REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs.  7520-7523   OF 2011 (Arising out of S.L.P. (C) Nos.26197-26200 of 2008)

Rakesh Sharma & Ors.                       .... Appellant (s)

Versus

State of M.P. & Ors.      .... Respondent(s)

J U D G M E N T  

P. Sathasivam, J.

1) Leave granted.

2) These  appeals  are  directed  against  the  judgment  and  

final  order  dated  18.01.2008  passed  by  the  High  Court  of  

Judicature of Madhya Pradesh, Jabalpur, Bench at Gwalior in  

Writ Petition Nos. 1873, 1878 and 2101 of 2003 and 310 of  

1999 whereby the High Court disposed of the writ  petitions  

and issued various directions to the Municipal  Corporation,  

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Gwalior in paragraph 8 of the impugned order for construction  

of a market complex known as “New Gandhi Market Building”.  

3) Brief facts:

(a) According  to  the  appellants-shopkeepers,  after  the  

partition  of  the  country,  in  the  year  1952,  the  Government  

constructed Gandhi  Market  in Gwalior  with 250 shops and  

allotted them to the appellants herein, who were migrated to  

India  from  Pakistan  at  the  time  of  partition,  as  

tenants/licensees.  Each shop covers 60 sq.ft. space + 30 sq.ft.  

Verandah, in total 90 sq.ft. area and has in front a 5 ft. wide  

footpath and then a public road.  In the year 1975, notice was  

issued  by  the  Municipal  Corporation  of  Gwalior  to  the  

shopkeepers  proposing  to  increase  the  rent  from  Rs.7/-  to  

Rs.220/- per month.  However, on 18.03.1977, the State of  

Madhya  Pradesh  as  well  as  the  Municipal  Corporation,  

Gwalior  agreed  to  increase  the  rent  only  by  7%  from  the  

original rent and also clarified that the enhanced rent would  

cover  area in  front  of  the  shops and no additional  charges  

were to be paid in that respect.  On 24.05.1994, the Municipal  

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Corporation  passed Resolution  No.40 by  which,  area of  the  

shop was treated as 90 sq. ft. including the verandah.   

(b) On 28.02.1999, a public interest litigation petition, being  

Writ  Petition  No.  310  of  1999  was  filed  by  a  lawyer,  G.S.  

Tomar, against encroachment and erection of wooden stalls by  

the  Municipal  Corporation  over  the  land  of  the  Madhya  

Pradesh  Housing  Board  in  Nazar  Bagh  Market,  which  is  

described  as  “the  heart  of  the  city”.   By  order  dated  

15.12.2000, the High Court directed that the said structures  

erected by the Municipal Corporation would be removed.  The  

petition was listed before the Division Bench on various dates  

and  several  directions  were  issued  by  the  High  Court.  

Thereafter,  on  04.02.2003,  the  High  Court  directed  the  

Municipal  Corporation  to  furnish  information  regarding  the  

steps being taken to remove encroachments on public streets.  

In May/June, 2003, the Municipal Corporation issued notices  

to the appellants alleging that they were in illegal occupancy of  

the front portion of their shops and directed them to remove  

the alleged encroachments with the threat  for  demolition of  

offending construction, if any.  Consequently, the shopkeepers  

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of Gandhi Market filed petitions before the High Court praying  

that they have not made any encroachment of the Verandah.  

The shopkeepers of various markets also filed writ  petitions  

before the High Court.   All the petitions were directed to be  

listed along with Writ Petition No. 310 of 1999.   

(c) During  the  pendency  of  the  writ  petitions,  the  High  

Court,  by order  dated 04.07.2003,  appointed District  Judge  

(Vigilance)  as a Local  Commissioner in respect of the illegal  

encroachments and constructions and directed the Municipal  

Corporation  to  continue  with  the  removal  of  encroachment  

from the footpaths and public streets which were identified by  

the  District  Judge  (Vigilance).   It  further  directed  that  

objections, if any, would be submitted to the District Judge.

(d)  Against  the  order  dated  04.07.2003,  some  of  the  

shopkeepers of other markets filed Special Leave Petition No.  

12446 of  2003 before this  Court  wherein this  Court  issued  

notice and stayed the demolition until further orders.   

