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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELATE JURISDICTION

CIVIL APPEAL NOS.  10701-10702      OF 2011 (arising out of S.L.P. (Civil) No(s). 11878-11879 of 2008)

HANUMANT MURLIDHAR GAVADE                   Appellant(s)

                VERSUS

MUMBAI AGRICULTURAL PRODUCE MARKET & ORS.   Respondent(s)

J  U  D  G  M  E  N  T

R.M. Lodha, J.   

Leave granted.

2. The dispute in these Appeals concerns allotment of  

one large gala in the Wholesale Fruit and Vegetable Market,  

Vashi.  The rival claimants are the appellant and common  

respondent Nos. 5 and 2 in these Appeals - Narayan Nivrutti  

Shinde (hereinafter referred to as 'claimant respondent').

3. In  1985,  Mumbai  Agricultural  Produce  Market  

Committee (for short, 'Market committee') decided to shift  

subsidiary wholesale markets of fruit and vegetable in city  

of Mumbai at Vashi. In 1995, the construction of the new  

wholesale market at Vashi was completed.  The controversy  

arose in respect allotment of  galas/shops to the traders

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and numerous Writ Petitions were filed before the Bombay  

High Court. On April 26, 1996, the High Court appointed a  

former  Judge  of  that  Court  -  Justice  Daud   -  as  Court  

Commissioner  to  determine  the  norms  of  allotment  of  

galas/shops in the newly constructed wholesale market at  

Vashi.

4. The Justice Daud Committee submitted three reports which  

were accepted by the High Court.  As regards the Fruit  

Market which had total number of 1029 galas – 732 being of  

the large  galas each measuring 450 sq. ft. and 297 small  

galas each  measuring  300  sq.  ft.  -   in  its  report  the  

Justice  Daud  Committee  provided  for  eligibility  for  two  

time frames; time frame 1985-86 to 1994-95, and time frame  

1991-92 to 1994-95.  For time frame 1985-86 to 1994-95, the  

claimant  was  required  to  establish  doing  of  five  years  

business as reflected in payment of market fee irrespective  

of quantum thereof.  The claimant was further required to  

show that he had held an APMC licence for at least two  

years in the above ten year period and also that he did  

business in one of the years 1995-96 or 1996-97.  This was  

required to be established by proof of cess paid.  The  

cess-space nexus provided in respect of time frame 1985-86  

to 1994-95 is thus :-

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 Total Cess paid        Entitlement

1) Rs. 1500 to Rs. 5,000    ...Half small gala 2) Rs. 5,001 to Rs. 10,000    ...1 Small Gala 3) Rs. 10,001 to Rs. 15,000         ...Half Large Gala 4) Rs. 15,001 to Rs. 90,000         ...1 Large Gala 5) Rs. 90,001 to Rs, 3,00,000/- ...2 Large Galas 6) Above Rs. 3,00,000/-    ...3 Large Galas

5. The  norms  fixed  by  The  Justice  Daud  Committee  

further  provided  that  no  one  would  get  more  than  three  

large galas and for retaining the third, the claimant would  

have  to  pay  the  market  price  within  90  days  of  the  

acceptance of the norm by the High Court.  Those who had  

booked the galas upto December 31, 1993 and had come into  

the business from 1991-92 to 1994-95, the second time frame  

1991-92 to 1994-95 was made applicable.  It was provided  

that those eligible in this category must have held APMC  

licences for at least three years and done business for  

three  years  as  reflected  in  the  payment  of  market  fee  

irrespective  of  quantum  and  show  that  they  were  doing  

business  in  1995-96  or  1996-97  by  proof  of  having  paid  

market fee  either in 1995-96 or 1996-97.  The cess-space  

nexus for this category was thus :-

Total Cess paid Entitlement

1) Rs. 2500 to Rs. 7500 ...Half a Small Gala 2) Rs. 7501 to 25,000 ...1 Small Gala 3) Above Rs. 25,000 ...1 Large Gala

6. The  other  conditions  need  not  be  referred  to

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insofar as time frame 1985-86 to 1994-95 is concerned.

