M/S HANDE WAVARE & CO. versus RAMCHANDRA VITTHAL DONGRE & ORS. on 10 July 2019

[2019] 9 S.C.R. 181

M/S HANDE WAVARE & CO.

v.

RAMCHANDRA VITTHAL DONGRE & ORS.

(Civil Appeal No. 5350 of 2019)

JULY 10, 2019

[R. BANUMATHI AND R. SUBHASH REDDY, JJ.]

Maharashtra Agricultural Produce Marketing (Developmentand Regulation) Act, 1963– ss.43, 52B – Government ofMaharashtra decided to shift the wholesale fruit and vegetablemarket situated in Crawford Market to Vashi, Navi Mumbai to reducethe congestion – Agricultural Produce Market Committee (APMC-respondent no.5) constructed two types of galas/shops, small galasand big galas – Committee appointed to suggest the norms to allotthe galas/shops– Dispute pertains to the allotment of large gala/shop no.F-158 in lottery conducted by APMC– Appellant selectedin the lottery for allotment of the said gala – Decision to conductlottery challenged by respondent no.1 before respondent no.6 –Allotment by lottery to the appellant set aside – Order of respondentno.6 set aside and the decision of APMC drawing the lottery andallotting the said gala to the appellant was confirmed – RespondentNo.2 filed writ petition – Allowed by High Court while directingAPMC to allot the said gala in his favour – On appeal, held: Asper the norms, no trader who has not paid the booking amount canget large gala or part thereof or more than one small gala –Respondent no.2 himself neither made the application before thecut-off date nor paid the booking amount – Amount paid by fatherof respondent no.2 was sought to be transferred to respondent no.2– Transfer of amount by a person who booked the gala to anotherperson is not permissible as per the norms fixed by the Committee –Respondent No.2 cannot claim allotment of Gala No.F-158 dehorsthe norms fixed by the Committee which were directed to be strictlyfollowed by the High Court – Neither respondent no.1 norrespondent no.2 are eligible to claim allotment of large gala –Appellant having paid the market fee of Rs.9844.10 in the time frameof 1985-86 to 1994-95 which is less by Rs.155.90 to the requirednorm of Rs.10,000/-, falls under the category of “marginally falls

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Ashort of the norms” and is entitled to make claim for the large gala– Findings of the High Court that one ‘GS’, who was not consideredeligible to participate in the lottery, is not eligible to claim largegala set aside – Directions issued – Constitution of India – Art.14.

Constitution of India – Art.14 – Enforcement of, in negativeBmanner – Held: Not permissible – If any illegality or irregularityhas been committed in favour of any individual or group of individualor wrong order has been passed by a forum, the same illegality orirregularity cannot be perpetuated on the ground of discriminationor hardship.

CDisposing of the appeals, the Court

Conclusion

HELD: 1.1 Claim of respondent No.2- Respondent No.2himself did not make any application for booking of any gala nordid he pay any amount for booking the gala. As per the normssuggested by Daud Committee, there was no scope of transfer ofDbooking of gala and the booking amount from one person toanother. In the impugned judgment, the High Court held thatthe right of respondent No.2 to get large gala has been crystallisedby the order dated 24.09.2002 of Director of AgriculturalMarketing and when the large Gala No.F-158 became available,APMC ought to have allotted the same to respondent No.2. AsEper the norms, no trader who has not paid the booking amountcan get a large gala or part thereof or more than one small gala.Transfer of amount by a person who booked the gala to anotherperson is not permissible as per the norms fixed by DaudCommittee. Merely because, in other cases, gala booked in theFname of one person is transferred in the name of another person,it cannot be the reason to adopt the same irregularity in the caseof the second respondent also. If any illegality or irregularity hasbeen committed in favour of any individual or group of individualor wrong order has been passed by a forum, the same illegalityor irregularity cannot be perpetuated on the ground ofGdiscrimination or hardship. Merely because, in few other cases,gala booked in the name of one person was transferred in thename of other persons in deviation from the norms fixed by DaudCommittee, the Director, Marketing was not right in holding that the second respondent is entitled for allotment of large gala bytransfer of booking of large gala from his father-Farhatullah HajiBarkatullah to his name. Father of respondent No.2 though paidthe booking amount of Rs.1,32,000/-, he has not paid the requisitecess amount to be eligible for the third large gala. Where reportof the Daud Committee specifically fixed the norms for the traderswho have paid the booking amount and traders who have notpaid the booking amount distinctly, the norms cannot becompromised or diluted by allowing the traders to get the bookingamount of one trader be transferred to another thereby, enablinghim to claim allotment of gala which he otherwise, would not haveentitled to. Respondent No.2 cannot make a claim for allotmentof Gala No.F-158 dehors the norms fixed by Daud Committee orotherwise, it would amount to diluting the norms fixed by DaudCommittee which has been directed to be strictly followed by theHigh Court vide its order dated 07.05.1999 in W.P. No.2556 of1999. The order dated 24.09.2002 passed by the Director ofAgricultural Marketing is contrary to the norms fixed by DaudCommittee. The order of the High Court holding that respondentNo.2 is entitled to large gala cannot be sustained and is liable tobe 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 1985-86 to 1994-95, the appellant had paid an amount of Rs.9844.10towards cess/market fee and Rs.34,000/- towards booking a gala.The cess/market fee paid by the appellant was less by Rs.155.90to the required norm of Rs.10,000/-. The market fee of Rs.9844.10paid by the appellant was in the time frame of 1985-86 to 1994-95and thus the appellant had not fulfilled the norms as per the DaudCommittee report and thus the appellant is falling under thecategory of “marginally falls short of the norms.” The appellantplaced reliance on the order of the High Court dated 07.05.1999passed by the High Court in W.P. No.2556 of 1999 whereby theDivision Bench has directed APMC to make allotment strictlyby adhering to the norms laid down by the learned Commissioner.In WP No.2556/1999, the High Court further directed that if anygala remains vacant after allotment in accordance with the norms,it will be open to APMC to allot to those who “marginally falls A

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Ashort of the norms” that have been laid down. The appellant havingpaid the market fee of Rs.9844.10 in the time frame of 1985-86to 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 aclaim for the large gala. Without considering the rival contentionsof the parties, the High Court was not right in holding thatBrespondent No.2 alone was entitled for the allotment of largeGala 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 TradersAssociation transferred to APMC in 2003, be it for lease premiumCor booking amount, the fact remains that he had paid onlyRs.32,725/- before the cut-off date for taking the gala. Though,he was allotted small gala, the same can be taken into account forholding that he falls within the category of “marginally falls shortof the norms” and is entitled to claim large gala. The findings ofDthe High Court that he is not eligible to claim large gala is notsustainable 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 firmconsisting of two partners. Both the partners obtained licencesin their individual capacities. There are no norms suggested byEDaud Committee making a partnership firm separately eligiblefor allotment of a Gala on the basis of the licence issued in thename of the individual partner, the amount paid by said individualpartner towards booking of the Gala, payment of cess made bysuch individual partner, etc. In the absence of specific norms forthe partnership firms, the norms framed for individual tradersFare applicable for the partnership firms. When the firm wasregistered in the year 2014 and it has not complied with any ofthe norms fixed by Daud Committee, the firm cannot seek forthe allotment of any gala, much less a large gala. Considering thesubmissions of both the parties, in the impugned judgment, theGHigh Court rightly held that the partnership firm consisting of‘RVD’ and ‘GVL’ is not separately entitled for allotment of anyseparate Gala. The partnership firm was registered only in theyear 2014 and the firm was neither in existence nor carried onany business prior to cut off date. The High Court rightly rejected H

