M/s Hande Wavare and Co. Vs Ramchandra Vitthal Dongre

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5350 2019 (Arising out of SLP(C) No.33627 of 2018)

M/S HANDE WAVARE & CO. ...Appellant

VERSUS

RAMCHANDRA VITTHAL DONGRE …Respondents & ORS.

WITH

CIVIL APPEAL NO. 5351 2019 (Arising out of SLP(C) No.567 of 2019)

CIVIL APPEAL NO. 5352 2019 (Arising out of SLP(C) No.792 of 2019)

CIVIL APPEAL NO. 5353-54 2019 (Arising out of SLP(C) Nos.2942-43 of 2019)

CIVIL APPEAL NO. 5355-59 2019 (Arising out of SLP(C) Nos.4927-31 of 2019)

J U D G M E N T

R. BANUMATHI, J.

Leave granted.

2. These appeals arise out of the judgment dated 21.11.2018

passed by the High Court of Bombay in WP No.8959 of 2014 and

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batch of writ petitions in and by which the High Court held that

only the second respondent is eligible for the allotment of large

gala and directed the appellant-M/s Hande Wavare & Co. to

vacate the large Gala No.F-158 in the Mumbai Agricultural

Produce Marketing Committee, Vashi and further directing the

Mumbai Agricultural Produce Marketing Committee to hand over

the said gala to respondent No.2-Habibullah Farhatullah.

3. The dispute pertains to the allotment of large Gala/shop

No.F-158 in a lottery conducted by respondent No.5-Mumbai

Agricultural Produce Market Committee (APMC) on 25.09.2013.

The brief facts giving rise to these appeals are that the

Government of Maharashtra decided to shift the wholesale fruit

and vegetable market situated in Crawford Market to Vashi, Navi

Mumbai in order to reduce the congestion. With a view to

facilitate traders dealing in wholesale trading of fruit, APMC has

constructed two types of galas/shops viz. small galas

admeasuring 300 sq. ft. (200 sq. ft. + 100 sq. ft. loft) and large

galas admeasuring 450 sq. ft. (300 sq. ft. + 150 sq. ft. loft) each.

On 26.04.1998, the High Court of Bombay appointed Justice S.M.

Daud, former Judge of the High Court as the Court Commissioner

to suggest the norms to allot the galas/shops in the newly

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constructed wholesale market at Vashi to the traders so shifted.

Learned Commissioner submitted three reports stipulating norms

for eligibility for two-time frames which were accepted by the High

Court. The first-time frame was 1985-86 to 1994-95 and second

time frame was of 1991-92 to 1994-95. For proper appreciation

of the contention regarding fulfilment of norms or otherwise, we

have referred to the relevant portion of the report of the

Commissioner as to the norms for entitlement of gala.

4. In the case of Hanumant Murlidhar Gavade v. Mumbai

Agricultural Produce Market and Others (2012) 1 SCC 729, the

Supreme Court had cancelled the allotment of the large gala

bearing No.F-158 which was allotted in favour of Hanumant

Murlidhar Gavade as he was found not eligible for the large gala

having made short payment of cess and APMC was directed to

allot only a small gala to Hanumant Murlidhar Gavade.

Consequently large gala bearing No.F-158 became vacant.

Several claimants made claims for the allotment of the said large

gala/shop. The first respondent-a partnership firm by name M/s

Ramchandra Vitthal Dongre approached the High Court in a Civil

Application No.13 of 2012 in WP No.234 of 2004 for an early

hearing seeking allotment of the said large gala. The High Court

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vide its order dated 07.01.2013 disposed of the application

acceding to the submissions of the Agricultural Produce Market

Committee-APMC that apart from the applicant therein there are

four other claimants and directed APMC to scrutinize the claim of

all eligible claimants for the allotment of Gala No.F-158.

5. Pursuant to the order of the High Court dated 07.01.2013, a

meeting was convened by the Board of Directors of APMC on

07.03.2013 to conduct a lottery for allotment of Gala No.F-158

amongst five traders viz. (i) M/s Ramchandra Vitthal Dongre-

respondent No.1; (ii) Shri Habibullah Farhatullah-respondent

No.2; (iii) M/s Bhalchandra Chintaman Lele (Shri Kedar Keshav

Lele)-respondent No.3; (iv) Shri Ashok Dhondiba Punde-

respondent No.4; and (v) M/s. Hande Wavare and Company (Shri

Kashinath Wavare)-appellant. On 26.08.2013, notices were

issued to all the said five claimants with direction to participate in

the lottery proposed to be drawn on 19.09.2013. Out of the five

claimants who were allowed to participate in the lottery, only four

claimants participated in the said lottery drawn by APMC.

Respondent No.1-M/s Ramchandra V. Dongre participated in the

said lottery system under protest. Habibullah Farhatullah-

respondent No.2 refused to participate in the lottery. The

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appellant-M/s. Hande Wavare and Company was selected in the

said lottery for allotment of the said Gala No.F-158 and its value

was fixed at Rs.28,77,000/- as per Government ready reckoner

and was directed to pay Rs.27,69,500/- as consideration within

one month for allotment of said gala by deducting the amount of

Rs.1,07,500/- initially deposited by the appellant for the purpose

of allotment of one small gala and APMC asked the appellant to

return the small gala allotted to him back to APMC. The appellant

M/s Hande Wavare & Co. deposited the amount of

Rs.27,69,500/- to APMC on 07.01.2014. The appellant also

surrendered its small gala to APMC.

6. The decision to conduct lottery was thereafter challenged by

the firm M/s Ramchandra Vitthal Dongre under Section 52B of the

Maharashtra Agricultural Produce Marketing (Development and

Regulation) Act, 1963 before respondent No.6-Director of

Agricultural Marketing. Respondent No.6 vide its order dated

04.06.2014 partly allowed the appeal filed by Ramachandra V.

Dongre and set aside the allotment by lottery to appellant M/s

Hande Wavare & Co. and directed APMC to allot said gala by

inviting bids from five claimants in a sealed cover. Director,

Marketing observed that the allotment of the large gala to the

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appellant by way of a lottery by reducing the price of the said gala

from Rs.55,00,000/- as initially fixed value as per government rate

to Rs.28,77,000/- was not proper. The Director of Agricultural

Marketing further observed that APMC should have considered

the market rate and the value of the said gala from the

government approved valuer and should have called for sealed

tenders from five claimants and ought to have allotted the said

gala to the claimant who is paying the maximum value. The

Director held that APMC has not followed the statutory system

and erred by allotting gala by lottery system to M/s Hande

Wavare and Co. thereby causing financial loss to the APMC and

thus, set aside the allotment of large gala to the appellant.

7. Aggrieved by the cancellation of allotment, appellant

Kashinath Wavare filed a Revision Application No.28 of 2014

under Section 43 of MAPMC Act before the State Government.

