Supreme Court of India
M/S HANDE WAVARE & CO.versusRAMCHANDRA VITTHAL DONGRE & ORS.
- Citation
- 2019 INSC 746
- Decided
- 10 July 2019
- Disposal
- Disposed off
- Bench
- R BANUMATHI
Holding
The Court held that the Daud Committee norms are paramount, prohibiting transfer of booking amounts, making respondent No.2 ineligible for the large gala, and that the large gala must be re‑allotted by sealed tender to eligible claimants.
Summary
The Supreme Court examined the allotment of a large gala (shop No.F‑158) in the Vashi wholesale market under the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963. The High Court had held that only respondent No.2 (Habibullah Farhatullah) was entitled to the gala based on a transfer of booking amount from his father, and set aside the lottery that had awarded the gala to the appellant M/s Hande Wavare & Co. The Court found that the Daud Committee norms expressly prohibit transfer of booking amounts and that respondent No.2 never booked or paid the requisite fee, rendering him ineligible. It also held that the partnership firm of respondent No.1 was not eligible, while the appellant and other claimants who were "marginally short of the norms" were eligible. Consequently, the High Court’s judgment was set aside, the appellant’s possession of a small gala was restored, and the large gala was to be re‑allotted by sealed tender to the highest bidder. The Court fixed the upset value at Rs.55,00,000 and ordered the appellant’s refund of Rs.27,69,500.
Issues considered
- The eligibility of respondent No.2 to claim the large gala despite not having booked or paid the required amount.
- Whether the Daud Committee norms allow transfer of booking amounts from one person to another.
- The eligibility of the partnership firm (respondent No.1) to claim a large gala.
- The propriety of the High Court’s reliance on the Director’s order dated 24‑09‑2002 over the Daud Committee norms.
- The appropriate method of allotting the vacant large gala – lottery versus sealed tender.
Legislation cited
- Constitution of Indias. Article 14
- Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963s. 43, s. 52B
Subjects
APMCgala allotmentDaud Committee normstransfer of booking amountArticle 14lottery vs sealed tenderMaharashtra Agricultural Produce Marketing Actmarginally short of norms
Judgment
[2019] 9 S.C.R. 181 181
M/S HANDE WAVARE & CO. A
v.
RAMCHANDRA VITTHAL DONGRE & ORS.
(Civil Appeal No. 5350 of 2019)
JULY 10, 2019 B
[R. BANUMATHI AND R. SUBHASH REDDY, JJ.]
Maharashtra Agricultural Produce Marketing (Development
and Regulation) Act, 1963– ss.43, 52B – Government of
Maharashtra decided to shift the wholesale fruit and vegetable
C
market situated in Crawford Market to Vashi, Navi Mumbai to reduce
the congestion – Agricultural Produce Market Committee (APMC-
respondent no.5) constructed two types of galas/shops, small galas
and big galas – Committee appointed to suggest the norms to allot
the galas/shops– Dispute pertains to the allotment of large gala/
shop no.F-158 in lottery conducted by APMC– Appellant selected D
in the lottery for allotment of the said gala – Decision to conduct
lottery challenged by respondent no.1 before respondent no.6 –
Allotment by lottery to the appellant set aside – Order of respondent
no.6 set aside and the decision of APMC drawing the lottery and
allotting the said gala to the appellant was confirmed – Respondent
E
No.2 filed writ petition – Allowed by High Court while directing
APMC to allot the said gala in his favour – On appeal, held: As
per the norms, no trader who has not paid the booking amount can
get large gala or part thereof or more than one small gala –
Respondent no.2 himself neither made the application before the
cut-off date nor paid the booking amount – Amount paid by father F
of respondent no.2 was sought to be transferred to respondent no.2
– Transfer of amount by a person who booked the gala to another
person is not permissible as per the norms fixed by the Committee –
Respondent No.2 cannot claim allotment of Gala No.F-158 dehors
the norms fixed by the Committee which were directed to be strictly
G
followed by the High Court – Neither respondent no.1 nor
respondent no.2 are eligible to claim allotment of large gala –
Appellant having paid the market fee of Rs.9844.10 in the time frame
of 1985-86 to 1994-95 which is less by Rs.155.90 to the required
norm of Rs.10,000/-, falls under the category of “marginally falls
H
181
182 SUPREME COURT REPORTS [2019] 9 S.C.R.
A short of the norms” and is entitled to make claim for the large gala
– Findings of the High Court that one ‘GS’, who was not considered
eligible to participate in the lottery, is not eligible to claim large
gala set aside – Directions issued – Constitution of India – Art.14.
Constitution of India – Art.14 – Enforcement of, in negative
B manner – Held: Not permissible – If any illegality or irregularity
has been committed in favour of any individual or group of individual
or wrong order has been passed by a forum, the same illegality or
irregularity cannot be perpetuated on the ground of discrimination
or hardship.
C Disposing of the appeals, the Court
HELD: 1.1 Claim of respondent No.2- Respondent No.2
himself did not make any application for booking of any gala nor
did he pay any amount for booking the gala. As per the norms
suggested by Daud Committee, there was no scope of transfer of
D booking of gala and the booking amount from one person to
another. In the impugned judgment, the High Court held that
the right of respondent No.2 to get large gala has been crystallised
by the order dated 24.09.2002 of Director of Agricultural
Marketing and when the large Gala No.F-158 became available,
APMC ought to have allotted the same to respondent No.2. As
E per the norms, no trader who has not paid the booking amount
can get a large gala or part thereof or more than one small gala.
Transfer of amount by a person who booked the gala to another
person is not permissible as per the norms fixed by Daud
Committee. Merely because, in other cases, gala booked in the
F name of one person is transferred in the name of another person,
it cannot be the reason to adopt the same irregularity in the case
of the second respondent also. If any illegality or irregularity has
been committed in favour of any individual or group of individual
or wrong order has been passed by a forum, the same illegality
or irregularity cannot be perpetuated on the ground of
G discrimination or hardship. Merely because, in few other cases,
gala booked in the name of one person was transferred in the
name of other persons in deviation from the norms fixed by Daud
Committee, the Director, Marketing was not right in holding that
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M/S HANDE WAVARE & CO. v. RAMCHANDRA VITTHAL 183
DONGRE & ORS.
the second respondent is entitled for allotment of large gala by A
transfer of booking of large gala from his father-Farhatullah Haji
Barkatullah to his name. Father of respondent No.2 though paid
the booking amount of Rs.1,32,000/-, he has not paid the requisite
cess amount to be eligible for the third large gala. Where report
of the Daud Committee specifically fixed the norms for the traders
B
who have paid the booking amount and traders who have not
paid the booking amount distinctly, the norms cannot be
compromised or diluted by allowing the traders to get the booking
amount of one trader be transferred to another thereby, enabling
him to claim allotment of gala which he otherwise, would not have
entitled to. Respondent No.2 cannot make a claim for allotment C
of Gala No.F-158 dehors the norms fixed by Daud Committee or
otherwise, it would amount to diluting the norms fixed by Daud
Committee which has been directed to be strictly followed by the
High Court vide its order dated 07.05.1999 in W.P. No.2556 of
1999. The order dated 24.09.2002 passed by the Director of
D
Agricultural Marketing is contrary to the norms fixed by Daud
Committee. The order of the High Court holding that respondent
No.2 is entitled to large gala cannot be sustained and is liable to
be set aside qua respondent No.2. [Paras 23, 26, 27-29, 32]
[196-H; 197-A, E; 198-G; 199-C-H; 200-A-D; 201-E-F]
1.2 Claim of Appellant– During the period between 1985- E
86 to 1994-95, the appellant had paid an amount of Rs.9844.10
towards cess/market fee and Rs.34,000/- towards booking a gala.
The cess/market fee paid by the appellant was less by Rs.155.90
to the required norm of Rs.10,000/-. The market fee of Rs.9844.10
paid by the appellant was in the time frame of 1985-86 to 1994-95 F
and thus the appellant had not fulfilled the norms as per the Daud
Committee report and thus the appellant is falling under the
category of “marginally falls short of the norms.” The appellant
placed reliance on the order of the High Court dated 07.05.1999
passed by the High Court in W.P. No.2556 of 1999 whereby the
Division Bench has directed APMC to make allotment strictly G
by adhering to the norms laid down by the learned Commissioner.