the contention that the registration would relate back to the dateof execution of the partnership deed in the year 1987. The HighCourt rightly rejected the plea that the firm was eligible to applyfor 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 ofAgricultural Marketing dated 04.06.2014 and the findings of theHigh Court in the impugned judgment that M/s RVD is not eligibleto claim large gala, nothing survives for consideration inW.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 thefirm M/s RVD is not eligible to claim allotment of large gala, theHigh Court shall dispose of the said writ petition W.P.No.234 of2004 by passing appropriate orders. Respondent No.1 andrespondent No.2 are not eligible to claim allotment of large galaand the judgment of the High Court is liable to be set aside. Theappellants and ‘GS’ (who are marginally short of the norms) areeligible 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, insteadof adopting the lottery method, after fixing the market value inorder to fetch more revenue for APMC, offers should be invitedin sealed covers. In order to attract better offers, it is appropriatethat appellant should vacate the large Gala No.F-158 at theearliest. The counsel appearing for APMC has stated that thesmall Gala No.M-821 earlier allotted to the appellant is still vacant.APMC shall forthwith pass an order for re-allotting the said smallsized Gala No.M-821 to the appellant and the appellant shallvacate the large Gala No.F-158 before the end of September,2019. Considering the fact that APMC itself has fixed the marketvalue 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 sealedcover and accordingly, the large Gala No.F-158 be allotted to theone who is quoting the highest price. The impugned judgment ofthe High Court is set aside. Following directions issued- (i)Respondent No.2 is not entitled to claim allotment of large galaand findings of the High Court qua respondent No.2 is set aside; A

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[2019] 9 S.C.R.

A(ii) The findings of the High Court that the firm-’RVD’ is notentitled to claim allotment of large gala is affirmed; (iii) Thepossession of small Gala No.M-821 shall be restored back to theappellant and it shall vacate the large Gala No.F-158 on or before30.09.2019. The amount of Rs.27,69,500/- deposited by theappellant towards the large gala No.F-158 shall be refunded toBhim by APMC immediately within two weeks from the date of hisvacating; (iv) The upset value of large Gala No.F-158 shall befixed at Rs.55,00,000/- as fixed by the Director of AgriculturalMarketing, APMC and the same shall be notified by APMC bythe end of October, 2019. The four eligible claimants shall quoteCtheir offers for the large gala and shall submit sealed tenders toAPMC on or before 15.11.2019. The sealed tenders are to beopened by APMC in the presence of a higher level officerpreferably, the Joint Director of Marketing and in the presenceof all the four claimants or their representatives on 22.11.2019;and (v) The large Gala No.F-158 shall be allotted to the claimantDwho has quoted the highest price. Payment of the amount forallotment of large gala by the successful allottee shall be paid asper 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.EHanumant Murlidhar Gavade v. Mumbai AgriculturalProduce Market and Others (2012) 1 SCC 729 : [2011]16 SCR 229; M. Meenakshiand Others v. MetadinAgarwal (Dead) by LRs. and Others (2006) 7 SCC 470:[2006] 5 Suppl. SCR 505 ;Anita International v.FTungabadra Sugar Works Mazdoor Sangh and Others(2016) 9 SCC 44 : [2016] 6 SCR 635 – referred to.

Case Law Reference

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CIVIL APPELLATE JURISDICTION: Civil Appeal No 5350 of2019

From the Judgment and Order dated 21.11.2018 and 07.12.2018of the High Court of Judicature at Bombay in Writ Petition No. 10328 of2014

With

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, NishantRamakantrao Katneshwarkar, Rakesh K. Sharma, Nishant, ParthivK.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.

2. These appeals arise out of the judgment dated 21.11.2018 passedby the High Court of Bombay in WP No.8959 of 2014 and batch of writpetitions in and by which the High Court held that only the secondrespondent is eligible for the allotment of large gala and directed theappellant-M/s Hande Wavare & Co. to vacate the large Gala No.F-158in the Mumbai Agricultural Produce Marketing Committee, Vashi andfurther directing the Mumbai Agricultural Produce Marketing Committeeto 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 AgriculturalProduce Market Committee (APMC) on 25.09.2013. The brief factsgiving rise to these appeals are that the Government of Maharashtradecided to shift the wholesale fruit and vegetable market situated inCrawford Market to Vashi, Navi Mumbai in order to reduce thecongestion. With a view to facilitate traders dealing in wholesale tradingof fruit, APMC has constructed two types of galas/shops viz. small galasadmeasuring 300 sq. ft. (200 sq. ft. + 100 sq. ft. loft) and large galasadmeasuring 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 Judgeof the High Court as the Court Commissioner to suggest the norms to A

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Aallot the galas/shops in the newly constructed wholesale market at Vashito the traders so shifted. Learned Commissioner submitted three reportsstipulating norms for eligibility for two-time frames which were acceptedby the High Court. The first-time frame was 1985-86 to 1994-95 andsecond time frame was of 1991-92 to 1994-95. For proper appreciationof the contention regarding fulfilment of norms or otherwise, we haveBreferred to the relevant portion of the report of the Commissioner as tothe norms for entitlement of gala.

4. In the case of Hanumant Murlidhar Gavade v. MumbaiAgricultural Produce Market and Others(2012) 1 SCC 729, theSupreme Court had cancelled the allotment of the large gala bearingCNo.F-158 which was allotted in favour of Hanumant Murlidhar Gavadeas he was found not eligible for the large gala having made short paymentof cess and APMC was directed to allot only a small gala to HanumantMurlidhar Gavade. Consequently large gala bearing No.F-158 becamevacant. Several claimants made claims for the allotment of the said large Dgala/shop. The first respondent-a partnership firm by name M/sRamchandra Vitthal Dongre approached the High Court in a CivilApplication No.13 of 2012 in WP No.234 of 2004 for an early hearingseeking allotment of the said large gala. The High Court vide its orderdated 07.01.2013 disposed of the application acceding to the submissions

of the Agricultural Produce Market Committee-APMC that apart fromEthe applicant therein there are four other claimants and directed APMCto scrutinize the claim of all eligible claimants for the allotment of GalaNo.F-158.

5. Pursuant to the order of the High Court dated 07.01.2013, ameeting was convened by the Board of Directors of APMC onF07.03.2013 to conduct a lottery for allotment of Gala No.F-158 amongstfive traders viz. (i) M/s Ramchandra Vitthal Dongre-respondent No.1;(ii) Shri Habibullah Farhatullah-respondent No.2; (iii) M/s BhalchandraChintaman Lele (Shri Kedar Keshav Lele)-respondent No.3; (iv) ShriAshok Dhondiba Punde-respondent No.4; and (v) M/s. Hande WavareGand Company (Shri Kashinath Wavare)-appellant. On 26.08.2013, noticeswere issued to all the said five claimants with direction to participate inthe lottery proposed to be drawn on 19.09.2013. Out of the five claimantswho were allowed to participate in the lottery, only four claimantsparticipated in the said lottery drawn by APMC. Respondent No.1-M/sRamchandra V. Dongre participated in the said lottery system underH

protest. Habibullah Farhatullah-respondent No.2 refused to participatein the lottery. The appellant-M/s. Hande Wavare and Company wasselected in the said lottery for allotment of the said Gala No.F-158 andits value was fixed at Rs.28,77,000/- as per Government ready reckonerand was directed to pay Rs.27,69,500/- as consideration within one monthfor allotment of said gala by deducting the amount of Rs.1,07,500/- initiallydeposited by the appellant for the purpose of allotment of one small galaand APMC asked the appellant to return the small gala allotted to himback to APMC. The appellant M/s Hande Wavare & Co. deposited theamount of Rs.27,69,500/- to APMC on 07.01.2014. The appellant alsosurrendered its small gala to APMC.