(e) On 25.08.2003,  the Local  Commissioner  submitted his  

report before the High Court and the High Court directed that  

it  may  not  be  open  to  the  parties  to  raise  any  further  

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objections to the report.  Against the said order, the appellants  

herein filed S.L.Ps. before this Court which were directed to be  

tagged  with  the  earlier  S.L.P.(C)  No.  12446  of  2003.   This  

Court disposed of all the petitions on 25.10.2004 by directing  

the High Court to dispose of the writ petitions as expeditiously  

as possible after taking into consideration the objections of the  

appellants and directed to maintain the status quo as on that  

date till the disposal of the writ petitions.   

(f) On 19.01.2005,  the High Court  directed the Municipal  

Corporation  to  submit  a  plan  and  map  for  development  of  

Gandhi Market as a shopping complex having first and second  

floor and a parking area.  As the appellants agreed to pay Rs.1  

lakh each in four instalments for construction of the first floor  

shops,  the  High  Court  further  directed  that  the  amounts  

deposited  by  the  shopkeepers  would  be  kept  in  a  separate  

fund by the Corporation and its use would be considered at  

the time of final hearing.    

(g) On 08.07.2005, the High Court directed that since the  

shopkeepers  have  not  deposited  the  remaining  three  

instalments,  they  shall  pay  the  same  and  clarified  that  in  

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default, the Municipal Corporation is at liberty to remove the  

shopkeepers who are not willing to deposit their instalments.  

On  24.03.2006,  the  High  Court  further  directed  that  the  

Municipal  Corporation  shall  auction  the  shops  excluding  

verandah  by  an  auction  notice  for  the  Court  to  know  the  

actual  rental  value  and  submit  the  price  offered  and  the  

valuation report of each shop.  In pursuance of the said order,  

the Municipal Corporation published notice but no one applied  

for the same.   

(h) Against  the  order  dated  24.03.2006,  the  shopkeepers  

filed applications before the High Court for recalling the order  

and for refund of the amount deposited by them with interest  

and  the  same  were  dismissed  by  the  High  Court  on  

05.05.2006.  Since the shopkeepers were not willing for the  

reconstruction of the market, the petitions were directed to be  

listed along with W.P.(C) No. 310 of 1999.   The Commissioner  

was also required to give a proposal for reconstruction.  By the  

impugned order dated 18.01.2008, the High Court disposed of  

all  the  writ  petitions  with  various  directions  as  found  in  

paragraph 8 of the impugned order.   

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(i) Aggrieved by the said order, the appellants-shop keepers  

have filed these appeals by way of special leave petitions before  

this Court.

4) Heard Mr.  Sunil  Gupta,  learned senior  counsel  for  the  

appellants, Mr. K.K. Venugopal and Dr. Rajiv Dhavan,  learned  

senior counsel for the Municipal Corporation, Gwalior and Mr.  

Vikas Upadhyay, learned counsel for the State of M.P.

5) According to Mr. Sunil Gupta, learned senior counsel for  

the appellants, several interim orders and the impugned final  

order of the High Court are wholly outside the legitimate scope  

and jurisdiction of  PIL as stipulated in various decisions of  

this Court.  He further contended that the directions of the  

High  Court  by  which  the  appellants-shopkeepers  have  to  

vacate their legally rented shops for construction of a new 7-

storey  shopping complex in  their  place  are  opposed  to  and  

outside the legitimate jurisdiction of a writ court under Article  

226  of  the  Constitution.   He  also  contended  that  the  High  

Court  over-stepped its  jurisdiction  while  continuing to  pass  

order  after  order  constituting a Committee  to  supervise  the  

construction  of  shopping  complex  and  requiring  various  

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authorities  to  facilitate  by sanctioning necessary  permission  

and so on.   

6) On the  other  hand,  Mr.  K.K.  Venugopal  and Dr.  Rajiv  

Dhavan, learned senior counsel for the Municipal Corporation  

submitted  that  at  every  stage  even  at  the  time  of  passing  

various  directions,  the  appellants  consented  the  same  and  

taking note of the interest of all the shopkeepers and for the  

convenience of the general public making provision for parking  

etc., the High Court issued various directions which are not  

only  consented  by  the  shopkeepers but  also  in  consonance  

with  the  decisions  of  the  Town  and  Country  Planning  

Department  as  well  as  the  State  Government.   They  also  

submitted  that  by  the  impugned  directions,  the  appellants-

shopkeepers  are  not  going  to  loose  anything,  on  the  other  

hand, the Municipal Corporation has assured that they will be  

provided alternate  accommodation till  the  completion of  the  

fresh  construction  and after  new construction,  they  will  be  

provided convenient shops in the ground floor itself with more  

facility for parking, accordingly, they prayed for dismissal of all  

the above appeals as devoid of any merits.

