RAKESH SHARMA & ORS.versusSTATE OF M.P. & ORS.

                   [2011] 12 S.C.R. 351


                RAKESH SHARMA & ORS.                          A
                             v.
                  STATE OF M.P. & ORS.
           (Civil Appeal Nos. 7520-23 of 2011)
                    AUGUST 30, 2011
                                                              B
    [P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]

      Constitution of India, 1950 - Article 226 - Allegations of
illegal encroachments/constructions by Municipal Corporation
on footpaths and public streets in the market - Notices to C
shopkeepers that they were in illegal occupation of the front
portion of their shop - Filing of public interest litigation and
writ petitions - High Court disposed of the writ petitions and
issued various directions to the Municipal Corporation for
construction of a new market complex - Legality of - Held: D
High Court did not overstep its legitimate and legal
jurisdiction while continuing to pass order after order
constituting a Committee to supervise the construction of the
shopping complex - Such directions can be issued by the
High Court while exercising its powers under Article 226 - E
High Court passed various orders on the basis of consensus
of the parties, more particularly, with the consent of the shop·
keepers - Committee was appointed and a direction. was
issued for providing alternate place to shopkeepers till new
construction was completed in the existing place - Also, the F
High Court took into consideration the objections and
suggestions of the Director, Town and Country Planning
Department; the Commissioner, Municipal Corporation; and
the Principal Secretary, Housing Developme_nt - The
directions by the High Court safeguards not only the interest G
of the Municipal Corporation, general public but also all the
shopkeepers who are running their business in the market -
Thus, directions issued in the final order by the High Court
cannot be faulted with - Town planning- Urban Development.
                            351                               H
    352      SUPREME COURT REPORTS            [2011] 12 S.C.R.


A      The State Government constructed 'G' market in
  Gwalior with 250 shops. The shop covering 60 sq.ft. size
  was giveri to 252 incumbents of the market. Each shop
  covers 60 sq.ft. space plus 30 sq.ft. verandah, in total 90
  sq.ft. area. It is alleged that there was encroachment and
B erection of wooden stalls by the Municipal Corporation
  over the land of the Madhya Pradesh Housing Board in
  'N' Market. A public interest litigation was filed. The High
  Court directed the Municipal Corporation to remove the
  said structures and issued several directions. Pursuant
c thereto, the Municipal Corporation issued notices to the
  appellants alleging that they were in illegal occupancy of
  the front portion of their shops and directed them to
  remove the alleged encroachments. The shopkeepers of
  'G' Market and others filed writ petitions before the High
  Court. Thereafter, Special Leave Petitions were filed and
0
  the same were disposed of, by directing the High Court
  to dispose of the writ petitions. The High Court passed
  various orders and thereafter, disposed of the writ
  petitions and issued various directions to the Municipal
E Corporation, Gwalior for construction of a new market
  complex. Therefore, the appellants filed the instant
  appeals.

       The question which arose for consideration in these
  appeals whether the High Court overstepped its
F legitimate and legal jurisdiction while continuing to pass
  order after order constituting a Committee to supervise
  the construction of the shopping complex and any such
  directions can at all be issued by the High Court while
  exercising its powers under Article 226 of the
G Constitution of India.
          Dismissing the appeals, the Court

      HELD: 1.1 It is abundantly clear that from time to
  time, on different occasions with the consent of the
H parties, the construction of new Gandhi Market was
  RAKESH SHARMA & ORS. v. STATE OF M.P. &            353
                  ORS.
discussed and a Committee was constituted after the        A
order dated 20.04.2007. The High Court, on different
occasions, took into consideration the objections and
suggestions of the Director, Town and Country Planning
Department, the Commissioner, Municipal Corporation,
Principal Secretary, Housing Development and passed an     B
order on 18.05.2007. The same order has been reiterated
in the subsequent order dated 20.07.2007. [Paras 24 and
25] [369-E-G; 370-D]

     1.2 If the various orders passed by the High Court are
analysed, it would not be possible to conclude that the C
High Court over stepped its limit while giving directions
in para 8 of the impugned order. The High Court rightly
observed that it is the duty and responsibility of the Public
Department of the State Government, Municipal
Corporation to take all endeavour to save the town of D
Gwalior from encroachments and also easing the public
utility system. The materials placed by the Municipal
Corporation clearly show that Gandhi Market which is
primarily a cloth market is established in the year 1952 is
now in a very haphazard condition causing difficulty in E
the movement of public as well as of vehicles. It was
highlighted that in the day time as well as in the evening
busy time, it takes hours together for the vehicles to pass
from that area. Photographs were also shown to the
Court. It is impossible for the public to even walk on the F
street. The shop keepers are dumping their products
upon the street which is not permissible. The public are
prevented from using the foot path/pavement meant for
them. In such circumstances, a decision was taken to
construct a multi-level parking-cum-commercial complex. G
In this process of construction, it was planned to shift
temporarily the present shop keepers to some other
nearby places. It is further seen that the present
commercial area of the appellants/shop keepers is 60 sq.
ft. which has been converted by encroaching the area of H
    354     SUPREME COURT REPORTS            [2011] 12 S.C.R.