6. The decision to conduct lottery was thereafter challenged bythe firm M/s Ramchandra Vitthal Dongre under Section 52B of theMaharashtra Agricultural Produce Marketing (Development andRegulation) Act, 1963 before respondent No.6-Director of AgriculturalMarketing. Respondent No.6 vide its order dated 04.06.2014 partlyallowed the appeal filed by Ramachandra V. Dongre and set aside theallotment by lottery to appellant M/s Hande Wavare & Co. and directedAPMC to allot said gala by inviting bids from five claimants in a sealedcover. Director, Marketing observed that the allotment of the large galato the appellant by way of a lottery by reducing the price of the said galafrom Rs.55,00,000/- as initially fixed value as per government rate toRs.28,77,000/- was not proper. The Director of Agricultural Marketingfurther observed that APMC should have considered the market rateand the value of the said gala from the government approved valuer andshould have called for sealed tenders from five claimants and ought tohave allotted the said gala to the claimant who is paying the maximumvalue. The Director held that APMC has not followed the statutorysystem and erred by allotting gala by lottery system to M/s Hande Wavareand Co. thereby causing financial loss to the APMC and thus, set asidethe allotment of large gala to the appellant.

7. Aggrieved by the cancellation of allotment, appellant KashinathWavare filed a Revision Application No.28 of 2014 under Section 43 ofMAPMC Act before the State Government. Challenging the said orderof Director of Agricultural Marketing, respondent No.1 also filed revisionin Revision Petition No.27 of 2014 under Section 52B of MAPMC Actbefore 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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Aallowed the revision petition filed by Kashinath Wavare and dismissedthe revision petition filed by respondent No.1-Ramachandra VitthalDongre and set aside the order of respondent No.6-Director ofAgricultural Marketing and confirmed the decision of APMC drawingthe 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 singleBparty but there were five claimants who were eligible for the allotmentof Gala No.F-158 and upheld the process of allotment undertaken byAPMC by confirming the decision of the Board of Directors to draw thelottery and determining the price of the Gala at Rs.28,77,000/- instead ofits 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 2014before the High Court and respondent No.2-Habibullah Farhatullah filedW.P. No.10328 of 2014. Challenging the allotment of large gala to theappellant and also challenging the lottery method adopted by APMC,DGanpat Shinde who was not considered eligible to participate in the lotteryfiled W.P. No.2090 of 2015 before the High Court. The appellantKashinath M. Wavare filed W.P.(ST) No.35978 of 2017 against the orderof the Director of Marketing dated 29.04.2015.

9. The High Court heard all the writ petitions together andEconsidered the claim of the claimants for allotment of large gala. By thecommon judgment dated 21.11.2018 allowed WP(C) No.10328/2014 filedby respondent No.2-Habibullah Farhatullah directing the APMC to allotthe said gala in his favour. The High Court held that respondent No.2-Habibullah fulfilled all the eligibility criteria formulated by Justice DaudCommittee. The High Court held that once the large Gala No.F-158Fbecame available by virtue of the judgment passed in HanumantMurlidhar Gavade,respondent No.2 ought to have been allotted thelarge Gala in compliance with the order dated 24.09.2002 passed by theDirector of Agricultural Marketing in Appeal No.34/2002 which wasfiled by respondent No.2. The High Court set aside the order passed byGthe Hon’ble Minister for Co-operation, Marketing and Textile by observingthat “APMC thus could not have drawn lottery to consider the claim ofother four claimants under the guise of implementing the order dated07.05.1999 passed by the Division Bench in WP(C) No.2556/1999 inthe case of Shantaram Y. Bhagat v. The Mumbai Agricultural ProduceMarket Committee and another”. Aggrieved, the appellant-M/s. HandeH

Wavare and Co. has filed appeal before the Supreme Court. TheSupreme Court vide its order dated 11.01.2019 issued notice and directedthe parties to maintain status quo.

10. Mr. Uday B. Dube, learned counsel appearing for the appellantsubmitted that APMC is having only one large Gala No.F-158 vacantfor which claim is made by traders like appellant, who otherwise fulfilthe guidelines fixed by Daud Committee but were “marginally fall shortof the norms”. It was submitted that as per the order of the High Courtdated 07.05.1999 in W.P.No.2556 of 1999, Board of Directors of APMChas rightly taken the decision to conduct lottery amongst the eligibleclaimants and the same ought not to have been set aside by the AppellateAuthority-Director of Agricultural Marketing and the High Court. Thelearned counsel further submitted that respondent No.2-HabibullahFarhatullah has not booked the gala in his name nor paid the amount andis not entitled for allotment of a large gala as he has not paid the amountfor booking the gala.

11. It was submitted that Farhatullah Haji Barkatullah-father ofrespondent No.2- had initially deposited the amount seeking allotmentfor three galas and after allotment of two large galas by APMC, insteadof taking refund of the amount deposited for the third gala, father ofrespondent No.2 requested APMC to transfer the said amount depositedby him in the account of his son-respondent No.2. It was contendedthat the High Court ought to have independently considered the claim ofrespondent No.2 and recorded a finding regarding the eligibility ofrespondent No.2-Habibullah Farhatullah to get a large gala on meritsinstead of relying upon the technical ground raised by respondent No.2that APMC did not challenge the order passed by the Director ofAgricultural Marketing dated 24.09.2002. The learned counsel furthersubmitted that the rights of the third parties i.e. the rights of the appellantand others cannot be decided on the ground of non-challenge by APMCespecially when it was demonstrated by the appellant as to howrespondent No.2 was not entitled for any large gala. It was urged thatthe appellant and other claimants were not parties before the Directorof Agricultural Marketing and hence, the said order dated 24.09.2002cannot be said to be binding on the appellant and other traders.

12. Mr. Sandeep Sudhakar Deshmukh, learned counsel appearingfor respondent No.1-M/s Ramchandra Vitthal Dongre reiterated that AB

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Athe eligibility of partnership firm of the M/s Ramchandra Vitthal Dongrehad never been an issue and respondent No.1-firm has all along beenfighting for allotment of second large gala and the eligibility of which,was never disputed in other proceedings. The learned counsel submittedthat the norms fixed by Daud Committee do not expressly prohibit theclaim of respondent No.1-firm and the High Court erred in saying thatBthe firm M/s Ramachandra Dongre is not eligible to claim allotment oflarge gala.

13. Mr. Vinay Navare, learned senior counsel appearing on behalfof the appellant Ganpat Sabaji Shinde in SLP(C) Nos.4927-31 of 2019submitted that Ganpat Sabaji Shinde has deposited an amount ofCRs.35,725/- with APMC during the period between 1987-1991 forallotment of large gala which amount was more than Rs.34,000/- as pernorms. It was submitted that though APMC claims that an amount ofRs.32,725/- has been made by him, further amount of Rs.3,000/- hasbeen paid by him to the trader’s association which was transferred toDAPMC and, therefore, Ganpat Sabaji Shinde satisfies the norms fixedby Daud Committee and APMC erred in excluding Ganpat Sabaji Shindefrom making a claim to the large Gala No.F-158.

14. Mr. Huzefa Ahmadi, learned senior counsel appearing on behalfof respondent No.2 submitted that Director of Agricultural MarketingEvide its order dated 24.09.2002 allowed the transfer of the booking amountin the name of father of respondent No.2 to his name thereby, entitlinghim for a large gala. It was further submitted that the order dated24.09.2002 has not been challenged and binding on APMC and, therefore,the High Court rightly held that the right of respondent No.2 has beencrystallised and, therefore, respondent No.2 was the only eligible claimantFfor allotment of the large Gala No.F-158. The learned senior counselfurther submitted that in view of eligibility of respondent No.2 for largegala, APMC could not have considered the case of other claimants underthe alleged category of “marginally falling short”. It was submitted thattaking note of inconsistent stand taken by APMC in various proceedings,Gthe High Court rightly set aside the order of the Hon’ble Minister anddirected allotment of large Gala No.F-158 to respondent No.2.