Challenging the said order of Director of Agricultural Marketing,

respondent No.1 also filed revision in Revision Petition No.27 of

2014 under Section 52B of MAPMC Act before the State

Government. The Hon’ble Minister for Co-operation, Marketing

and Textile-respondent No.7 vide his order dated 12.09.2014

allowed the revision petition filed by Kashinath Wavare and

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dismissed the revision petition filed by respondent No.1-

Ramachandra Vitthal Dongre and set aside the order of

respondent No.6-Director of Agricultural Marketing and confirmed

the decision of APMC drawing the lottery and allotting the said

gala to the appellant M/s. Hande Wavare & Co. The Hon’ble

Minister observed that there was not only a single party but there

were five claimants who were eligible for the allotment of Gala

No.F-158 and upheld the process of allotment undertaken by

APMC by confirming the decision of the Board of Directors to

draw the lottery and determining the price of the Gala at

Rs.28,77,000/- instead of its market value of Rs.55 lakhs.

8. Aggrieved by the order of APMC and the order of Minister,

M/s Ramchandra Vitthal Dongre filed W.P. Nos.8959 and 8975 of

2014 before the High Court and respondent No.2-Habibullah

Farhatullah filed W.P. No.10328 of 2014. Challenging the

allotment of large gala to the appellant and also challenging the

lottery method adopted by APMC, Ganpat Shinde who was not

considered eligible to participate in the lottery filed W.P. No.2090

of 2015 before the High Court. The appellant Kashinath M.

Wavare filed W.P.(ST) No.35978 of 2017 against the order of the

Director of Marketing dated 29.04.2015.

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9. The High Court heard all the writ petitions together and

considered the claim of the claimants for allotment of large gala.

By the common judgment dated 21.11.2018 allowed WP(C)

No.10328/2014 filed by respondent No.2-Habibullah Farhatullah

directing the APMC to allot the said gala in his favour. The High

Court held that respondent No.2-Habibullah fulfilled all the

eligibility criteria formulated by Justice Daud Committee. The

High Court held that once the large Gala No.F-158 became

available by virtue of the judgment passed in Hanumant

Murlidhar Gavade, respondent No.2 ought to have been allotted

the large Gala in compliance with the order dated 24.09.2002

passed by the Director of Agricultural Marketing in Appeal

No.34/2002 which was filed by respondent No.2. The High Court

set aside the order passed by the Hon’ble Minister for Co-

operation, Marketing and Textile by observing that “APMC thus

could not have drawn lottery to consider the claim of other four

claimants under the guise of implementing the order dated

07.05.1999 passed by the Division Bench in WP(C)

No.2556/1999 in the case of Shantaram Y. Bhagat v. The

Mumbai Agricultural Produce Market Committee and another”.

Aggrieved, the appellant-M/s. Hande Wavare and Co. has filed

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appeal before the Supreme Court. The Supreme Court vide its

order dated 11.01.2019 issued notice and directed the parties to

maintain status quo.

10. Mr. Uday B. Dube, learned counsel appearing for the

appellant submitted that APMC is having only one large Gala

No.F-158 vacant for which claim is made by traders like

appellant, who otherwise fulfil the guidelines fixed by Daud

Committee but were “marginally fall short of the norms”. It was

submitted that as per the order of the High Court dated

07.05.1999 in W.P.No.2556 of 1999, Board of Directors of APMC

has rightly taken the decision to conduct lottery amongst the

eligible claimants and the same ought not to have been set aside

by the Appellate Authority-Director of Agricultural Marketing and

the High Court. The learned counsel further submitted that

respondent No.2-Habibullah Farhatullah has not booked the gala

in his name nor paid the amount and is not entitled for allotment

of a large gala as he has not paid the amount for booking the

gala.

11. It was submitted that Farhatullah Haji Barkatullah-father of

respondent No.2- had initially deposited the amount seeking

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allotment for three galas and after allotment of two large galas by

APMC, instead of taking refund of the amount deposited for the

third gala, father of respondent No.2 requested APMC to transfer

the said amount deposited by him in the account of his son-

respondent No.2. It was contended that the High Court ought to

have independently considered the claim of respondent No.2 and

recorded a finding regarding the eligibility of respondent No.2-

Habibullah Farhatullah to get a large gala on merits instead of

relying upon the technical ground raised by respondent No.2 that

APMC did not challenge the order passed by the Director of

Agricultural Marketing dated 24.09.2002. The learned counsel

further submitted that the rights of the third parties i.e. the rights

of the appellant and others cannot be decided on the ground of

non-challenge by APMC especially when it was demonstrated by

the appellant as to how respondent No.2 was not entitled for any

large gala. It was urged that the appellant and other claimants

were not parties before the Director of Agricultural Marketing and

hence, the said order dated 24.09.2002 cannot be said to be

binding on the appellant and other traders.

12. Mr. Sandeep Sudhakar Deshmukh, learned counsel

appearing for respondent No.1-M/s Ramchandra Vitthal Dongre

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reiterated that the eligibility of partnership firm of the M/s

Ramchandra Vitthal Dongre had never been an issue and

respondent No.1-firm has all along been fighting for allotment of

second large gala and the eligibility of which, was never disputed

in other proceedings. The learned counsel submitted that the

norms fixed by Daud Committee do not expressly prohibit the

claim of respondent No.1-firm and the High Court erred in saying

that the firm M/s Ramachandra Dongre is not eligible to claim

allotment of large gala.

13. Mr. Vinay Navare, learned senior counsel appearing on

behalf of the appellant Ganpat Sabaji Shinde in SLP(C)

Nos.4927-31 of 2019 submitted that Ganpat Sabaji Shinde has

deposited an amount of Rs.35,725/- with APMC during the period

between 1987-1991 for allotment of large gala which amount was

more than Rs.34,000/- as per norms. It was submitted that though

APMC claims that an amount of Rs.32,725/- has been made by

him, further amount of Rs.3,000/- has been paid by him to the

trader’s association which was transferred to APMC and,

therefore, Ganpat Sabaji Shinde satisfies the norms fixed by

Daud Committee and APMC erred in excluding Ganpat Sabaji

Shinde from making a claim to the large Gala No.F-158.

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14. Mr. Huzefa Ahmadi, learned senior counsel appearing on

behalf of respondent No.2 submitted that Director of Agricultural

Marketing vide its order dated 24.09.2002 allowed the transfer of

the booking amount in the name of father of respondent No.2 to

his name thereby, entitling him for a large gala. It was further

submitted that the order dated 24.09.2002 has not been

challenged and binding on APMC and, therefore, the High Court

rightly held that the right of respondent No.2 has been crystallised

and, therefore, respondent No.2 was the only eligible claimant for

allotment of the large Gala No.F-158. The learned senior counsel

further submitted that in view of eligibility of respondent No.2 for

large gala, APMC could not have considered the case of other

claimants under the alleged category of “marginally falling short”.

It was submitted that taking note of inconsistent stand taken by

APMC in various proceedings, the High Court rightly set aside the

order of the Hon’ble Minister and directed allotment of large Gala

No.F-158 to respondent No.2.