In WP No.2556/1999, the High Court further directed that if any
gala remains vacant after allotment in accordance with the norms,
it will be open to APMC to allot to those who “marginally falls
H
184 SUPREME COURT REPORTS [2019] 9 S.C.R.
A short of the norms” that have been laid down. The appellant having
paid the market fee of Rs.9844.10 in the time frame of 1985-86
to 1994-95 which is less by Rs.155.90 falls under the category of
“marginally falls short of the norms” and is entitled to make a
claim for the large gala. Without considering the rival contentions
of the parties, the High Court was not right in holding that
B
respondent No.2 alone was entitled for the allotment of large
Gala No.F-158. [Paras 33, 34] [202-C-G]
1.3 Claim of ‘GSS’: ‘GSS’ was allotted a small Gala No.M-
748 in 1999. The amount of Rs.3,000/- paid by him to the Traders
Association transferred to APMC in 2003, be it for lease premium
C or booking amount, the fact remains that he had paid only
Rs.32,725/- before the cut-off date for taking the gala. Though,
he was allotted small gala, the same can be taken into account for
holding that he falls within the category of “marginally falls short
of the norms” and is entitled to claim large gala. The findings of
D the High Court that he is not eligible to claim large gala is not
sustainable and the is set aside. [Paras 35, 40] [202-G; 205-F-G]
1.4 M/s ‘RVD’: M/s ‘RVD is a registered partnership firm
consisting of two partners. Both the partners obtained licences
in their individual capacities. There are no norms suggested by
E Daud Committee making a partnership firm separately eligible
for allotment of a Gala on the basis of the licence issued in the
name of the individual partner, the amount paid by said individual
partner towards booking of the Gala, payment of cess made by
such individual partner, etc. In the absence of specific norms for
the partnership firms, the norms framed for individual traders
F are applicable for the partnership firms. When the firm was
registered in the year 2014 and it has not complied with any of
the norms fixed by Daud Committee, the firm cannot seek for
the allotment of any gala, much less a large gala. Considering the
submissions of both the parties, in the impugned judgment, the
G High Court rightly held that the partnership firm consisting of
‘RVD’ and ‘GVL’ is not separately entitled for allotment of any
separate Gala. The partnership firm was registered only in the
year 2014 and the firm was neither in existence nor carried on
any business prior to cut off date. The High Court rightly rejected
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M/S HANDE WAVARE & CO. v. RAMCHANDRA VITTHAL 185
DONGRE & ORS.
the contention that the registration would relate back to the date A
of execution of the partnership deed in the year 1987. The High
Court rightly rejected the plea that the firm was eligible to apply
for allotment of large Gala No.F-158. [Paras 41, 47 and 48]
[206-B; 208-B-D; 209-A-C]
1.5 In view of the concurrent finding of Director of B
Agricultural Marketing dated 04.06.2014 and the findings of the
High Court in the impugned judgment that M/s RVD is not eligible
to claim large gala, nothing survives for consideration in
W.P.No.234 of 2004 pending before the High Court of Bombay.
In the light of affirming the view taken by the High Court that the
firm M/s RVD is not eligible to claim allotment of large gala, the C
High Court shall dispose of the said writ petition W.P.No.234 of
2004 by passing appropriate orders. Respondent No.1 and
respondent No.2 are not eligible to claim allotment of large gala
and the judgment of the High Court is liable to be set aside. The
appellants and ‘GS’ (who are marginally short of the norms) are D
eligible to claim allotment of large gala along with others.
[Paras 49-51] [209-E-H]
1.6 Since there is huge competition for the large gala, instead
of adopting the lottery method, after fixing the market value in
order to fetch more revenue for APMC, offers should be invited E
in sealed covers. In order to attract better offers, it is appropriate
that appellant should vacate the large Gala No.F-158 at the
earliest. The counsel appearing for APMC has stated that the
small Gala No.M-821 earlier allotted to the appellant is still vacant.
APMC shall forthwith pass an order for re-allotting the said small
sized Gala No.M-821 to the appellant and the appellant shall F
vacate the large Gala No.F-158 before the end of September,
2019. Considering the fact that APMC itself has fixed the market
value of large Gala No.F-158 at Rs.55,00,000/- in the year 2013-
14, it is deemed appropriate to fix the upset value at Rs.55,00,000/
-. The four eligible claimants shall quote their offers in a sealed G
cover and accordingly, the large Gala No.F-158 be allotted to the
one who is quoting the highest price. The impugned judgment of
the High Court is set aside. Following directions issued- (i)
Respondent No.2 is not entitled to claim allotment of large gala
and findings of the High Court qua respondent No.2 is set aside;
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186 SUPREME COURT REPORTS [2019] 9 S.C.R.
A (ii) The findings of the High Court that the firm-’RVD’ is not
entitled to claim allotment of large gala is affirmed; (iii) The
possession of small Gala No.M-821 shall be restored back to the
appellant and it shall vacate the large Gala No.F-158 on or before
30.09.2019. The amount of Rs.27,69,500/- deposited by the
appellant towards the large gala No.F-158 shall be refunded to
B
him by APMC immediately within two weeks from the date of his
vacating; (iv) The upset value of large Gala No.F-158 shall be
fixed at Rs.55,00,000/- as fixed by the Director of Agricultural
Marketing, APMC and the same shall be notified by APMC by
the end of October, 2019. The four eligible claimants shall quote
C their offers for the large gala and shall submit sealed tenders to
APMC on or before 15.11.2019. The sealed tenders are to be
opened by APMC in the presence of a higher level officer
preferably, the Joint Director of Marketing and in the presence
of all the four claimants or their representatives on 22.11.2019;
and (v) The large Gala No.F-158 shall be allotted to the claimant
D
who has quoted the highest price. Payment of the amount for
allotment of large gala by the successful allottee shall be paid as
per the rules of APMC.[Paras 52-54] [210-D-H; 211-A-F]
State of Bihar v. Upendra Narayan Singh and Others
(2009) 5 SCC 65 : [2009] 4 SCR 866 – relied on.
E
Hanumant Murlidhar Gavade v. Mumbai Agricultural
Produce Market and Others (2012) 1 SCC 729 : [2011]
16 SCR 229; M. Meenakshi and Others v. Metadin
Agarwal (Dead) by LRs. and Others (2006) 7 SCC 470:
[2006] 5 Suppl. SCR 505 ; Anita International v.
F Tungabadra Sugar Works Mazdoor Sangh and Others
(2016) 9 SCC 44 : [2016] 6 SCR 635 – referred to.
Case Law Reference
[2011] 16 SCR 229 referred to Para 1
G [2009] 4 SCR 866 relied on Para 28
[2006] 5 Suppl. SCR 505 referred to Para 30
[2016] 6 SCR 635 referred to Para 31
H
M/S HANDE WAVARE & CO. v. RAMCHANDRA VITTHAL 187
DONGRE & ORS.
CIVIL APPELLATE JURISDICTION: Civil Appeal No 5350 of A
2019
From the Judgment and Order dated 21.11.2018 and 07.12.2018
of the High Court of Judicature at Bombay in Writ Petition No. 10328 of
2014
With B
Civil Appeal Nos. 5351, 5352, 5353-5354, 5355-5359 of 2019.
Vinay Navare, Sr. Adv., Uday B. Dube, Ms. Gwen Karthika,
Ravindra Sadanand Chingale, Sandeep Sudhakar Deshmukh,
Vishwajeet M., Amol Nirmalkumar Suryawanshi, Anoop Kandari, Nishant C
Ramakantrao Katneshwarkar, Rakesh K. Sharma, Nishant, Parthiv
K.Goswami, Ms. Diksha Rai, Palak Mahajan, Ishan Bisht,
Sandeep Sudhakar Deshmukh, Advs. for the appearing parties.
The Judgment of the Court was delivered by
R. BANUMATHI, J. 1. Leave granted. D
2. These appeals arise out of the judgment dated 21.11.2018 passed
by the High Court of Bombay in WP No.8959 of 2014 and batch of writ
petitions in and by which the High Court held that only the second
respondent is eligible for the allotment of large gala and directed the
appellant-M/s Hande Wavare & Co. to vacate the large Gala No.F-158 E
in the Mumbai Agricultural Produce Marketing Committee, Vashi and
further directing the Mumbai Agricultural Produce Marketing Committee
to hand over the said gala to respondent No.2-Habibullah Farhatullah.
3. The dispute pertains to the allotment of large Gala/shop No.F-
158 in a lottery conducted by respondent No.5-Mumbai Agricultural F
Produce Market Committee (APMC) on 25.09.2013. The brief facts
giving rise to these appeals are that the Government of Maharashtra
decided to shift the wholesale fruit and vegetable market situated in
Crawford Market to Vashi, Navi Mumbai in order to reduce the
congestion. With a view to facilitate traders dealing in wholesale trading
of fruit, APMC has constructed two types of galas/shops viz. small galas G
admeasuring 300 sq. ft. (200 sq. ft. + 100 sq. ft. loft) and large galas
admeasuring 450 sq. ft. (300 sq. ft. + 150 sq. ft. loft) each. On 26.04.1998,
the High Court of Bombay appointed Justice S.M. Daud, former Judge
of the High Court as the Court Commissioner to suggest the norms to
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188 SUPREME COURT REPORTS [2019] 9 S.C.R.
A allot the galas/shops in the newly constructed wholesale market at Vashi
to the traders so shifted. Learned Commissioner submitted three reports
stipulating norms for eligibility for two-time frames which were accepted
by the High Court. The first-time frame was 1985-86 to 1994-95 and
second time frame was of 1991-92 to 1994-95. For proper appreciation
of the contention regarding fulfilment of norms or otherwise, we have
B
referred to the relevant portion of the report of the Commissioner as to
the norms for entitlement of gala.