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7) We  have  carefully  considered  the  rival  submissions,  

impugned order  of  the  High Court  including  various  orders  

passed, statutory provisions and all other relevant materials.

8) In order to consider the issues raised above, it is relevant  

to note the ultimate directions issued by the High Court.  It is  

useful  to  mention  that  the  High  Court  has  considered  the  

issue not only in the PIL filed by an advocate of the local Bar  

but also heard and decided three writ petitions filed by 252  

shopkeepers having their business in the market in question.   

9) The following directions in paragraph 8 of the impugned  

order are relevant.  They are as follows:

“8.   As  we  have  directed  through  interim orders  and the  Town and Country Planning vide order dated 5.12.2007 has  granted  permission  for  construction  of  new  shopping  complex of seven storeys, with three underground storeys of  parking  area,  in  the  interest  of  all,  this  petition  and  connected petitions are disposed of finally with the following  directions:

1. That  now the  respondent  No.2  Municipal  Corporation  shall construct new Gandhi Market Building as per the  permission granted by the Town and Country Planning  Department,  Gwalior  as  well  as  by  the  State  Government.

2. That the aforesaid construction shall be supervised by  the  Committee  constituted  by  this  Court  vide  interim  order dated 20.4.2007.  Committee and Corporation will  ensure  the  construction  of  the  new  building  for  the  commercial  market  and  will  see  that  the  tenders  are  invited  timely  and  agency  is  fixed  for  the  purpose  of  

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construction.   Whenever  agency shall  be  fixed by  the  Corporation for the purpose of construction, then after  entering  into  agreement  with  the  agency  but  before  issuing the work order, the Committee will give notice to  the  shopkeepers  for  vacating  the  shops  and  within  a  period  of  two  months,  shopkeepers  shall  vacate  the  shops.  The shopkeepers will not raise any objection on  any  alternative  site  granted  by  the  Municipal  Corporation for running the business and will not delay  in vacating the shops.  After taking over the possession,  the  agency  will  start  the  work  and  see  that  the  construction upto ground floor level is completed within  a period of one year and thereafter shops are allotted to  the  old  shopkeepers  positively  within  a  period  of  18  months on the outer limit.

3. That  the  ground  floor  shops  shall  be  allotted  to  the  shopkeepers, those who will deposit the balance amount  of  three  instalments  and  shall  also  enter  into  an  agreement with the Corporation.

4. That the Corporation shall be free to allot the shops of  first, second and third floor on fair and auction basis  under the supervision of the Committee.  Other terms  and conditions of the allotment shall be settled by the  Corporation  and  the  Committee.   So  far  as  the  participation of the representatives of the shopkeepers  in  the  Committee,  that  shall  be  limited  only  for  the  ground floor shop.

5. Municipal  Corporation  shall  be  free  to  fix  the  fresh  rent/licence  fee  of  the  new  shops,  which  shall  be  allotted to the existing shopkeepers.  The Commissioner,  Municipal  Corporation  and  Committee  shall  submit  quarterly progress report in the Court.”  

10) The whole controversy involved in these appeals is about  

the order dated 18.01.2008 passed by the High Court in the  

said writ petitions. The question for consideration before this  

Court is whether the High Court overstepped in its legitimate  

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and  legal  jurisdiction  while  continuing  to  pass  order  after  

order constituting a Committee to supervise the construction  

of the shopping complex and any such directions can at all be  

issued by the High Court while exercising its powers under  

Article 226 of the Constitution of India.  

11) The  Municipal  Corporation,  Gwalior  before  the  High  

Court  as  well  as  in  this  Court  furnished  necessary  details  

about their stand.  It is seen that a Writ Petition No. 310 of  

1999 filed by Advocate G.S. Tomar was pending consideration  

in  which  the  encroachment  caused  on  the  public  way  

belonging to the M.P. Housing Board in Najar Bagh market  

situated  at  Maharaj  Bada  where  the  Municipal  Corporation  

raised certain wooden stall pucca structure and was going to  

auction the same but subsequently under the orders of the  

Court in miscellaneous petitions, the petitioner confined the  

issue only to the question relating to encroachment in Gandhi  

Market, Gwalior.  It  was stated in the writ petition that the  

shopkeepers  of  Gandhi  Market  have  encroached  upon  the  

verandah which was constructed in front of the shops for the  

use  of  public  and  the  prayer  was  made  that  the  aforesaid  

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verandah  which  has  been  encroached  upon  by  the  