15. Taking us through the materials, Mr. Rakesh K. Sharma,

learned counsel for respondent No.5-APMC submitted that

respondent No.2-Habibulla Farhatullah did not pay any booking

amount and under the norms suggested by Daud Committee,

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there was no scope for transfer of booking of one claimant to the

name of any other person and the order dated 24.09.2002

passed by the Director of Agricultural Marketing in the appeal filed

by the respondent No.2 is contrary to the norms fixed by Daud

Committee and the orders passed by the High Court and the

Supreme Court. It was urged that respondent No.2 himself did not

pay any booking amount and therefore, the question of allotting

any large gala to respondent No.2 did not arise. It was also

contended that respondent No.2–Habibullah Farhatullah did not

participate in the lottery on the pretext that he had the order dated

24.09.2002 in his favour passed by Director of Agricultural

Marketing. The learned counsel further submitted that since there

were more than one claimants, Board of Directors of APMC had

taken the decision to conduct lottery amongst the claimants who

were “marginally fall short of the norms” in compliance with the

norms fixed by Daud Committee and the Hon’ble Minister rightly

affirmed the same. It was submitted that by placing reliance upon

the order dated 24.09.2002 passed by the Director, the High

Court erred in holding that respondent No.2 is eligible for

allotment of large gala and the impugned order is liable to be set

aside.

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16. Upon consideration of the submissions and impugned

judgment and other materials on record, the following points arise

for determination in these appeals:-

(i) When respondent No.2–Habibullah Farhatullah himself has not

booked the large gala before the cut-off date nor paid the

booking amount, whether the High Court was right in saying

that only second respondent is entitled for allotment of large

gala by getting the transfer of the booking amount from his

father to his name?

(ii) Dehors the norms fixed by Daud Committee, whether the High

Court was right in placing reliance only upon the order of

Director, Marketing dated 24.09.2002 to hold that the second

respondent is entitled for allotment of large gala?

(iii) Whether the High Court was right in saying that APMC could

not have considered the case of other claimants under the

category of “marginally fall short of the norms” and that

drawing of lottery was without jurisdiction?

17. Norms laid down by Justice Daud Committee:- In the

year 1987-88, APMC had decided to shift all the subsidiary

market of fruits and vegetables from Mumbai to Vashi, Navi

Mumbai. In the year 1995, the construction of the said market

was completed. In view of the dispute between traders in respect

of the allotment of galas/shops, several petitions came to be filed

before the High Court. On 26.04.1998, the High Court appointed

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Shri Justice S.M. Daud as a Court Commissioner to suggest the

norms to allot the galas/shops in the newly constructed wholesale

market at Vashi. The learned Commissioner submitted three

reports which were accepted by the High Court. As pointed out

earlier, the said new wholesale Fruit Market had total number of

1029 galas. Out of 1029 galas, 732 being the large galas each

measuring 450 sq.ft. and 297 small galas each measuring 300

sq.ft. The Daud Committee provided for eligibility for two-time

frames. The first-time frame was 1985-86 to 1994-95 and the

second time frame was of 1991-92 to 1994-95.

18. What is relevant for these appeals is the norms fixed by

learned Commissioner for “Fruit Market” which has 1029 galas

viz. 732 large galas and 297 small galas. As earlier mentioned,

the learned Commissioner submitted three reports inter-alia

stipulating the norms for allotment of galas/shops in the newly

constructed wholesale market. The first time frame was 1985-86

to 1994-95 and the second time frame was of 1991-92 to 1994-

95. No one would get more than three large galas and for

retaining the third, the claimant would have to pay the market

price within ninety days of the acceptance of the norms by the

High Court.

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19. First time frame was from 1985-86 to 1994-95. For those

who came into the business from 1991-92 to 1994-95 had booked

the galas up to 31.12.1993, the second time frame 1991-92 to

1994-95 was made applicable. The relevant recommendations of

the Committee read as under:-

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

The claimant has to establish doing of five years business as

reflected in payment of market fee irrespective of quantum thereof.

He must further show that he held an APMC licence for at least two

years in the above ten years period as also that he did business in

one of the years 1995-96 or 1996-97 – this again to be established

by proof of cess paid. The cess – space nexus will be as under:-

Total Cess Paid Entitlement 1. Rs.1,500/- to Rs.5,000/- Half small gala 2. Rs.5,001/- to Rs.10,000/- 1 small gala 3. Rs.10,001/- to Rs.15,000/- Half large gala 4. Rs.15,001/- to Rs.90,000/- 1 large gala 5. Rs.90,001/- to Rs.3,00,000/- 2 large galas 6. Above Rs.3,00,000/- 3 large galas

No one to get more than three large galas and for retaining the third,

the person retaining, will have to pay the market price within ninety

days of the acceptance of the norm by the High Court.

The next category is of those who have booked galas up to

31.12.1993 and have come into the business from 1991-92 to 1994-

95. For them the time frame will be 1991-92 to 1994-95. The eligible

in this category will be those who have held APMC licences for at

least three years, have done business for three years as reflected in

the payment of market fee irrespective of quantum and also show

that they were doing business in 1995-96 or 1996-97 by proof of

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having paid market fee about having done business either in 1995-96

or 1996-97. The cess-space nexus will be thus:-

Total Cess Paid Entitlement 1. Rs.2,500/- to Rs.7,500/- Half small gala 2. Rs.7,501/- to Rs.25,000/- 1 small gala 3. Above Rs.25,000/- 1 large gala

20. The High Court vide its order dated 07.05.1999 in Writ

Petition No.2556 of 1999 directed APMC to make allotment

strictly by adhering to the norms laid down by Daud Committee.

In the said order, the High Court further issued directions that in

case any galas remaining in balance after allotment in

accordance with norms, APMC to allot the same to those who

“marginally fall short of the norms” that have been laid down. The

said order of the High Court reads as under:-

“1. Pursuant to the orders passed by this Court Justice Daud was

appointed for laying down norms for the purpose of allotment of

Galas in the Agricultural Produce market Committee’s market at

Vashi, New Bombay, Justice Daud has accordingly passed his

awards laying down the norms. APMC is directed to make allotment

strictly by adhering to the norms laid down by Justice Daud. If any

Galas remain in balance after allotment in accordance with the norms

it will be open to the APMC to allot the same to those who marginally

fall short of the norms that have been laid down. The orders of

allotment as also the orders refusing allotment will be treated as

orders having been passed under the Maharashtra Agriculture

Produce Marketing (Regulation) Act, 1963 and the same will be

appealable under Section 52B of the Act. It goes without saying that

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the orders granting or refusing to allot galas will be supported by

reasons.” [underlining added]

In Hanumant Murlidhar, the Supreme Court has also reiterated

that the allotment should be strictly in accordance with the norms

fixed by Daud Committee.

21. As pointed out earlier, after decision in Hanumant

Murlidhar, large Gala No.F-158 had fallen vacant. Stand of

APMC is that as per the meeting of Board of Directors held on

07.03.2013, it was inter-alia resolved that allotment of Gala No.F-

158 be done amongst the five eligible claimants viz. (i) M/s

Ramchandra V. Dongre; (ii) Mr. Habibullah Farhahtullah; (iii) M/s

Bhalchandra Chintaman Lele (Mr. Kedar Keshav Lele); (iv) Mr.

