IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION Nos.1892-1894/2018 (APMC) BETWEEN:
1. M/s. Rakesh Traders Site No.89/4. ‘A’ Block APMC Yard, Bandipalya Mysuru – 570 025.
Represented by its Proprietor Sri Sajjan Jain S/o late Mirhi Marji Aged about 52 years R/at No.532, I Floor Chaluvamba Agrahara Near 100 Feet Road Mysuru – 570 024.
2. M/s. A.A. Traders No.28/2, A Block APMC Yard, Bandipalya Mysuru – 570 025 Represented by its Proprietor Sri Asif Ahamed S/o late Abdul Shakur Pasha Aged about 51 years R/at No.854, 4th Cross, I Stage Rajivnagar Mysuru – 570 017.
3. M/s. Shivanna Rice & Provision Stores No.372, A Block APMC Yard, Bandipalya Mysuru – 570 025 Represented by Proprietor Shivanna S/o late Sri. Chikkamallegowda Aged about 68 years No.994, 8th Main road III Stage, Gokulam Mysuru – 570 002. ... Petitioners (By Sri. B. Prabhudeva, Advocate) AND:
1. The Director of Agricultural Marketing No.16, 11th Rajbhavan Road Bengaluru – 560 001.
2. Agricultural Produce Market Committee Bandipalya Nanjangud Road Mysuru – 570 025 By its Secretary. ... Respondents (By Smt. B.P. Radha, AGA for R1; Sri. T. Swaroop, Advocate for R2) These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India, praying to quash the impugned all endorsement dated 24.11.2017 passed by the respondent No.2 vide Annexure-J, J1 and J2 respectively and etc.
These Writ Petitions coming on for Preliminary Hearing in ‘B’ Group, this day, the Court made the following:
O R D E R The learned counsel for the petitioners files a memo stating that liberty may be reserved to challenge the impugned endorsement in so far as it relates to petitioner Nos. 2 and 3 before the Revisional Authority as provided under Rule 23 of the Karnataka Agricultural Produce Marketing (Regulation of allotment of Property in Market Yard) Rules, 2004 (‘the Rules’ for brevity).
2. Accordingly, petitioner Nos.2 and 3 are permitted to withdraw the petitions and liberty is reserved to challenge the endorsement at Annexure-J dated 24.11.2017 which is an endorsement as regards petitioner No.2 and liberty is reserved to challenge the endorsement at Annexure-J1 dated 24.11.2017 which is an endorsement issued to petitioner No.3 in accordance with Rule 23 of the Rules.
3. The consideration in the present pending writ petition would continue as regards petitioner No.1.
4. The petitioner No.1 had applied for allotment of a site on lease-cum-sale basis in the Market Yard of the second respondent. The petitioner was allotted site No.369 and lease-cum-sale agreement was entered into as regards site No.369 measuring East to West 30 feet and North to South 70 feet in “A” Block of the Agricultural Produce Market Committee at Mysore. It is to be noted that site No.370 came to be allotted in favour of M/s. A.A.Traders, petitioner No.2 herein on 27.06.2007 and a lease-cum-sale agreement was executed in favour of M/s. A.A. Traders.
5 Undisputed facts being that petitioner No.2 allottee of site No.370 has put up construction erroneously in site belonging to the petitioner No.1 herein. The petitioner No.1 had approached the second respondent Authority seeking for a fresh allotment, as the site allotted to him had been encroached by petitioner No.2 – M/s. A.A. Traders. The said request was considered by second respondent Authority and a lease-cum-sale agreement came to be executed in favour of petitioner No.1 on 24.09.2015 for site No.372 in “A” Block. The recitals in the said lease-cum-sale agreement at paragraph 4(A) reads as follows:
“4(A) The approval or allotment of site is accorded by the Director of Agricultural Marketing as per Section 9(2) of the Act vide order No.PÀȪÀiÁE/68/C©üªÀÈ¢Þ/1993, dated 23-06-2007 for Rs.1,89,000-00 subject to the conditions specified therein.
