IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN WRIT PETITION Nos.30451-30454/2016 (APMC) BETWEEN:
1. M/S. Lokesh Oil Traders 37/3, APMC Yard, Bandipalya, Mysore-570 024, Represented by its partner, Smt. Girijamma, Aged About 64 Years, W/o Late Hanumanthappa, 2. M/S. Santosh Traders General Merchants and Commission Agents, #79, B-Block, 1st Cross, APMC Yard, Bandipalya, Mysore-570 024, By its partner, Umesh, Aged about 50 years, 3. M/S. Shivakrupa Trading Company General Marchants, #17/1, A-Block, 1st Cross, APMC Yard, Bandipalya, Mysore-570 024, By its partner, Sannaiah, Aged About 50 Years.
4. M/S. Lakshmi Traders No.15, APMC Yard, Bandipalya, Mysore-570 026, By its partner, V.S. Arun, Aged About 58 Years.
(By Sri. B Prabhudeva, Adv.) ...Petitioners And:
1. State of Karnataka and Appellate Authority Represented by Minister for Horticulture and Agricultural Marketing, Multistoried Building, Dr. Ambedkar Veedhi, Bangalore-560 001.
2. The Director of Agricultural Marketing No.16, 2nd Raj Bhavan Road, Bangalore-560 001.
3. The Agriculture Produce Marketing Committee, Amargol Market Yard, Mysore-570 024, Represented by its Secretary.
…Respondents (By Smt. Shilpa S. Gogi, HCGP for R1 and R2; Sri. Mallikarjun C. Basareddy, Adv. For R3) These writ petitions are filed under Articles 226 and 227 of Constitution of India, praying to call for records and returns from the respondents and set aside the order dated 27.04.2016 made in Appeal Nos.7, 8, 9 and 16/2015 passed by the R-1 Appellate authority as per Annexure – F and etc.
These writ petitions coming on for Orders, this day, the Court made the following:
ORDER These petitions are filed by the petitioners for quashing the order passed by respondent No.1 – Appellate Authority dated 27.04.2016 in Appeal Nos.7, 8, 9 and 16 of 2015 vide Annexure – F and to direct the respondent No.2 to approve the resolution passed by the Market Committee dated 27.08.2014 vide Annexure – A and to grant alternative sites to the petitioners by exchanging sites which are allotted in the B – Block and to quash the order dated 25.07.2014 by the 2nd respondent produced at Annexure – L.
2. Heard the arguments of the learned counsel for the petitioners, learned Government Advocate appearing for respondent Nos.1 and 2 and learned counsel for the APMC.
3. The case of the petitioners is that they are claimed to be licensed traders and are allotted sites in B – Block as per the details mentioned in the petitions and according to them, the sites allotted to them are situated in undeveloped area and they sought for allotment of alternative sites. The resolution has been passed by the APMC Committee for approving the request made by the petitioners and it was sent to the 2nd respondent – the Director of APMC. But, the Director of the APMC without assigning any reasons has rejected their request. Hence, they filed Appeal Nos.7, 8, 9 and 16 of 2015 before the State Government as per Section 74 (d) of the Karnataka Agricultural Produce Marketing (Regulation and Development) Act, 1966. The State Government has dismissed the said appeals vide order dated 27.04.2016. However, the petitioners have contended that the order passed by the State Government is not in accordance with the Karnataka Government (Transaction of Business) Rules, 1977 as it was signed by the APMC Ministers which is not permissible as per the Business Transaction Rules. Therefore, the said order of the State Government has to be set aside and further contended that alternative sites are available in the A – Block but, the Director of APMC without assigning any reasons has rejected their prayer for alloting alternative sites in A – Block as sites allotted in B – Block are not yet developed and hence prayed for allowing the petitions.