Ashok Dhondiba Punde; and (v) M/s Hande Wavare & Co. by

drawing lottery. In the decision taken by the Board of Directors in

its meeting held on 26.04.2013, allotment of the said gala by

drawing lottery was confirmed. As discussed earlier, allotment of

Gala No.F-158 to the appellant-M/s Hande Wavare & Co. has led

to the series of litigations.

22. In the above facts and circumstances, it is to be considered

whether the High Court was right in holding that respondent No.2-

Habibullah Farhatullah is entitled for allotment of large gala

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without making booking of large gala before 31.12.1993 and by

getting transferred booking amount of his father in his name after

acceptance of new norms by the High Court.

23. Claim of respondent No.2-Habibullah Farhatullah:-

Respondent No.2-Habibullah applied for licence in the year 1991-

1992 in his own name and obtained licence in the year 1992.

Admittedly, respondent No.2 does not fall within the first-time

frame 1985-86 to 1994-95. Respondent No.2 himself did not pay

any amount for booking of gala. On 04.01.1999, father of

respondent No.2- Farhatullah Haji Barkatullah paid an amount of

Rs.1,32,000/- as booking amount for three large galas. As per

norms fixed by the learned Commissioner for allotment of three

large galas, total cess payable is above Rs.3,00,000/-. Since

father of respondent No.2 paid amount less than Rs.3,00,000/-,

he was allotted only two large galas. In his letter dated

23.03.1999, father of respondent No.2 stated that he had paid

Rs.1,32,000/- for booking of two large galas initially and that his

son Habibullah started the business of fruits trade since 1991-

1992 and that he asked for booking of one large gala in the name

of his son viz. respondent No.2. However, APMC did not accept

the booking in the name of his son and therefore, Farhatullah Haji

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Barkatullah- father of respondent No.2 booked the third gala in

his own name. In the said letter, father of respondent No.2 has

also stated that the third gala booked in his name i.e. in the name

of father of respondent No.2 may be transferred to his son-

respondent No.2 and also the remaining amount be transferred to

his son-respondent No.2 and that he may be allotted a large gala.

Be it noted, respondent No.2 himself did not make any application

for booking of any gala nor did he pay any amount for booking the

gala. It is also pertinent to note that as per the norms suggested

by Daud Committee, there was no scope of transfer of booking of

gala and the booking amount from one person to another.

24. In the application for allotment of large gala on 26.04.1999,

respondent No.2 was allotted a small Gala No.M-775 by APMC

which was not accepted by respondent No.2. Another application

filed by respondent No.2 for allotment of large gala was rejected

on 02.05.2001 against which respondent No.2 filed an Appeal

No.34/2002 before the Director of Agricultural Marketing. APMC

opposed the claim of respondent No.2 contending that

respondent No.2 did not pay any booking amount in his name or

in the name of others and therefore, the question of allotment of

any large gala to him did not arise. APMC also took the stand

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that as per the norms fixed by the learned Commissioner, there

was no scope of transfer of booking of gala and the booking

amount from one person to another. By the order dated

24.09.2002, Director of Agricultural Marketing allowed the appeal

preferred by respondent No.2 and directed APMC to allot large

gala to him by pointing out that in fourteen other cases, booking

of galas made by one person were transferred to other persons.

25. While allowing the Appeal No.34/2002 filed by respondent

No.2 (order dated 24.09.2002), the Director of Agricultural

Marketing called for report from the Joint Director of Marketing to

ascertain whether there were other cases of allowing transfer of

booking from one person’s name to the other in allotting the galas

in the name of transferee. By referring to the report of the Joint

Director of Marketing and observing that APMC in fourteen cases

has allowed the transfer of the booking of the galas in the name

of others and allotted the galas to such transferees, in Appeal

No.34/2002, Director of Agricultural Marketing observed as

under:-

“From the report of Shri Kokare, it is clear that in 14 cases which are

on record the booking was done in the names of some other persons

and the Respondent has allowed the transfer of the bookings of the

galas in the name of others and further allotted the galas to such

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transferees. This has not been denied by the Respondent Market

Committee. Considering the fact that the Market Committee has

allowed transfers in large number of cases, there is no justification for

not allowing transfer of the booking in the name of the Appellant

where the booking was in the name of his father and the transfer was

requested in the name of the son i.e. present Appellant………. This is

a glaring case of injustice by the Respondent committee against the

Appellant. In view of this, it would be in the interest of justice to allow

the appeal of the Appellant and give directions to the agricultural

Produce Market Committee, Mumbai to allot one large gala to the

Appellant……….”

26. In the impugned judgment, the High Court held that the right

of respondent No.2 to get large gala has been crystallised by the

above order dated 24.09.2002 of Director of Agricultural

Marketing and when the large Gala No.F-158 became available,

APMC ought to have allotted the same to respondent No.2. The

High Court held that APMC ought not to have drawn lottery to

consider the claim of four other claimants who fall “marginally

falls short of the norms” fixed by the Daud Committee under the

guise of implementing the order dated 07.05.1999 passed by the

Division Bench in Writ Petition No.2556 of 1999. The High Court

mainly relied upon the order of Director of Agricultural Marketing

dated 24.09.2002 and observed that the said order has attained

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finality and is binding on APMC and thus directed APMC to allot

large gala to respondent No.2 on first priority.

27. Respondent No.2 heavily relies upon the order of Director of

Agricultural Marketing dated 24.09.2002 allowing the transfer of

booking amount from the name of his father to his name and

thereby entitling him for a large gala which was also accepted by

the High Court. Before considering the effect of the order dated

24.09.2002, let us evaluate the eligibility of respondent No.2-

Habibullah as per the norms laid down by Daud Committee. As

per the norms, no trader who has not paid the booking amount

can get a large gala or part thereof or more than one small gala.

As pointed out earlier, Habibullah himself has neither made the

application before the cut-off date nor paid the booking amount;

the amount paid by father of respondent No.2 was sought to be

transferred to respondent No.2. Transfer of amount by a person

who booked the gala to another person is not permissible as per

the norms fixed by Daud Committee.

28. As pointed out earlier, the Director, Marketing held that the

second respondent is entitled for allotment of large gala mainly on

the ground that in few other cases, gala booked in the name of

one person has been transferred to another person. In the order

23

dated 24.09.2002, the Director, Marketing has pointed out such

instances where booking of gala in the name of one person has

been transferred to other persons and observed that the second

respondent cannot be discriminated. Merely because, in other

cases, gala booked in the name of one person is transferred in

the name of another person, it cannot be the reason to adopt the

same irregularity in the case of the second respondent also. As

held in State of Bihar v. Upendra Narayan Singh and others

(2009) 5 SCC 65, Article 14 of the Constitution of India is a

positive concept and it cannot be enforced by a citizen or a court

in a negative manner. If any illegality or irregularity has been

committed in favour of any individual or group of individual or

wrong order has been passed by a forum, the same illegality or

irregularity cannot be perpetuated on the ground of discrimination

or hardship. Merely because, in few other cases, gala booked in

the name of one person was transferred in the name of other

persons in deviation from the norms fixed by Daud Committee, in

our considered view, the Director, Marketing was not right in

holding that the second respondent is entitled for allotment of

large gala by transfer of booking of large gala from his father-

Farhatullah Haji Barkatullah to his name.