4. In the case of Hanumant Murlidhar Gavade v. Mumbai
Agricultural Produce Market and Others(2012) 1 SCC 729, the
Supreme Court had cancelled the allotment of the large gala bearing
C No.F-158 which was allotted in favour of Hanumant Murlidhar Gavade
as he was found not eligible for the large gala having made short payment
of cess and APMC was directed to allot only a small gala to Hanumant
Murlidhar Gavade. Consequently large gala bearing No.F-158 became
vacant. Several claimants made claims for the allotment of the said large
D gala/shop. The first respondent-a partnership firm by name M/s
Ramchandra Vitthal Dongre approached the High Court in a Civil
Application No.13 of 2012 in WP No.234 of 2004 for an early hearing
seeking allotment of the said large gala. The High Court vide its order
dated 07.01.2013 disposed of the application acceding to the submissions
of the Agricultural Produce Market Committee-APMC that apart from
E the applicant therein there are four other claimants and directed APMC
to scrutinize the claim of all eligible claimants for the allotment of Gala
No.F-158.
5. Pursuant to the order of the High Court dated 07.01.2013, a
meeting was convened by the Board of Directors of APMC on
F 07.03.2013 to conduct a lottery for allotment of Gala No.F-158 amongst
five traders viz. (i) M/s Ramchandra Vitthal Dongre-respondent No.1;
(ii) Shri Habibullah Farhatullah-respondent No.2; (iii) M/s Bhalchandra
Chintaman Lele (Shri Kedar Keshav Lele)-respondent No.3; (iv) Shri
Ashok Dhondiba Punde-respondent No.4; and (v) M/s. Hande Wavare
G and Company (Shri Kashinath Wavare)-appellant. On 26.08.2013, notices
were issued to all the said five claimants with direction to participate in
the lottery proposed to be drawn on 19.09.2013. Out of the five claimants
who were allowed to participate in the lottery, only four claimants
participated in the said lottery drawn by APMC. Respondent No.1-M/s
Ramchandra V. Dongre participated in the said lottery system under
H
M/S HANDE WAVARE & CO. v. RAMCHANDRA VITTHAL 189
DONGRE & ORS. [R. BANUMATHI, J.]
protest. Habibullah Farhatullah-respondent No.2 refused to participate A
in the lottery. The appellant-M/s. Hande Wavare and Company was
selected in the said lottery for allotment of the said Gala No.F-158 and
its value was fixed at Rs.28,77,000/- as per Government ready reckoner
and was directed to pay Rs.27,69,500/- as consideration within one month
for allotment of said gala by deducting the amount of Rs.1,07,500/- initially
B
deposited by the appellant for the purpose of allotment of one small gala
and APMC asked the appellant to return the small gala allotted to him
back to APMC. The appellant M/s Hande Wavare & Co. deposited the
amount of Rs.27,69,500/- to APMC on 07.01.2014. The appellant also
surrendered its small gala to APMC.
6. The decision to conduct lottery was thereafter challenged by C
the firm M/s Ramchandra Vitthal Dongre under Section 52B of the
Maharashtra Agricultural Produce Marketing (Development and
Regulation) Act, 1963 before respondent No.6-Director of Agricultural
Marketing. Respondent No.6 vide its order dated 04.06.2014 partly
allowed the appeal filed by Ramachandra V. Dongre and set aside the D
allotment by lottery to appellant M/s Hande Wavare & Co. and directed
APMC to allot said gala by inviting bids from five claimants in a sealed
cover. Director, Marketing observed that the allotment of the large gala
to the appellant by way of a lottery by reducing the price of the said gala
from Rs.55,00,000/- as initially fixed value as per government rate to
Rs.28,77,000/- was not proper. The Director of Agricultural Marketing E
further observed that APMC should have considered the market rate
and the value of the said gala from the government approved valuer and
should have called for sealed tenders from five claimants and ought to
have allotted the said gala to the claimant who is paying the maximum
value. The Director held that APMC has not followed the statutory F
system and erred by allotting gala by lottery system to M/s Hande Wavare
and Co. thereby causing financial loss to the APMC and thus, set aside
the allotment of large gala to the appellant.
7. Aggrieved by the cancellation of allotment, appellant Kashinath
Wavare filed a Revision Application No.28 of 2014 under Section 43 of G
MAPMC Act before the State Government. Challenging the said order
of Director of Agricultural Marketing, respondent No.1 also filed revision
in Revision Petition No.27 of 2014 under Section 52B of MAPMC Act
before the State Government. The Hon’ble Minister for Co-operation,
Marketing and Textile-respondent No.7 vide his order dated 12.09.2014
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190 SUPREME COURT REPORTS [2019] 9 S.C.R.
A allowed the revision petition filed by Kashinath Wavare and dismissed
the revision petition filed by respondent No.1-Ramachandra Vitthal
Dongre and set aside the order of respondent No.6-Director of
Agricultural Marketing and confirmed the decision of APMC drawing
the lottery and allotting the said gala to the appellant M/s. Hande Wavare
& Co. The Hon’ble Minister observed that there was not only a single
B
party but there were five claimants who were eligible for the allotment
of Gala No.F-158 and upheld the process of allotment undertaken by
APMC by confirming the decision of the Board of Directors to draw the
lottery and determining the price of the Gala at Rs.28,77,000/- instead of
its market value of Rs.55 lakhs.
C 8. Aggrieved by the order of APMC and the order of Minister,
M/s Ramchandra Vitthal Dongre filed W.P. Nos.8959 and 8975 of 2014
before the High Court and respondent No.2-Habibullah Farhatullah filed
W.P. No.10328 of 2014. Challenging the allotment of large gala to the
appellant and also challenging the lottery method adopted by APMC,
D Ganpat Shinde who was not considered eligible to participate in the lottery
filed W.P. No.2090 of 2015 before the High Court. The appellant
Kashinath M. Wavare filed W.P.(ST) No.35978 of 2017 against the order
of the Director of Marketing dated 29.04.2015.
9. The High Court heard all the writ petitions together and
E considered the claim of the claimants for allotment of large gala. By the
common judgment dated 21.11.2018 allowed WP(C) No.10328/2014 filed
by respondent No.2-Habibullah Farhatullah directing the APMC to allot
the said gala in his favour. The High Court held that respondent No.2-
Habibullah fulfilled all the eligibility criteria formulated by Justice Daud
Committee. The High Court held that once the large Gala No.F-158
F became available by virtue of the judgment passed in Hanumant
Murlidhar Gavade,respondent No.2 ought to have been allotted the
large Gala in compliance with the order dated 24.09.2002 passed by the
Director of Agricultural Marketing in Appeal No.34/2002 which was
filed by respondent No.2. The High Court set aside the order passed by
G the Hon’ble Minister for Co-operation, Marketing and Textile by observing
that “APMC thus could not have drawn lottery to consider the claim of
other four claimants under the guise of implementing the order dated
07.05.1999 passed by the Division Bench in WP(C) No.2556/1999 in
the case of Shantaram Y. Bhagat v. The Mumbai Agricultural Produce
Market Committee and another”. Aggrieved, the appellant-M/s. Hande
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M/S HANDE WAVARE & CO. v. RAMCHANDRA VITTHAL 191
DONGRE & ORS. [R. BANUMATHI, J.]
Wavare and Co. has filed appeal before the Supreme Court. The A
Supreme Court vide its order dated 11.01.2019 issued notice and directed
the parties to maintain status quo.
10. Mr. Uday B. Dube, learned counsel appearing for the appellant
submitted that APMC is having only one large Gala No.F-158 vacant
for which claim is made by traders like appellant, who otherwise fulfil B
the guidelines fixed by Daud Committee but were “marginally fall short
of the norms”. It was submitted that as per the order of the High Court
dated 07.05.1999 in W.P.No.2556 of 1999, Board of Directors of APMC
has rightly taken the decision to conduct lottery amongst the eligible
claimants and the same ought not to have been set aside by the Appellate
Authority-Director of Agricultural Marketing and the High Court. The C
learned counsel further submitted that respondent No.2-Habibullah
Farhatullah has not booked the gala in his name nor paid the amount and
is not entitled for allotment of a large gala as he has not paid the amount
for booking the gala.
11. It was submitted that Farhatullah Haji Barkatullah-father of D
respondent No.2- had initially deposited the amount seeking allotment
for three galas and after allotment of two large galas by APMC, instead
of taking refund of the amount deposited for the third gala, father of
respondent No.2 requested APMC to transfer the said amount deposited
by him in the account of his son-respondent No.2. It was contended E
that the High Court ought to have independently considered the claim of
respondent No.2 and recorded a finding regarding the eligibility of
respondent No.2-Habibullah Farhatullah to get a large gala on merits
instead of relying upon the technical ground raised by respondent No.2
that APMC did not challenge the order passed by the Director of
Agricultural Marketing dated 24.09.2002. The learned counsel further F
submitted that the rights of the third parties i.e. the rights of the appellant
and others cannot be decided on the ground of non-challenge by APMC
especially when it was demonstrated by the appellant as to how
respondent No.2 was not entitled for any large gala. It was urged that
the appellant and other claimants were not parties before the Director G
of Agricultural Marketing and hence, the said order dated 24.09.2002
cannot be said to be binding on the appellant and other traders.
12. Mr. Sandeep Sudhakar Deshmukh, learned counsel appearing
for respondent No.1-M/s Ramchandra Vitthal Dongre reiterated that
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192 SUPREME COURT REPORTS [2019] 9 S.C.R.