A verandah and converted the same into 90 sq. ft area. The
  new shop of 60 sq. ft. size is to be given to 252 present
  incumbents of Gandhi Market. It is highlighted that to
  construct the building to the height of 12.5 metres having
  3 layers of basement for parking, the ground floor shall
B have 252 shops which shall be allotted to the present
  incumbents of Gandhi Market and other floors shall be
  at the disposal of Municipal Corporation, Gwalior. [Paras
  26 and 27] [370-G-H; 371-A-F]

          1.3 In view of the various orders passed by the High
c Court on the basis of consensus of the parties, more
  particularly, with the consent of the shop keepers, a
  Committee was appointed and a direction was issued for
  providing alternate place to the shop keepers till new
  construction being completed in the existing place and
D all of them were assured of accommodation in the ground
  floor of the new market complex, the ultimate directions
  issued in the final order dated 18.01.2008 by the High
  Court cannot be faulted with. [Para 28] [371-G-H; 372-A]

E      1.4 Admittedly, one application was rejected on
  05.05.2006 and it is not clear how the other applications
  were kept pending even after disposal of main writ
  petitions. About the amount deposited by the shop
  keepers, both the senior counsel appearing for the
F Municipal Corporation submitted that the said amount
  was not towards adjustment of construction charges but
  the same would be adjusted towards future licence fees.
  In the light of the same, there is no substance in the
  contention relating to filing of applications about various
  orders passed by the High Court. The counsel for the
G Municipal Corporation rightly pointed out that even after
  the so-called applications, the consent to the process of
  a new market place continued and this is evident from the
  orders of the High Court dated 02.03.2007, 20.04.2007 and
  04.05.2007. It is also brought to the notice that some
H
   RAKESH SHARMA & ORS. v. STATE OF M.P. &             355
                   ORS.
applications that were made in June/July to recall the        A
order dated 04.05.2007 were not pressed. In view of the
same, the claim of the appellants cannot be accepted.
[Para 29] [372-8-F]

       1.5 Various directions in the impugned order of the    8
  High Court cannot be faulted with. It safeguards not only
  the interest of the Municipal Corporation, general public
  but also all the 252 shop keepers who are running their
  business in the Gandhi Market. Further, it was not
  disputed before the High Court that Gandhi Market
  became quite old and market is fully congested and there    C
  is no space for parking. That was the reason the High
  Court specifically recorded the finding in para 7 of the
  judgment which is endorsed. Though an argument was
  advanced that the permission granted by Joint Director,
  Town and Country Planning, Gwalior in his proceeding        D
  dated 05.12.2007 to the Commissioner, Municipal
  Corporation, Gwalior regarding reconstruction of .Gandhi
  Market, Gwalior was objected to by the Director and
  further approval of the State Government is required,
  inasmuch as the Joint Director is the officer competent,    E
  there is hope and trust that no fresh construction would
  be carried out without the authority of the person
  concerned and contrary to the statutory provisions/
. regulations. [Para 31] [372-H; 373-A; 373-D-F]
                                                              F
    1.6 The respondents, particl!larly, the Municipal
Corporation, Gwalior and the officers concerned are
directed to implement the directions of the High Court
within the parameters of the statutory provisions
considering the interest of the general public as well all    G
the shop keepers of the existing market. [Para 32] [373-
G-H; 374-A]
     CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7520-7523 of 2011.
                                                              H
    356      SUPREME COURT REPORTS                [2011] 12 S.C.R.


A       From the Judgment & Order dated 18.01.2008 of the High
    Court of Judicature of Madhya Pradesh, Jabalpur, Bench at
    Gwalior in Writ Petition No. 1873, 1878 and 2101 of 2003 and
    310 of 1999.

        Sunil Gupta, K.K. Venugopal, Rajiv Dhawan, Nisha
8
    Bagchi, Anupam Srivastava, Vikas Mehta, M.P. Jha, P.O.
    Bidua, Ram Ekbal Roy, Harshvardhan Jha, Vikas Upadhyay,
    S.S. Banthia for the appearing parties.

          The Judgment of the Court was delivered by
c
          P. SATHASIVAM, J. 1 . Leave granted.

        2. These appeals are directed against the judgment and
   final order dated 18.01.2008 passed by the High Court of
   Judicature of Madhya Pradesh, Jabalpur, Bench at Gwalior in
0 Writ Petition Nos. 1873, 1878 and 2101 of 2003 and 310 of
   1999 whereby the High Court disposed of the writ petitions and
   issued various directions to the Municipal Corporation, Gwalior
  .in paragraph 8 of the impugned order for construction of a
   market complex known as "New Gandhi Market Building".
E
          3. Brief facts:

        (a) According to the appellants-shopkeepers, after the
  partition of the country, in the year 1952, the Government
F constructed Gandhi Market in Gwalior with 250 shops and
  allotted them to the appellants herein, who were migrated to
  India from Pakistan at the time of partition, as tenants/licensees.
  Each shop covers 60 sq.ft. space+ 30 sq.ft. Verandah, in total
  90 sq.ft. area and has in front a 5 ft. wide footpath and then a
  public road. In the year 1975, notice was issued by the
G Municipal Corporation of Gwalior to the shopkeepers
  proposing to increase the rent from Rs.7/- to Rs.22Q/- per
  month. However, on 18.03.1977, the State of Madhya Pradesh
  as well as the Municipal Corporation, Gwalior agreed to
  increase the rent only by 7% from the original rent and also
H
   RAKESH SHARMA & ORS. v. STATE OF M.P. &                     357
           ORS. [P. SATHASIVAM, J.]
clarified that the enhanced rent would cover area in front of the      A
shops and no additional charges were to be paid in that
respect. On 24.05.1994, the Municipal Corporation passed
Resolution No.40 by which, area of the shop was treated as
90 sq. ft. including the verandah.
                                                                       B
      (b) On 28.02.1999, a public interest litigation petition,
being Writ Petition No. 310of1999 was filed by a lawyer, G.S.
Tomar, against encroachment and erection of wooden stalls by
the Municipal Corporation over the land of the Madhya Pradesh
Housing Board in Nazar Bagh Market, which is described as              C
"the heart of the city". By order dated 15.12.2000, the High
Court directed that the said structures erected by the Municipal
Corporation would be removed. The petition was listed before
the Division Bench on various dates and several directions
were issued by the High Court. Thereafter, on 04.02.2003, the          D
High Court directed the Municipal Corporation to furnish
information regarding the steps being taken to remove
encroachments on public streets. In May/June, 2003, the
Municipal Corporation issued notices to the appellants alleging
that they were in illegal occupancy of the front portion of their
shops and directed them to remove the alleged encroachments            E
with the threat for demolition of offending construction, if any.
Consequently, the shopkeepers of Gandhi Market filed
petitions before the High Court praying that they have not made
any encroachment of the Verandah. The shopkeepers of
various markets also filed writ petitions before the High Court.       F
All the petitions were directed to be listed along with Writ
Petition No: 310 of 1999.
      (c) During the pendency of the writ petitions, the High Court,
by order dated 04.07.2003, appointed District Judge                    G
(Vigilance) as a Local Commissioner in respect of the illegal
encroachments and constructions and directed the Municipal
Corporation to continue with the removal of encroachment from
the footpaths and public streets which were identified by the
District Judge (Vigilance). It further directed that objections, if    H
    358      SUPREME COURT REPORTS                (2011) 12 S.C.R.


A any, would be submitted to the District Judge.

         (d) Against the order dated 04.07.2003, some of the
    shopkeepers of other markets filed Special Leave Petition No.
    12446 of 2003 before this Court wherein this Court issued
    notice and stayed the demolition until further orders.
8
        (e) On 25.08.2003, the Local Commissioner submitted his
  report before the High Court and the High Court directed that
  it may not be open to the parties to raise any further objections
  to the report. Against the said order, the appellants herein filed .
C S.L:Ps. before this Court which were directed to be tagged with
  the earlier S.L.P.(C) No. 12446 of 2003. This Court disposed
  of all the petitions on 25.10.2004 by directing the High Court
  to dispose of the writ petitions as expeditiously as possible
  after taking into consideration the objections of the appellants
D and directed to maintain the status quo as on that date till the
  disposal of the writ petitions.

          (f) On 19.01.2005, the High Court directed the Municipal
  Corporation to submit a plan and map for development of
E Gandhi Market as a shopping complex having first and second
  floor and a parking area. As the appellants agreed to pay Rs.1
  lakh each in four instalments for construction of the first floor
  shops, the High Court further directed that the amounts
  deposited by the shopkeepers would be kept in a separate
  fund by the Corporation and its use would be considered at the
F time of final hearing.

       (g) On 08.07.2005, the High Court directed that since the
  shopkeepers have not deposited the remaining three
  instalments, they shall pay the same and clarified that in default,
G the Municipal Corporation is at liberty to remove the
  shopkeepers who are not willing to deposit their instalments.
  On 24.03.2006, the High Court further directed that the
  Municipal Corporation shall auction the shops excluding
  verandah by an auction notice for the Court to know the actual
H rental value and submit the price offered and the valuation
    RAKESH SHARMA & ORS. v. STATE OF M.P. &                    359
            ORS. [P. SATHASIVAM, J.]
 report of each shop. In pursuance of the said order, the             A
 Municipal Corporation published notice but no one applied for
 the same.

       (h) Against the order dated 24.03.2006, the shopkeepers
 filed applications before the High Court for recalling the order     8
 and for refund of the amount deposited by them with interest
 and the same were dismissed by the High Court on
 05.05.2006. Since the shopkeepers were not willing for the
 reconstruction of the market, the petitions were directed to be
 listed along with W.P.(C) No. 310 of 1999. The Commissioner          C
 was also required to give a proposal for reconstruction. By the
 impugned order dated 18.01.2008, the High Court disposed
 of all the writ petitions with various directions as found in
 paragraph 8 of the impugned order.

