Title: Badam Singh Chauhan and Others v Agricultural Produce Marketing Committee and Another
Decided on: 03rd October 2023
+ LPA 255/2020 & CM APPLs. 22952/2020, 22953/2020, 22955/2020, 25307/2020 & 5905/2021
CORAM: HON’BLE MR. JUSTICE MANMOHAN HON’BLE MS. JUSTICE MINI PUSHKARNA
Introduction
The present petition has been filed by Appellants, Badam Singh Chauhan & Ors., against an order passed by Learner Single Judge in W.P. (C) 8694/2017 on 5 April 2019.
This Judgement of 5 April 2019, Upheld an Order dated 5 September 2007, passed by the Respondents in this case i.e. Agricultural Produce Marketing Committee.
This order of 5 September 2007, directed the removal of all unlawful encroachments/encroachers from New Subzi Mandi, Azadpur, which was applicable on Appellants Badam Singh & Ors as well.
Facts of the Case
Appellants were “Mashakhores” i.e. common name for small traders, they were engaged in the business of trading fruits and vegetables in A Block of the said subzi mandi for a long time.
They had claimed that they operate from the parking area of subzi mandi and the area that was occupied by them varied from 20 to 30 sq feet.
On 7 September 2017, they were shown the order passed by APMC on 5 September 2007 and they were asked to vacate the premises, hence aggrieved by the order they filed for a writ petition 8694/2017, but that petition was rejected they had approached the Hon’ble Delhi High Court by filing of this appeal.
Courts Judgement and Analysis
The Hon’ble Court had listened to the arguments of both parties, Appellants contended that the small space of parking spaces that they were occupying for selling their produce and earning livelihood had illegally been converted into sheds by APMC and they have allotted those sheds to influential traders who are paying APMC a higher fee, by doing so they argued that APMC is following “Pick and choose” policy which is wrong.
Appellants also drew the attention of the courts towards a brochure dated 15 October 1987 which was passed by APMC itself, and which stated that the Azadpur subzi mandi was formed with a view to rehabilitate a large number of retailers/hawkers. The letter dated July 24, 1994, from a Member of Parliament was also cited, in which it was requested that the appellants’ association’s representation be taken into consideration and that the appropriate action be taken. In a similar vein, the Joint Secretary’s letter to the Chief Minister dated April 8, 1997, was relied upon. It mentioned that a delegation from New Subzi Mandi, Azadpur, Delhi, had asked to be allowed to sell fruits and vegetables in A Block Parking. Therefore, it was stated in the aforementioned letter to the Secretary to the Development Minister, Government of the NCT of Delhi, that the aforementioned individuals’ grievances may be heard and that appropriate action will be taken to resolve their problem. The appellants argued, based on the aforementioned letters, that the government had given an assurance that it was obligated to uphold.
The Appellants by relying on Najma Vs Government of NCT of Delhi, W.P. (C) 8956/2020, contended that the Doctrines of Promissory Estoppel and Legitimate Expectation would be applicable in the present case in view of the assurance extended on behalf of the government, as there is trust between the citizens and the government.
Respondents however argued that appellants on their own showing are admitted to be retailers/hawkers, whereas the market area in question is a wholesale market of national importance. Therefore, no retail business can be allowed to continue.
The Hon’ble Court upheld in this matter that; the appellants are unapproved occupants of the concerned market area. The appellants have not been awarded a license or authorization to operate their business out of the aforementioned market. Since the appellants are encroachers upon public land in a parking area, it is obvious that they have no legal or vested right to continue operating any kind of business from the premises in question. A parking space must be used for its intended function and cannot be exploited for trade activities.
They Analyzed that as per the appellants’ own case are small traders who are doing the business of sale and purchase of fruits and vegetables, whereas, the Azadpur Subzi Market is a wholesale market.
Consequently, the appellants were prohibited from engaging in any illicit retail activity from the aforementioned market, which is undoubtedly a wholesale market. It was not possible for the appellants to assert any legitimate or vested claim to any portion of the relevant market.
Given that no retail operation is permitted in the aforementioned market, the appellant’s request for a license for retailers under the Delhi Agricultural Produce Marketing (Regulation) General Rules, 2000 was completely out of place.
The court didn’t accept the contention of the appellants as regards legitimate expectation, as general letters to look into the grievances raised by citizens do not constitute policy or assurance on behalf of the government. The judgment as relied on behalf of the appellants was not applicable to the facts of the present case.
The court also emphasized that appellants cannot demand to be treated equally with those who are allowed to carry on their business from unauthorized sheds as the legal provision under Article 14 has a positive concept and it doesn’t envisage negative equality for perpetuating any kind of illegality. They relied upon the Judgement given in the case of the State of Odisha and Another Vs. Anup Kumar Senapati and Another, (2019) 19 SCC 626, which states,
“In case the person has a right, he has to be treated equally, but where right is not available a person cannot claim rights to be treated equally as the right does not exist, negative equality when the right does not exist, cannot be claimed.”
By relying upon the Union of India and Others Vs. M.K. Sarkar, (2010) 2 SCC 59, the court also emphasized that where a benefit was illegally or irregularly extended to someone else, a person who is not extended a similar illegal benefit cannot approach a court for an extension of a similar illegal benefit.
Hence, the court dismissed the present appeal and all the pending applications by stating that, If the appellants are aggrieved by any unauthorized construction or encroachments in Azadpur Mandi, it is open to them to file appropriate proceedings as per law. However, the same cannot be employed as a maneuver to continue their possession, which is admittedly unauthorized and illegal.
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Written by- Aditi