A the eligibility of partnership firm of the M/s Ramchandra Vitthal Dongre
had never been an issue and respondent No.1-firm has all along been
fighting for allotment of second large gala and the eligibility of which,
was never disputed in other proceedings. The learned counsel submitted
that the norms fixed by Daud Committee do not expressly prohibit the
claim of respondent No.1-firm and the High Court erred in saying that
B
the firm M/s Ramachandra Dongre is not eligible to claim allotment of
large gala.
13. Mr. Vinay Navare, learned senior counsel appearing on behalf
of the appellant Ganpat Sabaji Shinde in SLP(C) Nos.4927-31 of 2019
submitted that Ganpat Sabaji Shinde has deposited an amount of
C Rs.35,725/- with APMC during the period between 1987-1991 for
allotment of large gala which amount was more than Rs.34,000/- as per
norms. It was submitted that though APMC claims that an amount of
Rs.32,725/- has been made by him, further amount of Rs.3,000/- has
been paid by him to the trader’s association which was transferred to
D APMC and, therefore, Ganpat Sabaji Shinde satisfies the norms fixed
by Daud Committee and APMC erred in excluding Ganpat Sabaji Shinde
from making a claim to the large Gala No.F-158.
14. Mr. Huzefa Ahmadi, learned senior counsel appearing on behalf
of respondent No.2 submitted that Director of Agricultural Marketing
E vide its order dated 24.09.2002 allowed the transfer of the booking amount
in the name of father of respondent No.2 to his name thereby, entitling
him for a large gala. It was further submitted that the order dated
24.09.2002 has not been challenged and binding on APMC and, therefore,
the High Court rightly held that the right of respondent No.2 has been
crystallised and, therefore, respondent No.2 was the only eligible claimant
F for allotment of the large Gala No.F-158. The learned senior counsel
further submitted that in view of eligibility of respondent No.2 for large
gala, APMC could not have considered the case of other claimants under
the alleged category of “marginally falling short”. It was submitted that
taking note of inconsistent stand taken by APMC in various proceedings,
G the High Court rightly set aside the order of the Hon’ble Minister and
directed allotment of large Gala No.F-158 to respondent No.2.
15. Taking us through the materials, Mr. Rakesh K. Sharma, learned
counsel for respondent No.5-APMC submitted that respondent No.2-
Habibulla Farhatullah did not pay any booking amount and under the
H norms suggested by Daud Committee, there was no scope for transfer
M/S HANDE WAVARE & CO. v. RAMCHANDRA VITTHAL 193
DONGRE & ORS. [R. BANUMATHI, J.]
of booking of one claimant to the name of any other person and the A
order dated 24.09.2002 passed by the Director of Agricultural Marketing
in the appeal filed by the respondent No.2 is contrary to the norms fixed
by Daud Committee and the orders passed by the High Court and the
Supreme Court. It was urged that respondent No.2 himself did not pay
any booking amount and therefore, the question of allotting any large
B
gala to respondent No.2 did not arise. It was also contended that
respondent No.2–Habibullah Farhatullah did not participate in the lottery
on the pretext that he had the order dated 24.09.2002 in his favour passed
by Director of Agricultural Marketing. The learned counsel further
submitted that since there were more than one claimants, Board of
Directors of APMC had taken the decision to conduct lottery amongst C
the claimants who were “marginally fall short of the norms” in
compliance with the norms fixed by Daud Committee and the Hon’ble
Minister rightly affirmed the same. It was submitted that by placing
reliance upon the order dated 24.09.2002 passed by the Director, the
High Court erred in holding that respondent No.2 is eligible for allotment
D
of large gala and the impugned order is liable to be set aside.
16. Upon consideration of the submissions and impugned judgment
and other materials on record, the following points arise for determination
in these appeals:-
(i) When respondent No.2–Habibullah Farhatullah himself has not E
booked the large gala before the cut-off date nor paid the booking
amount, whether the High Court was right in saying that only
second respondent is entitled for allotment of large gala by getting
the transfer of the booking amount from his father to his name?
(ii) Dehors the norms fixed by Daud Committee, whether the High F
Court was right in placing reliance only upon the order of Director,
Marketing dated 24.09.2002 to hold that the second respondent
is entitled for allotment of large gala?
(iii) Whether the High Court was right in saying that APMC could
not have considered the case of other claimants under the G
category of “marginally fall short of the norms” and that
drawing of lottery was without jurisdiction?
17. Norms laid down by Justice Daud Committee:- In the
year 1987-88, APMC had decided to shift all the subsidiary market of
fruits and vegetables from Mumbai to Vashi, Navi Mumbai. In the year
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194 SUPREME COURT REPORTS [2019] 9 S.C.R.
A 1995, the construction of the said market was completed. In view of the
dispute between traders in respect of the allotment of galas/shops, several
petitions came to be filed before the High Court. On 26.04.1998, the
High Court appointed Shri Justice S.M. Daud as a Court Commissioner
to suggest the norms to allot the galas/shops in the newly constructed
wholesale market at Vashi. The learned Commissioner submitted three
B
reports which were accepted by the High Court. As pointed out earlier,
the said new wholesale Fruit Market had total number of 1029 galas.
Out of 1029 galas, 732 being the large galas each measuring 450 sq.ft.
and 297 small galas each measuring 300 sq.ft. The Daud Committee
provided for eligibility for two-time frames. The first-time frame was
C 1985-86 to 1994-95 and the second time frame was of 1991-92 to
1994-95.
18. What is relevant for these appeals is the norms fixed by learned
Commissioner for “Fruit Market” which has 1029 galas viz. 732 large
galas and 297 small galas. As earlier mentioned, the learned Commissioner
D submitted three reports inter-alia stipulating the norms for allotment of
galas/shops in the newly constructed wholesale market. The first time
frame was 1985-86 to 1994-95 and the second time frame was of 1991-
92 to 1994-95. No one would get more than three large galas and for
retaining the third, the claimant would have to pay the market price
within ninety days of the acceptance of the norms by the High Court.
E
19. First time frame was from 1985-86 to 1994-95. For those who
came into the business from 1991-92 to 1994-95 had booked the galas
up to 31.12.1993, the second time frame 1991-92 to 1994-95 was made
applicable. The relevant recommendations of the Committee read as
under:-
F
“Time frame 1985-86 to 1994-95. Booking effected.
The claimant has to establish doing of five years business as
reflected in payment of market fee irrespective of quantum thereof.
He must further show that he held an APMC licence for at least
G two years in the above ten years period as also that he did business
in one of the years 1995-96 or 1996-97 – this again to be
established by proof of cess paid. The cess – space nexus
will be as under:-
H
M/S HANDE WAVARE & CO. v. RAMCHANDRA VITTHAL 195
DONGRE & ORS. [R. BANUMATHI, J.]
A
Total Cess Paid Entitlement
1. Rs.1,500/- to Rs.5,000/- Half small gala
2. Rs.5,001/- to Rs.10,000/- 1 small gala
3. Rs.10,001/- to Rs.15,000/- Half large gala
4. Rs.15,001/- to Rs.90,000/- 1 large gala
5. Rs.90,001/- to Rs.3,00,000/- 2 large galas B
6. Above Rs.3,00,000/- 3 large galas
No one to get more than three large galas and for retaining the
third, the person retaining, will have to pay the market price within ninety
days of the acceptance of the norm by the High Court.
C
The next category is of those who have booked galas up to
31.12.1993 and have come into the business from 1991-92 to 1994-95.
For them the time frame will be 1991-92 to 1994-95. The eligible in this
category will be those who have held APMC licences for at least three
years, have done business for three years as reflected in the payment of
D
market fee irrespective of quantum and also show that they were doing
business in 1995-96 or 1996-97 by proof of having paid market fee about
having done business either in 1995-96 or 1996-97. The cess-space
nexus will be thus:-
Total Cess Pa id Entitlement E
1. Rs.2 ,5 00 /- to R s.7,50 0/ - Half sm all gala
2. Rs.7 ,5 01 /- to R s.25 ,0 00 /- 1 sm all gala
3. Abo ve Rs.25 ,00 0/- 1 large gala
20. The High Court vide its order dated 07.05.1999 in Writ Petition F
No.2556 of 1999 directed APMC to make allotment strictly by adhering
to the norms laid down by Daud Committee. In the said order, the High
Court further issued directions that in case any galas remaining in balance
after allotment in accordance with norms, APMC to allot the same to
those who “marginally fall short of the norms” that have been laid
down. The said order of the High Court reads as under:- G
“1. Pursuant to the orders passed by this Court Justice Daud was
appointed for laying down norms for the purpose of allotment of
Galas in the Agricultural Produce market Committee’s market at
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196 SUPREME COURT REPORTS [2019] 9 S.C.R.
A Vashi, New Bombay, Justice Daud has accordingly passed his
awards laying down the norms. APMC is directed to make
allotment strictly by adhering to the norms laid down by Justice
Daud. If any Galas remain in balance after allotment in accordance
with the norms it will be open to the APMC to allot the same to
those who marginally fall short of the norms that have been laid
B
down. The orders of allotment as also the orders refusing allotment
will be treated as orders having been passed under the
Maharashtra Agriculture Produce Marketing (Regulation) Act,
1963 and the same will be appealable under Section 52B of the
Act. It goes without saying that the orders granting or refusing to
C allot galas will be supported by reasons.” [underlining added]
In Hanumant Murlidhar, the Supreme Court has also reiterated
that the allotment should be strictly in accordance with the norms fixed
by Daud Committee.
