Full Judgment Text
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PETITIONER:
MUMBAI AGRICULTURAL PRODUCE MARKET COMMITTEE & ANR.
Vs.
RESPONDENT:
SHARAFATULLAH HAFIZ INAYATULLA & ANR.
DATE OF JUDGMENT: 15/02/2000
BENCH:
N.S.Hegde, A.P.Misra
JUDGMENT:
SANTOSH HEGDE, J.
CA.../2000 {@ SLP c .(CC 3870/99)}
Delay condoned.
Leave granted.
In this appeal, the appellant has challenged the order
made by the Division Bench of the Bombay High Court dated
8th September, 1998 whereby the High Court held that the
respondent had substantially complied with the norms fixed
for allotting galas for trading in wholesale fruits in the
market presently situated at Navi, Mumbai. Consequent to
the decision of the appellant to shift wholesale markets
including the fruit market from Bombay Municipal Corporation
Area to Navi Mumbai, disputes arose as to the allotment of
galas to the vendors which dispute was challenged before the
High Court of Bombay in various writ petitions and the High
Court, with a view to avoid arbitrariness in the allotment
of galas, had appointed Mr. Justice Daud (Retired) to
formulate the norms based on which the gala would be
allotted to various claimants. Justice Daud had submitted
various reports. Ultimately, the report dated 6th July,
1999 came to be accepted. As per this report, the basic
requirement needed for the allotment of a gala was that the
claimant had to establish that he was doing the concerned
business for 5 years within a block period of 1985-86 to
1994-95 which should be reflected by way of payment of
market fee irrespective of the quantum and further show that
he held an APMC licence for a period of at least 2 years
during the said block period. Since the respondent was not
allotted a gala in spite of his claim that he was qualified
to be allotted a gala within the norms referred to above, he
filed Writ Petition No.4248 of 1998 before the High Court of
Bombay which having been allowed, the Market Committee has
preferred the above noted appeal. Before the High Court,
the respondent contended that he had been doing business as
a fruit vendor for many years in the Subsidiary Market at
Mahatma Jyotiba Phule Mandai, Bombay. A dispute had arisen
between him and the appellant herein consequent to which the
appellant had filed a suit in the City Civil Court at Bombay
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wherein the appellant had sought for an injunction against
the respondent restraining him from doing business in the
market without obtaining necessary licence from the
appellant and paying the required market fee. It was the
contention of the respondent before the High Court that
during the pendency of the said suit there was certain
correspondences between him and the appellant-Committee
consequent to which he had paid all the arrears of market
fee due from him which was accepted by the appellant and he
had also accepted the authority of the appellant to insist
on taking out a licence. Therefore, his activity as a
trader being accepted by the Market Committee for the
relevant period fixed by Justice Daud, he was entitled to be
granted a gala. The claim of the respondent before the High
Court was opposed by the appellant primarily on the ground
that though appellant did carry on business, he did not hold
a licence during the relevant period i.e. 1985-86 to
1994-1995. Therefore, he was not entitled for the grant of
a gala since the condition precedent for the allotment of a
gala being the payment of the market fee and having held
licence during the relevant period which conditions the
respondent did not satisfy. The High Court having
considered the facts of the case came to the conclusion that
there was a dispute between the appellant and the respondent
in regard to the authority of the Market Committee to levy
fee and taking of a licence. Still, the fact remained that
the writ petitioner was doing business for a number of years
including the block period fixed by Justice Daud and
subsequently the writ petitioner had paid all the arrears of
market fee which was accepted by the Market Committee.
Therefore, there was substantial compliance of the norms
fixed by Justice Daud and the fact that the writ petitioner
had not taken out a licence, was due to the pending dispute
which did not exist any more in view of the fact the writ
petitioner had accepted the authority of Market Committee
and the two norms fixed by Justice Daud was more in the
nature to establish the fact that a claimant was doing
business for at least 5 years during the block period which
fact not being in dispute, the writ petitioner was entitled
for the allotment of a gala. Challenging the above order of
the High Court, it was contended before us that the High
Court committed a factual error in coming to the conclusion
that the suit which was filed by the Market Committee had
since been compromised and because of this basic error the
Court came to the conclusion that the respondent had
established his right for the allotment of a gala, which
finding of the High Court, according to the appellant, is
erroneous because, as a matter of fact, the suit was never
compromised and the respondent had also not taken a licence.