15. Taking us through the materials, Mr. Rakesh K. Sharma, learnedcounsel for respondent No.5-APMC submitted that respondent No.2-Habibulla Farhatullah did not pay any booking amount and under theHnorms suggested by Daud Committee, there was no scope for transfer

of booking of one claimant to the name of any other person and theorder dated 24.09.2002 passed by the Director of Agricultural Marketingin the appeal filed by the respondent No.2 is contrary to the norms fixedby Daud Committee and the orders passed by the High Court and theSupreme Court. It was urged that respondent No.2 himself did not payany booking amount and therefore, the question of allotting any largegala to respondent No.2 did not arise. It was also contended thatrespondent No.2–Habibullah Farhatullah did not participate in the lotteryon the pretext that he had the order dated 24.09.2002 in his favour passedby Director of Agricultural Marketing. The learned counsel furthersubmitted that since there were more than one claimants, Board ofDirectors of APMC had taken the decision to conduct lottery amongstthe claimants who were “marginally fall short of the norms” incompliance with the norms fixed by Daud Committee and the Hon’bleMinister rightly affirmed the same. It was submitted that by placingreliance upon the order dated 24.09.2002 passed by the Director, theHigh Court erred in holding that respondent No.2 is eligible for allotmentof large gala and the impugned order is liable to be set aside.

16. Upon consideration of the submissions and impugned judgmentand other materials on record, the following points arise for determinationin these appeals:-

(i) When respondent No.2–Habibullah Farhatullah himself has notbooked the large gala before the cut-off date nor paid the bookingamount, whether the High Court was right in saying that onlysecond respondent is entitled for allotment of large gala by gettingthe transfer of the booking amount from his father to his name?

(ii) Dehors the norms fixed by Daud Committee, whether the HighCourt was right in placing reliance only upon the order of Director,Marketing dated 24.09.2002 to hold that the second respondentis entitled for allotment of large gala?

(iii) Whether the High Court was right in saying that APMC couldnot have considered the case of other claimants under thecategory of “marginally fall short of the norms” and thatdrawing of lottery was without jurisdiction?

17. Norms laid down by Justice Daud Committee:- In theyear 1987-88, APMC had decided to shift all the subsidiary market offruits and vegetables from Mumbai to Vashi, Navi Mumbai. In the year A

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A1995, the construction of the said market was completed. In view of thedispute between traders in respect of the allotment of galas/shops, severalpetitions came to be filed before the High Court. On 26.04.1998, theHigh Court appointed Shri Justice S.M. Daud as a Court Commissionerto suggest the norms to allot the galas/shops in the newly constructedwholesale market at Vashi. The learned Commissioner submitted threeBreports 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 Committeeprovided for eligibility for two-time frames. The first-time frame wasC1985-86 to 1994-95 and the second time frame was of 1991-92 to1994-95.

18. What is relevant for these appeals is the norms fixed by learnedCommissioner for “Fruit Market” which has 1029 galas viz. 732 largegalas and 297 small galas. As earlier mentioned, the learned CommissionerDsubmitted three reports inter-alia stipulating the norms for allotment ofgalas/shops in the newly constructed wholesale market. The first timeframe 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 forretaining the third, the claimant would have to pay the market pricewithin 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 whocame into the business from 1991-92 to 1994-95 had booked the galasup to 31.12.1993, the second time frame 1991-92 to 1994-95 was madeapplicable. The relevant recommendations of the Committee read asunder:-F

“Time frame 1985-86 to 1994-95. Booking effected.

The claimant has to establish doing of five years business asreflected in payment of market fee irrespective of quantum thereof.He must further show that he held an APMC licence for at leastGtwo years in the above ten years period as also that he did businessin one of the years 1995-96 or 1996-97 – this again to beestablished by proof of cess paid. The cess – space nexuswill be as under:- No one to get more than three large galas and for retaining thethird, the person retaining, will have to pay the market price within ninetydays of the acceptance of the norm by the High Court.

The next category is of those who have booked galas up to31.12.1993 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 thiscategory will be those who have held APMC licences for at least threeyears, have done business for three years as reflected in the payment ofmarket fee irrespective of quantum and also show that they were doingbusiness in 1995-96 or 1996-97 by proof of having paid market fee abouthaving done business either in 1995-96 or 1996-97. The cess-spacenexus will be thus:-

20. The High Court vide its order dated 07.05.1999 in Writ PetitionNo.2556 of 1999 directed APMC to make allotment strictly by adheringto the norms laid down by Daud Committee. In the said order, the HighCourt further issued directions that in case any galas remaining in balanceafter allotment in accordance with norms, APMC to allot the same tothose who “marginally fall short of the norms” that have been laiddown. The said order of the High Court reads as under:- “1. Pursuant to the orders passed by this Court Justice Daud wasappointed for laying down norms for the purpose of allotment ofGalas in the Agricultural Produce market Committee’s market at A

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AVashi, New Bombay, Justice Daud has accordingly passed hisawards laying down the norms. APMC is directed to makeallotment strictly by adhering to the norms laid down by JusticeDaud. If any Galas remain in balance after allotment in accordancewith the norms it will be open to theAPMC to allot the same tothose who marginally fall short of the norms that have been laidBdown. The orders of allotment as also the orders refusing allotmentwill be treated as orders having been passed under theMaharashtra Agriculture Produce Marketing (Regulation) Act,1963 and the same will be appealable under Section 52B of theAct. It goes without saying that the orders granting or refusing toCallot galas will be supported by reasons.” [underlining added]

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In Hanumant Murlidhar, the Supreme Court has also reiteratedthat the allotment should be strictly in accordance with the norms fixedby Daud Committee.

21. As pointed out earlier, after decision in Hanumant Murlidhar,Dlarge Gala No.F-158 had fallen vacant. Stand of APMC is that as perthe meeting of Board of Directors held on 07.03.2013, it was inter-aliaresolved that allotment of Gala No.F-158 be done amongst the five eligibleclaimants viz. (i) M/s Ramchandra V. Dongre; (ii) Mr. HabibullahFarhahtullah; (iii) M/s Bhalchandra Chintaman Lele (Mr. Kedar KeshavELele); (iv) Mr. Ashok Dhondiba Punde; and (v) M/s Hande Wavare &Co. by drawing lottery. In the decision taken by the Board of Directorsin its meeting held on 26.04.2013, allotment of the said gala by drawinglottery was confirmed. As discussed earlier, allotment of Gala No.F-158to the appellant-M/s Hande Wavare & Co. has led to the series oflitigations.F

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22. In the above facts and circumstances, it is to be consideredwhether the High Court was right in holding that respondent No.2-Habibullah Farhatullah is entitled for allotment of large gala withoutmaking booking of large gala before 31.12.1993 and by getting transferredbooking amount of his father in his name after acceptance of new normsGby the High Court.