24

29. Father of respondent No.2 though paid the booking amount

of Rs.1,32,000/-, he has not paid the requisite cess amount to be

eligible for the third large gala. Where report of the Daud

Committee specifically fixed the norms for the traders who have

paid the booking amount and traders who have not paid the

booking amount distinctly, the norms cannot be compromised or

diluted by allowing the traders to get the booking amount of one

trader be transferred to another thereby, enabling him to claim

allotment of gala which he otherwise, would not have entitled to.

The High Court, in our view, did not keep in view that respondent

No.2 had neither booked the gala before the cut-off date nor paid

the amount and the High Court proceeded hold as to the

entitlement of respondent No.2 mainly on the basis of the order

dated 24.09.2002. Respondent No.2 cannot make a claim for

allotment of Gala No.F-158 dehors the norms fixed by Daud

Committee or otherwise, it would amount to diluting the norms

fixed by Daud Committee which has been directed to be strictly

followed by the High Court vide its order dated 07.05.1999 in W.P.

No.2556 of 1999.

30. The order of the Director of Agricultural Marketing in Appeal

No.34/2002 has not been challenged by APMC. In this context,

25

Mr. Huzefa Ahmadi, learned senior counsel appearing for

respondent No.2 submitted that the order dated 24.09.2002 has

become final and the same is binding on APMC. Placing reliance

upon M. Meenakshi and Others v. Metadin Agarwal (Dead) by

Lrs. and Others (2006) 7 SCC 470, it was contended that unless

the order passed by competent authority is challenged and

declared as “not valid”, its correctness cannot be considered in

collateral proceedings. In M. Meenakshi, it was held as under:-

“18. It is a well-settled principle of law that even a void order is

required to be set aside by a competent court of law inasmuch as an

order may be void in respect of one person but may be valid in

respect of another. A void order is necessarily not non est. An order

cannot be declared to be void in a collateral proceeding and that too

in the absence of the authorities who were the authors thereof. The

orders passed by the authorities were not found to be wholly without

jurisdiction. They were not, thus, nullities.”

31. Placing reliance upon Anita International v. Tungabadra

Sugar Works Mazdoor Sangh and Others (2016) 9 SCC 44, it

was submitted that the order passed by the competent

court/quasi-judicial authority like the Director of Agricultural

Marketing has the force of law until the same is set aside by a

court of competent jurisdiction.

26

32. There is no quarrel over the proposition laid down in the

above decisions. But in the peculiar facts and circumstances of

the present case, in our view, respondent No.2 cannot base his

entitlement for allotment of large gala solely on the basis of the

order dated 24.09.2002 of Director of Agricultural Marketing,

dehors the norms fixed by Daud Committee which were directed

to be strictly complied with by the High Court. In the order dated

07.05.1999 in W.P. No.2556 of 1999, when the High Court has

directed APMC to make allotment of galas strictly by adhering to

the norms laid down by Daud Committee, the order of Director of

Agricultural Marketing dated 24.09.2002 cannot prevail over the

order of the High Court. While so, the High Court, in our view,

erred in holding that by the order of Director of Agricultural

Marketing dated 24.09.2002, right of respondent No.2 to get large

gala has been crystallised and that APMC ought to have allotted

the same to respondent No.2 instead of conducting lottery

amongst all the eligible claimants. The High Court erred in relying

upon the above order of Director of Agricultural Marketing and

directing APMC to allot the said large gala to respondent No.2

without keeping in view the norms fixed by the Daud Committee.

The order dated 24.09.2002 passed by the Director of Agricultural

27

Marketing is contrary to the norms fixed by Daud Committee.

Dehors the norms fixed by Daud Committee which has been

directed to be strictly complied with (vide order dated 07.05.1999

in WP No.2556/1999), respondent No.2 cannot claim entitlement

for the large gala based on the said order and the order of the

High Court holding that respondent No.2 is entitled to large gala

cannot be sustained and is liable to be set aside qua respondent

No.2.

33. Claim of Appellant M/s Hande Wavare & Co. (Shri

Kashinath Wavare):- Let us now consider the eligibility of the

appellant. As pointed out earlier, as per the resolution of the

Board of Directors held on 07.03.2013, appellant M/s Hande

Wavare & Co., respondent No.2-Habibullah Farhatullah and three

others were the eligible claimants. Prior to the allotment in

question, the appellant M/s Hande Wavare & Co. was allotted a

small size Gala bearing No.M-821. As per the norms suggested

by the learned Commissioner, the wholesale broker in fruit

section who was falling in the time frame of 1985-86 to 1994-95

was entitled for large gala on fulfillment of the conditions viz. (i)

He should have booked gala by paying booking amount upto

Rs.34,000/- before closing date; (ii) He should hold licence issued

28

by the APMC for at least two years between the year 1985-86 to

1994-95; (iii) He should have done business for at least five years

between the years 1985-86 to 1994-96; (iv) He should have done

business either in the year 1995-96 or 1996-97 by paying cess;

and (v) For entitlement of large gala, he should have paid cess

between Rs.10,001/- to Rs.90,000/- in the years 1985-86 to 1994-

95. According to the appellant, he was satisfying all the conditions

except condition No.5. During the period between 1985-86 to

1994-95, the appellant had paid an amount of Rs.9844.10

towards cess/market fee and Rs.34,000/- towards booking a gala.

The cess/market fee paid by the appellant was less by Rs.155.90

to the required norm of Rs.10,000/-. The market fee of

Rs.9844.10 paid by the appellant was in the time frame of 1985-

86 to 1994-95 and thus the appellant had not fulfilled the norms

as per the Daud Committee report and thus the appellant is falling

under the category of “marginally falls short of the norms.”

34. The appellant placed reliance on the order of the High Court

dated 07.05.1999 passed by the High Court in W.P. No.2556 of

1999 whereby the Division Bench has directed APMC to make

allotment strictly by adhering to the norms laid down by the

learned Commissioner. As pointed out earlier, in WP

29

No.2556/1999, the High Court further directed that if any gala

remains vacant after allotment in accordance with the norms, it

will be open to APMC to allot to those who “marginally falls short

of the norms” that have been laid down. The appellant having

paid the market fee of Rs.9844.10 in the time frame of 1985-86 to

1994-95 which is less by Rs.155.90 falls under the category of

“marginally falls short of the norms” and is entitled to make a

claim for the large gala. In our view, without considering the rival

contentions of the parties, the High Court was not right in holding

that respondent No.2 alone was entitled for the allotment of large

Gala No.F-158.