7. As regards time frame 1991-92 to 1994-95,  inter  

alia, space-cess nexus was provided thus :-

Total Cess Paid Entitlement

1) Rs. 10,000 to Rs. 20,000    ...Half a Small Gala 2) Above Rs. 20,000   ...1 Small Gala

8. By way of clarification in the norms fixed by the  

Justice  Daud  Committee,  it  was  provided  that  those  

claimants who fall in the time frame 1985-86 to 1994-95 and  

had made bookings upto September 30, 1991 and those who  

fall in the time frame 1991-92 to 1994-95 and had made  

their bookings upto December 31, 1993, the amount paid and  

intent indicator would be as follows :-

    Amount paid   For

1) Rs. 10,000 to Rs. 34,000    ...1 Small Gala 2) More than Rs. 34,000 and  

     upto Rs. 68,000    ...1 Large Gala    3) More than Rs. 68,000 and        upto Rs. 1,02,000         ...2 Large Galas    4) More than Rs. 1,02,000    ...3 Large Galas

9. In light of the above norms, we have to see the  

claim of the appellant for one large gala and the claim of  

the claimant respondent for second large gala since he has  

been allotted one large gala already and the allotment of  

one large gala to him is not in issue.

10. First, we shall deal with the entitlement of the  

claimant  respondent  to  the  second   gala.  He  was  denied

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second gala by the Market Committee as he had paid cess for  

the relevant period to the tune of  Rs. 87,047.98. In other  

words, he paid cess less than Rs. 90,000/-.  As per the  

norms fixed by the Justice Daud committee, the claimant who  

had paid cess during the relevant period upto Rs. 90,000/-  

was entitled to one large gala and those who paid cess from  

Rs. 90,001 to Rs. 3,00,000/- were entitled to two large  

galas.

11. Mr.  C.U.  Singh,  learned  senior  counsel  for  the  

claimant respondent, submitted that if supervision fee of  

Rs. 5,380/- paid by the claimant respondent is considered  

in payment of cess, then he would be entitled to allotment  

of second large  gala as he would be treated to have paid  

cess exceeding Rs. 90,000/- for the relevant period.

12.  The submission of Mr. C.U. Singh, learned senior  

counsel, does not appeal us.  'Cess' or 'market fee' is  

different from 'supervision cost'.  

13.  Section  34A  of  the  Maharashtra  Agricultural  Produce  

Marketing  (Development  and  Regulation)  Act,  1963  (for  

short, '1963 Act') provides for 'Cost of Supervision'.  It  

reads as follows :-

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“34A.  Supervision  over  purchase  of  agricultural  produce in any market or market area and payment  of cost of supervision by purchasers.

(1) The  State  Government  may,  by  general or special order, direct that the  purchase  of  agricultural  produce,  the  marketing  of  which  is  regulated  in  any  market  or  market  area  under  this  Act,  shall  be  under  the  supervision  of  such  staff appointed by the State Government as  it may deem to be necessary; and subject  to  the  provisions  of  this  Chapter,  the  cost of such supervision shall be paid to  the  State  Government  by  the  person  purchasing such produce in such market or  market area.

(2) The  cost  to  be  paid  by  a  purchaser shall be determined from time to  time by the State Government and notified  in  the  market  or  market  area  (in  such  manner  as the  State Government  may deem  fit), so however that the amount of the  cost  does  not  exceed  five  paise  per  hundred  rupees of  the purchase  price of  the  agricultural  produce  which  is  purchased by such purchaser.”

14. A look at the above provision would show that cost  

of  supervision  is  paid  to  the  State  Government  by  the  

person purchasing produce in the market or market area. It  

is  the  cost  recovered  by  the  State  Government  for  the  

expenses  incurred  for  the  staff  appointed  by  it  to  

supervise  the  purchase  of  agricultural  produce  in  the  

market or market area regulated by the Market Committee  

under  the  1963  Act.  The  determination  of  cost  of  

supervision is notified by the State Government from time  

to time and does not exceed five paise per hundred rupees  

of the purchase price.

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15. Insofar  as  'market  fee'  or,  for  that  matter,  

'cess' is concerned, it is levied by the Market Committee.  