23. Claim of respondent No.2-Habibullah Farhatullah:-Respondent No.2-Habibullah applied for licence in the year 1991-1992in his own name and obtained licence in the year 1992. Admittedly, respondent No.2 does not fall within the first-time frame 1985-86 to1994-95. Respondent No.2 himself did not pay any amount for bookingof gala. On 04.01.1999, father of respondent No.2- Farhatullah HajiBarkatullah paid an amount of Rs.1,32,000/- as booking amount for threelarge galas. As per norms fixed by the learned Commissioner forallotment of three large galas, total cess payable is above Rs.3,00,000/-. 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/- forbooking of two large galas initially and that his son Habibullah startedthe business of fruits trade since 1991-1992 and that he asked for bookingof one large gala in the name of his son viz. respondent No.2. However,APMC did not accept the booking in the name of his son and therefore,Farhatullah Haji Barkatullah- father of respondent No.2 booked the thirdgala in his own name. In the said letter, father of respondent No.2 hasalso stated that the third gala booked in his name i.e. in the name offather of respondent No.2 may be transferred to his son-respondentNo.2 and also the remaining amount be transferred to his son-respondentNo.2 and that he may be allotted a large gala. Be it noted, respondentNo.2 himself did not make any application for booking of any gala nordid he pay any amount for booking the gala. It is also pertinent to notethat as per the norms suggested by Daud Committee, there was noscope of transfer of booking of gala and the booking amount from oneperson 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 whichwas not accepted by respondent No.2. Another application filed byrespondent No.2 for allotment of large gala was rejected on 02.05.2001against which respondent No.2 filed an Appeal No.34/2002 before theDirector of Agricultural Marketing. APMC opposed the claim ofrespondent No.2 contending that respondent No.2 did not pay any bookingamount in his name or in the name of others and therefore, the questionof allotment of any large gala to him did not arise. APMC also took thestand that as per the norms fixed by the learned Commissioner, therewas no scope of transfer of booking of gala and the booking amountfrom one person to another. By the order dated 24.09.2002, Director ofAgricultural Marketing allowed the appeal preferred by respondent No.2and directed APMC to allot large gala to him by pointing out that in A

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Afourteen other cases, booking of galas made by one person weretransferred to other persons.

25. While allowing the Appeal No.34/2002 filed by respondentNo.2 (order dated 24.09.2002), the Director of Agricultural Marketingcalled for report from the Joint Director of Marketing to ascertainBwhether there were other cases of allowingtransfer of booking fromone person’s name to the other in allotting the galas in the name oftransferee. By referring to the report of the Joint Director of Marketingand observing that APMC in fourteen cases has allowed the transfer ofthe booking of the galas in the name of others and allotted the galas tosuch transferees, in Appeal No.34/2002, Director of AgriculturalCMarketing observed as under:- “From the report of Shri Kokare, it is clear that in 14 cases whichare on record the booking was done in the names of some otherpersons and the Respondent has allowed the transfer of thebookings of the galas in the name of others and further allottedDthe galas to such transferees. This has not been denied by theRespondent Market Committee. Considering the fact that theMarket Committee has allowed transfers in large number of cases,there is no justification for not allowing transfer of the booking inthe name of the Appellant where the booking was in the name ofEhis father and the transfer was requested in the name of the soni.e. present Appellant………. This is a glaring case of injusticeby the Respondent committee against the Appellant. In view ofthis, it would be in the interest of justice to allow the appeal of theAppellant and give directions to the agricultural Produce MarketCommittee, Mumbai to allot one large gala to theFAppellant……….”

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26. In the impugned judgment, the High Court held that the rightof respondent No.2 to get large gala has been crystallised by the aboveorder dated 24.09.2002 of Director of Agricultural Marketing and whenthe large Gala No.F-158 became available, APMC ought to have allottedGthe same to respondent No.2. The High Court held that APMC oughtnot to have drawn lottery to consider the claim of four other claimantswho fall “marginally falls short of the norms” fixed by the DaudCommittee under the guise of implementing the order dated 07.05.1999passed by the Division Bench in Writ Petition No.2556 of 1999. TheHHigh Court mainly relied upon the order of Director of Agricultural Marketing dated 24.09.2002 and observed that the said order has attainedfinality and is binding on APMC and thus directed APMC to allot largegala to respondent No.2 on first priority.

27. Respondent No.2 heavily relies upon the order of Director ofAgricultural Marketing dated 24.09.2002 allowing the transfer of bookingamount from the name of his father to his name and thereby entitlinghim for a large gala which was also accepted by the High Court. Beforeconsidering the effect of the order dated 24.09.2002, let us evaluate theeligibility of respondent No.2-Habibullah as per the norms laid down byDaud Committee. As per the norms, no trader who has not paid thebooking amount can get a large gala or part thereof or more than onesmall gala. As pointed out earlier, Habibullah himself has neither madethe application before the cut-off date nor paid the booking amount; theamount paid by father of respondent No.2 was sought to be transferredto respondent No.2. Transfer of amount by a person who booked thegala to another person is not permissible as per the norms fixed by DaudCommittee.

28. As pointed out earlier, the Director, Marketing held that thesecond respondent is entitled for allotment of large gala mainly on theground that in few other cases, gala booked in the name of one personhas been transferred to another person. In the order dated 24.09.2002,the Director, Marketing has pointed out such instances where bookingof gala in the name of one person has been transferred to other personsand observed that the second respondent cannot be discriminated. Merelybecause, in other cases, gala booked in the name of one person istransferred in the name of another person, it cannot be the reason toadopt the same irregularity in the case of the second respondent also.As held in State of Bihar v. Upendra Narayan Singh and others(2009)5 SCC 65, Article 14 of the Constitution of India is a positive conceptand it cannot be enforced by a citizen or a court in a negative manner. Ifany illegality or irregularity has been committed in favour of any individualor group of individual or wrong order has been passed by a forum, thesame illegality or irregularity cannot be perpetuated on the ground ofdiscrimination or hardship. Merely because, in few other cases, galabooked in the name of one person was transferred in the name of otherpersons in deviation from the norms fixed by Daud Committee, in ourconsidered view, the Director, Marketing was not right in holding thatthe second respondent is entitled for allotment of large gala by transfer AB

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Aof booking of large gala from his father-Farhatullah Haji Barkatullah tohis name.

29. Father of respondent No.2 though paid the booking amount ofRs.1,32,000/-, he has not paid the requisite cess amount to be eligible forthe third large gala. Where report of the Daud Committee specificallyBfixed the norms for the traders who have paid the booking amount andtraders who have not paid the booking amount distinctly, the norms cannotbe compromised or diluted by allowing the traders to get the bookingamount of one trader be transferred to another thereby, enabling him toclaim 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.2Chad neither booked the gala before the cut-off date nor paid the amountand the High Court proceeded hold as to the entitlement of respondentNo.2 mainly on the basis of the order dated 24.09.2002. RespondentNo.2 cannot make a claim for allotment of Gala No.F-158 dehors thenorms fixed by Daud Committee or otherwise, it would amount to dilutingDthe norms fixed by Daud Committee which has been directed to bestrictly followed by the High Court vide its order dated 07.05.1999 inW.P. No.2556 of 1999.

30. The order of the Director of Agricultural Marketing in AppealNo.34/2002 has not been challenged by APMC. In this context, Mr.EHuzefa Ahmadi, learned senior counsel appearing for respondent No.2submitted that the order dated 24.09.2002 has become final and thesame is binding on APMC. Placing reliance upon M. MeenakshiandOthers v. Metadin Agarwal (Dead) by Lrs. and Others(2006) 7 SCC470, it was contended that unless the order passed by competent authorityis challenged and declared as “not valid”, its correctness cannot beFconsidered in collateral proceedings. In M. Meenakshi, it was held asunder:- “18. It is a well-settled principle of law that even a void order isrequired to be set aside by a competent court of law inasmuch asan order may be void in respect of one person but may be valid inGrespect of another. A void order is necessarily not non est. Anorder cannot be declared to be void in a collateral proceeding andthat too in the absence of the authorities who were the authorsthereof. The orders passed by the authorities were not found tobe wholly without jurisdiction. They were not, thus, nullities.”

31. Placing reliance upon Anita International v. TungabadraSugar Works Mazdoor Sangh and Others(2016) 9 SCC 44, it wassubmitted that the order passed by the competent court/quasi-judicialauthority like the Director of Agricultural Marketing has the force oflaw until the same is set aside by a court of competent jurisdiction.