35. Claim of Ganpat Sabaji Shinde: Ganpat Sabaji Shinde

has been allotted a small Gala No.M-748 in 1999. According to

the appellant Ganpat Shinde, he had deposited an amount of

Rs.32,725/- with APMC during the period between 1987 and 1991

for allotment of large gala. It is in dispute between the parties

whether the appellant Ganpat Shinde had deposited a sum of

Rs.35,725/- or Rs.32,725/- prior to 31.12.1993 with APMC.

Appellant Ganpat Shinde alleges that he has deposited

Rs.32,725/- with APMC and he had paid an amount of Rs.3,000/-

to the Trader’s Association which according to him was

30

transferred to APMC aggregating to the total of Rs.35,725/- which

is more than the required amount of Rs.34,000/-. According to

APMC, the records of APMC did not show any receipt of

Rs.35,725/- before 31.12.1993. According to APMC, the amount

of Rs.3,000/- paid by Ganpat Shinde to Traders Association was

received by APMC only in the year 2003 and the same was

adjusted towards the lease premium of small gala No.748

allotted. APMC rejected the claim of Ganpat Shinde by order

dated 17.02.2010 which was challenged by Ganpat Shinde in

Appeal No.14 of 2010 under Section 52B of APMC Act. By the

order dated 09.11.2011, Director of Agricultural Marketing set

aside the order dated 17.02.2010 and directed APMC to afford an

opportunity of hearing to Ganpat Shinde and take appropriate

decision on merits.

36. Mr. Vinay Navare, learned senior counsel appearing for

appellant Ganpat Sabaji Shinde submitted that though appellant

Ganpat Shinde sent various letters requesting for allotment of

Gala No.F-158, the same was not considered and he was

informed by APMC (letter dated 19.10.2013) that Gala No.F-158

has been allotted by lottery system and therefore, his request for

allotment of large gala cannot be considered. On the other hand,

31

by its order dated 26.11.2014, APMC agreed to allot small size

Gala No.M-745 to Ganpat Shinde for value of Rs.25,50,000/- i.e.

at the price determined by Government approved valuer. As per

the decision of the Board of Directors in the meeting dated

28.02.2014, APMC resolved to allot small Gala No.M-745 to

Ganpat Shinde. By the communication dated 26.11.2014,

Ganpat Shinde was asked to pay Rs.19,66,517/- as per ready

reckoner. Challenging the order of the Board of Directors and the

order dated 26.11.2014, Ganpat Shinde filed Appeal No.2/2015

before the Director, Marketing. According to APMC, since Ganpat

Shinde has not given his consent for allotment of additional small

gala and to the resolution of the Board of Administrators held on

14.01.2015, it was resolved to cancel the allotment of small size

Gala No.M-745 to Ganpat Shinde and the same was informed to

Ganpat Shinde by letter dated 18.02.2015. Appellant Ganpat

Shinde challenged the Board’s resolution dated 14.01.2015 in

Appeal No. 12 of 2015. Director of Marketing had taken up

Appeal No.2 of 2015 and 12 of 2015 together and the appeals

were allowed by order dated 29.04.2015 whereby the Director

held that Ganpat Shinde is entitled for large gala. Challenging

the order of the Director, Marketing dated 29.04.2015 holding

32

Ganpat Shinde entitled for large gala, Kashinath Wavare filed writ

petition in WP(Stamp) No.35978 of 2017. Contention of Ganpat

Shinde is that Kashinath Wavare has no locus standi to challenge

the order passed by the Director, Marketing and the eligibility of

the appellant for large gala.

37. Insofar as the case of Ganpat Shinde is concerned, the

High Court held that “there was a dispute between the parties

whether the appellant had deposited a sum of Rs.35,725/- or

Rs.32,725/- prior to 31.12.1993 with APMC”. The High Court also

observed that there was a dispute that out of Rs.35,725/-, a sum

of Rs.3,000/- was adjusted towards the lease of Gala No.M-748

and therefore, the High Court rejected the claim of appellant

Ganpat Shinde that he had deposited more than Rs.34,000/-

towards the allotment of large gala prior to the cut-off date.

Though, appellant Ganpat Shinde claims that amount of

Rs.35,725/- has been paid only for allotment of large gala, APMC

claims that the same is not borne by record namely letter dated

03.07.2003 of APMC which reads as under:-

“…..Subject to terms and conditions of the Gala allotment, amount

of Rs.35,725/- which you have been paid till date is transferred to

Gala No.M-748. …….”

33

38. The High Court held that since Ganpat Shinde had paid

only a sum of Rs.32,725/- towards booking amount and was

accordingly allotted a small Gala No.M-748 in the year 1999 and

that he is not entitled to claim allotment of large gala. The High

Court was not right in holding that Ganpat Shinde had paid only

Rs.32,725/-. It is pertinent to note that in the above

communication dated 03.07.2003, APMC stated about the receipt

of the payment of Rs.35,725/-. As rightly contended by senior

counsel Mr. Vinay Navare, APMC for the first time by its

resolution dated 17.02.2010 stated that Ganpat Shinde has paid

registration booking amount of Rs.32,725/- and that Ganpat

Shinde does not satisfy the norms fixed by Daud Committee

requiring deposit of an amount of Rs.34,000/-.

39. Contention of APMC is that its records show Rs.32,725/- in

the name of Ganpat Shinde and the sum of Rs.3,000/- was

received in the year 2003 from the Traders Association and the

same was considered towards the lease premium of Gala No.

M-748 allotted vide letter dated 29.02.1999. Further contention of

APMC is that in any case, Rs.3,000/- came to be deposited only

in 2003 well after the cut-off date and it is immaterial whether it is

adjusted towards the lease amount or not and therefore, Ganpat

34

Shinde has neither satisfied the eligibility norms nor satisfied the

norms fixed by Daud Committee.

40. Admittedly, amount of Rs.3,000/- paid by Ganpat Shinde in

the account of Traders Association was transferred to the account

of APMC only in the year 2003. But APMC is not right in saying

that the said amount of Rs.3,000/- was adjusted towards the

lease premium amount. In the reply to the information sought

under Right to Information Act, APMC has stated that the

amounts are not adjusted to lease premium but they are

transferred towards booking amount. The reply to RTI are as

under:-

“Market Committee did not register the Gala in the Fruit and

Vegetable Division in personal name of association. The

concerned association in the Fruit and Vegetable Market

Compound deposited the amounts of their members to the Market

Committee. Association submitted recommendation letters in the

name of their members to the Market Committee. The amounts

intimated by the association were transferred on the members

towards booking amount. These amounts are not towards lease

premium, but they are transferred towards booking amounts. The

Market Committee had not prepared any rules for the same.”

The amount of Rs.3,000/- paid by Ganpat Shinde to the Traders

Association transferred to APMC in 2003, be it for lease premium

or booking amount, the fact remains that Ganpat Shinde has paid

35

only Rs.32,725/- before the cut-off date for taking the gala.

Though, Ganpat Shinde was allotted small gala, the same can be

taken into account for holding that Ganpat Shinde falls within the

category of “marginally falls short of the norms” and he is entitled

to claim large gala. The findings of the High Court that Ganpat

Shinde is not eligible to claim large gala is not sustainable and

the same is liable to be set aside.