        (i) Aggrieved by the said order, the appellants-shop          D
· keepers have filed these appeals by way of special. leave
  petitions before this Court.
     4. Heard Mr. Sunil Gupta, learned senior counsel for the
 appellants, Mr. K.K. Venugopal and Dr. Rajiv Dhavan, learned         E
 senior counsel for the Municipal Corporation, Gwalior and Mr.
 Vikas Upadhyay, learned counsel for the State of M.P.

       5 According to Mr. Sunil Gupta, learned senior counsel for
 the appellants, several interim orders and the impugned final
 order of the High Court are wholly outside the legitimate scope      F
 and jurisdiction of PIL as stipulated in various decisions of this
 Court. He further contended that the directions of the High
 Court by which the appellants-shopkeepers have to vacate their
 legally rented shops for construction of a new 7-storey shopping
 complex in their place are opposed to and outside the                G
 legitimate jurisdiction of a writ court under Article 226 of the
 Constitution. He also contended that the High Court over-
 stepped its jurisdiction while continuing to pass order after
 order constituting a Committee to supervise the construction
 of shopping complex and requiring various authorities to             H
    360      SUPREME COURT REPORTS                  [2011) 12 S.C.R.


A facilitate by sanctioning necessary permission and so on.

         6. On the other hand, Mr. K.K. Venugopal and Dr. Rajiv
  Dhavan, learned senior counsel for the Municipal Corporation
  submitted that at every stage even at the time of passing
  various directions, the appellants consented the same and
8
  taking note of the interest of all the shopkeepers and for the
  convenience of the general public making provision for parking
  etc., the High Court issued various directions which are not only
  consented by the shopkeepers but also in consonance with the
C decisions of the Town and Country Planning Department as well
  as the State Government. They also submitted that by the
  impugned directions, the appellants-shopkeepers are not going
  to loose anything, on the other hand, the Municipal Corporation
  has assured that they will be provided alternate accommodation
  till the completion of the fresh construction and after new
D construction, they will be provided convenient shops in the
  ground floor itself with more facility for parking, accordingly, they
  prayed for dismissal of all the above appeals as devoid of any
  merits.

E       7. We have carefully considered the rival submissions,
    impugned order of the High Court including various orders
    passed, statutory provisions and all other relevant materials.

          8. In order to consider the issues raised above, it is
F relevant to note the ultimate directions issued by the High Court.
  It is useful to mention that the High Court has considered the
  issue not only in the PIL filed by an advocate of the local Bar
  but also heard and decided three writ petitions filed by 252
  shopkeepers having their business in the market in question.

G       9. The following directions in paragraph 8 of the impugned
    order are relevant. They are as follows:

          "8. As we have directed through interim orders and the
          Town and Country Planning vide order dated 5.12.2007
          has granted permission for construction of new shopping
H
RAKESH SHARMA & ORS. v. STATE OF M.P. &                   361
        ORS. [P. SATHASIVAM, J.)
 complex of seven storeys, with three underground storeys         A
 of parking area, in the interest of all, this petition and
 connected petitions are disposed of finally with the
 following directions:
  1. -   That now the respondent No.2 Muniqipal                   B
         Corporation shall construct new Gandhi Market
         Building as per the permission granted by the Town
         and Country Planning Department, Gwalior as well
         as by the State Government.

  2.     That the aforesaid construction shall be supervised      c
         by the Committee constituted by this Court vide
         interim order dated 20.4.2007. Committee and
         Corporation will ensure the construction of the new
         building for the commercial mi;irket and will see that
         the tenders are invited timely and agency is fixed       D
         for the purpose of construction. Whenever agency
         shall be fixed by the Corporation for the purpose of
         construction, then after entering into agreement with
         the agency but before issuing the work order, the
         Committee will give notice to the shopkeepers for        E
         vacating the shops and within a period of two
         months, shopkeepers shall vacate the shops. The
         shopkeepers will not raise any objection on any
         alternative site granted by the Municipal
         Corporation for running the business and will not        F
         delay in vacating the shops. After taking over the
         possession, the agency will start the work and see
         that the construction upto ground floor level is
         completed within a period of one year and
         thereafter shops are allotted to the old shopkeepers     G
         positively within a period of 18 months on the outer
         limit.

  3.     That the ground floor shops shall be allotted to the
         shopkeepers, those who will deposit the balance
                                                                  H
    362        SUPREME COURT REPORTS                [2011) 12 S.C.R.


A                amount of three instalments and shall also enter into
                 an agreement with the Corporation.

          4.     That the Corporation shall be free to allot the shops
                 of first, second and third floor on fair and auction
                 basis under the supervision of the Committee.
B
                 Other terms and conditions of the allotment shall be
                 settled by the Corporation and the Committee. So
                 far as the participation of the representatives of the
                 shopkeepers in the Committee, that shall be limited
                 only for the ground floor shop.
c
          5.     Municipal Corporation shall be free to fix the fresh
                 renVlicence fee of the new shops, which shall be
                 allotted to the existing shopkeepers. The
                 Commis~ioner, Municipal Corporation and
D                Committee shall submit quarterly progress report in
                 the Court."