21. As pointed out earlier, after decision in Hanumant Murlidhar,
D large Gala No.F-158 had fallen vacant. Stand of APMC is that as per
the meeting of Board of Directors held on 07.03.2013, it was inter-alia
resolved that allotment of Gala No.F-158 be done amongst the five eligible
claimants viz. (i) M/s Ramchandra V. Dongre; (ii) Mr. Habibullah
Farhahtullah; (iii) M/s Bhalchandra Chintaman Lele (Mr. Kedar Keshav
E Lele); (iv) Mr. Ashok Dhondiba Punde; and (v) M/s Hande Wavare &
Co. by drawing lottery. In the decision taken by the Board of Directors
in its meeting held on 26.04.2013, allotment of the said gala by drawing
lottery was confirmed. As discussed earlier, allotment of Gala No.F-158
to the appellant-M/s Hande Wavare & Co. has led to the series of
litigations.
F
22. In the above facts and circumstances, it is to be considered
whether the High Court was right in holding that respondent No.2-
Habibullah Farhatullah is entitled for allotment of large gala without
making booking of large gala before 31.12.1993 and by getting transferred
booking amount of his father in his name after acceptance of new norms
G by the High Court.
23. Claim of respondent No.2-Habibullah Farhatullah:-
Respondent No.2-Habibullah applied for licence in the year 1991-1992
in his own name and obtained licence in the year 1992. Admittedly,
H
M/S HANDE WAVARE & CO. v. RAMCHANDRA VITTHAL 197
DONGRE & ORS. [R. BANUMATHI, J.]
respondent No.2 does not fall within the first-time frame 1985-86 to A
1994-95. Respondent No.2 himself did not pay any amount for booking
of gala. On 04.01.1999, father of respondent No.2- Farhatullah Haji
Barkatullah paid an amount of Rs.1,32,000/- as booking amount for three
large galas. As per norms fixed by the learned Commissioner for
allotment of three large galas, total cess payable is above Rs.3,00,000/-
B
. Since father of respondent No.2 paid amount less than Rs.3,00,000/-,
he was allotted only two large galas. In his letter dated 23.03.1999,
father of respondent No.2 stated that he had paid Rs.1,32,000/- for
booking of two large galas initially and that his son Habibullah started
the business of fruits trade since 1991-1992 and that he asked for booking
of one large gala in the name of his son viz. respondent No.2. However, C
APMC did not accept the booking in the name of his son and therefore,
Farhatullah Haji Barkatullah- father of respondent No.2 booked the third
gala in his own name. In the said letter, father of respondent No.2 has
also stated that the third gala booked in his name i.e. in the name of
father of respondent No.2 may be transferred to his son-respondent
D
No.2 and also the remaining amount be transferred to his son-respondent
No.2 and that he may be allotted a large gala. Be it noted, respondent
No.2 himself did not make any application for booking of any gala nor
did he pay any amount for booking the gala. It is also pertinent to note
that as per the norms suggested by Daud Committee, there was no
scope of transfer of booking of gala and the booking amount from one E
person to another.
24. In the application for allotment of large gala on 26.04.1999,
respondent No.2 was allotted a small Gala No.M-775 by APMC which
was not accepted by respondent No.2. Another application filed by
respondent No.2 for allotment of large gala was rejected on 02.05.2001 F
against which respondent No.2 filed an Appeal No.34/2002 before the
Director of Agricultural Marketing. APMC opposed the claim of
respondent No.2 contending that respondent No.2 did not pay any booking
amount in his name or in the name of others and therefore, the question
of allotment of any large gala to him did not arise. APMC also took the
stand that as per the norms fixed by the learned Commissioner, there G
was no scope of transfer of booking of gala and the booking amount
from one person to another. By the order dated 24.09.2002, Director of
Agricultural Marketing allowed the appeal preferred by respondent No.2
and directed APMC to allot large gala to him by pointing out that in
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198 SUPREME COURT REPORTS [2019] 9 S.C.R.
A fourteen other cases, booking of galas made by one person were
transferred to other persons.
25. While allowing the Appeal No.34/2002 filed by respondent
No.2 (order dated 24.09.2002), the Director of Agricultural Marketing
called for report from the Joint Director of Marketing to ascertain
B whether there were other cases of allowingtransfer of booking from
one person’s name to the other in allotting the galas in the name of
transferee. By referring to the report of the Joint Director of Marketing
and observing that APMC in fourteen cases has allowed the transfer of
the booking of the galas in the name of others and allotted the galas to
such transferees, in Appeal No.34/2002, Director of Agricultural
C Marketing observed as under:-
“From the report of Shri Kokare, it is clear that in 14 cases which
are on record the booking was done in the names of some other
persons and the Respondent has allowed the transfer of the
bookings of the galas in the name of others and further allotted
D the galas to such transferees. This has not been denied by the
Respondent Market Committee. Considering the fact that the
Market Committee has allowed transfers in large number of cases,
there is no justification for not allowing transfer of the booking in
the name of the Appellant where the booking was in the name of
E his father and the transfer was requested in the name of the son
i.e. present Appellant………. This is a glaring case of injustice
by the Respondent committee against the Appellant. In view of
this, it would be in the interest of justice to allow the appeal of the
Appellant and give directions to the agricultural Produce Market
Committee, Mumbai to allot one large gala to the
F Appellant……….”
26. In the impugned judgment, the High Court held that the right
of respondent No.2 to get large gala has been crystallised by the above
order dated 24.09.2002 of Director of Agricultural Marketing and when
the large Gala No.F-158 became available, APMC ought to have allotted
G the same to respondent No.2. The High Court held that APMC ought
not to have drawn lottery to consider the claim of four other claimants
who fall “marginally falls short of the norms” fixed by the Daud
Committee under the guise of implementing the order dated 07.05.1999
passed by the Division Bench in Writ Petition No.2556 of 1999. The
H High Court mainly relied upon the order of Director of Agricultural
M/S HANDE WAVARE & CO. v. RAMCHANDRA VITTHAL 199
DONGRE & ORS. [R. BANUMATHI, J.]
Marketing dated 24.09.2002 and observed that the said order has attained A
finality and is binding on APMC and thus directed APMC to allot large
gala to respondent No.2 on first priority.
27. Respondent No.2 heavily relies upon the order of Director of
Agricultural Marketing dated 24.09.2002 allowing the transfer of booking
amount from the name of his father to his name and thereby entitling B
him for a large gala which was also accepted by the High Court. Before
considering the effect of the order dated 24.09.2002, let us evaluate the
eligibility of respondent No.2-Habibullah as per the norms laid down by
Daud Committee. As per the norms, no trader who has not paid the
booking amount can get a large gala or part thereof or more than one
small gala. As pointed out earlier, Habibullah himself has neither made C
the application before the cut-off date nor paid the booking amount; the
amount paid by father of respondent No.2 was sought to be transferred
to respondent No.2. Transfer of amount by a person who booked the
gala to another person is not permissible as per the norms fixed by Daud
Committee. D
28. As pointed out earlier, the Director, Marketing held that the
second respondent is entitled for allotment of large gala mainly on the
ground that in few other cases, gala booked in the name of one person
has been transferred to another person. In the order dated 24.09.2002,
the Director, Marketing has pointed out such instances where booking E
of gala in the name of one person has been transferred to other persons
and observed that the second respondent cannot be discriminated. Merely
because, in other cases, gala booked in the name of one person is
transferred in the name of another person, it cannot be the reason to
adopt the same irregularity in the case of the second respondent also.
As held in State of Bihar v. Upendra Narayan Singh and others(2009) F
5 SCC 65, Article 14 of the Constitution of India is a positive concept
and it cannot be enforced by a citizen or a court in a negative manner. If
any illegality or irregularity has been committed in favour of any individual
or group of individual or wrong order has been passed by a forum, the
same illegality or irregularity cannot be perpetuated on the ground of G
discrimination or hardship. Merely because, in few other cases, gala
booked in the name of one person was transferred in the name of other
persons in deviation from the norms fixed by Daud Committee, in our
considered view, the Director, Marketing was not right in holding that
the second respondent is entitled for allotment of large gala by transfer
H
200 SUPREME COURT REPORTS [2019] 9 S.C.R.
A of booking of large gala from his father-Farhatullah Haji Barkatullah to
his name.
29. Father of respondent No.2 though paid the booking amount of
Rs.1,32,000/-, he has not paid the requisite cess amount to be eligible for
the third large gala. Where report of the Daud Committee specifically
B fixed the norms for the traders who have paid the booking amount and
traders who have not paid the booking amount distinctly, the norms cannot
be compromised or diluted by allowing the traders to get the booking
amount of one trader be transferred to another thereby, enabling him to
claim allotment of gala which he otherwise, would not have entitled to.
The High Court, in our view, did not keep in view that respondent No.2
C had neither booked the gala before the cut-off date nor paid the amount
and the High Court proceeded hold as to the entitlement of respondent
No.2 mainly on the basis of the order dated 24.09.2002. Respondent
No.2 cannot make a claim for allotment of Gala No.F-158 dehors the
norms fixed by Daud Committee or otherwise, it would amount to diluting
D the norms fixed by Daud Committee which has been directed to be
strictly followed by the High Court vide its order dated 07.05.1999 in
W.P. No.2556 of 1999.
