to the resolution passed by the Market Committee on 30.03.2011 whereby, the Market Committee has permitted the transfer of licence and the allotment from the petitioner to Sri.Dastagir Sab ie., late husband of 3rd respondent. The provisions of Rule 12(1) of 2004 Rules clearly authorizes the transfer of the allotments in favour of the third party with the prior approval of the Market Committee/ Director. Annexures-R7 and R8 clearly evidences the prior approval as stipulated under Rule 12(1) of 2004 Rules.
11. That being the facts obtaining in the instant case, the contentions on behalf of the petitioner that the transfer of allotment contrary to the rules is malicious and false. The partnership deed produced clearly corroborates the petitioner’s pleading that he has inducted the husband of 3rd respondent as a partner.
In that view of the matter, this Court does not find any illegality in the order impugned in the instant writ petition. Accordingly, the petition being mis-conceived is dismissed.
Sd/-
JUDGE GH