41. M/s Ramchandra Vitthal Dongre: M/s Ramchandra Vitthal

Dongre is a registered partnership firm consisting of two partners

respondent No.1-Ramchandra Vitthal Dongre and G.V. Lohot.

According to the appellant-Ramchandra Vitthal Dongre, the firm

applied for partnership registration on 12.12.2005 and was

registered on 31.05.2014. Ramchandra Vitthal Dongre paid

substantial market fees for carrying on the business of wholesale

fruit distributor. He paid booking amount of Rs.10,000/- on

04.06.1988 and Rs.34,000/- on 09.09.1991. G.V. Lohot had paid

Rs.32,725/- on 09.09.1991. Both the partners have obtained

licences in their individual capacities. Respondent No.1-

Ramchandra Vitthal Dongre was allotted a large Gala No.G-247

on 28.09.1995 and is in possession of the same in his individual

capacity. Ramchandra Dongre had paid cess above

36

Rs.1,01,156/- during the period of ten years i.e. between 1985-86

and 1994-95. Subsequent to the cancellation of allotment of two

large Galas in favour of M/s Indian Fruit Co., Ramchandra

Dongre was allotted a second large Gala No.F-124 on

09.05.2001 and he paid an amount of Rs.1,27,500/- on

23.05.2001. However, the appeal preferred by M/s Indian Fruit

Co. under Section 52B of the Act was allowed by the Director of

Agricultural Marketing vide order dated 13.12.2001 and the

allotment of second large gala No.F-124 in favour of Ramchandra

Vitthal Dongre was cancelled. Against which, Ramchandra Vitthal

Dongre filed writ petition W.P.No.234 of 2004. In the year 2012,

when Gala No.F-158 became vacant, Ramchandra Dongre filed a

civil application in the said writ petition filed by him seeking an

early hearing. The High Court vide its order dated 07.01.2013

disposed of the application accepting the submissions of APMC

that apart from Ramchandra Vitthal Dongre, there are four other

claimants and directed APMC to scrutinize the claim of all eligible

claimants for allotment of Gala No.F-158.

42. Insofaras M/s Ramchandra Vitthal Dongre is concerned,

the question falling for consideration is whether the firm-M/s

Ramchandra Vitthal Dongre has complied with the norms laid

37

down by Daud Committee and whether the firm is eligible for the

allotment of large Gala.

43. The contention of Ramchandra Vitthal Dongre is that the

booking amount paid on behalf of M/s Ramchandra Vitthal

Dongre is Rs.76,725/- (amount paid for individual booking

amounts paid by the partners in their own individual name) and is

therefore, eligible for allotment of said large gala. It is contended

that the allotment of Gala No.F-124 made by APMC, their stand

taken in three affidavits filed by APMC in Writ Petition No.4101 of

2001, Writ Petition No.3194 of 1999 and Writ Petition(Stamp)

No.10993 of 2002 numbered as Writ Petition No.234 of 2004

prove that the firm is eligible for a large Gala.

44. The contention of Ramchandra Vitthal Dongre is that his

partnership firm-M/s Ramchandra Vitthal Dongre satisfies the

norms laid down by the learned Commissioner. The said

partnership firm consists of two partners who hold licences given

by APMC. Admittedly, the firm got registered only in the year

2014. One partner, Ramchandra Vitthal Dongre has been

carrying on the business in his individual capacity and has been

earlier allotted a large gala. The other partner G.V. Lohot is also

carrying on business in his own individual name.

38

45. Claim of Ramchandra Vitthal Dongre is that the firm had

paid the booking amount of Rs.76,725/- which is denied by

APMC. The contention of APMC is that no booking has been

made in the name of the partnership firm, no cess amount is paid

and no licence was obtained by it. According to APMC,

Ramchandra Vitthal Dongre had paid Rs.10,000/- on 04.06.1988

and Rs.34,000/- on 09.09.1991. G.V. Lohot was not doing any

business till the year 1991. G.V. Lohot started business by taking

licence in his name for the year 1991-92 and Rs.32,725/- was

paid by him on 09.09.1991 towards booking of gala. The said

amount was paid by Ramchandra Vitthal Dongre and G.V. Lohot

in their individual capacities and not by the firm. As the booking

amount was paid in their individual capacity, Ramchandra Vitthal

Dongre was allotted Gala No.G-247 which was a large Gala.

Registered Deed of Sub-lease dated 29.10.1999 was also

executed in the name of Ramchandra Vitthal Dongre in his

individual capacity. According to APMC, Ramchandra Vitthal

Dongre had paid booking amount and cess only in his individual

capacity and was accordingly allotted a large gala and his claim

for second gala in the name of the firm is not sustainable. Insofar

as G.V. Lohot is concerned, he was issued a licence by APMC on

39

30.07.1972 which was renewed from time to time upto 2014 and

said G.V. Lohot is also carrying on the business in his individual

name only.

46. Insofar as three affidavits filed by APMC in Writ Petition

No.4101 of 2001, Writ Petition No.3194 of 1999 and Writ Petition

(Stamp) No.10993 of 2002 numbered as Writ Petition No.234 of

2004 on which reliance was placed by M/s Ramchandra Vitthal

Dongre is concerned, contention of APMC is that those three

affidavits were in respect of the claim of Ramchandra Vitthal

Dongre as proprietor and not by M/s Ramchandra Vitthal Dongre,

the partnership firm and thus, no reliance on those three affidavits

can be placed by M/s Ramchandra Vitthal Dongre. It is stated that

APMC never admitted the claim of the firm.

47. There are no norms suggested by Daud Committee making

a partnership firm separately eligible for allotment of a Gala on

the basis of the licence issued in the name of the individual

partner, the amount paid by said individual partner towards

booking of the Gala, payment of cess made by such individual

partner, etc. In the absence of specific norms for the partnership

firms, the norms framed for individual traders are applicable for

the partnership firms. When the firm was registered in the year

40

2014 and it has not complied with any of the norms fixed by Daud

Committed, the firm cannot seek for the allotment of any gala,

much less a large gala. Considering the submissions of both the

parties, in the impugned judgment, the High Court rightly held that

the partnership firm consisting of Ramchandra Vitthal Dongre and

G.V. Lohot is not separately entitled for allotment of any separate

Gala. Based on the documents of the individual partners, the

relevant findings of the High Court are as under:-

“In my view, the license obtained by an individual partner, the

booking amount, if any, paid by such individual partner, payment of

cess, if any, paid by such individual partner or other requirements

which individual partner is required to be fulfilled as per the norms

suggested by the learned Commissioner for being eligible to

allotment of such gala cannot be utilised by the partnership firm

consisting of such partners to make such firm eligible for allotment of

any gala under the said norms suggested by the learned

Commissioner………… In my view, the documents relied upon by the

petitioner for seeking allotment of the said gala No.F-158 which were

the documents of individual partner of the petitioner could not be

used and/or relied upon for the purpose of seeking allotment of the

said gala No.F-158 in the name of the said partnership firm.”