30. The order of the Director of Agricultural Marketing in Appeal
No.34/2002 has not been challenged by APMC. In this context, Mr.
E Huzefa Ahmadi, learned senior counsel appearing for respondent No.2
submitted that the order dated 24.09.2002 has become final and the
same is binding on APMC. Placing reliance upon M. Meenakshiand
Others v. Metadin Agarwal (Dead) by Lrs. and Others(2006) 7 SCC
470, it was contended that unless the order passed by competent authority
is challenged and declared as “not valid”, its correctness cannot be
F considered in collateral proceedings. In M. Meenakshi, it was held as
under:-
“18. It is a well-settled principle of law that even a void order is
required to be set aside by a competent court of law inasmuch as
an order may be void in respect of one person but may be valid in
G respect of another. A void order is necessarily not non est. An
order cannot be declared to be void in a collateral proceeding and
that too in the absence of the authorities who were the authors
thereof. The orders passed by the authorities were not found to
be wholly without jurisdiction. They were not, thus, nullities.”
H
M/S HANDE WAVARE & CO. v. RAMCHANDRA VITTHAL 201
DONGRE & ORS. [R. BANUMATHI, J.]
31. Placing reliance upon Anita International v. Tungabadra A
Sugar Works Mazdoor Sangh and Others(2016) 9 SCC 44, it was
submitted that the order passed by the competent court/quasi-judicial
authority like the Director of Agricultural Marketing has the force of
law until the same is set aside by a court of competent jurisdiction.
32. There is no quarrel over the proposition laid down in the above B
decisions. But in the peculiar facts and circumstances of the present
case, in our view, respondent No.2 cannot base his entitlement for
allotment of large gala solely on the basis of the order dated 24.09.2002
of Director of Agricultural Marketing, dehors the norms fixed by Daud
Committee which were directed to be strictly complied with by the High
Court. In the order dated 07.05.1999 in W.P. No.2556 of 1999, when the C
High Court has directed APMC to make allotment of galas strictly by
adhering to the norms laid down by Daud Committee, the order of Director
of Agricultural Marketing dated 24.09.2002 cannot prevail over the order
of the High Court. While so, the High Court, in our view, erred in holding
that by the order of Director of Agricultural Marketing dated 24.09.2002, D
right of respondent No.2 to get large gala has been crystallised and that
APMC ought to have allotted the same to respondent No.2 instead of
conducting lottery amongst all the eligible claimants. The High Court
erred in relying upon the above order of Director of Agricultural Marketing
and directing APMC to allot the said large gala to respondent No.2 without
keeping in view the norms fixed by the Daud Committee. The order E
dated 24.09.2002 passed by the Director of Agricultural Marketing is
contrary to the norms fixed by Daud Committee. Dehors the norms
fixed by Daud Committee which has been directed to be strictly complied
with (vide order dated 07.05.1999 in WP No.2556/1999), respondent
No.2 cannot claim entitlement for the large gala based on the said order F
and the order of the High Court holding that respondent No.2 is entitled
to large gala cannot be sustained and is liable to be set aside qua
respondent No.2.
33. Claim of Appellant M/s Hande Wavare & Co. (Shri
Kashinath Wavare):- Let us now consider the eligibility of the appellant. G
As pointed out earlier, as per the resolution of the Board of Directors
held on 07.03.2013, appellant M/s Hande Wavare & Co., respondent
No.2-Habibullah Farhatullah and three others were the eligible claimants.
Prior to the allotment in question, the appellant M/s Hande Wavare &
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202 SUPREME COURT REPORTS [2019] 9 S.C.R.
A Co. was allotted a small size Gala bearing No.M-821. As per the norms
suggested by the learned Commissioner, the wholesale broker in fruit
section who was falling in the time frame of 1985-86 to 1994-95 was
entitled for large gala on fulfillment of the conditions viz. (i) He should
have booked gala by paying booking amount upto Rs.34,000/- before
closing date; (ii) He should hold licence issued by the APMC for at least
B
two years between the year 1985-86 to 1994-95; (iii) He should have
done business for at least five years between the years 1985-86 to 1994-
96; (iv) He should have done business either in the year 1995-96 or
1996-97 by paying cess; and (v) For entitlement of large gala, he should
have paid cess between Rs.10,001/- to Rs.90,000/- in the years 1985-86
C to 1994-95. According to the appellant, he was satisfying all the conditions
except condition No.5. During the period between 1985-86 to 1994-95,
the appellant had paid an amount of Rs.9844.10 towards cess/market
fee and Rs.34,000/- towards booking a gala. The cess/market fee paid
by the appellant was less by Rs.155.90 to the required norm of Rs.10,000/
-. The market fee of Rs.9844.10 paid by the appellant was in the time
D
frame of 1985-86 to 1994-95 and thus the appellant had not fulfilled the
norms as per the Daud Committee report and thus the appellant is falling
under the category of “marginally falls short of the norms.”
34. The appellant placed reliance on the order of the High Court
dated 07.05.1999 passed by the High Court in W.P. No.2556 of 1999
E whereby the Division Bench has directed APMC to make allotment
strictly by adhering to the norms laid down by the learned Commissioner.
As pointed out earlier, in WP No.2556/1999, the High Court further
directed that if any gala remains vacant after allotment in accordance
with the norms, it will be open to APMC to allot to those who “marginally
F falls short of the norms” that have been laid down. The appellant having
paid the market fee of Rs.9844.10 in the time frame of 1985-86 to 1994-
95 which is less by Rs.155.90 falls under the category of “marginally
falls short of the norms” and is entitled to make a claim for the large
gala. In our view, without considering the rival contentions of the parties,
the High Court was not right in holding that respondent No.2 alone was
G entitled for the allotment of large Gala No.F-158.
35. Claim of Ganpat Sabaji Shinde: Ganpat Sabaji Shinde has
been allotted a small Gala No.M-748 in 1999. According to the appellant
Ganpat Shinde, he had deposited an amount of Rs.32,725/- with APMC
during the period between 1987 and 1991 for allotment of large gala. It
H
M/S HANDE WAVARE & CO. v. RAMCHANDRA VITTHAL 203
DONGRE & ORS. [R. BANUMATHI, J.]
is in dispute between the parties whether the appellant Ganpat Shinde A
had deposited a sum of Rs.35,725/- or Rs.32,725/- prior to 31.12.1993
with APMC. Appellant Ganpat Shinde alleges that he has deposited
Rs.32,725/- with APMC and he had paid an amount of Rs.3,000/- to the
Trader’s Association which according to him was transferred to APMC
aggregating to the total of Rs.35,725/- which is more than the required
B
amount of Rs.34,000/-. According to APMC, the records of APMC did
not show any receipt of Rs.35,725/- before 31.12.1993. According to
APMC, the amount of Rs.3,000/- paid by Ganpat Shinde to Traders
Association was received by APMC only in the year 2003 and the same
was adjusted towards the lease premium of small gala No.748 allotted.
APMC rejected the claim of Ganpat Shinde by order dated 17.02.2010 C
which was challenged by Ganpat Shinde in Appeal No.14 of 2010 under
Section 52B of APMC Act. By the order dated 09.11.2011, Director of
Agricultural Marketing set aside the order dated 17.02.2010 and directed
APMC to afford an opportunity of hearing to Ganpat Shinde and take
appropriate decision on merits.
D
36. Mr. Vinay Navare, learned senior counsel appearing for
appellant Ganpat Sabaji Shinde submitted that though appellant Ganpat
Shinde sent various letters requesting for allotment of Gala No.F-158,
the same was not considered and he was informed by APMC (letter
dated 19.10.2013) that Gala No.F-158 has been allotted by lottery system
and therefore, his request for allotment of large gala cannot be considered. E
On the other hand, by its order dated 26.11.2014, APMC agreed to allot
small size Gala No.M-745 to Ganpat Shinde for value of Rs.25,50,000/-
i.e. at the price determined by Government approved valuer. As per the
decision of the Board of Directors in the meeting dated 28.02.2014,
APMC resolved to allot small Gala No.M-745 to Ganpat Shinde. By the F
communication dated 26.11.2014, Ganpat Shinde was asked to pay
Rs.19,66,517/- as per ready reckoner. Challenging the order of the Board
of Directors and the order dated 26.11.2014, Ganpat Shinde filed Appeal
No.2/2015 before the Director, Marketing. According to APMC, since
Ganpat Shinde has not given his consent for allotment of additional small
gala and to the resolution of the Board of Administrators held on G
14.01.2015, it was resolved to cancel the allotment of small size Gala
No.M-745 to Ganpat Shinde and the same was informed to Ganpat Shinde
by letter dated 18.02.2015. Appellant Ganpat Shinde challenged the
Board’s resolution dated 14.01.2015 in Appeal No. 12 of 2015. Director
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204 SUPREME COURT REPORTS [2019] 9 S.C.R.
A of Marketing had taken up Appeal No.2 of 2015 and 12 of 2015 together
and the appeals were allowed by order dated 29.04.2015 whereby the
Director held that Ganpat Shinde is entitled for large gala. Challenging
the order of the Director, Marketing dated 29.04.2015 holding Ganpat
Shinde entitled for large gala, Kashinath Wavare filed writ petition in
WP(Stamp) No.35978 of 2017. Contention of Ganpat Shinde is that
B
Kashinath Wavare has no locus standi to challenge the order passed by
the Director, Marketing and the eligibility of the appellant for large gala.