4. The respondent No.3 – APMC has filed the statement of objections. Sri.Mallikarjun C. Basareddy, learned counsel for respondent No.3 in his statement of objections has contended that some of the sites were though available at A – Block, but in view of the widening of the ring road some of the allottees in A – Block have lost their sites. Therefore, sites available in A – Block are compensated to those allottees who have lost their sites under formation of the road and remaining sites which are available, are required for the purpose of future development of APMC which cannot be allotted to the petitioners as alternative sites. It is also contended that if the request of the petitioners is allowed, then there are 25 applicants who have filed similar applications on the same ground urged by the petitioners. However, in an affidavit filed by the Director of the APMC, it is stated that only 15 sites are available in A – Block which is required for further expansion and development of APMC. Therefore, sought for dismissing the petitions.
5. The learned HCGP appearing for respondent Nos.1 and 2 also supports the arguments made by the learned counsel appearing for the respondent No.3.
6. Upon hearing the arguments of the learned counsel for the parties, it is an admitted fact that the petitioners are allottees of four sites in B – Block and subsequently, these petitioners have filed an application for exchange of sites available in A – Block, as the sites allotted to them in B – Block are undeveloped sites, which is permissible under Rule 17-A and Rule 21-A of the Karnataka Agricultural Produce marketing (Regulation of Allotment of property in market Yards) Rules, 2004 Act, only if the valid reasons are made out for allotting sites with prior approval of the Director of the Agricultural Marketing Committee.
7. The Marketing Committee in its meeting dated 27.08.2014 (Annexure – A) accepting the request made by the petitioners has passed resolution and proposal was sent to the Director of APMC for reconsideration. The said resolution was forwarded to the respondent No.1 for his approval as it was required under Section 9 (2) of the Karnataka Agricultural Produce Marketing (Regulation and Development) Act, 1966. Admittedly, the respondent No.2 without assigning any reasons has rejected the approval sent by the APMC Committee by order dated 02.12.2014 vide Annexure – M and upheld the earlier order dated 25.07.2014.
8. The petitioners have filed Appeal Nos.7, 8, 9 and 16 of 2015 before the State Government. The State Government in its order dated 27.04.2016 has contended that there are only three sites available in A- Block which is in possession of the Market Committee. Therefore, it cannot be allotted to these petitioners. The order passed by the State Government is based on the details of availability of the sites in the APMC yard produced by the 2nd respondent – Director of APMC.
9. On perusal of the said order, it clearly reveals that the appeals have been rejected on the ground that there are no alternative sites available in A – Block. Though the order has been challenged by the petitioners on the ground that the signature on the order signed by the minister and it was not be signed in the name of the Hon’ble Governor and in support of his contention the learned counsel relied upon the judgment of the Hon’ble Apex Court reported in the case of Delhi Union of Journalists Cooperative House Building Society Limited and others vs. Union of India and others (2013) 15 SCC 614 wherein, the Hon’ble Apex Court while dealing with the similar matters, it has held at para No.18 as follows:-
“18.In Shanti Sports Club and another v. Union of India and others (supra), a similar question was considered in the context of noting recorded by the then Minister, Urban Development for release of the acquired land in favour of the appellant. While rejecting the appellants' prayer, this Court referred to the earlier judgments and held: "All executive actions of the Government of India and the Government of a State are required to be taken in the name of the President or the Governor of the State concerned, as the case may be [Articles 77(1). and 166(1).].
Orders and other instruments made and executed in the name of the President or the Governor of a State, as the case may be, are required to be authenticated in such manner as may be specified in rules to be made by the President or the Governor, as the case may be [Articles 77(2) and 166(2)]. Article 77(3) lays down that: "77. (3. The President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business." Likewise, Article 166(3) lays down that: 166. (3. The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business insofar as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion."
This means that unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order on behalf of the Government. A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government.
Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1). and (2) or Articles 166(1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always is reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review."
10. Even on perusal of the Karnataka Government (Transaction of Business) Rules, 1977, at para Nos.18 and 19 it refers as follows:-
“18. All orders or instruments made or executed by or on behalf of Government shall be expressed to be made or executed in the name of the Governor of Karnataka or for grant of leave for a part or whole of the period of extended service accruing under the proviso to clause (1) of rule 98 of Karnataka Civil Services Rules which amount to extension of service.