shopkeepers  may  be  removed.   While  so,  in  the  other  writ  

petitions, all the shopkeepers have stated that they have not  

made any encroachment of the verandah.  When, on earlier  

occasion,  this  Court  was  approached  by  the  parties  with  

regard to certain interim directions, this Court requested the  

High Court to dispose of the main writ petitions at an early  

date.  Pursuant to the same, all the writ petitions were heard  

on several occasions and before passing a final order, several  

interim orders/directions were issued.   

12) At the foremost, Mr. Gupta submitted that they were not  

parties in the writ petition filed as PIL, hence without affording  

opportunity, various directions have been issued.  Inasmuch  

as almost all the shop keepers have filed three writ petitions  

conveying their stand and admittedly all those writ petitions  

were heard along PIL (Writ Petition No. 310 of 1999), the said  

objection is liable to be rejected.  

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Consent by the shop keepers:

13) Though  Mr.  Gupta,  learned  senior  counsel  for  the  

appellants  vehemently  contended  that  the  High  Court  has  

exceeded its jurisdiction while  considering the writ  petitions  

filed  under  Article  226,  Mr.  K.K.  Venugopal  and  Dr.  Rajiv  

Dhavan, learned senior counsel for the Municipal Corporation  

while refuting the above contention pointed out that several  

orders  were  passed  by  the  High  Court  on  the  basis  of  the  

consent given by the shopkeepers.  On 09.01.2005, the High  

Court passed the following order:

“During  course  of  arguments,  counsel  for  the  petitioners  suggested that each shop keeper will  deposit  Rs. One Lac  with  the  Municipal  Corporation,  Gwalior  in  four  monthly  installments, First Installment shall be paid next month and  thereafter  other installments shall  be paid every month in  the Municipal Corporation.

Counsel for the Municipal Corporation submits that they will  prepare a map for development of Gandhi Market and will  prepare a good shopping complex having first  and second  floor.   Plan  shall  also  include  parking  area.   It  is  also  suggested by the Municipal Corporation that the shopping  complex shall be prepared in such a manner that existing  shop  keepers  will  not  be  dispossessed  till  first  floor  is  completed.  However, exact plan will be submitted by them  within one month.

Petitioners have also agreed that they will not keep of their  goods on the footpath and the footpath will  be kept clear.  They  have  further  agreed  that  there  shall  be  no  encroachment  on  the  footpath  including  hangings  on  the  

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footpath.   Respondents  shall  ensure  that  no  vehicles  are  parked on the footpath.

Counsel  for  the  petitioners  also  submitted  that  they  will  move an application before the Apex Court for extension of  time for decision of the petition.

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

14) Again  on  19.01.2005,  the  High  Court  passed  the  

following order:

“Shopkeepers of Gandhi Market have discussed the matter  amongst  themselves  and have  decided to  deposit  Rs.  One  Lac  each  with  Municipal  Corporation  which  shall  be  deposited  by  them  in  four  equal  monthly  installments.  Similarly,  shop keepers of Victoria Market and the market  nearby the Town Hall have agreed to deposit Rs. 50,000/-  each  in  two  installments  with  Municipal  Corporation,  Gwalior.

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

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

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

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

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

15) Thereafter,  the  High Court,  on 11.03.2005,  passed the  

following order:

“Shri Bhardwaj stated that as per undertaking given by the  shop  keepers  of  Gandhi  Market  an  amount  of  Rs.  62,27,000/-  has  been  deposited  with  the  Municipal  Corporation, Gwalior.  Counsel for the shop keepers submits  that efforts are being made to pay future installments.  He  further submits that if the map prepared by the Municipal  Corporation  for  development  and  beautification  of  the  market,  as ordered earlier  by this Court,  is  produced and  after  going  through  the  map,  shop  keepers  will  be  in  a  position  to  raise  further  funds  and  deposit  other  installments  as  undertaken  by  them earlier.   Shri  Bidua,  counsel for the Municipal Corporation, Gwalior has informed  that the finalization of map is at the final stage and is likely  to be finalized by the end of next week.  He submits that  plan for development will be ready within a week or ten days.