        10. The whole controversy involved in these appeals is
  about the order dated 18.01.2008 passed by the· High Court
E in the said writ petitions. The question for consideration before
  this Court is whether the High Court overstepped in its
  legitimate and legal jurisdiction while continuing to pass order
  after order constituting a Committee to supervise the
  construction of the shopping complex and any such directions
F can at all be issued by the High Court while exercising its
  powers under Article 226 of the Constitution of India.

        11. The Municipal Corporation, Gwalior before the High
  Court as well as in this Court furnished necessary details about
  their stand. It is seen that a Writ Petition No. 310of1999 filed
G by Advocate G.S. Tamar was pending consideration in which
  the encroachment caused on the public way belonging to the
  M.P. Housing Board in Najar Bagh market situated at Maharaj
  Bada where the Municipal Corporation raised certain wooden
  stall pucca structure and was going to auction the same but
H subsequently under the orders of the Court in miscellaneous
   RAKESH SHARMA & ORS. v. STATE OF M.P. &                 363
           ORS. [P. SATHASIVAM, J.]
petitions, the petitioner confined the issue only to the question A
relating to encroachment in Gandhi Market, Gwalior. It was
stated in the writ petition that the shopkeepers of Gandhi Market
have encroached upon the verandah which was constructed in
front of the shops for the use of public and the prayer was made
that the aforesaid verandah which has been encroached upon B
by the shopkeepers may be removed. While so, in the other
writ petitions, all the shopkeepers have stated that they have
not made any encroachment of the verandah. When, on earlier
occasion, this Court was approached by the parties with regard
                                                                 c
to certain interim directions, this Court requested the High Court
to dispose of the main writ petitions at an early date. Pursuant
to the same, all the writ petitions were heard on several
occasions and before passing a final order, several interim
orders/directions were issued.

      12. At the foremost, Mr. Gupta submitted that they were D
not parties in the writ petition filed as PIL, hence without
affording opportunity, various directions have been issued.
Inasmuch as almost all the shop keepers have filed three writ
petitions conveying their stand and admittedly all those writ
petitions were heard along PIL (Writ Petition No. 310of1999), E
the said objection is liable to be rejected.

Consent by the shop keepers:

     13. Though Mr. Gupta, learned senior counsel for the
appellants vehemently contended that the High Court has F
exceeded its jurisdiction while considering the writ petitions
filed under Article 226, Mr. K.K. Venugopal and Dr. Rajiv
Dhavan, .learned senior counsel for the Municipal Corporation
while refuting the above contention pointed out that several
orders were passed by the High Court on the basis of the G
consent given by the shopkeepers. On 09.01.2005, the High
Court passed the following order:

    "During course of arguments, counsel for the petitioners
    suggested that each shop keeper will deposit Rs. One Lac     H
    364       SUPREME COURT REPORTS                  [2011] 12 S.C.R.


A         with the Municipal Corporation, Gwalior in four monthly
          installments, First Installment shall be paid next month and
          thereafter other installments shall be paid every month in
          the Municipal Corporation.
          Counsel for the Municipal Corporation submits that they
B
          will prepare a map for development of Gandhi Market and
          will prepare a good shopping complex having first and
          second floor. Plan shall also include parking area. It is also
          suggested by the Municipal Corporation that the shopping
          complex shall be prepared in such a manner that existing
c         shop keepers will not be dispossessed till first floor is
          completed. However, exact plan will be submitted by them
          within one month.
          Petitioners have also agreed that they will not keep of their
D         goods on the footpath and the footpath will be kept clear.
          They have further agreed that there shall be no
          encroachment on the footpath including hangings on the
          footpath. Respondents shall ensure that no vehicles are
          parked on the footpath.
E
          Counsel for the petitioners also submitted that they will
          move an application before the Apex Court for extension
          of time for decision of the petition.

          It is, therefore, directed that the amount so deposited by
F         the shopkeepers shall be kept in a separate fund by the
          Municipal Corporation and its use shall be considered at
          the time of final hearing."
       14. Again on 19.01.2005, the High Court passed the
G following order:
          "Shopkeepers of Gandhi Market have discussed the
          matter amongst themselves and have decided to deposit
          Rs. One Lac each with Municipal Corporation which shall
          be deposited by them in four equal monthly installments.
H         Similarly, shop keepers of Victoria Market and the market
  RAKESH SHARMA,& ORS. v. STATE OF M.P. &                 365
          ORS. [P. SATHASIVAM, J.]
    nearby the Town Hall have agreed to deposit Rs. 50,000/ A
    - each in two installments with Municipal Corporation,
    Gwalior.                         ·

    It is directed that the amount so deposited by the shop
    keepers shall be kept in a separate fund by the Municipal
                                                               8
    Corporation and its use shall be considered at the time of
    final hearing.

    Respondent- Municipal Corporation has submitted that
    they will prepare a plan for development of these markets
    as a shopping complex with the assistance of Town C
    Planner and ensure that there is. no traffic congestion in
    the area and shall also prepare parking place so that
    citizens have no inconvenience on the public streets.