19. (1) Orders and instruments made and executed in the name of the Governor of Karnataka, shall be authenticated by the signature of a Principle Secretary, a Secretary, an Additional Secretary, a Special Secretary, a Joint Secretary, a Deputy Secretary, an Under Secretary [a Desk Officer] [or any other officer holding these posts on ex-officio basis] or by such other officer as may be specially empowered in that behalf by the Governor in the manner specified below and such signature shall be deemed to be the proper authentication of such order or instrument.”
11. On perusal of the judgment of the Hon’ble Apex Court and Rule 19 (1) of the Karnataka Government (Transaction of Business) Rules, 1977, any order passed by the Government or State Government shall be passed in the name of the Governor and it shall be signed by the Principal Secretary, Additional Secretary, Special Secretary, Joint Secretary, Deputy Secretary or Under Secretary but, the order dated 27.04.2016 (Annexure – G) reveals that the same was signed by the Minister for Horticulture and Regulated Markets. But, the order is not passed in the name of the Hon’ble Governor. Therefore, the order dated 27.04.2016 at Annexure – F is not sustainable under law.
12. On perusal of the order dated 02.12.2014 by respondent No.2 - the Director of Agricultural Marketing shows that he has rejected only the approval sent by the APMC.
13. During the pendency of these petitions, the respondent No.2 – Additional Director of APMC has filed affidavit before this Court as per order dated 08.08.2019. At para No.16 it shows that 15 intermediate sites are available in ‘A’ Block which has not been allotted to anybody and the same are in possession of the market committee. Those sites are shown as Nos.251, 252, 253, 256, 257, 273, 274, 275, 276, 277, 278/A, 180/B, 326, 323 and 325. Though the affidavit shows that these sites are required for future development and expansion of the market, but till date there are no documents produced before this Court to show that any resolution has been passed by the market committee or director for reserving sites for future development.
14. Admittedly, some of the allottees who are granted sites in A – Block have lost their sites due to formation of the ring road in Mysuru and they have been allotted alternative sites as per Rule 17A of the Allotment Rules, 2004.
15. It has been further stated in the affidavit that the petitioners are not the only traders who are seeking allotment of alternative sites from B – Block to A – Block, there are 25 other traders who have given requisition to allot alternative sites in A – Block.
16. But, that itself is not a ground for rejection of prayer of the petitioners. This Court by order dated 26.05.2016 had granted an interim order directing the respondents not to allot any sites until disposal of these petitions.
17. On perusal of the affidavit filed by the respondent No.2 – Director of APMC, there are 15 sites available in A – Block. The Hon’ble Minister had directed APMC to develop sites in B – Block and the APMC has taken contention that they are developing sites in B – Block and are forming roads. But, the photographs produced by the respondent No.3 shows that buildings are constructed and roads are not fully developed at sites in B- Block which were allotted long back. The grievance of the petitioners is that sites in B – Block are not developed and roads are not properly constructed and hence the same should be considered by the Director of Marketing Committee.
18. The Market Committee had passed resolution and forwarded the same to the respondent No.1 for considering the request made by the petitioners and to check the availability of the alternative sites in A – Block and send the same for approval of the Director. But, the Director without proper consideration and without assigning any reason has rejected the approval, which is not correct. Therefore, in view of the availability of the sites in A – Block and as the sites in B- Block are not properly developed, nothing prevented the respondents to allot alternative sites to the petitioners. Its is also submitted by the petitioners’ counsel that the site Nos.180/B, 326, 323 and 325 mentioned in para No.16 of the additional affidavit of the Addl. Director (Planning), Department of Agriculural Marketing, Bengaluru has been already identified by the petitioners. Therefore, when the sites are available, rejecting the request of the petitioners is not sustainable under the law. Therefore, the orders dated 27.04.2016 and 25.07.2014 by the Appellate Authority and respondent No.2 under challenge at Annexure – F and Annexure – L respectively are hereby quashed.
19. The respondent No.2 is hereby directed to approve the proposal made by the respondent No.3 – Committee in Annexure – A and to allot sites and consider the applications of the petitioners within six weeks from the date of receipt of this order. Accordingly, writ petitions are disposed of.
In view of disposal of the main petitions, I.A.No.1/2017 does not survive consideration and hence, it is disposed of.
SD/- JUDGE MH/-