Since  there  is  likelihood  of  amicable  settlement  in  the  matter,  we post this case after  two weeks.  On that date,  map approved by the Municipal Corporation for development  of Gandhi Market shall be produced in the Court for perusal.

Shri  Bhardwaj  has  mentioned  that  in  view  of  further  development in the case they have already approached the  Apex Court for extension of time for deciding the petitions as  the  dispute  is  being  settled  between  the  Municipal  Corporation and the shop keepers.  He has also stated that  there is every possibility that the application for extension of  time will be heard in the next week.”

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16) From the above orders, it is clear that with the consent of  

the  parties,  the  order  of  construction  of  new  market  was  

passed and maps were prepared.

17) Again,  by order dated 06.05.2005,  the High Court  has  

specifically  mentioned  “the  scheme  for  development  of  the  

market  shall  also  be  finalized  in  consultation  with  the  

shopkeepers”.  The same reads as under:-

“Today  counsel  for  Municipal  Corporation  intimated  that  maps  for  Gandhi  Market  have  been  prepared  by  the  Architect and accepted by Municipal Corporation.

Said maps be shown to the shop keepers or representatives  of shop keepers.  The scheme for development of the market  shall also be finalized in consultation with the shop keepers.

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

18) Thereafter,  on  08.07.2005,  the  High  Court  passed  the  

following order:

“As agreed by the shopkeepers on 19.01.2005, that they will  deposit Rs. One lac with the Municipal Corporation, Gwalior  in four equal monthly instalments, they have deposited only  one instalment and remaining three instalments at the rate  of Rs.25,000/- per month have not been deposited.  Maps  have  been  prepared  by  the  Municipal  Corporation  which  have been shown to the representatives of the shopkeepers.  Now the shopkeepers state that all the shopkeepers want to  see  the  maps  and  CD  prepared  for  construction  of  the  market.  Municipal Corporation has no objection in showing  the  entire  plan  to  them.   However,  the  shopkeepers  are  directed to deposit the second instalment within fifteen days  and  thereafter  remaining  instalments  be  paid  in  equal  

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instalments  every  fifteen days and after  deposit  of  second  instalment  those  shop  keepers  who  have  deposited  the  second instalment will be entitled to see the maps CDs and,  the Municipal Corporation will be at liberty to remove those  shop  keepers  who  are  not  willing  to  deposit  their  instalments.  However, before passing any order of removal,  Municipal  Corporation  shall  examine  their  encroachments  and other factors and submit report before this Court.”   

19) The same order has been reiterated on 24.03.2006 which  

is as follows:-

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

In the circumstances, petition is required to be heard finally.

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

List the petition finally before appropriate Bench, as prayed  for  by  the  counsel  for  the  petitioners,  in  the  week  commencing 1st May,  2006.   It  is  directed that  before  the  date  of  hearing,  Municipal  Corporation  shall  submit  the  price offered for each shop and the State shall also submit  the valuation report of each shop.”

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20) On 09.02.2007, the Court recorded that:

“Shri Bidua (counsel for Respondent No.2) prays for time to  submit verification report of  the photographs filed by Shri  V.K.  Bharadwaj  counsel  for  intervenors  and  shopkeepers  and to submit report about closing of verandah against the  shops.”   

21) Again,  on  02.03.2007,  the  High  Court  passed  a  brief  

order which is as follows:  

“With  the  consent  of  the  parties,  it  is  directed  that  Shri  Sharma, Commissioner, Municipal Corporation will complete  the inviting process of tenders for the construction of new  market  building at  the  place  of  old Gandhi  Market  on or  before 09.03.2007.”

22) The order dated 20.04.2007 is very relevant which reads  

as under:-

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

23) The following noting in the order dated 04.05.2007 by the  

High Court is also relevant which reads as under:-

“Shri Raja Sharma, learned counsel appearing for the shop  keepers submitted that the shop keepers will not raise any  objection before the Committee regarding the construction of  the market.”

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24) It is abundantly clear that from time to time, on different  

occasions with the consent of the parties, the construction of  

new  Gandhi  Market  was  discussed  and  a  Committee  was  

constituted after the order dated 20.04.2007.  