Section 31 of the 1963 Act empowers Market Committee to  

levy fees and rates of commission (adat).  The levy of  

market fee by the Market Committee and its calculation is  

done in the prescribed manner.  The cess or market fees so  

levied goes to the coffers of Market Committee in return of  

the functions performed by it.  Section 31(b) provides for  

payment of supervision cost under Section 34A and also the  

market  fees.  It  is,   thus,  clear  that  the  'cess'  and  

'supervision  cost'  are  distinct  charges  and  'supervision  

cost' is not part of 'cess' or 'market fee'.  In this view,  

the cess paid by the claimant respondent for the relevant  

period being less than Rs. 90,000/-,  as per the norms  

fixed by the Justice Daud Committee and accepted by the  

High Court, he is entitled to one large  gala only, which  

has already been allotted to him.

16. Mr.  C.U.  Singh,  learned  senior  counsel,  then  

submitted that in the Writ Petition filed by the claimant  

respondent  in  the  High  Court,  on  consent  of  the  Market  

Committee as per the signed minutes, the Market Committee  

agreed to give to him (petitioner therein) one large  gala  

in the Fruit Market on priority basis and when available  

and, the High Court disposed of Writ Petition accordingly  

on August 25, 2000. He also submitted that an application  

was made by the Market Committee for recall of that order,

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but that application was rejected.

17. In  our  view,  the  order  dated  August  25,  2000  

referred to by Mr. C.U. Singh, learned senior counsel, does  

not help the claimant respondent at all for more than one  

reason.  In the first place, the above order of the High  

Court does not indicate that the claimant respondent is  

entitled to two large galas in the market.  It only records  

the  agreement  of  the  Market  Committee  to  give  to  the  

claimant respondent one large gala in the market.  That one  

large  gala has  already  been  given  to  the  claimant  

respondent  is  not  in  dispute.   Secondly,  and  more  

importantly, if under the norms fixed by the Justice Daud  

Committee, which has been accepted by the High Court, the  

claimant respondent is not entitled to more than one gala,  

then he cannot claim entitlement to two large  galas under  

the order dated August 25, 2000 passed by the High Court  

merely  because  the  Market  Committee  agreed  for  such  

allotment. The Market Committee, in our view,  could not  

have  agreed  for  allotment  of  two  large  galas to  the  

claimant  respondent  contrary  to  the  norms  fixed  by  the  

Justice Daud Committee.  As noticed above, the claimant  

respondent fulfils eligibility of one large  gala only and  

that has been given to him.  His claim for second large  

gala is without any merit and it is held that he is not  

entitled to second large gala.  

18. Insofar as the appellant is concerned, it is clear

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that his claim is covered by the second time frame fixed by  

the Justice Daud Committee. Even if it is assumed that he  

paid the cess above Rs. 25,000/- for the relevant period,  

in view of the admitted fact that he had paid Rs. 34,000/-  

only at the time of booking, as per the intent indicator  

fixed  by  the  Justice  Daud  Committee,  he  indicated  his  

intention for allotment of  one small gala. His claim for  

one large gala is, thus, devoid of any merit.  He could not  

have been allotted large  gala by the Market Committee and  

the allotment of one large  gala  to him was wrong and has  

been rightly cancelled.

19. We,  accordingly,  hold  that  the  appellant  is  

entitled to one small gala in the Fruit Market at Vashi.

20. Mr. Shantha Kr. Mahale, learned counsel for the  

Market Committee-respondent No. 1, submitted that two small  

galas in Fruit Market were presently available. In view of  

that, we direct the Market Committee (respondent No. 1) to  

allot one small gala to the appellant immediately and in no  

case later than one month from today.  Upon allotment of  

the said  gala, the appellant shall occupy allotted small  

gala as early as may be possible and in no case later than  

one month from the date of allotment.  On allotment of one  

small gala, the appellant shall hand over vacant possession  

of Gala No. F-158 to the Market Committee and in any case  

within one month therefrom.

21. The  impugned  judgment  of  the  High  Court  is

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modified  and  the  Appeals  are  allowed  to  the  extent  

indicated above with no order as to costs.

.......................J.        (R.M. LODHA)

NEW DELHI;        .......................J. DECEMBER 07, 2011        (H.L. GOKHALE)