    Shop keepers have assured that there will be no 0
    encroachment on the footpath and the respondents will be
    at liberty to remove the encroachment, if found on the
    footpath. They shall also ensure that footpath is not
    obstructed by any vehicle.            ··

    Counsel for the petitioners before the Apex Court submit E
    they will be moving an application in the Apex Court for
    extension of time for disposal of the petition.

    As prayed, list this petition for further orders next month
    alongwith other connected petitions."                         F

     15. Thereafter, the High Court, on 11.03.2005, passed the
following order:
    "Shri Bhardwaj stated that as per undertaking given by the
    shop keepers of Gandhi Market an amount of Rs. G
    62,27,000/- has been deposited with the Municipal
    Corporation, Gwalior. Counsel for the shop keepers
    submits that efforts are being made to pay future
    installments. He further submits that if the map prepared
                                                               H
    366      SUPREME COURT REPORTS                  [2011] 12 S.C.R.


A         by the Municipal Corporation for development and
          beautification of the market, as ordered earlier by this
          Court, is produced and after going through the map, shop
          keepers will be in a position to raise further funds and
          deposit other installments as undertaken by them earlier.
B         Shri Bidua, counsel for the Municipal Corporation, Gwalior
          has informed that the finalization of map is at the final
          stage and is likely to be finalized by the end of next week.
          He submits that plan for development will be ready within
          a week or ten days.
c         Since there is likelihood of amicable settlement in the
          matter, we post this case after two weeks. On that date,
          map approved by the Municipal Corporation for
          development of Gandhi Market shall be produced in the
          Court for perusal.
D
          Shri Bhardwaj has mentioned that in view of further
          development in the case they have already approached the
          Apex Court for extension of time for deciding the petitions
          as the dispute is being settled between the Municipal
E         Corporation and the shop keepers. He has also stated that
          there is every possibility that the application for extension
          of time will be heard in the next week."

         16. From the above orders, it is clear that with the consent
    of the parties, the order of construction of new market was
F   passed and maps were prepared.

        17. Again, by order dated 06.05.2005, the High Court has
    specifically mentioned "the scheme for development of the
    market shall also be finalized in consultation with the
G   shopkeepers". The same reads as under:-

          "Today counsel for Municipal Corporation intimated that
          maps for Gandhi Market have been prepared by the
          Architect and accepted by Municipal Corporation.
H
   RAKESH SHARMA & ORS. v. STATE OF M.P. &                   367
           ORS. [P. SATHASIVAM, J.]
    Said maps be shown to the shop keepe.rs or                      A
    representatives of shop keepers. The scheme for
    development of the market shall also be finalized in
    consultation with the shop keepers.

    Counsel for the parties state that they will sit together and   8
    negotiate the matter."

     18. Thereafter, on 08.07.2005, the High Court passed the
following order:

     "As agreed by the shopkeepers on 19.01.2005, that they         C
   . will deposit Rs. One lac with the Municipal Corporation,
     Gwalior in four equal monthly instalments, they have
     deposited only one instalment and remaining three
     instalments at the rate of Rs.25,000/- per month have not
     been deposited. Maps have been prepared by the                 o
     Municipal Corporation which have been shown to the
     representatives of the shopkeepers. Now the shopkeepers
     state that all the shopkeepers want to see the maps and
     CD prepared for construction of the market. Municipal
     Corporation has no objection in showing the entire plan to     E
     them. However, the shopkeepers are -directed to deposit
     the second instalment within fifteen days and thereafter
     remaining instalments be paid in equal instalments every
     fifteen days and after deposit of second instalment those
     shop keepers who have deposited the second instalment          F
     will be entitled to see the maps CDs and, the Municipal
     Corporation will be at liberty to remove those shop keepers
     who are not willing to deposit their instalments. However,
     before passing any order of removal, Municipal
     Corporation shall examine their encroachments and other
     factors and submit report before this Court."                  G

    19. The same order has been reiterated on 24.03.2006
which is as follows:-

    "Shopkeepers are not ready to honour their offer given          H
    368       SUPREME COURT REPORTS                   [2011) 12 S.C.R.


A         before this Court and they are not prepared to pay the
          amount of premium as agreed by them on 19.01.2005.
          They have deposited only one installment of Rs. 25,000/-
          and they have not deposited the remaining three
          installments. Though, vide order dated 08.07.2005, the
B         shopkeepers were directed to deposit the second
          installment, but they have not done so, which shows that
          the shopkeepers are not willing to cooperate and now they
          have applied for exemption.

          In the circumstances, petition is required to be heard finally.
c
          In the meantime, the Municipal Corporation shall auction
          the shops, which shall not be finalized, so that the court will
          be in a position to know the actual rental value of each
          shop. The auction shall be for the area of shop only and
D         the encroached verandah shall not be auctioned which shall
          be clarified in the auction notice and the Corporation will
          be at liberty to remove the encroached area.

