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


Decision:
1[ds]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 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.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 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 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 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.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 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.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.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 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.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/-.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 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.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 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 setview 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 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 largeseen 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 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.