32. There is no quarrel over the proposition laid down in the abovedecisions. But in the peculiar facts and circumstances of the presentcase, in our view, respondent No.2 cannot base his entitlement forallotment of large gala solely on the basis of the order dated 24.09.2002of Director of Agricultural Marketing, dehors the norms fixed by DaudCommittee which were directed to be strictly complied with by the HighCourt. In the order dated 07.05.1999 in W.P. No.2556 of 1999, when theHigh Court has directed APMC to make allotment of galas strictly byadhering to the norms laid down by Daud Committee, the order of Directorof Agricultural Marketing dated 24.09.2002 cannot prevail over the orderof the High Court. While so, the High Court, in our view, erred in holdingthat by the order of Director of Agricultural Marketing dated 24.09.2002,right of respondent No.2 to get large gala has been crystallised and thatAPMC ought to have allotted the same to respondent No.2 instead ofconducting lottery amongst all the eligible claimants. The High Courterred in relying upon the above order of Director of Agricultural Marketingand directing APMC to allot the said large gala to respondent No.2 withoutkeeping in view the norms fixed by the Daud Committee. The orderdated 24.09.2002 passed by the Director of Agricultural Marketing iscontrary to the norms fixed by Daud Committee. Dehors the normsfixed by Daud Committee which has been directed to be strictly compliedwith (vide order dated 07.05.1999 in WP No.2556/1999), respondentNo.2 cannot claim entitlement for the large gala based on the said orderand the order of the High Court holding that respondent No.2 is entitledto large gala cannot be sustained and is liable to be set aside quarespondent No.2.

33. Claim of Appellant M/s Hande Wavare & Co. (ShriKashinath Wavare):- Let us now consider the eligibility of the appellant.As pointed out earlier, as per the resolution of the Board of Directorsheld on 07.03.2013, appellant M/s Hande Wavare & Co., respondentNo.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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ACo. was allotted a small size Gala bearing No.M-821. As per the normssuggested by the learned Commissioner, the wholesale broker in fruitsection who was falling in the time frame of 1985-86 to 1994-95 wasentitled for large gala on fulfillment of the conditions viz. (i) He shouldhave booked gala by paying booking amount upto Rs.34,000/- beforeclosing date; (ii) He should hold licence issued by the APMC for at leastBtwo years between the year 1985-86 to 1994-95; (iii) He should havedone 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 or1996-97 by paying cess; and (v) For entitlement of large gala, he shouldhave paid cess between Rs.10,001/- to Rs.90,000/- in the years 1985-86Cto 1994-95. According to the appellant, he was satisfying all the conditionsexcept condition No.5. During the period between 1985-86 to 1994-95,the appellant had paid an amount of Rs.9844.10 towards cess/marketfee and Rs.34,000/- towards booking a gala. The cess/market fee paidby 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 timeDframe of 1985-86 to 1994-95 and thus the appellant had not fulfilled thenorms as per the Daud Committee report and thus the appellant is fallingunder the category of “marginally falls short of the norms.”

34. The appellant placed reliance on the order of the High Courtdated 07.05.1999 passed by the High Court in W.P. No.2556 of 1999Ewhereby the Division Bench has directed APMC to make allotmentstrictly by adhering to the norms laid down by the learned Commissioner.As pointed out earlier, in WP No.2556/1999, the High Court furtherdirected that if any gala remains vacant after allotment in accordancewith the norms, it will be open to APMC to allot to those who “marginallyFfalls short of the norms” that have been laid down. The appellant havingpaid 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 “marginallyfalls short of the norms” and is entitled to make a claim for the largegala. In our view, without considering the rival contentions of the parties,the High Court was not right in holding that respondent No.2 alone wasGentitled for the allotment of large Gala No.F-158.

35. Claim of Ganpat Sabaji Shinde: Ganpat Sabaji Shinde hasbeen allotted a small Gala No.M-748 in 1999. According to the appellantGanpat Shinde, he had deposited an amount of Rs.32,725/- with APMCduring the period between 1987 and 1991 for allotment of large gala. ItH

is in dispute between the parties whether the appellant Ganpat Shindehad deposited a sum of Rs.35,725/- or Rs.32,725/- prior to 31.12.1993with APMC. Appellant Ganpat Shinde alleges that he has depositedRs.32,725/- with APMC and he had paid an amount of Rs.3,000/- to theTrader’s Association which according to him was transferred to APMCaggregating to the total of Rs.35,725/- which is more than the requiredamount of Rs.34,000/-. According to APMC, the records of APMC didnot show any receipt of Rs.35,725/- before 31.12.1993. According toAPMC, the amount of Rs.3,000/- paid by Ganpat Shinde to TradersAssociation was received by APMC only in the year 2003 and the samewas adjusted towards the lease premium of small gala No.748 allotted.APMC rejected the claim of Ganpat Shinde by order dated 17.02.2010which was challenged by Ganpat Shinde in Appeal No.14 of 2010 underSection 52B of APMC Act. By the order dated 09.11.2011, Director ofAgricultural Marketing set aside the order dated 17.02.2010 and directedAPMC to afford an opportunity of hearing to Ganpat Shinde and takeappropriate decision on merits.

36. Mr. Vinay Navare, learned senior counsel appearing forappellant Ganpat Sabaji Shinde submitted that though appellant GanpatShinde sent various letters requesting for allotment of Gala No.F-158,the same was not considered and he was informed by APMC (letterdated 19.10.2013) that Gala No.F-158 has been allotted by lottery systemand therefore, his request for allotment of large gala cannot be considered.On the other hand, by its order dated 26.11.2014, APMC agreed to allotsmall 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 thedecision 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 thecommunication dated 26.11.2014, Ganpat Shinde was asked to payRs.19,66,517/- as per ready reckoner. Challenging the order of the Boardof Directors and the order dated 26.11.2014, Ganpat Shinde filed AppealNo.2/2015 before the Director, Marketing. According to APMC, sinceGanpat Shinde has not given his consent for allotment of additional smallgala and to the resolution of the Board of Administrators held on14.01.2015, it was resolved to cancel the allotment of small size GalaNo.M-745 to Ganpat Shinde and the same was informed to Ganpat Shindeby letter dated 18.02.2015. Appellant Ganpat Shinde challenged theBoard’s resolution dated 14.01.2015 in Appeal No. 12 of 2015. Director A

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Aof Marketing had taken up Appeal No.2 of 2015 and 12 of 2015 togetherand the appeals were allowed by order dated 29.04.2015 whereby theDirector held that Ganpat Shinde is entitled for large gala. Challengingthe order of the Director, Marketing dated 29.04.2015 holding GanpatShinde entitled for large gala, Kashinath Wavare filed writ petition inWP(Stamp) No.35978 of 2017. Contention of Ganpat Shinde is thatBKashinath Wavare has no locus standi to challenge the order passed bythe Director, Marketing and the eligibility of the appellant for large gala.

37. Insofar as the case of Ganpat Shinde is concerned, the HighCourt held that “there was a dispute between the parties whether theappellant had deposited a sum of Rs.35,725/- or Rs.32,725/- priorCto 31.12.1993 with APMC”. The High Court also observed that therewas a dispute that out of Rs.35,725/-, a sum of Rs.3,000/- was adjustedtowards the lease of Gala No.M-748 and therefore, the High Courtrejected the claim of appellant Ganpat Shinde that he had depositedmore than Rs.34,000/- towards the allotment of large gala prior to theDcut-off date. Though, appellant Ganpat Shinde claims that amount ofRs.35,725/- has been paid only for allotment of large gala, APMC claimsthat the same is not borne by record namely letter dated 03.07.2003 ofAPMC which reads as under:- “…..Subject to terms and conditions of the Gala allotment, amountEof Rs.35,725/- which you have been paid till date is transferred toGala No.M-748. …….”