It is also further contended by the appellant that if
allotments are to be made on the basis of the finding of the
High Court then all the persons similarly situated as the
respondent will also be entitled to similar allotment which
would create practical difficulties inasmuch as the number
of galas available will not be sufficient to accommodate all
such claimants. The appellant also pointed out before us
that some more writ petitions are still pending in the High
Court making similar claims.
Before we proceed to examine the correctness of the
order impugned before us, we should bear in mind the fact
that the High Court appointed a Commission presided over by
Justice Daud only for the purpose of finding out norms by
which allotment could be made avoiding the allegation of
arbitrariness. Justice Daud, as could be seen from the
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records available before us, had elaborately considered the
factual situation and had fixed certain norms. We have
already referred to some of the relevant norms applicable to
the facts of the case, i.e., that a person staking a claim
for the allotment of a gala must establish that he was doing
business in the original place at least for a period of 5
years during the block period viz., 1985-86 to 1994-1995.
Of course, in addition, it is also necessary that the
claimant should establish that he had a licence from the
APMC for a period of at least 2 years during that block
period. In the instant case, the High Court noticed that
there was no dispute in regard to the factum that the
respondent was doing business for at least 5 years during
the block period, if not more, but the contention is that he
had not paid the market fee and had not obtained the
licence. This lacuna, the High Court felt, was due to
genuine dispute between the parties and now that the
appellant had accepted all the arrears of market fee, the
High Court came to the conclusion that the dispute does not
exist any more and that his not obtaining the licence by
itself, did not detract from the fact that the writ
petitioner had in fact done business during the relevant
block period. Having come to this conclusion, the High
Court held that there was substantial compliance of the
norms. It is true in the course of the discussion of the
facts of the case, the High Court referred to a compromise
which, in our opinion, is obviously an error and this error
in fact did not vitiate its finding. Therefore, we are in
agreement with the finding of the High Court that when the
respondent had established that he was doing business during
the relevant period, non-payment of market fee because of
the pendency of the dispute in a competent court of law and
subsequent acceptance of the arrears of market fee would
justify the claim of the respondent for the allotment of a
gala. In regard to the absence of a licence, it must be
held on the basis of the facts of this case that when the
Market Committee accepted the arrears of market fee for a
past period, it should be deemed that it accepted the
business done by the respondent during that period to be
legitimate and there is no question of issuing a licence for
a period which has already expired. That apart, Justice
Daud norms were meant to establish the fact that a claimant
to a gala had in fact done legitimate business in the market
for a period of at least five years during the block period
which we have held the respondent had done. Therefore, we
do not find any reason to differ with the conclusion arrived
at by the High Court.
However, we must deal with the next contention raised
on behalf of the appellant in regard to the possible
difficulty that may be faced by the Market Committee arising
from the claims of similarly situated persons as the
respondents before us. First of all, no material has been
placed before us to show that there are claimants who had
regularly done business during the relevant period and who
like the writ petitioner had not paid the market fee and
obtained a licence because of any genuine dispute with the
Market Committee which dispute culminated in legal
proceedings. Assuming that there are such further claimants
then their conduct will have to be judged with reference to
laches as and when they stake their claims. Further
assuming that in the pending cases the claims of the writ
petitioners are similar to that of the respondents herein
even then, in our opinion, no problem can be envisaged
because Justice Daud had taken note of this fact and had
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recommended a norm which he termed as : "Early Bird Norm"
which in principle means that the allotment will be made
between the similarly-situated persons on the basis of the
date of application which, in our opinion, is a fair method
to be adopted in the event of there being more eligible
claimants than the available number of galas. For these
reasons, this appeal fails and the same is dismissed.
SLPc No. 10733/99 :
In view of the judgment of this Court in C.A.
No.../2000 (arising out of SLPc ..(cc No.3870/99), this
petition is also dismissed.