          List the petition finally before appropriate Bencfi, as
          prayed for by the counsel for the petitioners, in the week
E
          commencing 1st May, 2006. It is directed that before the
          date of hearing, Municipal Corporation shall submit the
          price offered for each shop and the State shall also submit
          the valuation report of each shop."
F         20. On 09.02.2007, the Court recorded that:

          "Shri Bidua (counsel for Respondent No.2) prays for time
          to submit verification report of the photographs filed by
          Shri V.K. Bharadwaj counsel for intervenors and
G         shopkeepers and to submit report about closing of
          verandah against the shops."
        21. Again, on 02.03.2007, the High Court passed a brief
    order which is as follows:

H         "With the consent of the parties, it is directed that Shri
  RAKESH SHARMA & ORS. v. STATE OF M.P. &                     369
          ORS. [P. SATHASIVAM, J.]
    Sharma, Commissioner, Municipal Corporation will                  A
    complete the inviting process of tenders for the
    construction of new market building at the place of old
    Gandhi Market on or before 09.03.2007."

    22. The order dated 20.04.2007 is very relevant which
                                                                      8
reads as under:-

    "For the construction of new market building at the place
    of old Gandhi Market, the shop keepers have consented."
    "Today, the Municipal Corporation has filed a compliance
    report". With a view to complete the project and to remove        C
    the day to day hurdles with the consent of the parties, we
    constitute a Committee comprising of .... ."

    23. The following noting in the order dated 04.05.2007 by
the High Court is also relevant which reads as under:-                D
     "Shri Raja Sharma, learned counsel appearing for the shop
     keepers submitted that the shop keepers will not raise any
     objection before the Committee:regarding the construction
     of the market."
                                                                      E
    24. It is abundantly clear that from time to time, on different
occasions with the consent of the parties, the construction of
new Gandhi Market was discussed and a Committee was
constituted after the order dated 20.04.2007.
                                                                      F
     25. The High Court, on different occasions, took into
consideration the objections and suggestions of the Director,
Town and Country Planning Department, the Commissioner,
Municipal Corporation, Principal Secretary, Housing
Development and passed an order on 18.05.2007 which is as             G
follows:-
     "Today progress report along with minutes of the meeting
     of the Committee dated 14.05.2007 has been filed, which
     is taken on record and Corporation has also produced
     copy of letter dated 15.05.2007 written by Joint Director,       H
    370      SUPREME COURT REPORTS                  [2011) 12 S.C.R.


A         Town and Country Planning Department to the Director for
          seeking permission from the State. It is submitted that the
          Architect has already submitted map as per advice of the
          Joint Director, Town and Country Planning Department and
          the matter has been referred to the Government for
B         permission. So far as the question of permission upto the
          height of 24 meter is concerned, that shall be obtained by
          the Municipal Corporation and not by the Contractor. The
          Committee has fixed the next date of meeting of 5th June,
          2007. List this case on 6th July, 2007. In the meantime,
c         the State Government shall take a decision on the
          permission and the Committee shall also finalize the map
          and issue the tenders for fixing the agency etc. During this
          period every effort should be made to complete the
          formalities and process of inviting tenders should also be
          started so that the construction plan may be prepared.
D
          Next progress report shall be submitted on 6th July, 2007.

    The same order has been reiterated in the subsequent order
    dated 20.07.2007. On 27.07.2007, the High Court passed the
    following which reads thus:-
E
          "lt is directed that Shri Batham will continue to co-ordinate
          between the authorities and will see that the inspection and
          report is submitted by the School of Planning and
          Architecture, New Delhi as early as possible and the
F         consent is obtained from the Department of Town and
          Country Planning as well as the State Government. He will
          also submit the reply of the queries and fulfill all the
          conditions which are necessary for the approval of the
          project. The Corporation is directed to submit the further
          progress report on 10.08.2007.
G
         26. If we analyze the above-mentioned and various other
    orders, it would not be possible to conclude that the High Court
    over stepped its limit while giving directions in para 8 of the
    impugned order. As rightly observed by the High Court, it is the
H
    RAKESH SHARMA & ORS. v. STATE OF M.P. &                     371
      ,.    ORS. [P. SATHASIVAM, J.]
 m:luty and responsibility of the Public Department of the State       A
   3overnment, Municipal Corporation to take all endeavour to
a;ave the town of Gwalior from encroachments and also easing
•he public utility system. The materials placed by the Municipal
   :orporation clearly show that Gandhi Market which is primarily
li:1 cloth market is established in the year 1952 is now in a very     8
"haphazard condition causing difficulty in the movement of public
.as well as of vehicles. It was highlighted that in the day time as
-well as in the evening busy time, it takes hours togethedor the
-vehicles fo pass from that area. Photographs were also shown
  to us. It is impossible for the public to even walk on the street.   C
  The shop keepers are dumping their products upon the street
  which is not permissible. The public are prevented from using
  the foot path/pavement meant for them. In such circumstances,
  a decision was taken to construct a multi-level parking-cum-
  commercial complex. In this process of construction, it was
  planned to shift temporarily the present shop keepers to some        D
  other nearby places.                                            ..
       27. It is.-further seen that the present commercialarea of
  the appellants/shop keepers is 60 sq. ft. which has been
  converted by encroaching the area of verandah and converted          E
  the same into 90 sq. ft area. The new shop of 60 sq. ft. size is
  to be given to 252 present incumbents of Gandhi Market. It is
. highlighted that to construct the building to the height of 12.5
  ~etres having 3 layers of basement for parking, the ground floor
  shall have 252 shops which shall be allotted to the present          F
  incumbents of Gandhi Market and other floors shall be at the
  disposal of Municipal Corporation, Gwalior.
      28. In view of the various orders passed by the High Court
 on the basis of consensus of the parties, more particularly, with     G
 the consent of the shop keepers, a Committee was appointed
 and a direction was issued for providing alternate place to the
 shop keepers till new construction being completed in the
 existing place and all of them were assured of accommodation
 in the ground floor of the new market complex, we are of the
                                                                       H
    372      SUPREME COURT REPORTS                  [2011] 12 S.C.R.