The contention of APMC is that Ramchandra Dongre has been

doing business and paid money only in his individual capacity. As

pointed out earlier, G.V. Lohot started business by taking licence

41

in his name for the year 1991-92 and paid the money only in his

individual capacity.

48. The partnership firm was registered only in the year 2014

and the firm was neither in existence nor carried on any business

prior to cut off date. The High Court, in our view, rightly rejected

the contention that the registration would relate back to the date

of execution of the partnership deed in the year 1987. The High

Court rightly rejected the plea that the firm-M/s Ramchandra

Vitthal Dongre was eligible to apply for allotment of large Gala

No.F-158. Both Ramchandra Vitthal Dongre and G.V. Lohot are

carrying on the business in their individual name therefore, the

amount paid by the individual partners cannot be treated as the

payment made by the firm and the High Court rightly held that the

appellant firm M/s Ramchandra Vitthal Dongre is not entitled for a

separate allotment of gala.

49. After the appeal preferred by M/s Indian Fruit Co. under

Section 52B of MAPMC Act which was allowed by the Director of

Agricultural Marketing vide order dated 13.12.2001, the allotment

of second large Gala No.F-124 in favour of Ramchandra Dongre

was cancelled. Challenging the cancellation of allotment of Gala

No.F-124, Ramchandra Dongre filed writ petition W.P.No.234 of

42

2004. It is unfortunate that the said W.P.No.234 of 2004 has been

kept alive for about fifteen years. In view of the concurrent

finding of Director of Agricultural Marketing dated 04.06.2014 and

the findings of the High Court in the impugned judgment that M/s

Ramchandra Vitthal Dongre is not eligible to claim large gala, in

our view, nothing survives for consideration in W.P.No.234 of

2004 pending before the High Court of Bombay. In the light of our

finding affirming the view taken by the High Court that the firm

M/s Ramchandra Vitthal Dongre is not eligible to claim allotment

of large gala, the High Court shall dispose of the said writ petition

W.P.No.234 of 2004 by passing appropriate orders.

50. In our considered view, respondent No.1-M/s Ramchandra

Vitthal Dongre and respondent No.2-Habibullah Farhatullah are

not eligible to claim allotment of large gala and the judgment of

the High Court is liable to be set aside.

51. Next question for consideration is as to who are all eligible

to make claim for the allotment of large gala. In view of the

foregoing discussion, the appellants-M/s Hande Wavare & Co.

and Ganpat Shinde (who are marginally short of the norms) are

eligible to claim allotment of large gala along with others. As per

43

the counter filed by APMC in writ petition W.P.No.10328 of 2014,

other than appellant-M/s Hande Wavare & Co., two other

claimants viz. respondent No.3-M/s Bhalchandra Chintaman Lele

(Mr. Kedar Keshav Lele) and respondent No.4-Ashok Dhondiba

Punde are also eligible for allotment of large gala.

52. The only other point to be considered is whether the

allotment to be made by sealed tenders or by draw of lottery. As

seen from the order of the Director of Agricultural Marketing dated

04.06.2014, APMC initially fixed the value of said gala as per

government rate at Rs.55,00,000/-. The Director of Agricultural

Marketing observed that instead of accepting the amount of

Rs.28,77,500/- from appellant-M/s Hande Wavare & Co., APMC

should have considered the market rate and getting valued the

said gala from government approved valuer and should have

called for sealed covers from the claimants and ought to have

allotted the gala to the claimant who is paying the maximum value

for allotment of large gala. In our considered view, since there is

huge competition for the large gala, instead of adopting the lottery

method, after fixing the market value in order to fetch more

revenue for APMC, offers should be invited in sealed covers. In

order to attract better offers, it is appropriate that appellant-M/s

44

Hande Wavare & Co. should vacate the large Gala No.F-158 at

the earliest. The learned counsel appearing for APMC has stated

that the small Gala No.M-821 earlier allotted to the appellant-M/s

Hande Wavare & Co. is still vacant. APMC shall forthwith pass

an order for re-allotting the said small sized Gala No.M-821 to the

appellant- M/s Hande Wavare & Co. and the appellant shall

vacate the large Gala No.F-158 before the end of September,

2019.

53. Considering the fact that APMC itself has fixed the market

value of large Gala No.F-158 at Rs.55,00,000/- in the year

2013-14, we deem it appropriate to fix the upset value at

Rs.55,00,000/-. The four eligible claimants. viz. (i) M/s Hande

Wavare and Co.; (ii) Mr. Ganpat Sabaji Shinde; (iii) M/s

Bhalchandra Chintaman Lele (Mr. Kedar Keshav Lele); and (iv)

Mr. Ashok Dhondiba Punde shall quote their offers in a sealed

cover and accordingly, the large Gala No.F-158 be allotted to the

one who is quoting the highest price.

54. In the result, the impugned judgment of the High Court is

set aside and these appeals are disposed of with the following

directions and observations:-

45

(i) It is held that respondent No.2-Habibullah Farhatullah is not

entitled to claim allotment of large gala and findings of the

High Court qua respondent No.2-Habibullah Farhatullah is

set aside;

(ii) The findings of the High Court that the firm-Ramchandra

Vitthal Dongre is not entitled to claim allotment of large gala

is affirmed;

(iii) The possession of small Gala No.M-821 shall be restored

back to the appellant-M/s Hande Wavare & Co. and M/s

Hande Wavare & Co. shall vacate the large Gala No.F-158

on or before 30.09.2019. The amount of Rs.27,69,500/-

deposited by the appellant towards the large gala No.F-158

shall be refunded to him by APMC immediately within two

weeks from the date of his vacating;

(iv) The upset value of large Gala No.F-158 shall be fixed at

Rs.55,00,000/- as fixed by the Director of Agricultural

Marketing, APMC and the same shall be notified by APMC

by the end of October, 2019. The four eligible claimants viz.

(i) M/s Hande Wavare and Co.-appellant; (ii) Mr. Ganpat

Sabaji Shinde; (iii) M/s Bhalchandra Chintaman Lele (Mr.

Kedar Keshav Lele)-respondent No.3; and (iv) Mr. Ashok

Dhondiba Punde-respondent No.4 shall quote their offers

for the large gala and shall submit sealed tenders to APMC

on or before 15.11.2019. The sealed tenders are to be

opened by APMC in the presence of a higher level officer

preferably, the Joint Director of Marketing and in the

presence of all the four claimants or their representatives on

22.11.2019; and

46

(v) The large Gala No.F-158 shall be allotted to the claimant

who has quoted the highest price. Payment of the amount

for allotment of large gala by the successful allottee shall be

paid as per the rules of APMC.

…………………………..J. [R. BANUMATHI]

…………………………..J. [R. SUBHASH REDDY]

New Delhi; July 10, 2019

47

M/S HANDE WAVARE AND CO. Vs RAMCHANDRA VITTHAL DONGRE

M/S HANDE WAVARE AND CO. Vs RAMCHANDRA VITTHAL DONGRE