38. The High Court held that since Ganpat Shinde had paid only asum of Rs.32,725/- towards booking amount and was accordingly allotteda small Gala No.M-748 in the year 1999 and that he is not entitled toFclaim allotment of large gala. The High Court was not right in holdingthat Ganpat Shinde had paid only Rs.32,725/-. It is pertinent to note thatin the above communication dated 03.07.2003, APMC stated about thereceipt of the payment of Rs.35,725/-. As rightly contended by seniorcounsel Mr. Vinay Navare, APMC for the first time by its resolutiondated 17.02.2010 stated that Ganpat Shinde has paid registration bookingGamount of Rs.32,725/- and that Ganpat Shinde does not satisfy the normsfixed by Daud Committee requiring deposit of an amount ofRs.34,000/-.

39. Contention of APMC is that its records show Rs.32,725/- inthe name of Ganpat Shinde and the sum of Rs.3,000/- was received inH

the year 2003 from the Traders Association and the same was consideredtowards the lease premium of Gala No. M-748 allotted vide letter dated29.02.1999. 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 isimmaterial whether it is adjusted towards the lease amount or not andtherefore, Ganpat Shinde has neither satisfied the eligibility norms norsatisfied the norms fixed by Daud Committee.

40. Admittedly, amount of Rs.3,000/- paid by Ganpat Shinde inthe account of Traders Association was transferred to the account ofAPMC only in the year 2003. But APMC is not right in saying that thesaid amount of Rs.3,000/- was adjusted towards the lease premiumamount. In the reply to the information sought under Right to InformationAct, APMC has stated that the amounts are not adjusted to lease premiumbut they are transferred towards booking amount. The reply to RTI areas under:- “Market Committee did not register the Gala in the Fruit andVegetable Division in personal name of association. The concernedassociation in the Fruit and Vegetable Market Compound depositedthe amounts of their members to the Market Committee.Association submitted recommendation letters in the name of theirmembers to the Market Committee. The amounts intimated bythe association were transferred on the members towards bookingamount. These amounts are not towards lease premium, but theyare transferred towards booking amounts. The Market Committeehad not prepared any rules for the same.”

The amount of Rs.3,000/- paid by Ganpat Shinde to the TradersAssociation transferred to APMC in 2003, be it for lease premium orbooking amount, the fact remains that Ganpat Shinde has paid onlyRs.32,725/- before the cut-off date for taking the gala. Though, GanpatShinde was allotted small gala, the same can be taken into account forholding that Ganpat Shinde falls within the category of “marginally fallsshort of the norms” and he is entitled to claim large gala. The findingsof the High Court that Ganpat Shinde is not eligible to claim large gala isnot sustainable and the same is liable to be set aside.

41. M/s Ramchandra Vitthal Dongre: M/s Ramchandra VitthalDongre is a registered partnership firm consisting of two partnersrespondent No.1-Ramchandra Vitthal Dongre and G.V. Lohot. According A

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Ato the appellant-Ramchandra Vitthal Dongre, the firm applied forpartnership registration on 12.12.2005 and was registered on 31.05.2014.Ramchandra Vitthal Dongre paid substantial market fees for carryingon the business of wholesale fruit distributor. He paid booking amount ofRs.10,000/- on 04.06.1988 and Rs.34,000/- on 09.09.1991. G.V. Lohothad paid Rs.32,725/- on 09.09.1991. Both the partners have obtainedBlicences in their individual capacities. Respondent No.1-RamchandraVitthal Dongre was allotted a large Gala No.G-247 on 28.09.1995 and isin possession of the same in his individual capacity. Ramchandra Dongrehad 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 ofCallotment of two large Galas in favour of M/s Indian Fruit Co.,Ramchandra Dongre was allotted a second large Gala No.F-124 on09.05.2001 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 Section52B of the Act was allowed by the Director of Agricultural Marketingvide order dated 13.12.2001 and the allotment of second large gala No.F-D124 in favour of Ramchandra Vitthal Dongre was cancelled. Againstwhich, Ramchandra Vitthal Dongre filed writ petition W.P.No.234 of2004. In the year 2012, when Gala No.F-158 became vacant,Ramchandra Dongre filed a civil application in the said writ petition filedby him seeking an early hearing. The High Court vide its order datedE07.01.2013 disposed of the application accepting the submissions ofAPMC that apart from Ramchandra Vitthal Dongre, there are four otherclaimants and directed APMC to scrutinize the claim of all eligibleclaimants for allotment of Gala No.F-158.

42. Insofaras M/s Ramchandra Vitthal Dongre is concerned, theFquestion falling for consideration is whether the firm-M/s RamchandraVitthal Dongre has complied with the norms laid down by DaudCommittee and whether the firm is eligible for the allotment of largeGala.

43. The contention of Ramchandra Vitthal Dongre is that theGbooking amount paid on behalf of M/s Ramchandra Vitthal Dongre isRs.76,725/- (amount paid for individual booking amounts paid by thepartners in their own individual name) and is therefore, eligible forallotment of said large gala. It is contended that the allotment of GalaNo.F-124 made by APMC, their stand taken in three affidavits filed by H

APMC in Writ Petition No.4101 of 2001, Writ Petition No.3194 of 1999and Writ Petition(Stamp) No.10993 of 2002 numbered as Writ PetitionNo.234 of 2004 prove that the firm is eligible for a large Gala.

44. The contention of Ramchandra Vitthal Dongre is that hispartnership firm-M/s Ramchandra Vitthal Dongre satisfies the normslaid down by the learned Commissioner. The said partnership firm consistsof two partners who hold licences given by APMC. Admittedly, the firmgot registered only in the year 2014. One partner, Ramchandra VitthalDongre has been carrying on the business in his individual capacity andhas been earlier allotted a large gala. The other partner G.V. Lohot isalso carrying on business in his own individual name.

45. Claim of Ramchandra Vitthal Dongre is that the firm had paidthe booking amount of Rs.76,725/- which is denied by APMC. Thecontention of APMC is that no booking has been made in the name ofthe partnership firm, no cess amount is paid and no licence was obtainedby it. According to APMC, Ramchandra Vitthal Dongre had paidRs.10,000/- on 04.06.1988 and Rs.34,000/- on 09.09.1991. G.V. Lohotwas not doing any business till the year 1991. G.V. Lohot started businessby taking licence in his name for the year 1991-92 and Rs.32,725/- waspaid by him on 09.09.1991 towards booking of gala. The said amountwas paid by Ramchandra Vitthal Dongre and G.V. Lohot in their individualcapacities and not by the firm. As the booking amount was paid in theirindividual capacity, Ramchandra Vitthal Dongre was allotted Gala No.G-247 which was a large Gala. Registered Deed of Sub-lease dated29.10.1999 was also executed in the name of Ramchandra Vitthal Dongrein his individual capacity. According to APMC, Ramchandra VitthalDongre had paid booking amount and cess only in his individual capacityand was accordingly allotted a large gala and his claim for second galain the name of the firm is not sustainable. Insofar as G.V. Lohot isconcerned, he was issued a licence by APMC on 30.07.1972 which wasrenewed from time to time upto 2014 and said G.V. Lohot is also carryingon the business in his individual name only.

46. Insofar as three affidavits filed by APMC in Writ PetitionNo.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 whichreliance was placed by M/s Ramchandra Vitthal Dongre is concerned, A

B

C

D

EF

G

Acontention of APMC is that those three affidavits were in respect of theclaim of Ramchandra Vitthal Dongre as proprietor and not by M/sRamchandra Vitthal Dongre, the partnership firm and thus, no relianceon those three affidavits can be placed by M/s Ramchandra VitthalDongre. It is stated that APMC never admitted the claim of the firm.