A view that the ultimate directions issued in the final order dated
  18.01.2008 by the High Court cannot be faulted with.

          29. The next submission of Mr. Gupta relates to
    applications filed by the appellants before the High Court for
    recalling the order dated 24.03.2006 and also seeking
8   clarification on the same order as well as another application
    for refund of the amount deposited. Admittedly, one application
    was rejected on 05.05.2006 and it is not clear how the other
    applications are kept pending even after disposal of main writ
    petitions. About the amount deposited by the shop keepers,
C   both the senior counsel appearing for the Municipal Corporation
    submitted that the said amount was not towards adjustment of
    construction charges but the same would be adjusted towards
    future licence fees. In the light of the same, there is no substance
    in the contention relating to filing of applications about various
D   orders passed by the High Court. As rightly pointed out by Dr.
    Rajiv Dhavan, learned senior counsel for the Municipal
    Corporation even after the so-called applications, the consent
    to the process of a new market place continued and this is
    evident from the orders of the High Court dated 02.03.2007,
E   20.04.2007 and 04.05.2007. It is also brought to our notice that
    some applications that were made in June/July to recall the
    order dated 04.05.2007 were not pressed. In view of the same,
    we are unable to accept the claim of the learned senior counsel
    for the appellants.
F
       30. In view of our factual conclusion based on the materials
  placed by both the parties as well as various orders of the High
  Court, we feel that there is no need to advert to various
  decisions relied on by the learned senior counsel for the
G appellants.
       31. In the light of the above discussion, we are satisfied
  that various directions in para 8 of the impugned order of the
  High Court cannot be faulted with and according to us it
  safeguards not only the interest of the Municipal Corporation,
H general public but also all the 252 shop keepers who are
   RAKESH SHARMA & ORS. v. STATE OF M.P. &.                373
           ORS. [P. SATHASIVAM, J.]

running their business in the Gandhi Market. Further, it was not A
disputed before the High Court that Gandhi Market became
quite old and market is fully congested and there is no space
for parking. That was the. reason the High Court specifically
recorded a finding in para 7 that:
                                                                  B
     " ..... under changed circu.mstances that all the parties
     including the shop keepers have agreed for construction
     of new Gandhi Market building in the place of old Gandhi
     Market building. This Court has already in the interest of
     all the parties and the citizens of Gwalior City, directed C
     through interim orders for construction of a new market
     building and has also constituted a Committee to see that
     new Gandhi Market building is constructed and after
     construction, the existing shop keepers were also settled
     therein ........ ."
                                                                  D
  We fully endorse the above view. Though an argument was
  advanced that the permission granted by Joint Director, Town
  and Country Planning, Gwalior in his proceeding dated
  05.12.2007 to the Commissioner, Municipal Corporation,
  Gwalio.r regarding reconstruction of Gandhi Market, Gwalior E
  was objected to by the Director and further approval of the State
  Government is required, inasmuch as the Joint Director is the
  officer competent, we hope and trust that nofresh construction
  would be carried out without the authority of the person
  concerned and contrary to the statutory provisions/regulations, F
. e.ccordingly, we reject the said contention also.

     32. Under these circumstances, we are unable to agree
with any one of the submissions made by the appellants, on
the other hand, we are in entire agreement with the stand of
the respondents and reasonings and conclusion arrived at by G
the High Court. We direct the respondents, particularly, the
Municipal Corporation, Gwalior and the officers concerned to
implement the directions of the High Court within the
parameters of the statutory provisions considering the interest
of the general public as well all the shop keepers of the existing H
     374     SUPREME COURT REPORTS                [2011] 12 S.C.R.

A market. In view of the disposal of the civil appeals, Municipal
  Corporation is free to proceed with the construction as directed
  in the impugned order of the High Court and in the light of the
  above observations, as early as possible, and we also direct
  that all the directions of the High Court shall be adhered to. It
B is further directed that as soon as construction up to ground
  floor level is completed along with the required parking facilities
  at the basement level those shops are to be allotted to the old
  shop keepers in the Gandhi Market within a period of six
  months after completion of such construction, unless-an
c individual shop keeper becomes ineligible for the known
  reason.
         33. Consequently, all the appeals fail and are accordingly
     dismissed. In view ·of the same, interim stay granted by this
     Court on 17.10.2008 shall stand vacated. No order as to costs .
.D
     N.J.                                     Appeals dismissed.