25) The  High  Court,  on  different  occasions,  took  into  

consideration the objections and suggestions of the Director,  

Town and Country Planning Department, the Commissioner,  

Municipal  Corporation,  Principal  Secretary,  Housing  

Development and passed an order on 18.05.2007 which is as  

follows:-  

“Today progress report along with minutes of the meeting of  the  Committee  dated  14.05.2007 has  been  filed,  which is  taken on record and Corporation has also produced copy of  letter dated 15.05.2007 written by Joint Director, Town and  Country  Planning  Department  to  the  Director  for  seeking  permission from the State.  It is submitted that the Architect  has  already  submitted  map  as  per  advice  of  the  Joint  Director,  Town and Country Planning Department and the  matter has been referred to the Government for permission.  So far as the question of permission upto the height of 24  meter is concerned, that shall be obtained by the Municipal  Corporation and not by the Contractor.  The Committee has  fixed the next date of meeting of 5th June, 2007.  List this  case  on  6th July,  2007.   In  the  meantime,  the  State  Government shall take a decision on the permission and the  Committee shall also finalize the map and issue the tenders  for  fixing  the  agency  etc.   During  this  period  every  effort  should be made to complete the formalities and process of  inviting  tenders  should  also  be  started  so  that  the  construction plan may be prepared.   Next  progress  report  shall be submitted on 6th July, 2007.  

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The same order has been reiterated in the subsequent order  

dated 20.07.2007.  On 27.07.2007, the High Court passed the  

following which reads thus:-

“It is directed that Shri Batham will continue to co-ordinate  between the authorities and will see that the inspection and  report  is  submitted  by  the  School  of  Planning  and  Architecture, New Delhi as early as possible and the consent  is  obtained  from  the  Department  of  Town  and  Country  Planning  as  well  as  the  State  Government.   He  will  also  submit the reply of the queries and fulfill all the conditions  which are  necessary  for  the  approval  of  the  project.   The  Corporation is directed to submit the further progress report  on 10.08.2007.

26) If  we  analyze  the  above-mentioned  and  various  other  

orders,  it  would  not  be  possible  to  conclude  that  the  High  

Court over stepped its limit while giving directions in para 8 of  

the impugned order.  As rightly observed by the High Court, it  

is the duty and responsibility of the Public Department of the  

State  Government,  Municipal  Corporation  to  take  all  

endeavour to save the town of Gwalior  from encroachments  

and  also  easing  the  public  utility  system.   The  materials  

placed by the Municipal Corporation clearly show that Gandhi  

Market which is primarily a cloth market is established in the  

year  1952  is  now  in  a  very  haphazard  condition  causing  

difficulty in the movement of public as well as of vehicles.  It  

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was highlighted that in the day time as well as in the evening  

busy time, it takes hours together for the vehicles to pass from  

that  area.   Photographs  were  also  shown  to  us.   It  is  

impossible for the public to even walk on the street.  The shop  

keepers are dumping their products upon the street which is  

not permissible.  The public are prevented from using the foot  

path/pavement  meant  for  them.   In  such circumstances,  a  

decision  was  taken  to  construct  a  multi-level  parking-cum-

commercial complex.  In this process of construction, it was  

planned to shift temporarily the present shop keepers to some  

other nearby places.  

27) It is further seen that the present commercial area of the  

appellants/shop  keepers  is  60  sq.  ft.  which  has  been  

converted by encroaching the area of verandah and converted  

the same into 90 sq. ft area.  The new shop of 60 sq. ft. size is  

to be given to 252 present incumbents of Gandhi Market.  It is  

highlighted that to construct the building to the height of 12.5  

metres having 3 layers of basement for parking, the ground  

floor  shall  have  252  shops  which  shall  be  allotted  to  the  

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present incumbents of Gandhi Market and other floors shall  

be at the disposal of Municipal Corporation, Gwalior.

28) In view of the various orders passed by the High Court on  

the basis of consensus of the parties, more particularly, with  

the consent of the shop keepers, a Committee was appointed  

and a direction was issued for providing alternate place to the  

shop  keepers  till  new  construction  being  completed  in  the  

existing place and all of them were assured of accommodation  

in the ground floor of the new market complex, we are of the  

view  that  the  ultimate  directions  issued  in  the  final  order  

dated 18.01.2008 by the High Court cannot be faulted with.  

29) The next submission of Mr. Gupta relates to applications  

filed by the appellants before the High Court for recalling the  

order dated 24.03.2006 and also seeking clarification on the  

same order as well  as another application for refund of the  

amount deposited.  Admittedly, one application was rejected  

on 05.05.2006 and it is not clear how the other applications  

are kept pending even after  disposal  of  main writ  petitions.  