37. Insofar as the case of Ganpat Shinde is concerned, the High
Court held that “there was a dispute between the parties whether the
appellant had deposited a sum of Rs.35,725/- or Rs.32,725/- prior
C to 31.12.1993 with APMC”. The High Court also observed that there
was a dispute that out of Rs.35,725/-, a sum of Rs.3,000/- was adjusted
towards the lease of Gala No.M-748 and therefore, the High Court
rejected the claim of appellant Ganpat Shinde that he had deposited
more than Rs.34,000/- towards the allotment of large gala prior to the
D cut-off date. Though, appellant Ganpat Shinde claims that amount of
Rs.35,725/- has been paid only for allotment of large gala, APMC claims
that the same is not borne by record namely letter dated 03.07.2003 of
APMC which reads as under:-
“…..Subject to terms and conditions of the Gala allotment, amount
E of Rs.35,725/- which you have been paid till date is transferred to
Gala No.M-748. …….”
38. The High Court held that since Ganpat Shinde had paid only a
sum of Rs.32,725/- towards booking amount and was accordingly allotted
a small Gala No.M-748 in the year 1999 and that he is not entitled to
F claim allotment of large gala. The High Court was not right in holding
that Ganpat Shinde had paid only Rs.32,725/-. It is pertinent to note that
in the above communication dated 03.07.2003, APMC stated about the
receipt of the payment of Rs.35,725/-. As rightly contended by senior
counsel Mr. Vinay Navare, APMC for the first time by its resolution
dated 17.02.2010 stated that Ganpat Shinde has paid registration booking
G amount of Rs.32,725/- and that Ganpat Shinde does not satisfy the norms
fixed by Daud Committee requiring deposit of an amount of
Rs.34,000/-.
39. Contention of APMC is that its records show Rs.32,725/- in
the name of Ganpat Shinde and the sum of Rs.3,000/- was received in
H
M/S HANDE WAVARE & CO. v. RAMCHANDRA VITTHAL 205
DONGRE & ORS. [R. BANUMATHI, J.]
the year 2003 from the Traders Association and the same was considered A
towards the lease premium of Gala No. M-748 allotted vide letter dated
29.02.1999. Further contention of APMC is that in any case, Rs.3,000/
- came to be deposited only in 2003 well after the cut-off date and it is
immaterial whether it is adjusted towards the lease amount or not and
therefore, Ganpat Shinde has neither satisfied the eligibility norms nor
B
satisfied the norms fixed by Daud Committee.
40. Admittedly, amount of Rs.3,000/- paid by Ganpat Shinde in
the account of Traders Association was transferred to the account of
APMC only in the year 2003. But APMC is not right in saying that the
said amount of Rs.3,000/- was adjusted towards the lease premium
amount. In the reply to the information sought under Right to Information C
Act, APMC has stated that the amounts are not adjusted to lease premium
but they are transferred towards booking amount. The reply to RTI are
as under:-
“Market Committee did not register the Gala in the Fruit and
Vegetable Division in personal name of association. The concerned D
association in the Fruit and Vegetable Market Compound deposited
the amounts of their members to the Market Committee.
Association submitted recommendation letters in the name of their
members to the Market Committee. The amounts intimated by
the association were transferred on the members towards booking E
amount. These amounts are not towards lease premium, but they
are transferred towards booking amounts. The Market Committee
had not prepared any rules for the same.”
The amount of Rs.3,000/- paid by Ganpat Shinde to the Traders
Association transferred to APMC in 2003, be it for lease premium or F
booking amount, the fact remains that Ganpat Shinde has paid only
Rs.32,725/- before the cut-off date for taking the gala. Though, Ganpat
Shinde was allotted small gala, the same can be taken into account for
holding that Ganpat Shinde falls within the category of “marginally falls
short of the norms” and he is entitled to claim large gala. The findings
of the High Court that Ganpat Shinde is not eligible to claim large gala is G
not sustainable and the same is liable to be set aside.
41. M/s Ramchandra Vitthal Dongre: M/s Ramchandra Vitthal
Dongre is a registered partnership firm consisting of two partners
respondent No.1-Ramchandra Vitthal Dongre and G.V. Lohot. According
H
206 SUPREME COURT REPORTS [2019] 9 S.C.R.
A to the appellant-Ramchandra Vitthal Dongre, the firm applied for
partnership registration on 12.12.2005 and was registered on 31.05.2014.
Ramchandra Vitthal Dongre paid substantial market fees for carrying
on the business of wholesale fruit distributor. He paid booking amount of
Rs.10,000/- on 04.06.1988 and Rs.34,000/- on 09.09.1991. G.V. Lohot
had paid Rs.32,725/- on 09.09.1991. Both the partners have obtained
B
licences in their individual capacities. Respondent No.1-Ramchandra
Vitthal Dongre was allotted a large Gala No.G-247 on 28.09.1995 and is
in possession of the same in his individual capacity. Ramchandra Dongre
had paid cess above Rs.1,01,156/- during the period of ten years i.e.
between 1985-86 and 1994-95. Subsequent to the cancellation of
C allotment of two large Galas in favour of M/s Indian Fruit Co.,
Ramchandra Dongre was allotted a second large Gala No.F-124 on
09.05.2001 and he paid an amount of Rs.1,27,500/- on 23.05.2001.
However, the appeal preferred by M/s Indian Fruit Co. under Section
52B of the Act was allowed by the Director of Agricultural Marketing
vide order dated 13.12.2001 and the allotment of second large gala No.F-
D
124 in favour of Ramchandra Vitthal Dongre was cancelled. Against
which, Ramchandra Vitthal Dongre filed writ petition W.P.No.234 of
2004. In the year 2012, when Gala No.F-158 became vacant,
Ramchandra Dongre filed a civil application in the said writ petition filed
by him seeking an early hearing. The High Court vide its order dated
E 07.01.2013 disposed of the application accepting the submissions of
APMC that apart from Ramchandra Vitthal Dongre, there are four other
claimants and directed APMC to scrutinize the claim of all eligible
claimants for allotment of Gala No.F-158.
42. Insofaras M/s Ramchandra Vitthal Dongre is concerned, the
F question falling for consideration is whether the firm-M/s Ramchandra
Vitthal Dongre has complied with the norms laid down by Daud
Committee and whether the firm is eligible for the allotment of large
Gala.
43. The contention of Ramchandra Vitthal Dongre is that the
G booking amount paid on behalf of M/s Ramchandra Vitthal Dongre is
Rs.76,725/- (amount paid for individual booking amounts paid by the
partners in their own individual name) and is therefore, eligible for
allotment of said large gala. It is contended that the allotment of Gala
No.F-124 made by APMC, their stand taken in three affidavits filed by
H
M/S HANDE WAVARE & CO. v. RAMCHANDRA VITTHAL 207
DONGRE & ORS. [R. BANUMATHI, J.]
APMC in Writ Petition No.4101 of 2001, Writ Petition No.3194 of 1999 A
and Writ Petition(Stamp) No.10993 of 2002 numbered as Writ Petition
No.234 of 2004 prove that the firm is eligible for a large Gala.
44. The contention of Ramchandra Vitthal Dongre is that his
partnership firm-M/s Ramchandra Vitthal Dongre satisfies the norms
laid down by the learned Commissioner. The said partnership firm consists B
of two partners who hold licences given by APMC. Admittedly, the firm
got registered only in the year 2014. One partner, Ramchandra Vitthal
Dongre has been carrying on the business in his individual capacity and
has been earlier allotted a large gala. The other partner G.V. Lohot is
also carrying on business in his own individual name.
C
45. Claim of Ramchandra Vitthal Dongre is that the firm had paid
the booking amount of Rs.76,725/- which is denied by APMC. The
contention of APMC is that no booking has been made in the name of
the partnership firm, no cess amount is paid and no licence was obtained
by it. According to APMC, Ramchandra Vitthal Dongre had paid
Rs.10,000/- on 04.06.1988 and Rs.34,000/- on 09.09.1991. G.V. Lohot D
was not doing any business till the year 1991. G.V. Lohot started business
by taking licence in his name for the year 1991-92 and Rs.32,725/- was
paid by him on 09.09.1991 towards booking of gala. The said amount
was paid by Ramchandra Vitthal Dongre and G.V. Lohot in their individual
capacities and not by the firm. As the booking amount was paid in their E
individual capacity, Ramchandra Vitthal Dongre was allotted Gala No.G-
247 which was a large Gala. Registered Deed of Sub-lease dated
29.10.1999 was also executed in the name of Ramchandra Vitthal Dongre
in his individual capacity. According to APMC, Ramchandra Vitthal
Dongre had paid booking amount and cess only in his individual capacity
and was accordingly allotted a large gala and his claim for second gala F
in the name of the firm is not sustainable. Insofar as G.V. Lohot is
concerned, he was issued a licence by APMC on 30.07.1972 which was
renewed from time to time upto 2014 and said G.V. Lohot is also carrying
on the business in his individual name only.