Where as the committee allotted site No.A- 369 on lease cum sale basis and lease cum sale agreement has been registered in the office of the sub registrar North vide No.MYN- 1-06504-2007-08, CD No.MYND146, Dated 11-07-2007.
Where as three other market functionaries also allotted sites next to the lessee constructed the shop cum godowns in the site other than the allotted site. The allottee of site no:A-370 constructed shop cum godown in the site no:A-369 leaving the lessee to get alternate site. The lessee requested the market committee to rectify the same by allot the site no:A-372 which in vacant one. The market committee resolved to rectify the same by allotting the site no:A-372.
The Director of Agricultural Market Bangalore accorded an approval to change the site no:A-369 to A-372 vide order no. PÀȪÀiÁE/68/C©üªÀÈ¢Þ-2/93 dt:20-06-2013 The lessee surrendered the site no:A-369 by concelling the lease cum sale agreement vide document no:MYN-1-03003-2015-16 CD NO MYNO-391 Dated; 24-08-2015. Hence this lease cum sale has been entered by both the parties.”
7. The petitioner No.1 has been in enjoyment of site No.372 pursuant to the lease-cum-sale agreement executed in his favour. It is stated that the petitioner has also put up a construction in the said site. The petitioner has approached the second respondent Authority seeking for execution of conditional sale deed in terms of Rule 10(1)(vii) of the Rules which provides that after an expiry of a period of ten years from the date of execution of lease-cum-sale agreement, the Market Committee may execute the sale deed in his favour if, he is not disqualified otherwise.
8. The second respondent Authority has rejected the said request of the petitioner No.1 and has issued an endorsement at Annexure-J on 24.11.2017 stating that the calculation of ten years as per the above mentioned Rule would be from the date of the lease-cum-sale agreement that was executed on 24.09.2015 and hence, request cannot be considered at this point of time, as the said period of ten years has not yet expired.
9. The petitioner No.1 contends that he is entitled for calculation of the lease period of ten years from 05.07.2007 when the lease-cum-sale agreement was executed in his favour, at the first instance. The lease-cum-sale agreement executed on 24.09.2015 was in light of his grievance, as a construction had been put up by M/s. A.A. Traders-petitioner No.2 in the property, i.e., site No.369 which was allotted to petitioner No.1. It is to be noticed that for all practical purposes in the peculiar facts of the case, the period of ten years ought to be calculated from 05.07.2007. The reason being that M/s. A.A. Traders-petitioner No.2, admittedly the allottee of site No.370 has put up construction wrongfully on site No.369 that was originally allotted in favour of the petitioner No.1. Said fact is not disputed, in fact, in the lease-cum-sale agreement executed on 24.09.2015, the circumstances of allotment of alternative site to the petitioner No.1 has been detailed at paragraph 4(A) extracted hereinabove.
10. Learned counsel for second respondent does not dispute the factual circumstances under which lease-cum-sale agreement came to be executed in favour of petitioner No.1 on 24.09.2015. Accordingly, it would be equitable to treat the period of ten years as envisaged under Rule 10(1)(vii) of the Rules to commence from 05.07.2007. If that were to be so, the endorsement at Annexure-J is liable to be set aside and the period of 10 years is to be construed to start from 05.07.2007. The petitioner No.1 would be eligible to obtain a sale deed in terms of Rule 10(1)(vii) of the Rules on the expiry of ten years on 05.07.2017.
11. Accordingly, the endorsement at Annexure-J dated 24.11.2017 is set aside. The second respondent to consider the request of the petitioner No.1 while treating the lease period of ten years to start from 05.07.2007 and accordingly, pass necessary orders.
12. The petition in so far as petitioner No.1 is disposed of, subject to the above observations. Necessary action to be taken by second respondent within a period of twelve weeks from the date of release of the order.
Sd/- JUDGE RB