About the amount deposited by the shop keepers,  both the  

senior  counsel  appearing  for  the  Municipal  Corporation  

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submitted that the said amount was not towards adjustment  

of  construction  charges  but  the  same  would  be  adjusted  

towards future licence fees.  In the light of the same, there is  

no substance in the contention relating to filing of applications  

about various orders passed by the High Court.   As rightly  

pointed out by Dr. Rajiv Dhavan, learned senior counsel for  

the  Municipal  Corporation  even  after  the  so-called  

applications, the consent to the process of a new market place  

continued  and  this  is  evident  from  the  orders  of  the  High  

Court  dated 02.03.2007,  20.04.2007 and 04.05.2007.   It  is  

also brought to our notice that some applications that were  

made in June/July to recall the order dated 04.05.2007 were  

not pressed.  In view of the same, we are unable to accept the  

claim of the learned senior counsel for the appellants.  

30) In view of our factual conclusion based on the materials  

placed by both the parties as well as various orders of the High  

Court,  we  feel  that  there  is  no  need  to  advert  to  various  

decisions  relied  on  by  the  learned  senior  counsel  for  the  

appellants.

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31) In the light of the above discussion, we are satisfied that  

various directions in para 8 of the impugned order of the High  

Court cannot be faulted with and according to us it safeguards  

not  only  the  interest  of  the  Municipal  Corporation,  general  

public but also all the 252 shop keepers who are running their  

business in the Gandhi Market.  Further, it was not disputed  

before the High Court that Gandhi Market became quite old  

and  market  is  fully  congested  and  there  is  no  space  for  

parking.   That  was  the  reason  the  High  Court  specifically  

recorded a finding in para 7 that:

“…..  under  changed  circumstances  that  all  the  parties  including the shop keepers have agreed for construction of  new  Gandhi  Market  building  in  the  place  of  old  Gandhi  Market building.  This Court has already in the interest of all  the parties and the citizens of Gwalior City, directed through  interim orders for construction of a new market building and  has also constituted a Committee to see that new Gandhi  Market building is constructed and after  construction, the  existing shop keepers were also settled therein. ….   ….”   

We fully endorse the above view.  Though an argument was  

advanced that the permission granted by Joint Director, Town  

and  Country  Planning,  Gwalior  in  his  proceeding  dated  

05.12.2007  to  the  Commissioner,  Municipal  Corporation,  

Gwalior  regarding reconstruction of  Gandhi Market,  Gwalior  

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was objected to by the Director and further approval of the  

State Government is required, inasmuch as the Joint Director  

is  the  officer  competent,  we  hope  and  trust  that  no  fresh  

construction would be carried out without the authority of the  

person  concerned  and  contrary  to  the  statutory  

provisions/regulations,  accordingly,  we  reject  the  said  

contention also.   

32) Under these circumstances, we are unable to agree with  

any one of the submissions made by the appellants,  on the  

other hand, we are in entire agreement with the stand of the  

respondents and reasonings and conclusion arrived at by the  

High  Court.   We  direct  the  respondents,  particularly,  the  

Municipal Corporation, Gwalior and the officers concerned to  

implement  the  directions  of  the  High  Court  within  the  

parameters of the statutory provisions considering the interest  

of  the  general  public  as  well  all  the  shop  keepers  of  the  

existing market.  In view of the disposal of the civil appeals,  

Municipal Corporation is free to proceed with the construction  

as directed in the impugned order of the High Court and in the  

light of the above observations, as early as possible, and we  

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also direct that all the directions of the High Court shall be  

adhered to.  It is further directed that as soon as construction  

up to ground floor level is completed along with the required  

parking facilities at the basement level those shops are to be  

allotted to the old shop keepers in the Gandhi Market within a  

period of  six  months after  completion of  such construction,  

unless an individual  shop keeper becomes ineligible  for  the  

known reason.     

33) Consequently,  all  the  appeals  fail  and  are  accordingly  

dismissed.  In view of the same, interim stay granted by this  

Court on 17.10.2008 shall stand vacated. No order as to costs.                    

...…………………………………J.                   (P. SATHASIVAM)  

...…………………………………J.           (DR. B.S. CHAUHAN)  

NEW DELHI; AUGUST 30, 2011.    

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