B47. There are no norms suggested by Daud Committee making apartnership firm separately eligible for allotment of a Gala on the basisof the licence issued in the name of the individual partner, the amountpaid by said individual partner towards booking of the Gala, payment ofcess made by such individual partner, etc. In the absence of specificnorms for the partnership firms, the norms framed for individual tradersCare applicable for the partnership firms. When the firm was registeredin the year 2014 and it has not complied with any of the norms fixed byDaud 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 partnershipDfirm consisting of Ramchandra Vitthal Dongre and G.V. Lohot is notseparately entitled for allotment of any separate Gala. Based on thedocuments of the individual partners, the relevant findings of the HighCourt are as under:- “In my view, the license obtained by an individual partner, theEbooking amount, if any, paid by such individual partner, paymentof cess, if any, paid by such individual partner or other requirementswhich individual partner is required to be fulfilled as per the normssuggested by the learned Commissioner for being eligible toallotment of such gala cannot be utilised by the partnership firmconsisting of such partners to make such firm eligible for allotmentFof any gala under the said norms suggested by the learnedCommissioner………… In my view, the documents relied uponby the petitioner for seeking allotment of the said gala No.F-158which were the documents of individual partner of the petitionercould not be used and/or relied upon for the purpose of seekingGallotment of the said gala No.F-158 in the name of the saidpartnership firm.”

The contention of APMC is that Ramchandra Dongre has beendoing business and paid money only in his individual capacity. As pointedout earlier, G.V. Lohot started business by taking licence in his name forHthe year 1991-92 and paid the money only in his individual capacity.

48. The partnership firm was registered only in the year 2014 andthe firm was neither in existence nor carried on any business prior to cutoff date. The High Court, in our view, rightly rejected the contentionthat the registration would relate back to the date of execution of thepartnership deed in the year 1987. The High Court rightly rejected theplea that the firm-M/s Ramchandra Vitthal Dongre was eligible to applyfor allotment of large Gala No.F-158. Both Ramchandra Vitthal Dongreand G.V. Lohot are carrying on the business in their individual nametherefore, the amount paid by the individual partners cannot be treatedas the payment made by the firm and the High Court rightly held that theappellant firm M/s Ramchandra Vitthal Dongre is not entitled for aseparate allotment of gala.

49. After the appeal preferred by M/s Indian Fruit Co. underSection 52B of MAPMC Act which was allowed by the Director ofAgricultural Marketing vide order dated 13.12.2001, the allotment ofsecond large Gala No.F-124 in favour of Ramchandra Dongre wascancelled. Challenging the cancellation of allotment of Gala No.F-124,Ramchandra Dongre filed writ petition W.P.No.234 of 2004. It isunfortunate that the said W.P.No.234 of 2004 has been kept alive forabout fifteen years. In view of the concurrent finding of Director ofAgricultural Marketing dated 04.06.2014 and the findings of the HighCourt in the impugned judgment that M/s Ramchandra Vitthal Dongre isnot eligible to claim large gala, in our view, nothing survives forconsideration in W.P.No.234 of 2004 pending before the High Court ofBombay. In the light of our finding affirming the view taken by the HighCourt that the firm M/s Ramchandra Vitthal Dongre is not eligible toclaim allotment of large gala,the High Court shall dispose of the said writpetitionW.P.No.234 of 2004 by passing appropriate orders.

50. In our considered view, respondent No.1-M/s RamchandraVitthal Dongre and respondent No.2-Habibullah Farhatullah are noteligible to claim allotment of large gala and the judgment of the HighCourt is liable to be set aside.

51. Next question for consideration is as to who are all eligible tomake claim for the allotment of large gala. In view of the foregoingdiscussion, the appellants-M/s Hande Wavare & Co. and Ganpat Shinde(who are marginally short of the norms) are eligible to claim allotment oflarge gala along with others. As per the counter filed by APMC in writpetition W.P.No.10328 of 2014, other than appellant-M/s Hande Wavare A

B

C

D

E

F

G

H

A& Co., two other claimants viz. respondent No.3-M/s BhalchandraChintaman Lele (Mr. Kedar Keshav Lele) and respondent No.4-AshokDhondiba Punde are also eligible for allotment of large gala.

52. The only other point to be considered is whether the allotmentto be made by sealed tenders or by draw of lottery. As seen from theBorder of the Director of Agricultural Marketing dated 04.06.2014, APMCinitially fixed the value of said gala as per government rate at Rs.55,00,000/-. The Director of Agricultural Marketing observed that instead ofaccepting the amount of Rs.28,77,500/- from appellant-M/s Hande Wavare& Co., APMC should have considered the market rate and getting valuedthe said gala from government approved valuer and should have calledCfor sealed covers from the claimants and ought to have allotted the galato the claimant who is paying the maximum value for allotment of largegala. In our considered view, since there is huge competition for thelarge gala, instead of adopting the lottery method, after fixing the marketvalue in order to fetch more revenue for APMC, offers should be invited

Din sealed covers. In order to attract better offers, it is appropriate thatappellant-M/s Hande Wavare & Co. should vacate the large Gala No.F-158 at the earliest. The learned counsel appearing for APMC has statedthat the small Gala No.M-821 earlier allotted to the appellant-M/s HandeWavare & Co. is still vacant. APMC shall forthwith pass an order forre-allotting the said small sized Gala No.M-821 to the appellant- M/sEHande Wavare & Co. and the appellant shall vacate the large GalaNo.F-158 before the end of September, 2019.

53. Considering the fact that APMC itself has fixed the marketvalue 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 fourFeligible claimants. viz. (i) M/s Hande Wavare and Co.; (ii) Mr. GanpatSabaji Shinde; (iii) M/s Bhalchandra Chintaman Lele (Mr. Kedar KeshavLele); and (iv) Mr. Ashok Dhondiba Punde shall quote their offers in asealed cover and accordingly, the large Gala No.F-158 be allotted to theone who is quoting the highest price.G54. In the result, the impugned judgment of the High Court is setaside and these appeals are disposed of with the following directionsand observations:-

(i) It is held that respondent No.2-Habibullah Farhatullah is notentitled to claim allotment of large gala and findings of theH

High Court qua respondent No.2-Habibullah Farhatullah is setaside;

(ii) The findings of the High Court that the firm-RamchandraVitthal Dongre is not entitled to claim allotment of large galais affirmed;

(iii) The possession of small Gala No.M-821 shall be restoredback to the appellant-M/s Hande Wavare & Co. and M/s HandeWavare & Co. shall vacate the large Gala No.F-158 on orbefore 30.09.2019. The amount of Rs.27,69,500/- depositedby the appellant towards the large gala No.F-158 shall berefunded to him by APMC immediately within two weeks fromthe date of his vacating;

(iv) The upset value of large Gala No.F-158 shall be fixed atRs.55,00,000/- as fixed by the Director of AgriculturalMarketing, APMC and the same shall be notified by APMCby the end of October, 2019. The four eligible claimants viz. (i)M/s Hande Wavare and Co.-appellant; (ii) Mr. Ganpat SabajiShinde; (iii) M/s Bhalchandra Chintaman Lele (Mr. KedarKeshav Lele)-respondent No.3; and (iv) Mr. Ashok DhondibaPunde-respondent No.4 shall quote their offers for the largegala and shall submit sealed tenders to APMC on or before15.11.2019. The sealed tenders are to be opened by APMC inthe presence of a higher level officer preferably, the JointDirector of Marketing and in the presence of all the fourclaimants or their representatives on 22.11.2019; and

(v) The large Gala No.F-158 shall be allotted to the claimant whohas quoted the highest price. Payment of the amount forallotment of large gala by the successful allottee shall be paidas per the rules of APMC.

Divya Pandey

Appeals disposed of.

A

BCDE

F

G

H