46. Insofar as three affidavits filed by APMC in Writ Petition G
No.4101 of 2001, Writ Petition No.3194 of 1999 and Writ Petition (Stamp)
No.10993 of 2002 numbered as Writ Petition No.234 of 2004 on which
reliance was placed by M/s Ramchandra Vitthal Dongre is concerned,
H
208 SUPREME COURT REPORTS [2019] 9 S.C.R.
A contention of APMC is that those three affidavits were in respect of the
claim of Ramchandra Vitthal Dongre as proprietor and not by M/s
Ramchandra Vitthal Dongre, the partnership firm and thus, no reliance
on those three affidavits can be placed by M/s Ramchandra Vitthal
Dongre. It is stated that APMC never admitted the claim of the firm.
B 47. There are no norms suggested by Daud Committee making a
partnership firm separately eligible for allotment of a Gala on the basis
of the licence issued in the name of the individual partner, the amount
paid by said individual partner towards booking of the Gala, payment of
cess made by such individual partner, etc. In the absence of specific
norms for the partnership firms, the norms framed for individual traders
C are applicable for the partnership firms. When the firm was registered
in the year 2014 and it has not complied with any of the norms fixed by
Daud Committed, the firm cannot seek for the allotment of any gala,
much less a large gala. Considering the submissions of both the parties,
in the impugned judgment, the High Court rightly held that the partnership
D firm consisting of Ramchandra Vitthal Dongre and G.V. Lohot is not
separately entitled for allotment of any separate Gala. Based on the
documents of the individual partners, the relevant findings of the High
Court are as under:-
“In my view, the license obtained by an individual partner, the
E booking amount, if any, paid by such individual partner, payment
of cess, if any, paid by such individual partner or other requirements
which individual partner is required to be fulfilled as per the norms
suggested by the learned Commissioner for being eligible to
allotment of such gala cannot be utilised by the partnership firm
consisting of such partners to make such firm eligible for allotment
F of any gala under the said norms suggested by the learned
Commissioner………… In my view, the documents relied upon
by the petitioner for seeking allotment of the said gala No.F-158
which were the documents of individual partner of the petitioner
could not be used and/or relied upon for the purpose of seeking
G allotment of the said gala No.F-158 in the name of the said
partnership firm.”
The contention of APMC is that Ramchandra Dongre has been
doing business and paid money only in his individual capacity. As pointed
out earlier, G.V. Lohot started business by taking licence in his name for
H the year 1991-92 and paid the money only in his individual capacity.
M/S HANDE WAVARE & CO. v. RAMCHANDRA VITTHAL 209
DONGRE & ORS. [R. BANUMATHI, J.]
48. The partnership firm was registered only in the year 2014 and A
the firm was neither in existence nor carried on any business prior to cut
off date. The High Court, in our view, rightly rejected the contention
that the registration would relate back to the date of execution of the
partnership deed in the year 1987. The High Court rightly rejected the
plea that the firm-M/s Ramchandra Vitthal Dongre was eligible to apply
B
for allotment of large Gala No.F-158. Both Ramchandra Vitthal Dongre
and G.V. Lohot are carrying on the business in their individual name
therefore, the amount paid by the individual partners cannot be treated
as the payment made by the firm and the High Court rightly held that the
appellant firm M/s Ramchandra Vitthal Dongre is not entitled for a
separate allotment of gala. C
49. After the appeal preferred by M/s Indian Fruit Co. under
Section 52B of MAPMC Act which was allowed by the Director of
Agricultural Marketing vide order dated 13.12.2001, the allotment of
second large Gala No.F-124 in favour of Ramchandra Dongre was
cancelled. Challenging the cancellation of allotment of Gala No.F-124, D
Ramchandra Dongre filed writ petition W.P.No.234 of 2004. It is
unfortunate that the said W.P.No.234 of 2004 has been kept alive for
about fifteen years. In view of the concurrent finding of Director of
Agricultural Marketing dated 04.06.2014 and the findings of the High
Court in the impugned judgment that M/s Ramchandra Vitthal Dongre is
not eligible to claim large gala, in our view, nothing survives for E
consideration in W.P.No.234 of 2004 pending before the High Court of
Bombay. In the light of our finding affirming the view taken by the High
Court that the firm M/s Ramchandra Vitthal Dongre is not eligible to
claim allotment of large gala,the High Court shall dispose of the said writ
petition W.P.No.234 of 2004 by passing appropriate orders. F
50. In our considered view, respondent No.1-M/s Ramchandra
Vitthal Dongre and respondent No.2-Habibullah Farhatullah are not
eligible to claim allotment of large gala and the judgment of the High
Court is liable to be set aside.
51. Next question for consideration is as to who are all eligible to G
make claim for the allotment of large gala. In view of the foregoing
discussion, the appellants-M/s Hande Wavare & Co. and Ganpat Shinde
(who are marginally short of the norms) are eligible to claim allotment of
large gala along with others. As per the counter filed by APMC in writ
petition W.P.No.10328 of 2014, other than appellant-M/s Hande Wavare H
210 SUPREME COURT REPORTS [2019] 9 S.C.R.
A & Co., two other claimants viz. respondent No.3-M/s Bhalchandra
Chintaman Lele (Mr. Kedar Keshav Lele) and respondent No.4-Ashok
Dhondiba Punde are also eligible for allotment of large gala.
52. The only other point to be considered is whether the allotment
to be made by sealed tenders or by draw of lottery. As seen from the
B order of the Director of Agricultural Marketing dated 04.06.2014, APMC
initially fixed the value of said gala as per government rate at Rs.55,00,000/
-. The Director of Agricultural Marketing observed that instead of
accepting the amount of Rs.28,77,500/- from appellant-M/s Hande Wavare
& Co., APMC should have considered the market rate and getting valued
the said gala from government approved valuer and should have called
C for sealed covers from the claimants and ought to have allotted the gala
to the claimant who is paying the maximum value for allotment of large
gala. In our considered view, since there is huge competition for the
large gala, instead of adopting the lottery method, after fixing the market
value in order to fetch more revenue for APMC, offers should be invited
D in sealed covers. In order to attract better offers, it is appropriate that
appellant-M/s Hande Wavare & Co. should vacate the large Gala No.F-
158 at the earliest. The learned counsel appearing for APMC has stated
that the small Gala No.M-821 earlier allotted to the appellant-M/s Hande
Wavare & Co. is still vacant. APMC shall forthwith pass an order for
re-allotting the said small sized Gala No.M-821 to the appellant- M/s
E Hande Wavare & Co. and the appellant shall vacate the large Gala
No.F-158 before the end of September, 2019.
53. Considering the fact that APMC itself has fixed the market
value of large Gala No.F-158 at Rs.55,00,000/- in the year 2013-14,
we deem it appropriate to fix the upset value at Rs.55,00,000/-. The four
F eligible claimants. viz. (i) M/s Hande Wavare and Co.; (ii) Mr. Ganpat
Sabaji Shinde; (iii) M/s Bhalchandra Chintaman Lele (Mr. Kedar Keshav
Lele); and (iv) Mr. Ashok Dhondiba Punde shall quote their offers in a
sealed cover and accordingly, the large Gala No.F-158 be allotted to the
one who is quoting the highest price.
G 54. In the result, the impugned judgment of the High Court is set
aside and these appeals are disposed of with the following directions
and observations:-
(i) It is held that respondent No.2-Habibullah Farhatullah is not
entitled to claim allotment of large gala and findings of the
H
M/S HANDE WAVARE & CO. v. RAMCHANDRA VITTHAL 211
DONGRE & ORS. [R. BANUMATHI, J.]
High Court qua respondent No.2-Habibullah Farhatullah is set A
aside;
(ii) The findings of the High Court that the firm-Ramchandra
Vitthal Dongre is not entitled to claim allotment of large gala
is affirmed;
(iii) The possession of small Gala No.M-821 shall be restored B
back to the appellant-M/s Hande Wavare & Co. and M/s Hande
Wavare & Co. shall vacate the large Gala No.F-158 on or
before 30.09.2019. The amount of Rs.27,69,500/- deposited
by the appellant towards the large gala No.F-158 shall be
refunded to him by APMC immediately within two weeks from C
the date of his vacating;
(iv) The upset value of large Gala No.F-158 shall be fixed at
Rs.55,00,000/- as fixed by the Director of Agricultural
Marketing, APMC and the same shall be notified by APMC
by the end of October, 2019. The four eligible claimants viz. (i) D
M/s Hande Wavare and Co.-appellant; (ii) Mr. Ganpat Sabaji
Shinde; (iii) M/s Bhalchandra Chintaman Lele (Mr. Kedar
Keshav Lele)-respondent No.3; and (iv) Mr. Ashok Dhondiba
Punde-respondent No.4 shall quote their offers for the large
gala and shall submit sealed tenders to APMC on or before
15.11.2019. The sealed tenders are to be opened by APMC in E
the presence of a higher level officer preferably, the Joint
Director of Marketing and in the presence of all the four
claimants or their representatives on 22.11.2019; and
(v) The large Gala No.F-158 shall be allotted to the claimant who
has quoted the highest price. Payment of the amount for F
allotment of large gala by the successful allottee shall be paid
as per the rules of APMC.
Divya Pandey Appeals disposed of.
G
H
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